May 24th, 2013

Lawyer Faints During Medical Malpractice Trial; Defendant MD Rushes to Assist

Well, you don’t see this every day — a lawyer trying a medical malpractice case passes out in court. Then the doctor that he sued rushes in to assist him. All in front of the jury.

The lawyer in question is Louisville, Kentucky’s Hans Poppe. You can see the video here, as the lawyers are at the bench discussing defendants’ motion for a mistrial.

The case arose from the negligent removal of a cervical collar that had stabilized a patient’s neck after an auto collision, with the patient then being rendered a quadriplegic. He subsequently died from infections at a long-term care facility. The defendants are the surgeon, Dr. Ryan LeGrand, and University of Louisville Hospital.

Aside from the human-interest element of a lawyer fainting and the defendant doctor rushing to assist, there’s an interesting legal issue here.

The defendants had moved for a mistrial because, on day 10 of the trial, Poppe had played a portion of videotape deposition that mentioned liability insurance. This part was supposed to be edited out. (Many potential jurors ask the insurance question during the selection process, and we are, of course, forbidden to answer. It is deemed to be unfairly prejudicial to the defendant and not relevant to the issues.)

Poppe said that it was inadvertent that the unedited video was used; the defendants claim he did it on purpose to cause a mistrial because the trial wasn’t going well for him. Then the defendants asked for a whopping $125,000 in sanctions and fees, an astounding amount for a malpractice trial and one that strains the bounds of credibility to me.

What is most interesting, however, is that the point of whether the video-malpractice was intentional or not is actually moot in many respects. And that is because a mistrial would have been necessary anyway after the doctor rushed forward, in the presence of the jury, to assist. Life can be funny sometimes and this is one of those times.

I had a couple questions about all this, so I called Poppe. First off, he said that he fainted from lack of sleep, food and water — a situation anyone that ever stood in the well of the courtroom trying a case can relate to. Walking the proverbial high wire in front of a jury can be enormously stressful, and the vast majority of lawyers can’t/won’t do it.

I asked if the defendants claimed the fainting was a ruse of some kind, and he said that no such allegation was ever made. It would seem, then, that a mistrial was going to happen regardless of the jurors learning about the insurance.

Finally, about that huge $125K request? He said that the hospital had three lawyers on the case. That is virtually unheard of where I come from in a medical malpractice case, and where I come from is lawyer-central. If there are any “extra” lawyers in cases here they are likely to be young ‘uns who are not there to participate, but to watch and learn.

Of course, if the judge thinks Poppe did this on purpose then a sanction might be forthcoming, but I have to assume that a judge would be viewing the entire conduct of the 10 day trial. An isolated act is likely to be forgiven; repeated acts might well be viewed with a different eye. But because the playing of the unedited video would ultimately be unrelated to the need for a mistrial, it seems the mammoth request for fees will be denied.

In any event, a quirky factual scenario with the fainting/assisting, what appears to be a serious legal issue regarding insurance mostly rendered moot by subsequent events, and a defense team with a legal meter apparently running so fast it’s hard to see the numbers fly by.

As I said, you just don’t see that every day.

(Updated 3/11/15: The insurance carrier proceeded to bring an action against Poppe, and this was the result)

November 5th, 2012

Ethical Duties of “Independent” Counsel for a Hospital’s Resident

Mark Bower

While this guest post is based on a hypothetical, the ethical issues raised are the type any lawyer may encounter in a medical malpractice case that implicates a hospital resident.

The author, Mark Bower, is not only a long-time medical malpractice practitioner whom I’ve known for decades, who has guest blogged in this space before (and again here), but he has also been a member of the Ethics Committee of the NY County Lawyers Association for 20 years. In other words, this piece is right in his wheelhouse…

——————————————By Mark Bower

Ordinarily, doctors sued for medical malpractice view their insurance company as their friend and protector, but sometimes, that is not at all the case.

Let us assume a hypothetical case for purposes of illustration: A hospital, its senior private attending physician, and an employed resident physician in training, are sued for medical malpractice (birth trauma). The hospital’s resident is a young obstetrician. There is a question as to who delivered the baby. The person who (mis)handled the delivery is the “target” of the malpractice claim.

Continue the hypothetical: To protect its senior attending, the hospital and attending physician both claim that the resident delivered the baby. To defend herself, the resident claims that the attending physician did it. This factual dispute cannot be resolved by the delivery record, and the mother’s recollection of the difficult birth is not accepted as reliable.

Because the hospital wants to protect the senior attending physician, hospital’s attorneys cannot simultaneously defend the resident physician. The insurer for the hospital must retain “independent” counsel to represent the hospital’s resident.

Let’s develop our hypothetical further. Let’s assume that eventually, the case is settled by the hospital’s attorneys. Because the hospital has vicarious liability for its resident, the resident does not have to contribute to the settlement from her own funds. The defense insurance company vests its settlement authority in the hospital’s attorneys, and does not want to pay for a second attorney to attend or participate in the settlement negotiations, particularly since the hospital’s insurance coverage will pay the resident’s share in any disposition anyway. As a result, the resident’s “independent” counsel does not appear or participate in the settlement negotiations.

Only after the settlement is finalized does the resident learn that the settlement payment was attributed to her. Because she has no out-of-pocket responsibility to pay any part of the settlement amount, she was not consulted. Nonetheless, because the bad outcome is attributed to her, she has to be reported to the NYS Health Department and the National Practitioner Data Base (NPDB). Those reports may impact badly on her future career, through increased malpractice insurance premiums, decreased employability, etc.

This scenario raises the questions about the “independent” counsel’s duty to protect the resident despite the complete absence of personal contribution to a settlement, and whether there was possible ethical lapse and/or legal malpractice in this situation. We believe that in these circumstances, the “independent” counsel must appear at the settlement negotiations to defend and protect the resident, even though she has no personal financial “exposure” in the negotiations. If the resident’s attorney did not do so, and the result is that the resident gets a “black mark” with the Health Department or NPDB, the resident may have a legal malpractice claim against her own attorney.

Even where the settlement is paid by the hospital’s insurance coverage, and the resident does not contribute to the settlement payment out of her own pocket, the resident is at risk from the settlement, because she may still suffer career harm and indirect economic harm (damage to her reputation and professional standing, damage to future employability and insurability) that may follow and limit her professional advancement. Particularly because a resident doctor in training is at the beginning of her career, those harms may add up to large amounts of money over the course of a professional lifetime. As a result, the resident’s attorney has a duty to protect the client from these harms, regardless of whether she contributes to the settlement with her own funds or not.

The problem of conflicted loyalty that this case presented, is unavoidable. The insurance company typically does not want the “independent” attorney to impede or block the settlement, or try to shift the responsibility back to its other insureds, in particular in this hypothetical situation, to the more senior attending doctor. The “independent” attorney may depend on the insurer’s satisfaction with his work (and possibly the hospital’s, satisfaction as well), to get future work when the opportunity arises.¹ The “independent” counsel may earn gratitude not shared by the resident doctor.² The “independent” counsel has a personal interest in pleasing the insurer at the expense of his client. Such conflicts of interest are an inherent part of lots of defense work.

This divided loyalty is an unavoidable problem, but the resolution of it is easy, according to basic legal ethics: The attorney must act with undivided loyalty to his client (in this case, the resident in training), even if that conflicts with the wishes of the insurer that retained him, or the hospital whose good will he depends on.³ The attorney must act selflessly, including sacrificing his self-interest if necessary, to protect his client.

As a result, the courts generally condemn such acts of disloyalty to the client, and allow appropriate remedies against the attorney that allowed the others’ interests to advance, to the detriment of his own client.⁴

In our hypothetical situation, the fact that the settlement payment does not come from the resident’s pocket, seemed compelling to the “independent” attorney. That, and the carrier’s reluctance to pay multiple attorneys to attend settlement negotiations, is probably why the “independent” attorney would not attend the settlement negotiations and fight to prevent the settlement from being attributed to his client. Fighting back, to attribute the settlement to the senior attending physician, could make serious waves, and could even cause the settlement negotiations to fail. Invariably, “hospital politics” plays a back seat role in these circumstances. The fact that the resident can get harmed in other ways, despite not paying the settlement with her own funds, may get “lost in the sauce.”

The moral of this story is that if a client is assigned “independent” counsel by their employer or the employer’s insurance company, that attorney is charged with the legal and ethical duty to protect his client, not just from paying a settlement out of pocket, but from the other harms that come from having a settlement recording against the client; and the client may have a right to recover for those harms against her “independent” attorney, for failing to protect her against those harms.

1. The “independent” attorney looks to the insurer, not the client, for future work. “[T]he attorney’s relationship with the insurer is usually ongoing, supported by a financial interest in future assignments, and, like other long-term relationships, sometimes strengthened by real friendship.” See 4 Ronald Mallen & Jeffrey M. Smith, Legal Malpractice, §§ 30:3, at 150 (2010 ed.).

2. Barker, Miller et al, “Insurer Litigation Guidelines: Ethical Issues for Insurer-Selected and Independent Defense Counsel,” ABA Section of Litigation 2012 Insurance Coverage Litigation Committee CLE Seminar, March 1-3, 2012.

3. E.g., Restatement (Third) of the Law Governing Lawyers § 16 & cmt. e (perm. vol. 2000) (describing duty); Cinema 5, Ltd. v. Cinerama, Ltd., 528 F.2d 1384, 1386 (2d Cir. 1976) (attorney owes undivided loyalty to every client).; Charles Silver & Kent Syverud, The Professional Responsibilities of Insurance Defense Lawyers, 45 Duke L.J. 255, 311-12 (1995).

4. See, e.g., American Bar Association’s Model Rules of Professional Conduct, Rules 1.8(f), 5.5(c) (ABA 2011).

May 6th, 2009

Two Top NY Brain Surgeons Suspended For Abandoning Patient on OR Table

You don’t see this every day: Two top neurosurgeons at prestigious North Shore University Hospital were suspended for two weeks after abandoning a patient that had been prepped for brain surgery, had her head shaved, and been anesthetized.

According to New York’s Daily News, Thomas Milhorat, the hospital’s chief of neurosurgery, as well as his colleague, Paolo Bolognese, were suspended for two weeks starting April 17th after abandoning the patient on April 10th.

The paper reports that Milhorat earned $7.2 million in 2007 — the biggest surgeon salary in the New York area — and Bolognese made $2.4 million. (When doctors complain about the expense of malpractice premiums, their income is oddly omitted from the stories.)

The suspension conduct is remarkable because the medical community has a long history of covering up malfeasance. I’ve written before about the White Coat of Silence that prevents this type of information from coming out. (See also: How Medical Malpractice Gets Covered Up, and “They killed my patient. Then they tried to hide it.”)

But, as I’ve also noted a number of times, there are now appearing to be cracks in the knee-jerk philosophy of covering up, as shown in A Tale of Two Hospitals: One Covers-Up and One Apologizes.

Whether these anecdotes turn out to be part of a trend, or aberrations, we will know only with the passage of time.

March 31st, 2009

How One Hospital Covered Up A Death — And One Doctor Refused to Go Along

This is an absolutely stunning story. A mother dies during childbirth and an investigation ensues.

But one doctor refuses to go along with the party line, which is to cover everything up.

“They killed my patient. Then they tried to hide it.” (Dr. Amy Teuter @ The Skeptical OB)

Medical Malpractice and the White Coat of Silence (12/3/07)
How Medical Malpractice Gets Covered Up (2/8/08)

July 7th, 2008

A Tale of Two Hospitals: One Covers-Up and One Apologizes

The contrast between these two screw-ups couldn’t be more striking. In one hospital, a patient dies in an emergency room and the staff tries to cover up the depth of their negligence by doctoring her medical records. And in the other, wrong site surgery results in an apology to the patient, an email to the entire staff and a blog posting to the world.

I covered the first case last week, when a woman was videotaped in the emergency room of Kings County Hospital collapsing and dying while being ignored for an hour. Half an hour after she collapsed, and while the security camera recorded her on the ground, some genius wrote in her medical chart that she was “awake, up and about” and had just used the restroom.

And now we have the polar opposite, courtesy of Paul Levy, the President and CEO of Beth Israel Deaconess Medical Center in Boston at his blog Running A Hospital. Mr. Levy lays out the circumstances of what happened. While he leaves out the details that might identify the patient, he spares nothing in the analysis of how the hospital reacted.

The hospital sent out a detailed memo to the staff last Thursday about the incident, which was subsequently picked up by White Coat Notes, the Boston Globe’s medical blog. The memo details how the surgeon was “distracted by thoughts of how best to approach the case” on a hectic day and operated on the wrong side of the body.

The original memo was blunt:

This week at BIDMC, a patient was harmed when something happened that never should happen: A procedure was performed on the wrong body part. With the support of all our Chiefs of service, we are sharing this information with the whole organization because there are lessons here for all of us.

As we all know, the cover-up is almost always worse than the initial incident. Any student of political scandals knows that. But the same holds true in the field of medical malpractice. The notes in the chart that cover-up the malpractice tend to infuriate juries. A forthcoming acknowledgement of a mistake and an apology would not be treated the same way.

So what does Mr. Levy want to do now? Check this out:

While we explore lots of ideas, one already in my mind and that of this Board member would be to make a video with the actual people — doctors, nurses, surgical techs — who were in the OR at the time to explain what they saw and felt and what they learned from the experience. While they might be in too much distress to do this right now, they might agree over time, and their doing so would create a powerful message at every orientation, at nurses and departmental meetings, and conferences. Of course, if the patient would agree to participate, that would lend even more power to the story.

This type of conduct is simply unheard of from my view in the medical malpractice world. I’ve taken testimony from hundreds of doctors. Exactly one has acknowledged that he made a mistake. Mr. Levy seems hell bent here to destroy the White Coat of Silence that exists widely through the medical community. (See also: How Medical Malpractice Gets Covered Up)

If more hospitals and doctors acknowledged mistakes and sought to learn from them — as Beth Israel Deaconess is doing — it would probably go a long way to putting medical malpractice attorneys out of business. And the reason is really quite simple, and human. Worse than being injured by negligence is adding insult to the injury by covering it up. It is anger that most often causes potential litigants to call medical malpractice attorneys. And that is why many medical practitioners are being encouraged to say they are sorry when such mistakes occur. (Addendum, see also, Why Patients Call Lawyers)

There are some folks that will never learn and will continue to cover up. But there are some folks, like Paul Levy, that seemed determined to make that type of conduct a thing of the past.