Doctor wins claim that lawsuit was frivolous

A column analyzing the impact of recent court decisions on physicians

By Tanya Albert amednews correspondent— Posted Sept. 12, 2005.

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It's frustrating enough for a physician to be named in a lawsuit solely because his or her name was entered on a chart after seeing a patient briefly. It's even more irksome to need to spend the time and energy to be dropped from the lawsuit.

But imagine the aggravation level if you can't seem to get dropped from the court case, even if the plaintiff can't find a medical expert to say that you've done something outside the standard of care. In fact, you are the one credited with saving a patient's life.

Ohio gastroenterologist Zev Randy Maycon, MD, doesn't have to imagine. He knows the aggravation firsthand.

But he's also now one of the few physicians to know the rare satisfaction of taking a lawyer to task for filing a frivolous lawsuit and winning.

Dr. Maycon was the on-call physician at Mercy Medical Center in Canton, Ohio, on an April night in 2001. He handled the evening like any physician on call would, starting with a call from nurses around 6:30 p.m. to update him on patients. They told him that a patient who underwent a liver biopsy performed by another physician in Dr. Maycon's practice earlier that day was in stable condition.

Later that evening, the patient, Benjamin Barbato, complained of abdominal pain, cramping, soreness, nausea and other ailments. The nurses gave Barbato medication, but according to court records it's undisputed that they never called Dr. Maycon to tell him about Barbato's symptoms or complaints. There also was no evidence that the nursing staff tried to reach Dr. Maycon between 6:35 p.m. and 9:31 a.m. when Barbato's wife called Dr. Maycon at his office.

After he received the phone call from Barbato's wife, Dr. Maycon called the hospital and ordered tests. The tests showed that Barbato's colon and gallbladder were perforated during the biopsy, and Dr. Maycon ordered more drastic medical care, court records show. He's credited with likely saving Barbato's life.

Still, Dr. Maycon was named in a medical malpractice lawsuit that the Barbatos filed against several physicians, their practice and the hospital in April 2002. He couldn't get released from the lawsuit despite numerous attempts and remained a defendant until days before the trial began in November 2003.

Dr. Maycon had been unfairly named in lawsuits before only to be dropped quickly. This time, he decided to file a counterclaim against the lawyer who named him in the lawsuit and refused to drop him. He accused the lawyer of filing a frivolous lawsuit.

"I said, 'This has to stop.' I've heard enough people say that this has happened to them as well," Dr. Maycon said. "It takes time away from practicing medicine."

A good case to test

While federal and Ohio state law establish rules that prohibit lawyers from filing frivolous lawsuits, it's still a very difficult thing to prove. Courts don't want to restrict the public's access to the legal system -- so there has to be a pretty strong argument that a lawsuit was in fact frivolous.

Dr. Maycon's case was a good one.

The plaintiffs never provided a medical expert who testified that Dr. Maycon didn't follow the standard of care. Barbato's expert, gastroenterologist Stuart Finkle, MD, did not criticize Dr. Maycon's care in his report. At a deposition in March 2003, here's what Dr. Finkle had to say:

Question: Doctor, it's my understanding you are going to give opinions in this case in regard to the standard of care, is that accurate?

Answer: Yes.

Q: And who are you going to give these opinions about?

A: Drs. Khetarpal and Hulvat ...

Q: ...are you going to give any opinions about Dr. Maycon?

Q: No.

Dr. Maycon's lawyers asked Barbato's lawyer Catherine C. Little to dismiss Dr. Maycon several times, but she refused.

In an e-mail to Dr. Maycon's attorney, Little had this to say about dropping Dr. Maycon from the case: "I am in receipt of your recent e-mail regarding the dismissal of Dr. Maycon from the lawsuit. As you will recall, I addressed this issue with you several months ago via telephone and inquired at the same time whether your client was willing to offer any money to release him from the suit in that his liability is limited compared to the other parties. Until your recent e-mail regarding Dr. Maycon, I had not heard back from you regarding an offer. Is there an offer at this time to release him from this litigation? I look forward to your response."

In a brief Little filed, she argued that Dr. Maycon should have initiated contact with the hospital the night he was on duty, rather than waiting for someone to contact him. But that assertion wasn't backed up by an expert witness.

Without an expert witness, Dr. Maycon should not have remained a defendant in the case, said D. Cheryl Atwell, the Akron, Ohio, attorney representing Dr. Maycon in his counterclaim against Little.

"Lawsuits shouldn't be open if the plaintiff can't get an expert," Atwell said. "For any physician anywhere it is significant that they have equal treatment in the courts."

A rare court victory

A judge for the Stark County Court of Common Pleas agreed that the lawsuit against Dr. Maycon was frivolous without a medical expert to back up its claim that Dr. Maycon was negligent.

In January, he ordered Little to pay Dr. Maycon $6,000. The dollar amount represents the time Dr. Maycon spent to prepare for and attend depositions as well as his time to prepare for trial.

Little, who did not return calls for comment, has appealed the ruling to the Ohio Court of Appeals Fifth Appellate District in Stark County, Ohio. In her brief she argues, among other things, that the trial judge didn't have the jurisdiction to impose sanctions against her, and she said the lack of a medical expert does not mean the lawsuit was frivolous.

The American Medical Association/State Medical Societies Litigation Center and the Ohio State Medical Assn. are backing Dr. Maycon in the appeal that the court heard in late August. It's one of the cases that OSMA's frivolous lawsuit committee members decided to get behind because they found it was such an egregious example of a case without merit.

"Physicians in Ohio are not opposed to someone having their day in court," said Almeta E. Cooper, OSMA's general counsel. "What they are opposed to are cases being brought that aren't meritorious."

The AMA and OSMA in their friend-of-the-court brief point out that the cost of medical liability litigation is enormous and that while it's not the court's job "to remove that burden entirely, it is for this court to apply the accepted law against frivolous litigation when an appropriate case arises." Cooper noted that it costs a physician's insurance company anywhere between $8,000 and $25,000 to open a case and close it, even if the physician does not ultimately pay any money and is dropped from the lawsuit.

"Lawyers, like physicians, are subject to objective standards of conduct, and in this case Ms. Little violated those standards," the AMA and OSMA brief states. "Ms. Little's excuse for keeping Dr. Maycon in the case is that it should have been within the province of the jury, acting on its own judgment and without expert witness testimony, to have determined that Dr. Maycon should have examined Mr. Barbato before he actually did. Had this occurred, she contends, the pain Mr. Barbato had before proper treatment would have been reduced. The argument is not only bad law, it is also bad public policy."

Preventing bad public policy and getting lawyers to think twice about who they are naming in a lawsuit is the reason, said Dr. Maycon, he went to court in the first place.

"I'm hoping [this case] will be a start and that physicians can see that they do have recourse," Dr. Maycon said. "If this case sets a precedent, that is all I want. It's not about the money."

It's about saving other physicians from being named in frivolous lawsuits that would open them up to feeling the frustration and aggravation that he's experienced.

Tanya Albert amednews correspondent—

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