Justice Sherry Klein-Heitler’s Decision and Order

A Death in the Hospital /Articles /Justice Sherry Klein-Heitler’s Decision and Order



as Co-Administrators of the estate of
SETH S. SPEKEN, deceased, and RALPH H.
Plaintiffs,  Index# 128682/94




“JOHN DOE,” and “JANE DOE,” true
identities unknown, being doctors,
nurses, residents, interns and other
medical or technical personnel who
rendered services to the decedent at




In this medical malpractice action, plaintiffs Ralph Speken, MD and Stephanie Speken (hereinafter “Speken”) allege that  defendant Columbia Presbyterian Medical Center (hereinafter the “Hospital”) was negligent in its care and treatment of Seth Speken,  their son, thereby causing his death on August 27, 1993. Pursuant to a settlement which was put on the record in open court and a General Release signed by plaintiffs, this action was settled on  July 8, 1999 for $500,000. Motion Sequence Nos. 008, 009 and 010 are consolidated for disposition.

In Motion No. 008, Richard Frank, Esq. (hereinafter “Frank”),  plaintiffs’ former attorney, moves, by order to show cause, for an  order directing a hearing to apportion and fix the attorneys’ fee awards and disbursements in this matter based on the percentage of work performed by the attorneys.

In Motion No. 009, Claire Pare, Esq. (hereinafter “Pare”), the former attorney for Dr. Speken in connection with the defense of a  counterclaim asserted against him, also moves, by order to show cause, for an order apportioning the attorneys’ fee awards in this case.

In Motion No. 010, plaintiffs move for an order: (1) vacating and setting aside the General Release on the ground of fraud; (2)  vacating the attorneys’ liens which are associated with the General Release; and (3) withdrawing the Note of Issue.


On August 21, 1993, Seth Speken was admitted to the Hospital as a psychiatric patient following a seizure episode. The emergency services triage report reflects that Seth Speken suffered from Crohn’s disease, panic attacks and depression. In addition,  the report states that he was recently placed on Elavil by an outside psychiatrist, that his father was treating him, and that Dr. Speken had given his son a dose of Bethanachol. Prior to Seth Speken’s admission, Dr. Speken had treated his son’s panic disorder. As part of this treatment, he prescribed the drug Xanax  (a benzodiazepine) for Seth Speken. During his stay at the hospital, Seth Speken allegedly became delusional and delirious. He was then placed in wrist and ankle restraints. Consequently, Seth Speken developed an embolism that caused his death.

Subsequently, plaintiffs engaged Thomas R. Moore, Esq.  (hereinafter “Moore”) to bring a civil wrongful death action  against the Hospital. Plaintiffs signed the standard statutory  contingent legal fee agreement pursuant to Judiciary Law § 474- a(2) 1.

On October 11, 1994, plaintiffs, individually and as co-administrators of Seth Speken’s estate (hereinafter the “Estate”),  commenced this action against defendants. The complaint contains two causes of action. One was for pain and suffering and the other was for wrongful death. Plaintiffs allege that the Hospital failed to properly treat Seth Speken’s condition during the period  August 21, 1993 to August 27, 1993, and that this departure from appropriate medical standards proximately caused Seth Speken’s death (Complaint, ¶ 13).

On October 12, 1994, Moore engaged Frank as trial counsel this action on behalf of plaintiffs. Pursuant to a  written agreement, Moore agreed to pay Frank 2/3 of the contingent fee. A notice of Frank’s retainer was filed with the Judicial Conference,  indicating that Frank was to receive the standard statutory fee, and that Moore, as attorney of record, was to receive a fee “equal to the same percentage of  attorneys’ fee that the attorneys’ fee bears to the total recovery”


1 Judiciary Law § 474-a(2) establishes a mandatory fee schedule for attorneys who are retained to prosecute medical malpractice claims on a contingent fee basis.

The schedule limits attorney’s fees by applying the following correlations: 30% of the first $250,000 of the sum recovered; 25% of the next $250,000 of the sum recovered; 20% of the next $500,000 of the sum recovered; 15% of the next $250,000 of the sum the sum recovered.

Frank did not enter into a retainer agreement with  plaintiffs.

In March 1996, the Hospital obtained an order permitting it to  bring a counterclaim against Dr. Speken for indemnification and/or  contribution based upon his alleged malpractice in his treatment of Seth Speken, alleging that it was Dr. Speken’s own negligence which  ultimately caused his son’s death. They alleged that he addicted his son to benzodiazepines and then withheld said information from the emergency room physicians when his son was admitted to the  Hospital.

When the counterclaim was asserted by the Hospital against Dr.  Speken individually, Moore concluded that a different lawyer should  appear before the jury for the Estate, as plaintiff, and Dr. Speken, as counterclaim defendant.

Moore then obtained Pare to appear for and represent Dr.  Speken on the counterclaim. On June 15, 1996, plaintiffs signed a  retainer agreement with Pare, providing for a contingent fee of 25%  of the net proceeds received from the wrongful death action, after payment of the attorneys’ fees to the Estate’s attorneys for the  prosecution of that action.

Prior to the signing of the retainer agreement, Moore had  asked for a 50% referral fee, but Pare would only agree to a 1/3  referral fee. Moore ultimately accepted Pare’s 1/3 referral fee. Pare then answered on behalf of Dr. Speken,  and participated in discovery.

In late February 1999, Pare received a letter from Moore,  stating that “this is to confirm that the legal fee I receive in  the Speken case will be shared 50-50 with you” Pare told Moore that he was mistaken, and refused. In March 1999, Pare  received a letter from Moore stating “I intend and have always intended that Richard Frank conduct the case against Columbia  Presbyterian and that I personally conduct the defense of Dr. Ralph Speken”. By letter dated March 23, 1999 from plaintiffs, Pare was  discharged as counsel for Dr. Speken

After a number of lawyers declined to represent Dr. Speken,  Moore agreed to represent him on the counterclaim. Plaintiffs signed  a retainer agreement hiring Moore to represent Dr. Speken, agreeing to pay him a contingent fee of 25% of the net proceeds received  from the Hospital, after deduction of attorneys’ fees and disbursements for the prosecution of the wrongful death action.

 Subsequently, on March 10, 1999, to “avoid any conflict of  interest in Mr. Moore’s representing the Estate and defending [Dr.  Speken]”, Moore had Dr. and Mrs. Speken, in their capacity as plaintiffs  for the Estate, sign an agreement in which they waived “each and every claim the Estate might have against [Dr. Speken]”.

After completion of discovery and the filing of the note of  issue, this Court set a pre-trial conference. This action was  originally scheduled to commence a trial on February 23, 1999. Frank, however, was engaged on that date. Both sides then agreed  to a firm trial date of June 14, 1999. Frank was again engaged on that date. This Court then directed counsel to select a trial date  that would be firm and final. Hence, the trial was ultimately scheduled to commence on July 12, 1999. It was understood that there would be no further adjournments.

Frank and representatives for defendants then attended various  conferences in an attempt to settle the case. At that point, plaintiffs were not willing to settle, and the case was remanded  for trial, scheduled to commence on July 12, 1999.

Frank began to prepare for trial by meeting with  both Dr. and Mrs. Speken on June 17, 1999. After this meeting,  Frank needed certain documents that Pare had prepared in support of  a summary judgment motion. On June 21, 1999, Frank contacted Pare, who advised Frank that she had had a disagreement with Moore about  the division of fees for representing Dr. Speken, that she had been discharged as attorney for Dr. Speken, and that Moore had taken over such defense himself.

Frank alleges that, during this conversation, he learned for  the first time that Moore, who was to receive a portion of the  attorneys’ fees in connection with plaintiffs’ recovery in the wrongful death action, was also acting as attorney of record for  Dr. Speken on the counterclaim, and was to receive an additional 25% contingent fee.

On June 23, 1999, Frank told Moore that he believed this fee  arrangement was improper, since in the event of a recovery by plaintiffs against the Hospital, Moore would receive a much greater  total attorney’s fee from his client’s share of the recovery than allowed, regardless of whether or not the Hospital’s counterclaim  against Dr. Speken was sustained.

In view of these circumstances, on June 23, 1999, Frank  advised Moore that he must withdraw as trial counsel, and advised  plaintiffs of this fact by letter the next day. On June 29, 1999, plaintiffs consented to Frank’s withdrawal, and a stipulation to that effect was entered on the record before this Court. This Court was not privy as to why Frank was withdrawing.

After Frank’s resignation, trial was scheduled to begin in  approximately two weeks. Moore then contacted the law firm of  Assail & Yoeli, which indicated that it would consider trying the  case for the Estate, but insisted that Moore stay in to represent Dr. Speken on the counterclaim before the jury. It was agreed that  Assail & Yoeli would receive 2/3 of the attorneys’ fees, and that Moore would receive 1/3.

Settlement negotiations then began again, and on July 8, 1999,  plaintiffs consented to accept $500,000, in full settlement of the  entire action. The settlement stipulation was read into the record, and supported by the in-person testimony of both plaintiffs. In response to this Court’s questions, both plaintiffs separately stated that they  agreed to the settlement of their own free will, without being forced to do so. Plaintiffs also simultaneously executed a specific General Release incorporating the terms of the settlement, agreeing “to indemnify and hold harmless” the Hospital. In response to this Court’s questions, both plaintiffs stated that they read the General Release, and had no questions about it.

When Frank learned about the settlement, he contacted Moore  regarding the circumstances of the settlement, and asked about the  division of attorneys’ fees, and reimbursement of his disbursements. Although Moore agreed to an appointment to discuss  the matter, Moore then sent Frank a letter indicating his intention to retain the entire fee on this matter for himself. Similarly, Moore refused to acknowledge Pare’s attorney’s lien, despite her request re same.

On August 11, 1999, Frank brought a motion for an order  directing a hearing with respect to the apportionment of attorneys’  fees. This Court granted a temporary restraining order and ordered the law firm of McAloon & Friedman (the Hospital’s counsel),  pending the hearing of this application, to hold in escrow from the proceeds of the settlement the sum of $137,5002 with respect to


2 This amount represents the attorneys’ fees pursuant to the Medical Malpractice Fee Schedule set forth in Judiciary Law § 474-a(2).

Frank’s claim for legal fees. In the alternative, this Court  ordered that if Moore had received the settlement check, he should  hold such check in escrow.

On August 19, 1999, Pare brought a motion regarding her  entitlement to attorneys’ fees. This Court also granted a  temporary restraining order, ordering the McAloon firm, pending the  hearing of this application, to hold in escrow from the proceeds of the settlement, if such check had not yet been issued, the sum of  $90,6253 with respect to Pare’s claim for legal fees. In the alternative, this Court. ordered that if Moore had received such check, Moore was to hold in escrow from the proceeds of the  settlement of this action (provided that the proceeds had not yet been disbursed), the sum of $90,625.

On October 24, 1999, plaintiffs moved to vacate the settlement on the grounds that Moore coerced them into agreeing to it, and, as such, the settlement was procured by fraud.

Subsequently, in November 1999, Moore petitioned the Bronx  Surrogate’s Court. He asked for the removal of Dr. and Mrs. Speken  as Co-Administrators under Limited Powers of the Estate of Seth Speken, and also that the Court appoint a new Administrator.


3 Pursuant to Pare’s retainer agreement with plaintiffs, this amount represents 25% of the net proceeds of the settlement, after deduction of attorneys’ fees and disbursements for the prosecution of the wrongful death action.