Wrongful termination suit thrown out by appellate court

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A doctor who aggressively litigated his case against the hospital from which he was fired had his appeal thrown out Tuesday.

Seventh U.S. Circuit Court of Appeals Judge Richard Posner said a lower court judge was not wrong to throw out court papers filed after a deadline.

In his decision, Posner noted that the case Bashir Sheikh brought against Grant Regional Medical Center in Lancaster could be frustrating. Since the case was filed in 2011, Sheikh had worked with three attorneys and also represented himself at times.

Sheikh, through his current attorney, had asked the appeals court to allow him to submit a response to court filings the defendants submitted, even though he missed the deadline to submit by a day. But Posner, who was joined on the panel by Judges Frank Easterbrook and William Bauer, denied the request, saying that Western District of Wisconsin Chief Judge William Conley’s earlier statement that “no further extensions will be granted to plaintiff for any reason” was wrong, it wasn’t enough to overturn Conley’s actual decision to not accept the response.

According to the decision, Sheikh was hired by Grant Regional Medical Center to be director of the emergency room. He was fired by the hospital’s CEO a few months later amidst complaints from hospital staff that he was incompetent, behaved unprofessionally and had a poor bedside manner with patients.

Sheikh contended, though, that he was discriminated against because of his ethnicity, even contending that one employee said “you must be that Middle Eastern guy whom they hired as ER director,” according to the decision. He filed suit in 2011, representing himself, but soon thereafter retained an attorney. That attorney withdrew, and Sheikh continued to litigate the case on his own.

In May 2012, the Grant County hospital filed a motion for summary judgment. Conley gave Sheikh until July 16 to respond, making it clear that he would give no more extensions.

Before the deadline, though, Sheikh hired a new lawyer, who filed a brief on July 16 opposing the hospital’s summary judgment request. According to the decision, “the brief proposed findings of fact, but did not respond directly to the hospital’s proposed findings of fact …”

Meanwhile, Sheikh filed two affidavits pro se, one of which was filed by the deadline and one that was a day late. The second affidavit, which Posner wrote was “more promising,” was thrown out for being late.

Two weeks after the affidavits were struck, the attorney withdrew from the case, and Sheikh asked the judge for permission to respond to the hospital’s findings of fact. As promised, Conley declined to give any additional time, and eventually ruled in favor of the hospital. Sheikh twice requested Conley to reconsider, but Conley declined, throwing the case out in January.

The decision states that Sheikh, on appeal and again represented by counsel, mainly argues that Conley should have allowed him to respond to the hospital’s findings of fact after he fired his second attorney. But Posner wrote that “in civil litigation that lawyer’s errors are attributed to the client; the client’s only remedy is an action for malpractice,” and that there is nothing in this case extreme enough to overturn the dismissal.

In addition, Posner wrote that Sheikh’s attempts to represent himself while also being represented by counsel “was a confusing mode of representation and one not permitted.”

The decision notes that the case could often be confusing and frustrating for a judge. According to the decision:

“There are 147 entries in the district court docket of this case, stretching over three years, yet without an evidentiary hearing of any sort ever having been held, let alone a trial. Much of the delay was the result of the plaintiff’s unhappy relationship with the two lawyers whom he hired after initially suing pro se. In effect he had six lawyers: himself, proceeding pro se, on three separate occasions, and in between, and afterward (on appeal), three real lawyers.”

Michael Aldana, an attorney with Milwaukee-based Quarles & Brady LLP who represented the hospital, pointed out that the decision, while appearing to be broad, was quite narrow. He said the 7th Circuit “has consistently held that the Western District’s summary judgments procedures are appropriate.”

Sheikh, nor his attorney for the appeal, immediately returned messages Wednesday afternoon. Follow @eheisigWLJ