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Abusive litigation against physicians
- Albany Urology v. Cleveland
- Arnold v. Lawrence & Memorial Hospital
- Barbato v. Khetarpal
- Boggs v. Camden-Clark Memorial Hospital
- IHHI v. Fitzgibbons
- Sigmon v. Southwest General Health Care Center
- Stewart v. Gibson
Albany Urology v. Cleveland, 528 S.E.2d 777 (Ga. 2000)
Issue
The issue in this case was whether a physician was required to disclose his cocaine usage to a patient in order to obtain the patient's informed consent to surgery, even though the cocaine usage did not bear on the physician's surgical skills.
AMA interest
The AMA encourages physician self-reporting of substance abuse in order to obtain proper treatment. Furthermore, it strives to avoid the expansion of liability theories against physicians, which can lead to abusive litigation.
Case summary
This case arose from allegedly unnecessary surgery performed by a physician who occasionally used cocaine. The surgeon, Timothy S. Trulock, MD, had been using cocaine approximately once a month at the time of the diagnosis and of the surgery, although he had not been using cocaine on days he saw patients. He did not reveal his cocaine usage to his patients, including the patient in this case, William Cleveland. The operation was unsuccessful and exacerbated a condition that might have resolved itself and could have been treated with Vitamin E.
The trial court found that the failure to disclose the cocaine use had not been a material concealment and entered judgment for defendants Dr. Trulock and his employer, Albany Urology Clinic. The plaintiff appealed.
The Georgia Court of Appeals found that the failure to disclose the cocaine use had been a material concealment and reversed the trial court. The court also found the defendants liable for battery. The defendants appealed to the Georgia Supreme Court.
The Georgia Supreme Court reversed the judgment of the court of appeals holding that, without a specific patient inquiry, a physician had no duty to disclose to patients “unspecified life factors” that did not objectively affect the physician's performance.
Litigation Center involvement
The Medical Association of Georgia, supported by the Litigation Center, filed an amicus curiae brief in the Georgia Supreme Court to support the defendants. While deploring illegal use of drugs, the brief argued that a physician's obligation to disclose the medical risks associated with surgery should not be extended to the disclosure of personal issues that do not affect the patient's well being. The patient's right to recover for professional negligence affords him or her adequate redress for any injuries. A requirement that a physician disclose his or her occasional cocaine usage might prejudice the jury and could chill the physician's voluntary efforts to obtain appropriate medical treatment for an unlawful drug habit.
Arnold v. Lawrence & Memorial Hospital (Conn. S. Ct.)
Issue
The issue in this case was whether the parents of a newborn child could recover damages for emotional distress caused by the allegedly negligent medical care of the child.
AMA interest
The AMA seeks to protect the relationships between patients and their physicians. It also strives to avoid the expansion of liability theories against physicians, which can lead to abusive litigation.
Case summary
The plaintiffs had filed a complaint against their son's physicians and hospital in the federal court in Connecticut. One count alleged that the parents were personally entitled to damages for the emotional distress they had suffered as a result of the physicians' failure to recognize and respond properly to their son's condition. The defendants argued that Connecticut does not recognize a claim for bystander emotional distress in the context of medical malpractice claims. Because the Connecticut law on this issue was unclear, the federal court certified the question for review by the Connecticut Supreme Court.
Before the Connecticut Supreme Court could rule, this case settled. Thus, the question of whether a cause of action should be allowed for bystander emotional distress in medical malpractice suits remains unresolved.
Litigation Center involvement
The Litigation Center filed an amicus curiae brief, arguing against recognition of this claim. The brief pointed out that allowing this claim would, in various ways, degrade the physician–patient relationship, allowing a bystander's financial gain to come at the potential expense of the patient's medical care.
View the brief (PDF, 1MB).
Barbato v. Khetarpal 2005 Ohio 5219 (Ohio App. 2005)
2005 Ohio App. LEXIS 4725
Issue
The issue in this case was the sustainability of an Ohio physician's $6,000 judgment against a plaintiffs' attorney who had filed a frivolous medical malpractice lawsuit against him.
AMA interest
The AMA opposes abusive litigation against physicians.
Case summary
Dr. Sanjiv Khetarpal, a gastroenterologist, ordered a biopsy of Benjamin Barbato's liver, based on liver problems Mr. Barbato had experienced. Dr. Gerald Hulvat performed the biopsy, during which (unknown to Dr. Hulvat at the time) he perforated Mr. Barbato's colon and gallbladder. Following the biopsy, and before leaving for vacation, Dr. Khetarpal had Mr. Barbato admitted to the hospital for observation. As the night progressed, Mr. Barbato's condition worsened. The next morning, Mr. Barbato's wife telephoned the on-call physician, Dr. Maycon, to advise him that Mr. Barbato was in critical condition. In response, Dr. Maycon ordered tests which disclosed the perforations and probably saved Mr. Barbato's life.
Mr. and Mrs. Barbato filed suit against the hospital and Mr. Barbato's various physicians, including Dr. Maycon. The plaintiffs hired a medical expert, but he refused to opine that Dr. Maycon had made any mistakes in his medical care. Dr. Maycon's counsel then e-mailed the Barbatos' attorney, Catherine Little, requesting that Dr. Maycon be dismissed from the case. Ms. Little responded with a request for a monetary offer from Dr. Maycon in exchange for dismissing him from the case. Subsequently, Dr. Maycon and his gastroenterology group moved for sanctions. Approximately eight months later, another (additional) counsel for the plaintiffs voluntarily dismissed Dr. Maycon from the case.
The case proceeded to a jury trial that resulted in a verdict for the remaining defendants. Dr. Maycon and his gastroenterology group then moved for an order on the sanctions motion. After a hearing, the trial court ordered sanctions against Ms. Little in the amount of $6,000, which was the amount Dr. Maycon claimed as compensation for the time he had spent in deposition preparation and attendance and trial preparation.
The trial court's award to Dr. Maycon was appealed. Prior to oral argument on that appeal, however, Ms. Little advised the appellate court that she would not participate in that argument because she had allegedly received threatening mail and phone calls from people claiming to be members of the Ohio medical community. She claimed to be in fear for her own safety. Oral argument was heard without Ms. Little's presence, and the appellate court affirmed the award of damages against Ms. Little for filing a frivolous lawsuit.
Litigation Center involvement
The Litigation Center, along with the Ohio State Medical Association, filed an amicus curiae brief in support of Dr. Maycon and the judgment awarded him.
View the brief (PDF, 80KB).
Boggs v. Camden-Clark Memorial Hospital
609 S.E.2d 917 (W.Va. 2004)
Issue
The issues in this case were the timeliness of pre-filing certificates of merit in a medical malpractice action filed in West Virginia and the constitutionality of a cap on non-economic damages recoverable under West Virginia's medical malpractice statute.
AMA interest
The AMA supports tort reform, specifically the limitation of non-economic damages in medical malpractice cases.
Case summary
Plaintiff Bernard Boggs claimed that Dr. Manish Koyawala caused his wife's death by failing to adhere to the standard of care in anesthetizing her. Mr. Boggs also made claims against United Anesthesia (Dr. Koyawala's anesthesiology group) and Camden-Clark Memorial Hospital for malpractice and various other torts.
The West Virginia Medical Professional Liability Act (MPLA), W.Va. Code §55.7B.1, et seq. provides (among other things) that medical malpractice plaintiffs must serve pre-filing notices of claim and certificates of merit at least 30 days prior to filing suit. Moreover, a revision to the MPLA provides that claims filed on or after July 1, 2003 are subject to a limit on the amount of non-economic damages recoverable. The defendants moved to dismiss, arguing that Mr. Boggs had failed to provide them with properly executed certificates of merit a full 30 days prior to filing suit. The trial court granted the motion, dismissing all claims. Mr. Boggs then asked for leave to amend his complaint, based on a West Virginia procedural rule providing for the “relating back” of claims. Such “relating back” would allow Mr. Boggs to avoid the applicability of the cap on non-economic damages. The trial court denied this motion. Mr. Boggs then appealed to the West Virginia Supreme Court.
The West Virginia Supreme Court decided the case in the plaintiff's favor, reasoning that the lower court had incorrectly denied plaintiff leave to amend his complaint. The Supreme Court held that the plaintiff was entitled to amend his complaint under the “relate back” rule to assert certain “non-medical practice” claims, in addition to the earlier-asserted malpractice claim (which the court held was not subject to the intervening changes to the West Virginia malpractice statute, which reduced the amount of recoverable non-economic damages).
Litigation Center involvement
The Litigation Center, the West Virginia State Medical Association, and several public interest organizations filed an amicus curiae brief supporting defendants Camden-Clark Memorial Hospital, United Anesthesia, Inc., and Manish I. Koyawala, MD. The brief contended that Mr. Boggs lacked standing (in view of the lack of any harm suffered) to challenge the constitutionality of the medical liability reforms.
View the brief (PDF, 2MB).
IHHI v. Fitzgibbons 140 Cal. App. 4th 515, 44 Cal. Rptr.3d 517 (Cal. Ct. App. 2006)
Issue
The issue in this case was whether a physician should be allowed to make truthful statements about the financial solvency of a publicly held corporation that owned a hospital in which the physician held medical staff privileges.
AMA Interest
The AMA believes that physicians should be entitled to express their opinions on matters affecting public health and the health of their patients, without fear that such expression will subject them to the burdens of an unfounded lawsuit.
Case Summary
Michael Fitzgibbons, MD, an infectious disease specialist practicing in Santa Ana, California, was a past chief of staff of the Western Medical Center-Santa Ana (“WMCSA”). He remained on the medical staff executive committee during the incident that led to the lawsuit. Integrated Healthcare Holdings, Inc. (“IHHI”) was a publicly owned investment company, organized to own and manage health care facilities.
During 2004, Tenet Healthcare Corporation, then the WMSCA owner, sought to divest itself of its Orange County, California hospitals, including WMCSA. Tenet entered into an agreement to sell those hospitals to IHHI, which had been incorporated for that purpose. Both the Orange County Board of Supervisors and the California Senate held formal hearings to investigate the proposed acquisitions. These hearings were reported in the Orange County Register, the Orange County Weekly, and the Los Angeles Times. Eventually, the hospitals were sold, the California hospital licensing board approved the acquisitions, and IHHI began to operate them.
Shortly after closing the deal, IHHI reported to the SEC that it had received a notice of default on two loans that it had received to fund the acquisitions. The effects of the claimed defaults were to suspend IHHI’s ability to obtain further loans, increase the interest rate on its outstanding loans, and make immediately due and payable almost $64 million in debt. The SEC filing was the subject of a critical article in the May 17, 2005 Orange County Register.
Dr. Fitzgibbons, through an e-mail sent to other physicians on the WMCSA medical staff, criticized the acquisitions and expressed doubts about the financial viability of IHHI. Most of the information in the e-mail came from the Orange County Register article, which in turn came from IHHI’s own SEC filing. Ultimately, the e-mail found its way into the hands of IHHI.
Based on Dr. Fitzgibbons’ e-mail, IHHI sued him for: (1) defamation, (2) intentional interference with a contractual relationship, (3) negligent interference with a contractual relationship, (4) breach of contract, (5) breach of the duty of good faith and fair dealing, and (6) violation of the California unfair business practices statutes. Dr. Fitzgibbons filed a special motion to strike the complaint under the California anti-SLAPP statute. Cal. Code Civ. Proc. §425.16.
The trial court denied the special motion to strike under the anti-SLAPP statute, and it also awarded IHHI $1,925 in attorney’s fees and costs. Dr. Fitzgibbons appealed the denial of his special anti-SLAPP motion.
On June 14, 2006, the Court of Appeal reversed, finding that IHHI had failed to demonstrate a probability of success. It directed the lower court to grant Dr. Fitzgibbons’ motion to strike under the anti-SLAPP statute, and it awarded him his costs on appeal.
Litigation Center Involvement
The Litigation Center and the California Medical Association filed an amicus curiae brief in the California Court of Appeal to support Dr. Fitzgibbons.
View the brief (PDF, 86KB).
Sigmon v. Southwest General Health Care Center 2007 Ohio 2117, 2007 Ohio App. LEXIS 1983
(Ohio Ct. App. 2007)
Issue
The issue in this case was the appropriateness of sanctions against a medical malpractice plaintiff’s attorney who brought a frivolous lawsuit.
AMA Interest
The AMA opposes abusive medical malpractice litigation.
Case Summary
This case involved an appeal of sanctions against a plaintiff’s attorney for bringing a frivolous medical malpractice action against an orthopedic surgeon, his practice group and a hospital. The trial court assessed $8,500 in fees -- $4,500 to the defendant physician and his practice group and $4,000 to the defendant hospital. The sanctioned plaintiff’s attorney appealed.
On May 3, 2007, the Ohio Court of Appeals affirmed the trial court’s finding in favor of defendants. On October 3, 2007, the Ohio Supreme Court declined to accept for review the Court of Appeal’s opinion.
Litigation Center Involvement
The Litigation Center and the Ohio State Medical Association filed an amicus curiae brief to support the defendants in the appellate court.
View the brief (PDF, 3736KB) .
Stewart v. Gibson (5th Cir.)
Issue
The issue in this case is whether an award of attorneys' fees to a physician mistakenly sued in a medical malpractice case should be upheld.
AMA interest
The AMA opposes frivolous or otherwise wrongful malpractice suits against physicians.
Case summary
This case concerned a counter-suit by a Mississippi physician, Dr. Lawrence Stewart, against a medical malpractice plaintiff's attorney who wrongly named the physician as a defendant. Essentially, the wrong Dr. Stewart was sued.
When Dr. Stewart's attorney pointed out the error to the plaintiff's attorney, the attorney still refused to dismiss Dr. Stewart from the case. Consequently, Dr. Stewart had to go through the trouble and expense of obtaining a judgment in his favor. Because of the plaintiff's attorney's refusal to correct his error, he was held liable in the trial court for improper pleadings under 28 U.S.C. §1927. Dr. Stewart obtained a judgment against the attorney for $6,093.26.
The attorney appealed to the United States Court of Appeals for the Fifth Circuit. The Fifth Circuit affirmed the award against the attorney but reduced the amount of the judgment to $4,488.26.
Litigation Center involvement
The Litigation Center and the Mississippi State Medical Association each contributed to Dr. Stewart to help defray his litigation expenses.
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