Is The Tide Starting To Turn?
Posted by WhiteCoat on December 4, 2007
AM News just published an article about how Ohio recently sanctioned three attorneys for filing or maintaining frivolous malpractice lawsuits against physicians.
High fives to the Ohio State Medical Association and to the Ohio courts for taking a stand.
It’s kind of amusing that only a few years ago, plaintiff’s attorneys were accusing physician organizations of witness tampering and witness intimidation when the organizations reviewed and took action against experts who provided untrue or misleading testimony. Now when their own butts are on the line, the plaintiff’s attorneys are suddenly pointing their fingers at the experts as well …
Penalizing lawyers who have shown no ill will could have a chilling effect on medical liability cases, said Paul Perantinides, a plaintiff attorney in one of the Ohio cases.
“It has a huge impact designed to put the onus on lawyers, so when they look at these cases, instead of asking, am I doing the right thing for the patient, the lawyer is going to say, if I keep [this doctor] in, there’s a chance he may come against me.”
Perantinides added that plaintiff attorneys must rely on expert testimony when filing their cases and said lawyers should not be held responsible when a claim ends up lacking in merit due to an expert’s actions.
In case anyone is interested, the attorneys in the cases involving sanctions were:
Paul Perantinides - Ponder v. Kamienski
Matthew Fortado and Sidney Freeman - Callahan v. Akron General Medical Center
John E. Duda - Sigmon v. Southwest General Health Center
Text of the AM News article is below for those who don’t have access to AM News.
Physicians challenge lawyers’ meritless liability suits — and win
More doctors are discovering they have some recourse through countersuits or other legal tactics to hold lawyers accountable.
By Amy Lynn Sorrel, AMNews staff. Dec. 10, 2007.
Physicians say a series of favorable court rulings is turning the tide in their crusade against frivolous medical liability lawsuits.
Three Ohio courts in six months sanctioned plaintiff lawyers for pursuing unsupported claims against three doctors. Judges awarded the physicians their legal expenses. In New Orleans, the 5th U.S. Circuit Court of Appeals upheld a similar award to a Mississippi doctor Nov. 13.
The courts chastised the attorneys for wanton behavior including: suing the wrong doctor; refiling a claim against a physician even though the plaintiff’s expert withdrew his testimony the first time around; and having no expert testimony against one doctor yet failing to drop the case.
Beyond the money, doctors hope the hard-won victories in cases that often are difficult to prove send a message that deters lawyers from filing baseless claims in the first place.
“We are not trying to prevent legitimate claims. But these are egregious cases where there is absolutely no merit, whether through laziness or negligence or refusal [by trial lawyers] to do due diligence,” said Almeta Cooper, Ohio State Medical Assn. general counsel. The society took on the three Ohio cases through its Frivolous Lawsuit Committee, a program that educates physicians about the practice and helps them defend against it.
Cooper said the rulings “encourage trial judges who see abusive conduct to take action … and it helps physicians understand the system is not completely stacked against them.”
On top of tort reform, proactively challenging meritless cases is another way to reduce the frequency of bad claims and curb rising liability insurance costs, said neurosurgeon Jeffrey Segal, MD, founder and CEO of Medical Justice. The national company sells insurance policies that give doctors legal resources to combat frivolous claims. For example, when a client physician receives notice that a patient is considering filing a lawsuit the doctor believes is frivolous, the company sends a letter to the lawyer that the physician may countersue. As a result, Segal said, only 11% of these instances then materialize into a lawsuit.
Plaintiff attorneys are allowed to advocate for patients, Dr. Segal said. But “where physicians go crazy is with frivolous testimony delivered by an expert witness, and the first order of business is to look at the testimony. We try to put the two together and hold the attorney accountable for his expert witness.”
Trial lawyers agree that punishment may be justified if an attorney completely eschews his or her responsibilities and maliciously pursues a case. But such conduct is rare, said Jeff Boyd, executive director of the Ohio Assn. for Justice, the state trial lawyers organization.
“There really is no moral or economic incentive for plaintiff lawyers to file frivolous cases” and take on the often expensive and complicated negligence suits in bad faith, he said.
Penalizing lawyers who have shown no ill will could have a chilling effect on medical liability cases, said Paul Perantinides, a plaintiff attorney in one of the Ohio cases.
“It has a huge impact designed to put the onus on lawyers, so when they look at these cases, instead of asking, am I doing the right thing for the patient, the lawyer is going to say, if I keep [this doctor] in, there’s a chance he may come against me.”
Perantinides added that plaintiff attorneys must rely on expert testimony when filing their cases and said lawyers should not be held responsible when a claim ends up lacking in merit due to an expert’s actions.
Ohio courts scrutinize lawyers’ actions
Two Ohio courts saw differently. Both cases arose before a 2005 law requiring lawyers to attach an expert affidavit with each case filing.
A trial judge on Oct. 18 sanctioned two plaintiff lawyers for frivolous behavior and good-faith violations because they sued bariatric surgeon Mark T. Jaroch, MD, twice without adequate supporting testimony.
The plaintiff’s expert in 2002 withdrew his opinion that Dr. Jaroch did something wrong when he operated on a patient who lost portions of fingers after the surgery. Dr. Jaroch denies any wrongdoing. Plaintiff attorneys dropped the case but refiled it in 2003 using the same expert, who again withdrew his criticism.
Dr. Jaroch said his career “came to a standstill” as a result of the case. He had to shut down his practice because his medical liability insurer increased his rates by $100,000.
“The crux of the whole issue is: Is an attorney required to understand the nuances of the case or is he just a maitre d’ serving up witnesses?” Dr. Jaroch said. “They should have done their homework.”
Matthew Fortado, a lawyer sanctioned in the case, declined comment but said he and the other sanctioned attorney are appealing.
Akron, Ohio, thoracic surgeon Michael A. Oddi, MD, was in Iraq with the Army Reserve in 2004 while fighting a lawsuit filed against him without any expert testimony. Dr. Oddi assisted in a coronary bypass surgery in which the patient died from blood loss. He denies any negligence.
An appeals court on Sept. 26 said the plaintiff’s attorney, Perantinides, acted frivolously when he failed to voluntarily dismiss the unfounded claim, forcing Dr. Oddi to incur the legal expenses.
But Perantinides said Dr. Oddi’s role in the surgery did not come to light until later in the discovery process. Perantinides said he believed he was protecting the patient. He declined to comment on whether he will appeal. Hearings to decide the amounts awarded to Dr. Jaroch and Dr. Oddi are not yet scheduled.
Cleveland orthopedic surgeon Michael A. Banks, MD, won the $4,500 in attorney’s fees he spent defending a lawsuit filed against him despite the patient’s statement to her counsel that Dr. Banks was not the doctor who mistreated her. The Ohio Supreme Court on Oct. 15 denied plaintiff lawyer John E. Duda’s appeal, letting the award stand.
In Mississippi, McComb otolaryngologist Lawrence E. Stewart, MD, will recoup $4,500 in a similar fight. The 5th Circuit sanctioned Charles E. Gibson III and his firm for wrongfully suing Dr. Stewart instead of his deceased father yet refusing to drop the claim even after discovering the mistake. The Mississippi State Medical Assn. and the American Medical Association/State Medical Societies Litigation Center contributed financially to Dr. Stewart’s defense.
Duda and Gibson did not return calls for comment.
Despite the victories, legal experts warn that frivolity and bad faith are tough to prove, and courts are afraid of shutting out legitimate claims.
Boston plaintiff lawyer Barry D. Lang, MD, said, “Simply because [a doctor] has expert support on his side doesn’t mean that [the plaintiff] attorney is doing anything frivolous.”
Also, medical liability insurers typically don’t cover the cost of fighting frivolous conduct, OSMA’s Cooper said, so the society’s Frivolous Lawsuit Committee offers doctors legal assistance and monetary help.
Doctors say they are reluctant to drag out an already difficult experience. But they hope these decisions will make the battle a bit easier.
ADDITIONAL INFORMATION:
Taking plaintiff lawyers to court
Here’s a snapshot of recent rulings in cases in which physicians have sued to try to hold lawyers accountable for filing meritless lawsuits.
5th U.S. Circuit Court of Appeals, New Orleans
Case: Sarah N. Ratliff and Charles E. Gibson III, v. Lawrence E. Stewart, MD, elder
Result: In November, the court sanctioned trial lawyers for suing the wrong doctor and then failing to drop the case when court evidence showed the attorneys knew about the mistake. The court awarded the Mississippi doctor $4,500 in legal fees.
“It is not even a close question. … [The plaintiff] attorneys had misused the judicial process. … The continued conduct was so outrageous that the court could infer an ‘improper purpose’ by the attorneys’ otherwise inexplicable obstinance.”
Ohio Court of Appeals, 9th Judicial District
Case: Gisele Ponder v. Robert W. Kamienski, MD, et al.
Result: In September, the court sanctioned a trial lawyer for not obtaining expert testimony to support a negligence claim against a physician and for failing to dismiss the doctor from the case.
“This refusal to act only served to extend the time during which a lawsuit remained pending against [Michael Oddi, MD ... and] caused Dr. Oddi to endure the expense.”
Court of Common Pleas, Summit County, Ohio
Case: Brenda Callahan v. Akron General Medical Center, Mark T. Jaroch, MD
Result: In October, the court sanctioned two trial lawyers for refiling a second claim against a doctor and failing to promptly dismiss the first one, after the plaintiff’s expert withdrew his testimony both times.
“What reasonably should have been done … in preparing to file the case(s) … was not done. … At some point in these proceedings plaintiff counsels adopted a ‘damn the torpedoes’ attitude.”
Ohio Court of Appeals, 8th Appellate District
Case: Marie Sigmon v. Southwest General Health Center et al.
Result: In May, the court sanctioned a trial lawyer for wrongly naming a physician in a medical liability case when court evidence showed that the patient told her lawyer it was another doctor who mistreated her. The state Supreme Court in October denied the plaintiff lawyer’s appeal, allowing a $4,500 award to stand.
“If [the plaintiff lawyer] had dismissed this matter when he realized the case lacked merit, he would have spared the defendants the time and expenses.”
Frivolous conduct?
Here are some factors legal experts say courts consider when deciding if an attorney’s actions are frivolous:
- Willful negligence or lack of due diligence in researching a case.
- Absence of credible expert testimony or other factual support for the allegations.
- Bad faith or malicious intent to harass the defendants.
- Unwarranted delays.
December 4, 2007 at 10:45 am
“‘There really is no moral or economic incentive for plaintiff lawyers to file frivolous cases’ and take on the often expensive and complicated negligence suits in bad faith, he said.”
Does he think we’re all a bunch of muppets?! OF COURSE THERE’S INCENTIVE: it’s called a settlement. This quote would be true for going to trial, but these bottom-feeders are wanting their cut of a quick payout. It’s a numbers game, and they wouldn’t be doing this if there wasn’t a chance of making money.
December 4, 2007 at 4:41 pm
I’m glad they sanctioned them. But if you think filing truly frivolous medical malpractice lawsuits is a way to make money you’re kidding yourself. You deal with insurers, right? Liability carriers are no more eager or willing to pay on nonsense than those health insurers are that pay your bills.
If you were going to try to make money filing truly frivolous lawsuits, you’d be much better off in an area which doesn’t have such high entry costs. Like car wrecks or something like that.
December 4, 2007 at 7:33 pm
The poor lawyers…we doctors really have it our for them. First it’s tort reform, then asking that they carry malpractice insurance, and now they have to be responsible for their actions?
What is the world coming to?
December 4, 2007 at 7:46 pm
I should have added the fact that the three examples listed–particularly the one who wound up w/no expert and didn’t drop the case–definitely deserved what they got. I’m talking about playing the odds with insurers who, in spite of a decent on-paper defense might still settle because of a “Little Timmy” or “Grandma” factor that could play to a jury.
I have a cousin-in-law whose caseload was about half medmal and with whom I’ve shared many interesting debates (while still maintaining family harmony
). Being in Texas, his group had to refocus after the tort reform that was passed a couple of years ago. Take away the carrot, and the horse will go elsewhere.
December 5, 2007 at 8:11 am
I think what both of you are forgetting is the patient actually injured by malpractice. You’re so focused on the attorney who helps the patient, you’ve forgotten that yes, people actually do get injured as a result of malpractice. And when you make it harder for them to hire an attorney, you only make it more likely that they can’t pay you, can’t pay their mortgage, can’t pay their health insurance, etc. And maybe that’s what you want in exhange for saving a few bucks on your liability premiums. At least until the next stock market crash, that is.
As for these insurers who settle cases because they’re afraid of sympathy verdicts, can you tell me which ones they are? I’ve not seen them and I deal with insurers all the time.
December 5, 2007 at 9:00 pm
Matt -
I think the reason that many (not all) attorneys get caught up in “frivolous” cases is that they see a bad patient outcome and immediately think “jackpot.” Bad outcome does not equal “malpractice” any more than lost litigation equals “legal malpractice.”
I also think that some disreputable experts will take an attorney’s money and say that there is a case when none exists (or none should exist). Encouraged by the expert’s opinion, the attorney won’t drop the case, thinking there is a “payday” and some “justice” in the long run. Attorneys without experience in medical law are particularly vulnerable.
I don’t follow the logic that decreasing malpractice payouts will make it harder to hire an attorney or to pay for bills. Most payouts don’t come for 4-5 years after an incident occurs, anyway.
Most settlements don’t happen immediately. Defendants will try to get out of the case on motions, first. But when a trial date is set, insurers don’t like to face sympathetic plaintiffs. I have had friends who have been told by their insurers to settle a case or face paying the judgment out of their pocket for just such reason.
December 9, 2007 at 12:23 pm
“I think the reason that many (not all) attorneys get caught up in “frivolous” cases is that they see a bad patient outcome and immediately think “jackpot.” Bad outcome does not equal “malpractice” any more than lost litigation equals “legal malpractice.””
Again, going for a “jackpot” in med mal makes no sense, from many angles. Number one, the “jackpot” clients are exceedingly rare. Number two, the biggest cases are extraordinarily complex and require a LOT of money in costs, and an insurer who is already looking at policy limits is going to make you earn it.
As for shaky experts, again, in a big case you don’t dare risk it with shady experts because the other side will have very, very good ones. You guys tend to forget that the defense is VERY well funded and has very good lawyers as well.
You don’t understand the logic that decreasing the ability of people to recover won’t make it harder to hire an attorney? Let’s say we put the lobbyists cap of $250K in pain and suffering on a child, presuming they doesn’t work. They’ve got no economic damages, and if they have a catastrophic injury they’re probably looking at being uninsurable for the rest of their lives. Why go through a 4-5 year ordeal to get past medical bills, which will go to the state or whatever insurer they have now, and then get the max, or $250K (or whatever number insurance lobbyists have chosen), which just goes back to medical bills. It probably takes you out of state aid, anyway.
And that’s from the client’s perspective. If you’re the lawyer, why spend any money on that case unless it’s a complete slam dunk, because at the end of the day if you have to fight it all the way to trial you’ll not be able to get the client any money, and may not even cover your expenses?
As for these scared, settling insurers, let me know the companies - I have yet to deal with their adjusters.
March 9, 2008 at 8:20 pm
[...] The Ohio State Medical Association’s Frivolous Lawsuit Committee defended 3 frivolous medical negligence suits against members and funded counterclaims by the defendant doctors against the plaintiff’s solicitors for bringing hopeless claims. The doctors succeeded. [...]