With their hands basically tied, what doctors didn't have in many states until recently, was the ability to counter sue to win back at least their legal fees after successfully defending a malpractice litigation. It took decades to make changes to tort law, as most congressman lawmakers when not working in congress, are attorneys making money in "trial law". So they always slanted the law toward the consumer to guaranty their cash flow. Yeah, I know!
Remember that most lawsuits are pursued by most people because there is little or no financial risk to them. Almost all trial lawyers accept tort lawsuits on a contingency fee. Basically telling the so called plaintiff that they pay nothing until the lawsuit is won. These fees are usually in the range of 30% to 50% of the award. So when a person happens to win a large award, say 4 million dollars, the attorney just made 2 million.
But remember, even legitimate malpractice cases are usually not won by the plaintiff. Doctors win malpractice law suits brought against them, 80% of the time, but have to assume all risk, paying for attorney fees up front in the tens of thousands. Yes, they still end up losing large sums of money just defending themselves, let alone lost work hours, as well as stress to their practices, families, and reputations.
The other fact you need to realize, is that we doctors have a red flag anyone can see. Yeah, it's called millions of dollars of malpractice insurance money that consumers and lawyers are drooling to get there hands on. They can see it, so they go after it.
Many people do not know that 25 years ago, to press their point that many malpractice cases were pursued in this regard, many doctors in "lawsuit crazy" Florida, went bare (no malpractice insurance). Many physicians and surgeons in high risk practices (Obstetrics and Neurosurgery) who averaged 4 to 5 malpractice suits a year, stated that after they went bare, they were no longer sued.
This move created a huge shift in attitudes in Florida, calling for tort reform immediately. Don't get me going about what goes on in Florida.
Today, if you sue a doctor and lose, you will face a counter suit. The result? Now the doctor owns your house, your car, your boat, and your first born. That's right! So if you go after a doctor to get in on "the medical lottery", you better know what you're doing, because the doctors have more money than you do, and will hire attorneys who will eat your lawyer for supper.
Frivolous lawsuits are a different animal all together, and tax both the legal community and the doctor community to absolutely unbelievable limits. Read on.
Physicians have long complained about
frivolous malpractice lawsuits. The assault on their reputations and the
emotional upheaval they face can be traumatic even when the lawsuit is
The situation has improved to a degree,
but baseless lawsuits still happen. As long as there is larceny in the human
heart and an expert witness willing to advance ridiculous theories in court,
they'll always exist.
Most states now require plaintiffs to
submit an affidavit from an expert witness that a physician's treatment fell
below the accepted standard of care before they can file suit. That has
drastically cut down the number of frivolous cases, say defense attorneys and
Experienced plaintiffs' attorneys say
that they must spend $50,000-$75,000 in expenses long before trial to secure
and review medical records and expert testimony. "We can't afford to file
frivolous cases," said Armand Leone, MD, a radiologist and attorney in
Glen Rock, New Jersey. "We'd go out of business."
Although frivolous cases have declined
significantly, they still exist, and some are truly outrageous. Some of the
wildest examples are new, and some are decades old. We've compiled some
notorious cases; some boggle the mind that they were ever even brought against
a physician. See whether you agree.
Patient Who Cut Off His Hand
One historical case that is surely the
most bizarre that we found "was so idiotic that it defies belief,"
said veteran defense attorney John R. Fitzpatrick of Denver.
A construction worker with a long psychiatric
history claimed that he saw a "666, the sign of the devil" on his
right hand. To rid himself of this perceived demonic possession, he used a
power saw to slice the hand off at the wrist. Horrified workers at the
construction site packed the severed hand in ice, which was transported by
helicopter along with the patient, Thomas Passmore, to Sentara Norfolk General
Hospital in Virginia. The incident took place in 1997.
Hand surgeon Tad Grenga, MD, was called
in to attempt to reattach the hand. Even though the patient seemed coherent
when he gave consent for the operation, Dr. Grenga asked for a consult from a
psychiatrist, who said the patient had the legal mental capacity to consent.
The patient was prepped for surgery and
given sedatives. Just as he was being wheeled into the operating room, he
changed his mind. "He said that if Dr. Grenga reattached his hand, he'd
cut it off again," Fitzpatrick said.
Dr. Grenga again called for the
psychiatrist, who found that the sedatives hadn't impaired the patient's
capacity to give or withdraw consent. "The operation needed to be
performed as soon as possible for any chance of success, and Dr. Grenga knew
that self-mutilators have a high propensity to do it again," said the
"The surgeon and a hospital risk
manager asked a local judge for advice," said Fitzpatrick. "The judge
said that as long as a psychiatrist certified that Passmore was competent, Dr.
Grenga couldn't perform the operation against the man's will. If he did, he
could be charged with criminal assault, and sued civilly as well."
Dr. Grenga told the patient that
delaying the operation would mean the hand could never be reattached, but the
patient again refused consent. The surgeon then closed up the wound.
The patient soon consulted an attorney
and announced that he would sue the surgeon and hospital for $3 million. His
legal theory: The doctor should have known that he was psychotic and therefore
didn't have the capacity to give or withdraw consent. Dr. Grenga should have
attempted to reattach the hand no matter what he said.
"You may wonder how a case this
frivolous was allowed to proceed, but the plaintiff's attorney had expert
witnesses lined up saying that the surgeon and hospital should have
operated," said Fitzpatrick. "As long as an expert was willing to
testify, the judge felt he had to let the case go on."
Trial Was Surreal
The trial lasted nine days and was more
than a bit surreal. When sworn in as a witness, plaintiff Thomas Passmore
raised his right arm, a silver hook where his hand was formerly.
The jury took only 30 minutes to find
in favor of Dr. Grenga. Several jurors congratulated him for being such a good
"Passmore also sued the psychiatry
group at the hospital, which settled before trial for an amount believed to be
in the mid- six figures," Fitzpatrick said. Defending Dr. Grenga cost his
insurer more than $70,000.
"I disagree that frivolous suits
are a thing of the past. It's easy to find an expert witness to advance bogus
theories," he said. "Plaintiffs' attorneys know that most cases
settle, and they figured Dr. Grenga would settle to avoid the nuisance and risk
of the lawsuit."
Fitzpatrick had another outrageous case
about 10 years ago. A 35-year-old woman believed she was at risk for breast
cancer and had a surgeon perform a double mastectomy. The reconstruction didn't
use a traditional breast implant, but instead used the patient's abdominal
"The patient developed a romantic
interest in the surgeon and wrote him several suggestive love letters. When he
rejected her advances, the patient filed a lawsuit claiming that her breasts
now 'twitch' when she has sexual activity," said Fitzpatrick. "Her
lawyer found an expert who said this must be the surgeon's fault."
"The case went to trial. Her
lawyer wanted to put on a demonstration to show how the breasts twitch, but the
judge wouldn't allow it. The trial lasted five days before the judge finally
threw it out."
Can No Longer Practice Her Special Powers
A historical malpractice case that
achieved international notoriety and was cited during political campaigns as
the "poster child" for tort reform concerned a psychic who claimed
she suffered severe headaches that rendered her unable to practice her
profession as a psychic or to read auras after having a dye injected into her
as a prelude to having CT.
Psychic Judith Haimes had assisted
several law enforcement agencies in the Northeast in finding bodies and solving
crimes. She sued Temple University Hospital in Philadelphia, saying that her
severe reaction to the dye used in CT scans led to chronic and disabling
headaches, which prevented her from going into the state of deep concentration
necessary to read auras.
A jury took just 45 minutes to
deliberate and awarded her $600,000 plus $386,000 in interest.
Common Pleas Court Judge Leon Katz said
the verdict was "so grossly excessive as to shock the court's sense of
justice." He said it was likely that the jurors had disregarded his
instructions that they could consider only whether Haimes should receive
damages for the pain and mental anguish she suffered from the immediate allergic
reaction. He'd ruled that her attorney had failed to provide any evidence
linking the CT scan and her continuing headaches that impaired her psychic
abilities. He ordered a new trial. The parties ultimately reached an
Block on the Wrong Knee
In 2012, an anesthesiologist
administered a nerve block to a patient who was prepped for minor knee
arthroscopy; however, he administered it to the wrong knee.
The orthopedist realized the mistake right away and never started the
operation, said John Hart, a malpractice defense attorney in Portland, Oregon,
who represented the anesthesiology group.
"The surgeon and anesthesiologist
immediately told the patient of the mistake and apologized. They offered the
patient the opportunity to still do the surgery on the correct knee, and the
patient agreed," he said. "The patient was grateful for their candor,
and the operation was successful.
"They told the patient the effects
of the nerve block would wear off within 48 hours," he said. "The
patient was fine with that, and neither doctor heard anything for almost two
years. However, in 2014, one week before the statute of limitations was to
expire, the patient sued both doctors." The amount he asked for? $825,000.
He charged them with negligence for
causing pain and disability by anesthetizing the wrong knee. "The attitude
of judges is that as long as there's a question of fact, let the jury take care
of it," Hart said. "Some judges are fearful of being reversed by an
appeals court. Judges could do more to encourage settlement, but they often
don't." The case is still pending.
Patients Represent Themselves
Hart adds that pro se cases (ones in
which a plaintiff brings suit and represents him- or herself, without an
attorney) are notorious for frivolous claims. "Sometimes the plaintiff
fails to comply with deadlines, or they don't even show up for hearings,"
he said. "But judges will bend over backward to give the plaintiff a chance.
If I were a judge, I might do the same. People should have access to the
courts, even when there's not an ice cube's chance in hell of winning."
Stephanie Sheps, director of claims at
Coverys, a professional liability barrier based in Boston, agrees with Hart.
"I've seen judges go the extra mile to make sure a pro se plaintiff
is treated fairly. In one case involving a neurologically impaired infant, the
damages were severe, but there really was no liability by the doctor.
"The plaintiff had trouble finding
an expert witness," she said. "The judge took it upon himself to hire
an expert that the state paid for. The court hired one of the top ob/gyns from
a Massachusetts teaching hospital. He found that there was no malpractice, but
the judge wanted the plaintiff to have every chance she could. Judges are very
hesitant to take away someone's day in court."
and Circumcision 'Mishaps'
Dr. Jeffrey Segal, MD, JD, is a
neurosurgeon who started Medical Justice, an organization that provides
physicians with legal resources to fight frivolous suits and brings complaints
before bar associations, state licensing boards, and professional medical
societies. He tracks outrageous cases.
A couple of examples are illustrative.
About 10 years ago, a patient had a vasectomy. His postoperative sperm count
was zero, as expected. One year later, the patient's wife became pregnant. The
man sued his urologist. However, a paternity test quickly explained what
happened, Dr. Segal said: The wife had had an extramarital affair, which
resulted in a pregnancy. The lawsuit was dropped.
In another case, a urologist was sued
for not removing enough foreskin during a circumcision on an infant. That led
to a revision a year later. The doctor was sued in 2000, and the case was finally
settled 12 years later. "One can always remove additional foreskin
later," said Dr. Segal. "On the other hand, if a urologist is too
Well, enough said."
Never Met the Patient
Ob/gyn Ward P. Vaughan, MD, was sued
over an obstetric procedure performed at a Virginia hospital where he never had
privileges. He also never even met the patient.
Plaintiff's attorney Michael P.
Weatherbee had reviewed an operative report that noted the lead surgeon was
assisted by "Bob Vaughan," according to court records. Several
Vaughans were listed on the Virginia Board of Medicine's Website. Weatherbee
wrongly assumed he'd picked the correct one.
Dr. Vaughan was ultimately dismissed
from the case and then filed a complaint with the Virginia State Bar
Association, which determined that the lawyer had committed professional
misconduct, including filing a frivolous lawsuit and failing to act with
competence and diligence.
Cleveland, Ohio, orthopedic surgeon
Michael A. Banks, MD, won $4500 in attorney's fees for defending a lawsuit
filed against him, even though the patient told her attorney that he was not
the doctor who had mistreated her. The Ohio Supreme Court upheld the award.
Doctors Fight Back
Attorneys don't always carefully
investigate a claim before filing suit. Sometimes, they hope the doctor will
settle rather than face a trial. Gastroenterologist Zev Randy Maycon, MD, was
the on-call physician at Mercy Medical Center in Canton, Ohio. He ordered care
for a patient whose gallbladder and colon were perforated during a liver biopsy
performed by another doctor.
Dr. Maycon was one of several doctors
sued by the patient in 2002. The plaintiff's expert witness never criticized
him in his report. Still, plaintiff's attorney Catherine C. Little refused to
dismiss him from the case. She suggested to his attorney that he could be
released if he made a settlement offer.
Dr. Maycon was ultimately cleared in
the malpractice suit, and then sued attorney Little. A judge ordered the lawyer
to pay the physician $6000. An appeals court upheld the ruling, calling the
malpractice case "clearly frivolous."
West Virginia thoracic surgeon Saad
Mossallati, MD, was sued in a wrongful death case involving a patient he'd
never seen. His name was briefly mentioned in the chart when a nurse suggested
contacting him. It took four years before plaintiff's attorney William E.
Parsons II would dismiss him from the case. Dr. Mossallati countersued the
attorney and won an undisclosed settlement.
"Doctors should hold the legal
profession accountable when attorneys overstep," he said. "Give them
a taste of their own medicine, and ask for damages."
The number of frivolous cases has
declined significantly since various tort reform measures have been enacted. If
physicians are lucky, outrageous cases will be dismissed before too much
expense is incurred. And fighting back could be a useful tactic for physicians.