HUNTINGTON -– Huntington Anesthesiology Group Inc. and five of its anesthesiologists have filed suit against a law firm and one of its, alleging they were forced to pay a settlement they had not agreed to pay.
Farouk Abadir, Hosny Gabriel, Ricardo Ramos, Alfredo Rivas, Michael Vega and HAGI, plus three other anesthesiologists not part of the current complaint, were sued in 2002 by Theresa Messer, an anesthetist who had been employed by HAGI on a part-time basis, according to the complaint filed Nov. 19 in Cabell Circuit Court.
In her suit, Messer claimed her rights had been violated because HAGI and its employees had failed to accommodate her physical limitations, the suit states.
The anesthesiologists hired Mark H. Dellinger, a partner at Bowles, Rice, McDavid, Graff and Love, to represent them in the suit, they claim.
During litigation, Abadir, Gabriel, Ramos, Rivas and Vega disputed differences with the other three anesthesiologists Messer was suing, according to the complaint.
"These disputes and differences became material to have an effect upon settlement discussions and the mediation of the Messer litigation," the suit states.
Despite the conflict between the defendants he represented, Dellinger continued to represent all of them, they claim.
In May 2006, Dellinger agreed that Messer could mediate the controversy, according to the complaint.
Before mediation, the three anesthesiologists who are not part of the current complaint hired their own attorney to represent them in the Messer litigation, the suit states.
Their attorney told Dellinger his clients would not participate in the mediation and would not object to the case being settled "provided that none of them would be obligated to contribute anything toward any settlement," the suit states.
If their co-defendants -– Abadir, Gabriel, Ramos, Rivas, Vega and HAGI -– did not agree to the terms, then the three anesthesiologists threatened to filed suit against them, they claim.
Only Gabriel and Ramos ended up participating in the mediation, according to the complaint.
At the end of the mediation a written document was prepared that provided that contingent upon the approval of all defendants, the matter would be settled through a $225,000 payment to Messer, the suit states.
However, if there was not unanimous approval of all the defendants within 21 days, there would be no settlement, the anesthesiologists and HAGI claim.
Vega and Abadir told HAGI and the other anesthesiologists they were unwilling to contribute any money toward a settlement, according to the complaint.
Rivas told them he was willing to pay only if the three anesthesiologists not part of the current complaint agreed to pay equal amounts, the suit states.
So, Ramos told Dellinger that the settlement had not been approved, but he thought everyone might be able to reach an agreement if more time was available, the anesthesiologists and HAGI claim.
Despite this, Dellinger told Messer's attorney that all of his defendants had agreed to settle, according to the complaint.
After he learned of Dellinger's misrepresentation, Gabriel told Dellinger there was no agreement and that no settlement had been authorized, the suit states.
After hearing evidence, a Cabell County circuit judge determined Dellinger was not authorized to settle the case and dismissed Messer's case, the anesthesiologists and HAGI claim.
But the state Supreme Court reverse the Cabell Circuit Court decision, "ruling that an attorney who had appeared in court representing all defendants, was presumed to have had the authority to settle a case," the suit states.
Had Dellinger not settled the case, none of the defendants in the Messer case would have had to pay anything because Cabell Circuit Court dismissed the case, the anesthesiologists and HAGI allege.
The anesthesiologists and HAGI are seeking a judgment for their damage, plus interest and costs.
William D. Levine of St. Clair and Levine in Huntington will be representing them.
According to his firm's Web site, Dellinger is the leader of Bowles Rice's Labor and Employment Practice Group and chair of its Human Resources Department. His bio also says he was included in the 2007 and 2008 editions of West Virginia Super Lawyers.
Cabell Circuit Court case number: 08-C-980