APPEAL from a judgment of the Superior Court of Los Angeles County, Cary H. Nishimoto, Judge. Reversed and remanded with directions. (Los Angeles County Super. Ct. No. SC086611).
The opinion of the court was delivered by: Perluss, P. J.
CERTIFIED FOR PUBLICATION
Nihad Alshafie, on his own behalf and as guardian ad litem for his daughter Heba Alshafie, appeals from the judgment entered after his legal malpractice action was dismissed because Nihad,*fn1 who lives out of state, failed to post an undertaking to secure an award of costs. Because the trial court failed to follow a procedure that ensured Nihad received a full and fair hearing on the question whether he could afford to post a bond, we reverse and remand for a new determination of Nihad's financial condition.
FACTUAL AND PROCEDURAL BACKGROUND
1. The First Medical Malpractice Action
Nihad's wife Sana had given birth to a child in 1988 by Caesarian section. Pregnant again in 1997, Sana elected to have a vaginal delivery of her child after being informed of the risks of doing so, including the risk of a uterine rupture, following an earlier Caesarian delivery.
Sana, who had received prenatal care at Daniel Freeman Maternity Center, an entity affiliated with UCLA and the Regents of the University of California (Regents), went to Daniel Freeman Hospital on June 10, 1997 for a scheduled induction of labor. On June 11, 1997, more than 24 hours after she had first been given medication to induce labor, Sana had not yet given birth. At 1:30 p.m. it was noted, among other things, the baby's heart rate was slow and Sana was experiencing vaginal bleeding. The medication was discontinued, and Sana was prepared for an emergency Caesarian section. After the surgery began at 1:55 p.m., the doctors discovered Sana had a uterine rupture and Heba was floating in the peritoneum. Heba was born with severe brain damage.
On June 11, 1998 Richard Garrigues filed a medical malpractice action on behalf of the Alshafies against Daniel Freeman Hospital and the delivering physician, Dr. Rodney Wright. In June or July 1999 Garrigues retained Dr. Pamela Boyer, board certified in obstetrics and gynecology, to review the medical records in the matter.
Dr. Boyer concluded the care and treatment provided by the hospital employees to Sana and Heba did not fall below the standard of care or cause Heba's brain damage. Consequently, Garrigues made a tactical decision not to oppose the hospital's August 1999 motion for summary judgment. Garrigues, however, appeared at the hearing on the motion to ensure judgment was entered only in favor of the hospital, so the action could proceed against Dr. Wright. In January 2000 the Alshafies discharged Garrigues and retained new counsel, Lawrence Lallande, Sr. On May 25, 2000 Lallande dismissed the medical malpractice action without prejudice.
2. The Second Medical Malpractice Action
In June 2001 Lallande introduced the Alshafies to Gerald Agnew, Jr., who associated as counsel to assist with a second medical malpractice action. The new malpractice lawsuit was filed on August 14, 2001 against Dr. Wright and the prenatal care physicians. Agnew consulted with Dr. Michael Friedman, a board certified obstetrician and gynecologist, who advised Agnew he believed the treatment provided by the hospital, its nurses and Dr. Wright did not fall below the standard of care or cause Heba's injuries. Agnew also consulted with Dr. Jeffrey Greenspoon, a board certified obstetrician and gynecologist, as well as a maternal fetal medicine specialist who Agnew anticipated would be the Alshafies' expert witness. Greenspoon also concluded there was no negligence by anyone involved in the care given to Sana and Heba.
Agnew and Lallande advised Sana and Nihad they believed there was no merit to the lawsuit. In a letter dated February 28, 2003 Lallande reiterated his concerns about the case and sought authorization to settle the matter for any sum obtainable or to negotiate a dismissal for a waiver of costs. Sana and Nihad signed the authorization on March 5, 2003. Subsequently, Agnew was able to obtain an offer from the Regents, which had stipulated all of the doctors involved in Sana's prenatal care and the delivery of Heba were its agents or employees, to settle the case for $150,000. Nihad, however, refused to accept the settlement.
In September 2004 the Cochran Law Firm replaced Lallande and Agnew as counsel. Work done by that firm suggested Heba had been the victim of nursing malpractice (contrary to the conclusion of the prior experts) -- the purported failure of the nursing staff to appreciate the significance of readings from the fetal monitor strips and the consequent delay in notifying the treating obstetrician of any problems. When the Regents moved for summary judgment on November 12, 2004, Nihad filed a non-opposition stating, "The expert evaluation of this case concluded that the negligence that resulted in [Heba's] injuries was done by the nursing staff at Daniel Freeman Hospital, Maternity Clinic. As stated in the Moving Papers, on August 27, 1999 the Defendant Daniel Freeman filed a Motion for Summary Judgment. For some unknown reason, no Opposition was filed by plaintiff. On September 24, 1999, the Order grant[ed] the Motion with no opposition or appearance by plaintiff. That Order held that the 'healthcare providers at Daniel Freeman,' which would include the nursing staff, had met their burden ...