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Tuesday, July 23, 2019

Upheld: $450K arbitration award against Milani Hinkle and Cole in malpractice case


By Gabriel Neves | Nov 8, 2018

Document signing | Pexels

BEAUMONT – An appellate court has upheld a trial court's judgment regarding a nearly $460,000 arbitration award between a law firm and the woman who hired it to represent her in a dental malpractice claim.

Justice Steve McKeithen, on the bench of the 9th District Court of Appeals, issued a 17-page ruling on Nov. 1, affirming the Jefferson County 172nd District Court decision in the lawsuit filed by Elizabeth Smith against Mark O. Midani and law firm Midani, Hinkle and Cole LLP.

"Because the appellants have failed to establish any grounds for vacating or modifying the arbitrator’s award, we conclude that the trial court did not err in confirming the arbitration award," McKeithen wrote.

Smith sued the law firm and its lead attorney on claims of legal malpractice. She had retained the firm to file a dental malpractice case against endodontist Dr. Katherine Olsen Triska, who allegedly administered excessive amounts of calcium hydroxide in a root canal, causing Smith to have permanent nerve damage.

The issues started in September 2012, when Smith chose Midani, Hinkle and Cole as her legal representatives in the dental malpractice case.

In the written agreement, there was an arbitration clause that should be applied in case of a dispute between the client and the firm. The ruling states that the agreement stated that “the award shall be final and binding on attorney and client(s).”

Smith's case against Triska was dismissed and she sued Midani, Hinkle and Cole in November 2015, claiming that one of the firm's attorneys who worked on the case, David Hutchins, concealed the reasons why her case against Triska was dismissed. She later found out that the reason for the dismissal was that no attorney showed up at the hearings, according to the ruling.

Under allegations of gross negligence, negligence and violation of the Deceptive Trade Practices Act, Smith sued Midani, Hinkle and Cole, who moved to compel arbitration of the case.

The arbitrator decided in Smith's favor, stating, per the ruling, that Hutchins "continued to act as MHC’s agent and associate counsel to carry out and perform MHC’s and Midani’s duties to Smith" after he left the firm and that the firm and Midani were "directly and vicariously liable for Hutchins’s negligence."

Smith was awarded $250,000 in noneconomic damages, $100,000 in economic damages for loss of household services, and $8,899.86 in damages for past and future medical costs, plus $100,000 in exemplary damages for gross negligence.

In October 2017, the lower court confirmed the arbitration award in Smith's favor. Midani and the firm appealed the decision, claiming in the appeal that the court erred in not vacating the award and that the arbitrator failed to follow Texas law.

9th District Court of Appeals case number 09-18-00009-CV

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