On July 8, 1999, we were coerced into signing a General Release. In return for a “consideration” of $500,000 we swore to hold the hospital “blameless” and never to talk openly about what happened to Seth at Columbia Presbyterian Medical Center. How did it come about that we signed such a document? And what happened (and is happening) subsequently? What follows is our update for readers of “A Death in the Hospital”:
In the weeks preceding July 8, 1999, it seemed that a trial was immanent. Our lawyers, Richard Frank, Esq. and Thomas R. Moore, Esq., told us Columbia was refusing any offers of settlement. A trial was due to get underway on June 14, 1999. It was postponed for an additional week. We were told this was the Court’s request.
The lawyers told us that the trial would definitely start on June 21, 1999. Mr. Moore and Mr. Frank were scheduled to pick the jury. On that day, Mr. Moore called and said, “Richard’s back went out”. Again, we were told, the trial had to be postponed.
Did Mr. Frank’s back indeed “go”? On June 24, 1999, we received a letter from him indicating that he was resigning immediately from the case. The reason, we were told, was that he was in the process of retiring. We were told that we had to officially discharge Mr. Frank on the record in open Court.
At this point, we still had great confidence in Mr. Moore and he indicated to us that this may well be a “good thing” since he had serious concerns about Mr. Frank’s performance. In Court, several days later, we were told to sign under oath that we agreed to Mr. Frank’s resignation. We did protest at this point, and we asked what the consequences would be by discharging Mr. Frank without a lawyer to take his place. We were told if we did not agree to Mr. Frank’s request it would not go well for us. Mr. Frank would write a letter that would be “devastating to our case.” But we did as we were told by Mr. Moore and Mr. Frank. Later after Court that day Mr. Frank told us that we had a “very good case.” “Don’t settle,” he told us, “or I won’t get any money.” We did not know what he was talking about and he refused to give an explanation.
By this point, we were under severe emotional stress but still had confidence in Mr. Moore. Over the next week there were “negotiations” between Mr. Moore and Columbia. We were subsequently told there were 8 negotiating sessions with the Judge. We were present at 3 of these. We were asked what we “wanted”. We gave a figure of 1.5 million dollars. This seemed hardly excessive to us since Paula Jones received $850,000 for a much less important matter. We also picked this figure since we had read in the newspaper this is around the amount of the hospital president’s yearly salary. We also knew that Columbia would find this amount unacceptable and would be forced into trial.
During the week before July 8, 1999, Mr. Moore indicated that he was going to obtain a new Trial Counsel. This lawyer was needed to conduct the trial. He told us he would definitely “find someone”. We were called to meeting with a law firm who, he told us, would take the case. When we met with them, however, they had no intention of going to trial and would only work with us for the purpose of settlement negotiations.
We still had great confidence in Mr. Moore. He assured us that he would definitely obtain a new trial counsel. He told us not to worry, and that he had no intentions to settle. In any case, no offer was mentioned to us. Moore told us that Columbia’s lawyer had indicated she had a witness list of 13 people and intended a long trial. This is what we wanted, we told Mr. Moore. He told us to “standby”. That is, be ready. He was “still looking” for another lawyer and trial would begin any day. The emotional was intense, but we were prepared.
On July 8, 1999, Mr. Moore called to say, “I’ve settled the case. The Judge wants to see both of you immediately”. “What do you mean?”, we said on the phone, ” We don’t want to settle.” He refused to speak with us on the phone about this and told us to immediately come to his office. We took a cab from his office on E. 57th and Fifth to Foley Square. In his office, before driving down, we exploded. We told him we would “never settle, and never be quiet.”
But in the long cab ride, Mr. Moore presented a very grim choice. He told us that in fact the choice was between settling and suicide. He went on to say that he was not able to get any other malpractice lawyer to assist him and he was not able to conduct the trial himself since he was not a malpractice lawyer. Were we not to “settle” he would be forced to resign immediately. Columbia intended to begin a defamation trial against us over the issue of our website. The cost to us in legal expenses would bankrupt us.
Mr. Moore also painted a “bright” side to the choice he was presenting us. He said that he had “negotiated with great difficulty” the General Release in such a way that would preserve our website. Only the name of the hospital as well as the actual names of the individual doctors responsible for Seth’s death had to be deleted. Mr. Moore said that he was convinced Columbia would not object.
We were in great emotional distress over this demand. Upon arrival at the Court, we wanted to speak to the Judge. Mr. Moore said to us, “Don’t try to speak to the Judge. The Court is corrupt. Just look at what is going on with Clinton. The Court is corrupt.” He also told us it would worsen our situation were we to try to talk with the Judge alone.
We and Mr. Moore met in Judge Klein-Heitler’s chambers without a Court reporter. The Judge said that Columbia would give a settlement of no more than $500,000 and even that she had to “pull out of them”. If we did not take it, we were told, Columbia intended to go to trial in the coming week. Columbia would not agree to postpone the trial. Judge Klein-Heitler indicated that she would not postpone the trial since Ms. Shapiro had a number of trials coming up and a postponement of our trial would be disruptive of the Court’s schedule.
Mr. Moore indicated that he was not a malpractice lawyer and could not go to trial. He openly stated he would have to resign. Mr. Moore and told us again that Columbia intended to sue us for defamation.
So here we were. Two bereaved parents, facing no choice at all. We are not wealthy people and did not have the money necessary to hire a lawyer who could continue the case. And what lawyer would take a case with liens intact.? Nor did we have the money necessary to defend a defamation suit.
Facing us was the prospect of losing everything. Mr. Moore was going to resign and the Judge indicated that the trial would have to go forward in the coming week. We were not lawyers and were totally unprepared to try to pursue the trial on a Pro Se basis. We had no time to prepare, and did not have expert witnesses (Mr. Frank claimed he had experts but withheld their names from us). Were we to maintain our position not to settle, the Judge would have no choice but to dismiss the case.
And, if the case were dismissed, we would then be in the position of being sued for defamation. What would that entail? We had no money for a lawyer to defend us.
Now, in the Judge’s chambers, the meaning of Mr. Moore’s choice was clearly evident to us. He had said in his office that our only choice was to sign or “commit suicide”. It seemed so painfully clear to us. We had to sign or face the total destruction of our case, the loss of our website, and then bankruptcy.
In our eyes, the Judge was definitely on the side of signing. She said to Stephanie, “I understand you have 2 daughters, Mrs. Speken, Think of them.” The Judge’s pressure was very clear. She repeated these same words three times. “Think of your daughters, Mrs. Speken”. Stephanie perceived this as a “mafia shakedown”.
We recalled what Mr. Moore had told us – “the Court is corrupt. Don’t try to speak with the Judge. It will go worse for you.” In retrospect, the Judge had been as misled by the lawyers as we were.
What cushioned our dilemma, to some degree, was Mr. Moore’s statement to us that we would still be able to keep our website (without the names) were we to sign the General Release. The choice at that moment seemed to be between keeping the website in some form and the path of suicide. (that is, dismissal of the case and the start of a defamation suit). Mr. Moore and the hospital lawyer indicated we had no time to think about this.
And so, we agreed to what – at that moment – seemed to be the lesser of two evils. It was a choice we will always regret. Under the pressure of the Court, our lawyer, and Columbia’s lawyer we agreed to say under oath that we would settle.
But then, in August, we received a Show Cause Order from Richard Frank, Esq. that we had to appear in Court on August 25th. He claimed he had not brought the case to trial, as he had promised us he would, because of his revulsion of Thomas Moore’s improper fee arrangement.
Following is a paragraph from this Show Cause Order: “In February 1999 Mr. Moore demanded fifty (50%) per cent of Ms. Pare’s fee, which she refused (Pare’ claims that they had an initial verbal agreement she would give him 1/3 of her fee). Immediately thereafter, on March 23, 1999, Ms. Pare was discharged as counsel for Ralph Speken as defendant. Mr. Moore apparently felt he no longer needed Ms. Pare’s services and would himself “sit in” as attorney for the defendant, Dr. Speken (and keep the whole twenty-five (25%) defense fee himself.)”.
In reading Mr. Frank’s document, we realized that much had gone on between the lawyers that we were unaware of and which had harmed us. We had signed the General Release because of our deep trust of Mr. Moore. He had told us we would be free to talk about what happened to Seth. Now we were being told by Mr. Frank that Mr. Moore was essentially a highly unethical person. How could we trust him to preserve out ability to talk about what happened?
At the Court hearing to discuss the Show Cause Order, the Judge ordered that the money was to be put into escrow until the issues raised by Mr. Frank and Ms. Pare’ were resolved.
Yalango By Goldberg v. Popp (620 N.Y.S. 2d 762 (CtApp 1994) was referred to by Mr. Frank in the court meeting conducted by Judge Klein-Heitler, our three lawyers, and ourselves on August 25, 1999. This case sets the legal fee limits a lawyer is able to get from a case of medical malpractice taken on contingency. Columbia, in the General Release, agreed to pay us $500,000 for the atrocities done to Seth. Mr. Moore was to receive $228,125. We were to receive $271,875. But the guidelines of Yalango limit Mr. Moore’s fee to $137,500.
Here was the core of the matter. Mr. Moore had succeeded in obtaining $90,625 more for himself by forcing Ms. Pare’ off the case. When we understood this, we realized that our trust in Mr. Moore had been mistaken. In a subsequent court hearing, we were granted the right to represent ourselves Pro Se in any further deliberations.
By this point in time, the extreme emotional trauma of the period prior to the aborted trial had abated. We could see more clearly what had happened and were, of course, incensed. We had been coerced by Moore into signing away our First Amendment right.
What Moore then did is intriguing and instructive. He immediately moved in the Surrogate’s Court in the Bronx to have a Guardian appointed over us to force us to accept the settlement. This Court is in a different jurisdiction than Judge’s Klein- Heitler’s Court. The Surrogate’s Court, however, has joint jurisdiction in New York State over estates and Columbia, by its offer of $500,000 was providing money for Seth’s “estate”. Mr. Moore told the Surrogate’s Court that we were “harming the estate” and therefore had to have a Guardian appointed to stop us. Very clever “lawyering”!
By this point, we had become more skilled in understanding the Law. We studied Surrogate Law and realized that we had a right to trial over the issue. We wrote our own motion in opposition to Moore indicating that if the Surrogate Judge wanted to go ahead, we would fight it out in front of a Bronx jury. Fortunately, we submitted our motion under the time limit for requesting a trial.
The Surrogate Court judge tabled both motions and stated that he would not pursue the matter until there was a final disposition in the Manhattan Supreme Court case. We had, therefore, dodged a very big bullet directed at us by Mr. Moore.
Subsequent to this activity, the motions from Moore, Pare, Frank, and Shapiro (Columbia’s lawyer) flew fast and furious. Our Pro Se motion was in the hopper also. We requested that the whole settlement be vacated. We had clearly signed this settlement under duress, we had been coerced by a very skilled lawyer into doing so. We learned from our study of Contract Law that the General Release should be invalid. Contracts signed under duress are invalid.
In late March of this year (2000) Judge Klein-Heitler issued her opinion. She agreed that Mr. Moore’s claiming of an extra $90,625 was contrary to law (she did not call him a “crook”, however). Her opinion is illogical. While she acknowledges that his actions were unethical, she failed to give credence to our argument that he coerced us into signing. She used the famous New York state action case, Hallock v. State of New York, 485 N.Y.S. 2d 510) as her precedent. The New York State Court has used this case in hundreds of subsequent cases to say that if it cannot be proven that you signed a contract only because there was literally a gun held to your head, you are bound by the contract.
So the Judge gave us something and denied us something. She said that we are entitled to $90,625 more for Seth’s life, but we still bound to silence. Her opinion, however, misses the point. We do not want the money. We want our freedom to talk about what happened. Columbia is desperate that this not happen.
So in response to her opinion, we submitted our intention to appeal the decision. We did so in a timely fashion. We have learned that time is a crucial issue in the Law and that many a just cause is lost because documents were not filed under the wire of some time limit.
But we have made another decision. We have read our detested General Release and we realize that nothing in it says we cannot repudiate it. We are obligated only to give the money back (the “consideration” as contract law calls the money). But we never received the consideration so we have nothing to give back. Columbia can keep it. We want our First Amendment right.
In fact, the General Release in a real world, would be invalid anyway. In Contract Law, no contract that covers up a crime is considered valid. And this contract (the General Release), skillfully crafted by Mr. Moore – a master lawyer and widely known as one of the best litigators in New York City – is a document that covers up a crime. The New York State Law on Restraints was broken with impunity by Columbia for 66+ hours and our son died. In a real world, this was a crime and an atrocity. The General Release we signed only under severe duress is invalid.
The reader should think about the case for a moment. Columbia, in its defense of its actions, has charged Dr. Speken with an act that, were it to have happened, would be First Degree Murder. But they then agreed to give him $500,000 (less expenses) for his silence. Money to the father-physician-‘murderer’. They had become desperate to ensure silence and cover their crime for eternity.