Metropolitan News-Enterprise


Friday, September 29, 2006


Page 3


Physician Cannot Revoke Settlement Consent After Oral Agreement—C.A.


By a MetNews Staff Writer


A physician’s attempt to revoke her consent to a settlement agreed to by her insurer was ineffective where it came after the insurance company orally agreed to the deal and the patient accepted, this district’s Court of Appeal has ruled.

Div. Three affirmed Los Angeles Superior Court Judge Richard L. Fruin, who entered judgment against Dr. Lida Ghaderi, a Santa Monica physician, for breach of oral agreement after a court trial.

Ghaderi’s patient, Kintausha Clemmons, had been under the care of a nephrologist, who was treating her with dialysis for renal failure. Without consulting with Clemmons’ nephrologist, Ghaderi allegedly took Clemmons off dialysis, resulting in her death from severe renal failure.

Clemmons’ mother and minor son, Michelle Simmons and Michael Dujuan Nelson III, sued.

During mediation before retired Los Angeles Superior Court Judge Robert T.

Altman, Obi Amanugi, a claims specialist from Ghaderi’s malpractice insurer, obtained Ghaderi’s written consent to settle the case for no more than $125,000. Theconsent form provided that the consent could only be revoked in writing.

By statute, a claim against a health care professional covered by a professional liability policy can only be settled with the insured’s written consent.

During the mediation, while Ghaderi was in another room with her Cumis counsel, Robert C. Reback, Amanugi and the insurer’s attorney, Kent T. Brandmeyer, told Altman the carrier would pay the plaintiffs $125,000 to settle. The plaintiffs accepted.

But when Altman was reducing the settlement to writing and Amanugi reported the settlement to Ghaderi, she responded, “Good, because I am revoking my consent.” Soon thereafter Ghaderi left the building, ending the mediation.

Altman, the plaintiffs, and their counsel signed the settlement agreement. No one signed on behalf of Ghaderi or her insurer.

During the next 15 months, the parties litigated the legal effect of the events that had taken place at the mediation. Ghaderi’s attorneys voluntarily turned over to plaintiffs’ counsel a copy of the consent form signed by Ghaderi, and did not object to a declaration by Altman concerning the events at the mediation filed in support of a motion by plaintiffs to enforce the settlement.

In her opposition to that motion, and in her own summary judgment motion, Ghaderi acknowledged having authorized the insurer to settle within the $125,000 limit, then revoked her consent only after being told that the settlement was orally agreed to by her insurer.

Fruin denied the motion to enforce the settlement under Code of Civil Procedure Sec. 664.6 because neither Ghaderi nor her insurer had signed the written agreement, but denied Ghaderi’s motion for summary judgment.

The plaintiffs then amended their complaint to state a cause of action for breach of oral agreement, and Fruin bifurcated the trial to hear that claim first.

In her trial brief, Ghaderi objected to the admission of any evidence relating to the mediation, and argued for the first time that “[a]ny attempt to introduce evidence of discussions, purported agreements, or any form of communication at mediation or thereafter” was barred by the mediation confidentiality provisions of the Evidence Code.

After trial, Fruin entered judgment in favor of the plaintiffs in the amount of $125,000, reasoning that Ghaderi had given her attorneys, her authorized agents, authority to communicate a $125,000 offer to plaintiffs, and the offer had been accepted prior to any withdrawal of consent.

On appeal, Ghaderi argued that her revocation of consent was sufficient to prevent the settlement from becoming effective, and that no evidence of the events occurring at the mediation was admissible due to the principles of mediation confidentiality.

But Justice Walter Croskey, writing for the Court of Appeal, said that Ghaderi was bound by the oral agreement to settle and was estopped to argue mediation confidentiality.

“[Ghaderi’s insurer] was authorized when it made the offer which plaintiffs accepted the offer could not be revoked after the contract was formed.”

He called Ghaderi’s putative revocation of her consent “irrelevant and ineffectual.”

Ghaderi could not argue mediation confidentiality, Croskey went on to say, because “once a party voluntarily declares certain facts to be true, stipulates that she does not dispute them and extensively litigates the legal effect of such facts, she is estopped to later claim that the court must disregard those facts based upon a belated assertion of mediation confidentiality.”

Croskey added:

“We find Dr. Ghaderi’s attempt to prevent enforcement of the undisputed

settlement contract on the ground of mediation confidentiality particularly egregious in this case, in that, once Dr. Ghaderi signed the written consent to settle, she had no further rights to object to the settlement at all.”

Presiding Justice Joan D. Klein concurred in the opinion.

In a lengthy dissent, Justice Richard D. Aldrich said Fruin erred in admitting any evidence of what happened during the mediation. He said:

“By avoiding the mediation confidentiality statutes . . . the majority ignores the pivotal and dispositive law governing this case. A proper analysis of this statutory scheme, together with its legislative history, leads inescapably to the conclusion that in this case there was no admissible evidence of an oral contract.”

He added:

“It is tempting to prohibit Dr. Ghaderi from escaping the deal to which she agreed. But, such a result would encourage a flexible approach to the statutes. The Legislature has re-drafted the mediation confidentiality statutes after [prior Supreme Court decisions] to reject that approach.”

Robert C. Reback of Reback, McAndrews & Kjar and Melanie Shornick, now with Trope & Trope, represented Ghaderi. Martin R. Berman and James Aaron Pflaster of the Law Office of James Aaron Pflaster represented the plaintiffs.

The case is Simmons v. Ghaderi, 06 SOS 5206.


Copyright 2006, Metropolitan News Company