March 15, 2005

The high cost of winning your case

In the debate over medical liability you sometimes hear lawyers talk as if doctors who get sued but eventually emerge victorious have no real ground for complaint -- after all, the system has worked the way they say they want it to, what more can they expect besides vindication? I would like to offer my experience in hopes of shedding light on that question.

As a plastic surgeon, I was repeatedly named as a defendant during the litigation over alleged harm from silicone breast implants. It has now been proven scientifically that the implants did not cause the alleged disease. The implant manufacturers were the primary ones sued, but lawyers also named the doctors as defendants, even though they acted in reliance on manufacturers' word as to the implants' safety. Eventually all the cases against me were withdrawn or dismissed, but the experience of being a defendant went on for more than 15 years.

Was I harmed? Leave aside any effects on my insurance; leave aside the mental stress and the inconvenience of depositions, etc. Did you know that Fannie Mae -- and therefore lending institutions -- will not allow you to get a home mortgage or refinance if you have this kind of suit pending? I was turned down by more than one bank. Texas is a community property state and we finally got around this problem by separating our community property and having my wife borrow in her name alone.

I have no doubt that I was harmed, even if our legal system does not recognize the wrong or give me any remedy. -- name withheld by request, Texas

Posted by Walter Olson at March 15, 2005 11:42 PM
Comments

Worse, the doctor was probably "fraudulently joined" solely for the tactical purposes of defeating "complete diversity" under the 1806 case of Strawbridge v. Curtiss and keep the cases out of federal court, not because the plaintiffs ever hoped to recover from the doctor.

Posted by: Strawbridge v. Curtiss at March 16, 2005 01:24 AM