The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge
MEMORANDUM DECISION AND ORDER
The attorney-client relationship rests upon a unique contract, which should not be blithely disregarded. To end such an inimitable professional relationship, especially during the course of a litigation, must rest upon secure reasoning and cause. Presently before this Court is Wingate, Russotti & Shapiro, LLP's ("Law Firm") Motion for Reconsideration of their Application to Withdraw as Counsel. Dkt. No. 24, Mot. to Reconsider; see infra note 2. The irony of this application is that the request to be relieved as Counsel to the Ehles has been, throughout the four-year history of this case and the Law Firm and Ehles' relationship, the predominately litigated matter in this lawsuit.
By an Order, dated October 19, 2005, this Court denied the Law Firm's Motion to Withdraw (Dkt. No. 10) and we further withdrew our sua sponte Order to Show Cause (Dkt. No. 8). Dkt. No. 18.*fn1 Promptly thereafter, the Law Firm filed an Appeal of this Court's Memorandum-Decision and Order with the Honorable David N. Hurd, the United State District Judge assigned this case. Dkt. No. 20, Law Firm's Objections, dated Nov. 2, 2005. While the Appeal was pending before Judge Hurd, the Law Firm consulted with a physician and secured a written report from this doctor, dated December 8, 2005. Dkt. No. 24, Law Firm's Mot. for Reconsideration, Mem. of Law, dated Dec. 23, 2005.*fn2 A request was made to submit this new report to Judge Hurd for his consideration. Id. By an Order, dated December 20, 2005, Judge Hurd ruled that "Plaintiffs' counsel seeks permission to submit new materials with regard to his appeal of the Magistrate Judge's order denying withdrawal as counsel pursuant to Local Rule 83.2(b). The request is denied without prejudice for counsel to submit the new materials in a motion for reconsideration to the Magistrate Judge. Otherwise the appeal and objection are denied." Dkt. No. 23.
Generally, reconsideration of a court's prior decision is warranted only where the moving party demonstrates "(1) an intervening change of controlling law; (2) the availability of new evidence; and/or (3) the need to correct a clear error or prevent manifest injustice." Bartz v. Agway, Inc., 849 F. Supp. 166, 167 (N.D.N.Y. 1994) (citing Wilson v. Consol. Rail Corp., 815 F. Supp. 585 (N.D.N.Y. 1993); McLaughlin v. New York Governor's Office of Employee Relations, 784 F. Supp. 961, 965 (N.D.N.Y. 1992); see also Doe v. New York City Dep't of Soc. Serv., 709 F.2d 782, 789 (2d Cir. 1983). As there is neither an intervening change of controlling law nor a showing of clear error or manifest injustice, the availability of new evidence may be the only ground permitting such a Motion. Whether this new physician's report constitutes new evidence is of little moment now because the District Judge has essentially asked that this matter be reviewed as a Motion for Reconsideration, and we will, therefore, act accordingly.
The parties' familiarity with the facts are presumed. Accepting that the crux of this Motion for Reconsideration challenges both the Court's previous factual and legal findings, this Court feels compelled to set forth the case history previously rendered in the October, 19, 2005 Order, for the benefit of other readers.*fn3 Moreover, a recitation of these facts are critical to this analysis as they were when first rendered.
On or about August 8, 1999, Mr. Ehle registered several medical complaints to Hudson Headwaters Health Network ("HHHN") in Warrensburg, New York, about problems with his left leg. He was seen by Nurse Practitioner K. Roush. Based upon her observations, medication and rest were prescribed along with a recommendation to return to the clinic if symptoms persisted. On August 16, 1999, Mr. Ehle returned to the clinic and was seen by Dr. John Rugge. Two days later, suffering from severe back and leg pain, Ehle was rushed to Glens Falls Hospital. Surgery was performed but Ehle did not regain consciousness as it appeared from a CT Scan that he had a massive suarachoid bleed, although determined not to be a cerebral aneursym. Because of this event and probably more serious medical complications, on August 20, 1999, Ehle's left leg was amputated. After coming out of the coma, Ehle received immediate care; Ehle was sent to Sunnyview Hospital and Rehabilitation Center, then back to Glens Falls Hospital for acute care, and then transferred to Westmount Health Facility, a nursing home, until October 2001.
In 2002, at the urging of the Ehles' son, the Law Firm filed a medical malpractice Complaint in New York Supreme Court for the County of Warren. It appears from the record that the Ehles' son made a phone call and spoke with then partner, Kathleen Kettles-Russotti, who is also a nurse. Ostensibly, Attorney Russotti spoke with Rose Ehle by phone shortly thereafter. In fact, the Ehles have never personally met with any representative of the Law Firm and the parties otherwise communicated rather sporadically over the years by both telephone and correspondence.*fn4 Shortly after establishing an attorney-client relationship, Attorney Jason Rubin, who is an associate in the Firm, was assigned to this matter. He signed the verification to the State Complaint as well as any other pleadings thereafter. Rose Ehle represented that she rarely consulted with Ms. Russotti, if at all, and her primary contact at the Firm was Rubin. Furthermore, there is no disagreement between the Ehles and the Law Firm that the Law Firm was retained, although apparently no retainer agreement was executed solidifying the terms of this professional relationship.
The State Supreme Court Complaint, sounding in both negligence and medical malpractice, was filed on or about April 12, 2002, against John Rugge, M.D., and HHHN, among others, without the benefit of an independent medical consultation as required by New York Civil Procedure Law ("CPLR"). Rubin represented that they filed this lawsuit expeditiously for fear that the statute of limitations may expire. This representation is confirmed by Rubin's attached certificate pursuant to CPLR 3012-a stating that I was unable to obtain a consultation required by paragraph one of CPLR 3012-a because a limitation of time, established by article two of the CPLR, would bar this action and the certificate required by paragraph one of this subdivision could not reasonably be obtained before the time expired.
Ehle, et al. v. Rugge, et al., Civ. No. 1:02-cv-1426, Dkt. No.1, Compl.*fn5 HHHN and Dr. Rugge were served on July 23 and July 29, 2002, respectively. Id., Dkt. No. 1, Notice of Removal at ¶ 1. Unbeknowst to the Ehles and the Law Firm, by operation of the Federally Supported Health Centers Assistance Act, codified at 42 U.S.C. §§ 233(g)-(n), HHHN and its employees are covered under the Federal Tort Claims Act. 28 U.S.C. §§ 1346(b), 2401(b), & 2671- 2680; Ehle v. Rugge et al., Notice of Removal at ¶ 3. Since HHHN is covered under the Federal Tort Claims Act and Dr. Rugge was found to be acting within the scope of his employment, the Defendants removed this medical malpractice action to District Court on November 12, 2002. See generally Ehle v. Rugge et al., Notice of Removal. Within months of the removal to the Northern District of New York, on January 14, 2003, the parties entered into a stipulation, which was "So Ordered" by the Honorable David R. Homer, United States Magistrate Judge, to dismiss this action, without prejudice, because the Ehles failed to file an administrative claim, pursuant to 28 U.S.C. § 2675(a); however, they reserved their right to commence a new action after the administrative process was complete. Ehle v. Rugge et al., Dkt. No. 3. At this stage of the litigation, apparently the Law Firm had still not secured an independent expert review of the medical records to determine if a cause of action existed or the strength of that cause of action.
On or about February 25, 2003, presumably with the assistance of the Law Firm, the Ehles filed their Administrative Complaint with the Department of Health and Human Services ("HHS"). 05-cv-189, Dkt. No. 10, Mem. of Law, Ex. A. On August 23, 2004, HHS denied Joseph Ehle's claim and also advised the Plaintiffs that they could file a suit within six (6) months from the date of mailing of the determination. Id. at Ex. B. Within less than two weeks of the very last date in which a complaint could be filed in federal court, on February 14, 2005, a Complaint was filed in the Northern District of New York. Dkt. No. 1, Compl.*fn6 The Law Firm proffers that the Complaint was filed on this date to preserve the Ehles' rights and avoid, yet again, preclusion by the statute of limitations. The Law firm did so without the benefit of an expert review, which is so vital in a medical malpractice action. The Defendant United States of America was not served with the Summons and Complaint until April 20, 2005. Dkt. No. 4, Aff. of Service.*fn7 During the administrative review, no expert report was submitted. The Law Firm represents that "after being retained by the plaintiffs," medical records were obtained and reviewed by former law partner Kathleen Kettles-Russotti, who is also a nurse. Dkt. No. 10, Mem. of Law at p. 4. The exact date of when the records were reviewed and when Russotti formed an opinion on the merits of the case are unknown, although it is presumed that such review may have occurred "prior to the filing of the SF-95 [administrative claim]." Id. at p. 5. Rubin suggested that it would have been Attorney Russotti's practice to at least have had an oral consultation with a doctor on the medical malpractice claims she was handling prior to filing a complaint. This suggestion is without verification, however, since Rubin could not locate any notation to that effect within the file. Nonetheless, Attorney Russotti opined that Nurse Roush and Dr. Rugge "did not appreciate [Ehle's] history," departed from accepted standards of medical care, and thus this case presented a "meritorious cause of action for medical malpractice." Id. at p. 4.*fn8
Twenty-two (22) days prior to the filing of the instant Complaint and thirty-one (31) days prior to the expiration of the applicable statute of limitations, on January 25, 2005, the Law Firm, for the first time in its then three-year professional relationship with the Ehles, sent Mr. Ehle's medical records to an independent medical expert, who specializes in vascular surgery. In camera Documents, Ex. A, Jason Rubin, Esq. Lt., dated Jan. 25, 2005. "Within approximately 1-2 weeks" of forwarding the records to this doctor, a preliminary review of the records by the doctor indicated a "meritorious cause of action for medical malpractice against Hudson Headwaters."*fn9 Mem. of Law at p. 5.
Subsequently, this same doctor conducted a more thorough review of the 500 pages of medical records and apparently arrived at a different conclusion as reflected in Rubin's case notes. In camera Documents, Ex. B, Notes on Expert Review, dated Mar. 21, 2005. On March 22, 2005, the Law Firm sent the records to another physician. Id., Ex. C, Lt., dated Mar. 22, 2005. As of that date, over a month after initiating the within action, the Complaint had not been served. The Law Firm tenders the position that they did not want to serve the Complaint until they "obtain[ed] the final opinion of the vascular surgeon." Mem. of Law at p. 6. On April 1, 2005, Rubin recorded in his notes an extended conversation he had with this second doctor about the medical claims in this case. Overall, according to Rubin, the doctor had a negative view of the merits of the case, and essentially concluded that there would be difficulty establishing proximate cause. Id.; see generally Oral Arguments, Oct. 7, 2005.
With the receipt of this less than optimistic medical report as to the merits of the case, the Law Firm formulated their current posture:
Our plan is as follows: we aren't going to continue with this case [because] we can't prove causation, however, if the clients want to try to get another attorney we will serve the complaint and then either move to be relieved or be substituted." Id.
After speaking with Rose Ehle by telephone, on April 4, 2005, Rubin wrote the Ehles a full page letter, explaining their position why the Law Firm did not want to continue with the case. In camera Documents, Ex. E, Lt., dated Apr. 4, 2005. Attached to this letter was another page setting forth the above-mentioned options with signature lines under each option, execution of which would acknowledge the Ehles' election. Ostensibly, the Ehles elected to consult with another attorney and further understood, at least from this form, that the Law Firm would no longer prosecute the case and seek to be relieved as counsel. In camera Documents, Ex. F.*fn10
Rose Ehle, speaking on behalf of her husband, stated orally on the record and in writing that she disagrees with the opinions of the doctors, that she will not abandon the prosecution of this matter and wishes to proceed with the case preferably with the assistance of an attorney rather than pro se. She confirms that she has tried to get several attorneys to assume the ...