They Signed Releases to Help Their Father. A Dayton Appeals Court Says Their Case Against the Lawyer Can Proceed: Tye v. Beausay

Published November 7, 2017 · Ohio Court Decisions

When a parent is seriously hurt, adult children often want to do whatever they can to help. If a parent asks them to sign a paper so a settlement can go through, most will sign without a second thought. A recent decision from the Second District Court of Appeals shows how much can ride on that signature, including a claim for the parent's death that has not even happened yet.

On September 29, 2017, the court decided Tye v. Beausay, 2017-Ohio-7943, an appeal from the Montgomery County Court of Common Pleas. The case is not a wrongful death lawsuit itself. It is a lawsuit by two sons against the lawyer who handled their father's medical malpractice case. But the lessons go straight to the heart of how families protect their rights after a serious injury and a death.

What happened

According to the court's opinion, the sons' father and stepmother filed a medical malpractice lawsuit in 2010, alleging that doctors failed to diagnose and treat a spinal infection that left the father paralyzed. Their lawyer also named the father's two adult sons as plaintiffs, without their knowledge or consent, to preserve their own claims for loss of their father's companionship.

The lawsuit was mediated and settled. The court described the settlement as giving the father a substantial amount in the multiple six figures, with nothing set aside for the sons. As part of the settlement, the sons were told they had to sign releases. They signed at their father's request, still unaware that claims had been filed in their names and without any legal advice.

The releases, according to the opinion, barred the sons from pursuing claims against the medical defendants, including a potential future wrongful death claim. Their father died just weeks after the last of the releases was signed. The sons alleged that his death was related to the medical care he had received. Only after his death did they learn they had been parties to the case. One son testified that he did not know what the term wrongful death meant at the time and that no one explained it to him.

What the court decided

The sons sued the lawyer and his firm for legal malpractice and other claims. The trial court granted summary judgment to the lawyer, finding that the sons had no attorney-client relationship with him.

The Second District agreed that there was no express or implied attorney-client relationship, because the sons never spoke with the lawyer and did not know he had named them. But it reversed the summary judgment anyway. Ohio law recognizes that malice can substitute for an attorney-client relationship, and the court held:

• When a lawyer holds himself out in court as representing a party, and files, pursues, mediates, settles, and dismisses that party's claims without ever contacting the party, that conduct is enough to substitute for an attorney-client relationship, and a suit is justified if harm results.
• Alternatively, a jury could reasonably find the lawyer acted with malice by settling the sons' existing claims, and a potential future wrongful death claim, on release terms he never reviewed with them and that gave them nothing.
• Whether the sons were actually harmed is a question for the trier of fact.

The court rejected the sons' other theories and upheld the dismissal of their alternative claims. The case was sent back for further proceedings. None of the allegations has yet been decided at trial.

Why this matters to families

A wrongful death claim belongs to the family, not just the person who was injured. The Supreme Court of Ohio explained in Peters v. Columbus Steel Castings Co., 115 Ohio St.3d 134 (2007), that a survival claim for a person's own injuries and a wrongful death claim for the family's losses are separate claims that belong to different people. A wrongful death claim accrues to the beneficiaries for the injuries they themselves suffer from the death. The court quoted an earlier decision holding that injured persons may release their own claims, but cannot release claims that are not yet in existence and that accrue to others.

That helps explain why releases signed by family members themselves matter so much. In Tye, the releases the sons signed were described as reaching a potential future wrongful death claim.

Never sign a release you do not understand. Under R.C. 2125.02(A)(1), a wrongful death claim is brought by the personal representative for the exclusive benefit of the surviving spouse, children, parents, and other next of kin. If you are one of those people and someone asks you to sign a release while a loved one is seriously ill or injured, ask who the paper protects, what claims it gives up, and whether anything is being paid to you. Get your own legal advice before you sign. Family loyalty is a beautiful thing, but it should not cost you rights you did not know you had.

Ask whether you are a party. If a lawyer is handling a family member's injury case, it is fair to ask whether you have been named, what claims are being made for you, and how any settlement will be divided.

Settlements after a death are supervised. Once a person has died, Ohio law adds protections. Under R.C. 2125.02(C), a personal representative may settle a wrongful death claim only with the consent of the court that made the appointment. You can read more about how Ohio wrongful death law works and what families may recover.

Medical cases have their own pitfalls. When a death follows medical care, families face technical rules and short deadlines. Our page on medical malpractice deaths explains more, and our post on Stewart v. Vivian explains why a provider's apology, even one admitting fault, often cannot be used to prove the case.

The deadline still runs

Under R.C. 2125.02(D)(1), a wrongful death action generally must be filed within two years after the death. If your family has questions about papers already signed, or about a loved one's earlier injury case, talk with a lawyer well before then.