Frustrated and fighting back: Ob-gyn sues West Virginia trial lawyers
■ Trial lawyers say the case has no merit. One judge tossed the one-woman drive to change the liability climate, but the physician plans to appeal.
By Tanya Albert amednews correspondent — Posted Jan. 26, 2004
Julie K. McCammon, MD, is trapped in West Virginia.
The Clarksburg solo ob-gyn tried to leave the state last year when her medical liability insurance rates, which had been increasing since the late 1990s, continued to spiral out of control. But she simply could not afford the $190,000 in tail coverage she would have had to pay her current insurer to leave and set up practice in Virginia.
Then she learned that insurer plans to exit the state, leaving her without coverage in 2005.
"I'm enslaved here," said Dr. McCammon, who set up practice in West Virginia in 1988. "Next year, I'll be out of a job."
Frustrated, Dr. McCammon talked to other physicians around the state and discovered many who said they were named in lawsuits because their name was on a chart but later dropped from the suit because they had no involvement with the procedure in question. But the physicians weren't dropped before their insurers spent money defending the case.
So Dr. McCammon decided to try something different: She sued the West Virginia Trial Lawyers Assn. and its president for engaging in frivolous lawsuits against West Virginia physicians. And she filed the lawsuit on her own, not through an attorney.
"We have to have legal rights, too," said Dr. McCammon, who once unsuccessfully countersued an attorney she believed filed a frivolous lawsuit against her. "People think we are doormats to walk all over."
Lawyers point back to doctors
The AMA and others in organized medicine have been arguing for years that meritless lawsuits against physicians are helping drive up the cost of liability insurance, which is required to practice medicine in most places. Trial lawyers, however, argue that higher costs are due to the cyclical nature of the insurance business and to the fact that physicians are making mistakes.
Dr. McCammon has been sued twice. In 1993 she won a jury verdict and in 1999 the case against her was dropped before it went to discovery. She blames frivolous lawsuits filed around the state for her insurance plight and she wants to hold trial lawyers responsible.
In the lawsuit she filed late last year in Harrison County (W. Va.) Circuit Court, Dr. McCammon claims that the state's trial lawyers have "engaged in the institution of frivolous, nonmeritorious and malicious lawsuits against physicians in the state of West Virginia."
That, she claims, has resulted "in the unwarranted and stifling increase in the cost of professional liability insurance."
Her list of grievances includes:
- Economic loss.
- Professional limitations.
- Emotional distress.
- Mental anguish.
- Other noneconomic damages.
Dr. McCammon wants monetary relief for the higher insurance costs she believes she's been forced to pay over the years. And she wants to be compensated for being forced out of her profession.
While physicians may be cheering Dr. McCammon's efforts, a victory in this lawsuit won't be easy.
With the exception of one West Virginia physician who recently won a lawsuit claiming an attorney sued him frivolously, courts in that state and elsewhere have dismissed the majority of similar claims before they went to trial.
So far, Dr. McCammon's case isn't being treated any differently. During the holidays, the case was re-assigned to a second judge because the first judge in the case, Thomas A. Bedell, knew Dr. McCammon. She had delivered his wife's baby 10 years earlier.
The second judge, Booker Stephens, dismissed the case, saying that the facts didn't support her case and that Dr. McCammon had no right to monetary damages. Dr. McCammon had tried to have a third judge assigned after she found out that Stephens is married to a trial lawyer, but the West Virginia Supreme Court left him assigned to the case.
William L. Frame, president of the West Virginia Trial Lawyers Assn. at the time Dr. McCammon filed the lawsuit, said her claim has no merit.
"This lawsuit was a ridiculous attempt to blame lawyers for abuses and bad practices of the insurance companies," Frame said. "The doctor did not assert that myself or my organization had filed frivolous lawsuits against her."
Dr. McCammon is not giving up.
She is working on an appeal of Stephens' decision to dismiss the case, arguing she should at least be allowed discovery. She cites statistics from the West Virginia Board of Medicine that found that 941 of the 3,295 lawsuits filed over the past decade -- nearly 29% -- were dismissed. Still, insurance companies had to pay for those defenses, she said.
"It's devastating," Dr. McCammon said. "When I was young I thought I could do anything. I never thought I would be unemployed and unemployable at my age."
Dr. McCammon is in one of the three specialties hit hardest by rising medical liability insurance costs and in one of the 19 states the American Medical Association says is in the midst of a medical liability crisis that has physicians leaving the state, retiring early or curtailing high-risk procedures because they can't afford the insurance or simply can't get it.