Verdict drives physician into bankruptcy

It has been 10 years and nine lawyers since neurosurgeon Lenard J. Rutkowski, MD, was sued for medical malpractice. He holds out hope that sometime in 2006, he will finally be able to put the saga behind him.

Unlike many physicians who are loathe to talk openly about the experience of being named in a lawsuit and its personal and professional ramifications, Dr. Rutkowski has plenty to say.

He is willing to relive the details of his case as often as necessary to get his colleagues to heed his warnings and take his advice. He said he sees it as his duty to use his experience, as best he can, to help his colleagues.

To that end, he and some attorneys advise:

• Keep no possessions in your name.
• Keep cash on hand if possible.
• Keep checking accounts and credit cards which are separate from your spouse.
• Invest in asset protection with a qualified and experienced attorney.
• Have no joint accounts and no co-signers.
• Get licensed in any state you might want to live and work in at some point in the future.

If you believe legal experts who say that plaintiff's attorneys rarely go after physicians' assets if a verdict is more than the physician's coverage amount, these steps might seem a bit drastic.

But Dr. Rutkowski is living proof that being one of those "rare" cases can be devastating for a physician and his or her staff, patients and family.

A long road

Dr. Rutkowski's story begins sometime in 1991 or 1992. He can no longer remember exactly when the middle-aged man who later became the plaintiff came to him seeking a third opinion on a work-related injury that was causing pain, numbness and tingling in his left arm. Two previous physicians recommended surgery on vertebrae C5-C6 and Dr. Rutkowski said it was feasible that a surgery might need to be done on C6-C7 as well. The man decided he wanted Dr. Rutkowski to perform a diskectomy.

Dr. Rutkowski said the patient's weight made it difficult to see all the vertebrae because he had to be x-rayed from front to back rather than on his side. As a result, he said, what he thought was C5-C6 and C6-C7 turned out to be C4-C5 and C5-C6.

For the next three months, Dr. Rutkowski saw the patient on a monthly basis. Following the surgery and physical therapy, Dr. Rutkowski said, the weakness in the patient's left triceps muscle was gone, but some numbness and tingling remained.

Eventually he sought treatment elsewhere, and that neurosurgeon said Dr. Rutkowski should have operated on C6-C7 and the patient was still experiencing pain because Dr. Rutkowski hadn't.

In 1995, the patient sued Dr. Rutkowski and the radiologist who interpreted the films used for surgery. Dr. Rutkowski's insurance company, ISMIE Mutual Insurance Co., appointed him a lawyer.

In early 2001, before the case was scheduled to go to trial, Dr. Rutkowski told his wife about the lawsuit. He had not told her before, he said, because he did not want to upset her. She wanted him to settle, and they asked Dr. Rutkowski's corporate attorney to write a letter to ISMIE to that effect.

Dr. Rutkowski says the letter was ignored, despite the fact that the plaintiff's attorney had indicated his client would be willing to settle for the policy limits and threatened to go after the physicians' assets if he won at trial.

An ISMIE spokesperson said the company does not comment on individual cases or individual physicians.

The case went to trial in November 2001 in Will County, Ill. Dr. Rutkowski said the plaintiff testified that he could not lift a coffee cup. The defense showed the jury a 38-minute surveillance videotape of the plaintiff lifting and moving two- and four-drawer metal cabinets.

The jury awarded the plaintiff $5.6 million, $2.6 million more than the coverage Dr. Rutkowski and the radiologist had between them. In polling the jury, Dr. Rutkowski's attorney learned that at least one juror thought the videotape was an invasion of the plaintiff's privacy.

Dr. Rutkowski appealed the verdict.

For several months, he said, he received very little information about the status of the lawsuit.

Then, in August 2002, his wife went to the bank and found out that all their corporate and personal assets had been frozen, including $100,000 worth of checks for payment of liability insurance, payroll and general bills. He was forced to turn over to the plaintiff's attorney all leases, 1040s for seven years, bank statements and deposit slips for the same time period, investment statements, housing records and accounts receivable, among other things.

A settlement following the judgment had not been reached, and the plaintiff's lawyer wanted the full amount of the verdict.

Dr Rutkowski said he was left with no choice but to file bankruptcy.

On Sept. 5, 2002, with the help of two new lawyers, he filed corporate bankruptcy, which a government lawyer was appointed to oversee. For six weeks, he was unable to pay his staff. His assets were liquidated and his wife was forced to scrounge together funds to buy his office furniture and equipment to keep the practice running. In November of that year, Dr. Rutkowski began receiving a salary determined by the bankruptcy court.

In October 2002, he filed Chapter 11 personal bankruptcy as well, and he had to hire another lawyer to handle that.

Then, in June, 2004, the Illinois Appellate Court, Third District, overturned the jury verdict, leaving both sides to contemplate whether they were willing to endure the stress and expense of another trial. The parties decided to go to mediation and eventually reached an agreement in which the plaintiff settled for policy limits and signed off any rights to appeal.

By this time, Dr. Rutkowski said, he had accumulated more than $400,000 in legal fees.

He became a "poster child" for tort reform in Illinois, and his county medical society was one of the first to hold rallies and purchase billboard space to publicize its cause.

But, in the end, Dr. Rutkowski became one of the many neurosurgeons to be driven from the state by the medical liability climate. He now practices in Mississippi.

The settlement agreement provided for money to be returned to him. His corporate bankruptcy has been rescinded, but his personal bankruptcy has not, due to some disputes arising solely from the bankruptcy proceedings. He holds out hope they will be resolved soon as well.

He believes he and his family have been made stronger by the experience -- which he calls enlightening, educational, expensive, exasperating and excruciating. But that doesn't mean he would wish it upon anybody else.

Indeed, he wants his colleagues to take his story to heart and be as prepared as possible to protect their families and their careers.