Doctors can know accusers; ruling doesn't set precedent

An Illinois appellate court has outlined what doctors need to do to gain access to the name of a physician who anonymously signs an affidavit initiating a medical malpractice lawsuit against them.

But there's a catch.

The order is an unpublished opinion, meaning that it won't set a precedent that others will be able to cite in future court attempts. Illinois requires a "certificate of merit" be signed before a medical malpractice lawsuit can be filed.

"The AMA is astonished that subsequent cases in Illinois courts will be denied the precedential value of the opinion in Sullivan v. DeJong," said AMA President Donald J. Palmisano, MD. "The Illinois Appellate Court's decision not to publish its opinion in the case effectively nullified a primary goal of the appellate process: to clarify the law and enable its proper application through publication."

The court's order is posted on the AMA's Web site (link).

Although it doesn't establish case law, the order does provide a road map that doctors could follow in future filings.

"It's a disappointment," said Illinois State Medical Society President Kenneth J. Printen, MD, of the fact that the ruling won't be posted by the appellate court. "But we can tell folks, 'This is what the rules are.' ... That is a start."

ISMS and the Litigation Center of the American Medical Association/State Medical Societies supported suburban Chicago emergency physician William P. Sullivan, DO, in his legal pursuit to find out the name of a physician who signed an affidavit against him in a lawsuit that was ultimately dropped.

The court said Dr. Sullivan could not find out the name of the anonymous physician in his case, but it said physicians could learn the names in cases in which they can show that the affidavit was created in bad faith.

The court said "a threshold finding of bad faith" cannot "be established merely by showing the dismissal of the tort action."

"There would simply be no purpose to the anonymity privilege provided ... were that privilege to dissipate merely by the malpractice defendant obtaining a favorable result in the underlying malpractice action," it stated.

Reason for identification

But the court said that although a medical malpractice lawsuit originally filed against a physician and then dropped might not rise "to the level of full proof of bad faith," there could be enough that indicates bad faith to justify revealing the identity of the anonymous physician.

Also, the Illinois appellate court said a physician suing to find out the name of the anonymous doctor can present evidence from the initial case filed against him or her or could present new evidence to show that the certificate of merit was filed in bad faith.

Both sides in the case wanted to see the ruling published because it was the first time an Illinois court had tackled the question. An Illinois court publishes an opinion when it establishes a new rule of law or "modifies, explains or criticizes an existing rule of law." Dr. Sullivan asked the court to publish the opinion arguing that it did address something the courts have not previously addressed, but the court denied the request.

"It's a very well-written opinion," said Dr. Sullivan's attorney, James J. Stamos. "We're disappointed that we didn't win and disappointed the court didn't publish the opinion."

Larry Kream, a lawyer who handled the initial medical malpractice lawsuit against Dr. Sullivan, said publishing the opinion would have prevented lawyers from having to recreate the same work in the future.

"[The opinion] is what I was hoping for and what I expected," Kream said. "You have to meet a threshold that the affidavit was filed in bad faith."

He said Dr. Sullivan didn't prove the "bad faith" threshold here, but agrees that there might be cases where that can be proved. Kream said the order lets doctors remain anonymous if they are signing affidavits in good faith but takes away that shield if they are signing them in bad faith.

"It creates a balance," he said.

Continuing crusade

Dr. Sullivan wanted to hold the affidavit signer in his case responsible for what he believed was a lawsuit that should never have been filed. He also wanted to set a precedent for other physicians who believed they had a case on similar grounds.

He said he was disappointed with the case's outcome and surprised that the court didn't publish the opinion, but said he would continue to advocate for better expert witness testimony guidelines. "I think I raised awareness and hopefully I can keep the ball rolling," Dr. Sullivan said.

The Illinois Legislature is looking at the issue as part of a package of tort reform bills now in committee. The legislation would strengthen the certificate of merit by requiring the name and address of the professional signing it to be stated in all instances. The bill also calls for the doctor reviewing the record to meet the same standards as expert witnesses.

Illinois is one of 14 states that require a physician to verify that a lawsuit has merit before it can be filed. It is one of five that doesn't require that the name of the doctor signing the certificate of merit be made available.

Some attorneys and patient advocates don't agree that the certificate signer should be made public. They say it would create more reluctance among doctors to sign because they would fear being bullied by colleagues. They also point out that certificates of merit are not required to file lawsuits against other professionals.

Physicians argue that making the name of the doctors signing a certificate of merit public is important because doctors have a right to know who is accusing them of not meeting the standard of care.

"That individual never has to defend his or her opinion like expert witnesses would have to defend their opinions," said Dr. Printen, ISMS president. "Doctors have a right to know their accusers."