CHARLESTON – The state Supreme Court soon will hear two cases in which one doctor is both appellant and appellee in separate civil suits he was with two other doctors.

On Feb. 26, the Court is scheduled to hear arguments in the case of R. Brooks Legg Jr. v. Richard C. Rashid. Legg, a Clay County dentist, is appealing the dismissal of his malpractice suit against Rashid, a South Charleston opthamologist.

Ironically, Rashid is appealing a breach of contract suit he filed against Muhib Tarakji, a fellow opthamologist. The Court, however, is not scheduled to hear that case until April 1.

Nevertheless, Kanawha Circuit Judge Louis H. "Duke" Bloom dismissed both cases in 2006. And both cases ask the High Court to rule on issues pertaining to statute of limitations.

Surgery fails to correct vision

According to court records, Legg, who wore hard contacts for poor vision, sought treatment from Rashid in August 1996 for corrective surgery. In January 1997, Rashid performed Automated Lameller Keratoplasty, or ALK, surgery on Legg's left eye.

The surgery was not successful as court records indicate, after removing his eye patch the day following surgery, Legg experienced a loss of vision in his left eye. Despite a follow-up procedure two weeks later, Legg received no significant improvement in vision.

Though Rashid informed Legg further corrective procedures would be necessary, they were not currently available in the United States.

It was not until 2002, court records show, that his cornea was measured for surgical correction.

Prior to the measurement, Dr. Lee Wiley informed Legg he would need to stop wearing contacts one to two months so as to allow the cornea to revert to its natural curvature. Believing Rashid failed to inform him of this prior to his first surgery, Legg filed his malpractice suit on June 9, 2005.

About a year later, Rashid, though his attorney Bruce L. Freeman, with the Charleston law firm of Freeman and Chiartas, made a motion for summary judgment based on suit being filed past the statute of limitations. After hearing arguments on July 19, Bloom granted Rashid's motion on Aug. 22, 2006.

In his decision granting summary judgment, Bloom cited the Supreme Court's ruling in the 1997 case of Gaither v. City Hospital Inc. There, the Court found that "mere ignorance of the existence of a cause of action or the identity of the wrongdoer does not prevent the running of the statute of limitations."

Since Legg admitted to recognizing his injury in January 1997, the statute of limitations expired in January 1999, Bloom ruled.

In his appeal brief, filed with the assistance of Clay attorney A. Wayne King, Legg argues that his suit was timely filed because it was not until he consulted with Wiley that he learned malpractice may have been involved. Though Legg acknowledged he experienced a loss of vision immediately following surgery, King says Rashid deviated from the applicable standard of care by not informing Legg about removing his contacts prior to the surgery.

"In fact, Dr. Rashid fraudulently concealed and misrepresented material facts about the cause of the injury to Dr. Legg's eye (i.e., the failure to comply with the standard of care for pre-operative ALK), and Dr. Rashid repeatedly told Dr. Legg that new technology not yet approved for use in the United States would soon be available and would repair the 'bad result' suffered by Dr. Legg," King said in his brief.

In his reply brief, filed with the assistance of both Freeman and Kent J. George and W. Bradley Sorrells, with the Charleston law firm of Robinson and McElwee, Rashid argues he concealed nothing from Legg. In fact, Rashid's legal team points out that Legg gave his informed consent four days prior to the surgery that he was aware of the risks of ALK surgery, including "irregular astigmatism," "blindness" and "even loss of the eye."

Also, Rashid's legal team argues that Legg missed the statute of limitations even after consulting with Wiley. Since Legg met with Wiley in December 2002, the lawsuit he filed in June 2005 missed the statute of limitations by six months.

Reason for dismissal

Exactly two months to the day after he performed surgery on Legg, Rashid filed his suit against Tarakji. According to court records, Tarakji, who previously worked for Rashid as an independent contractor, violated a non-competition agreement when he formed his own practice.

In his suit, Rashid alleged Tarakji formed his practice though the misappropriation of trade secrets used by Rashid.

According to court records, the case progressed until March 30, 2001 when the respective legal counsels were informed the suit would be dismissed on May 1 if a $20 fee were not remitted to the Kanawha Circuit Clerk's Office. Pursuant to Rule 41(b) of the West Virginia Rules of Civil Procedure, the Clerk's Office was warning the parties of its intention to strike the case from the docket due to inactivity.

Court records show that the last action taken in the case was on April 11, 2000, when Rashid served Tarakji a second request for production of documents.

When Rashid failed to remit the fee by the May 1 deadline, the case was dismissed on July 5, 2001.

Over 18 months later on Jan. 28, 2003, court records show Sorrells requested Tarakji's tax returns for the years 1995-1997 to determine whether to revive the dismissed suit. Both Sorrells, and Scott Segal were listed as counsel of record for Rashid.

Three days later, Tarakji's attorney Jeffery M. Wakefield, with the Charleston law firm of Flaherty, Sensabaugh and Bonasso informed Sorrells of the case's dismissal. In his correspondence, Wakefield provided Sorrells the text of Rule 41(b), including the three-term rule for restatement of a case for "good cause," records show.

Nevertheless, Rashid, with the assistance of Sorrells and Segal, filed a new complaint in Kanawha Circuit Court on March 21, 2005 identical to the one filed in 1997. Court records show, Tarakji filed a motion to dismiss which was granted, with Segal's agreement, on Nov. 30, 2005.

However, R. Edison Hill with the Charleston law firm of Hill, Peterson, Carper, Bee and Deitzler, filed a motion for reinstatement on Rashid's behalf on March 22, 2006. According to court records, Hill argued reinstatement was proper given the "mistake and/or fraud" of Sorrells since neither he nor Segal received notice of the March 30, 2001 letter from the Clerk's office.

On April 19, 2006, Wakefield filed a motion on Tarakji's behalf opposing Rashid's motion for reinstatement. Court records show he argued that not only was at least Segal aware of the case's dismissal as early as July 20, 2001, but also neither he nor Sorrells made motion to reinstate the case within three terms of the court, or one calendar year.

On Sep. 27, 2006, Bloom denied Rashid's motion for reinstatement. In his ruling, Bloom took exception to Hill's use of "good cause" exception to the statute of limitations in the Supreme Court's 1979 ruling in the case of Arlan's Department Store v. Conaty.

"Adopting Dr. Rashid's interpretation of 'good cause' under Alan's would mean that Rule 41(b), or any rule or court-imposed order setting a deadline for that matter, would be virtually unenforceable as long as the dismissal was the result of any action or inaction of counsel," Bloom said.

"The Supreme Court of Appeals has not held, and this Court will not hold, that a client is automatically absolved of the sins of the lawyer and thereby relinquished of an obligation to abide by court rules and orders."

In his motion for appeal, Hill makes several arguments for reversal. One is the trial court's failure to "apply the plain meaning of Rule 41(b) and the case law requiring notice and an opportunity to be heard prior to an involuntary dismissal."

Another is the actions of Sorrells falling within the definition of "fraud, accident or mistake." Sorrells, Hill argues, committed "positive misconduct" when he advised Rashid the case was "being taken care of."

"The failure of Mr. Sorrells to discuss with his client the potential impact of the dismissal on the viability of any future action amounts to not only to negligence, but to the sort of 'positive misconduct' justifying the Court undertaking to remedy the harm that would be otherwise be done to Dr. Rashid," Hill wrote.

In their reply brief, Wakefield and Jaclyn A. Bryk argue that Rashid can't totally pin the blame on Sorrells for the case being dismissed. Once he received notice from the Clerk's office, Rashid should have been diligent to file a motion for reinstatement, even if he had to file it pro se.

"It defies logic that Rashid can be aware of the alleged notice deficiency and the validity of the Dismissal Order in general, but to do nothing about it for five years," they write in their brief.
"Under the doctrine of waiver, Rashid was duty bound to do something to address this perceived wrong rather than sit on it and lead Tarakji to believe the action was completely over."

Because they involve in some manner his former law firm Robinson and McElwee, Justice Brent Benjamin has recused himself from hearing either cases. Harrison Circuit Judge John Lewis Marks Jr. and Senior Status Cabell Circuit Judge L. D. Egnor will be sitting on the Court in Benjamin's place in the Legg and Tarakji cases, respectively.

Also sitting by temporary assignment in the Tarakji case is Kanawha Circuit Judge Jennifer Bailey Walker. She is sitting in place of Justice Robin Jean Davis who recused herself due to the involvment of her husband Segal.

West Virginia Supreme Court of Appeals, Case Nos. 33521 (Legg) and 33596 (Tarakji)

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