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DONALD J. STEIGHNER v. MISSISSIPPI STATE BAR

AUGUST 16, 1989

DONALD J. STEIGHNER
v.
MISSISSIPPI STATE BAR



EN BANC

PITTMAN, JUSTICE, FOR THE COURT:

The Mississippi State Bar filed a Formal Complaint against Donald J. Steighner, alleging that he had violated several provisions of the Code of Professional Responsibility, which was in effect at that time, and Miss. Code Ann. 73-3-35 (1972). A trial on the merits was conducted by a Complaint Tribunal. The Tribunal found that Steighner had violated the provisions of DR 6-101 (A) (2 and 3) and DR 7-101 (A) (1 and 2) of the Code of Professional Responsibility and imposed a thirty (30) day suspension. Steighner appeals, assigning as error:

I. THE DECISION OF THE COMPLAINT TRIBUNAL FINDING THE APPELLANT IN VIOLATION OF THE CODE OF PROFESSIONAL CONDUCT WAS INCORRECT AND NOT SUPPORTED BY THE EVIDENCE.

 STATEMENT OF THE FACTS

 In 1983 Phyllis Taggart was experiencing medical problems, and as a result consulted with Dr. Perrin Smith, a gynecologist. Dr. Smith performed a hysterectomy on June 9, 1983, in the Golden Triangle Medical Center in Columbus, Mississippi. Mrs. Taggart was discharged on June 17, 1983. She was re-admitted for surgery on June 25, 1983, and was operated on by Dr. Miles, a partner of Dr. Smith. Sometime after that, in June or July, 1983, Mrs. Taggart retained Mr. Steighner on a contingency-fee basis to represent her on a malpractice claim. Mr. Steighner told Mrs. Taggart that he would need a complete set of her medical records.

 Mr. Steighner received Mrs. Taggart's medical records, although he could not say when. Mr. Steighner claimed that from the time he was retained until May, 1984, he was keeping in touch with Mrs. Taggart via telephone, checking on how her health was affecting her daily activities. Steighner reviewed Mrs. Taggart's medical records, and had his wife, who was an R.N., review them. Steighner spoke to a Dr. Sams, who was the anesthesiologist during Mrs. Taggart's surgery. Steighner reported that Sams felt that there was nothing unusual about the case. Steighner did not get a statement from Sams, nor did he depose him. Steighner also read the notes made by the nurses who were at the surgery. According to Steighner, the notes indicated nothing unusual, although he did not get statements from any of the nurses. Mr. Steighner was able to find out who Dr. Smith's insurance agent was, but little else. According to Steighner, Dr. Miles, who had assisted Dr. Smith during the June 9 surgery, and had performed the June 25 surgery, would not talk to him at all. As of May, 1984, Steighner had not found any expert witnesses who would testify that the doctors who had operated on Mrs. Taggart had been negligent or had deviated from accepted standards of practice.

 On May 23, 1984, Steighner wrote to Mrs. Taggart, stating

 that he had been reading her medical records and needed more clarification on the facts. He asked Mrs. Taggart to compile for him a complete summary of her medical problems leading up to and including the surgeries in question. Mrs. Taggart complied with this request in a timely fashion. On June 4, 1985, Steighner filed suit in U.S. District Court in the Northern District of Mississippi, with the complaint styled "Phyllis Taggart and Charles L. Taggart v. The Columbus Women's Clinic and Dr. Perrin Smith." The Columbus Women's Clinic was later dismissed from the suit, as Mrs. Taggart was never hospitalized there. The primary reason the suit was filed was to toll the running of the statute of limitations.

 In June, 1985, Mrs. Taggart, who had moved with her family to East Moline, Illinois in January, 1984, came back to Columbus to be deposed. This was the only deposition that Steighner took. He also did not file any interrogatories and did not request production of any documents, saying that he already had "all the documents I needed - that existed." He allegedly consulted with at least two doctors. The first was a Phillipine doctor, but Steighner did not talk to him personally and could not remember his name. The Phillipine doctor did suggest to Steighner's associate that they consult with Dr. John Wilson, an emergency room physician in Tupelo who had a background in forensic medicine. According to Steighner, Wilson reviewed the file and concluded that while Dr. Smith's bedside manner could be improved, there was nothing wrong with the surgery that he had performed, and Mrs. Taggart was the victim of an "untoward incident" . Steighner claimed that Dr. Wilson dictated a statement of his opinion, but could not find the tape, and the taped statement had never been reduced to writing. Steighner never reduced the statement to writing because he did not want it to be discoverable. Steighner did not consult with Dr. Wilson until after December 20, 1985.

 On December 20, 1985, Dr. Smith filed a Motion for Summary Judgment. Steighner never filed any response to this Motion. Steighner never wrote to Mrs. Taggart to inform her about the Motion. He did not remember whether he had sent a copy of the Motion to Mrs. Taggart. He was aware that a response was required within ten days. On February 25, 1986, Dr. Smith's Motion for Summary Judgment was granted by the Court. Steighner did not discuss appealing the decision with Mrs. Taggart. Although Steighner claimed to have told Mrs. Taggart that "she had no case" , he never informed her that if her suit was dismissed, she had no further recourse against Dr. Smith and Golden Triangle Medical Center. Steighner did not remember Mrs. Taggart ever requesting her file so that another attorney might review it. Steighner never wrote to Mrs. Taggart to inform her about his opinion that there was no case and that it would soon

 be dismissed "[b]ecause we spoke so often together. I felt that we had that communication. She was forever calling me and I felt we had that communication." As to why he did not take a voluntary nonsuit against the defendants instead of allowing the summary judgment motion to ripen, Steighner claimed that he just kept looking and hoping that something would turn up to support the suit. Mrs. Taggart has not sued Steighner for malpractice.

 According to Mrs. Taggart, she began experiencing problems after the June 9 hysterectomy, until she finally had to be re-admitted for surgery on June 25, 1983. This surgery was performed by Dr. Miles, Dr. Smith's partner. It lasted four and a half hours, and Mrs. Taggart claimed that after the emergency surgery, Dr. Miles "told my husband and I that he had to take out part of my bowels and clean them up that they had been nicked up by Dr. Smith and that my stomach lining had been nicked up." According to Mrs. Taggart, she was not charged anything for the second surgery because of this. Mrs. Taggart believed that she paid Steighner $100.00 so that he could obtain her medical records. Steighner also told Mrs. Taggart that once he got her medical records, he would send them to Jackson to be examined by a panel of doctors. She complained that she never could seem to contact Steighner at his office, and when she could he was not very forthcoming, so she began to call him at his home, usually around 6:00 A.M. After Mrs. Taggart was deposed, she claimed that Steighner told her that Dr. Smith would be deposed the next day. Mrs. Taggart asked that Steighner contact her and tell her how it went. When he did not contact her, she called to find out what had happened, and Steighner told her first, that he had been unable to set up the deposition, and later told her that Dr. Smith was too busy and "[t]hat he would just lie about it anyway."

 The next contact Mrs. Taggart had with Steighner came after the granting of the summary judgment motion. When Mrs. Taggart asked Steighner why the suit had been dismissed, he told her that she would have to get a doctor to explain it. It was at this time that she first considered filing a complaint with the Bar. Mrs. Taggart also contacted two Mississippi attorneys, Mr. Carter and Mr. Liston, to advise her on her further options against the doctors or against Steighner. She decided not to sue Steighner. The only expenses Mrs. Taggart could remember incurring were for the first set of medical records that Steighner requested, and approximately $68.00 for a filing fee. Mrs. Taggart felt that Steighner had written her "maybe a couple" of times besides the May 23, 1984 letter. Mrs. Taggart estimated that between June, 1983, and February, 1986, she had telephoned Steighner two hundred times, although she could not remember the amounts of any of her bills. She remembered Steighner calling her a couple of times. He notified her of the dismissal of the suit by telephone. When Steighner sent Mrs. Taggart a copy of the

 judgment of dismissal, he did not include any kind of cover letter or explanation.

 The Mississippi Bar Association filed a Formal Complaint against Steighner on March 4, 1987. The Complaint alleged that Steighner had violated certain provisions of the Code of Professional Responsibility, including DR 1-102 (A)(4, 5, and 6), DR 6-101 (A)(2 and 3), DR 7-101 (A)(1 and 3), and Miss. Code Ann. 73-3-35 (1972). The Complaint asked the Tribunal to take appropriate disciplinary action against Steighner, and to order him to pay $38.17, the costs of filing the Formal Complaint, along with the costs and expenses of the litigation of the Formal Complaint. Chief Justice Roy Noble Lee designated John C. Love, Jr., John W. Prewitt, Sr., and Fred Ross, Jr. to sit as members of the Complaint Tribunal.

 The Bar made a Motion for Entry of Default Judgment on May 27, 1987. In its Motion the Bar alleged that Steighner had been served with a copy of the Formal Complaint on April 10 and April 21, 1987, that he had not answered the Complaint within thirty days, and that a default judgment should be entered against Steighner. Steighner finally answered the Complaint on June 11, 1987, denying any deficient conduct. Steighner also moved to set aside the Bar's Default Motion, alleging that he had valid defenses to the Complaint and had had a heavy caseload during this time. A hearing was held by the Complaint Tribunal on the Default Motion on June 16, 1987. Because of Steighner being a solo practitioner who had been involved in several felony criminal cases, and ...


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