“I'm being sued for a 1 mm cancer I supposedly missed 10 years ago on a CT.”
“I can top that. I'm being sued for missing a case of depression on a chest x-ray!”
“I can beat both of you. I'm being sued for a failed brain surgery on a patient I never saw at a hospital where I am not even on the staff and where I only read mammograms.”
“I'm being sued for a cross-eyed breast augmentation.”
“What? How did that happen?”
“As an interventionalist I thought I could do it easily and enlarge my practice. I have a daughter going to college. Do you know how expensive that is?”
“Whoa!! I think you should just settle and get it over with quickly.”
“I tried but my daughter won't negotiate. She's holding out for a huge settlement.”
For 50 years researchers have been looking for evidence of intelligent life in the universe, beginning with Frank Drake's “Project OZMA” at Cornell University in 1960. Since then billions of dollars have been spent with nothing to show for it until tentative evidence surfaced this year in the Virginia Supreme Court. The court upheld a ruling by the Arlington Circuit Court, as well as sanctions by the Virginia state bar, that lawyer Michael P. Weatherbee had filed a frivolous malpractice suit against Dr. Ward Vaughan, an obstetrician, for negligence during a surgical procedure on the patient Dianna Broyles at Warren Memorial Hospital in Front Royal, Virginia. One little problem: Dr. Vaughan had nothing to do with the surgery and wasn't even on the medical staff at that hospital.
These are facts that could easily have been checked, but Mr. Weatherbee was just in too much of a hurry to check, probably because he was looking forward to a big settlement check. Unfortunately for Dr. Vaughan, the charges of malpractice and negligence were picked up by local TV and radio exposing him to ridicule and scorn for which his practice suffered, eventually costing him patients.
I am very sympathetic to Dr. Vaughan's situation having recently spent $32,000 to get my name removed from a suit I had nothing to do with and for which my name was not even on the chart. In fact I have been named in couple of suits that I had nothing to do with. These lawyers typically sue as many doctors as they can with little regard to the doctors' involvement and will often list an additional 50 John Does, to be named later. In one case my name was one of the John Does added a year later for, again, a case I had nothing to do with. The mistake could have been cleared up with 10 minutes of fact checking at any time during that year. I was named in one case for a failed procedure that I don't even perform and on which I was not even listed as the performing physician, but was included because of a totally unrelated CT scan I read.
Now if I were to accuse someone of burglary, rape, or murder without checking my facts, I could be hauled in for filing false charges. If a prosecutor presses a case without checking his facts beforehand, he can be charged with prosecutorial misconduct. But it seems lawyers can file false medical malpractice claims willy nilly and with no regard for the reputation of the physicians named; physicians who are now required to report these cases, which in turn become part of their permanent record.
I recently visited Singapore, which is a very fine city, and for whatever reason the authorities became suspicious that I was smuggling drugs. I don't know why but it may have had something to do with the antique opium pipe and paraphernalia that I had purchased in Hong Kong. Now drug smuggling in Singapore carries a mandatory death penalty, but they were considerate enough not to execute me and instead chose to check their facts first. They searched my luggage and my person thoroughly and found nothing. (No colonic polyps either. Yeah!! Hopefully, my voice will return to normal at some point.) At least that was a much more pleasant experience than enduring two years of stress and aggravation and spending thousands of dollars to achieve the exact same goal at the unmentionable end of a lawyer.
What lessons can you learn from Dr. Vaughan's ordeal? The first lesson is not to practice medicine in the U.S. The second is that these lawyers should be… [Editor's note: The ensuing passage has been redacted due to violence and adult language.] The third lesson is to act as quickly as possible to correct the record and have your name removed once you learn of a suit that does not apply to you.
Lawyers do not have to have all their facts correct prior to discovery and are allowed a good deal of latitude. But they can be held liable for legal malpractice, or may open themselves to sanctions, like Mr. Weatherbee, by not performing the most basic fact checking.
The final lesson is that if you are not satisfied with the plaintiff's attorney's actions, you have three avenues of recourse. You can file a complaint with the state bar association. You can petition the court to sanction the attorney. Or, finally, when the case is concluded, you can file a countersuit against the attorney. Alas, since such suits are not covered by insurance, most doctors would have to pay out of pocket to pursue them, which most don't—lawyers count on that. Also, not a whole lot of lawyers are willing to sue other lawyers.
Even so, in light of Dr. Vaughan's recent success I think in the future I will take a more aggressive stance to avoid being on the receiving end of some lawyer's...inappropriate behavior.
NOTE: I would like to acknowledge the coverage of Amy Lynn Sorrel in The AMA NEWS, 4/12/2010, used in the preparation of this column.
