More competition pits doctor against doctor

In the Courts. By Tanya Albert, amednews staff. March 10, 2003.

IN THE COURTS

Analyzing the impact of recent court decisions on physicians

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It's not only patients who are dragging physicians to the courthouse.

Increasingly, lawsuits filed by colleagues are taking doctors out of the exam room and into the courtroom.

Take, for instance, a recent defamation case that the Massachusetts Supreme Judicial Court ruled can go to trial: Veronica Ravnikar, MD, v. Sergei Bogojavlensky, MD.

Dr. Ravnikar, a reproductive endocrinologist, claims in court documents that Dr. Bogojavlensky, a gynecologist, bad-mouthed her to a patient. The patient told Dr. Bogojavlensky on her first visit to him that she was looking for a new gynecologist. She mentioned that she also planned to see Dr. Ravnikar.

Dr. Bogojavlensky, according to court documents, responded: "Oh, she's dying of breast cancer. It's such a shame. She's a young woman."

The patient said she planned to see Dr. Ravnikar anyway. According to the documents, Dr. Bogojavlensky then told the patient Dr. Ravnikar's condition was "terminal."

Dr. Ravnikar heard about the alleged statements when the patient came to her office for her appointment, according to court documents. Dr. Ravnikar was diagnosed with breast cancer in 1995 and was treated successfully.

Although Dr. Bogojavlensky had heard that Dr. Ravnikar had breast cancer, he had no reason to believe that she was terminally ill, court documents show.

Dr. Ravnikar is suing for defamation of character, invasion of privacy, unfair competition and intentional interference with business relations.

Neither lawyer for the doctors would comment on the case.

But according to court documents, Dr. Bogojavlensky asked the court to throw out the lawsuit, claiming there isn't any evidence that Dr. Ravnikar lost any business or suffered other monetary damages because of the alleged comments.

Dr. Ravnikar doesn't deny that, but she says the comments could have prejudiced her medical practice.

In February, the highest court in Massachusetts agreed with Dr. Ravnikar and said the case could proceed.

"A statement that a physician is terminally ill carries the natural inferences that death is not far off and that the physician will be distracted by her medical condition and its treatment," the court said.

"A potential patient hearing such a statement could quite reasonably conclude that any relationship formed with that physician would necessarily be a brief one, and, while the relationship lasts, that the physician's ability to provide care would be impaired."

The court said that could hurt a physician's practice because patients chose doctors they believe they can rely on for quality care for years to come.

"Today, physicians compete for patients just as businesspeople compete for customers, and a doctor who cannot offer stable and reliable care to her patients faces the same competitive disadvantage as any other businessperson," the court concluded.

A brave new world

That last statement by the court, legal experts say, nails one of two reasons behind an explosion of cases pitting physician against physician: Increasing competition for patients and a greater chance of facing disciplinary action.

There are no statistics defining how much more common it has become for physicians to sue colleagues, but health lawyers say anecdotal evidence indicates the number of lawsuits has been increasing since the mid-1990s.

"I hardly saw any of these in the '70s, '80s or early '90s," said health lawyer Kelly Testolin, a partner with Hale Lane in Reno, Nev. "That's not to say there weren't any, but I didn't see people taking action as often."

Medicine has always been a business, but as managed care has stepped in, larger physician groups have formed, and reimbursement rates have fallen, business principles are often applied to medicine in ways unheard of in the past.

Also, disciplinary boards are more likely to take action against physicians than they once were.

"It used to be that if you were bad-mouthed by a peer, you let it run its course and it would die out because people knew your reputation," Testolin said. "But you can't do that anymore, now there are consequences."

In addition to defamation cases, Joe Zumpano, managing partner of the Miami-based Ferrell Schultz Carter Zumpano & Fertel and chair of the firm's health care practice, has identified six other common reasons for physicians suing other physicians.

Qui tam: Whistle-blower cases can involve a physician suing another physician or practice in the belief that fraud is taking place or that some other law is being violated; for example, fraudulent billing of Medicare.
Antitrust: Lawsuits occur when a group or an individual physician believes another group or physician is being anticompetitive; for example, locking colleagues out of a hospital staff.
Practice acquisitions: Some practices acquired by larger groups in the 1990s have sued to remove their practice from the group, saying it didn't live up to the original agreement.
Practice breakups: Physicians go to court when they can't settle differences over divvying up the practice.
Management arrangements: Doctors in the 1990s entered into management agreements -- sometimes with a management company owned by other physicians -- and later wanted to get out of the agreement because they decided it wasn't worth it.
Restrictive covenants: Clauses in contracts that establish noncompete, nonsolicitation and confidentiality agreements are subject to dispute.

Negative effects

Restrictive covenant lawsuits are where Dallas-based, board-certified health attorney Bruce F. Howell has seen the greatest activity.

While Howell says that confidentiality agreements to protect computer programs or other competitive advantages that one physician group might have over another physician group are fair clauses in contracts, he questions whether noncompete clauses belong in physician agreements.

Howell believes that such clauses hurt the practice of medicine more than help it.

"Groups are seeking to protect their market when they put a noncompete in a contract," said Howell, a partner at Arter & Hadden in Dallas. "But the flaw in that is that most people regard their physician as a personal choice."

Howell said the physician-patient relationship shouldn't have the same protection that technology-based businesses have.

"We are not talking about widgets being produced only by company X that someone can go across the street and reproduce," Howell said. "We are talking about patient care. Medicine is a business, but at the same time you have to look at patient care."

If patient care isn't considered, Howell said, medicine suffers.

Zumpano agrees and says that the increased lawsuits filed by physicians against physicians aren't good for the practice of medicine.

"It's a distraction to doctors," he said, "and there is an increased cost to patients."

The new trend also brings about inefficiencies.

Zumpano said that in the golden age of medicine, referrals were based on camaraderie and mutual respect. The referrals and other interactions weren't subject to the pressure of lawsuits.

The atmosphere is different now and Zumpano -- the son of a physician -- isn't optimistic about the future.

"I see it getting worse," he said. "Organizations like the American Medical Association and the state medical associations and other public interest groups that represent physicians are key to the future in trying to promote a message that creates commonality and respect among doctors."

Without a change in the newly emerged culture, physicians will be spending more time in the courtroom than in the exam room.

Albert is a staff writer covering legal issues.