Ohio attorney sanctioned for pursuing frivolous liability case

Doctors hope the decision will make lawyers think twice about filing meritless lawsuits. The attorney is appealing the ruling to the state Supreme Court.

By Amy Lynn Sorrel — Posted June 4, 2007

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After being dragged through three years of unnecessary litigation and emotional turmoil, as well as taking a hit on his medical liability insurance, Ohio orthopedic surgeon Michael A. Banks, MD, fought back.

When the underlying medical liability case against him was dismissed a second time, Dr. Banks sued the plaintiff's attorney for frivolous conduct.

An open lawsuit on his record -- his first -- made him ineligible for insurance discounts, he said. But it was the years of checking "yes" on forms for insurance and hospital privileges that asked if he was ever sued and why, that finally got to him.

"I just wanted to be able to say a judge said it was frivolous and it was thrown out," Dr. Banks said.

Now he can, thanks to a May Ohio appeals court ruling that sanctioned Cleveland-based plaintiff attorney John E. Duda for two meritless cases he pursued against Dr. Banks.

Ohio State Medical Assn. officials said the case was among the most flagrant they have seen.

The cases involved Marie Sigmon, a woman who fractured her ankle in 2000. Sigmon went to the emergency department at Southwest General Health Center in the Cleveland area, where Dr. Banks said he treated her briefly in the middle of the night with pain medication. According to court documents, Sigmon alleged she later saw another on-call doctor at the medical center around 5 a.m. who said she did not need pain medication when she requested it. She also alleged that physician called her a drug addict and refused to let her stay in the hospital because she lacked health insurance.

Duda, on behalf of Sigmon, filed a medical liability lawsuit against Dr. Banks and the other doctor, accusing them both of calling her a drug addict and refusing to treat her.

Courts continuously turned the case away. A trial court dismissed the case in 2002 because it lacked an expert witness report supporting the claim that either doctor breached the standard of care.

Duda refiled the suit in 2003, adding punitive damages. Again, the trial court dismissed the case for failing to include an expert witness report.

Fed up, Dr. Banks turned around and sued Duda in 2004.

The 8th Appellate District of the Court of Appeals of Ohio found that Duda engaged in frivolous conduct for including Dr. Banks in the lawsuits, despite Sigmon's own statements that he never mistreated her. Hospital reports contained no record of the other doctor treating Sigmon, the opinion states.

Judges also sanctioned Duda for failing to dismiss the case when he learned from an outside expert that it had no merit, and Sigmon indicated she did not want to pursue the claim.

Dr. Banks won $4,500 for the cost of defending the lawsuit. Another $4,000 went to Southwest General Health Center.

Duda, however, argues that he should not be chastised because he was not pursuing the case in bad faith.

"There was no ill will on my behalf, and I believe the court cannot punish an attorney without ill will, bad faith or malice," he said.

When he couldn't find an expert to certify the lawsuit, Duda didn't voluntarily dismiss the case because he said Sigmon did not tell him whether she wanted to proceed.

Duda is appealing the decision to the state Supreme Court. It is up to the high court to decide whether to accept the case.

Sending a message

Doctors say the appeals court decision is significant because taking attorneys to task for misconduct is an uphill battle.

"The justice system is set up where they want people to have access to the courts," without fear of being sanctioned, said David H. Krause, Dr. Banks' attorney.

Beyond the dollar figure, doctors are looking to discourage lawyers from filing baseless lawsuits in the first place.

Dr. Banks' case "is a perfect example of the kind of egregious situation that we are trying to address," said Almeta Cooper, general counsel to the Ohio State Medical Assn., which filed a friend-of-the-court brief in support of Dr. Banks, along with the American Medical Association/State Medical Societies Litigation Center.

The OSMA received Dr. Banks' case through its Frivolous Lawsuit Committee, a program that aims to educate physicians about the practice and help them defend against it.

"We're not opposed to meritorious cases being brought. We're opposed to abuses of the system that drag people through unnecessary costs and emotional impact," Cooper said.

Since the committee formed in 2003, it has reviewed about 130 cases and recovered a total of $32,500 in awards in four cases, Cooper added.

Dr. Banks said he knows many doctors who are reluctant to challenge lawyers because of the low success rate and the expense, which medical liability insurance doesn't cover, or because they don't know they can.

He hopes his recent victory will encourage the courts and other physicians to hold lawyers accountable.

"We [doctors] have to explain how we do things all the time," Dr. Banks said. He believes lawyers should have to do the same.

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OSMA zeroes in on baseless lawsuits

The Ohio State Medical Assn.'s Frivolous Lawsuit Committee aims to hold attorneys accountable for filing meritless lawsuits. Here is a snapshot of some of the favorable rulings physicians have received with the program's help.

Denizard v. Midwest Retina Inc. et al.
Total award: $22,000
Nature of the case: An Ohio trial court in August 2005 sanctioned a lawyer for wrongly naming four physicians in a medical liability lawsuit that alleged the patient was permanently blinded as a result of laser eye surgery. The court said evidence showed the patient was legally blind before surgery, and not all of the doctors named in the lawsuit were involved in the patient's treatment.

Barbato v. Mercy Medical Center et al.
Total award: $6,000
Nature of the case: An Ohio appeals court in September 2005 sanctioned a trial lawyer for failing to dismiss a medical liability lawsuit against a physician when the lawyer had no medical expert to certify the doctor breached the standard of care. The doctor treated the patient for a complication after liver surgery while her primary physician was on vacation.

Sigmon v. Southwest General Health Center et al.
Total award: $8,500
Nature of the case: An Ohio appeals court in May 2007 sanctioned a trial lawyer for wrongly naming a physician in a medical liability case when court evidence showed that the patient told her lawyer that it was another doctor who mistreated her. The court also chastised the attorney for failing to dismiss the case when he knew he did not have an expert witness to certify that either doctor had breached the standard of care.

Source: Ohio State Medical Assn.

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