Lawyer who sued wrong physician won't pay up

The doctor won his attorney's fees back, but the plaintiff's lawyer is appealing.

By Amy Lynn Sorrel, AMNews staff. Oct. 22/29, 2007.

A Mississippi plaintiff lawyer sued the wrong physician in a medical liability case, but the doctor says he's the one paying the price.

Court documents show that Lawrence E. Stewart, MD, a McComb, Miss., otolaryngologist, was confused with his deceased father, Edsel F. Stewart, MD. His father was an obstetrician/gynecologist who practiced in the same town. He died in 1999.

The younger Dr. Stewart said he didn't think twice when he was first served with a lawsuit in 2002. It alleged that he prescribed the nasal spray Stadol to Sarah N. Ratliff and neglected to inform her of the drug's addictive risks.

"I didn't really worry about it because I had a pretty ironclad defense: I didn't even treat this person and never prescribed this drug before," Dr. Stewart said. "I was pretty sure I was going to win this."

Dr. Stewart said he had been wrongfully sued before in a flurry of class-action pharmaceutical lawsuits filed just before Mississippi enacted tort reform to curb the mass litigation. In the past, it usually took no more than a phone call or written notice to resolve the mistake. But this time, "neither phone calls, nor letters, nor notarized affidavits to the court helped," Dr. Stewart said.

Instead, he spent the next year defending himself because plaintiff attorney Charles E. Gibson III of Ridgeland, Miss., failed to drop him from the case voluntarily. Because Dr. Stewart's medical liability insurance policy had a $10,000 deductible, he was forced to pay $6,100 of his own money to cover the cost of dismissing himself from the suit. He won a preliminary victory in 2004, when the U.S. District Court for the Southern District of Mississippi granted his request and ordered Gibson to pay his legal fees.