SAMEENA AZMAT, AS MOTHER AND NEXT FRIEND OF NAUSHER AZMT APPELLANT
GEORGE W. BAUER, M.D. III AND ELIZABETHTOWN PHYSICIANS FOR WOMEN, P.S.C. APPELLEES
CORRECTED: APRIL 18, 2019
REVIEW FROM COURT OF APPEALS CASE NO. 2015-CA-000399-MR
HARDIN CIRCUIT COURT NO. 12-CI-00645
COUNSEL FOR APPELLANT: Dina L. Abby
COUNSEL FOR APPELLEES: Daniel Garland Brown Scott Randall
Redding David Bryan Gazak James Eric Smith Gazak Brown, PSC
Azmat appeals from an opinion of the Court of Appeals which
upheld the Hardin Circuit Court's dismissal of the case.
The dismissal arises from an action brought by Sameena as
mother and "next friend" of her son, Nausher
Azmat. This Court granted discretionary review to
address the important issues presented. Because we find error
in the courts below, we reverse and remand the case to the
Hardin Circuit Court for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
gave birth to Nausher on July 5, 1997. Dr. George Bauer at
Elizabeth town Physicians for Women, P.S.C., provided Sameena
with prenatal care. Sameena was concerned that she did not
seem to be gaining weight similarly to other pregnant women,
but Dr. Bauer informed her that her child would be small
because Sameena was a petite woman.
Sameena had completed her regular prenatal appointments, the
child was scheduled to be delivered on July 5, 1997. However,
on July 3, 1997, Sameena noticed a decrease in fetal
movement. Dr. Bauer performed an ultrasound and noted that
everything was normal. When Sameena arrived for her child to
be delivered on July 5, she was told the baby was in distress
and a caesarian section would be performed.
was born blue and suffered cardiac arrest post-delivery. His
birth history included hypoxia, aspiration of meconium,
Intrauterine Growth Restriction, a "paucity" of
amniotic fluid, two cardiac arrests, a 14-day hospital stay,
perinatal asphyxia, intubation for the first week of life,
Persistent Pulmonary Hypertension of the Newborn (PPHN),
cardiorespiratory arrest with CPR required, and coagulopathy
of such severity that he was not a candidate for
brought suit, by and through counsel, on March 27, 2012, as
mother and next friend of Nausher, against Dr. Bauer and
Elizabethtown Physicians for Women, P.S.C. Sameena alleged
that Nausher's developmental delays were caused by Dr.
Bauer's negligence in Sameena's prenatal care and
Nausher's delivery. Discovery commenced thereafter.
Although numerous, the circuit court proceedings are all
relevant to this matter, thus we outline them below.
circuit court entered a Pretrial Order on May 2, 2013 setting
a date for jury trial as well as deadlines for the
parties' expert witness disclosures. In October 2013,
Azmat's attorney filed a motion for an extension to file
expert disclosures and a request to reschedule the trial
date. The justification for the motion and the extension was
that Nausher was to undergo genetic testing. Dr. Bauer had no
objection to Azmat's request for an extension, and the
trial court granted the motion and entered a new Pretrial
December 2013, the parties jointly filed a motion for a new
trial date. The circuit court granted the motion and
rescheduled the jury trial. On April 16, 2014, Azmat's
counsel moved to withdraw from the case and also requested a
90-day continuance of all deadlines. Counsel cited
irreconcilable differences and a breakdown in communication
as grounds for withdrawal. Counsel also told the court that
he had advised Sameena of his intention to withdraw and sent
her a copy of the motion via certified mail. The record does
not purport to show Sameena's presence at this hearing.
Neither counsel nor the court directed any questions towards
Sameena nor otherwise acknowledged her presence, so this
Court cannot conclusively determine if Sameena was
present. The trial court granted counsel's
motion to withdraw by order entered on April 24, 2014, and
continued deadlines for 60 days for Sameena to find
replacement counsel, or she would be deemed to proceed
April 28, 2014, Sameena filed expert disclosures. It appears
that the disclosures had already been prepared by prior
counsel, but Sameena signed the documents and filed them. On
June 20, 2014, Sameena wrote a letter to the judge requesting
additional time to find counsel. On July 2, 2014, Dr. Bauer
filed his expert disclosures and objection to Azmat's
request for additional time to find replacement counsel. Dr.
Bauer pointed out that Sameena filed her expert disclosures
pro se and such filing was an effective entry of
appearance as a pro se litigant.
3, 2014, Dr. Bauer moved to compel Sameena to provide dates
for experts to be deposed, or, in the alternative, to exclude
Sameena's experts. On July 10, 2014, Sameena moved for
more time to find an attorney. On July 17, 2014, the trial court
entered an order compelling Sameena to provide dates for her
experts to give depositions. On July 28, 2014, Sameena
refiled her motion for an extension of time.
31, 2014, Sameena sent defense counsel an email giving date
ranges for depositions based on her experts'
availability. Also, on July 31, 2014, the defense moved to
exclude experts for failure to disclose dates for depositions
and for summary judgment. The defense argued that because the
possible dates for depositions were after the scheduled trial
date, Sameena had not effectively complied with the
court's order, and exclusion was warranted. If the
experts were excluded, defense argued they would be entitled
to judgment as a matter of law because a plaintiff in a
medical malpractice case must provide expert testimony as
part of the prima facie case.
August 8, 2014, the trial court denied Sameena's motion
for an extension of time. On August 18, 2014, Sameena
responded to defense's motion to exclude experts and
summary judgment. By order entered September 4, 2014, the
trial court rescheduled the trial for March 30, 2015, ordered
that depositions be scheduled before March 2, 2015, and that
the parties mediate before March 16, 2015. The trial court
further indicated that there was no finding that Sameena had
deliberately disregarded the court's prior orders.
September 9, 2014, Dr. Bauer moved to strike Sameena's
experts alleging Sameena had engaged in the unauthorized
practice of law. The defense argued that Sameena, as
"next friend," had no claims in the case, thus she
could not proceed pro se on behalf of Nausher. The
trial court set forth a briefing schedule on the issue of the
unauthorized practice of law. Sameena did not file a response
and Dr. Bauer submitted his reply brief on October 17, 2014.
November 10, 2014, the trial court entered an order finding
that Sameena had engaged in the unauthorized practice of law
and stated that Sameena's experts would be stricken
unless she found an attorney within 30 days. On January 26,
2015, an order was entered striking Sameena's expert
witnesses. On February 13, 2015, the trial court entered an
order dismissing the case with prejudice.
March 13, 2015, Sameena secured counsel to file her notice of
appeal from the grant of summary judgment to Dr. Bauer. The
Court of Appeals affirmed, holding that Sameena did engage in
the unauthorized practice of law, thus it was proper for the
trial court to strike her pleadings and grant summary
judgment to Dr. Bauer. Sameena, without counsel, filed a
motion for discretionary review with this Court. Dr. Bauer
moved to strike and dismiss the motion because it was not
filed by counsel. This Court passed Dr. Bauer's motion to
the consideration of the merits of the motion for
discretionary review. Because we granted discretionary
review, any challenge to the motion or to this appeal being
properly before this Court is rendered moot.
involving unmarried infants or persons of unsound mind shall
be brought by the party's guardian or committee, but if
there is none, or such guardian or committee is unwilling or
unable to act, a next friend may bring the action."
Kentucky Rules of Civil Procedure (CR) 17.03(1). "[T]he
'next friend' device is a procedural one by which a
minor's claim is brought into court and a person acting
as such is only a nominal party with no unilateral statutory
or other authority to settle the minor's claim."
Jones By and Through Jones v. Cowan, 729
S.W.2d 188, 190 (Ky. App. 1987). A next friend is the
minor's agent, merely bringing an action on the
minor's behalf. "[T]he minor is the real party in
interest in any lawsuit filed on the minor's behalf by
the minor's next friend." Branham v.
Stewart, 307 S.W.3d 94, 97-98 (Ky. 2010). The
attorney "has an attorney-client relationship with, and
owes professional duties to, the minor."
Id. at 99 (emphasis added).
the alleged errors are preserved for review. Nonetheless,
this Court can review the claims under the palpable error
A palpable error which affects the substantial rights of a
party may be considered by the court on motion for a new
trial or by an appellate court on appeal, even though
insufficiently raised or preserved for review, and
appropriate relief may be granted upon a determination that
manifest injustice has resulted from the error.
The trial court erred in permitting Azmat's attorney to
are certain instances in which counsel is required to decline
or terminate the representation of a client. Supreme Court
Rules (SCR) 31.30(1.16)(a)(1)(2)and(3). There are also
instances where a lawyer may be able to withdraw from
representing a client if:
(1) Withdrawal can be accomplished without material adverse
effect on the interests of the client; or
(2) The client persists in a course of action involving the
lawyer's services that the lawyer reasonably believes is
criminal or fraudulent; or
(3) The client has used the lawyer's services to
perpetrate a crime or fraud; or
(4) The client insists upon taking action that the lawyer
considers repugnant or with which the lawyer has a