## Facts

- Henry Speed retained attorney Scott Zahler to pursue claims arising from a foot injury at a Sports Authority store.
- Zahler filed a premises-liability action against Sports Authority on Speed’s behalf.
- Speed later received treatment from Dr. Shajih Muhanna for deep venous thrombosis.
- In connection with the Sports Authority case, Zahler sought to depose Muhanna as Speed’s treating physician.
- Muhanna requested assurance that he would not be deposed in a medical-malpractice case and would not face a malpractice claim.
- Zahler sent Muhanna a letter stating the matter was not a medical-malpractice case and that Muhanna would not “now or in the future” be subject to any malpractice claim.
- After receiving the letter, Muhanna agreed to be deposed.
- Represented by new counsel, Speed later filed a medical-malpractice action against Muhanna based on the prior treatment.
- Muhanna asserted the letter barred the malpractice suit as a release or covenant not to sue.

## Issues

1. Whether Speed’s attorney had apparent authority to bind Speed, via a letter to a third party, to a promise releasing or foregoing future medical-malpractice claims.
2. Whether the letter’s language constituted an enforceable release or covenant not to sue that barred Speed’s later malpractice action.

## Decision

- The Georgia Court of Appeals affirmed summary judgment for Muhanna.
- The court held Zahler had apparent authority to make the commitment in the letter because no limitations on his authority were communicated to Muhanna.
- The court held the letter operated as an enforceable covenant not to sue (or release) covering malpractice claims against Muhanna.
- With no genuine dispute of material fact about the letter’s contents, Zahler’s representation, or the lack of communicated limits, summary judgment was proper.

## Legal Principles

- An attorney retained for litigation is the client’s agent as to matters within the scope of the representation, and third parties may rely on the attorney’s apparent authority absent notice of limitations.
- A client may be bound by an attorney’s agreement with a third party when the client does not communicate restrictions on the attorney’s authority to that third party.
- A promise not to assert a cause of action, supported by consideration, may be enforced as a covenant not to sue and can bar a later suit on the covered claim.
- Where the material facts concerning an agreement’s existence and terms are undisputed, the agreement’s legal effect may be resolved on summary judgment.

## Conclusion

The court enforced the lawyer’s written assurance to the treating physician as a binding covenant not to sue and held the patient was bound by counsel’s apparent authority because the physician had no notice of any limits on that authority, barring the subsequent malpractice action.


Speed v. Muhanna, 274 Ga. App. 899, 619 S.E.2d 324 (Ct. App. 2005)