WhiteCoat

Medical Malpractice Firms Get Taste of Their Own Medcine

Remember Charles Cullen? The Angel of Death nurse who killed at least 29 patients in various hospitals throughout New Jersey and Pennsylvania? He admitted sneaking into the patients’ rooms at night and injecting them with overdoses of medications – usually either insulin, digoxin, or epinephrine.

Many law firms sued Cullen and the hospitals at which he worked for the patient deaths and won substantial judgments. But several of the law firms took things a little too far.

Charles Cullen obviously didn’t kill every patient that he cared for during his 16 year career. But some law firms sued the hospitals that Cullen worked at solely because Cullen cared for patients who later died. Their lawsuits alleged that Cullen killed patients even though there was a “complete lack of evidence” to support those claims. The cases were dismissed by the trial judge and the dismissals were affirmed on appeal. During depositions in the cases, family members admitted that they had no evidence linking Cullen to the death of the patients, only a “hunch” that the nurse “might” have been responsible.

Now one of the hospitals is suing the law firms for filing these frivolous cases.

St. Luke’s Hospital in Lehigh Valley, PA is suing Cohen & Feeley in Bethlehem, PA and John R Vivian of Easton, PA for proceeding with cases that the attorneys knew were “baseless and lacking in evidence.”  In addition, St. Luke’s sued the medical expert who certified the cases, Dr. John J. Shane, alleging that he used a “boilerplate” certificate of merit to allow the cases to proceed and did not even review the medical records of the victims before certifying the cases. Dr. Shane has been in trouble with the law before. In 2008, he was indicted by the Department of Justice for conspiracy and wire fraud (.pdf file) when he and two attorneys allegedly forged the will of a deceased person in an attempt to become beneficiaries of a multimillion dollar estate. Sounds like St. Luke’s Hospital needs to add a cause of action for “negligent hiring” to its lawsuit against the law firms.
The hospital seeks more than $500,000 in legal fees that it paid to defend the baseless lawsuits in addition to punitive damages.

A “loser pays” system in this country would probably have prevented the lawsuits from even being filed. Instead, now the hospital has to spend even more money on attorneys’ fees and file a counterclaim in order to obtain justice.

The hospital should get at least $30 million for noneconomic damages in this case. Maybe more. After all, who can put a value on how much distress the hospital administrators and the hospital staff went through based on the unprofessional actions of these attorneys?

44 Responses to “Medical Malpractice Firms Get Taste of Their Own Medcine”

  1. Hueydoc says:

    Cue Matt in 3…2…1…

    • Matt says:

      Love all my loyal readers, Huey.

      • Hueydoc says:

        You do realize this article is pure “Matt bait” and you took it.

      • Matt says:

        You’re my favorite, though, because you always respond no matter what, even when you’re complaining about how you don’t want to see me post. That’s how I know you’re a true fan.

        Want me to send you an autograph? You’ll need to pay for the stamp, though.

  2. Hal says:

    @Hueydoc Hey! I was going to say that!

  3. Matt says:

    “A “loser pays” system in this country would probably have prevented the lawsuits from even being filed”

    Actually, the best thing to stop those is universal healthcare. Luckily for all it’s on the way.

    “After all, who can put a value on how much distress the hospital administrators and the hospital staff went through based on the unprofessional actions of these attorneys?”

    A jury.

    • Losing doctors in Florida asked that loser pays be stopped.

      I prefer a roving band of patient advocates who bring street justice to the predators, the greedy plaintiffs. Every penny of these payments will come from the care of other patients. Either costs will increase, or services will stop.

      There should be a two beatings rule for the lawyers, the judges, the plaintiffs. They are a physical personal threat to the health of anyone over 40. This is a type of social self-defense. To deter.

  4. Matt says:

    WC, any word on whether the places where the Dr. is admitted are going to revoke his license?

    • WhiteCoat says:

      No, but I think I remember hearing that the two lawyers who forged the will with him got ethics awards at their state bar association meeting and that the attorneys who used his certification to file frivolous lawsuits are in the Super Lawyers 2011 magazine.

      • Matt says:

        Well, if you heard it then it must be true! Super Lawyers Magazine? Didn’t know such a thing existed.

        I would think you guys would be pretty hot to get his license revoked. Weird that you spend more time policing other professions rather than your own.

      • joe says:

        Policing other professions than our own? Based on what a few responses on a blog? Jeez somebody said it on a blog it must be true. Try spending a little time on your state’s medical board site if you truly want to see how it works. In my state I can look up PDF’s on every doctor who had a complaint and it’s resolution. That is how it should be. Funny how I can’t do that on my state’s law-bar website.

      • Matt says:

        What state are you in? Because I can on mine.

        I expect you’re looking in the wrong place. The State Supreme Court usually has a division, Committee on Professional Conduct is what my state’s is called, that has that handy. The Supreme Court of each state regulates the practice, not the “bar association”.

        The “Bar Association” is usually a voluntary organization, much like the AMA or whatever lobbying group you are a member of. No regulatory power.

  5. paul says:

    have to wonder if the solution to too many lawsuits is… another lawsuit.

    however do agree with going after the expert witness. the physicians that are happily profiting off of this broken system need to be taken out first.

  6. ERP says:

    Loser pays is the way of most of the rest of the world. Loser should at least pay SOMETHING including the other legal fees. The law firm should shoulder most of these expenses but some should come from the plaintiff – prorated to their financial ability to pay.

    • Matt says:

      Universal healthcare is the way of the rest of the world, too. Physicians make significantly less in the rest of the world. Is the “everybody else does it” now the reason for doing things?

      Loser pays doesn’t work in the rest of the world like you think it does.

      • Throckmorton says:

        Matt:

        I just looked. The average ER doc in the UK makes 78k pounds/yr and does not have to pay for retirement and can only be made to work 40/hr a week. That is much better than our guys do. Our docs work more hours which accounts for why they make more plus most have to pay their own overhead including medmal. They even make much more in their training!

      • Waiting time for emergency surgery? 6 days, that is the wait for the people with the ice picks sticking from their skulls. With less urgent complaints, forget it.

        There is no expensive care in England, just natural course of illness and death. You could do better in Brazil and other awful third world health system. In every Third World country, you could, at least, save your money, and find an American trained doctor to help you out of your life threatening jam.

      • Matt says:

        So Throck, I guess you’re for single payer then? If physicians end up making around $125K and work 40 hours a week?

        Median ER physician salary in the US is $181K – who wants a $60,000 pay cut?

        http://www.payscale.com/research/US/People_with_Jobs_as_Physicians_%2F_Doctors/Salary

        Average for a US ER doc is $245K:

        http://www.ehow.com/info_7779906_average-emergency-room-physician-salary.html

        Now, if those numbers are even in the ballpark, that means a minimum 1/3 cut for you guys. Who among you can afford that cut and maintain your lifestyle? Who is ready and willing to scale back. If so, endorse single payer.

  7. midwest woman says:

    Loser pays concerns me. If a jury can return a guilty verdict on something blatantly ridiculous could not the reverse happen? Someone does have a legitimate complaint, has a s*** for brains lawyer and loses the case.
    I’m treading in murky waters here and don’t really know how many people who file medical malpractice suits win or lose. I could imagine that some legitimate ones slip through the cracks as much as ridiculous lawsuits prevail.
    The examples you gave were good for the loser pays side of the equation.
    Also in other countries, isn’t it set up that what would be the equivalent of a jury is a panel of medical professionals or am I mistaken?
    Just playing devil’s advocate here. I am generally in agreement that malpractice and bad outcome are two totally different things and lawsuits have obliterated the distinction.
    BTW how are you doing and how’s the view from the patient’s perspective?

  8. Throckmorton says:

    An option with loser pays is that the attorneys fund and be bonded. The lounge attorneys pay put of that fund. This the client is not fiscally responsible for the attorneys lack of winning the case. Afterall, if an attorney takes the case, he/she feels it is winnable. If it is not able to be won, then the attorney either made an error in taking the case or while it is pending. The long and short of it, make the attorneys accountable for the attorneys actions.

    • midwest woman says:

      that is very reasonable and would solve a lot of problems.

    • Matt says:

      ” Afterall, if an attorney takes the case, he/she feels it is winnable. If it is not able to be won, then the attorney either made an error in taking the case or while it is pending.”

      That’s simply incorrect.

      Your proposal also reflects a misunderstanding of the legal system. Let’s say you pull out onto the road today and genuinely believe you have right of way. An oncoming car also genuinely believes it has the right of way. Honest dispute between two honest people, both with damages.

      Under your proposal, neither can find a lawyer to take their case, and thus present their honest dispute to a jury of their peers. The point of the jury system, to resolve disputes between people who cannot otherwise agree, is lost.

      Or take another example, a contracts matter. You and your partners in your practice have a dispute and you want out and turn to your contract or maybe just go back to your oral agreement if you had no contract. You thought it meant X, they thought it meant Y, and its an expensive proposition either way. What lawyer wants to take your case now, knowing that if they lose THEY, not the parties litigating, have to pay the costs.

      Your comment really reflects a fundamental misunderstanding of the legal system, Throck.

      Moreover, it assumes that at the beginning of a case, an attorney knows all the facts, rather than just one side. Yet you will not agree to pre-filing depositions or discovery, will you? Yet you want to punish the attorney, who merely brings the case to the jury or judge, for not being able to know both sides of a case before filing.

    • Matt says:

      Incidentally, on the plaintiffs side the attorney is financially responsible for the costs of the case as the average plaintiff who has a devastating injury, can’t work, and has bills piling up can’t afford to take on the cost of battling an insurer. So they have significant incentive to make sure they’re not wasting their money or their time (which is their money).

      The defense has no such incentive, or at least nowhere near the same degree. The insurer keeps making money off the dollars as long as it can keep them in its pocket and the defense counsel is paid win or lose.

  9. Doc99 says:

    Woman won a large award in a failure to diagnose breast cancer case, including $1 million for shortened life expectancy.” Ten years later, on learning that the woman was alive, well, with NED, the doctor filed suit for “Failure to Die in a Timely Fashion” and was awarded back the $1 million.

    And then I woke up …

    • joe says:

      lol:
      That is the exact type of thing that should happen with the silcone breast implant cases now that science has shown no real link between silcone implants and rheumatolgic disorders. Of course it will never happen. This includes not only the patients but the lawyers who made millions off of shoddy science and pulling on heart strings in the courtroom

      • Doc99 says:

        And what of the Junk Science Medical Experts who attest to the equivalent of alchemy and witchcraft? We shouldn’t let them off the hook either.

  10. There is no recourse. The legal system is rigged airtight to generate lawyer jobs. These judges and lawyers have given themselves immunity from any accountability.

    If torts is a substitute for violence, in formal logic, the obverse must be true. Immunity fully justifies violence in morals, policy, and in natural rights. The judges and lawyers are internal enemies of the United States and nothing short of the arrests of their hierarchy, fair one hour trials, and summary executions in the court basement will save the nation. The sole evidence at these fair trials would be the legal decisions, not any lawyer gotcha, collateral corruption. The decisions themselves are the great crimes of this hierarchy, and their insurrection against the constitution.

  11. SeaSpray says:

    Interesting post WC. I agree there should be more accountability. i just would hate to see someone who was wronged ending up paying because other side had a better lawyer.

    It’s great to see you back to writing again and glad you are feeling better. :)

  12. Dave says:

    Primary care physicians do pretty well in the UK, at least compared with the rural USA which I am most familiar with, and as has been pointed out can retire with a pension at age 60. If any of you spend any time on the BMJ website, you will see that this is coming under attack – their government is in financial straights also. However, it’s not a bad deal. In this country you have to make a fair amount of money in order to retire comfortably because you have no pension, and you can plan on spending a lot of that on medical care when you get older. Medicare has enormous gaps.

    If you think the legal system and doctors in cahoots with them are screwed up in this country, read the expose’ about the MMR-autism link posted in the BMJ about two months ago. This received some publicity in the US, but a “reader’s digest version” is that Dr Wakefield was given money by a legal firm to fund a study at the Royal Free hospital to help create a link between the MMR vaccine, various gastrointestinal problems and autism, for the purpose of aiding a class action lawsuit against the vaccine manufacturers. The initial preliminary case series suggesting this link was published in the Lancet, with falsification of many of the records of the cases reported. Patents were filed by Dr Wakefield to create two companies, one to create a new “measles only” vaccine which was to be safer than the MMR vaccine, and another to do testing for measles antigen – it was felt this would make millions in return. The whole thing fell apart when the lancet editors demanded the followup confirmatory study, which of course could not be done because there was never any link to start with. In the interim hundreds of children have not been vaccinated and there have been some deaths because of this – this despite multiple studies not showing a link between vaccinations and the mentioned conditions.
    The above is what I recollect from reading this several part, very detailed and very lengthy series in the BMJ, the full text of which is available on the web.
    BTW Matt, what DO you think about payments for the silicone breast implant-rheumatologic condition issue? Should the money be returned, and if not, why not?

    • Matt says:

      Dave, with regard to your question, I don’t think it can be returned. I only know a little about it because it was all pretty well settled by the time I started practicing, but a settlement is a contractual agreement. I would imagine it says something to the effect that the defendants did not admit fault, and chose to settle for other reasons, and that they were competent to settle, understood the facts and circumstances, and desired to do so.

      Even in the cases that went to verdict, I imagine they settled on appeal. So no, given that we have two parties freely contracting for a resolution they have had ample time to consider, I don’t think the money should be returned. Assuming the individual plaintiffs even have it to be returned now anyway.

      Think of it this way: if you sell me your car, and say “go check it out if you want”, I do that and decide to buy it (or I don’t check it out and decide to buy it) do I get my money back if it turns out there’s a significant oil leak?

      • Ed says:

        If he is a dealership, yes you do.

        Lemon law.

      • Matt says:

        Nope. Only if you bought it new, it still has less than X number of miles on it, and within a certain time period, and then you have to take it back for that problem at least three times, and then you have to go through an arbitration system set up by the auto manufacturers.

      • Ed says:

        Yep.

        There are lemon laws that are applicable to used car dealers as well.
        I have had to use them.

      • Matt says:

        I didn’t know that. My state(s) only have them for new cars, and only for dealers. It’s not applicable to private parties.

  13. Dave says:

    The mistake that people make is that the law is about finding the truth. It isn’t, its just about adhering to the rules that are in place. Even if they make no sense/are detrimental.

    How else do we end up with decisions like this where the supreme court even uses their own terrible decisions in the past as legal precedent to continue making terrible decisions:

    http://www.latimes.com/news/nationworld/nation/la-na-court-innocence-20110403,0,1867335.story

    In last week’s opinion, Scalia cited the Youngblood case in arguing that prosecutors are not required to offer all the evidence that might free a defendant. “We have decided a case that appears to say just the opposite,” he wrote. “In Arizona v. Youngblood, we held that unless a criminal defendant can show bad faith on the part of the police,” the defendant does not have a right to obtain all “potentially useful evidence.”

    It’s good to know that if the government has evidence that you are innocent they have absolutely no responsibility to do anything with it once a trial is over.

    • Dave says:

      Imagine if medicine was like that. You do a rapid HIV test, it comes out positive. You diagnose the patient with HIV, console him and send him home. No need to do a confirmatory western blot, as even if it came back negative, you wouldn’t have any responsibility to relay that information to a patient.

      • Matt says:

        Also, while I agree with you the decision stinks, your HIV example is not an apples to apples comparison. A professional owes a duty of care to the particular client or patient that is a common law duty defined by the profession.

        A prosecutor’s relationship to a defendant is not the same, and is governed by Constitutional mandates, not any particular duty to the individual defendant. At least not in a manner comparable to an attorney-client or doctor-patient duty.

    • Matt says:

      Really though, isn’t this the kind of result you physicians want from your judges? Limiting civil claims and multimillion dollar verdicts that juries render regardless of the merits of the claim? That’s the point of your whole movement. And now you’re upset? This was a civil lawsuit awarding a guy $1 million a year for every year he’d been in prison. He’d have likely never made that on the outside, especially with a previous robbery conviction. You guys don’t think a lifetime of agony as a result of malpractice is worth more than $250,000 total, much less annually. You and your insurers should be cheering this verdict and the justices who supported it.

      • Ed says:

        Your analogy is not quite right, either. The $1 million/ year came from the taxpayer. The “professional” paid nothing, nor were they required to carry insurance in the event of bad outcomes.

        “This was a civil lawsuit awarding a guy $1 million a year for every year he (lived following the surgery). He’d have likely never made that on the outside, especially with a previous (illness).”

      • Matt says:

        I wasn’t making an analogy.

        In this case the professional was an employee of a govt. entity, so the entity under the theory of respondeat superior would be liable. Assuming there wasn’t tort immunity, which most govt. entities enjoy.

        And people don’t carry liability insurance in the event of bad outcomes. They carry liability insurance in the event of bad outcomes for which they are liable due to their negligence.

  14. [...] St. Luke’s Hospital in Pennsylvania’s Lehigh Valley is suing a lawyer and law firm “for proceeding with cases that the attorneys [allegedly] knew were ‘baseless and lacking in evidence,’” and is also suing an expert for allegedly filing a “boilerplate” certificate of merit. The cases in question are among many filed claiming that patients were killed by notorious “Angel of Death” nurse Charles Cullen; hospitals say that while some of the suits were filed on behalf of actual Cullen victims, others piled on seeking compensation for bad outcomes that had nothing to do with the murderer. Damages for wrongful litigation are notoriously hard to win in American courts. [White Coat] [...]

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