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Abusive litigation against physicians

Albany Urology v. Cleveland, 528 S.E.2d 777(Ga. 2000)

Also under Informed consent and Professional liability

Outcome:    Very favorable

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 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.  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 the physician and his employer.  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.)

Also under Professional liability

Outcome:  Neutral

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 their 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, based on negligent medical care of their newborn son.  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, the case settled.

Litigation Center involvement

The Litigation Center filed an amicus curiae brief, arguing against recognition of the 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.

Connecticut Supreme Court brief

Barbato v. Khetarpal, 2005 Ohio 5219 (Ohio App. 2005)

Also under Professional liability

Outcome:    Very favorable

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.

Ohio Court of Appeals brief.

Becker v. Mayo Foundation, 737 N.W.2d 200 (Minn. 2007)

Also Professional liability

Outcome:    Neutral

Issue
The issue in this case was whether a statute allowing a government prosecutor to bring a criminal charge against hospitals and physicians for failure to report the neglect and physical or sexual abuse of children could be expanded to impose civil liability under a private right of action.

AMA interest
The AMA strives to avoid the expansion of liability theories against physicians, which can lead to abusive litigation.

Case summary
The Minnesota Child Abuse Reporting Act (CARA) requires hospitals and physicians to report suspected child abuse to county authorities. The plaintiffs in this case, adoptive parents of a child who had suffered permanent injuries from the repeated physical abuse of her birth father, claimed that the defendant hospital and physicians had negligently failed to report the abuse. They sought to establish a new civil cause of action under CARA. The trial court held that the statute did not create a non-governmental cause of action, even if the hospital's emergency room physicians had negligently failed to report the child abuse. The child's parents appealed to the Minnesota Court of Appeals, which affirmed the trial court. They then appealed that decision to the Minnesota Supreme Court.

The Minnesota Supreme Court ruled that CARA cannot be enforced by a non-government entity. However, the Court also ruled that a (non-statutory) medical malpractice claim could be brought for failure to report abuse to the appropriate governmental agency and that, in bringing such a claim, a plaintiff may introduce evidence of the statute and its reporting obligations. The Court remanded for another trial.

Litigation Center involvement
The AMA, the Minnesota Medical Association, the Minnesota Hospital Association, and several specialty medical societies filed an amicus curiae brief in the Minnesota Supreme Court in support of Mayo Foundation, arguing against recognition of a new cause of action for negligent failure to report child abuse under CARA.

Minnesota Supreme Court brief.

Boggs v. Camden-Clark Memorial Hospital

609 S.E.2d 917 (W.Va. 2004)

Also under Certificate of merit,  Hospitals and Tort reform

Outcome:    Somewhat unfavorable

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.

Supreme Court of Appeals of West Virginia brief

Chadha v. Charlotte Hungerford Hospital, 829 A.2d 419 (Conn. 2003)

Also under Medical staffs

Outcome:    Very unfavorable

Issues

The principal issue in this case was whether physicians who communicated with the Connecticut Department of Public Health about the professional competence of another physician were entitled to absolute immunity against a suit for defamation or were only entitled to immunity if they had acted without malice.

AMA interest

The AMA believes that physicians have an ethical obligation to report incompetent colleagues to appropriate authorities.

Case summary

The plaintiff, Mohinder P. Chadha, M.D., was a licensed psychiatrist and a member of the Charlotte Hungerford Hospital medical staff.  The Connecticut Medical Examining Board initiated a disciplinary action against his medical license. 

At the request of the Department of Public Health, four physicians submitted affidavits to the Department of Public Health expressing concerns about Dr. Chadha’s ability to practice medicine safely.  Two of these physicians were on the Charlotte Hungerford Hospital medical staff, and the other one had, pursuant to the hospital’s request, reviewed the medical records of some of Dr. Chadha’s patients.  The Medical Examining Board then suspended Dr. Chadha’s medical license.

Dr. Chadha sued the four physicians who had submitted affidavits against him as well as Charlotte Hungerford Hospital.  He alleged that the physicians had defamed him by maliciously submitting false affidavits. 

The defendants moved for summary judgment, claiming that their statements had been made in "a quasi-judicial proceeding" and they therefore had absolute immunity against a suit for defamation under Connecticut common law.  The trial court granted the motion in part, but it also denied it in part, holding that the defendant physicians did not have absolute immunity.  The physicians then appealed the partial denial of their motion to the Appellate Court of Connecticut.

The Appellate Court noted that the physicians would have been entitled to absolute immunity under Connecticut common law.  However, it held, the Connecticut peer review statute had modified the common law and now they could obtain immunity only if they were able to show that their statements to the Department of Public Health had been submitted in good faith and with the reasonable belief that they were true.  Such a showing would require a trial, and therefore the Appellate Court affirmed the trial court's partial denial of the motion for summary judgment.  The case was then appealed to the Connecticut Supreme Court.

The Connecticut Supreme Court affirmed, holding that the Connecticut peer review statute modified the common law right of absolute immunity.  Thus, the defendant physicians were only entitled to qualified immunity.

Litigation Center involvement

The Litigation Center submitted an amicus brief supporting the defendants.  The brief argued that the peer review statute had not been intended to diminish the physicians’ common law immunity rights.

Connecticut Supreme Court brief.

Coleman v. Deno, 813 So.2d 303 (La. 2002)

Also under EMTALA and Tort reform

Outcome:    Somewhat favorable

Issue

The issue in this case was the correctness of a finding that a treating physician was liable for intentional malpractice because of his discharge and order of transfer to another hospital, of a patient who presented in an emergency room complaining of swelling and pain in his arm.

AMA interest

The AMA strives to avoid the expansion of liability theories against physicians, which can lead to abusive litigation.

Case summary

Louis Coleman presented himself at Jo Ellen Smith Hospital (“JESH”) emergency room at 8:10 p.m., complaining of swelling and pain in his left arm. Dr. Richard Deno examined Coleman and determined that he should receive in-patient intravenous antibiotic therapy.

Instead of admitting Coleman to JESH, though, Dr. Deno elected to transfer him to the emergency room at Charity Hospital of New Orleans (“CHNO”), which had superior and more immediately available services for treatment of Coleman's arm. Dr. Deno contacted the CHNO emergency room and was advised that they would accept Coleman for treatment. Dr. Deno determined that Coleman was in good condition and did not require an ambulance. He therefore ordered the transfer at 10:00 p.m. and discharged Coleman. He did not order the antibiotic therapy, because it would have contaminated the blood cultures that CHNO would need to take.

Coleman arrived at CHNO at 12:21 a.m. At 8:00 a.m., CHNO administered intravenous antibiotics. After further evaluation, the CHNO physicians determined that Coleman's arm was irrevocably damaged and required amputation to save his life.

Coleman sued JESH, CHNO, and various physicians who had treated him, including Dr. Deno. The hospitals settled for nominal payments, and the claims against them were subsequently dismissed. Following a trial, a jury found Dr. Deno liable. He appealed.

The Louisiana Medical Malpractice Act limits damages against a negligent physician to $100,000. However, the Court of Appeal held that Dr. Deno had intentionally discharged Coleman from JESH without providing appropriate treatment. Therefore, the appellate court reasoned that his supposed error went beyond ordinary negligence, and the damage cap in the statute would not apply. The Court of Appeal affirmed the jury award of $4.4 million against Dr. Deno.

The Louisiana Supreme Court reversed the appellate court's finding of intentional wrongdoing but affirmed the finding of negligence. The majority held that Dr. Deno was liable for medical malpractice and that the Medical Malpractice Act should limit the damages against him. A dissenting opinion argued that the jury verdict was completely in error, that Dr. Deno had done nothing wrong, and that judgment should have been entered for him on all counts.

Litigation Center involvement

The Litigation Center joined a Louisiana State Medical Society amicus curiae brief in an attempt to curb such abusive litigation against physicians.

The amicus brief argued that Dr. Deno's decisions were made for legitimate reasons, and that he should not have been found liable at all. The main focus of the brief, however, was that the Court of Appeal had created a new cause of action, based on speculative evidence, that allows plaintiffs and their lawyers to avoid the statutory cap on damages in medical negligence suits. The amicus brief cautioned that the Court of Appeal decision was unsound and would seriously undermine the Medical Malpractice Act.

Louisiana Supreme Court brief.

Etkind v. Suarez, 519 S.E. 2d (Ga. 1999)

Also under Professional liability

Outcome:    Very favorable

Issue

The issue in this case was whether Georgia should recognize a cause of action for “wrongful birth.”

AMA interest

The AMA strives to avoid the expansion of liability theories against physicians, which can lead to abusive litigation.

Case summary

Ms. Etkind gave birth to a child afflicted with Down Syndrome.  She contended that Dr. Suarez had negligently failed to perform the necessary medical tests to evaluate potential birth defects, and she sued him for medical malpractice.  The trial court entered judgment for Dr. Suarez on the pleadings, holding that Georgia does not recognize an action for “wrongful birth.”  The case was appealed to the Georgia Court of Appeals, which affirmed.  The case was then appealed to the Georgia Supreme Court.

The Georgia Supreme Court ruled in Dr. Suarez’s favor, affirming both the trial court and the Court of Appeals.

Litigation Center involvement

The Litigation Center, along with the Medical Association of Georgia, filed a brief in the Georgia Supreme Court to support Dr. Suarez.  The brief argued that a child should not be deemed a compensable injury, no matter what the child’s disabilities.  It also asserted that an action for wrongful birth would distort the ordinary physician-patient relationship.

Flor v. Holguin, 9 P.3d 404 (Haw. 2000)

Also under Workers' Compensation

Outcome:    Somewhat favorable

Issue

The issue in this case was whether an employer should be charged under the “last injurious exposure rule” if an employee was unable to determine when and where she contracted a disease.

AMA interest

The AMA strives to avoid the expansion of liability theories against physicians, which can lead to abusive litigation. 

Case summary

A dental hygienist contracted Hepatitis C and sued three dentists to recover workers compensation damages.  She had worked for these dentists over a roughly ten year period.  She was unable to identify when she contracted the disease or which dentist, if any, had employed her when she had contracted it.

On appeal from a denial of workers compensation benefits, the Hawaii Supreme Court recognized Hepatitis C as a compensable occupational disease under the Hawaii workers compensation statute.  The court also ruled that, because of the difficulty of determining when Hepatitis C is contracted and because each exposure “contributes to the progression of the disease,” the court would employ the “last injurious exposure rule” and charge the employer for whom the plaintiff worked at the time of diagnosis with liability for all of plaintiff’s charges.

The defendants petitioned the Hawaii Supreme Court for rehearing.  The court granted in part and denied in part the defendants’ request for rehearing.  The court held that on rehearing the employers would be allowed to present evidence on whether the employee’s continued exposure to the conditions that initially precipitated her hepatitis C infection contributed to or otherwise aggravated the progression of her disease.

Litigation Center involvement

The Litigation Center and the Hawaii Medical Association filed an amicus brief to support the petition for rehearing.  The brief argued that the basic medical assumption underlying the Hawaii Supreme Court’s prior ruling was questionable.  The brief requested that, on remand, the parties be permitted to submit additional evidence on issues concerning aggravation of a preexisting disease.

Foundation Corp. v. Mercer (Cir. Ct. Ohio County, W. Va. 2006)

Also under Anti-tobacco

Outcome:    Very favorable

Issue
The issue in this case was whether a physician could be sued personally for carrying out his official duties as the health officer for a county board of health, by enforcing a board of health ordinance restricting tobacco use in certain public establishments.

AMA interest
The AMA, in keeping with its objective of protecting public health, supports a smoke-free America.

Case summary
The Wheeling-Ohio County [West Virginia] Board of Health passed an ordinance restricting the use of tobacco products in certain public establishments.  A tavern owner objected to both the passage and enforcement of the ordinance and sued the Board of Health’s health officer, Dr. William C. Mercer, in his individual capacity for carrying out his official duties.  As a result, Dr. Mercer had to retain an attorney to defend himself, and had to pay that attorney out of his own pocket. 

The court dismissed the lawsuit in December 2006.

Litigation Center involvement
The Litigation Center and the West Virginia State Medical Association helped pay Dr. Mercer’s legal fees.

Fullerton v. Florida Medical Association, 938 So.2d 587 (Fla. Dist. Ct. App., 1st Dist. 2006)

Also under Expert witnesses and Peer review

Outcome:     Somewhat unfavorable

Issue
The primary issues in this case are (a) whether members of medical societies should be able to consult with those societies if they feel they have been harmed by false expert witness testimony and (b) whether medical societies should be able to investigate physicians who have been accused of giving false expert witness testimony, for the purpose of taking appropriate action.

AMA interest
The AMA supports the right of physicians to consult with their medical societies when they believe they have been harmed by another physician’s false expert witness testimony. The AMA also supports the right of medical societies’ peer review programs to investigate complaints of false expert witness testimony by physicians.

Case summary
The case arose out of expert witness testimony that Dr. John Fullerton had given for the plaintiff in a professional liability suit against three physicians. The court found that the physicians were not liable. Subsequently, these physicians complained to the Florida Medical Association (“FMA”) that Dr. Fullerton's testimony fell "below reasonable standards" and had been provided "for the sole purpose of propagating a frivolous lawsuit for financial gain." They asked FMA to review the testimony under its expert witness peer review program and determine whether it comported with professional standards. They further asked that, if the testimony was found to be substandard, FMA submit its findings to the Florida Board of Medicine for proper disciplinary action.

In response, Dr. Fullerton sued FMA and the three physicians in the Circuit Court of Leon County, Florida. He stated that the defendants-physicians’ assertions were not true and contended that the FMA expert witness peer review program was “intimidating, hindering, and deterring persons, including Plaintiff Fullerton, from appearing as expert witnesses on behalf of plaintiffs in cases involving medical malpractice.” He did not allege, however, that the defendants-physicians' letter of complaint to FMA had been sent in bad faith or that they lacked a reasonable basis for their belief that Dr. Fullerton had testified "below reasonable standards" and in support of a frivolous lawsuit.

The trial court dismissed the lawsuit for failure to state a cause of action but granted Dr. Fullerton the right to file an amended complaint. Dr. Fullerton then filed an amended complaint against only FMA.

A final and appealable judgment was entered in favor of the individual physicians, which Dr. Fullerton appealed. The District Court of Appeal reversed the trial court, finding that neither FMA nor the three physicians were immunized from liability by the state peer review law or the Federal Health Care Quality Improvement Act. In this ruling, the court did not discuss whether the three physicians’ complaint was a non-actionable statement of opinion or whether they were protected under state and federal constitutional guarantees of free expression and free association.

After FMA and the three physicians asked the District Court of Appeal to reconsider its decision, the court entered a revised ruling, which largely restated the court’s earlier decision, but also specified that FMA and the physician defendants would be allowed, on remand to the trial court, to argue a defense based on protections provided by the constitution and case law precedent.

Litigation Center involvement
The Litigation Center contributed to the defense costs of the defendant physicians and filed a brief as amicus curiae to support the individual physician defendants in Dr. Fullerton’s appeal.

District Court of Appeal for the State of Florida brief.

Haralampopoulos v. Kelly, 2014 CO 46 (Colo. 2014)

Outcome:    Very favorable

Issue

The issue in this case was whether, in a medical malpractice case, the trial judge properly allowed the jury to consider if the plaintiff’s use of cocaine contributed to his injury.

AMA interest

The AMA supports state medical societies in combating lawsuit abuse.

Case summary

Vasilios Haralampopoulos went to a hospital emergency room for abdominal pain.  Tests disclosed a cyst on his liver, and the surgeon on call ordered a needle biopsy of the cyst for the following day.  Mauricio Waintrub, MD, the internist on call, took Mr. Haralampopoulos’s medical history and admitted him for the biopsy.

The following day, Jason L. Kelly, MD, an interventional radiologist, performed the needle biopsy.  Shortly after the cyst was pierced, Mr. Haralampopoulos suffered a severe allergic reaction, went into cardiac arrest, and stopped breathing.  Before he could be revived, he suffered permanent brain injury.  Dr. Kelly did not know what caused the allergic reaction.

About two weeks after this incident, Mr. Haralampopoulos’s former girlfriend contacted Dr. Kelly.  She told him that Mr. Haralampopoulos had used cocaine recreationally, including around the time of his emergency room visit.

The guardian for Mr. Haralampopoulos sued Drs. Kelly and Waintrub for medical malpractice.  According to the complaint, Dr. Waintrub was negligent in not ordering tests or consulting a specialist before admitting Mr. Haralampopoulos for the needle biopsy.  The complaint also alleged that Dr. Kelly was negligent in failing to consider the cause of the cyst and performing the biopsy without taking the appropriate precautions against an allergic reaction.

In a deposition, the guardian testified that, although he had never seen Mr. Haralampopoulos use cocaine, during the 1990s some mutual acquaintances had told him that Mr. Haralampopoulos was a cocaine user.  By a motion in limine and then during the course of the trial, the guardian objected to testimony about Mr. Haralampopoulos’s cocaine use.  The objection was denied, and evidence of the cocaine use was presented to the jury.

The defense experts testified that cocaine is a known cause of cardiac arrest and Mr. Haralampopoulos’s cocaine use was the most likely explanation for his injuries.  The jury entered a judgment for the defendants.

The guardian for Mr. Haralampopoulos appealed to the Colorado Court of Appeals.  The principal question on appeal was whether the trial judge had correctly allowed evidence of Mr. Haralampopoulos’s cocaine use.  In a split decision, the Court of Appeals ruled that the trial court had abused its discretion by allowing that evidence. 

Dr. Kelly appealed to the Colorado Supreme Court which reversed the Court of Appeals and remanded to the trial court to enter judgment for the defendants.  The Supreme Court held that evidence used to make a medical diagnosis is admissible, even if the diagnosis does not lead to a decision regarding treatment.  As a result, Mr. Haralampopoulos was at least partially responsible for the adverse medical outcome that resulted from his own unhealthy behavior.

Litigation Center involvement

The Litigation Center, along with the Colorado Medical Society, filed an amicus brief in the Colorado Supreme Court, to urge it to accept review.  In addition, the Litigation Center and CMS filed an amicus brief on the merits.

Colorado Supreme Court brief regarding the petition for discretionary review

Colorado Supreme Court brief regarding the merits

Heinrich v. Sweet, 308 F.3d 48 (1st Cir. 2002)

Also under Clinical trials, Informed consent, and Professional liability

Outcome:     Very favorable

Issues
The primary issues in this case were (a) whether the district court correctly applied the Massachusetts statute of limitations to uphold a jury’s finding of liability against Dr. William Sweet based on actions that occurred almost forty years prior to trial, and (b) whether a jury’s finding of informed consent should have precluded a simultaneous verdict of fraudulent concealment.

AMA interest
The AMA strives to avoid the expansion of liability theories against physicians, which can lead to abusive malpractice litigation.

Case summary
Dr. Sweet, a world famous physician, was the chief neurosurgeon at Massachusetts General Hospital (“MGH”). In the late 1950’s and the early 1960’s, he conducted a medical experiment, known as boron neutron capture therapy. The experiment was approved in advance by the Executive Committee of the MGH Medical Staff, the MGH Board of Trustees, and the Biomedical Advisory Committee at Massachusetts Institute of Technology (“MIT”) (composed of representatives of MIT and seven other prestigious institutions, including three Boston area medical schools). Candidates for the experiment were terminally ill patients with fast growing brain tumors. After their injection with boron, a neutron beam, derived from an MIT nuclear reactor irradiated these patients. Both MGH and MIT closely supervised the clinical trials, which the federal government partially funded and also monitored.

Unfortunately, the procedure was, at least at times, painful. Moreover, the radiation damaged healthy brain tissue as well as the tumors. Ultimately, the experiment was unsuccessful, and all of the patients died.

In 1995, the President’s Advisory Committee on Human Radiation Experiments issued an analysis of human radiation testing commencing in the 1940’s. When the study was reported in the media, Evelyn Heinrich, the widow of George Heinrich, remembered that Dr. Sweet had conducted radiation treatments on her husband in 1961. She sued Dr. Sweet, MGH, MIT, the United States of America, and several other defendants. After she filed suit, she was joined by Henry M. Sienkewicz, the son of another of Dr. Sweet’s patients, Eileen Sienkewicz. The plaintiffs contended that, although Dr. Sweet may have advised his patients of the risks of the procedure, he did not tell them that the experiment was unproven and had no reasonable probability of success. Thus, the plaintiffs alleged that either the procedure itself or the manner in which it was performed was negligent. Dr. Sweet was 89 years old and suffering from Parkinson’s Disease at the time of trial, so he did not testify in his own behalf. He died shortly thereafter.

After a twenty-day trial, most of the defendants were either dismissed on motion or found not liable. However, the jury found in favor of the plaintiffs and against Dr. Sweet for $4,750,000. A portion of this sum was compensatory damages, and a portion was punitive damages. The jury did find, though, that the patients’ consent to the procedure had been informed. The trial court upheld the finding of liability against Dr. Sweet, summing up the case against him as follows:

“In short, Sweet well knew during his care of these patients that his [boron neutron capture therapy] treatments were not helping them, and, in fact, were causing severe side effects unrelated to the progressive effect of the fatal brain tumors. He pressed ahead anyway, believing in complete good faith that such experimentation on dying patients held out hope for other cancer victims.”

Due to certain statutory limitations, the court reduced the award against Dr. Sweet to $830,000. Judgment was also entered against MGH. Both sides appealed.

The United States Court of Appeals for the First Circuit reversed. It held, primarily, that the evidence against the defendants was insufficient to prove negligence or damages for wrongful death. The plaintiffs’ case was built upon the conclusions that they reached in hindsight, rather than the state of medical science available at the time of the experiments. The court also agreed with the argument, raised in the amicus brief, that the jury verdicts for the defendants on the informed consent count precluded liability on the other counts.

Litigation Center involvement
The Litigation Center and the Massachusetts Medical Society filed an amicus curiae brief on Dr. Sweet’s behalf in the First Circuit.

United States Court of Appeals for the First Circuit brief.

IHHI v. Fitzgibbons, 140 Cal. App. 4th 515, 44 Cal. Rptr.3d 517 (Cal. Ct. App. 2006)

Also under Physician advocacySLAPP laws

Outcome:    Very favorable

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.

California Court of Appeal brief

In Re: Breast Implant Product Liability Litigation, 331 S.C., 540, 503 S.E.2d 445 (1998)

Outcome:    Very favorable

Issue

The issue in this case was whether physicians could be held strictly liable under a products liability theory for implanting defective medical products or devices in the course of treating their patients.

AMA interest

The AMA seeks to prevent abusive litigation against physicians.

Case summary and Litigation Center involvement

amicus curiae brief in the South Carolina Supreme Court in connection with consolidated products liability cases involving breast implants.  Amici challenged a lower court finding that physicians and institutional health care providers are sellers of materials and devices used in the provision of health care services and, therefore, may be held strictly liable for medical product defects.

The Supreme Court ruled consistently with the Litigation Center position.

Jeffs v. West, 275 P.3d 228 (Utah 2012)

Also under Professional Liability

Outcome:    Very unfavorable

Issue

The issue in this case was whether physicians owe a duty to their patients’ children, which can be breached through inappropriate care to their patients.

AMA interest

The AMA strives to avoid the expansion of liability theories against physicians, which can lead to abusive malpractice litigation.

Case summary

According to the complaint filed in this lawsuit, a patient was treated for psychiatric problems at a medical clinic.  He was seen by an advanced family nurse practitioner, who prescribed a cocktail of seven psychotropic drugs, including stimulants, tranquilizers, antidepressants and steroids.  Although Utah law requires that a physician must supervise and consult with a nurse practitioner before prescribing drugs of this nature, the physician in charge of the clinic neither supervised nor consulted with the nurse practitioner, and he failed to monitor the nurse practitioner’s treatment of the patient.

During his visits to the clinic, the patient displayed “toxic side effects” from the combined medications.  Furthermore, he advised the nurse practitioner that he was having marital problems and his wife had had a legal restraining order entered against him.  However, the nurse practitioner continued to prescribe the drug cocktail without consulting the supervising physician.  Under the circumstances, continuation of the drug cocktail was medically inappropriate.

Ultimately, the patient shot and killed his wife in a church parking lot, in daylight and in front of several witnesses.  Within two hours of the shooting, the patient turned himself in to the police.  Blood toxicology reports showed that the patient was within the prescribed ranges of all his medications and he had no illicit substances in his blood stream at the time of the shooting.  A causal factor of the shooting was the administration of the drug cocktail and the failure of the nurse practitioner, the supervising physician, and the clinic to provide alternative psychiatric care.  The patient subsequently pleaded guilty to and was convicted of murder.

The patient’s minor children (who were also the victim’s children), through their guardian, sued the nurse practitioner, the supervising physician, and the clinic.  The defendants moved to dismiss, asserting that their legal duty was solely to the patient and not the children.  The trial court granted the defendants’ motion, and the children have appealed to the Utah Supreme Court.  The primary legal question on appeal is whether the defendants owed a common law legal duty to the children to provide proper medical care to their father.

On February 28, 2012, the Utah Supreme Court found that the medical care providers did owe a duty of care to their patients’ children.  The Court emphasized that, under the pleadings, the defendants’ affirmative actions of misprescribing medicine had caused their patient’s psychotic reaction, and the defendants should be responsible for the injury they had caused.  The case was reversed and remanded.

Litigation Center involvement

The Litigation Center, along with the Utah Medical Association and other health care organizations, filed an amicus curiae brief, arguing that physicians should not owe a duty to their patients’ children on account of the medical care the physicians provide to their patients.

Utah Supreme Court brief

McLeod v. Mt. Sinai Medical Center, 876 N.E.2d 1201 (Ohio 2007)

Also under Professional liability

Outcome:    Very favorable

Issue
The issue in this case is whether the trial court had the right to order a new trial based on a plaintiff's lawyer's misconduct.

AMA interest
The AMA supports curbs on abusive litigation against physicians.

Case summary
In a medical malpractice suit claiming injuries arising during childbirth, a highly flamboyant plaintiff's lawyer persuaded a jury to award $30 million in damages. Half of these damages were based on non-economic factors. After the jury rendered its verdict, the trial judge ordered a new trial, finding that the jury's award had been excessive and given "under the influence of passion and prejudice."

The plaintiffs appealed to the Cuyahoga County Court of Appeals, which reversed the trial court's order. Defendants then appealed to the Ohio Supreme Court, which reinstated the trial court order of a new trial. The Ohio Supreme Court found that there was competent, credible evidence to support the trial court's decision.

Litigation Center involvement
The AMA, along with the Ohio State Medical Association, filed an amicus curiae brief supporting the trial court's mistrial order. It emphasized the harm to health care that can arise from excessive judgments in medical malpractice lawsuits, as well as the harm to the system of justice that can arise from allowing over-zealous attorneys to make prejudicial statements to juries.

Ohio Supreme Court brief.

Molloy v. Meier, 679 N.W.2d 711 (Minn. 2004)

Also under Professional liability

Outcome:    Very unfavorable

Issues
The issues in this case were the legal duties a pediatrician owes to a patient's mother and the accrual, under the Minnesota Statute of Limitations, of a cause of action for "wrongful conception."

AMA interest
The AMA seeks to avoid abusive litigation against physicians.

Case summary
This medical malpractice suit was brought against a pediatrician who allegedly failed to test for a genetic abnormality in one of her patients. More than five years after the alleged misdiagnosis, the patient's mother conceived another child, who, after birth, was found to suffer from the same genetic abnormality. The Minnesota Court of Appeals found, on the pleadings, in favor of the patient's mother. The case was then appealed to the Minnesota Supreme Court, which affirmed.

Litigation Center involvement
The Litigation Center, along with the Minnesota Medical Association and two other not-for-profit organizations, filed an amicus curiae brief on the pediatrician's behalf.

Minnesota Supreme Court brief.

Stewart v. Gibson, 508 F.3d 225 (5th Cir. 2007)

Outcome:     Very favorable

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.

Sullivan v. DeJong (Ill. App. Ct. 2003)

Also under Affidavit of merit, Certificate of merit, Expert witnessesProfessional liability, and Tort reform

Outcome:    Somewhat unfavorable

Issue
The issue in this case was whether a physician who has been sued for medical malpractice pursuant to the certification of another physician can learn the identity of the physician who certified that he committed the alleged malpractice.

AMA interest
The AMA strives to avoid the expansion of liability theories against physicians, which can lead to abusive malpractice litigation.

Case summary
William Sullivan, D.O. was an emergency room physician. When Mary Weiland was seriously injured in an automobile accident, she was brought to the hospital emergency room and was immediately attended by the hospital’s trauma team, which did not include Dr. Sullivan. Due to various medical complications, the trauma team was unable to insert an intravenous needle in Mrs. Weiland. Because Dr. Sullivan was experienced in obtaining the necessary central venous access, the trauma team asked him to insert an emergency central venous catheter in her. He did this successfully. That was the only procedure he had been asked to perform for Mrs. Weiland. Subsequently, Mrs. Weiland died.

Mrs. Weiland’s estate then brought a wrongful death action against ten osteopathic physicians (including Dr. Sullivan), one allopathic physician (i.e., an M.D.), two nurses, and the hospital. The estate alleged that Dr. Sullivan and the other physicians had failed to (i) diagnose that she had been suffering from internal bleeding, (ii) interpret her CT scan properly, (iii) appreciate the signs and symptoms of shock, and (iv) perform necessary surgery and other treatments relating to her bleeding.

Pursuant to Illinois law, 735 ILCS § 5/2-622, Mrs. Weiland’s estate affixed a statement to the complaint, allegedly signed by an experienced trauma surgeon, which asserted that “a reasonable and meritorious cause exists for filing a suit against [the physicians and the hospital] for failing to appreciate the signs and symptoms of hypovolemic shock, and of internal bleeding, and for failing to surgically repair the bleeding.” Also pursuant to Illinois law, the trauma surgeon’s name was not shown on the report.

The trial court dismissed most of the defendant physicians on motion. The plaintiff’s law firm offered to dismiss Dr. Sullivan voluntarily, without prejudice (i.e., leaving open the possibility of plaintiff filing another suit against him), but Dr. Sullivan refused. He said that he was going to be dismissed with prejudice (i.e., foreclosing the possibility of a similar future lawsuit) or not at all.

Dr. Sullivan then filed an affidavit and a motion to be dismissed from the Weiland case. He stated that, although he had been the hospital emergency physician on duty, Mrs. Weiland was not primarily his patient. Rather, she was considered a “trauma code” patient. Trauma code patients are registered under the trauma service attending physician and are exclusively managed by the trauma team. Upon presentation of the affidavit, the trial court dismissed Dr. Sullivan with prejudice.

Dr. Sullivan, acting as his own attorney, then sued Mrs. Weiland’s lawyer for malicious prosecution. He also sued “Dr. Doe,” the unnamed trauma surgeon. His complaint charged that, had Dr. Doe properly investigated the medical records and the circumstances surrounding Mrs. Weiland’s emergency department care, he would have seen that the allegations raised against Dr. Sullivan and at least four of the other physicians were made without reasonable cause. He also alleged that Dr. Doe’s report had been made in reckless disregard for the truth, and “in bad faith.” According to Dr. Sullivan, an experienced trauma surgeon should have recognized that he was not a part of the trauma team, and that his role in Mrs. Weiland’s care was, under accepted medical practice, limited to the insertion of the intravenous catheter. Further, Dr. Sullivan alleged that had he attempted to make the diagnoses and perform the surgery that Dr. Doe claims he should have provided, it would have interfered with Ms. Weiland’s care.

After he filed his complaint, Dr. Sullivan filed a verified petition for discovery, as part of the same lawsuit. In this petition, he indicated that he had asked Mrs. Weiland’s law firm to disclose Dr. Doe’s identity but the law firm had refused to do so. Mrs. Weiland’s law firm moved to dismiss the complaint and the petition for discovery, and the trial court granted the motion.

Dr. Sullivan appealed. His appellate brief concentrated on his right to learn Dr. Doe’s identity, so that he could ascertain whether Dr. Doe was, in fact, an experienced trauma surgeon and whether Dr. Doe had some basis for his charge that Dr. Sullivan had failed to care properly for Mrs. Weiland.

Mrs. Weiland's former attorney filed an answer brief, and the Illinois Trial Lawyers Association filed an amicus curiae brief opposing Dr. Sullivan. Dr. Sullivan then filed a reply brief.

The Illinois Appellate Court, without hearing oral argument, affirmed the trial court decision against Dr. Sullivan. In an extensive and carefully worded decision, it held that his legal arguments were essentially correct, but he had not been sufficiently specific in his factual statements to the lower court. Thus, Dr. Sullivan was correct in principle, but he lost on a procedural technicality. If the opinion were to be published, it would essentially serve as a blueprint for how Illinois physicians can sue an expert witness who signed a certificate of merit in bad faith. A physician then would be able to use more effectively Dr. Sullivan’s general legal theories in the setting forth of facts.

However, the Illinois Appellate Court issued its order in an unpublished format, so the decision is neither known to the legal or medical community nor citable as precedent in other cases. Dr. Sullivan filed a motion for reconsideration, urging the Appellate Court to publish its order, but that motion was denied.

Litigation Center involvement
The Litigation Center engaged an experienced lawyer to represent Dr. Sullivan in his appeal.

United States v. Vargo (D. Mont.)

Also under Fraud and abuse

Outcome:    Somewhat favorable

Issue

 

The issue in this case was whether a physician had knowingly over-billed for medical services.

AMA interest

The AMA strives to avoid the expansion of liability theories against physicians, which can lead to overzealous and abusive litigation.

Case summary

This civil False Claims Act case contended that Dr. Patsy Vargo knowingly over-billed the United States Air Force for medical services performed on an independent contractor basis for four years. The United States previously had brought a criminal suit against Dr. Vargo for the same activities, but voluntarily dropped the criminal charges after it hired an independent medical expert, Dr. Glenn D. Littenberg, to review Dr. Vargo's records. Dr. Littenberg, a long time member of the AMA's Current Procedural Technology panel, determined that Dr. Vargo had complied with the regulations in effect and billed properly for her services.

In the civil suit, Dr. Vargo retained Dr. Littenberg as her expert, but the prosecution hired its own experts to oppose him. Dr. Vargo also obtained a number of written testimonials from physicians who worked with her and, in some cases, in more senior positions, while she rendered her services.

The case ultimately settled, pursuant to a confidential settlement agreement and an undisclosed payment from Dr. Vargo.

Litigation Center involvement

The Litigation Center paid a small portion of Dr. Vargo's defense costs. Although the monetary contribution was modest, the Litigation Center wanted Dr. Vargo and others to know that her fellow physicians supported her.

Williamson v. Liptzin, 539 S.E.2d 313 (N.C. App. 2000)

Outcome:    Very favorable

Issue

The issue in this case was whether a psychiatrist, who prior to his retirement was unsuccessful in persuading a mentally ill patient to continue psychiatric treatment with another physician, was liable for that patient’s subsequent psychotic episode during which he wounded and killed others in a shooting incident.

AMA interest

The AMA seeks to avoid the expansion of liability theories against physicians, which can lead to abusive litigation.

Case summary

Williamson was a student at the University of North Carolina Law School.  The law school dean referred him to Dr. Liptzin, a psychiatrist at the university’s student health clinic.  Dr. Liptzin saw Williamson for six sessions, which appear to have been the maximum allowable under the rules of the student health clinic.  He prescribed medication for Williamson, but the course of treatment was generally unremarkable.  In fact, as a result of the treatment sessions, Williamson’s grades improved substantially.  It was apparent, though, that Williamson was delusional and probably psychotic.

The treatment sessions drew to a close at the end of the semester, and Dr. Liptzin mentioned to Williamson, as he had done previously, that he was retiring and could no longer continue as his psychiatrist.  Dr. Liptzin recommended to Williamson that he continue the medication and that he see another psychiatrist.  He offered to suggest a referral, but Williamson said that he was unsure of where he would be spending the summer and did not pursue this.

Williamson did not follow Dr. Liptzin’s advice.  He discontinued his medication, and he did not see another psychiatrist.  Eight months later, he became profoundly psychotic and shot four people, killing two of them.  He was arrested after a shoot-out with police.  Ultimately, he was found not guilty by reason of insanity.  He is now committed to a state-run psychiatric hospital.

Williamson sued Dr. Liptzin, contending that Dr. Liptzin abruptly and unreasonably terminated the relationship without sufficiently stressing the need for continuing treatment and medication.  He claimed that, as a result of his involuntary commitment, he is unable to practice law and has thus suffered an impairment of his normal activities.  He also sought damages for a minor bullet wound in his leg, incurred during his gunfight with the police before his arrest.

The jury awarded Williamson $500,000, and the lower court entered judgment on that verdict.  Dr. Liptzin appealed.

The North Carolina Court of Appeals entered an order that sent the case back to the trial court, directing it to enter a judgment for the defendant.  The Court of Appeals reviewed the expert testimony rendered at trial and determined that Williamson had failed to prove that defendant could have foreseen the injuries to others, and to plaintiff, in the course of treating defendant.  In the absence of proof that the injuries were foreseeable, the court held, plaintiff had failed to prove that defendant was negligent.

Litigation Center involvement

On appeal before the North Carolina Court of Appeals, the Litigation Center joined an amicus brief of the American Psychiatric Association, the North Carolina Medical Society, and the North Carolina Psychiatric Association on Dr. Liptzin’s behalf.