Courts shouldn’t interfere with physician’s choice of lawyer

Tanya Albert Henry , Contributing News Writer

If an appellate court decision is allowed to stand, Pennsylvania physicians in medical liability cases would be susceptible to not being able to hire the lawyer they want to represent them.

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The Pennsylvania Superior Court in 2022 ruled that a law firm representing an anesthesiologist in a medical liability case stemming from a knee surgery could not also represent the orthopaedic surgeon who performed the surgery in a deposition that the patient’s lawyer was taking.

The Litigation Center of the American Medical Association and State Medical Societies and the Pennsylvania Medical Society (PAMED) filed an amicus brief in the case, Mertis v. Oh, that urges the Pennsylvania Supreme Court to hear a case appealing the appellate decision. The physician organizations say the appellate decision sets a bad precedent, unreasonably restricting physicians’ constitutional right.

“It upends physicians’ ability to have the lawyer of their choice at their side when their livelihood and professional reputations are at stake,” the brief says. “The Court should allow appeal to stop the widespread, potentially deleterious effects of the Superior Court’s precedential decision.”

Find out more about the cases in which the AMA Litigation Center is providing assistance and learn about the Litigation Center’s case-selection criteria.

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Pennsylvania patient Bobbi Ann Mertis filed a lawsuit against anesthesiologist Dong-Joon Oh, MD, after knee surgery. She did not name her orthopaedic surgeon, Eugene Kim, MD, in the lawsuit, but she criticized his care in a public court filing.

When plaintiffs asked Dr. Kim to give a deposition, he asked a lawyer who previously represented him to be his attorney. That attorney was part of the firm also representing Dr. Oh. Mertis asked the court to not allow the attorney to also represent Dr. Kim, arguing the court should “mechanically enforce the ‘purpose and spirit,’ or the ‘spirit and policy’” of the Pennsylvania procedural discovery rule, Rule 4003.6.

The trial court said there was no reason the law firm couldn’t represent both physicians; however, on appeal, the Pennsylvania Superior Court agreed with Mertis and ruled that the lawyer couldn’t represent Dr. Kim. It interpreted the rule to require that different law firms represent a non-party treating physician and a defendant treating physician.

The AMA Litigation Center and PAMED brief says the ruling didn’t use the rule’s text to support its decision and cited no other authority to support that interpretation. Further, the brief said, courts must apply the rule’s plain text “and by its plain, simple text, Rule 4003.6 does not prohibit the same attorney from representing a physician-defendant and a physician-non-party in the same lawsuit.”

“Discovery rules are just that: rules about discovery in civil actions. They do not, by their terms, govern attorney ethics or when and how an attorney may represent multiple clients in litigation,” says the brief.

The ruling sets precedent for “absurd results,” physicians tell the court, noting that patients often encounter multiple medical professionals, even in simple medical care. They say the decision would prevent the same attorneys from representing two treating physician-defendants.

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Beyond the legal reasons, the brief outlines five reasons it’s particularly important for the court to not interfere with a physician choosing their attorney:

  • Medical liability litigation is a specialized field with specialized substantive and procedural rules, along with specialized attorneys.
  • Pennsylvania law includes statutes that only apply to medical malpractice litigation, including the Medical Care Availability and Reduction of Error Act.
  • Physicians implicated in lawsuits have a lot at stake. Beyond the stress of litigation, a meritless malpractice claim can raise a physician’s liability insurance premiums.
  • Physicians are essential in providing care, often life or death care, to people.
  • The road to becoming a physician is an investment. It requires years of studying and testing, followed by the long hours of a residency where trainees are paid less than attending physicians or general practitioners.

Malpractice claims threaten a physician’s investment “and expose physicians to ignominy and loss of livelihood,” the brief says. “Physicians have a vested interest in aggressively defending against those claims. Physicians also have many reasons to want a good lawyer, a lawyer who specializes in medical malpractice, a lawyer who they know and trust.”