One of the most frustrating aspects of the medical malpractice business from the physician’s perspective is the seeming carelessness with which malpractice attorneys launch suits. It usually works like this: Someone has a bad outcome, say, in the hospital. The attorney gets the medical record, but he doesn’t use it to determine who is at fault. He uses it to collect all the physician names within it, from the doctor who saw the patient in the ER to the resident who ordered a Tylenol for a fever. The suit is then filed, naming every last doctor with a legible name. It’s only after the suit has been filed – and defense attorneys get involved – that the names are whittled down to who is deserving of being sued – a process that often takes months and thousands of dollars. In some cases, the lawyers don’t even make an attempt to determine if they have the right doctor, as in the case of this family physician from rural Oklahoma who was willing to share his story with Overlawyered:
I was served at my university job (where I was an academic fellow at the time) with papers for a lawsuit that at first blush looked absolutely horrific.? I think that there in fact were material questions of possible physician negligence that resulted in a patient’s death.? I was devastated, and began racking my brain trying to recall the specifics of this case (I had been an attending physician for a residency at the time I practiced there so it could have been any of a number of patients I had passing involvement in).? I went home and called my fiance and began to get very depressed.? Then I noticed something…the dates of the alleged incidents.? I HAD BEEN GONE FROM THAT HOSPITAL FOR OVER A YEAR AND A HALF BEFORE THIS PATIENT WAS EVER ADMITTED!!!? Apparently the order in question read “telephone order from Dr. A”.? It hadn’t been signed off, and the lawyer for some reason decided that I must be the “Dr. A” in question.?
Now here is where I think that he was negligent (defined by me as not taking reasonable measures to ensure he was naming people appropriately).? He had to ask the hospital’s medical staff office for a forwarding address, since I was gone.? Had he only asked, “When did this guy leave here?” he would have known he had the wrong doctor.
I called an attorney friend whose partner does medmal defense, and they managed to fire off a letter to the filing attorney and the court.? I was removed within a few weeks.?… Had I not called my friend first, but rather relied on the malpractice insurance carrier to do this for me, I would have had an open claim with costs incurred.? I would have had my insurance premium go up, and I would have had to forever list in credentialing documents that I had been sued.? As it is, multiple sources have advised me to not list this incident as I was ultimately “no suited”.?
When I asked multiple friends in the legal field about what possible complaint or discipline could be brought to bear, I was repeatedly told “nothing”.? I would have been thrilled if a letter apologizing for their error had been sent to me, but apparently apologizing (i.e. taking responsibility for ones incorrect actions) is not something that trial lawyers do.? Apparently, reckless behavior by an attorney in the name of “protecting the rights of his client” is allowed, no matter how negligent and regardless of its effect/potential effect on innocent third parties.
I have long past put this incident in perspective and resigned myself to the fact that the game as it is set up is inherently unfair.? To this day, though, I carry a small scar and a huge amount of fear/loathing for a system that allows bullies to run rough-shod over people with no chance of reining in their bad behavior.? Oh…by the way.? My attorney friend said that me having obtained the name of the actual Dr A involved (by way of asking the hospital risk manager, “who WAS the Dr. A who gave that order”…they found a signed note by him four pages away in the chart) and her giving it to the plaintiffs attorney was key in them dropping me without further question.
I’d like to reiterate, had I not done things the way I had, but rather called my insurer and had them handle it, it would have probably cost tens of thousands of their dollars to figure this out. Further, I would have had an open claim on my record and my rates would have been jacked up for several years…all because a lawyer wasn’t held accountable up front for reckless behavior.
There were about a dozen docs named in that suit initially. All but two were dropped within two months of the intial filing. My experience was apparently not unique.
Unfortunately, it isn’t unique, but all too commonplace. It is, in fact, the “standard of care” for plaintiff’s attorneys. When asked about the practice, even defense attorneys shrug and explain it’s a necessary evil. If a plaintiff’s attorney fails to name someone in the original suit, they can’t go back and add him. No one wants to explain to an angry client that they overlooked the person truly responsible.
And yet, this strikes us as a poor excuse for actions that have such far-reaching consequences for so many innocent bystanders. Prosecutors have to have fairly good evidence that they’re charging the right person before they file a criminal case. They don’t bring charges against everyone who ever encountered the crime victim. Shouldn’t malpractice attorneys have to live by the same standards?