Did Dr. who represented self in suit have a fool for a client?

CASE ON POINT: Kaplan v. Morse, 870 So.2d 9340--FL (2004)

ISSUE: In this unusual Florida case, a physician who was a defendant in a law suit represented himself. The physician failed to file an answer to the plaintiffs' amended complaint. The physician was fortunate that judgment was entered for him. However, a dissenting judge made it crystal clear that because the physician failed to answer the plaintiffs' amended complaint, the plaintiffs were not required to prove their allegations to prevail in their malpractice suit.

CASE FACTS: Leann Morse and her husband, Kenneth, brought suit against Dr. Lawrence Kaplan and two other physicians, Drs. Feenburg and Paustian and Seminole Hospital alleging failure to properly diagnose Leann's acute angle closure glaucoma. Dr. Kaplan, acting on his own behalf and on behalf of his professional association, Medical Express Health Care (MEHC) filed a pro se motion to dismiss the original complaint. The trial court denied Dr. Kaplan's motion to dismiss and struck MEHC's motion to dismiss ordering the corporation to obtain counsel and file an answer. Dr. Kaplan answered the complaint and filed a motion asking the trial court to allow him to represent MEHC. The trial court did not rule on that motion. Instead, it entered a default judgment against MEHC based on its failure to obtain counsel. Dr. Kaplan then moved to set aside that default. (The record reflects no ruling on that motion). The trial court allowed the plaintiffs leave to amend their complaint to allege an additional cause of action against Drs. Feenburg, Paustian, and the hospital. The record does not reflect any response to the amended complaint by either Dr. Kaplan or MEHC. Drs. Feenbrug, Paustian, and the hospital settled with the plaintiffs and were dismissed from the suit. The plaintiffs filed an amended motion for summary judgment against Dr. Kaplan and MEHC. The motion was accompanied by various exhibits, including an affidavit executed by Leann. The only mention of the amount claimed for Leann's noneconomic damage was one unsworn statement, which read, "A more than reasonable amount to assess for the unnecessary damage to Mrs. Morse's eyesight and probable loss of vision is $300,000.00." The court entered a final judgment against Dr. Kaplan and MEHC finding the two remaining defendants in the case jointly and severally liable in the amount of almost $1 million. Dr. Kaplan and MEHC retained counsel who filed a motion for a rehearing. The trial court denied the motion. The defendants appealed.

COURT'S OPINION: The District Court of Appeal of Florida affirmed the judgment of the lower court in part, reversed it in part, and remanded the case back to the District Court for trial. The court held, inter alia, that MEHC was defaulted as a consequence of not obtaining proper representation. The court concluded that a default generally terminates the parties' right to further defend, except to contest unliquidated damages. Although neither party raised the issue of the effect of the default, the court concluded that the trial court correctly entered summary judgment against MEHC on the issue of liability and liquidated damages but not on unliquidated damages. Accordingly, the court affirmed the award of $600,000 against MEHC for economic damages and reversed the award of $300,000 for noneconomic damages. The court concluded that Dr. Kaplan correctly argued that the plaintiff, Leann Morse failed to carry her burden of conclusively proving the non-existance of any genuine issue of material fact as to his liability for her injuries, particularly regarding the element of causation.

LEGAL COMMENTARY: One judge filed a concurring opinion. Another judge wrote a dissenting opinion. The dissenting judge focused on the fact that Dr. Kaplan never answered the amended complaint. The dissenting judge found that the plaintiffs' amended pleading required an answer. The dissenting judge noted that Dr. Kaplan could have answered the amended complaint at any time but did not. The dissenting judge reasoned that a responsive pleading to the amended complaint was required and since none was filed, all of the plaintiffs' averments, except as to the amount of damages, should have been deemed to have been "admitted." When a party "admits" an allegation, he is bound by it. No further proof of the fact is required. Accordingly, the dissenting judge would not have required that the plaintiff introduce any evidence whatsoever relative to the allegations in the amended complaint. The dissenting judge concluded that all of the plaintiffs' allegations were deemed to be admitted. The only concession that the dissenting judge made was that he agreed Dr. Kaplan was entitled to a trial on the issue of unliquidated damages. This case is a classic illustration of the age old adage that "He who represents himself has a fool for a client." Editor's Note: It is almost inconceivable that a highly educated, intelligent physician would attempt to represent himself. Suffice it to say, Dr. Kaplan would probably scoff at the concept of an attorney attempting to remove his own appendix!