Belleville attorney seeks to dismiss doctor's malpractice suit

By Heather Isringhausen Gvillo | Jan 24, 2017

Belleville attorney Terry Brown seeks to dismiss a physician’s legal malpractice suit alleging a Jefferson County jury ruled against the doctor after he was advised not to settle a wrongful death suit.

Belleville attorney Terry Brown seeks to dismiss a physician’s legal malpractice suit alleging a Jefferson County jury ruled against the doctor after he was advised not to settle a wrongful death suit.

Dr. Manoj Desai, a Mt. Vernon urologist alleges he was a defendant in a 2011 wrongful death lawsuit, in which a jury returned a verdict in favor of plaintiff Marie Clayton, awarding her $3.75 million (11-L-66). Clayton filed her wrongful death suit on behalf of decedent Robert Clayton.

In his legal malpractice suit, Desai claims Clayton offered to settle the case within the policy limits of the liability insurance maintained by Desai.

Desai hired Brown to advise him on how to respond to Clayton’s settlement demand and to advise his insurance carrier to settle the case in order to avoid exposing his personal assets. Desai claims Brown told him it was in his best interest not to settle the Clayton case.

However, a jury later ruled in favor of Clayton and awarded her $3.75 million, which was $2.5 million more than the liability limits maintained by Desai’s insurance.

As a result of the jury verdict, Desai alleges his personal assets are at risk.

Desai alleges Brown failed to investigate the wrongful death claim, failed to advise him to settle the case and failed to monitor the progress of the case.

Brown filed a combined motion to dismiss on Dec. 7 through attorneys Daniel Konicek and Thomas Long of Konicek & Dillon PC in Geneva, Ill.

Brown argues that a legal malpractice claim cannot be assigned by a client to a non-client, third party.

He explains that Desai initially assigned the majority of his legal malpractice claim to Clayton.

“Therefore, Desai no longer possesses the legal right on which his claim against Brown is based. That being the case, he does not have legal standing to pursue the cause of action contained in his complaint. Moreover, given the fact that the assignment of legal malpractice claims is prohibited, the instant action cannot be pursued by Clayton or by Desai for the benefit of Clayton,” the motion states.

Brown also alleges that Desai would have to establish that had the defendant send a “demand letter,” ISMIE would have settled the case prior to trial in order to properly plead a “but for” claim.

Desai responded to Brown’s motion to dismiss on Dec. 27 through attorney Michael Gras of the Law Office of Christoher Cueto in Belleville.

The plaintiff argues that the defendant’s motion presents questions of fact that are not yet ripe, as the case is only at the pleading stage of the proceedings.

Desai also argues that he does not have to plead that had Brown complied with the duty he owed the plaintiff, ISMIE would have paid the underlying claim.

“Dr. Desai’s damages from Mr. Brown’s failure to comply with the relevant standard of care exist whether or not ISMIE would, or would not, have listened to the request to settle,” the response states. “By not sending such a letter or failing to do what he said he would, Terry Brown harmed Dr. Desai in that when the excess verdict inevitably arrived, Dr. Desai’s personal assets were at risk.

“Had Terry Brown did what he was supposed to do, and ISMIE still refused to settle, Dr. Desai would have had an action against ISMIE for failure to protect him.

“Because of Mr. Brown’s negligence so much of what Dr. Desai had worked his entire professional career was now at risk of loss. His plans for a retirement were at risk. Ultimately, Dr. Desai had to pay personally to avoid the predicament Mr. Brown put him in.”

A hearing is set for Feb. 21 at 9 a.m. with Circuit Judge Vincent Lopinot.

St. Clair County Circuit Court case number 16-L-387

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