Lawyers' misconduct triggers new liability trials

Two courts found that breaches of courtroom etiquette inappropriately influenced case outcomes.

By Amy Lynn Sorrel — Posted May 5, 2008

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A pair of recent court rulings has physicians praising the legal system for keeping plaintiff attorneys' inappropriate conduct in check and assuring fairness in the courtroom.

A Michigan appeals court in March found the plaintiff counsel's improper behavior in a medical liability case was pervasive enough to influence the jury and prevent a just hearing. The decision follows a similar one in October 2007 by the Ohio Supreme Court regarding a birth injury lawsuit.

Both courts said the physician defendants were entitled to new trials and admonished the attorneys for deliberate behavior that included misrepresenting medical testimony or making irrelevant comments; harassing the defendants and expert witnesses; and improperly appealing to the juries' sympathies.

Legal experts say such rulings are rare, generally because the courts afford lawyers latitude when representing their clients.

But doctors commended the courts for holding attorneys accountable when they go too far.

"The right to impartial justice is jeopardized when plaintiff attorneys are allowed to distort and misrepresent evidence presented to a jury," said Robert R. McMillan, a New York-based attorney and the nonphysician member of the American Medical Association Board of Trustees. The Litigation Center of the American Medical Association and State Medical Societies joined the Ohio State Medical Assn. in filing a friend-of-the-court brief in the Ohio Supreme Court case asking for a new trial.

McMillan said plaintiff attorneys "must not be allowed to set aside their obligation to the most basic principles of justice in pursuit of excessive verdicts." The $30 million award in the Ohio case is believed to be the state's highest in a medical liability case.

Such judgments not only drive up medical costs, but they also set a bad precedent and can impact the way juries view future cases, doctors say.

Daniel J. Schulte, legal counsel to the Michigan State Medical Society, said decisions like the recent ones in Michigan and Ohio give judges more teeth when enforcing courtroom rules and offer a strong reminder to lawyers and juries. The MSMS was not involved in the Michigan case.

"There is a limit to what lawyers can do in the courtroom when advocating on behalf of their clients. And juries should be focused on the facts and should make their decision based on the facts in evidence and nothing else," Schulte said.

Plaintiff attorneys agree there is a certain decorum all lawyers must -- and do -- follow in the courtroom. Neither of these cases rose to a level that warranted a new trial, they said.

"There's a difference between doing something wrong and actually affecting the outcome," said Mark Granzotto, who represented Southfield, Mich., plaintiff attorney Joseph Konheim in the Michigan appeal.

He said Konheim was "aggressively dealing with the facts of the case," but not unreasonably so. The Michigan and Ohio rulings could embolden defendants to challenge legitimate jury verdicts, he added.

Jack M. Beam, who represented plaintiff lawyer Geoffrey Fieger in the Ohio Supreme Court, said the high court overstepped. He said Fieger, also of Southfield, Mich., had the right to advocate zealously for his client and the evidence presented supported the jury's liability finding.

Courts draw the line

Judges in Michigan and Ohio said court records for the cases in question were replete with improper remarks made by the plaintiff attorneys.

The Michigan appeals court noted the trial judge "valiantly and repeatedly attempted" to restrain Konheim. "There is a point, however, when an attorney's deliberate misbehavior becomes so repetitive and egregious that it necessarily impacts the jury, notwithstanding the judge's efforts. That point was reached here," the unanimous opinion states.

It also says that Konheim belittled witnesses on the stand and made "irrelevant" and "disparaging" statements that diverted the jury's attention from the case's merits. Konheim is asking the court to reconsider.

The lower court jury rendered a $500,000 verdict against Flint, Mich., neurologist Bhadrabala B. Ganatra, MD, for an alleged misdiagnosis. The doctor denies any wrongdoing. A new trial date has not been set.

Deborah A. Hebert, Dr. Ganatra's lawyer, said the courtroom experience was a "shell-shock" for the physician. "You have this sense you are going to have a fair proceeding and the jury hears both sides of the story, but [Dr. Ganatra] felt she never got that chance," Hebert said. "This [ruling] was a vindication of our judicial system."

Meanwhile, in the Ohio case, Walter Hollins' guardian -- the plaintiff -- alleged the boy's cerebral palsy and severe retardation resulted from negligent prenatal and postnatal care. The doctor and hospital involved denied any negligence, according to court documents.

The state Supreme Court concluded the excessive verdict was given under the influence of "passion and prejudice" after Fieger "intentionally and repeatedly mischaracterized testimony in an attempt to mislead or confuse the jury." The court also noted that the plaintiff's expert exaggerated the economic damages with no medical basis, which also impacted the jury.

"Both the improper expert testimony and the alleged misconduct functioned to taint more than just the amount of the verdict; indeed, they tainted the jury's finding of liability itself," the opinion states.

A new trial is slated to begin in March 2009.

Ohio medical defense lawyer Stephen P. Griffin said attorneys have a lot of leeway, but there are some mechanisms to protect against abuse.

If a doctor's counsel anticipates potential misconduct the defense can file pretrial motions to alert the judge, Griffin said. "It's the court's responsibility to see these things enforced, and these decisions put authority back where it should be -- in the judge's hands."

Hebert said that during a trial, it's important to register with the court any objections to the plaintiff lawyer's strategy. This creates a record should an appeal arise.

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What the lawyers said

Two courts recently ordered new medical liability trials because the plaintiff attorneys overstepped their bounds. Here are excerpts from lower court documents.

Michigan Court of Appeals in Howe v. Boucree

Plaintiff attorney Joseph Konheim to the defendant doctor during cross-examination: "I suggest that we end this now and that you admit you violated the standard of care, which caused injuries. That's my suggestion and stop wasting time. ... This is where you violate the standard of care, so listen carefully because I don't want you to mess me up."

Konheim to the jury during closing arguments: "There's not a neurologist in the state of Michigan that supports Dr. Ganatra in this case. So, let's go over to the next bordering state, Ohio. There wasn't a neurologist in Ohio that would support Dr. Ganatra. And if we go on to Indiana and Illinois, and then we'll eventually get to Missouri, where they find a very nice man."

Ohio Supreme Court in Harris v. Mt. Sinai Medical Center

Plaintiff attorney Geoffrey Fieger to various defense experts: "Well, in all fairness, to you, nothing is a breach of the standard of care. That's why you're here, right? ... I guess you are in their Rolodex, right, for people that they need if one of their clients is getting sued and they need somebody to come up and say that the baby's injury happened way before the doctor committed malpractice?"

Fieger to the jury during closing arguments: "I am standing here as the voice of Walter. Walter is a baby in his mother's womb waiting to be born. Doctors, nurses, I'm suffocating. Please help me be born. ... Please, please nurses, I'm a little baby. I want to play baseball. I want to hug my mother. I want to tell her that I love her. Help me. Please help me to be born."

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Cases at a glance

Did plaintiff lawyers' inappropriate remarks in two medical liability cases prejudice the juries?

Courts in Michigan and Ohio said yes and sent the cases back for retrial.

Impact: Physicians say the decisions help to ensure that all parties have access to a fair trial. Plaintiff attorneys say the rulings could encourage doctors to challenge legitimate verdicts.

Howe v. Boucree, Michigan Court of Appeals; Harris v. Mt. Sinai Medical Center, Supreme Court of Ohio

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