Alicia Gallegos

During the closing arguments in a $10 million malpractice trial, attorney Robert McKenna III told jurors the claims against his client, a gastroenterologist, were baseless and equivalent to “extortion.” The patient’s family blamed the gastroenterologist for their father’s death, alleging the doctor perforated his colon during insertion of a feeding tube. 

“I take pride in what I do, and I’ve got to tell you, in the 30 years I have been doing this, I have never seen a more insulting, factually devoid presentation in my entire career,” Mr. McKenna said, according to court transcripts. “On the strength of this evidence, they want you to award them $10 million. Welcome to America. Welcome to the personal injury machine, the personal injury industrial complex.”

After less than 30 minutes of deliberation, jurors returned a 12-0 verdict in favor of the physician.

However, Mr. McKenna, from Huntington Beach, Calif., described the case very differently to his staff in a celebration video, which he never expected to become public.

In the video, posted on Twitter and Instagram, Mr. McKenna bragged about how his legal team convinced jurors to doubt the patient’s official cause of death. He said the lawsuit involved a guy “that was probably negligently killed, but we kind of made it look like other people did it.”

“We actually had a death certificate that said he died the very way the plaintiff said he died, and we had to say, ‘No, you really shouldn’t believe what that death certificate says, or the coroner from the Orange County coroner’s office ... who says that it’s right,’” Mr. McKenna said in the video.

The 26-minute verdict was the fastest he’s ever received, Mr. McKenna says in the video, encouraging his partner to ring the firm’s victory bell.

“Overcoming all of those hurdles, we managed to sock three lawyers in the face,” Mr. McKenna said, referring to the plaintiffs’ lawyers. 

The video of Mr. McKenna’s remarks is now in wide circulation after having been posted to online attorney forums, Instagram, where it’s been viewed more than 8,000 times, and Twitter, where views have reached over 3,000.

Jorge Ledezma, an Orange County, Calif., attorney who represented the patient’s family in the case, said the remarks make it appear as if Mr. McKenna tricked the jury.

“It was a drastic change from the comments he made to the jury during his closing arguments,” Mr. Ledezma said. “But the video is more important for what he doesn’t say. He doesn’t say his client did everything properly. He doesn’t say our case didn’t have any merit. He doesn’t say his client was a good doctor. Clearly, what he told the jury and what he believes are the exact opposite of each other.”

Mr. McKenna did not return multiple messages seeking comment for this story. In a statement to the LA Times, Mr. McKenna said his remarks were “intended purely as an internal briefing to our staff, using shorthand phrases which might understandably cause confusion for a lay audience unfamiliar with the case at hand, and the law in general.”

“I have expressed my apologies to my client, opposing counsel, and both the medical and legal communities,” Mr. McKenna said in the statement to the LA Times. “However, nothing about my remarks should call into question our very transparent trial strategy or the jury’s verdict in favor of my client.”
 

What happened to the patient?

Enrique Garcia Sanchez, 49, arrived at the critical care unit at South Coast Global Medical Center in Santa Ana, Calif., on Nov. 5, 2017, complaining of abdominal pain. He was diagnosed with acute pancreatitis, acute hypokalemia, and alcohol abuse, and transferred to the ICU, according to the family’s legal complaint.

Mr. Sanchez had a positive D-Dimer test, indicating a probable blood clot, and he appeared to be experiencing septic shock caused by pancreatitis, according to the complaint. By Nov. 17, Mr. Sanchez was suffering from respiratory failure and severe hypoxemia, and as a result, he was sedated. In addition, his abdomen was described as distended with decreased bowel sounds, according to court documents.

On. Nov. 18, a gastrointestinal specialist was consulted because of Mr. Sanchez’s prolonged intubation and oropharyngeal dysphagia, according to the lawsuit. On Nov. 21, air was leaking from Mr. Sanchez’s breathing tube with diffuse infiltration noted on the right side, and pneumonia.

Mr. Sanchez was eventually unable to swallow, and the gastroenterologist inserted a percutaneous endoscopic gastrostomy (PEG) tube, according to court records. 

Mr. Sanchez’s condition worsened, and he developed respiratory distress, hypotension, and weakness during dialysis. On Dec. 9, 2017, physicians noted he had a bacterial infection, and he was later intubated on vent support because of progressive respiratory failure. Additionally, an internist reported that “fecal material” was observed per the PEG tube. Mr. Sanchez’s white blood cell count continued to rise, and his condition deteriorated. Mr. Sanchez died on Dec. 31, 2017.

A death certificate concluded that Mr. Sanchez died from complications of a PEG tube that perforated his colon, according to Mr. Ledezma. The plaintiffs’ legal team argued the gastroenterologist breached the standard of care by failing to ensure the tube was placed properly and failing to remedy the error after leakage was noted. 

“Mr. Garcia died because of a misplaced PEG tube that perforated the colon, resulting in peritonitis and sepsis,” attorney Jose Robles said during his closing arguments. “Mr. Garcia had ascites, a contraindication for PEG tube placement. He had ileus, a contraindication for PEG tube placement. The standard of care requires that [the gastroenterologist] conduct a proper workup to confirm that a PEG tube placement can be done appropriately and safely.”

Mr. McKenna argued the gastroenterologist was not at fault for the patient’s death, and that complications from his pancreatitis ultimately killed him. During the trial, physicians who cared for Mr. Sanchez testified the patient had a less than 50% chance of survival.

“What he had was end-stage catastrophic [pancreatitis] that was affecting his organ system and aspiration pneumonia that made it impossible for him to try to breathe on his own,” Mr. McKenna said during closing arguments. “The man ... had a catastrophic injury that ate most of his pancreas. That is not a survivable event.”
 

Attorney faces backlash from legal community

Since his celebratory remarks were posted online, Mr. McKenna has faced much backlash, particularly from the legal community.

@mgvolada tweeted, “As an attorney I am revolted and I hope sanctions follow ... this is why people hate attorneys.”

@stevewieland, who identified himself as a trial lawyer, wrote he would not feel good about winning such a case.

“No wonder we get no love from the public,” he tweeted.

“Let’s see how the Court of Appeals thinks about your braggadocio and how this makes lawyers appear to the public,” tweeted @Stephen60134955, a self-identified attorney.

Mr. McKenna’s license remains active and in good standing with no disciplinary actions, according to the State Bar of California website.

Mr. Ledezma has filed a motion for a new trial, and a hearing on the motion is scheduled for Aug. 4, 2022. The motion was filed primarily because of issues during the trial, what Mr. Ledezma described as “inflammatory closing arguments,” and in small part, Mr. McKenna’s video remarks, he said.

If the motion is denied, the plaintiffs will move forward with an appeal, he said.

A version of this article first appeared on Medscape.com.

During the closing arguments in a $10 million malpractice trial, attorney Robert McKenna III told jurors the claims against his client, a gastroenterologist, were baseless and equivalent to “extortion.” The patient’s family blamed the gastroenterologist for their father’s death, alleging the doctor perforated his colon during insertion of a feeding tube. 

“I take pride in what I do, and I’ve got to tell you, in the 30 years I have been doing this, I have never seen a more insulting, factually devoid presentation in my entire career,” Mr. McKenna said, according to court transcripts. “On the strength of this evidence, they want you to award them $10 million. Welcome to America. Welcome to the personal injury machine, the personal injury industrial complex.”

After less than 30 minutes of deliberation, jurors returned a 12-0 verdict in favor of the physician.

However, Mr. McKenna, from Huntington Beach, Calif., described the case very differently to his staff in a celebration video, which he never expected to become public.

In the video, posted on Twitter and Instagram, Mr. McKenna bragged about how his legal team convinced jurors to doubt the patient’s official cause of death. He said the lawsuit involved a guy “that was probably negligently killed, but we kind of made it look like other people did it.”

“We actually had a death certificate that said he died the very way the plaintiff said he died, and we had to say, ‘No, you really shouldn’t believe what that death certificate says, or the coroner from the Orange County coroner’s office ... who says that it’s right,’” Mr. McKenna said in the video.

The 26-minute verdict was the fastest he’s ever received, Mr. McKenna says in the video, encouraging his partner to ring the firm’s victory bell.

“Overcoming all of those hurdles, we managed to sock three lawyers in the face,” Mr. McKenna said, referring to the plaintiffs’ lawyers. 

The video of Mr. McKenna’s remarks is now in wide circulation after having been posted to online attorney forums, Instagram, where it’s been viewed more than 8,000 times, and Twitter, where views have reached over 3,000.

Jorge Ledezma, an Orange County, Calif., attorney who represented the patient’s family in the case, said the remarks make it appear as if Mr. McKenna tricked the jury.

“It was a drastic change from the comments he made to the jury during his closing arguments,” Mr. Ledezma said. “But the video is more important for what he doesn’t say. He doesn’t say his client did everything properly. He doesn’t say our case didn’t have any merit. He doesn’t say his client was a good doctor. Clearly, what he told the jury and what he believes are the exact opposite of each other.”

Mr. McKenna did not return multiple messages seeking comment for this story. In a statement to the LA Times, Mr. McKenna said his remarks were “intended purely as an internal briefing to our staff, using shorthand phrases which might understandably cause confusion for a lay audience unfamiliar with the case at hand, and the law in general.”

“I have expressed my apologies to my client, opposing counsel, and both the medical and legal communities,” Mr. McKenna said in the statement to the LA Times. “However, nothing about my remarks should call into question our very transparent trial strategy or the jury’s verdict in favor of my client.”
 

What happened to the patient?

Enrique Garcia Sanchez, 49, arrived at the critical care unit at South Coast Global Medical Center in Santa Ana, Calif., on Nov. 5, 2017, complaining of abdominal pain. He was diagnosed with acute pancreatitis, acute hypokalemia, and alcohol abuse, and transferred to the ICU, according to the family’s legal complaint.

Mr. Sanchez had a positive D-Dimer test, indicating a probable blood clot, and he appeared to be experiencing septic shock caused by pancreatitis, according to the complaint. By Nov. 17, Mr. Sanchez was suffering from respiratory failure and severe hypoxemia, and as a result, he was sedated. In addition, his abdomen was described as distended with decreased bowel sounds, according to court documents.

On. Nov. 18, a gastrointestinal specialist was consulted because of Mr. Sanchez’s prolonged intubation and oropharyngeal dysphagia, according to the lawsuit. On Nov. 21, air was leaking from Mr. Sanchez’s breathing tube with diffuse infiltration noted on the right side, and pneumonia.

Mr. Sanchez was eventually unable to swallow, and the gastroenterologist inserted a percutaneous endoscopic gastrostomy (PEG) tube, according to court records. 

Mr. Sanchez’s condition worsened, and he developed respiratory distress, hypotension, and weakness during dialysis. On Dec. 9, 2017, physicians noted he had a bacterial infection, and he was later intubated on vent support because of progressive respiratory failure. Additionally, an internist reported that “fecal material” was observed per the PEG tube. Mr. Sanchez’s white blood cell count continued to rise, and his condition deteriorated. Mr. Sanchez died on Dec. 31, 2017.

A death certificate concluded that Mr. Sanchez died from complications of a PEG tube that perforated his colon, according to Mr. Ledezma. The plaintiffs’ legal team argued the gastroenterologist breached the standard of care by failing to ensure the tube was placed properly and failing to remedy the error after leakage was noted. 

“Mr. Garcia died because of a misplaced PEG tube that perforated the colon, resulting in peritonitis and sepsis,” attorney Jose Robles said during his closing arguments. “Mr. Garcia had ascites, a contraindication for PEG tube placement. He had ileus, a contraindication for PEG tube placement. The standard of care requires that [the gastroenterologist] conduct a proper workup to confirm that a PEG tube placement can be done appropriately and safely.”

Mr. McKenna argued the gastroenterologist was not at fault for the patient’s death, and that complications from his pancreatitis ultimately killed him. During the trial, physicians who cared for Mr. Sanchez testified the patient had a less than 50% chance of survival.

“What he had was end-stage catastrophic [pancreatitis] that was affecting his organ system and aspiration pneumonia that made it impossible for him to try to breathe on his own,” Mr. McKenna said during closing arguments. “The man ... had a catastrophic injury that ate most of his pancreas. That is not a survivable event.”
 

Attorney faces backlash from legal community

Since his celebratory remarks were posted online, Mr. McKenna has faced much backlash, particularly from the legal community.

@mgvolada tweeted, “As an attorney I am revolted and I hope sanctions follow ... this is why people hate attorneys.”

@stevewieland, who identified himself as a trial lawyer, wrote he would not feel good about winning such a case.

“No wonder we get no love from the public,” he tweeted.

“Let’s see how the Court of Appeals thinks about your braggadocio and how this makes lawyers appear to the public,” tweeted @Stephen60134955, a self-identified attorney.

Mr. McKenna’s license remains active and in good standing with no disciplinary actions, according to the State Bar of California website.

Mr. Ledezma has filed a motion for a new trial, and a hearing on the motion is scheduled for Aug. 4, 2022. The motion was filed primarily because of issues during the trial, what Mr. Ledezma described as “inflammatory closing arguments,” and in small part, Mr. McKenna’s video remarks, he said.

If the motion is denied, the plaintiffs will move forward with an appeal, he said.

A version of this article first appeared on Medscape.com.

During the closing arguments in a $10 million malpractice trial, attorney Robert McKenna III told jurors the claims against his client, a gastroenterologist, were baseless and equivalent to “extortion.” The patient’s family blamed the gastroenterologist for their father’s death, alleging the doctor perforated his colon during insertion of a feeding tube. 

“I take pride in what I do, and I’ve got to tell you, in the 30 years I have been doing this, I have never seen a more insulting, factually devoid presentation in my entire career,” Mr. McKenna said, according to court transcripts. “On the strength of this evidence, they want you to award them $10 million. Welcome to America. Welcome to the personal injury machine, the personal injury industrial complex.”

After less than 30 minutes of deliberation, jurors returned a 12-0 verdict in favor of the physician.

However, Mr. McKenna, from Huntington Beach, Calif., described the case very differently to his staff in a celebration video, which he never expected to become public.

In the video, posted on Twitter and Instagram, Mr. McKenna bragged about how his legal team convinced jurors to doubt the patient’s official cause of death. He said the lawsuit involved a guy “that was probably negligently killed, but we kind of made it look like other people did it.”

“We actually had a death certificate that said he died the very way the plaintiff said he died, and we had to say, ‘No, you really shouldn’t believe what that death certificate says, or the coroner from the Orange County coroner’s office ... who says that it’s right,’” Mr. McKenna said in the video.

The 26-minute verdict was the fastest he’s ever received, Mr. McKenna says in the video, encouraging his partner to ring the firm’s victory bell.

“Overcoming all of those hurdles, we managed to sock three lawyers in the face,” Mr. McKenna said, referring to the plaintiffs’ lawyers. 

The video of Mr. McKenna’s remarks is now in wide circulation after having been posted to online attorney forums, Instagram, where it’s been viewed more than 8,000 times, and Twitter, where views have reached over 3,000.

Jorge Ledezma, an Orange County, Calif., attorney who represented the patient’s family in the case, said the remarks make it appear as if Mr. McKenna tricked the jury.

“It was a drastic change from the comments he made to the jury during his closing arguments,” Mr. Ledezma said. “But the video is more important for what he doesn’t say. He doesn’t say his client did everything properly. He doesn’t say our case didn’t have any merit. He doesn’t say his client was a good doctor. Clearly, what he told the jury and what he believes are the exact opposite of each other.”

Mr. McKenna did not return multiple messages seeking comment for this story. In a statement to the LA Times, Mr. McKenna said his remarks were “intended purely as an internal briefing to our staff, using shorthand phrases which might understandably cause confusion for a lay audience unfamiliar with the case at hand, and the law in general.”

“I have expressed my apologies to my client, opposing counsel, and both the medical and legal communities,” Mr. McKenna said in the statement to the LA Times. “However, nothing about my remarks should call into question our very transparent trial strategy or the jury’s verdict in favor of my client.”
 

What happened to the patient?

Enrique Garcia Sanchez, 49, arrived at the critical care unit at South Coast Global Medical Center in Santa Ana, Calif., on Nov. 5, 2017, complaining of abdominal pain. He was diagnosed with acute pancreatitis, acute hypokalemia, and alcohol abuse, and transferred to the ICU, according to the family’s legal complaint.

Mr. Sanchez had a positive D-Dimer test, indicating a probable blood clot, and he appeared to be experiencing septic shock caused by pancreatitis, according to the complaint. By Nov. 17, Mr. Sanchez was suffering from respiratory failure and severe hypoxemia, and as a result, he was sedated. In addition, his abdomen was described as distended with decreased bowel sounds, according to court documents.

On. Nov. 18, a gastrointestinal specialist was consulted because of Mr. Sanchez’s prolonged intubation and oropharyngeal dysphagia, according to the lawsuit. On Nov. 21, air was leaking from Mr. Sanchez’s breathing tube with diffuse infiltration noted on the right side, and pneumonia.

Mr. Sanchez was eventually unable to swallow, and the gastroenterologist inserted a percutaneous endoscopic gastrostomy (PEG) tube, according to court records. 

Mr. Sanchez’s condition worsened, and he developed respiratory distress, hypotension, and weakness during dialysis. On Dec. 9, 2017, physicians noted he had a bacterial infection, and he was later intubated on vent support because of progressive respiratory failure. Additionally, an internist reported that “fecal material” was observed per the PEG tube. Mr. Sanchez’s white blood cell count continued to rise, and his condition deteriorated. Mr. Sanchez died on Dec. 31, 2017.

A death certificate concluded that Mr. Sanchez died from complications of a PEG tube that perforated his colon, according to Mr. Ledezma. The plaintiffs’ legal team argued the gastroenterologist breached the standard of care by failing to ensure the tube was placed properly and failing to remedy the error after leakage was noted. 

“Mr. Garcia died because of a misplaced PEG tube that perforated the colon, resulting in peritonitis and sepsis,” attorney Jose Robles said during his closing arguments. “Mr. Garcia had ascites, a contraindication for PEG tube placement. He had ileus, a contraindication for PEG tube placement. The standard of care requires that [the gastroenterologist] conduct a proper workup to confirm that a PEG tube placement can be done appropriately and safely.”

Mr. McKenna argued the gastroenterologist was not at fault for the patient’s death, and that complications from his pancreatitis ultimately killed him. During the trial, physicians who cared for Mr. Sanchez testified the patient had a less than 50% chance of survival.

“What he had was end-stage catastrophic [pancreatitis] that was affecting his organ system and aspiration pneumonia that made it impossible for him to try to breathe on his own,” Mr. McKenna said during closing arguments. “The man ... had a catastrophic injury that ate most of his pancreas. That is not a survivable event.”
 

Attorney faces backlash from legal community

Since his celebratory remarks were posted online, Mr. McKenna has faced much backlash, particularly from the legal community.

@mgvolada tweeted, “As an attorney I am revolted and I hope sanctions follow ... this is why people hate attorneys.”

@stevewieland, who identified himself as a trial lawyer, wrote he would not feel good about winning such a case.

“No wonder we get no love from the public,” he tweeted.

“Let’s see how the Court of Appeals thinks about your braggadocio and how this makes lawyers appear to the public,” tweeted @Stephen60134955, a self-identified attorney.

Mr. McKenna’s license remains active and in good standing with no disciplinary actions, according to the State Bar of California website.

Mr. Ledezma has filed a motion for a new trial, and a hearing on the motion is scheduled for Aug. 4, 2022. The motion was filed primarily because of issues during the trial, what Mr. Ledezma described as “inflammatory closing arguments,” and in small part, Mr. McKenna’s video remarks, he said.

If the motion is denied, the plaintiffs will move forward with an appeal, he said.

A version of this article first appeared on Medscape.com.

Angela Intili, MD, an ob.gyn., was used to seeing her medical malpractice insurance premium rise slightly every couple of years. But she was shocked by the drastic rise she recently experienced.

In the last 2 years, Dr. Intili’s premiums shot from $60,000 to $130,000, she said.

“After 30 years of practice, this is the first time I’ve asked myself if I can even afford to continue practicing obstetrics and gynecology,” said Dr. Intili, 62, of Joliet, Ill. “It’s gotten very difficult to make ends meet as far as overhead because of the liability costs. I still love what I’m doing but I don’t know if I can afford to do it anymore.”

Even more frustrating for Dr. Intili was learning that claims in Illinois have sharply declined. From 2016 to 2020, tort filings in Illinois decreased by 43%, according to a state report.

“If claims are going down, I don’t understand why premium payments are going up,” she said.

Physicians across the country are experiencing a similar paradox. Claims are down, yet premiums are rising.

Medscape’s Malpractice Report 2021 found that 42% of primary care physicians were sued in 2020 through mid-2021, down from 52% in 2019. Fifty-six percent of specialists were sued in 2020 through mid-2021 compared with 62% in 2019, the report found. The pandemic was undoubtedly behind the decrease in suits, according to legal experts.

Yet, physicians paid higher premiums in 2021 and are on track for increases again in 2022, according to data and analysts.

According to Conning, direct premiums written for physicians increased 7.0% in 2021 (from $5.01 billion to $5.36 billion). Conning, an investment management firm that serves the insurance industry, analyzes annual financial reports filed by insurers to state insurance departments. The Medical Liability Monitor’s 2021 report found that premiums for internists, surgeons, and ob.gyns. in states without Patient Compensation Funds rose by an average of 2% in 2021.

The disparities raise questions about why physicians are paying higher premiums when having fewer claims is likely saving insurers’ money. Shouldn’t physicians’ rates reflect the reduction in claims?
 

Cases plummet during pandemic

During the pandemic, the volume of new medical malpractice claims dwindled to nearly nothing, said Michael Matray, editor of the Medical Liability Monitor, a national publication that analyzes medical liability insurance premiums.

“The court system closed for a while,” he said. “No elective procedures were being done in 2020 and the early parts of 2021. If you have no treatment, you have no malpractice, so of course, claims frequency tumbled down to a trickle.”

The number of large awards also decreased during the pandemic, noted Bill Burns, a director of insurance research at Conning.

“For claims that were already in the system, many of them could not be resolved because of the court closures, inability to take statements and depositions, etc.,” he said. “This resulted in a drop in verdicts.”

In 2021, there were 16 medical malpractice verdicts of $10 million or more in the United States, according to TransRe, an international reinsurance company that tracks large verdicts. In 2020, there were six verdicts of $10 million or more, TransRe research found. This is down from 52 verdicts of $10 million or more in 2019 and 46 verdicts of $10 million or more in 2018.

But although the pandemic lowered claims and decreased the number of payouts, one important aspect was untouched by the COVID era, said Richard E. Anderson, MD, chairman and CEO for The Doctors Company, a national medical liability insurer, and TDC Group.

“It’s a fair question: If claims are down, why are premiums continuing to go up?” Dr. Anderson said. “The answer is severity.”
 

High-dollar verdicts pave expensive path

The upward trend in severity has continued for about 6 years and has not slowed, Dr. Anderson said. Severity refers to high-dollar verdicts and settlements.

“We’re seeing record-high verdicts all over the country,” he said. “We used to have maps that showed the top 10 medical malpractice verdicts or awards, and they would be clustered where you’d expect them to be, New York, Florida, Illinois, and so forth. Now, if you look at those top 10 verdicts, they could be anywhere in the country.”

In Minnesota for instance, a jury awarded a record $111 million in damages to a college student in May after finding a hospital and an orthopedic surgeon negligent in treating his broken leg. In April, a Kansas City jury awarded a family $25 million after finding that an ob.gyn. and hospital failed to properly treat a mother in labor, causing brain damage to her infant.  

Such record payouts factor into premium costs, said Ned Rand Jr., CEO for ProAssurance, a national medical liability insurer. Though only a minority of claims reach that level, when a high award occurs, it puts pressure on the ultimate cost to resolve claims, he said. The frequency of claims filed is also expected to soon rebound, he noted.

“As we price the product sitting here today, we have to factor both of those in,” Mr. Rand said. “That’s why we, as an industry, continue to see, by and large, rates going up. And we fell behind. Some of this severity, in particular, as an industry, we weren’t pricing fully for, so we’ve been playing catch-up.”

High-dollar awards – also called nuclear verdicts – set the arena for future settlements in similar cases, Dr. Anderson added.

“If it was an orthopedic case for instance, and there was a similar injury in another case, that’s the trial lawyers’ starting point for the award,” he said. “Now, they’re not going to get it, but it distorts the negotiations. As we have more and more nuclear verdicts, it becomes harder to settle claims for reasonable amounts.”
 

What does 2022 have in store?

Analysts say the backlog of malpractice claims in the court system could prove calamitous for premiums and the liability landscape.

Courts are slogging through the pileup caused by the pandemic, but it’s estimated that there is still about a one-third larger case backlog than normal, according to Mr. Matray.

Such delayed claims may end up costing more because of social inflation, said Mr. Burns.

“People look at the world differently than they did 2 years ago,” he said. “A jury may have awarded $5 million for a claim a few years ago. But then the pandemic hits, and we have the George Floyd incident, and we have people out of work and a shortage in baby formula. Yet, companies are still making a lot of money and many insurance companies are turning record profits. Today, that jury may look at a sympathetic malpractice victim and award $10 million for the same claim.”

Concerns also exist about a potential surge of new malpractice claims. Mr. Rand compares the possible wave to a large bubble.

“I liken it to a cartoon, when one character grabs the hose and a big bubble forms as the water builds up,” he said. “Then the character releases, and water comes flooding out. As an industry, we wait, wondering: Is there going to be this flood of claims as the court systems reopen and the statute of limitations approach around some of these claims? That’s an ongoing concern.”

As for impending premiums, physicians can expect rises in 2022 and again in 2023, according to Chris Wojciechowski, a partner at TigerRisk Partners, a reinsurance broker.

“In general, there is a lot of uncertainty around the state of the economy, the tort environment, litigation post COVID, and overall volatility across the capital markets,” he said. “Furthermore, thanks to social and financial inflation, the potential for very severe verdicts has increased dramatically, and as courthouses reopen, the trends are not looking favorable. While many of the physician carriers have strong balance sheets, they can’t lose money on an underwriting basis forever.”

For Dr. Intili, the Illinois ob.gyn., news of another impending increase in 2022 is distressing. She expects another 10%-20% rise in 2022, she said. If she were younger and earlier in her career, she might’ve considered moving, she said, but her family lives in Illinois and she cares for her older parents.

“I’m not ready to retire,” Dr. Intili said. “I’m looking into options, possibly becoming a hospitalist or doing locum tenens work. I’ve been a solo practitioner for 27 years and I love the autonomy. But these high premiums are making it almost impossible to continue.”

A version of this article first appeared on Medscape.com.

Angela Intili, MD, an ob.gyn., was used to seeing her medical malpractice insurance premium rise slightly every couple of years. But she was shocked by the drastic rise she recently experienced.

In the last 2 years, Dr. Intili’s premiums shot from $60,000 to $130,000, she said.

“After 30 years of practice, this is the first time I’ve asked myself if I can even afford to continue practicing obstetrics and gynecology,” said Dr. Intili, 62, of Joliet, Ill. “It’s gotten very difficult to make ends meet as far as overhead because of the liability costs. I still love what I’m doing but I don’t know if I can afford to do it anymore.”

Even more frustrating for Dr. Intili was learning that claims in Illinois have sharply declined. From 2016 to 2020, tort filings in Illinois decreased by 43%, according to a state report.

“If claims are going down, I don’t understand why premium payments are going up,” she said.

Physicians across the country are experiencing a similar paradox. Claims are down, yet premiums are rising.

Medscape’s Malpractice Report 2021 found that 42% of primary care physicians were sued in 2020 through mid-2021, down from 52% in 2019. Fifty-six percent of specialists were sued in 2020 through mid-2021 compared with 62% in 2019, the report found. The pandemic was undoubtedly behind the decrease in suits, according to legal experts.

Yet, physicians paid higher premiums in 2021 and are on track for increases again in 2022, according to data and analysts.

According to Conning, direct premiums written for physicians increased 7.0% in 2021 (from $5.01 billion to $5.36 billion). Conning, an investment management firm that serves the insurance industry, analyzes annual financial reports filed by insurers to state insurance departments. The Medical Liability Monitor’s 2021 report found that premiums for internists, surgeons, and ob.gyns. in states without Patient Compensation Funds rose by an average of 2% in 2021.

The disparities raise questions about why physicians are paying higher premiums when having fewer claims is likely saving insurers’ money. Shouldn’t physicians’ rates reflect the reduction in claims?
 

Cases plummet during pandemic

During the pandemic, the volume of new medical malpractice claims dwindled to nearly nothing, said Michael Matray, editor of the Medical Liability Monitor, a national publication that analyzes medical liability insurance premiums.

“The court system closed for a while,” he said. “No elective procedures were being done in 2020 and the early parts of 2021. If you have no treatment, you have no malpractice, so of course, claims frequency tumbled down to a trickle.”

The number of large awards also decreased during the pandemic, noted Bill Burns, a director of insurance research at Conning.

“For claims that were already in the system, many of them could not be resolved because of the court closures, inability to take statements and depositions, etc.,” he said. “This resulted in a drop in verdicts.”

In 2021, there were 16 medical malpractice verdicts of $10 million or more in the United States, according to TransRe, an international reinsurance company that tracks large verdicts. In 2020, there were six verdicts of $10 million or more, TransRe research found. This is down from 52 verdicts of $10 million or more in 2019 and 46 verdicts of $10 million or more in 2018.

But although the pandemic lowered claims and decreased the number of payouts, one important aspect was untouched by the COVID era, said Richard E. Anderson, MD, chairman and CEO for The Doctors Company, a national medical liability insurer, and TDC Group.

“It’s a fair question: If claims are down, why are premiums continuing to go up?” Dr. Anderson said. “The answer is severity.”
 

High-dollar verdicts pave expensive path

The upward trend in severity has continued for about 6 years and has not slowed, Dr. Anderson said. Severity refers to high-dollar verdicts and settlements.

“We’re seeing record-high verdicts all over the country,” he said. “We used to have maps that showed the top 10 medical malpractice verdicts or awards, and they would be clustered where you’d expect them to be, New York, Florida, Illinois, and so forth. Now, if you look at those top 10 verdicts, they could be anywhere in the country.”

In Minnesota for instance, a jury awarded a record $111 million in damages to a college student in May after finding a hospital and an orthopedic surgeon negligent in treating his broken leg. In April, a Kansas City jury awarded a family $25 million after finding that an ob.gyn. and hospital failed to properly treat a mother in labor, causing brain damage to her infant.  

Such record payouts factor into premium costs, said Ned Rand Jr., CEO for ProAssurance, a national medical liability insurer. Though only a minority of claims reach that level, when a high award occurs, it puts pressure on the ultimate cost to resolve claims, he said. The frequency of claims filed is also expected to soon rebound, he noted.

“As we price the product sitting here today, we have to factor both of those in,” Mr. Rand said. “That’s why we, as an industry, continue to see, by and large, rates going up. And we fell behind. Some of this severity, in particular, as an industry, we weren’t pricing fully for, so we’ve been playing catch-up.”

High-dollar awards – also called nuclear verdicts – set the arena for future settlements in similar cases, Dr. Anderson added.

“If it was an orthopedic case for instance, and there was a similar injury in another case, that’s the trial lawyers’ starting point for the award,” he said. “Now, they’re not going to get it, but it distorts the negotiations. As we have more and more nuclear verdicts, it becomes harder to settle claims for reasonable amounts.”
 

What does 2022 have in store?

Analysts say the backlog of malpractice claims in the court system could prove calamitous for premiums and the liability landscape.

Courts are slogging through the pileup caused by the pandemic, but it’s estimated that there is still about a one-third larger case backlog than normal, according to Mr. Matray.

Such delayed claims may end up costing more because of social inflation, said Mr. Burns.

“People look at the world differently than they did 2 years ago,” he said. “A jury may have awarded $5 million for a claim a few years ago. But then the pandemic hits, and we have the George Floyd incident, and we have people out of work and a shortage in baby formula. Yet, companies are still making a lot of money and many insurance companies are turning record profits. Today, that jury may look at a sympathetic malpractice victim and award $10 million for the same claim.”

Concerns also exist about a potential surge of new malpractice claims. Mr. Rand compares the possible wave to a large bubble.

“I liken it to a cartoon, when one character grabs the hose and a big bubble forms as the water builds up,” he said. “Then the character releases, and water comes flooding out. As an industry, we wait, wondering: Is there going to be this flood of claims as the court systems reopen and the statute of limitations approach around some of these claims? That’s an ongoing concern.”

As for impending premiums, physicians can expect rises in 2022 and again in 2023, according to Chris Wojciechowski, a partner at TigerRisk Partners, a reinsurance broker.

“In general, there is a lot of uncertainty around the state of the economy, the tort environment, litigation post COVID, and overall volatility across the capital markets,” he said. “Furthermore, thanks to social and financial inflation, the potential for very severe verdicts has increased dramatically, and as courthouses reopen, the trends are not looking favorable. While many of the physician carriers have strong balance sheets, they can’t lose money on an underwriting basis forever.”

For Dr. Intili, the Illinois ob.gyn., news of another impending increase in 2022 is distressing. She expects another 10%-20% rise in 2022, she said. If she were younger and earlier in her career, she might’ve considered moving, she said, but her family lives in Illinois and she cares for her older parents.

“I’m not ready to retire,” Dr. Intili said. “I’m looking into options, possibly becoming a hospitalist or doing locum tenens work. I’ve been a solo practitioner for 27 years and I love the autonomy. But these high premiums are making it almost impossible to continue.”

A version of this article first appeared on Medscape.com.

Angela Intili, MD, an ob.gyn., was used to seeing her medical malpractice insurance premium rise slightly every couple of years. But she was shocked by the drastic rise she recently experienced.

In the last 2 years, Dr. Intili’s premiums shot from $60,000 to $130,000, she said.

“After 30 years of practice, this is the first time I’ve asked myself if I can even afford to continue practicing obstetrics and gynecology,” said Dr. Intili, 62, of Joliet, Ill. “It’s gotten very difficult to make ends meet as far as overhead because of the liability costs. I still love what I’m doing but I don’t know if I can afford to do it anymore.”

Even more frustrating for Dr. Intili was learning that claims in Illinois have sharply declined. From 2016 to 2020, tort filings in Illinois decreased by 43%, according to a state report.

“If claims are going down, I don’t understand why premium payments are going up,” she said.

Physicians across the country are experiencing a similar paradox. Claims are down, yet premiums are rising.

Medscape’s Malpractice Report 2021 found that 42% of primary care physicians were sued in 2020 through mid-2021, down from 52% in 2019. Fifty-six percent of specialists were sued in 2020 through mid-2021 compared with 62% in 2019, the report found. The pandemic was undoubtedly behind the decrease in suits, according to legal experts.

Yet, physicians paid higher premiums in 2021 and are on track for increases again in 2022, according to data and analysts.

According to Conning, direct premiums written for physicians increased 7.0% in 2021 (from $5.01 billion to $5.36 billion). Conning, an investment management firm that serves the insurance industry, analyzes annual financial reports filed by insurers to state insurance departments. The Medical Liability Monitor’s 2021 report found that premiums for internists, surgeons, and ob.gyns. in states without Patient Compensation Funds rose by an average of 2% in 2021.

The disparities raise questions about why physicians are paying higher premiums when having fewer claims is likely saving insurers’ money. Shouldn’t physicians’ rates reflect the reduction in claims?
 

Cases plummet during pandemic

During the pandemic, the volume of new medical malpractice claims dwindled to nearly nothing, said Michael Matray, editor of the Medical Liability Monitor, a national publication that analyzes medical liability insurance premiums.

“The court system closed for a while,” he said. “No elective procedures were being done in 2020 and the early parts of 2021. If you have no treatment, you have no malpractice, so of course, claims frequency tumbled down to a trickle.”

The number of large awards also decreased during the pandemic, noted Bill Burns, a director of insurance research at Conning.

“For claims that were already in the system, many of them could not be resolved because of the court closures, inability to take statements and depositions, etc.,” he said. “This resulted in a drop in verdicts.”

In 2021, there were 16 medical malpractice verdicts of $10 million or more in the United States, according to TransRe, an international reinsurance company that tracks large verdicts. In 2020, there were six verdicts of $10 million or more, TransRe research found. This is down from 52 verdicts of $10 million or more in 2019 and 46 verdicts of $10 million or more in 2018.

But although the pandemic lowered claims and decreased the number of payouts, one important aspect was untouched by the COVID era, said Richard E. Anderson, MD, chairman and CEO for The Doctors Company, a national medical liability insurer, and TDC Group.

“It’s a fair question: If claims are down, why are premiums continuing to go up?” Dr. Anderson said. “The answer is severity.”
 

High-dollar verdicts pave expensive path

The upward trend in severity has continued for about 6 years and has not slowed, Dr. Anderson said. Severity refers to high-dollar verdicts and settlements.

“We’re seeing record-high verdicts all over the country,” he said. “We used to have maps that showed the top 10 medical malpractice verdicts or awards, and they would be clustered where you’d expect them to be, New York, Florida, Illinois, and so forth. Now, if you look at those top 10 verdicts, they could be anywhere in the country.”

In Minnesota for instance, a jury awarded a record $111 million in damages to a college student in May after finding a hospital and an orthopedic surgeon negligent in treating his broken leg. In April, a Kansas City jury awarded a family $25 million after finding that an ob.gyn. and hospital failed to properly treat a mother in labor, causing brain damage to her infant.  

Such record payouts factor into premium costs, said Ned Rand Jr., CEO for ProAssurance, a national medical liability insurer. Though only a minority of claims reach that level, when a high award occurs, it puts pressure on the ultimate cost to resolve claims, he said. The frequency of claims filed is also expected to soon rebound, he noted.

“As we price the product sitting here today, we have to factor both of those in,” Mr. Rand said. “That’s why we, as an industry, continue to see, by and large, rates going up. And we fell behind. Some of this severity, in particular, as an industry, we weren’t pricing fully for, so we’ve been playing catch-up.”

High-dollar awards – also called nuclear verdicts – set the arena for future settlements in similar cases, Dr. Anderson added.

“If it was an orthopedic case for instance, and there was a similar injury in another case, that’s the trial lawyers’ starting point for the award,” he said. “Now, they’re not going to get it, but it distorts the negotiations. As we have more and more nuclear verdicts, it becomes harder to settle claims for reasonable amounts.”
 

What does 2022 have in store?

Analysts say the backlog of malpractice claims in the court system could prove calamitous for premiums and the liability landscape.

Courts are slogging through the pileup caused by the pandemic, but it’s estimated that there is still about a one-third larger case backlog than normal, according to Mr. Matray.

Such delayed claims may end up costing more because of social inflation, said Mr. Burns.

“People look at the world differently than they did 2 years ago,” he said. “A jury may have awarded $5 million for a claim a few years ago. But then the pandemic hits, and we have the George Floyd incident, and we have people out of work and a shortage in baby formula. Yet, companies are still making a lot of money and many insurance companies are turning record profits. Today, that jury may look at a sympathetic malpractice victim and award $10 million for the same claim.”

Concerns also exist about a potential surge of new malpractice claims. Mr. Rand compares the possible wave to a large bubble.

“I liken it to a cartoon, when one character grabs the hose and a big bubble forms as the water builds up,” he said. “Then the character releases, and water comes flooding out. As an industry, we wait, wondering: Is there going to be this flood of claims as the court systems reopen and the statute of limitations approach around some of these claims? That’s an ongoing concern.”

As for impending premiums, physicians can expect rises in 2022 and again in 2023, according to Chris Wojciechowski, a partner at TigerRisk Partners, a reinsurance broker.

“In general, there is a lot of uncertainty around the state of the economy, the tort environment, litigation post COVID, and overall volatility across the capital markets,” he said. “Furthermore, thanks to social and financial inflation, the potential for very severe verdicts has increased dramatically, and as courthouses reopen, the trends are not looking favorable. While many of the physician carriers have strong balance sheets, they can’t lose money on an underwriting basis forever.”

For Dr. Intili, the Illinois ob.gyn., news of another impending increase in 2022 is distressing. She expects another 10%-20% rise in 2022, she said. If she were younger and earlier in her career, she might’ve considered moving, she said, but her family lives in Illinois and she cares for her older parents.

“I’m not ready to retire,” Dr. Intili said. “I’m looking into options, possibly becoming a hospitalist or doing locum tenens work. I’ve been a solo practitioner for 27 years and I love the autonomy. But these high premiums are making it almost impossible to continue.”

A version of this article first appeared on Medscape.com.

When the hospital’s trauma team could not get an IV inserted into an accident victim, they called Illinois emergency physician William Sullivan, DO, JD, for help. Dr. Sullivan, who is based in the Chicago suburb of Frankfort, inserted a central line into the patient’s leg on his first attempt – a task that took about 20 minutes.

A year later, Dr. Sullivan was shocked and angry to learn he was being sued by the trauma patient’s family. Inserting the line was his only interaction with the woman, and he had no role in her care management, he said. Yet, the suit claimed he was negligent for failing to diagnose the patient with internal bleeding and for not performing surgery. 

“The lawsuit put a lot of stress on our family,” Dr. Sullivan recalled. “At the time my wife was pregnant. I was in law school, and I was also working full time in the ER to support our family. I remember my wife crying on the couch after reading the complaint and asking how the plaintiff’s attorney could get away with making the allegations he made.”

Dr. Sullivan soon learned that 15 medical providers in the patient’s medical record were named as defendants. This included the director of the radiology department, whose name was on a radiology report as “director” but who was actually out of the country when the incident occurred.

Despite some of the accusations being impossible, a medical expert had claimed there was a “meritorious claim” against every health professional named in the suit. Illinois is among the 28 states that require plaintiffs’ attorneys to file an affidavit of merit for medical malpractice claims to move forward.

Dr. Sullivan wondered who would endorse such outlandish accusations, but the expert’s identity was a mystery. According to Illinois law, plaintiffs’ attorneys can withhold the identity of medical experts with whom they consult for affidavits of merit. About one-third of states with merit requirements permit anonymous experts, according to research and attorneys familiar with the issue.

Because the expert’s identity remains hidden, physicians have no way of knowing whether they were qualified to render an opinion, Dr. Sullivan said. The loopholes can drag out frivolous claims and waste significant time and expense, say legal experts. Frequently, it takes a year or more before innocent physicians are dismissed from unfounded lawsuits by the court or dropped when plaintiffs can’t support the claim.

“It’s hugely frustrating,” said Bruce Montoya, JD, a Colorado medical liability defense attorney. “You have an expert who is not disclosed. Further down the road, when experts are being deposed, the plaintiff does not have to reveal whether any of those testifying experts is the same one who certified the case. You never get to determine whether they, in fact, had a certificate reviewer who was legitimate.”

The laws have led to a recent outcry among physicians and fueled a revised resolution by the American College of Emergency Physicians (ACEP) denouncing anonymous affidavits of merit. (The revision has not yet been published online.)

“The minute experts are identified, they can be vetted,” said Rade B. Vukmir, MD, JD, chair of ACEP’s Medical Legal Committee. “There are reasons that you want to clarify the qualification and veracity of the witness. [Anonymous affidavits of merit] don’t allow that, and there’s something inherently wrong with that.”

Because the identities of consulting experts are unknown, it’s hard to know how many are unqualified. Expert witnesses who testify during trials, on the other hand, have long come under scrutiny for questionable qualifications. Some have come under fire for allegedly lying under oath about their experience, misrepresenting their credentials, and falsely representing their knowledge.

“Considering the known problem of potentially unethical expert witness testimony at trial, there’s is the potential likelihood that experts in anonymous affidavits of merit may sometimes lack the qualifications to give opinions,” said Dr. Vukmir, an emergency care physician in Pittsburgh.
 

Attorneys: Hidden experts increase costs, waste time

In Colorado, Mr. Montoya has seen firsthand how anonymous experts can prolong questionable claims and burden defendants.

Like Illinois, Colorado does not require attorneys to identify the medical experts used to fulfill its certificate of review statute. The expert consulted must have expertise in the same area of the alleged negligence, but does not have to practice in the same specialty, and the statute allows one expert to certify a lawsuit against multiple doctors.

In a recent case, Mr. Montoya represented a Denver neurosurgeon who was sued along with multiple other health care professionals. From the outset, Mr. Montoya argued the claim had no merit against the neurosurgeon, but the plaintiff’s attorney refused to dismiss the physician. Mr. Montoya asked whether the expert consulted for the certificate of merit was a neurosurgeon, but the attorney declined to disclose that information, he said.

The case progressed and Mr. Montoya eventually asked the judge to review the certificate of merit. By law, a judge can confidentially review the certificate of merit and decide whether it aligns with the state statute, but without disclosing the expert’s identity to the defense. The judge ruled the certificate appeared to conform with state law, and the case continued.

A year later, as both sides were getting ready to disclose their experts who would testify, Mr. Montoya again argued the neurosurgeon should be dropped from the suit. This time, he warned if the claim continued against the neurosurgeon, the defense would be filing a motion for summary judgment and pursuing attorney fees and costs. Colorado law allows for such fees if the filing or pursuit of an action is frivolous.

“Boom, my client was dismissed,” Mr. Montoya said. “This is a year later, after multiple conferences among the attorneys, multiple pleadings filed, expert witnesses retained to review the care, discovery exchanged, and records obtained. If we had [a stronger] certificate of review statute, it would have been a different ballgame. It’s never going to get a year down the road.”

In New York, physician defendants have experienced similar woes. The state’s law requires plaintiffs’ attorneys to certify that they consulted with a physician prior to filing the claim, and that they believe based on that discussion, there’s a reasonable basis for the claim to move forward. Attorneys are not required to disclose the expert’s identity.

The law also allows “an out,” explained Morris Auster, JD, senior vice president and chief legislative counsel for the Medical Society of the State of New York. If the attorney made three separate attempts to obtain a consultation, and all three experts would not agree to the consultation, the lawsuit can be filed anyway, he said.

“From our standpoint, it’s important to have an affidavit of merit requirement; it’s better than not having it,” Mr. Auster said. “But its effectiveness in providing control over the filing of lawsuits in New York has never been as strong as it could’ve been.”

Mr. Auster notes that New York has some of the highest liability costs in the country in addition to doctors paying some of the steepest medical liability insurance premiums.

“This really affects a lot of physicians and it’s driving physicians into employment arrangements, so they don’t have to deal with it on their own,” he said. “We support a number of measures to address these significantly high costs, and stronger certificate of merit requirements would certainly be one of those advocacy goals.”
 

Why are anonymous experts allowed?

Certificates of merit that shield the identity of consultants encourage a greater pool of physicians willing to review cases, said J. Matthew Dudley, JD, president of the Illinois Trial Lawyers Association. When the requirements first went into effect in Illinois, there was significant animosity among physicians toward doctors who testified in medical malpractice cases for patients, Mr. Dudley explained.

“Sometimes they would be ostracized from their professional societies, or it would hurt a referral relationship.” he said. “Over time, that animosity has lessened, but there was a concern that if the identity of physicians in certificates of merit weren’t protected, then doctors would not look at cases for patients.”

This would result in additional barriers for patients and their attorneys in pursuing their legal rights, Mr. Dudley said. He said Illinois’ certificate of merit statute is successful in fulfilling its intended purpose, and he has not seen any statistical evidence to suggest otherwise.

“It has proven effective at decreasing filings in medical malpractice and effectively screening medical malpractice cases,” he said. “Certificates of merit help to decrease filings by firms that aren’t that experienced in dealing with those kinds of cases.”

Kentucky is another state that does not require attorneys to identity the experts consulted for certificates of merit. Malpractice defense attorney Andrew DeSimone, JD, who practices in Kentucky, said this isn’t a problem since attorneys eventually must disclose the expert witnesses who will testify at trial.

“Knowing the name behind the certificate of merit is not that pertinent,” Mr. DeSimone said. “Physicians and their attorneys will ultimately have the chance to question and evaluate the expert witnesses used at trial. The certificate of merit is designed to weed out totally frivolous cases that do not have expert support. It’s not designed to be a trial on the merits.” 

The belief that plaintiffs’ attorneys frequently bring weak cases and use unqualified experts to certify claims is not realistic or logical, added Sean Domnick, JD, a Florida medical malpractice attorney and vice president for the American Association for Justice. Medical malpractice cases are extremely challenging for plaintiffs – and they’re expensive, Mr. Domnick said.  

“We can’t afford to take bad cases,” he said. “For me to take on a medical malpractice case, it’s not unusual for me to spend well over $100,000. Remember, if we lose, I don’t get that money back and I don’t get paid. Why in the world would a plaintiff take on that type of a burden for a case they didn’t believe in? The logic escapes me.”

In Florida, where Mr. Domnick practices, plaintiffs’ attorneys must send their certificates of merit to the defense with the expert identified. Domnick believes the requirement is a hindrance.

“It creates a delay that is unnecessary in a system that is already designed to wear our clients down,” he said. “It’s just another component that makes it harder on them.”
 

Hidden experts may insulate plaintiffs’ attorneys from liability

Dr. Sullivan, the Illinois emergency physician, was ultimately dismissed from the multiparty lawsuit, but not for roughly 18 months. After the dismissal, he fought back. He sued the plaintiff’s law firm for malicious prosecution, negligence in hiring, and relying on the opinion of an expert who was unqualified to render an opinion against an emergency physician.

The law firm, however, argued that it was immune from liability because it reasonably relied on the expert’s opinion as required by Illinois law. A trial court agreed with the plaintiffs’ firm. The judge denied Dr. Sullivan’s request to identify the expert, ruling there was no finding that the affidavit was untrue or made without reasonable cause. Dr. Sullivan appealed, and the appellate court upheld the trial’s court decision.

“As happened with my case, law firms can use the affidavit as a defense against countersuits or motions for sanctions,” Dr. Sullivan said. “Although the certificate of merit is intended to prevent attorneys from filing frivolous cases, it can also have the opposite effect of helping to insulate plaintiff attorneys from liability for filing a frivolous lawsuit.”

In Colorado, complaints about the state’s certificate of merit statute have gone before the Colorado Supreme Court. In one case, a lower court ruled that a certificate of merit was deficient because the consultants were not chiropractors. In another case, a nurse defendant argued the claim’s certificate of review was insufficient because the consulting expert was a physician.

In both instances, Colorado judges held the state’s statute does not require consultants to be in the same profession or the same specialty as the health professional defendant. 

In New York, meanwhile, Mr. Auster said several bills to strengthen the state’s certificate of merit requirements have failed in recent years.

“It’s hard to say whether it will improve anytime soon,” he said. “The trial lawyers are a very powerful advocacy force in the state, and they tend to oppose even the slightest of changes in civil liability. [In addition], some of these issues have been put on a lower tier because of trying to manage the pandemic.”

Ultimately, Dr. Sullivan said that courts and legislatures need to strongly consider the ethics of allowing anonymous experts to provide testimony against defendant physicians.

“I also think we need to consider how the notion of a secret expert comports with a defendant physician’s due process,” he said. “If an expert’s opinion is appropriate, why would there be a need to shroud one’s identity in a veil of secrecy?” 

A version of this article first appeared on Medscape.com.

When the hospital’s trauma team could not get an IV inserted into an accident victim, they called Illinois emergency physician William Sullivan, DO, JD, for help. Dr. Sullivan, who is based in the Chicago suburb of Frankfort, inserted a central line into the patient’s leg on his first attempt – a task that took about 20 minutes.

A year later, Dr. Sullivan was shocked and angry to learn he was being sued by the trauma patient’s family. Inserting the line was his only interaction with the woman, and he had no role in her care management, he said. Yet, the suit claimed he was negligent for failing to diagnose the patient with internal bleeding and for not performing surgery. 

“The lawsuit put a lot of stress on our family,” Dr. Sullivan recalled. “At the time my wife was pregnant. I was in law school, and I was also working full time in the ER to support our family. I remember my wife crying on the couch after reading the complaint and asking how the plaintiff’s attorney could get away with making the allegations he made.”

Dr. Sullivan soon learned that 15 medical providers in the patient’s medical record were named as defendants. This included the director of the radiology department, whose name was on a radiology report as “director” but who was actually out of the country when the incident occurred.

Despite some of the accusations being impossible, a medical expert had claimed there was a “meritorious claim” against every health professional named in the suit. Illinois is among the 28 states that require plaintiffs’ attorneys to file an affidavit of merit for medical malpractice claims to move forward.

Dr. Sullivan wondered who would endorse such outlandish accusations, but the expert’s identity was a mystery. According to Illinois law, plaintiffs’ attorneys can withhold the identity of medical experts with whom they consult for affidavits of merit. About one-third of states with merit requirements permit anonymous experts, according to research and attorneys familiar with the issue.

Because the expert’s identity remains hidden, physicians have no way of knowing whether they were qualified to render an opinion, Dr. Sullivan said. The loopholes can drag out frivolous claims and waste significant time and expense, say legal experts. Frequently, it takes a year or more before innocent physicians are dismissed from unfounded lawsuits by the court or dropped when plaintiffs can’t support the claim.

“It’s hugely frustrating,” said Bruce Montoya, JD, a Colorado medical liability defense attorney. “You have an expert who is not disclosed. Further down the road, when experts are being deposed, the plaintiff does not have to reveal whether any of those testifying experts is the same one who certified the case. You never get to determine whether they, in fact, had a certificate reviewer who was legitimate.”

The laws have led to a recent outcry among physicians and fueled a revised resolution by the American College of Emergency Physicians (ACEP) denouncing anonymous affidavits of merit. (The revision has not yet been published online.)

“The minute experts are identified, they can be vetted,” said Rade B. Vukmir, MD, JD, chair of ACEP’s Medical Legal Committee. “There are reasons that you want to clarify the qualification and veracity of the witness. [Anonymous affidavits of merit] don’t allow that, and there’s something inherently wrong with that.”

Because the identities of consulting experts are unknown, it’s hard to know how many are unqualified. Expert witnesses who testify during trials, on the other hand, have long come under scrutiny for questionable qualifications. Some have come under fire for allegedly lying under oath about their experience, misrepresenting their credentials, and falsely representing their knowledge.

“Considering the known problem of potentially unethical expert witness testimony at trial, there’s is the potential likelihood that experts in anonymous affidavits of merit may sometimes lack the qualifications to give opinions,” said Dr. Vukmir, an emergency care physician in Pittsburgh.
 

Attorneys: Hidden experts increase costs, waste time

In Colorado, Mr. Montoya has seen firsthand how anonymous experts can prolong questionable claims and burden defendants.

Like Illinois, Colorado does not require attorneys to identify the medical experts used to fulfill its certificate of review statute. The expert consulted must have expertise in the same area of the alleged negligence, but does not have to practice in the same specialty, and the statute allows one expert to certify a lawsuit against multiple doctors.

In a recent case, Mr. Montoya represented a Denver neurosurgeon who was sued along with multiple other health care professionals. From the outset, Mr. Montoya argued the claim had no merit against the neurosurgeon, but the plaintiff’s attorney refused to dismiss the physician. Mr. Montoya asked whether the expert consulted for the certificate of merit was a neurosurgeon, but the attorney declined to disclose that information, he said.

The case progressed and Mr. Montoya eventually asked the judge to review the certificate of merit. By law, a judge can confidentially review the certificate of merit and decide whether it aligns with the state statute, but without disclosing the expert’s identity to the defense. The judge ruled the certificate appeared to conform with state law, and the case continued.

A year later, as both sides were getting ready to disclose their experts who would testify, Mr. Montoya again argued the neurosurgeon should be dropped from the suit. This time, he warned if the claim continued against the neurosurgeon, the defense would be filing a motion for summary judgment and pursuing attorney fees and costs. Colorado law allows for such fees if the filing or pursuit of an action is frivolous.

“Boom, my client was dismissed,” Mr. Montoya said. “This is a year later, after multiple conferences among the attorneys, multiple pleadings filed, expert witnesses retained to review the care, discovery exchanged, and records obtained. If we had [a stronger] certificate of review statute, it would have been a different ballgame. It’s never going to get a year down the road.”

In New York, physician defendants have experienced similar woes. The state’s law requires plaintiffs’ attorneys to certify that they consulted with a physician prior to filing the claim, and that they believe based on that discussion, there’s a reasonable basis for the claim to move forward. Attorneys are not required to disclose the expert’s identity.

The law also allows “an out,” explained Morris Auster, JD, senior vice president and chief legislative counsel for the Medical Society of the State of New York. If the attorney made three separate attempts to obtain a consultation, and all three experts would not agree to the consultation, the lawsuit can be filed anyway, he said.

“From our standpoint, it’s important to have an affidavit of merit requirement; it’s better than not having it,” Mr. Auster said. “But its effectiveness in providing control over the filing of lawsuits in New York has never been as strong as it could’ve been.”

Mr. Auster notes that New York has some of the highest liability costs in the country in addition to doctors paying some of the steepest medical liability insurance premiums.

“This really affects a lot of physicians and it’s driving physicians into employment arrangements, so they don’t have to deal with it on their own,” he said. “We support a number of measures to address these significantly high costs, and stronger certificate of merit requirements would certainly be one of those advocacy goals.”
 

Why are anonymous experts allowed?

Certificates of merit that shield the identity of consultants encourage a greater pool of physicians willing to review cases, said J. Matthew Dudley, JD, president of the Illinois Trial Lawyers Association. When the requirements first went into effect in Illinois, there was significant animosity among physicians toward doctors who testified in medical malpractice cases for patients, Mr. Dudley explained.

“Sometimes they would be ostracized from their professional societies, or it would hurt a referral relationship.” he said. “Over time, that animosity has lessened, but there was a concern that if the identity of physicians in certificates of merit weren’t protected, then doctors would not look at cases for patients.”

This would result in additional barriers for patients and their attorneys in pursuing their legal rights, Mr. Dudley said. He said Illinois’ certificate of merit statute is successful in fulfilling its intended purpose, and he has not seen any statistical evidence to suggest otherwise.

“It has proven effective at decreasing filings in medical malpractice and effectively screening medical malpractice cases,” he said. “Certificates of merit help to decrease filings by firms that aren’t that experienced in dealing with those kinds of cases.”

Kentucky is another state that does not require attorneys to identity the experts consulted for certificates of merit. Malpractice defense attorney Andrew DeSimone, JD, who practices in Kentucky, said this isn’t a problem since attorneys eventually must disclose the expert witnesses who will testify at trial.

“Knowing the name behind the certificate of merit is not that pertinent,” Mr. DeSimone said. “Physicians and their attorneys will ultimately have the chance to question and evaluate the expert witnesses used at trial. The certificate of merit is designed to weed out totally frivolous cases that do not have expert support. It’s not designed to be a trial on the merits.” 

The belief that plaintiffs’ attorneys frequently bring weak cases and use unqualified experts to certify claims is not realistic or logical, added Sean Domnick, JD, a Florida medical malpractice attorney and vice president for the American Association for Justice. Medical malpractice cases are extremely challenging for plaintiffs – and they’re expensive, Mr. Domnick said.  

“We can’t afford to take bad cases,” he said. “For me to take on a medical malpractice case, it’s not unusual for me to spend well over $100,000. Remember, if we lose, I don’t get that money back and I don’t get paid. Why in the world would a plaintiff take on that type of a burden for a case they didn’t believe in? The logic escapes me.”

In Florida, where Mr. Domnick practices, plaintiffs’ attorneys must send their certificates of merit to the defense with the expert identified. Domnick believes the requirement is a hindrance.

“It creates a delay that is unnecessary in a system that is already designed to wear our clients down,” he said. “It’s just another component that makes it harder on them.”
 

Hidden experts may insulate plaintiffs’ attorneys from liability

Dr. Sullivan, the Illinois emergency physician, was ultimately dismissed from the multiparty lawsuit, but not for roughly 18 months. After the dismissal, he fought back. He sued the plaintiff’s law firm for malicious prosecution, negligence in hiring, and relying on the opinion of an expert who was unqualified to render an opinion against an emergency physician.

The law firm, however, argued that it was immune from liability because it reasonably relied on the expert’s opinion as required by Illinois law. A trial court agreed with the plaintiffs’ firm. The judge denied Dr. Sullivan’s request to identify the expert, ruling there was no finding that the affidavit was untrue or made without reasonable cause. Dr. Sullivan appealed, and the appellate court upheld the trial’s court decision.

“As happened with my case, law firms can use the affidavit as a defense against countersuits or motions for sanctions,” Dr. Sullivan said. “Although the certificate of merit is intended to prevent attorneys from filing frivolous cases, it can also have the opposite effect of helping to insulate plaintiff attorneys from liability for filing a frivolous lawsuit.”

In Colorado, complaints about the state’s certificate of merit statute have gone before the Colorado Supreme Court. In one case, a lower court ruled that a certificate of merit was deficient because the consultants were not chiropractors. In another case, a nurse defendant argued the claim’s certificate of review was insufficient because the consulting expert was a physician.

In both instances, Colorado judges held the state’s statute does not require consultants to be in the same profession or the same specialty as the health professional defendant. 

In New York, meanwhile, Mr. Auster said several bills to strengthen the state’s certificate of merit requirements have failed in recent years.

“It’s hard to say whether it will improve anytime soon,” he said. “The trial lawyers are a very powerful advocacy force in the state, and they tend to oppose even the slightest of changes in civil liability. [In addition], some of these issues have been put on a lower tier because of trying to manage the pandemic.”

Ultimately, Dr. Sullivan said that courts and legislatures need to strongly consider the ethics of allowing anonymous experts to provide testimony against defendant physicians.

“I also think we need to consider how the notion of a secret expert comports with a defendant physician’s due process,” he said. “If an expert’s opinion is appropriate, why would there be a need to shroud one’s identity in a veil of secrecy?” 

A version of this article first appeared on Medscape.com.

When the hospital’s trauma team could not get an IV inserted into an accident victim, they called Illinois emergency physician William Sullivan, DO, JD, for help. Dr. Sullivan, who is based in the Chicago suburb of Frankfort, inserted a central line into the patient’s leg on his first attempt – a task that took about 20 minutes.

A year later, Dr. Sullivan was shocked and angry to learn he was being sued by the trauma patient’s family. Inserting the line was his only interaction with the woman, and he had no role in her care management, he said. Yet, the suit claimed he was negligent for failing to diagnose the patient with internal bleeding and for not performing surgery. 

“The lawsuit put a lot of stress on our family,” Dr. Sullivan recalled. “At the time my wife was pregnant. I was in law school, and I was also working full time in the ER to support our family. I remember my wife crying on the couch after reading the complaint and asking how the plaintiff’s attorney could get away with making the allegations he made.”

Dr. Sullivan soon learned that 15 medical providers in the patient’s medical record were named as defendants. This included the director of the radiology department, whose name was on a radiology report as “director” but who was actually out of the country when the incident occurred.

Despite some of the accusations being impossible, a medical expert had claimed there was a “meritorious claim” against every health professional named in the suit. Illinois is among the 28 states that require plaintiffs’ attorneys to file an affidavit of merit for medical malpractice claims to move forward.

Dr. Sullivan wondered who would endorse such outlandish accusations, but the expert’s identity was a mystery. According to Illinois law, plaintiffs’ attorneys can withhold the identity of medical experts with whom they consult for affidavits of merit. About one-third of states with merit requirements permit anonymous experts, according to research and attorneys familiar with the issue.

Because the expert’s identity remains hidden, physicians have no way of knowing whether they were qualified to render an opinion, Dr. Sullivan said. The loopholes can drag out frivolous claims and waste significant time and expense, say legal experts. Frequently, it takes a year or more before innocent physicians are dismissed from unfounded lawsuits by the court or dropped when plaintiffs can’t support the claim.

“It’s hugely frustrating,” said Bruce Montoya, JD, a Colorado medical liability defense attorney. “You have an expert who is not disclosed. Further down the road, when experts are being deposed, the plaintiff does not have to reveal whether any of those testifying experts is the same one who certified the case. You never get to determine whether they, in fact, had a certificate reviewer who was legitimate.”

The laws have led to a recent outcry among physicians and fueled a revised resolution by the American College of Emergency Physicians (ACEP) denouncing anonymous affidavits of merit. (The revision has not yet been published online.)

“The minute experts are identified, they can be vetted,” said Rade B. Vukmir, MD, JD, chair of ACEP’s Medical Legal Committee. “There are reasons that you want to clarify the qualification and veracity of the witness. [Anonymous affidavits of merit] don’t allow that, and there’s something inherently wrong with that.”

Because the identities of consulting experts are unknown, it’s hard to know how many are unqualified. Expert witnesses who testify during trials, on the other hand, have long come under scrutiny for questionable qualifications. Some have come under fire for allegedly lying under oath about their experience, misrepresenting their credentials, and falsely representing their knowledge.

“Considering the known problem of potentially unethical expert witness testimony at trial, there’s is the potential likelihood that experts in anonymous affidavits of merit may sometimes lack the qualifications to give opinions,” said Dr. Vukmir, an emergency care physician in Pittsburgh.
 

Attorneys: Hidden experts increase costs, waste time

In Colorado, Mr. Montoya has seen firsthand how anonymous experts can prolong questionable claims and burden defendants.

Like Illinois, Colorado does not require attorneys to identify the medical experts used to fulfill its certificate of review statute. The expert consulted must have expertise in the same area of the alleged negligence, but does not have to practice in the same specialty, and the statute allows one expert to certify a lawsuit against multiple doctors.

In a recent case, Mr. Montoya represented a Denver neurosurgeon who was sued along with multiple other health care professionals. From the outset, Mr. Montoya argued the claim had no merit against the neurosurgeon, but the plaintiff’s attorney refused to dismiss the physician. Mr. Montoya asked whether the expert consulted for the certificate of merit was a neurosurgeon, but the attorney declined to disclose that information, he said.

The case progressed and Mr. Montoya eventually asked the judge to review the certificate of merit. By law, a judge can confidentially review the certificate of merit and decide whether it aligns with the state statute, but without disclosing the expert’s identity to the defense. The judge ruled the certificate appeared to conform with state law, and the case continued.

A year later, as both sides were getting ready to disclose their experts who would testify, Mr. Montoya again argued the neurosurgeon should be dropped from the suit. This time, he warned if the claim continued against the neurosurgeon, the defense would be filing a motion for summary judgment and pursuing attorney fees and costs. Colorado law allows for such fees if the filing or pursuit of an action is frivolous.

“Boom, my client was dismissed,” Mr. Montoya said. “This is a year later, after multiple conferences among the attorneys, multiple pleadings filed, expert witnesses retained to review the care, discovery exchanged, and records obtained. If we had [a stronger] certificate of review statute, it would have been a different ballgame. It’s never going to get a year down the road.”

In New York, physician defendants have experienced similar woes. The state’s law requires plaintiffs’ attorneys to certify that they consulted with a physician prior to filing the claim, and that they believe based on that discussion, there’s a reasonable basis for the claim to move forward. Attorneys are not required to disclose the expert’s identity.

The law also allows “an out,” explained Morris Auster, JD, senior vice president and chief legislative counsel for the Medical Society of the State of New York. If the attorney made three separate attempts to obtain a consultation, and all three experts would not agree to the consultation, the lawsuit can be filed anyway, he said.

“From our standpoint, it’s important to have an affidavit of merit requirement; it’s better than not having it,” Mr. Auster said. “But its effectiveness in providing control over the filing of lawsuits in New York has never been as strong as it could’ve been.”

Mr. Auster notes that New York has some of the highest liability costs in the country in addition to doctors paying some of the steepest medical liability insurance premiums.

“This really affects a lot of physicians and it’s driving physicians into employment arrangements, so they don’t have to deal with it on their own,” he said. “We support a number of measures to address these significantly high costs, and stronger certificate of merit requirements would certainly be one of those advocacy goals.”
 

Why are anonymous experts allowed?

Certificates of merit that shield the identity of consultants encourage a greater pool of physicians willing to review cases, said J. Matthew Dudley, JD, president of the Illinois Trial Lawyers Association. When the requirements first went into effect in Illinois, there was significant animosity among physicians toward doctors who testified in medical malpractice cases for patients, Mr. Dudley explained.

“Sometimes they would be ostracized from their professional societies, or it would hurt a referral relationship.” he said. “Over time, that animosity has lessened, but there was a concern that if the identity of physicians in certificates of merit weren’t protected, then doctors would not look at cases for patients.”

This would result in additional barriers for patients and their attorneys in pursuing their legal rights, Mr. Dudley said. He said Illinois’ certificate of merit statute is successful in fulfilling its intended purpose, and he has not seen any statistical evidence to suggest otherwise.

“It has proven effective at decreasing filings in medical malpractice and effectively screening medical malpractice cases,” he said. “Certificates of merit help to decrease filings by firms that aren’t that experienced in dealing with those kinds of cases.”

Kentucky is another state that does not require attorneys to identity the experts consulted for certificates of merit. Malpractice defense attorney Andrew DeSimone, JD, who practices in Kentucky, said this isn’t a problem since attorneys eventually must disclose the expert witnesses who will testify at trial.

“Knowing the name behind the certificate of merit is not that pertinent,” Mr. DeSimone said. “Physicians and their attorneys will ultimately have the chance to question and evaluate the expert witnesses used at trial. The certificate of merit is designed to weed out totally frivolous cases that do not have expert support. It’s not designed to be a trial on the merits.” 

The belief that plaintiffs’ attorneys frequently bring weak cases and use unqualified experts to certify claims is not realistic or logical, added Sean Domnick, JD, a Florida medical malpractice attorney and vice president for the American Association for Justice. Medical malpractice cases are extremely challenging for plaintiffs – and they’re expensive, Mr. Domnick said.  

“We can’t afford to take bad cases,” he said. “For me to take on a medical malpractice case, it’s not unusual for me to spend well over $100,000. Remember, if we lose, I don’t get that money back and I don’t get paid. Why in the world would a plaintiff take on that type of a burden for a case they didn’t believe in? The logic escapes me.”

In Florida, where Mr. Domnick practices, plaintiffs’ attorneys must send their certificates of merit to the defense with the expert identified. Domnick believes the requirement is a hindrance.

“It creates a delay that is unnecessary in a system that is already designed to wear our clients down,” he said. “It’s just another component that makes it harder on them.”
 

Hidden experts may insulate plaintiffs’ attorneys from liability

Dr. Sullivan, the Illinois emergency physician, was ultimately dismissed from the multiparty lawsuit, but not for roughly 18 months. After the dismissal, he fought back. He sued the plaintiff’s law firm for malicious prosecution, negligence in hiring, and relying on the opinion of an expert who was unqualified to render an opinion against an emergency physician.

The law firm, however, argued that it was immune from liability because it reasonably relied on the expert’s opinion as required by Illinois law. A trial court agreed with the plaintiffs’ firm. The judge denied Dr. Sullivan’s request to identify the expert, ruling there was no finding that the affidavit was untrue or made without reasonable cause. Dr. Sullivan appealed, and the appellate court upheld the trial’s court decision.

“As happened with my case, law firms can use the affidavit as a defense against countersuits or motions for sanctions,” Dr. Sullivan said. “Although the certificate of merit is intended to prevent attorneys from filing frivolous cases, it can also have the opposite effect of helping to insulate plaintiff attorneys from liability for filing a frivolous lawsuit.”

In Colorado, complaints about the state’s certificate of merit statute have gone before the Colorado Supreme Court. In one case, a lower court ruled that a certificate of merit was deficient because the consultants were not chiropractors. In another case, a nurse defendant argued the claim’s certificate of review was insufficient because the consulting expert was a physician.

In both instances, Colorado judges held the state’s statute does not require consultants to be in the same profession or the same specialty as the health professional defendant. 

In New York, meanwhile, Mr. Auster said several bills to strengthen the state’s certificate of merit requirements have failed in recent years.

“It’s hard to say whether it will improve anytime soon,” he said. “The trial lawyers are a very powerful advocacy force in the state, and they tend to oppose even the slightest of changes in civil liability. [In addition], some of these issues have been put on a lower tier because of trying to manage the pandemic.”

Ultimately, Dr. Sullivan said that courts and legislatures need to strongly consider the ethics of allowing anonymous experts to provide testimony against defendant physicians.

“I also think we need to consider how the notion of a secret expert comports with a defendant physician’s due process,” he said. “If an expert’s opinion is appropriate, why would there be a need to shroud one’s identity in a veil of secrecy?” 

A version of this article first appeared on Medscape.com.

A New York appeals court has upheld a $1.2 million verdict against an eye surgeon after his patient went blind after cataract removal and lens replacement surgery.

Carola Rozon visited New York ophthalmologic surgeon Edwin Schottenstein, MD, in 2013 to undergo a second eye surgery, according to court documents. As with the previous surgery, Dr. Schottenstein performed phacoemulsification, a technique by which the tip of an ultrasonic machine is inserted into the lens through a small incision in the anterior chamber. The machine’s vibrations break up the hard, inner portion of the nucleus that is affected by the cataract, and the lens is then extracted with irrigation and suction, leaving the capsular bag filled with fluid.

Dr. Schottenstein made a 2.75-mm incision in the anterior chamber and successfully removed most of the nucleus of the cataract lens, according to the appellate decision. However, complications arose during the surgery when the capsular bag tore, and a piece of the lens dropped through the tear into the back of the patient’s eye.

Following the complications, Dr. Schottenstein injected a folded 6-mm intraocular lens (IOL) into the patient’s eye, but it was off center and moved toward the back, according to court documents. He removed it with holding forceps, pulling the unfolded 6-mm IOL through the 2.75-mm incision.

Because it was New Years Eve, Dr. Schottenstein did not immediately seek assistance from a vitreoretinal surgeon. Two days later, on Jan. 2, 2014, the patient was referred to a vitreoretinal surgeon for removal of the dropped lens. The vitreoretinal surgeon reported signs of trauma to the patient’s eye, including corneal edema and blood from a vitreous hemorrhage. Neither the ophthalmologist nor the vitreoretinal surgeon reported any injury to the patient’s iris.

Because of the vitreous hemorrhage, the vitreoretinal surgeon could not visualize the back of the eye. He used a B-scan ultrasound to create an image of the back of the eye to determine whether there were any retinal tears. According to court records, the vitreoretinal surgeon reported that the B-scan did not detect any retinal tears, and the vitreoretinal surgeon scheduled the patient for a follow-up the following week.

On Jan. 9, 2014, there was still blood in the patient’s eye from the hemorrhage. The vitreoretinal surgeon did not perform another B scan and stated that, with a fundoscope, he could see the back of the eye and the piece of fallen lens, according to court documents. No retinal tears were seen. Surgery was scheduled for 6 days later.

During the surgery, the vitreoretinal surgeon noted a choroidal effusion, swelling of the blood vessels that feed the retina. After draining it, he saw a giant retinal tear and retinal detachment at the top of the patient’s eye. Over the course of a year, the vitreoretinal surgeon performed five more surgeries to repair the giant retinal tear, but they were unsuccessful. Ultimately, the patient lost sight in her right eye.

The patient sued Dr. Schottenstein for malpractice in 2016, alleging that, as a result of his negligence, she suffered the retinal tear and is now blind in her right eye. A trial took place in November 2019.
 

What did the experts say?

At trial, the plaintiff’s expert, an ophthalmologic surgeon, testified that removing the 6-mm IOL through the 2.75-mm incision and the associated manipulations of the patient’s eye caused the retinal tear and the ensuing retinal detachment, according to court documents. The small tear was not immediately seen by the physician because he was not looking at that part of the eye. The tear grew to become the giant tear eventually seen by the vitreoretinal surgeon, the expert testified.

The vitreoretinal surgeon would not have seen the small retinal tear when he first examined the patient because B-scan ultrasounds are not generally used to diagnose retinal tears, he testified.

A vitreoretinal expert for Dr. Schottenstein testified that retinal tears that are tractional in origin tend to have a retinal flap that can be seen as a small indentation on a B-scan ultrasound. However, a tear with no flap would not be visualized by the scan. An ophthalmologic surgeon who testified for Dr. Schottenstein said it’s possible the retinal tear would not have been visible to Dr. Schottenstein or the vitreoretinal surgeon if vitreous fluid that was pulled into the anterior chamber was not a strand but just a blob too small to distort the pupil.

The jury found for the plaintiff, awarding the patient $1.2 million. Dr. Schottenstein requested the trial court to overturn the jury’s verdict and award judgment in his favor or grant a new trial, which was denied.

On March 1, 2022, the Supreme Court Appellate Division of the First Judicial Department affirmed the decision.

“To be against the weight of the evidence, a verdict must be palpably wrong,” the judges wrote in their opinion. “In this case, we cannot say the verdict is palpably wrong. The jury found that plaintiff’s injuries were proximately caused by defendant. They deemed the testimony of plaintiff’s expert, when considered with the documentary evidence and all the other evidence in the case, more credible than the testimony of the vitreoretinal surgeon, and defendant’s expert witnesses. The differing testimony and conclusions on causation given by defendant’s witnesses do not require a different outcome.”

Attorneys for the parties in this case did not return messages seeking comment.

A version of this article first appeared on Medscape.com.

A New York appeals court has upheld a $1.2 million verdict against an eye surgeon after his patient went blind after cataract removal and lens replacement surgery.

Carola Rozon visited New York ophthalmologic surgeon Edwin Schottenstein, MD, in 2013 to undergo a second eye surgery, according to court documents. As with the previous surgery, Dr. Schottenstein performed phacoemulsification, a technique by which the tip of an ultrasonic machine is inserted into the lens through a small incision in the anterior chamber. The machine’s vibrations break up the hard, inner portion of the nucleus that is affected by the cataract, and the lens is then extracted with irrigation and suction, leaving the capsular bag filled with fluid.

Dr. Schottenstein made a 2.75-mm incision in the anterior chamber and successfully removed most of the nucleus of the cataract lens, according to the appellate decision. However, complications arose during the surgery when the capsular bag tore, and a piece of the lens dropped through the tear into the back of the patient’s eye.

Following the complications, Dr. Schottenstein injected a folded 6-mm intraocular lens (IOL) into the patient’s eye, but it was off center and moved toward the back, according to court documents. He removed it with holding forceps, pulling the unfolded 6-mm IOL through the 2.75-mm incision.

Because it was New Years Eve, Dr. Schottenstein did not immediately seek assistance from a vitreoretinal surgeon. Two days later, on Jan. 2, 2014, the patient was referred to a vitreoretinal surgeon for removal of the dropped lens. The vitreoretinal surgeon reported signs of trauma to the patient’s eye, including corneal edema and blood from a vitreous hemorrhage. Neither the ophthalmologist nor the vitreoretinal surgeon reported any injury to the patient’s iris.

Because of the vitreous hemorrhage, the vitreoretinal surgeon could not visualize the back of the eye. He used a B-scan ultrasound to create an image of the back of the eye to determine whether there were any retinal tears. According to court records, the vitreoretinal surgeon reported that the B-scan did not detect any retinal tears, and the vitreoretinal surgeon scheduled the patient for a follow-up the following week.

On Jan. 9, 2014, there was still blood in the patient’s eye from the hemorrhage. The vitreoretinal surgeon did not perform another B scan and stated that, with a fundoscope, he could see the back of the eye and the piece of fallen lens, according to court documents. No retinal tears were seen. Surgery was scheduled for 6 days later.

During the surgery, the vitreoretinal surgeon noted a choroidal effusion, swelling of the blood vessels that feed the retina. After draining it, he saw a giant retinal tear and retinal detachment at the top of the patient’s eye. Over the course of a year, the vitreoretinal surgeon performed five more surgeries to repair the giant retinal tear, but they were unsuccessful. Ultimately, the patient lost sight in her right eye.

The patient sued Dr. Schottenstein for malpractice in 2016, alleging that, as a result of his negligence, she suffered the retinal tear and is now blind in her right eye. A trial took place in November 2019.
 

What did the experts say?

At trial, the plaintiff’s expert, an ophthalmologic surgeon, testified that removing the 6-mm IOL through the 2.75-mm incision and the associated manipulations of the patient’s eye caused the retinal tear and the ensuing retinal detachment, according to court documents. The small tear was not immediately seen by the physician because he was not looking at that part of the eye. The tear grew to become the giant tear eventually seen by the vitreoretinal surgeon, the expert testified.

The vitreoretinal surgeon would not have seen the small retinal tear when he first examined the patient because B-scan ultrasounds are not generally used to diagnose retinal tears, he testified.

A vitreoretinal expert for Dr. Schottenstein testified that retinal tears that are tractional in origin tend to have a retinal flap that can be seen as a small indentation on a B-scan ultrasound. However, a tear with no flap would not be visualized by the scan. An ophthalmologic surgeon who testified for Dr. Schottenstein said it’s possible the retinal tear would not have been visible to Dr. Schottenstein or the vitreoretinal surgeon if vitreous fluid that was pulled into the anterior chamber was not a strand but just a blob too small to distort the pupil.

The jury found for the plaintiff, awarding the patient $1.2 million. Dr. Schottenstein requested the trial court to overturn the jury’s verdict and award judgment in his favor or grant a new trial, which was denied.

On March 1, 2022, the Supreme Court Appellate Division of the First Judicial Department affirmed the decision.

“To be against the weight of the evidence, a verdict must be palpably wrong,” the judges wrote in their opinion. “In this case, we cannot say the verdict is palpably wrong. The jury found that plaintiff’s injuries were proximately caused by defendant. They deemed the testimony of plaintiff’s expert, when considered with the documentary evidence and all the other evidence in the case, more credible than the testimony of the vitreoretinal surgeon, and defendant’s expert witnesses. The differing testimony and conclusions on causation given by defendant’s witnesses do not require a different outcome.”

Attorneys for the parties in this case did not return messages seeking comment.

A version of this article first appeared on Medscape.com.

A New York appeals court has upheld a $1.2 million verdict against an eye surgeon after his patient went blind after cataract removal and lens replacement surgery.

Carola Rozon visited New York ophthalmologic surgeon Edwin Schottenstein, MD, in 2013 to undergo a second eye surgery, according to court documents. As with the previous surgery, Dr. Schottenstein performed phacoemulsification, a technique by which the tip of an ultrasonic machine is inserted into the lens through a small incision in the anterior chamber. The machine’s vibrations break up the hard, inner portion of the nucleus that is affected by the cataract, and the lens is then extracted with irrigation and suction, leaving the capsular bag filled with fluid.

Dr. Schottenstein made a 2.75-mm incision in the anterior chamber and successfully removed most of the nucleus of the cataract lens, according to the appellate decision. However, complications arose during the surgery when the capsular bag tore, and a piece of the lens dropped through the tear into the back of the patient’s eye.

Following the complications, Dr. Schottenstein injected a folded 6-mm intraocular lens (IOL) into the patient’s eye, but it was off center and moved toward the back, according to court documents. He removed it with holding forceps, pulling the unfolded 6-mm IOL through the 2.75-mm incision.

Because it was New Years Eve, Dr. Schottenstein did not immediately seek assistance from a vitreoretinal surgeon. Two days later, on Jan. 2, 2014, the patient was referred to a vitreoretinal surgeon for removal of the dropped lens. The vitreoretinal surgeon reported signs of trauma to the patient’s eye, including corneal edema and blood from a vitreous hemorrhage. Neither the ophthalmologist nor the vitreoretinal surgeon reported any injury to the patient’s iris.

Because of the vitreous hemorrhage, the vitreoretinal surgeon could not visualize the back of the eye. He used a B-scan ultrasound to create an image of the back of the eye to determine whether there were any retinal tears. According to court records, the vitreoretinal surgeon reported that the B-scan did not detect any retinal tears, and the vitreoretinal surgeon scheduled the patient for a follow-up the following week.

On Jan. 9, 2014, there was still blood in the patient’s eye from the hemorrhage. The vitreoretinal surgeon did not perform another B scan and stated that, with a fundoscope, he could see the back of the eye and the piece of fallen lens, according to court documents. No retinal tears were seen. Surgery was scheduled for 6 days later.

During the surgery, the vitreoretinal surgeon noted a choroidal effusion, swelling of the blood vessels that feed the retina. After draining it, he saw a giant retinal tear and retinal detachment at the top of the patient’s eye. Over the course of a year, the vitreoretinal surgeon performed five more surgeries to repair the giant retinal tear, but they were unsuccessful. Ultimately, the patient lost sight in her right eye.

The patient sued Dr. Schottenstein for malpractice in 2016, alleging that, as a result of his negligence, she suffered the retinal tear and is now blind in her right eye. A trial took place in November 2019.
 

What did the experts say?

At trial, the plaintiff’s expert, an ophthalmologic surgeon, testified that removing the 6-mm IOL through the 2.75-mm incision and the associated manipulations of the patient’s eye caused the retinal tear and the ensuing retinal detachment, according to court documents. The small tear was not immediately seen by the physician because he was not looking at that part of the eye. The tear grew to become the giant tear eventually seen by the vitreoretinal surgeon, the expert testified.

The vitreoretinal surgeon would not have seen the small retinal tear when he first examined the patient because B-scan ultrasounds are not generally used to diagnose retinal tears, he testified.

A vitreoretinal expert for Dr. Schottenstein testified that retinal tears that are tractional in origin tend to have a retinal flap that can be seen as a small indentation on a B-scan ultrasound. However, a tear with no flap would not be visualized by the scan. An ophthalmologic surgeon who testified for Dr. Schottenstein said it’s possible the retinal tear would not have been visible to Dr. Schottenstein or the vitreoretinal surgeon if vitreous fluid that was pulled into the anterior chamber was not a strand but just a blob too small to distort the pupil.

The jury found for the plaintiff, awarding the patient $1.2 million. Dr. Schottenstein requested the trial court to overturn the jury’s verdict and award judgment in his favor or grant a new trial, which was denied.

On March 1, 2022, the Supreme Court Appellate Division of the First Judicial Department affirmed the decision.

“To be against the weight of the evidence, a verdict must be palpably wrong,” the judges wrote in their opinion. “In this case, we cannot say the verdict is palpably wrong. The jury found that plaintiff’s injuries were proximately caused by defendant. They deemed the testimony of plaintiff’s expert, when considered with the documentary evidence and all the other evidence in the case, more credible than the testimony of the vitreoretinal surgeon, and defendant’s expert witnesses. The differing testimony and conclusions on causation given by defendant’s witnesses do not require a different outcome.”

Attorneys for the parties in this case did not return messages seeking comment.

A version of this article first appeared on Medscape.com.

During a recent virtual medical malpractice trial, the judge called a break, and the participants left their screens. When the trial resumed a short time later, one juror was missing. The court called his phone, but there was no answer.

“Everyone had to keep waiting and waiting while the bailiff kept trying to call,” recalled Elizabeth Leedom, a medical malpractice defense attorney based in Seattle. “The juror fell asleep.”

The sleeping juror caused a significant delay in the trial, Ms. Leedom said. Finally, he woke up, and the trial was able to continue.

In another instance, a potential juror showed up drunk to a virtual jury selection. The man was slurring his words as he answered questions, Ms. Leedom said, and when asked if he was okay, he admitted that he had a drinking problem. The judge asked whether he had consumed alcohol, and the man admitted that he’d been drinking that day. He was excused from jury selection.

These alarming incidents are among the mishaps that happen during virtual medical malpractice trials. Since the pandemic started, many courts have moved to virtual settings to slow the spread of COVID-19. Although some courts have now shifted back to in-person trials, some areas continue to mandate virtual malpractice trials, hearings, and depositions.

Such trials can save money and are convenient, but legal experts say virtual trials present serious challenges for physicians and raise concerns about fairness. Some jurors are not taking virtual cases seriously or do not stay focused on the subject matter, according to attorneys.

“Virtual trials are not as fair to physicians as in-person trials,” said Andrew DeSimone, a medical malpractice defense attorney based in Lexington, Ky. “It’s too easy not to pay attention in a virtual setting. And when you are dealing with complex medical topics, juror attention is a paramount issue.”
 

Casual settings, constant interruptions during jury selections

Understanding and reaching the jury have been the greatest challenges with virtual and hybrid trials, said Laura Eschleman, a medical liability defense attorney based in Atlanta. Hybrid trials are part virtual and part in person.

Ms. Eschleman has participated in jury selections via Zoom in which jurors lounge in bed during the process and spouses and children waltz into the room as they please, she said.

“With over 36 Zoom boxes of potential jurors, assessing each potential juror was difficult to say the least,” she said. “[Jury selection] has always been an opportunity to introduce the defendant physicians to the jurors as humans; doing it virtually took that away. It is difficult to humanize a box on a screen.”

Regarding one virtual jury selection, Ms. Eschleman said the court had narrowed the pool to a final 12 jurors when one juror’s wife burst into his room and started yelling in front of his computer.

The judge allowed her to speak, and the crying woman begged the judge not to select her husband for the trial because it would disrupt the couple’s child care. After a lengthy exchange, they learned that the child was 16 years old and had his own car. The husband disagreed with his wife and wanted to remain a juror.

“This would have never happened had the twelfth juror been called to an in-person jury selection,” Ms. Eschleman said.

Keeping juries focused while the trial is underway can also be a problem, DeSimone said. He describes the courtroom during malpractice trials as a theater of sorts. Jurors watch intently as witnesses testify, evidence is presented, and the judge gives instructions. During virtual trials, however, watching through a screen doesn’t always yield the same captive audiences, he said.

“During Zoom, it’s much harder to connect with the jury because they won’t be as tuned into it,” he said. “If the jury believes the physician is empathetic, conscientious, caring, and compassionate, they will give the physician the benefit of the doubt, even if something went wrong or a bad outcome occurred. Developing that connection through good eye contact, being a teacher, and showing compassion is the most important thing a physician can do when testifying.”

A related challenge is that medical experts can’t connect as well with jurors, and some may have trouble conveying their message from a screen, said Evan Lyman, a medical malpractice defense attorney based in White Plains, N.Y.

“Some experts like to get out of the witness box and kind of take over the courtroom with a laser pointer or a white board,” he said. “For some, that’s what makes them effective experts. Some experts lose their touch when they can’t do that.”

Technical difficulties during virtual trials can cause further woes, said Kari Adams, vice president of claims for Physicians Insurance – A Mutual Company. She recalled a recent case in which technical problems arose during the defense attorney’s closing arguments.

“It’s hard to see our defense attorneys who are used to using all of their advocacy skills, all of their charisma trying to convey it in a virtual format,” she said. “When it’s disrupted, it can really throw things. A lot of their advocacy and personality can play through, but it’s just a little less in that forum.”
 

Doc fights against virtual trial

When Texas cardiologist Amin Al-Ahmad’s malpractice trial was changed to a virtual format because of COVID-19 concerns, Dr. Al-Ahmad and his attorneys fought the move.

They argued that the malpractice case was too complex for a virtual format and that a video trial would deprive Dr. Al-Ahmad of his rights to due process, including the right to trial by jury.

Dr. Al-Ahmad’s case involved allegations that he had failed to promptly diagnose and treat an atrial esophageal fistula, resulting in a patient’s stroke and ongoing neurologic problems. The trial was expected to last up to 10 days. Nine witnesses were expected to testify, and $1 million in damages were at stake, according to court documents.

“The length of trial anticipated, complexity of the medical issues, the confidential medical information at issue, and the number of anticipated medical records exhibits lead to a real risk of juror ‘Zoom fatigue,’ even if the trial is not interrupted with technology glitches, such as jurors dropping off the link or sound loss,” Dr. Al-Ahmad’s attorneys wrote in a petition to the Texas Supreme Court. “The risks of forcing [the defendants] to trial through the procedure of a remote or virtual jury trial are numerous. Not least of these is the risk that [defendants’] relators will be prevented from presenting an adequate defense or being able to fully preserve error during a virtual trial.”

Another concern regards the lack of uniformity from county to county in conducting a virtual trial, said David A. Wright, an attorney for Dr. Al-Ahmad. Some counties don’t permit them, while others permit parties to opt out of virtual trials, he noted.

“Even those that hold virtual trials seem to have different procedures and rules,” he said. “Travis County, where I have tried my virtual cases, has iPads that they provide to each juror so that they are limited to using just the county iPad for the trial. Others, I have heard, permit jurors to use their own devices. There are simply no uniform rules.”

Despite requests to the trial court and petitions to the appellate and Texas Supreme Court, Dr. Al-Ahmad lost his bid to have his trial delayed until in-person trials resumed. The Texas Supreme Court in late 2021 refused to halt the virtual trial.

Dr. Al-Ahmad, based in Austin, declined to comment through his attorney. Mr. Wright said the court’s denial “was not unexpected.”

Dr. Al-Ahmad’s virtual trial went forward in October 2021, and the jury ruled in his favor.

“We were very pleased with the jury’s verdict,” Mr. Wright said.
 

Are virtual trials ending in higher awards?

In addition to jurors’ not taking their roles as seriously, the casual vibe of virtual trials may also be diminishing how jurors view the verdict’s magnitude.

“Virtual trials don’t have the gravity or the seriousness of a real trial,” Ms. Leedom said. “I don’t think the importance of the jury’s decision weighs on them as much during a Zoom trial as it does an in-person trial.”

Alarmingly, Ms. Leedom said that, in her experience, damages in virtual trials have been higher in comparison with damages awarded during in-person trials.

Ms. Adams agreed with this observation.

“We’ll still win cases, but we’re concerned that, in the cases we lose, the damages can be slightly higher because there hasn’t been that interpersonal connection with the defendant,” she said. “It almost becomes like monopoly money to jurors.”
 

Remember these tips during virtual trials

Physicians undergoing virtual trials may have better experiences if they keep a few tips in mind.

Mr. DeSimone emphasized the importance of eye contact with jurors, which can be tricky during virtual settings. It helps if physicians look at the camera, rather than the screen, while talking.

Physicians should be cognizant of their facial expressions as they watch others speak.

“Don’t roll your eyes like: ‘Oh my gosh, he’s an idiot,’ ” Mr. DeSimone said. “Keep a poker face. Be respectful of what’s going on. Don’t be lulled into letting your guard down.”

Before the virtual trial, practice the cross examination and direct examination with your attorney and record it, Ms. Leedom said. That way, doctors can watch how they present on video and make necessary changes before the real trial. Lighting is also important, she noted. Her firm provides special lamps to clients and witnesses for virtual trials and proceedings.

“The lighting makes a huge difference,” she said.

Its also a good idea for physicians to have a paper copy of the records or exhibits that are going to be used so it’s easy for them to flip through them while on the screen. Physicians should also be mindful of how they come across during video depositions, which are sometimes played during virtual trials, Ms. Adams said.

“If you’re not looking professional during the video deposition – you’re eating, you’re not dressed well – the plaintiff’s attorney will take the most inopportune segment of the deposition and portray the physician as: ‘Look, here’s someone who was careless in the medical care, and look, they don’t even look professional when they’re testifying about this horrifying experience,’ ” she said. “They’ll use the clips to make a very careful provider appear distracted.”
 

Are virtual trials and hearings here to stay?

Whether virtual malpractice trials continue will largely depend on the location in which physicians practice. Some insurance carriers are opting to continue virtual trials, but in some areas, trials are being delayed until in-person proceedings can resume, Ms. Adams said. Some areas never adopted video trials and never ceased in-person trials.

“I think it’s going to be very regionally based,” she said. “Some of the smaller, rural counties just don’t have the capacity or the resources to continue, so they’ll probably just go back to in person.”

Not all virtual proceedings are problematic for physicians, say legal experts. Virtual depositions can be beneficial for doctors because they are less intimidating and confrontational than in-person depositions, Mr. Lyman said.

Additionally, virtual mediations can take much less time than in-person mediations, Ms. Adams said. Video depositions and mediations also save travel costs and reduce time missed from work for physicians.

“But I hope we all go back to in-person trials,” Ms. Leedom said. “Even here in King County, [Washington,] where we’ve done federal and state court trials by Zoom, I’m hopeful that it will go back to in-person trials.”

A version of this article first appeared on Medscape.com.

During a recent virtual medical malpractice trial, the judge called a break, and the participants left their screens. When the trial resumed a short time later, one juror was missing. The court called his phone, but there was no answer.

“Everyone had to keep waiting and waiting while the bailiff kept trying to call,” recalled Elizabeth Leedom, a medical malpractice defense attorney based in Seattle. “The juror fell asleep.”

The sleeping juror caused a significant delay in the trial, Ms. Leedom said. Finally, he woke up, and the trial was able to continue.

In another instance, a potential juror showed up drunk to a virtual jury selection. The man was slurring his words as he answered questions, Ms. Leedom said, and when asked if he was okay, he admitted that he had a drinking problem. The judge asked whether he had consumed alcohol, and the man admitted that he’d been drinking that day. He was excused from jury selection.

These alarming incidents are among the mishaps that happen during virtual medical malpractice trials. Since the pandemic started, many courts have moved to virtual settings to slow the spread of COVID-19. Although some courts have now shifted back to in-person trials, some areas continue to mandate virtual malpractice trials, hearings, and depositions.

Such trials can save money and are convenient, but legal experts say virtual trials present serious challenges for physicians and raise concerns about fairness. Some jurors are not taking virtual cases seriously or do not stay focused on the subject matter, according to attorneys.

“Virtual trials are not as fair to physicians as in-person trials,” said Andrew DeSimone, a medical malpractice defense attorney based in Lexington, Ky. “It’s too easy not to pay attention in a virtual setting. And when you are dealing with complex medical topics, juror attention is a paramount issue.”
 

Casual settings, constant interruptions during jury selections

Understanding and reaching the jury have been the greatest challenges with virtual and hybrid trials, said Laura Eschleman, a medical liability defense attorney based in Atlanta. Hybrid trials are part virtual and part in person.

Ms. Eschleman has participated in jury selections via Zoom in which jurors lounge in bed during the process and spouses and children waltz into the room as they please, she said.

“With over 36 Zoom boxes of potential jurors, assessing each potential juror was difficult to say the least,” she said. “[Jury selection] has always been an opportunity to introduce the defendant physicians to the jurors as humans; doing it virtually took that away. It is difficult to humanize a box on a screen.”

Regarding one virtual jury selection, Ms. Eschleman said the court had narrowed the pool to a final 12 jurors when one juror’s wife burst into his room and started yelling in front of his computer.

The judge allowed her to speak, and the crying woman begged the judge not to select her husband for the trial because it would disrupt the couple’s child care. After a lengthy exchange, they learned that the child was 16 years old and had his own car. The husband disagreed with his wife and wanted to remain a juror.

“This would have never happened had the twelfth juror been called to an in-person jury selection,” Ms. Eschleman said.

Keeping juries focused while the trial is underway can also be a problem, DeSimone said. He describes the courtroom during malpractice trials as a theater of sorts. Jurors watch intently as witnesses testify, evidence is presented, and the judge gives instructions. During virtual trials, however, watching through a screen doesn’t always yield the same captive audiences, he said.

“During Zoom, it’s much harder to connect with the jury because they won’t be as tuned into it,” he said. “If the jury believes the physician is empathetic, conscientious, caring, and compassionate, they will give the physician the benefit of the doubt, even if something went wrong or a bad outcome occurred. Developing that connection through good eye contact, being a teacher, and showing compassion is the most important thing a physician can do when testifying.”

A related challenge is that medical experts can’t connect as well with jurors, and some may have trouble conveying their message from a screen, said Evan Lyman, a medical malpractice defense attorney based in White Plains, N.Y.

“Some experts like to get out of the witness box and kind of take over the courtroom with a laser pointer or a white board,” he said. “For some, that’s what makes them effective experts. Some experts lose their touch when they can’t do that.”

Technical difficulties during virtual trials can cause further woes, said Kari Adams, vice president of claims for Physicians Insurance – A Mutual Company. She recalled a recent case in which technical problems arose during the defense attorney’s closing arguments.

“It’s hard to see our defense attorneys who are used to using all of their advocacy skills, all of their charisma trying to convey it in a virtual format,” she said. “When it’s disrupted, it can really throw things. A lot of their advocacy and personality can play through, but it’s just a little less in that forum.”
 

Doc fights against virtual trial

When Texas cardiologist Amin Al-Ahmad’s malpractice trial was changed to a virtual format because of COVID-19 concerns, Dr. Al-Ahmad and his attorneys fought the move.

They argued that the malpractice case was too complex for a virtual format and that a video trial would deprive Dr. Al-Ahmad of his rights to due process, including the right to trial by jury.

Dr. Al-Ahmad’s case involved allegations that he had failed to promptly diagnose and treat an atrial esophageal fistula, resulting in a patient’s stroke and ongoing neurologic problems. The trial was expected to last up to 10 days. Nine witnesses were expected to testify, and $1 million in damages were at stake, according to court documents.

“The length of trial anticipated, complexity of the medical issues, the confidential medical information at issue, and the number of anticipated medical records exhibits lead to a real risk of juror ‘Zoom fatigue,’ even if the trial is not interrupted with technology glitches, such as jurors dropping off the link or sound loss,” Dr. Al-Ahmad’s attorneys wrote in a petition to the Texas Supreme Court. “The risks of forcing [the defendants] to trial through the procedure of a remote or virtual jury trial are numerous. Not least of these is the risk that [defendants’] relators will be prevented from presenting an adequate defense or being able to fully preserve error during a virtual trial.”

Another concern regards the lack of uniformity from county to county in conducting a virtual trial, said David A. Wright, an attorney for Dr. Al-Ahmad. Some counties don’t permit them, while others permit parties to opt out of virtual trials, he noted.

“Even those that hold virtual trials seem to have different procedures and rules,” he said. “Travis County, where I have tried my virtual cases, has iPads that they provide to each juror so that they are limited to using just the county iPad for the trial. Others, I have heard, permit jurors to use their own devices. There are simply no uniform rules.”

Despite requests to the trial court and petitions to the appellate and Texas Supreme Court, Dr. Al-Ahmad lost his bid to have his trial delayed until in-person trials resumed. The Texas Supreme Court in late 2021 refused to halt the virtual trial.

Dr. Al-Ahmad, based in Austin, declined to comment through his attorney. Mr. Wright said the court’s denial “was not unexpected.”

Dr. Al-Ahmad’s virtual trial went forward in October 2021, and the jury ruled in his favor.

“We were very pleased with the jury’s verdict,” Mr. Wright said.
 

Are virtual trials ending in higher awards?

In addition to jurors’ not taking their roles as seriously, the casual vibe of virtual trials may also be diminishing how jurors view the verdict’s magnitude.

“Virtual trials don’t have the gravity or the seriousness of a real trial,” Ms. Leedom said. “I don’t think the importance of the jury’s decision weighs on them as much during a Zoom trial as it does an in-person trial.”

Alarmingly, Ms. Leedom said that, in her experience, damages in virtual trials have been higher in comparison with damages awarded during in-person trials.

Ms. Adams agreed with this observation.

“We’ll still win cases, but we’re concerned that, in the cases we lose, the damages can be slightly higher because there hasn’t been that interpersonal connection with the defendant,” she said. “It almost becomes like monopoly money to jurors.”
 

Remember these tips during virtual trials

Physicians undergoing virtual trials may have better experiences if they keep a few tips in mind.

Mr. DeSimone emphasized the importance of eye contact with jurors, which can be tricky during virtual settings. It helps if physicians look at the camera, rather than the screen, while talking.

Physicians should be cognizant of their facial expressions as they watch others speak.

“Don’t roll your eyes like: ‘Oh my gosh, he’s an idiot,’ ” Mr. DeSimone said. “Keep a poker face. Be respectful of what’s going on. Don’t be lulled into letting your guard down.”

Before the virtual trial, practice the cross examination and direct examination with your attorney and record it, Ms. Leedom said. That way, doctors can watch how they present on video and make necessary changes before the real trial. Lighting is also important, she noted. Her firm provides special lamps to clients and witnesses for virtual trials and proceedings.

“The lighting makes a huge difference,” she said.

Its also a good idea for physicians to have a paper copy of the records or exhibits that are going to be used so it’s easy for them to flip through them while on the screen. Physicians should also be mindful of how they come across during video depositions, which are sometimes played during virtual trials, Ms. Adams said.

“If you’re not looking professional during the video deposition – you’re eating, you’re not dressed well – the plaintiff’s attorney will take the most inopportune segment of the deposition and portray the physician as: ‘Look, here’s someone who was careless in the medical care, and look, they don’t even look professional when they’re testifying about this horrifying experience,’ ” she said. “They’ll use the clips to make a very careful provider appear distracted.”
 

Are virtual trials and hearings here to stay?

Whether virtual malpractice trials continue will largely depend on the location in which physicians practice. Some insurance carriers are opting to continue virtual trials, but in some areas, trials are being delayed until in-person proceedings can resume, Ms. Adams said. Some areas never adopted video trials and never ceased in-person trials.

“I think it’s going to be very regionally based,” she said. “Some of the smaller, rural counties just don’t have the capacity or the resources to continue, so they’ll probably just go back to in person.”

Not all virtual proceedings are problematic for physicians, say legal experts. Virtual depositions can be beneficial for doctors because they are less intimidating and confrontational than in-person depositions, Mr. Lyman said.

Additionally, virtual mediations can take much less time than in-person mediations, Ms. Adams said. Video depositions and mediations also save travel costs and reduce time missed from work for physicians.

“But I hope we all go back to in-person trials,” Ms. Leedom said. “Even here in King County, [Washington,] where we’ve done federal and state court trials by Zoom, I’m hopeful that it will go back to in-person trials.”

A version of this article first appeared on Medscape.com.

During a recent virtual medical malpractice trial, the judge called a break, and the participants left their screens. When the trial resumed a short time later, one juror was missing. The court called his phone, but there was no answer.

“Everyone had to keep waiting and waiting while the bailiff kept trying to call,” recalled Elizabeth Leedom, a medical malpractice defense attorney based in Seattle. “The juror fell asleep.”

The sleeping juror caused a significant delay in the trial, Ms. Leedom said. Finally, he woke up, and the trial was able to continue.

In another instance, a potential juror showed up drunk to a virtual jury selection. The man was slurring his words as he answered questions, Ms. Leedom said, and when asked if he was okay, he admitted that he had a drinking problem. The judge asked whether he had consumed alcohol, and the man admitted that he’d been drinking that day. He was excused from jury selection.

These alarming incidents are among the mishaps that happen during virtual medical malpractice trials. Since the pandemic started, many courts have moved to virtual settings to slow the spread of COVID-19. Although some courts have now shifted back to in-person trials, some areas continue to mandate virtual malpractice trials, hearings, and depositions.

Such trials can save money and are convenient, but legal experts say virtual trials present serious challenges for physicians and raise concerns about fairness. Some jurors are not taking virtual cases seriously or do not stay focused on the subject matter, according to attorneys.

“Virtual trials are not as fair to physicians as in-person trials,” said Andrew DeSimone, a medical malpractice defense attorney based in Lexington, Ky. “It’s too easy not to pay attention in a virtual setting. And when you are dealing with complex medical topics, juror attention is a paramount issue.”
 

Casual settings, constant interruptions during jury selections

Understanding and reaching the jury have been the greatest challenges with virtual and hybrid trials, said Laura Eschleman, a medical liability defense attorney based in Atlanta. Hybrid trials are part virtual and part in person.

Ms. Eschleman has participated in jury selections via Zoom in which jurors lounge in bed during the process and spouses and children waltz into the room as they please, she said.

“With over 36 Zoom boxes of potential jurors, assessing each potential juror was difficult to say the least,” she said. “[Jury selection] has always been an opportunity to introduce the defendant physicians to the jurors as humans; doing it virtually took that away. It is difficult to humanize a box on a screen.”

Regarding one virtual jury selection, Ms. Eschleman said the court had narrowed the pool to a final 12 jurors when one juror’s wife burst into his room and started yelling in front of his computer.

The judge allowed her to speak, and the crying woman begged the judge not to select her husband for the trial because it would disrupt the couple’s child care. After a lengthy exchange, they learned that the child was 16 years old and had his own car. The husband disagreed with his wife and wanted to remain a juror.

“This would have never happened had the twelfth juror been called to an in-person jury selection,” Ms. Eschleman said.

Keeping juries focused while the trial is underway can also be a problem, DeSimone said. He describes the courtroom during malpractice trials as a theater of sorts. Jurors watch intently as witnesses testify, evidence is presented, and the judge gives instructions. During virtual trials, however, watching through a screen doesn’t always yield the same captive audiences, he said.

“During Zoom, it’s much harder to connect with the jury because they won’t be as tuned into it,” he said. “If the jury believes the physician is empathetic, conscientious, caring, and compassionate, they will give the physician the benefit of the doubt, even if something went wrong or a bad outcome occurred. Developing that connection through good eye contact, being a teacher, and showing compassion is the most important thing a physician can do when testifying.”

A related challenge is that medical experts can’t connect as well with jurors, and some may have trouble conveying their message from a screen, said Evan Lyman, a medical malpractice defense attorney based in White Plains, N.Y.

“Some experts like to get out of the witness box and kind of take over the courtroom with a laser pointer or a white board,” he said. “For some, that’s what makes them effective experts. Some experts lose their touch when they can’t do that.”

Technical difficulties during virtual trials can cause further woes, said Kari Adams, vice president of claims for Physicians Insurance – A Mutual Company. She recalled a recent case in which technical problems arose during the defense attorney’s closing arguments.

“It’s hard to see our defense attorneys who are used to using all of their advocacy skills, all of their charisma trying to convey it in a virtual format,” she said. “When it’s disrupted, it can really throw things. A lot of their advocacy and personality can play through, but it’s just a little less in that forum.”
 

Doc fights against virtual trial

When Texas cardiologist Amin Al-Ahmad’s malpractice trial was changed to a virtual format because of COVID-19 concerns, Dr. Al-Ahmad and his attorneys fought the move.

They argued that the malpractice case was too complex for a virtual format and that a video trial would deprive Dr. Al-Ahmad of his rights to due process, including the right to trial by jury.

Dr. Al-Ahmad’s case involved allegations that he had failed to promptly diagnose and treat an atrial esophageal fistula, resulting in a patient’s stroke and ongoing neurologic problems. The trial was expected to last up to 10 days. Nine witnesses were expected to testify, and $1 million in damages were at stake, according to court documents.

“The length of trial anticipated, complexity of the medical issues, the confidential medical information at issue, and the number of anticipated medical records exhibits lead to a real risk of juror ‘Zoom fatigue,’ even if the trial is not interrupted with technology glitches, such as jurors dropping off the link or sound loss,” Dr. Al-Ahmad’s attorneys wrote in a petition to the Texas Supreme Court. “The risks of forcing [the defendants] to trial through the procedure of a remote or virtual jury trial are numerous. Not least of these is the risk that [defendants’] relators will be prevented from presenting an adequate defense or being able to fully preserve error during a virtual trial.”

Another concern regards the lack of uniformity from county to county in conducting a virtual trial, said David A. Wright, an attorney for Dr. Al-Ahmad. Some counties don’t permit them, while others permit parties to opt out of virtual trials, he noted.

“Even those that hold virtual trials seem to have different procedures and rules,” he said. “Travis County, where I have tried my virtual cases, has iPads that they provide to each juror so that they are limited to using just the county iPad for the trial. Others, I have heard, permit jurors to use their own devices. There are simply no uniform rules.”

Despite requests to the trial court and petitions to the appellate and Texas Supreme Court, Dr. Al-Ahmad lost his bid to have his trial delayed until in-person trials resumed. The Texas Supreme Court in late 2021 refused to halt the virtual trial.

Dr. Al-Ahmad, based in Austin, declined to comment through his attorney. Mr. Wright said the court’s denial “was not unexpected.”

Dr. Al-Ahmad’s virtual trial went forward in October 2021, and the jury ruled in his favor.

“We were very pleased with the jury’s verdict,” Mr. Wright said.
 

Are virtual trials ending in higher awards?

In addition to jurors’ not taking their roles as seriously, the casual vibe of virtual trials may also be diminishing how jurors view the verdict’s magnitude.

“Virtual trials don’t have the gravity or the seriousness of a real trial,” Ms. Leedom said. “I don’t think the importance of the jury’s decision weighs on them as much during a Zoom trial as it does an in-person trial.”

Alarmingly, Ms. Leedom said that, in her experience, damages in virtual trials have been higher in comparison with damages awarded during in-person trials.

Ms. Adams agreed with this observation.

“We’ll still win cases, but we’re concerned that, in the cases we lose, the damages can be slightly higher because there hasn’t been that interpersonal connection with the defendant,” she said. “It almost becomes like monopoly money to jurors.”
 

Remember these tips during virtual trials

Physicians undergoing virtual trials may have better experiences if they keep a few tips in mind.

Mr. DeSimone emphasized the importance of eye contact with jurors, which can be tricky during virtual settings. It helps if physicians look at the camera, rather than the screen, while talking.

Physicians should be cognizant of their facial expressions as they watch others speak.

“Don’t roll your eyes like: ‘Oh my gosh, he’s an idiot,’ ” Mr. DeSimone said. “Keep a poker face. Be respectful of what’s going on. Don’t be lulled into letting your guard down.”

Before the virtual trial, practice the cross examination and direct examination with your attorney and record it, Ms. Leedom said. That way, doctors can watch how they present on video and make necessary changes before the real trial. Lighting is also important, she noted. Her firm provides special lamps to clients and witnesses for virtual trials and proceedings.

“The lighting makes a huge difference,” she said.

Its also a good idea for physicians to have a paper copy of the records or exhibits that are going to be used so it’s easy for them to flip through them while on the screen. Physicians should also be mindful of how they come across during video depositions, which are sometimes played during virtual trials, Ms. Adams said.

“If you’re not looking professional during the video deposition – you’re eating, you’re not dressed well – the plaintiff’s attorney will take the most inopportune segment of the deposition and portray the physician as: ‘Look, here’s someone who was careless in the medical care, and look, they don’t even look professional when they’re testifying about this horrifying experience,’ ” she said. “They’ll use the clips to make a very careful provider appear distracted.”
 

Are virtual trials and hearings here to stay?

Whether virtual malpractice trials continue will largely depend on the location in which physicians practice. Some insurance carriers are opting to continue virtual trials, but in some areas, trials are being delayed until in-person proceedings can resume, Ms. Adams said. Some areas never adopted video trials and never ceased in-person trials.

“I think it’s going to be very regionally based,” she said. “Some of the smaller, rural counties just don’t have the capacity or the resources to continue, so they’ll probably just go back to in person.”

Not all virtual proceedings are problematic for physicians, say legal experts. Virtual depositions can be beneficial for doctors because they are less intimidating and confrontational than in-person depositions, Mr. Lyman said.

Additionally, virtual mediations can take much less time than in-person mediations, Ms. Adams said. Video depositions and mediations also save travel costs and reduce time missed from work for physicians.

“But I hope we all go back to in-person trials,” Ms. Leedom said. “Even here in King County, [Washington,] where we’ve done federal and state court trials by Zoom, I’m hopeful that it will go back to in-person trials.”

A version of this article first appeared on Medscape.com.

Urologist Arnaldo Trabucco, MD, was outraged when he learned of a legal claim filed by a patient’s family blaming him for the patient’s death.

Dr. Trabucco had performed a successful laparoscopic left radical nephrectomy on Gerald Scharf, but he died 3 days later from an unrelated condition, said Dr. Trabucco, who now practices in California. The claims alleged not only wrongful death, but also that Dr. Trabucco “committed willful and malicious actions upon” the patient, eventually resulting in his death, and that Dr. Trabucco’s actions constituted “extreme and outrageous behavior.”

The accusations were levied on behalf of the patient’s family by a bankruptcy attorney who admittedly had no experience in medical malpractice litigation.

“It was a vicious allegation that I intentionally tried to kill my own patient,” said Dr. Trabucco, 66. “It’s an allegation that was outlandish. Those were fighting words.”

As the case dragged on, Dr. Trabucco filed a complaint against the Scharfs and bankruptcy attorney Jeffrey Cogan for malicious prosecution and abuse of process. In 2018, Dr. Trabucco prevailed when a jury awarded him $6,232,000 in compensatory damages and $1,768,000 in punitive damages against Mr. Cogan. (No damages were assessed against the patient’s family.)

“This was a principle issue more than anything else,” Dr. Trabucco said. “My name was tarnished and thrown through the mud. I’m very proud of my name and my reputation.”

Mr. Cogan, a bankruptcy attorney licensed in Nevada and California, disputes that his actions were malicious and disagrees with the jury’s verdict.

“I don’t think I did anything wrong with filing the lawsuit,” he said.

Despite the $8 million award, the legal fight between Dr. Trabucco and Mr. Cogan has continued – and is not over yet.
 

Not your ordinary legal journey

Dr. Trabucco completed his medical training in Rome before moving back to the United States to begin his residency in Brooklyn, New York.

He quietly practiced urology in New York for years before moving to Columbus, Ind., to work at a urology clinic. In 2005, Dr. Trabucco made headlines when the Bartholomew County, Ind., sheriff’s deputies found marijuana plants growing in his home. His medical license was suspended, and he pled guilty to a misdemeanor.

Dr. Trabucco said he was unaware that a family member was growing the plants in the home and that he was not responsible for the operation. The misdemeanor has since been expunged from his record, according to Dr. Trabucco. Bartholomew County records do not list the offense. He later moved to Arizona, where he opened a medical practice.

Before the Scharfs filed their malpractice case in 2013, Dr. Trabucco had been embroiled in a series of unrelated legal disputes, including postdivorce proceedings and a complaint against him by another physician, alleging defamation. In that case, the physician claimed Dr. Trabucco published false and defamatory communications about him, including that the physician committed intentional fraud.

Dr. Trabucco filed his own suit for defamation and infliction of emotional distress against the same physician for alleged threats and harassment and making false reports about him to several Arizona state entities. The defamation suit against Dr. Trabucco ended in a settlement, the terms of which are confidential, according to Mr. Cogan. Dr. Trabucco’s defamation case against the physician was dismissed, according to court records, but they do not specify the reason. Dr. Trabucco said he dropped the defamation case because of the other relentless litigation he was facing.

In November 2012, Dr. Trabucco filed for Chapter 7 bankruptcy protection.

Mr. Cogan was representing Dr. Trabucco’s ex-wife’s interests as a creditor in the bankruptcy proceeding and eventually represented the physician who sued Dr. Trabucco, according to court documents. In all, Mr. Cogan represented six creditors in connection to Dr. Trabucco’s bankruptcy, including the Scharfs. He also took over the Scharfs’ malpractice case in Arizona’s Mohave County Superior Court after their attorney died.

As part of a filing in Nevada bankruptcy court called a “Complaint to Determine Nondischargeabiliy of Debts,” Mr. Cogan alleged that Dr. Trabucco knew he lacked sufficient expertise regarding the laparoscopic nephrectomy, that an intraoperative complication occurred because of his error, and that Dr. Trabucco hid the complication and did not attempt to remedy the situation, among other claims.

In addition to the Mohave County filing and the bankruptcy filing, Mr. Cogan filed a similar medical malpractice case against Dr. Trabucco in Arizona district court.

“I believe, based upon the statements by [a retired medical malpractice attorney], that Dr Trabucco squeezed the abdominal aorta,” Mr. Cogan said. “When he did so, plaque from Mr Scharf blocked blood from going to his remaining his kidney, causing his death. My lawsuit said that Dr Trabucco knew he made a mistake and went home rather than fixing the mistake.”

Dr. Trabucco said the laparoscopic nephrectomy went smoothly. A few hours after the surgery, however, Mr. Scharf was transferred to a Las Vegas hospital with a diagnosis of potential occlusion of the abdominal aorta. Surgery was performed, and while the operative report noted the presence of severe atherosclerosis of the abdominal aorta, there was no indication of an intraoperative injury to the aorta from Dr. Trabucco’s surgery, according to court documents filed in U.S. District Court for the District of Arizona. An autopsy performed on Mr. Scharf reported “severe calcific aortic atherosclerosis, primarily at the aortic arch and abdominal aorta at the level of the branching of the renal arteries with small adherent thrombus.” The autopsy did not include any indication or suggestion of an intraoperative injury to the abdominal aorta.

A federal jury found unanimously in favor of Dr. Trabucco, concluding that he did nothing wrong. The original medical malpractice case in Mohave County court was ultimately dismissed and in 2014, the bankruptcy court entered an order discharging Dr. Trabucco from all prepetition debts, according to court records.

Meanwhile, as the malicious prosecution case against Mr. Cogan continued, Dr. Trabucco’s name again drew media attention. His former girlfriend was arrested for plotting to kidnap and kill an attorney who was representing Dr. Trabucco’s ex-wife in a divorce proceeding. Renee Perillo was sentenced to 27 years in prison for conspiracy to commit kidnapping and murder for hire for trying to kill Noblesville, Ind., attorney Rebecca Eimerman. Ms. Eimerman was pursuing divorce settlement money from Dr. Trabucco on behalf of his ex-wife. Ms. Perillo’s son was also charged in the crime.

No charges related to the crime were filed against Dr. Trabucco, according to the Hamilton County Prosecutor’s Office and federal charging records. Dr. Trabucco said he was not involved in the incident and had no knowledge of Perillo’s plans.
 

A hard fought – and still continuing – legal battle

After a 3-day trial, jurors in 2018 found that Mr. Cogan owed Dr. Trabucco $8 million for the harm caused by the unfounded claims.

“This has had a tremendous impact on my life,” Dr. Trabucco said. “It’s cost me a lot of time, money, and anguish.”

Mr. Cogan appealed the verdict. An Arizona appeals court in 2020 upheld the finding of liability for malicious prosecution against Mr. Cogan, but it vacated the finding of liability for abuse of process. Because of the partial reversal, the appellate court vacated the $8 million and sent the case back to the Superior Court in Mohave County, Ariz., for a new trial on damages.

But shortly before the December 2021 retrial, both parties agreed to settle for $8 million.

The settlement, however, is not the end of the litigation between the parties.

Late last year, Mr. Cogan filed a new case in the U.S. District Court for the District of Nevada against Dr. Trabucco alleging the Arizona court that tried the malicious prosecution case never had jurisdiction. Mr. Cogan contends that per federal case law, any damages resulting from a bankruptcy court pleading give the federal court exclusive jurisdiction over the matter.

“I believe that I will win the federal court case,” Mr. Cogan said. “If Judge Andrew P. Gordon finds for me, Dr. Trabucco’s judgment in Arizona is void as Arizona did not have subject-matter jurisdiction.”

Dr. Trabucco says the new federal case has no merit.

“The federal courts have no jurisdiction over civil matters, and this should be thrown out,” he said. “However, my attorney is fully prepared to take this to the Supreme Court [if it moves forward].”

At this article’s deadline, the judge had not yet ruled on Dr. Trabucco’s motion to dismiss the federal complaint.
 

Should a physician sue for malicious prosecution?

Dr. Trabucco’s case raises the question of whether physicians should consider suing a patient after winning their malpractice case. As many doctors know, a successful case outcome doesn’t necessarily undo the time spent, income lost, and reputation harm that often comes with a negligence lawsuit. Is suing for malicious prosecution a reasonable route to recoup some of the damages caused by the claim?

“It’s an uphill struggle to prevail,” said Jeffrey Segal, MD, JD. “Have people done it? Yes, they have. Is it easy? No.”

A physician must hit the marks of a distinct checklist to pursue a malicious prosecution case, said Dr. Segal, CEO and founder of Medical Justice, a company that aids and advises physicians on legal matters. One necessary element is that the malpractice case against the physician must have been adjudicated on the merits, he said. For example, the doctor won the case at trial or the case was dismissed on summary judgment. Summary judgment refers to a court tossing the claim because there was no genuine dispute as to any material fact and because the defendant is entitled to judgment as a matter of law.

If the case was dismissed for another reason, such as a technicality, or dropped by the plaintiff, the case would not meet the threshold for a malicious prosecution claim, Dr. Segal explains.

The physician must also show that the lawsuit was instituted with “malice,” meaning with an intent to hurt the physician, and that the lawsuit was brought without “probable cause,” adds J. Richard Moore, JD, a medical malpractice defense attorney based in Indianapolis.

“The courts are still pretty good at weeding out cases with no merit whatsoever, so even if a physician takes a case to trial and wins, it is exceedingly rare that a case that makes it that far, has no merit whatsoever,” Mr. Moore said.

In addition, a plaintiffs’ attorney may be protected from a malicious prosecution claim because they relied on a medical expert’s opinion that reasonable cause existed to file a lawsuit, notes William Sullivan, DO, JD, an emergency physician and attorney based in Frankfort, Ill.

Dr. Sullivan has personal experience with such a challenge. He filed a malicious prosecution claim against a plaintiffs’ attorney after being dismissed from a medical malpractice case. The claim stemmed from Dr. Sullivan inserting an emergency central line into a trauma patient who was taken to surgery and later died. The suit alleged Dr. Sullivan failed to diagnose internal bleeding and failed to perform surgery, although surgeons at the hospital knew internal bleeding was present and Dr. Sullivan had no privileges to perform surgery, he said.

However, Dr. Sullivan was unable to identify the medical expert involved in the claim. Illinois law allows a malpractice plaintiff to withhold the identity of a medical expert who certifies a malpractice lawsuit. Because Dr. Sullivan couldn’t identify the expert, he could not depose the physician, and the law firm claimed there was no malicious prosecution because it relied on the trauma surgeon’s opinion that Dr. Sullivan was liable.

The trial court agreed with the law firm’s argument and dismissed them from the case, Dr. Sullivan said. The trial court also agreed that the expert trauma surgeon should be allowed to remain anonymous in accordance with Illinois law.
 

Alternative options for doctors to recover damages

For physicians who want to recoup after a frivolous claim, but don’t want to dive into another lawsuit, there are other options, say legal experts.

One alternative is filing a motion for sanctions, Dr. Sullivan said. If an attorney files a lawsuit that does not have a reasonable basis in fact or law, that attorney could be subject to sanctions, including paying for the physician’s attorney’s fees and costs, he explained. If a motion for sanctions is granted against an opposing attorney, that fact may be reportable to the attorney’s insurance carrier and also reportable to the attorney’s state licensing board. A motion for sanctions does not require filing of a separate lawsuit and filing a motion for sanctions may allow the defendant physician or the defense attorney to depose the plaintiff attorney regarding the reasonable basis that attorney had for filing a lawsuit, Dr. Sullivan said.

Dr. Sullivan recently represented a physician who won a motion for sanctions. During the legal action against him, Dr. Sullivan presented the plaintiff’s attorney with information showing why his lawsuit did not have a reasonable basis, but the attorney repeatedly ignored the information.

“Eventually, I filed a motion to dismiss the physician from the lawsuit and that motion was granted,” he said. “I also filed a motion for sanctions so that the physician could recover the costs involved in defending the claim. The trial court granted our motion for sanctions against the plaintiff and her law firm and awarded my client more than $10,000.”

Physicians who believe a plaintiffs’ attorney is acting unprofessionally can also file a complaint with the attorney’s bar, Dr. Segal said. And expert witnesses acting in bad faith can be reported to professional societies, medical licensing boards, and/or specialty boards.

“There are a number of avenues to address the sense of justice,” he said. “But if you’re looking for a payday, the only way to do that is by going to court.”

A version of this article first appeared on Medscape.com.

Urologist Arnaldo Trabucco, MD, was outraged when he learned of a legal claim filed by a patient’s family blaming him for the patient’s death.

Dr. Trabucco had performed a successful laparoscopic left radical nephrectomy on Gerald Scharf, but he died 3 days later from an unrelated condition, said Dr. Trabucco, who now practices in California. The claims alleged not only wrongful death, but also that Dr. Trabucco “committed willful and malicious actions upon” the patient, eventually resulting in his death, and that Dr. Trabucco’s actions constituted “extreme and outrageous behavior.”

The accusations were levied on behalf of the patient’s family by a bankruptcy attorney who admittedly had no experience in medical malpractice litigation.

“It was a vicious allegation that I intentionally tried to kill my own patient,” said Dr. Trabucco, 66. “It’s an allegation that was outlandish. Those were fighting words.”

As the case dragged on, Dr. Trabucco filed a complaint against the Scharfs and bankruptcy attorney Jeffrey Cogan for malicious prosecution and abuse of process. In 2018, Dr. Trabucco prevailed when a jury awarded him $6,232,000 in compensatory damages and $1,768,000 in punitive damages against Mr. Cogan. (No damages were assessed against the patient’s family.)

“This was a principle issue more than anything else,” Dr. Trabucco said. “My name was tarnished and thrown through the mud. I’m very proud of my name and my reputation.”

Mr. Cogan, a bankruptcy attorney licensed in Nevada and California, disputes that his actions were malicious and disagrees with the jury’s verdict.

“I don’t think I did anything wrong with filing the lawsuit,” he said.

Despite the $8 million award, the legal fight between Dr. Trabucco and Mr. Cogan has continued – and is not over yet.
 

Not your ordinary legal journey

Dr. Trabucco completed his medical training in Rome before moving back to the United States to begin his residency in Brooklyn, New York.

He quietly practiced urology in New York for years before moving to Columbus, Ind., to work at a urology clinic. In 2005, Dr. Trabucco made headlines when the Bartholomew County, Ind., sheriff’s deputies found marijuana plants growing in his home. His medical license was suspended, and he pled guilty to a misdemeanor.

Dr. Trabucco said he was unaware that a family member was growing the plants in the home and that he was not responsible for the operation. The misdemeanor has since been expunged from his record, according to Dr. Trabucco. Bartholomew County records do not list the offense. He later moved to Arizona, where he opened a medical practice.

Before the Scharfs filed their malpractice case in 2013, Dr. Trabucco had been embroiled in a series of unrelated legal disputes, including postdivorce proceedings and a complaint against him by another physician, alleging defamation. In that case, the physician claimed Dr. Trabucco published false and defamatory communications about him, including that the physician committed intentional fraud.

Dr. Trabucco filed his own suit for defamation and infliction of emotional distress against the same physician for alleged threats and harassment and making false reports about him to several Arizona state entities. The defamation suit against Dr. Trabucco ended in a settlement, the terms of which are confidential, according to Mr. Cogan. Dr. Trabucco’s defamation case against the physician was dismissed, according to court records, but they do not specify the reason. Dr. Trabucco said he dropped the defamation case because of the other relentless litigation he was facing.

In November 2012, Dr. Trabucco filed for Chapter 7 bankruptcy protection.

Mr. Cogan was representing Dr. Trabucco’s ex-wife’s interests as a creditor in the bankruptcy proceeding and eventually represented the physician who sued Dr. Trabucco, according to court documents. In all, Mr. Cogan represented six creditors in connection to Dr. Trabucco’s bankruptcy, including the Scharfs. He also took over the Scharfs’ malpractice case in Arizona’s Mohave County Superior Court after their attorney died.

As part of a filing in Nevada bankruptcy court called a “Complaint to Determine Nondischargeabiliy of Debts,” Mr. Cogan alleged that Dr. Trabucco knew he lacked sufficient expertise regarding the laparoscopic nephrectomy, that an intraoperative complication occurred because of his error, and that Dr. Trabucco hid the complication and did not attempt to remedy the situation, among other claims.

In addition to the Mohave County filing and the bankruptcy filing, Mr. Cogan filed a similar medical malpractice case against Dr. Trabucco in Arizona district court.

“I believe, based upon the statements by [a retired medical malpractice attorney], that Dr Trabucco squeezed the abdominal aorta,” Mr. Cogan said. “When he did so, plaque from Mr Scharf blocked blood from going to his remaining his kidney, causing his death. My lawsuit said that Dr Trabucco knew he made a mistake and went home rather than fixing the mistake.”

Dr. Trabucco said the laparoscopic nephrectomy went smoothly. A few hours after the surgery, however, Mr. Scharf was transferred to a Las Vegas hospital with a diagnosis of potential occlusion of the abdominal aorta. Surgery was performed, and while the operative report noted the presence of severe atherosclerosis of the abdominal aorta, there was no indication of an intraoperative injury to the aorta from Dr. Trabucco’s surgery, according to court documents filed in U.S. District Court for the District of Arizona. An autopsy performed on Mr. Scharf reported “severe calcific aortic atherosclerosis, primarily at the aortic arch and abdominal aorta at the level of the branching of the renal arteries with small adherent thrombus.” The autopsy did not include any indication or suggestion of an intraoperative injury to the abdominal aorta.

A federal jury found unanimously in favor of Dr. Trabucco, concluding that he did nothing wrong. The original medical malpractice case in Mohave County court was ultimately dismissed and in 2014, the bankruptcy court entered an order discharging Dr. Trabucco from all prepetition debts, according to court records.

Meanwhile, as the malicious prosecution case against Mr. Cogan continued, Dr. Trabucco’s name again drew media attention. His former girlfriend was arrested for plotting to kidnap and kill an attorney who was representing Dr. Trabucco’s ex-wife in a divorce proceeding. Renee Perillo was sentenced to 27 years in prison for conspiracy to commit kidnapping and murder for hire for trying to kill Noblesville, Ind., attorney Rebecca Eimerman. Ms. Eimerman was pursuing divorce settlement money from Dr. Trabucco on behalf of his ex-wife. Ms. Perillo’s son was also charged in the crime.

No charges related to the crime were filed against Dr. Trabucco, according to the Hamilton County Prosecutor’s Office and federal charging records. Dr. Trabucco said he was not involved in the incident and had no knowledge of Perillo’s plans.
 

A hard fought – and still continuing – legal battle

After a 3-day trial, jurors in 2018 found that Mr. Cogan owed Dr. Trabucco $8 million for the harm caused by the unfounded claims.

“This has had a tremendous impact on my life,” Dr. Trabucco said. “It’s cost me a lot of time, money, and anguish.”

Mr. Cogan appealed the verdict. An Arizona appeals court in 2020 upheld the finding of liability for malicious prosecution against Mr. Cogan, but it vacated the finding of liability for abuse of process. Because of the partial reversal, the appellate court vacated the $8 million and sent the case back to the Superior Court in Mohave County, Ariz., for a new trial on damages.

But shortly before the December 2021 retrial, both parties agreed to settle for $8 million.

The settlement, however, is not the end of the litigation between the parties.

Late last year, Mr. Cogan filed a new case in the U.S. District Court for the District of Nevada against Dr. Trabucco alleging the Arizona court that tried the malicious prosecution case never had jurisdiction. Mr. Cogan contends that per federal case law, any damages resulting from a bankruptcy court pleading give the federal court exclusive jurisdiction over the matter.

“I believe that I will win the federal court case,” Mr. Cogan said. “If Judge Andrew P. Gordon finds for me, Dr. Trabucco’s judgment in Arizona is void as Arizona did not have subject-matter jurisdiction.”

Dr. Trabucco says the new federal case has no merit.

“The federal courts have no jurisdiction over civil matters, and this should be thrown out,” he said. “However, my attorney is fully prepared to take this to the Supreme Court [if it moves forward].”

At this article’s deadline, the judge had not yet ruled on Dr. Trabucco’s motion to dismiss the federal complaint.
 

Should a physician sue for malicious prosecution?

Dr. Trabucco’s case raises the question of whether physicians should consider suing a patient after winning their malpractice case. As many doctors know, a successful case outcome doesn’t necessarily undo the time spent, income lost, and reputation harm that often comes with a negligence lawsuit. Is suing for malicious prosecution a reasonable route to recoup some of the damages caused by the claim?

“It’s an uphill struggle to prevail,” said Jeffrey Segal, MD, JD. “Have people done it? Yes, they have. Is it easy? No.”

A physician must hit the marks of a distinct checklist to pursue a malicious prosecution case, said Dr. Segal, CEO and founder of Medical Justice, a company that aids and advises physicians on legal matters. One necessary element is that the malpractice case against the physician must have been adjudicated on the merits, he said. For example, the doctor won the case at trial or the case was dismissed on summary judgment. Summary judgment refers to a court tossing the claim because there was no genuine dispute as to any material fact and because the defendant is entitled to judgment as a matter of law.

If the case was dismissed for another reason, such as a technicality, or dropped by the plaintiff, the case would not meet the threshold for a malicious prosecution claim, Dr. Segal explains.

The physician must also show that the lawsuit was instituted with “malice,” meaning with an intent to hurt the physician, and that the lawsuit was brought without “probable cause,” adds J. Richard Moore, JD, a medical malpractice defense attorney based in Indianapolis.

“The courts are still pretty good at weeding out cases with no merit whatsoever, so even if a physician takes a case to trial and wins, it is exceedingly rare that a case that makes it that far, has no merit whatsoever,” Mr. Moore said.

In addition, a plaintiffs’ attorney may be protected from a malicious prosecution claim because they relied on a medical expert’s opinion that reasonable cause existed to file a lawsuit, notes William Sullivan, DO, JD, an emergency physician and attorney based in Frankfort, Ill.

Dr. Sullivan has personal experience with such a challenge. He filed a malicious prosecution claim against a plaintiffs’ attorney after being dismissed from a medical malpractice case. The claim stemmed from Dr. Sullivan inserting an emergency central line into a trauma patient who was taken to surgery and later died. The suit alleged Dr. Sullivan failed to diagnose internal bleeding and failed to perform surgery, although surgeons at the hospital knew internal bleeding was present and Dr. Sullivan had no privileges to perform surgery, he said.

However, Dr. Sullivan was unable to identify the medical expert involved in the claim. Illinois law allows a malpractice plaintiff to withhold the identity of a medical expert who certifies a malpractice lawsuit. Because Dr. Sullivan couldn’t identify the expert, he could not depose the physician, and the law firm claimed there was no malicious prosecution because it relied on the trauma surgeon’s opinion that Dr. Sullivan was liable.

The trial court agreed with the law firm’s argument and dismissed them from the case, Dr. Sullivan said. The trial court also agreed that the expert trauma surgeon should be allowed to remain anonymous in accordance with Illinois law.
 

Alternative options for doctors to recover damages

For physicians who want to recoup after a frivolous claim, but don’t want to dive into another lawsuit, there are other options, say legal experts.

One alternative is filing a motion for sanctions, Dr. Sullivan said. If an attorney files a lawsuit that does not have a reasonable basis in fact or law, that attorney could be subject to sanctions, including paying for the physician’s attorney’s fees and costs, he explained. If a motion for sanctions is granted against an opposing attorney, that fact may be reportable to the attorney’s insurance carrier and also reportable to the attorney’s state licensing board. A motion for sanctions does not require filing of a separate lawsuit and filing a motion for sanctions may allow the defendant physician or the defense attorney to depose the plaintiff attorney regarding the reasonable basis that attorney had for filing a lawsuit, Dr. Sullivan said.

Dr. Sullivan recently represented a physician who won a motion for sanctions. During the legal action against him, Dr. Sullivan presented the plaintiff’s attorney with information showing why his lawsuit did not have a reasonable basis, but the attorney repeatedly ignored the information.

“Eventually, I filed a motion to dismiss the physician from the lawsuit and that motion was granted,” he said. “I also filed a motion for sanctions so that the physician could recover the costs involved in defending the claim. The trial court granted our motion for sanctions against the plaintiff and her law firm and awarded my client more than $10,000.”

Physicians who believe a plaintiffs’ attorney is acting unprofessionally can also file a complaint with the attorney’s bar, Dr. Segal said. And expert witnesses acting in bad faith can be reported to professional societies, medical licensing boards, and/or specialty boards.

“There are a number of avenues to address the sense of justice,” he said. “But if you’re looking for a payday, the only way to do that is by going to court.”

A version of this article first appeared on Medscape.com.

Urologist Arnaldo Trabucco, MD, was outraged when he learned of a legal claim filed by a patient’s family blaming him for the patient’s death.

Dr. Trabucco had performed a successful laparoscopic left radical nephrectomy on Gerald Scharf, but he died 3 days later from an unrelated condition, said Dr. Trabucco, who now practices in California. The claims alleged not only wrongful death, but also that Dr. Trabucco “committed willful and malicious actions upon” the patient, eventually resulting in his death, and that Dr. Trabucco’s actions constituted “extreme and outrageous behavior.”

The accusations were levied on behalf of the patient’s family by a bankruptcy attorney who admittedly had no experience in medical malpractice litigation.

“It was a vicious allegation that I intentionally tried to kill my own patient,” said Dr. Trabucco, 66. “It’s an allegation that was outlandish. Those were fighting words.”

As the case dragged on, Dr. Trabucco filed a complaint against the Scharfs and bankruptcy attorney Jeffrey Cogan for malicious prosecution and abuse of process. In 2018, Dr. Trabucco prevailed when a jury awarded him $6,232,000 in compensatory damages and $1,768,000 in punitive damages against Mr. Cogan. (No damages were assessed against the patient’s family.)

“This was a principle issue more than anything else,” Dr. Trabucco said. “My name was tarnished and thrown through the mud. I’m very proud of my name and my reputation.”

Mr. Cogan, a bankruptcy attorney licensed in Nevada and California, disputes that his actions were malicious and disagrees with the jury’s verdict.

“I don’t think I did anything wrong with filing the lawsuit,” he said.

Despite the $8 million award, the legal fight between Dr. Trabucco and Mr. Cogan has continued – and is not over yet.
 

Not your ordinary legal journey

Dr. Trabucco completed his medical training in Rome before moving back to the United States to begin his residency in Brooklyn, New York.

He quietly practiced urology in New York for years before moving to Columbus, Ind., to work at a urology clinic. In 2005, Dr. Trabucco made headlines when the Bartholomew County, Ind., sheriff’s deputies found marijuana plants growing in his home. His medical license was suspended, and he pled guilty to a misdemeanor.

Dr. Trabucco said he was unaware that a family member was growing the plants in the home and that he was not responsible for the operation. The misdemeanor has since been expunged from his record, according to Dr. Trabucco. Bartholomew County records do not list the offense. He later moved to Arizona, where he opened a medical practice.

Before the Scharfs filed their malpractice case in 2013, Dr. Trabucco had been embroiled in a series of unrelated legal disputes, including postdivorce proceedings and a complaint against him by another physician, alleging defamation. In that case, the physician claimed Dr. Trabucco published false and defamatory communications about him, including that the physician committed intentional fraud.

Dr. Trabucco filed his own suit for defamation and infliction of emotional distress against the same physician for alleged threats and harassment and making false reports about him to several Arizona state entities. The defamation suit against Dr. Trabucco ended in a settlement, the terms of which are confidential, according to Mr. Cogan. Dr. Trabucco’s defamation case against the physician was dismissed, according to court records, but they do not specify the reason. Dr. Trabucco said he dropped the defamation case because of the other relentless litigation he was facing.

In November 2012, Dr. Trabucco filed for Chapter 7 bankruptcy protection.

Mr. Cogan was representing Dr. Trabucco’s ex-wife’s interests as a creditor in the bankruptcy proceeding and eventually represented the physician who sued Dr. Trabucco, according to court documents. In all, Mr. Cogan represented six creditors in connection to Dr. Trabucco’s bankruptcy, including the Scharfs. He also took over the Scharfs’ malpractice case in Arizona’s Mohave County Superior Court after their attorney died.

As part of a filing in Nevada bankruptcy court called a “Complaint to Determine Nondischargeabiliy of Debts,” Mr. Cogan alleged that Dr. Trabucco knew he lacked sufficient expertise regarding the laparoscopic nephrectomy, that an intraoperative complication occurred because of his error, and that Dr. Trabucco hid the complication and did not attempt to remedy the situation, among other claims.

In addition to the Mohave County filing and the bankruptcy filing, Mr. Cogan filed a similar medical malpractice case against Dr. Trabucco in Arizona district court.

“I believe, based upon the statements by [a retired medical malpractice attorney], that Dr Trabucco squeezed the abdominal aorta,” Mr. Cogan said. “When he did so, plaque from Mr Scharf blocked blood from going to his remaining his kidney, causing his death. My lawsuit said that Dr Trabucco knew he made a mistake and went home rather than fixing the mistake.”

Dr. Trabucco said the laparoscopic nephrectomy went smoothly. A few hours after the surgery, however, Mr. Scharf was transferred to a Las Vegas hospital with a diagnosis of potential occlusion of the abdominal aorta. Surgery was performed, and while the operative report noted the presence of severe atherosclerosis of the abdominal aorta, there was no indication of an intraoperative injury to the aorta from Dr. Trabucco’s surgery, according to court documents filed in U.S. District Court for the District of Arizona. An autopsy performed on Mr. Scharf reported “severe calcific aortic atherosclerosis, primarily at the aortic arch and abdominal aorta at the level of the branching of the renal arteries with small adherent thrombus.” The autopsy did not include any indication or suggestion of an intraoperative injury to the abdominal aorta.

A federal jury found unanimously in favor of Dr. Trabucco, concluding that he did nothing wrong. The original medical malpractice case in Mohave County court was ultimately dismissed and in 2014, the bankruptcy court entered an order discharging Dr. Trabucco from all prepetition debts, according to court records.

Meanwhile, as the malicious prosecution case against Mr. Cogan continued, Dr. Trabucco’s name again drew media attention. His former girlfriend was arrested for plotting to kidnap and kill an attorney who was representing Dr. Trabucco’s ex-wife in a divorce proceeding. Renee Perillo was sentenced to 27 years in prison for conspiracy to commit kidnapping and murder for hire for trying to kill Noblesville, Ind., attorney Rebecca Eimerman. Ms. Eimerman was pursuing divorce settlement money from Dr. Trabucco on behalf of his ex-wife. Ms. Perillo’s son was also charged in the crime.

No charges related to the crime were filed against Dr. Trabucco, according to the Hamilton County Prosecutor’s Office and federal charging records. Dr. Trabucco said he was not involved in the incident and had no knowledge of Perillo’s plans.
 

A hard fought – and still continuing – legal battle

After a 3-day trial, jurors in 2018 found that Mr. Cogan owed Dr. Trabucco $8 million for the harm caused by the unfounded claims.

“This has had a tremendous impact on my life,” Dr. Trabucco said. “It’s cost me a lot of time, money, and anguish.”

Mr. Cogan appealed the verdict. An Arizona appeals court in 2020 upheld the finding of liability for malicious prosecution against Mr. Cogan, but it vacated the finding of liability for abuse of process. Because of the partial reversal, the appellate court vacated the $8 million and sent the case back to the Superior Court in Mohave County, Ariz., for a new trial on damages.

But shortly before the December 2021 retrial, both parties agreed to settle for $8 million.

The settlement, however, is not the end of the litigation between the parties.

Late last year, Mr. Cogan filed a new case in the U.S. District Court for the District of Nevada against Dr. Trabucco alleging the Arizona court that tried the malicious prosecution case never had jurisdiction. Mr. Cogan contends that per federal case law, any damages resulting from a bankruptcy court pleading give the federal court exclusive jurisdiction over the matter.

“I believe that I will win the federal court case,” Mr. Cogan said. “If Judge Andrew P. Gordon finds for me, Dr. Trabucco’s judgment in Arizona is void as Arizona did not have subject-matter jurisdiction.”

Dr. Trabucco says the new federal case has no merit.

“The federal courts have no jurisdiction over civil matters, and this should be thrown out,” he said. “However, my attorney is fully prepared to take this to the Supreme Court [if it moves forward].”

At this article’s deadline, the judge had not yet ruled on Dr. Trabucco’s motion to dismiss the federal complaint.
 

Should a physician sue for malicious prosecution?

Dr. Trabucco’s case raises the question of whether physicians should consider suing a patient after winning their malpractice case. As many doctors know, a successful case outcome doesn’t necessarily undo the time spent, income lost, and reputation harm that often comes with a negligence lawsuit. Is suing for malicious prosecution a reasonable route to recoup some of the damages caused by the claim?

“It’s an uphill struggle to prevail,” said Jeffrey Segal, MD, JD. “Have people done it? Yes, they have. Is it easy? No.”

A physician must hit the marks of a distinct checklist to pursue a malicious prosecution case, said Dr. Segal, CEO and founder of Medical Justice, a company that aids and advises physicians on legal matters. One necessary element is that the malpractice case against the physician must have been adjudicated on the merits, he said. For example, the doctor won the case at trial or the case was dismissed on summary judgment. Summary judgment refers to a court tossing the claim because there was no genuine dispute as to any material fact and because the defendant is entitled to judgment as a matter of law.

If the case was dismissed for another reason, such as a technicality, or dropped by the plaintiff, the case would not meet the threshold for a malicious prosecution claim, Dr. Segal explains.

The physician must also show that the lawsuit was instituted with “malice,” meaning with an intent to hurt the physician, and that the lawsuit was brought without “probable cause,” adds J. Richard Moore, JD, a medical malpractice defense attorney based in Indianapolis.

“The courts are still pretty good at weeding out cases with no merit whatsoever, so even if a physician takes a case to trial and wins, it is exceedingly rare that a case that makes it that far, has no merit whatsoever,” Mr. Moore said.

In addition, a plaintiffs’ attorney may be protected from a malicious prosecution claim because they relied on a medical expert’s opinion that reasonable cause existed to file a lawsuit, notes William Sullivan, DO, JD, an emergency physician and attorney based in Frankfort, Ill.

Dr. Sullivan has personal experience with such a challenge. He filed a malicious prosecution claim against a plaintiffs’ attorney after being dismissed from a medical malpractice case. The claim stemmed from Dr. Sullivan inserting an emergency central line into a trauma patient who was taken to surgery and later died. The suit alleged Dr. Sullivan failed to diagnose internal bleeding and failed to perform surgery, although surgeons at the hospital knew internal bleeding was present and Dr. Sullivan had no privileges to perform surgery, he said.

However, Dr. Sullivan was unable to identify the medical expert involved in the claim. Illinois law allows a malpractice plaintiff to withhold the identity of a medical expert who certifies a malpractice lawsuit. Because Dr. Sullivan couldn’t identify the expert, he could not depose the physician, and the law firm claimed there was no malicious prosecution because it relied on the trauma surgeon’s opinion that Dr. Sullivan was liable.

The trial court agreed with the law firm’s argument and dismissed them from the case, Dr. Sullivan said. The trial court also agreed that the expert trauma surgeon should be allowed to remain anonymous in accordance with Illinois law.
 

Alternative options for doctors to recover damages

For physicians who want to recoup after a frivolous claim, but don’t want to dive into another lawsuit, there are other options, say legal experts.

One alternative is filing a motion for sanctions, Dr. Sullivan said. If an attorney files a lawsuit that does not have a reasonable basis in fact or law, that attorney could be subject to sanctions, including paying for the physician’s attorney’s fees and costs, he explained. If a motion for sanctions is granted against an opposing attorney, that fact may be reportable to the attorney’s insurance carrier and also reportable to the attorney’s state licensing board. A motion for sanctions does not require filing of a separate lawsuit and filing a motion for sanctions may allow the defendant physician or the defense attorney to depose the plaintiff attorney regarding the reasonable basis that attorney had for filing a lawsuit, Dr. Sullivan said.

Dr. Sullivan recently represented a physician who won a motion for sanctions. During the legal action against him, Dr. Sullivan presented the plaintiff’s attorney with information showing why his lawsuit did not have a reasonable basis, but the attorney repeatedly ignored the information.

“Eventually, I filed a motion to dismiss the physician from the lawsuit and that motion was granted,” he said. “I also filed a motion for sanctions so that the physician could recover the costs involved in defending the claim. The trial court granted our motion for sanctions against the plaintiff and her law firm and awarded my client more than $10,000.”

Physicians who believe a plaintiffs’ attorney is acting unprofessionally can also file a complaint with the attorney’s bar, Dr. Segal said. And expert witnesses acting in bad faith can be reported to professional societies, medical licensing boards, and/or specialty boards.

“There are a number of avenues to address the sense of justice,” he said. “But if you’re looking for a payday, the only way to do that is by going to court.”

A version of this article first appeared on Medscape.com.

An appeals court has upheld a family’s $9.5 million jury award after a physician left an 18-inch sponge in a patient’s abdomen that remained in her stomach for 5 years.

Carolyn Boerste underwent aortobifemoral bypass surgery at the University of Louisville (Ky.) Hospital in March 2011 to improve circulation in her lower extremities. She had a history of peripheral vascular disease, hypertension, and diabetes, which caused a wound on her toe to become infected and gangrenous, according to court records.

Courtesy Bo Bolus of Bolus Law Offices, Louisville, Ky.

During the surgery, performed by Marvin Morris, MD, the surgical team left a laparotomy sponge in Ms. Boerste’s abdomen. Because of its size, Ms. Boerste’s attorneys characterized the 18-by-18-inch object as “more like a towel,” according to court documents.

During the years that the sponge went undetected, the object eroded via transmural migration from Ms. Boerste’s abdomen into her intestine, causing diarrhea, vomiting, and nausea. In March 2015, Ms. Boerste was transferred by ambulance to an emergency department because of abdominal pain. An emergency physician ordered an abdominal CT scan, which showed the x-ray detectable sponge marker inside Ms. Boerste’s intestine, according to her complaint.

Although the radiologist called the emergency physician to advise him of the sponge marker, the information was not shared with Ms. Boerste and she was discharged from the hospital with a urinary tract infection diagnosis. The emergency physician later testified he had no memory of the call with the radiologist.

The CT scan was faxed to Ms. Boerste’s family physician. She testified that she read the report but did not mention the sponge marker to Ms. Boerste because she believed the issue had been handled by the emergency physician. Thus the sponge remained inside Ms. Boerste for another 20 months.

In November 2016, Ms. Boerste returned to the same emergency department with more intense gastrointestinal issues. Another CT scan was ordered, which revealed the sponge. The object was removed by exploratory laparotomy later that month. In her complaint, Ms. Boerste claimed that the removal surgery resulted in amputation of her leg because of wounds developed on her lower extremities while she was bedridden during recovery.

In 2017, she filed a negligence lawsuit against Dr. Morris, the hospital, and several others involved in her care. On the first day of trial in December 2019, the hospital conceded liability. The trial continued against Dr. Morris and the other defendants as to liability and damages and proceeded against the hospital as to damages.

At trial, evidence showed there was significant confusion among nurses on how to document sponge counts, according to the appellate decision. In general, nurses used a perioperative nursing record to document the surgical procedure, and that record had a place to document some but not all sponge counts required by hospital policy. The nursing record did not have a place to document sponge counts required to be recorded at every break, lunch, and shift change. Nurses also used a worksheet to track sponge counts, but that worksheet was not part of the medical record.

Dr. Morris testified that he relies on nurses regarding sponge counts, but that he also performs a visual and tactile inspection of the abdominal cavity. He acknowledged during trial that the standard of care required him to keep track of the sponges before closing. Dr. Morris also testified that the surgeon and nurses are a team, and “the entire team did not count the sponges correctly when finishing the bypass surgery,” according to the appellate decision.

After a 10-day trial, jurors found Dr. Morris and several other defendants liable. They apportioned 60% liability to the hospital, 10% to Morris, 15% to the family physician, 0% to the emergency physician, and 15% to the rehabilitation center. Ms. Boerste was awarded $9.5 million in damages and an additional $1 million in punitive damages, for a total of $10.5 million.

Dr. Morris and the hospital appealed to the Commonwealth of Kentucky Court of Appeals. As the appeal was pending, Ms. Boerste died, and her son took over the plaintiff’s role.

In their appeal, Dr. Morris and the hospital said they should be granted a new trial for a number of reasons, including that the pain and suffering award was grossly excessive and reflected improper jury sympathy, that the punitive damages award should be vacated because jurors were not properly instructed on the issue, and that the judgment against Dr. Morris should be overturned because there was no evidence he deviated from the standard of care.

The defendants also argued that they were entitled to instructions on “apportionment of fault and mitigation of damages against Boerste.” The mitigation of damages doctrine prevents an injured plaintiff from recovering unreasonable expenses associated with the injury if they could have been avoided through reasonable efforts. Specifically, attorneys for Dr. Morris emphasized that Ms. Boerste failed to follow medical advice for follow-up care, to obtain recommended podiatrist care, and to make necessary efforts to control her diabetes. Had Ms. Boerste taken more proactive steps to manage her health, leg amputation may not have been needed because the sponge may have been found during other treatment, they contended.

In its Jan. 7, 2022, opinion, the appeals court upheld the majority of the jury award. Judges wrote that Dr. Morris’ testimony alone was sufficient for the jury to determine whether he breached the standard of care, and that the defendants are not entitled to a new trial on pain and suffering damages. In addition, judges rejected mitigation of damages.  

“The fact that Boerste was a poor patient who failed to properly treat her diabetes is irrelevant,” the panel wrote in their decision. “She was a poor patient prior to the bypass surgery, and Appellants knew Boerste might ultimately need to have her lower leg amputated at the time of the bypass surgery. Therefore, we hold Appellants were not entitled to instructions on apportionment of fault or mitigation of damages.”

The appeals court, however, vacated the $1 million punitive damages award, ruling that the lower court did not give a proper instruction to the jury on punitive damages. The appeals court sent the case back to the lower court for a retrial as it pertains to punitive damages.

Attorneys for Dr. Morris and the hospital did not return messages seeking comment.

Bo Bolus, an attorney for Ms. Boerste’s family, said there will be no retrial on punitive damages, and that the plaintiff is satisfied with the outcome of the case.

“While we are pleased that Carolyn’s family and, equally importantly, her memory, now finally have closure on this extremely trying matter, our pleasure is severely tempered by the loss of Carolyn in November of last year,” Mr. Bolus said. “After having endured all she did, it is, frankly, painful for all concerned that she will not reap the reward of the jury’s verdict.”

A version of this article first appeared on Medscape.com.

An appeals court has upheld a family’s $9.5 million jury award after a physician left an 18-inch sponge in a patient’s abdomen that remained in her stomach for 5 years.

Carolyn Boerste underwent aortobifemoral bypass surgery at the University of Louisville (Ky.) Hospital in March 2011 to improve circulation in her lower extremities. She had a history of peripheral vascular disease, hypertension, and diabetes, which caused a wound on her toe to become infected and gangrenous, according to court records.

Courtesy Bo Bolus of Bolus Law Offices, Louisville, Ky.

During the surgery, performed by Marvin Morris, MD, the surgical team left a laparotomy sponge in Ms. Boerste’s abdomen. Because of its size, Ms. Boerste’s attorneys characterized the 18-by-18-inch object as “more like a towel,” according to court documents.

During the years that the sponge went undetected, the object eroded via transmural migration from Ms. Boerste’s abdomen into her intestine, causing diarrhea, vomiting, and nausea. In March 2015, Ms. Boerste was transferred by ambulance to an emergency department because of abdominal pain. An emergency physician ordered an abdominal CT scan, which showed the x-ray detectable sponge marker inside Ms. Boerste’s intestine, according to her complaint.

Although the radiologist called the emergency physician to advise him of the sponge marker, the information was not shared with Ms. Boerste and she was discharged from the hospital with a urinary tract infection diagnosis. The emergency physician later testified he had no memory of the call with the radiologist.

The CT scan was faxed to Ms. Boerste’s family physician. She testified that she read the report but did not mention the sponge marker to Ms. Boerste because she believed the issue had been handled by the emergency physician. Thus the sponge remained inside Ms. Boerste for another 20 months.

In November 2016, Ms. Boerste returned to the same emergency department with more intense gastrointestinal issues. Another CT scan was ordered, which revealed the sponge. The object was removed by exploratory laparotomy later that month. In her complaint, Ms. Boerste claimed that the removal surgery resulted in amputation of her leg because of wounds developed on her lower extremities while she was bedridden during recovery.

In 2017, she filed a negligence lawsuit against Dr. Morris, the hospital, and several others involved in her care. On the first day of trial in December 2019, the hospital conceded liability. The trial continued against Dr. Morris and the other defendants as to liability and damages and proceeded against the hospital as to damages.

At trial, evidence showed there was significant confusion among nurses on how to document sponge counts, according to the appellate decision. In general, nurses used a perioperative nursing record to document the surgical procedure, and that record had a place to document some but not all sponge counts required by hospital policy. The nursing record did not have a place to document sponge counts required to be recorded at every break, lunch, and shift change. Nurses also used a worksheet to track sponge counts, but that worksheet was not part of the medical record.

Dr. Morris testified that he relies on nurses regarding sponge counts, but that he also performs a visual and tactile inspection of the abdominal cavity. He acknowledged during trial that the standard of care required him to keep track of the sponges before closing. Dr. Morris also testified that the surgeon and nurses are a team, and “the entire team did not count the sponges correctly when finishing the bypass surgery,” according to the appellate decision.

After a 10-day trial, jurors found Dr. Morris and several other defendants liable. They apportioned 60% liability to the hospital, 10% to Morris, 15% to the family physician, 0% to the emergency physician, and 15% to the rehabilitation center. Ms. Boerste was awarded $9.5 million in damages and an additional $1 million in punitive damages, for a total of $10.5 million.

Dr. Morris and the hospital appealed to the Commonwealth of Kentucky Court of Appeals. As the appeal was pending, Ms. Boerste died, and her son took over the plaintiff’s role.

In their appeal, Dr. Morris and the hospital said they should be granted a new trial for a number of reasons, including that the pain and suffering award was grossly excessive and reflected improper jury sympathy, that the punitive damages award should be vacated because jurors were not properly instructed on the issue, and that the judgment against Dr. Morris should be overturned because there was no evidence he deviated from the standard of care.

The defendants also argued that they were entitled to instructions on “apportionment of fault and mitigation of damages against Boerste.” The mitigation of damages doctrine prevents an injured plaintiff from recovering unreasonable expenses associated with the injury if they could have been avoided through reasonable efforts. Specifically, attorneys for Dr. Morris emphasized that Ms. Boerste failed to follow medical advice for follow-up care, to obtain recommended podiatrist care, and to make necessary efforts to control her diabetes. Had Ms. Boerste taken more proactive steps to manage her health, leg amputation may not have been needed because the sponge may have been found during other treatment, they contended.

In its Jan. 7, 2022, opinion, the appeals court upheld the majority of the jury award. Judges wrote that Dr. Morris’ testimony alone was sufficient for the jury to determine whether he breached the standard of care, and that the defendants are not entitled to a new trial on pain and suffering damages. In addition, judges rejected mitigation of damages.  

“The fact that Boerste was a poor patient who failed to properly treat her diabetes is irrelevant,” the panel wrote in their decision. “She was a poor patient prior to the bypass surgery, and Appellants knew Boerste might ultimately need to have her lower leg amputated at the time of the bypass surgery. Therefore, we hold Appellants were not entitled to instructions on apportionment of fault or mitigation of damages.”

The appeals court, however, vacated the $1 million punitive damages award, ruling that the lower court did not give a proper instruction to the jury on punitive damages. The appeals court sent the case back to the lower court for a retrial as it pertains to punitive damages.

Attorneys for Dr. Morris and the hospital did not return messages seeking comment.

Bo Bolus, an attorney for Ms. Boerste’s family, said there will be no retrial on punitive damages, and that the plaintiff is satisfied with the outcome of the case.

“While we are pleased that Carolyn’s family and, equally importantly, her memory, now finally have closure on this extremely trying matter, our pleasure is severely tempered by the loss of Carolyn in November of last year,” Mr. Bolus said. “After having endured all she did, it is, frankly, painful for all concerned that she will not reap the reward of the jury’s verdict.”

A version of this article first appeared on Medscape.com.

An appeals court has upheld a family’s $9.5 million jury award after a physician left an 18-inch sponge in a patient’s abdomen that remained in her stomach for 5 years.

Carolyn Boerste underwent aortobifemoral bypass surgery at the University of Louisville (Ky.) Hospital in March 2011 to improve circulation in her lower extremities. She had a history of peripheral vascular disease, hypertension, and diabetes, which caused a wound on her toe to become infected and gangrenous, according to court records.

Courtesy Bo Bolus of Bolus Law Offices, Louisville, Ky.

During the surgery, performed by Marvin Morris, MD, the surgical team left a laparotomy sponge in Ms. Boerste’s abdomen. Because of its size, Ms. Boerste’s attorneys characterized the 18-by-18-inch object as “more like a towel,” according to court documents.

During the years that the sponge went undetected, the object eroded via transmural migration from Ms. Boerste’s abdomen into her intestine, causing diarrhea, vomiting, and nausea. In March 2015, Ms. Boerste was transferred by ambulance to an emergency department because of abdominal pain. An emergency physician ordered an abdominal CT scan, which showed the x-ray detectable sponge marker inside Ms. Boerste’s intestine, according to her complaint.

Although the radiologist called the emergency physician to advise him of the sponge marker, the information was not shared with Ms. Boerste and she was discharged from the hospital with a urinary tract infection diagnosis. The emergency physician later testified he had no memory of the call with the radiologist.

The CT scan was faxed to Ms. Boerste’s family physician. She testified that she read the report but did not mention the sponge marker to Ms. Boerste because she believed the issue had been handled by the emergency physician. Thus the sponge remained inside Ms. Boerste for another 20 months.

In November 2016, Ms. Boerste returned to the same emergency department with more intense gastrointestinal issues. Another CT scan was ordered, which revealed the sponge. The object was removed by exploratory laparotomy later that month. In her complaint, Ms. Boerste claimed that the removal surgery resulted in amputation of her leg because of wounds developed on her lower extremities while she was bedridden during recovery.

In 2017, she filed a negligence lawsuit against Dr. Morris, the hospital, and several others involved in her care. On the first day of trial in December 2019, the hospital conceded liability. The trial continued against Dr. Morris and the other defendants as to liability and damages and proceeded against the hospital as to damages.

At trial, evidence showed there was significant confusion among nurses on how to document sponge counts, according to the appellate decision. In general, nurses used a perioperative nursing record to document the surgical procedure, and that record had a place to document some but not all sponge counts required by hospital policy. The nursing record did not have a place to document sponge counts required to be recorded at every break, lunch, and shift change. Nurses also used a worksheet to track sponge counts, but that worksheet was not part of the medical record.

Dr. Morris testified that he relies on nurses regarding sponge counts, but that he also performs a visual and tactile inspection of the abdominal cavity. He acknowledged during trial that the standard of care required him to keep track of the sponges before closing. Dr. Morris also testified that the surgeon and nurses are a team, and “the entire team did not count the sponges correctly when finishing the bypass surgery,” according to the appellate decision.

After a 10-day trial, jurors found Dr. Morris and several other defendants liable. They apportioned 60% liability to the hospital, 10% to Morris, 15% to the family physician, 0% to the emergency physician, and 15% to the rehabilitation center. Ms. Boerste was awarded $9.5 million in damages and an additional $1 million in punitive damages, for a total of $10.5 million.

Dr. Morris and the hospital appealed to the Commonwealth of Kentucky Court of Appeals. As the appeal was pending, Ms. Boerste died, and her son took over the plaintiff’s role.

In their appeal, Dr. Morris and the hospital said they should be granted a new trial for a number of reasons, including that the pain and suffering award was grossly excessive and reflected improper jury sympathy, that the punitive damages award should be vacated because jurors were not properly instructed on the issue, and that the judgment against Dr. Morris should be overturned because there was no evidence he deviated from the standard of care.

The defendants also argued that they were entitled to instructions on “apportionment of fault and mitigation of damages against Boerste.” The mitigation of damages doctrine prevents an injured plaintiff from recovering unreasonable expenses associated with the injury if they could have been avoided through reasonable efforts. Specifically, attorneys for Dr. Morris emphasized that Ms. Boerste failed to follow medical advice for follow-up care, to obtain recommended podiatrist care, and to make necessary efforts to control her diabetes. Had Ms. Boerste taken more proactive steps to manage her health, leg amputation may not have been needed because the sponge may have been found during other treatment, they contended.

In its Jan. 7, 2022, opinion, the appeals court upheld the majority of the jury award. Judges wrote that Dr. Morris’ testimony alone was sufficient for the jury to determine whether he breached the standard of care, and that the defendants are not entitled to a new trial on pain and suffering damages. In addition, judges rejected mitigation of damages.  

“The fact that Boerste was a poor patient who failed to properly treat her diabetes is irrelevant,” the panel wrote in their decision. “She was a poor patient prior to the bypass surgery, and Appellants knew Boerste might ultimately need to have her lower leg amputated at the time of the bypass surgery. Therefore, we hold Appellants were not entitled to instructions on apportionment of fault or mitigation of damages.”

The appeals court, however, vacated the $1 million punitive damages award, ruling that the lower court did not give a proper instruction to the jury on punitive damages. The appeals court sent the case back to the lower court for a retrial as it pertains to punitive damages.

Attorneys for Dr. Morris and the hospital did not return messages seeking comment.

Bo Bolus, an attorney for Ms. Boerste’s family, said there will be no retrial on punitive damages, and that the plaintiff is satisfied with the outcome of the case.

“While we are pleased that Carolyn’s family and, equally importantly, her memory, now finally have closure on this extremely trying matter, our pleasure is severely tempered by the loss of Carolyn in November of last year,” Mr. Bolus said. “After having endured all she did, it is, frankly, painful for all concerned that she will not reap the reward of the jury’s verdict.”

A version of this article first appeared on Medscape.com.

A Pennsylvania physician claims that an attorney who cried during testimony unfairly tainted his malpractice trial and led to a $1.3 million jury award against him.

Jurors found obstetrician-gynecologist Charles H. Marks, DO, negligent for failing to follow up on a patient’s complex cyst and hyperechoic nodule, which resulted in a delayed ovarian cancer diagnosis. But during the doctor’s 4-day trial, several parties had emotional outbursts in front of the jury, including the plaintiff’s’ attorney, a physician expert witness, the patient, and a family member.

According to trial transcripts, a gynecologic oncologist expert began crying on the stand after providing a clinical description of the symptoms that plaintiff, Chasidy Plunkard, would probably experience leading up to her death. When asked how long the patient had to live, the oncologist said “months” and later added, “I think she is living for this trial.”

After these comments, Ms. Plunkard’s attorney, Kila Baldwin, also began crying and requested a break to regain her composure, according to district court documents. During the 3 minutes the attorney was gone, the courtroom was silent other than the sound of Ms. Plunkard and her cousin sobbing.

The following day, U.S. District Judge Jennifer P. Wilson warned Ms. Baldwin that she would consider declaring a mistrial if the outburst happened again, according to trial transcripts.

“I expect counsel to maintain a professional demeanor even when eliciting emotionally laden testimony,” Judge Wilson said. “…I will not allow another recess. Further, if we have another incident like we had yesterday, I would have to entertain, if a motion for mistrial is made, I would have to seriously consider that, because I am concerned that this jury already has had a demonstration of a level of emotion that may make it difficult for them to set that aside and render a verdict that’s based only on a dispassionate consideration of what I perceive to be a legitimate dispute regarding liability.”

Judge Wilson later instructed jurors to disregard certain testimony at the request of Dr. Marks’ attorneys and reminded them not to be influenced by sympathy. After jurors rendered their $1.3 million verdict against Dr. Marks, he requested a new trial, claiming the witness’s testimony and the emotional displays of the witness and the attorney unfairly influenced the jury.

The expert witness “and plaintiff’s counsel undoubtedly affected the jury’s ability to decide this case in a dispassionate and impartial way and denied Dr. Marks his right to a fair trial,” attorney Matthew Rappleye wrote in Dr. Marks’ motion for a retrial. “Just as the court feared, as a result of these events, the jury was ‘tainted’ and could no longer decide this case divorced of sympathy for Ms. Plunkard.”

In response, an attorney for Ms. Plunkard emphasized that Dr. Marks did not request a retrial during the trial and that he was granted objections to the relevant testimony that he sought.

“In any event, the jury had the benefit of substantial evidence concerning Dr. Marks’ negligence, and the jury was entitled to construe that evidence in Plaintiff’s favor” attorney Charles Becker wrote. “…Indeed, the jury’s economic damages award of $585,000 not only fell well below the projection of plaintiff’s expert, but also ran at the low-end of the projection provided by Defendant’s economist. As to the non-economic damages, the jury’s award of $750,000 could have been far higher…. Nothing about either verdict or the damages award suggests a jury that was influenced by impermissible displays of emotion by the trial participants.”

In a December 13, 2021, decision, the U.S. District Court for the Middle District Court of Pennsylvania denied Dr. Marks’ request for a retrial. In her decision, Judge Wilson wrote that nothing in the jury’s verdict appeared to indicate that jurors were swayed by sympathy and that the verdict appeared to be conservative in light of the testimony presented.

Attorneys for Dr. Marks did not respond to a request for comment. In a statement, Ms. Baldwin said that the judge’s decision was correct.

“The district court got it exactly right, and we look forward to Ms. Plunkard receiving the compensation awarded by the jury in this tragic case,” she said.
 

Why did the patient sue?

Ms. Plunkard’s lawsuit against Dr. Marks stemmed from a January 2016 visit for complaints of bloating, pelvic pain, irregular periods, and an abnormal pelvic ultrasound. The ultrasound, ordered by her primary care physician, showed a thickened endometrial lining; a normal left ovary; and an enlarged, abnormal right ovary containing a complicated cyst, according to Ms. Plunkard’s complaint. Dr. Marks performed an endometrial biopsy and advised Ms. Plunkard that she would not need to take further measures if the result was benign, according to her lawsuit.

The result was benign, so Ms. Plunkard said she sought no further treatment for the cyst and none of her treating physicians followed up on the cyst. In February 2017, Ms. Plunkard presented to an emergency department with severe right upper quadrant abdominal pain and an ultrasound showed possible gallstones and pleural effusion, according to court documents.

After laparoscopic cholecystectomy, it was discovered that Ms. Plunkard had an inflamed pelvis and an omental lymph node was removed and biopsied. Surgeons reported that the lymph node showed metastatic cancer of probable gynecologic origin.

The patient underwent exploratory laparotomy, resulting in a radical abdominal hysterectomy, appendectomy, resection of the rectosigmoid with end-to-end anastomosis, and removal of cancerous implants. She was ultimately diagnosed with stage IVB low-grade metastatic ovarian cancer and went through six chemotherapy courses.

The patent’s cancer briefly went into remission but returned. In her complaint, Ms. Plunkard said Dr. Marks’ negligence allowed the cancer to spread from stage I to stage IVB, increasing her risk for harm and untimely death.

Dr. Marks argued that a follow-up ultrasound was not required, that the cyst on the patient’s right ovary was benign and resolved itself, that Ms. Plunkard’s cancer originated on the left, and that a follow-up ultrasound would not have detected primary cancer on the left ovary, according to legal documents.

On January 7, 2022, Dr. Marks appealed the jury’s verdict and the order denying his request for a retrial to the U.S. Court of Appeals for the Third Circuit.

A version of this article first appeared on Medscape.com.

A Pennsylvania physician claims that an attorney who cried during testimony unfairly tainted his malpractice trial and led to a $1.3 million jury award against him.

Jurors found obstetrician-gynecologist Charles H. Marks, DO, negligent for failing to follow up on a patient’s complex cyst and hyperechoic nodule, which resulted in a delayed ovarian cancer diagnosis. But during the doctor’s 4-day trial, several parties had emotional outbursts in front of the jury, including the plaintiff’s’ attorney, a physician expert witness, the patient, and a family member.

According to trial transcripts, a gynecologic oncologist expert began crying on the stand after providing a clinical description of the symptoms that plaintiff, Chasidy Plunkard, would probably experience leading up to her death. When asked how long the patient had to live, the oncologist said “months” and later added, “I think she is living for this trial.”

After these comments, Ms. Plunkard’s attorney, Kila Baldwin, also began crying and requested a break to regain her composure, according to district court documents. During the 3 minutes the attorney was gone, the courtroom was silent other than the sound of Ms. Plunkard and her cousin sobbing.

The following day, U.S. District Judge Jennifer P. Wilson warned Ms. Baldwin that she would consider declaring a mistrial if the outburst happened again, according to trial transcripts.

“I expect counsel to maintain a professional demeanor even when eliciting emotionally laden testimony,” Judge Wilson said. “…I will not allow another recess. Further, if we have another incident like we had yesterday, I would have to entertain, if a motion for mistrial is made, I would have to seriously consider that, because I am concerned that this jury already has had a demonstration of a level of emotion that may make it difficult for them to set that aside and render a verdict that’s based only on a dispassionate consideration of what I perceive to be a legitimate dispute regarding liability.”

Judge Wilson later instructed jurors to disregard certain testimony at the request of Dr. Marks’ attorneys and reminded them not to be influenced by sympathy. After jurors rendered their $1.3 million verdict against Dr. Marks, he requested a new trial, claiming the witness’s testimony and the emotional displays of the witness and the attorney unfairly influenced the jury.

The expert witness “and plaintiff’s counsel undoubtedly affected the jury’s ability to decide this case in a dispassionate and impartial way and denied Dr. Marks his right to a fair trial,” attorney Matthew Rappleye wrote in Dr. Marks’ motion for a retrial. “Just as the court feared, as a result of these events, the jury was ‘tainted’ and could no longer decide this case divorced of sympathy for Ms. Plunkard.”

In response, an attorney for Ms. Plunkard emphasized that Dr. Marks did not request a retrial during the trial and that he was granted objections to the relevant testimony that he sought.

“In any event, the jury had the benefit of substantial evidence concerning Dr. Marks’ negligence, and the jury was entitled to construe that evidence in Plaintiff’s favor” attorney Charles Becker wrote. “…Indeed, the jury’s economic damages award of $585,000 not only fell well below the projection of plaintiff’s expert, but also ran at the low-end of the projection provided by Defendant’s economist. As to the non-economic damages, the jury’s award of $750,000 could have been far higher…. Nothing about either verdict or the damages award suggests a jury that was influenced by impermissible displays of emotion by the trial participants.”

In a December 13, 2021, decision, the U.S. District Court for the Middle District Court of Pennsylvania denied Dr. Marks’ request for a retrial. In her decision, Judge Wilson wrote that nothing in the jury’s verdict appeared to indicate that jurors were swayed by sympathy and that the verdict appeared to be conservative in light of the testimony presented.

Attorneys for Dr. Marks did not respond to a request for comment. In a statement, Ms. Baldwin said that the judge’s decision was correct.

“The district court got it exactly right, and we look forward to Ms. Plunkard receiving the compensation awarded by the jury in this tragic case,” she said.
 

Why did the patient sue?

Ms. Plunkard’s lawsuit against Dr. Marks stemmed from a January 2016 visit for complaints of bloating, pelvic pain, irregular periods, and an abnormal pelvic ultrasound. The ultrasound, ordered by her primary care physician, showed a thickened endometrial lining; a normal left ovary; and an enlarged, abnormal right ovary containing a complicated cyst, according to Ms. Plunkard’s complaint. Dr. Marks performed an endometrial biopsy and advised Ms. Plunkard that she would not need to take further measures if the result was benign, according to her lawsuit.

The result was benign, so Ms. Plunkard said she sought no further treatment for the cyst and none of her treating physicians followed up on the cyst. In February 2017, Ms. Plunkard presented to an emergency department with severe right upper quadrant abdominal pain and an ultrasound showed possible gallstones and pleural effusion, according to court documents.

After laparoscopic cholecystectomy, it was discovered that Ms. Plunkard had an inflamed pelvis and an omental lymph node was removed and biopsied. Surgeons reported that the lymph node showed metastatic cancer of probable gynecologic origin.

The patient underwent exploratory laparotomy, resulting in a radical abdominal hysterectomy, appendectomy, resection of the rectosigmoid with end-to-end anastomosis, and removal of cancerous implants. She was ultimately diagnosed with stage IVB low-grade metastatic ovarian cancer and went through six chemotherapy courses.

The patent’s cancer briefly went into remission but returned. In her complaint, Ms. Plunkard said Dr. Marks’ negligence allowed the cancer to spread from stage I to stage IVB, increasing her risk for harm and untimely death.

Dr. Marks argued that a follow-up ultrasound was not required, that the cyst on the patient’s right ovary was benign and resolved itself, that Ms. Plunkard’s cancer originated on the left, and that a follow-up ultrasound would not have detected primary cancer on the left ovary, according to legal documents.

On January 7, 2022, Dr. Marks appealed the jury’s verdict and the order denying his request for a retrial to the U.S. Court of Appeals for the Third Circuit.

A version of this article first appeared on Medscape.com.

A Pennsylvania physician claims that an attorney who cried during testimony unfairly tainted his malpractice trial and led to a $1.3 million jury award against him.

Jurors found obstetrician-gynecologist Charles H. Marks, DO, negligent for failing to follow up on a patient’s complex cyst and hyperechoic nodule, which resulted in a delayed ovarian cancer diagnosis. But during the doctor’s 4-day trial, several parties had emotional outbursts in front of the jury, including the plaintiff’s’ attorney, a physician expert witness, the patient, and a family member.

According to trial transcripts, a gynecologic oncologist expert began crying on the stand after providing a clinical description of the symptoms that plaintiff, Chasidy Plunkard, would probably experience leading up to her death. When asked how long the patient had to live, the oncologist said “months” and later added, “I think she is living for this trial.”

After these comments, Ms. Plunkard’s attorney, Kila Baldwin, also began crying and requested a break to regain her composure, according to district court documents. During the 3 minutes the attorney was gone, the courtroom was silent other than the sound of Ms. Plunkard and her cousin sobbing.

The following day, U.S. District Judge Jennifer P. Wilson warned Ms. Baldwin that she would consider declaring a mistrial if the outburst happened again, according to trial transcripts.

“I expect counsel to maintain a professional demeanor even when eliciting emotionally laden testimony,” Judge Wilson said. “…I will not allow another recess. Further, if we have another incident like we had yesterday, I would have to entertain, if a motion for mistrial is made, I would have to seriously consider that, because I am concerned that this jury already has had a demonstration of a level of emotion that may make it difficult for them to set that aside and render a verdict that’s based only on a dispassionate consideration of what I perceive to be a legitimate dispute regarding liability.”

Judge Wilson later instructed jurors to disregard certain testimony at the request of Dr. Marks’ attorneys and reminded them not to be influenced by sympathy. After jurors rendered their $1.3 million verdict against Dr. Marks, he requested a new trial, claiming the witness’s testimony and the emotional displays of the witness and the attorney unfairly influenced the jury.

The expert witness “and plaintiff’s counsel undoubtedly affected the jury’s ability to decide this case in a dispassionate and impartial way and denied Dr. Marks his right to a fair trial,” attorney Matthew Rappleye wrote in Dr. Marks’ motion for a retrial. “Just as the court feared, as a result of these events, the jury was ‘tainted’ and could no longer decide this case divorced of sympathy for Ms. Plunkard.”

In response, an attorney for Ms. Plunkard emphasized that Dr. Marks did not request a retrial during the trial and that he was granted objections to the relevant testimony that he sought.

“In any event, the jury had the benefit of substantial evidence concerning Dr. Marks’ negligence, and the jury was entitled to construe that evidence in Plaintiff’s favor” attorney Charles Becker wrote. “…Indeed, the jury’s economic damages award of $585,000 not only fell well below the projection of plaintiff’s expert, but also ran at the low-end of the projection provided by Defendant’s economist. As to the non-economic damages, the jury’s award of $750,000 could have been far higher…. Nothing about either verdict or the damages award suggests a jury that was influenced by impermissible displays of emotion by the trial participants.”

In a December 13, 2021, decision, the U.S. District Court for the Middle District Court of Pennsylvania denied Dr. Marks’ request for a retrial. In her decision, Judge Wilson wrote that nothing in the jury’s verdict appeared to indicate that jurors were swayed by sympathy and that the verdict appeared to be conservative in light of the testimony presented.

Attorneys for Dr. Marks did not respond to a request for comment. In a statement, Ms. Baldwin said that the judge’s decision was correct.

“The district court got it exactly right, and we look forward to Ms. Plunkard receiving the compensation awarded by the jury in this tragic case,” she said.
 

Why did the patient sue?

Ms. Plunkard’s lawsuit against Dr. Marks stemmed from a January 2016 visit for complaints of bloating, pelvic pain, irregular periods, and an abnormal pelvic ultrasound. The ultrasound, ordered by her primary care physician, showed a thickened endometrial lining; a normal left ovary; and an enlarged, abnormal right ovary containing a complicated cyst, according to Ms. Plunkard’s complaint. Dr. Marks performed an endometrial biopsy and advised Ms. Plunkard that she would not need to take further measures if the result was benign, according to her lawsuit.

The result was benign, so Ms. Plunkard said she sought no further treatment for the cyst and none of her treating physicians followed up on the cyst. In February 2017, Ms. Plunkard presented to an emergency department with severe right upper quadrant abdominal pain and an ultrasound showed possible gallstones and pleural effusion, according to court documents.

After laparoscopic cholecystectomy, it was discovered that Ms. Plunkard had an inflamed pelvis and an omental lymph node was removed and biopsied. Surgeons reported that the lymph node showed metastatic cancer of probable gynecologic origin.

The patient underwent exploratory laparotomy, resulting in a radical abdominal hysterectomy, appendectomy, resection of the rectosigmoid with end-to-end anastomosis, and removal of cancerous implants. She was ultimately diagnosed with stage IVB low-grade metastatic ovarian cancer and went through six chemotherapy courses.

The patent’s cancer briefly went into remission but returned. In her complaint, Ms. Plunkard said Dr. Marks’ negligence allowed the cancer to spread from stage I to stage IVB, increasing her risk for harm and untimely death.

Dr. Marks argued that a follow-up ultrasound was not required, that the cyst on the patient’s right ovary was benign and resolved itself, that Ms. Plunkard’s cancer originated on the left, and that a follow-up ultrasound would not have detected primary cancer on the left ovary, according to legal documents.

On January 7, 2022, Dr. Marks appealed the jury’s verdict and the order denying his request for a retrial to the U.S. Court of Appeals for the Third Circuit.

A version of this article first appeared on Medscape.com.

The parents of Jeopardy! winner Brayden Smith are suing a Las Vegas surgeon and a hospitalist for negligence after their son died following a colectomy.

Mr. Smith, who suffered from ulcerative colitis, underwent a colectomy on Jan. 15, 2021, at St. Rose Dominican Hospital–San Martin Campus in Las Vegas. At the time, the 24-year-old man was malnourished, extremely weak, and was having more than 10 bloody bowel movements a day, according to a Jan. 11, 2022, lawsuit filed by Smith’s parents.

The allegations state that, after the procedure, hospital staff did not provide Mr. Smith with anticoagulants and did not administer or suggest that Mr. Smith take anticoagulants upon his discharge on Jan. 19. On Jan. 29, 2021, Mr. Smith collapsed at home and his family called an ambulance. He was taken back to St. Rose where he died from bilateral pulmonary emboli.

Mr. Smith’s legal complaint claims that treatment by Smith’s surgeon, hospitalist, and nursing staff fell below the standard of care because they failed to administer anticoagulants following the surgery. After the surgery, Mr. Smith’s surgeon referenced “DVT/VTE prophylaxis/anticoagulation” in the record and another note read “already ordered,” according to Keith Beiermeister, MD, a colon and rectal surgeon retained by the Smiths’ attorney, Robert E. Murdock. However, the order section of the notes included no specific order for heparin or Lovenox (enoxaparin). A hospitalist who cared for Mr. Smith after the surgery also mentioned “DVT prophylaxis” in the progress notes, but the hospitalist did not order it nor ensure that anticoagulants were given, the lawsuit claims.

“In a surgery such as this, the standard of care requires both mechanical and chemical anticoagulation,” Dr. Beiermeister wrote in the complaint. “This is especially true after colectomy and with Brayden’s history. Anticoagulants and mechanical anticoagulation are needed to prevent emboli. The medical literature is clear that patients undergoing colorectal surgery as compared to general surgery have a significant increase in the risk of emboli. This is especially true with preexisting inflammation as is present in inflammatory bowel disease.”

A spokesman for St. Rose said the hospital does not comment on pending litigation.

Mr. Smith was a five-time Jeopardy! winner and gained national fame during his championship run. In a statement, Jeopardy! officials said the Jeopardy! family was “heartbroken by the tragic loss of Brayden Smith” and that he “will be missed.”
 

Surgeon must face second trial in stroke suit

A cardiovascular surgeon must face a second trial over claims that he performed an unnecessary surgery that caused a patient’s stroke, the Iowa Supreme Court has ruled.

William McGrew visited a Waterloo, Iowa, cardiovascular surgeon in 2014 after experiencing transient foggy vision in one eye. An ophthalmologist initially diagnosed Mr. McGrew with cataract, but he was referred to the surgeon to rule out other possibilities.

Because of Mr. McGrew’s age (69) and history of hypertension, the cardiovascular surgeon suspected carotid disease and recommended a CT angiogram to further investigate, according to a summary in the Iowa Supreme Court’s opinion.

The CT angiogram was performed at a local imaging center and read by a radiologist who interpreted it as showing 65% stenosis, or narrowing, of the right carotid artery. The surgeon did his own review and interpreted the results as showing 70% stenosis, according to court documents. The surgeon believed that McGrew was at significant risk for stroke and he recommended surgery, specifically a right carotid endarterectomy to remove the plaque from the right carotid artery. He advised McGrew of the surgery’s possible risks, the most common being a stroke.

The endarterectomy initially appeared successful, but the next morning, Mr. McGrew experienced facial droop and weakness on his left side. An MRI and CT scan showed that Mr. McGrew experienced a stroke on the right side of his brain. A CT angiogram showed that his right carotid artery was blocked. The surgeon performed another surgery to remove the carotid artery blockage, but the second surgery did not alleviate Mr. McGrew’s symptoms, according to court documents. Mr. McGrew remains wheelchair-bound, unable to move his left side, and requires nursing home care.

Mr. McGrew and his family later went to a neurologist who analyzed Mr. McGrew’s prior CT angiogram. He interpreted the angiogram as showing only 40% stenosis. The neurologist also asked a neuroradiologist to analyze the CT angiogram, and he assessed the stenosis at 32%. In his opinion, 40% stenosis was not significant to justify an endarterectomy, the neurologist told Mr. McGrew.

Mr. McGrew sued the surgeon and the radiologist in 2016, and later settled with the radiologist. The McGrews claimed that the surgeon negligently misinterpreted the CT angiogram and performed an ill-advised surgery that resulted in a stroke. The McGrews sought damages for pain and suffering, permanent loss of function, loss of income, past and future medical expenses, and loss of consortium.

At trial, attorneys for the surgeon asked the court to limit his and the radiologist’s testimonies, arguing that their opinions were not properly disclosed in expert reports. The trial court granted the motion, and jurors heard only a limited version of the testimony. In addition, some medical records were redacted. A jury found in the surgeon’s favor, deeming him not negligent.

The McGrews appealed. In a Jan. 21, 2022, opinion, the Iowa Supreme Court ruled that the trial court abused its discretion by not allowing the earlier testimonies. Justices said both the neurologist and the neuroradiologist should have been allowed to testify on the applicable standard of care. The district court also abused its discretion in preventing Mr. McGrew from introducing complete versions of the contemporaneous medical records, the court ruled.

Justices reversed the district court’s decision and remanded the case for a new trial.
 

Court: Patient must pay doc’s legal expenses

A patient must pay a physician about $20,000 in legal expenses after the patient’s malpractice suit was thrown out, an Arizona appeals court has ruled.

Scottsdale plastic surgeon Corwin Martin, MD, performed dental implant surgery on Penny Preszler in February 2012. Following the surgery, Ms. Preszler claimed numbness in her face and mouth, according to the appellate decision. She sued Dr. Martin and his practice for malpractice in 2015.

As the case continued, Ms. Preszler withdrew her first expert and disclosed a new expert. When Ms. Preszler’s second standard of care expert withdrew, she was given 30 days to disclose a new expert. When she failed to do so, Dr. Martin asked the court to dismiss the suit based on Ms. Preszler’s failure to disclose a proper standard of care expert.

She eventually presented a third expert, but Martin’s attorneys argued that the doctor was not a qualified expert under state law because he was board certified in periodontia, while Dr. Martin is board certified in oral and maxillofacial surgery. By this time, the case had gone on for 4 years.

When Ms. Preszler couldn’t come up with a fourth expert who was qualified, the court dismissed the case. The judge also awarded Dr. Martin $19,279.05 for expenses incurred in discovery related to Ms. Preszler’s first expert, attorneys’ fees, and expenses.

Ms. Preszler appealed, arguing that the periodontist was qualified to testify against Martin because he performed dental implant surgeries in the past without the board certification Dr. Martin obtained. In its Jan. 20, 2022, decision, a panel of the Arizona Court of Appeals upheld the decision, ruling that the expert was not qualified to opine. The patient must also pay the physician’s legal expenses as ordered by the lower court.

“[Ms.] Preszler has not shown the superior court abused its discretion in the award issued,” appellate judges wrote. “Three years after [Ms.] Preszler disclosed her first expert witness, that expert withdrew. [Dr.] Martin claimed substantial expenses relating to discovery addressing [Ms.] Preszler’s first expert, which were no longer beneficial given his withdrawal. ... [Ms.] Preszler has not shown that the expenses awarded to [Dr.] Martin were unreasonable or disproportionate to the time and costs expended regarding the withdrawn expert.”

A version of this article first appeared on Medscape.com.

The parents of Jeopardy! winner Brayden Smith are suing a Las Vegas surgeon and a hospitalist for negligence after their son died following a colectomy.

Mr. Smith, who suffered from ulcerative colitis, underwent a colectomy on Jan. 15, 2021, at St. Rose Dominican Hospital–San Martin Campus in Las Vegas. At the time, the 24-year-old man was malnourished, extremely weak, and was having more than 10 bloody bowel movements a day, according to a Jan. 11, 2022, lawsuit filed by Smith’s parents.

The allegations state that, after the procedure, hospital staff did not provide Mr. Smith with anticoagulants and did not administer or suggest that Mr. Smith take anticoagulants upon his discharge on Jan. 19. On Jan. 29, 2021, Mr. Smith collapsed at home and his family called an ambulance. He was taken back to St. Rose where he died from bilateral pulmonary emboli.

Mr. Smith’s legal complaint claims that treatment by Smith’s surgeon, hospitalist, and nursing staff fell below the standard of care because they failed to administer anticoagulants following the surgery. After the surgery, Mr. Smith’s surgeon referenced “DVT/VTE prophylaxis/anticoagulation” in the record and another note read “already ordered,” according to Keith Beiermeister, MD, a colon and rectal surgeon retained by the Smiths’ attorney, Robert E. Murdock. However, the order section of the notes included no specific order for heparin or Lovenox (enoxaparin). A hospitalist who cared for Mr. Smith after the surgery also mentioned “DVT prophylaxis” in the progress notes, but the hospitalist did not order it nor ensure that anticoagulants were given, the lawsuit claims.

“In a surgery such as this, the standard of care requires both mechanical and chemical anticoagulation,” Dr. Beiermeister wrote in the complaint. “This is especially true after colectomy and with Brayden’s history. Anticoagulants and mechanical anticoagulation are needed to prevent emboli. The medical literature is clear that patients undergoing colorectal surgery as compared to general surgery have a significant increase in the risk of emboli. This is especially true with preexisting inflammation as is present in inflammatory bowel disease.”

A spokesman for St. Rose said the hospital does not comment on pending litigation.

Mr. Smith was a five-time Jeopardy! winner and gained national fame during his championship run. In a statement, Jeopardy! officials said the Jeopardy! family was “heartbroken by the tragic loss of Brayden Smith” and that he “will be missed.”
 

Surgeon must face second trial in stroke suit

A cardiovascular surgeon must face a second trial over claims that he performed an unnecessary surgery that caused a patient’s stroke, the Iowa Supreme Court has ruled.

William McGrew visited a Waterloo, Iowa, cardiovascular surgeon in 2014 after experiencing transient foggy vision in one eye. An ophthalmologist initially diagnosed Mr. McGrew with cataract, but he was referred to the surgeon to rule out other possibilities.

Because of Mr. McGrew’s age (69) and history of hypertension, the cardiovascular surgeon suspected carotid disease and recommended a CT angiogram to further investigate, according to a summary in the Iowa Supreme Court’s opinion.

The CT angiogram was performed at a local imaging center and read by a radiologist who interpreted it as showing 65% stenosis, or narrowing, of the right carotid artery. The surgeon did his own review and interpreted the results as showing 70% stenosis, according to court documents. The surgeon believed that McGrew was at significant risk for stroke and he recommended surgery, specifically a right carotid endarterectomy to remove the plaque from the right carotid artery. He advised McGrew of the surgery’s possible risks, the most common being a stroke.

The endarterectomy initially appeared successful, but the next morning, Mr. McGrew experienced facial droop and weakness on his left side. An MRI and CT scan showed that Mr. McGrew experienced a stroke on the right side of his brain. A CT angiogram showed that his right carotid artery was blocked. The surgeon performed another surgery to remove the carotid artery blockage, but the second surgery did not alleviate Mr. McGrew’s symptoms, according to court documents. Mr. McGrew remains wheelchair-bound, unable to move his left side, and requires nursing home care.

Mr. McGrew and his family later went to a neurologist who analyzed Mr. McGrew’s prior CT angiogram. He interpreted the angiogram as showing only 40% stenosis. The neurologist also asked a neuroradiologist to analyze the CT angiogram, and he assessed the stenosis at 32%. In his opinion, 40% stenosis was not significant to justify an endarterectomy, the neurologist told Mr. McGrew.

Mr. McGrew sued the surgeon and the radiologist in 2016, and later settled with the radiologist. The McGrews claimed that the surgeon negligently misinterpreted the CT angiogram and performed an ill-advised surgery that resulted in a stroke. The McGrews sought damages for pain and suffering, permanent loss of function, loss of income, past and future medical expenses, and loss of consortium.

At trial, attorneys for the surgeon asked the court to limit his and the radiologist’s testimonies, arguing that their opinions were not properly disclosed in expert reports. The trial court granted the motion, and jurors heard only a limited version of the testimony. In addition, some medical records were redacted. A jury found in the surgeon’s favor, deeming him not negligent.

The McGrews appealed. In a Jan. 21, 2022, opinion, the Iowa Supreme Court ruled that the trial court abused its discretion by not allowing the earlier testimonies. Justices said both the neurologist and the neuroradiologist should have been allowed to testify on the applicable standard of care. The district court also abused its discretion in preventing Mr. McGrew from introducing complete versions of the contemporaneous medical records, the court ruled.

Justices reversed the district court’s decision and remanded the case for a new trial.
 

Court: Patient must pay doc’s legal expenses

A patient must pay a physician about $20,000 in legal expenses after the patient’s malpractice suit was thrown out, an Arizona appeals court has ruled.

Scottsdale plastic surgeon Corwin Martin, MD, performed dental implant surgery on Penny Preszler in February 2012. Following the surgery, Ms. Preszler claimed numbness in her face and mouth, according to the appellate decision. She sued Dr. Martin and his practice for malpractice in 2015.

As the case continued, Ms. Preszler withdrew her first expert and disclosed a new expert. When Ms. Preszler’s second standard of care expert withdrew, she was given 30 days to disclose a new expert. When she failed to do so, Dr. Martin asked the court to dismiss the suit based on Ms. Preszler’s failure to disclose a proper standard of care expert.

She eventually presented a third expert, but Martin’s attorneys argued that the doctor was not a qualified expert under state law because he was board certified in periodontia, while Dr. Martin is board certified in oral and maxillofacial surgery. By this time, the case had gone on for 4 years.

When Ms. Preszler couldn’t come up with a fourth expert who was qualified, the court dismissed the case. The judge also awarded Dr. Martin $19,279.05 for expenses incurred in discovery related to Ms. Preszler’s first expert, attorneys’ fees, and expenses.

Ms. Preszler appealed, arguing that the periodontist was qualified to testify against Martin because he performed dental implant surgeries in the past without the board certification Dr. Martin obtained. In its Jan. 20, 2022, decision, a panel of the Arizona Court of Appeals upheld the decision, ruling that the expert was not qualified to opine. The patient must also pay the physician’s legal expenses as ordered by the lower court.

“[Ms.] Preszler has not shown the superior court abused its discretion in the award issued,” appellate judges wrote. “Three years after [Ms.] Preszler disclosed her first expert witness, that expert withdrew. [Dr.] Martin claimed substantial expenses relating to discovery addressing [Ms.] Preszler’s first expert, which were no longer beneficial given his withdrawal. ... [Ms.] Preszler has not shown that the expenses awarded to [Dr.] Martin were unreasonable or disproportionate to the time and costs expended regarding the withdrawn expert.”

A version of this article first appeared on Medscape.com.

The parents of Jeopardy! winner Brayden Smith are suing a Las Vegas surgeon and a hospitalist for negligence after their son died following a colectomy.

Mr. Smith, who suffered from ulcerative colitis, underwent a colectomy on Jan. 15, 2021, at St. Rose Dominican Hospital–San Martin Campus in Las Vegas. At the time, the 24-year-old man was malnourished, extremely weak, and was having more than 10 bloody bowel movements a day, according to a Jan. 11, 2022, lawsuit filed by Smith’s parents.

The allegations state that, after the procedure, hospital staff did not provide Mr. Smith with anticoagulants and did not administer or suggest that Mr. Smith take anticoagulants upon his discharge on Jan. 19. On Jan. 29, 2021, Mr. Smith collapsed at home and his family called an ambulance. He was taken back to St. Rose where he died from bilateral pulmonary emboli.

Mr. Smith’s legal complaint claims that treatment by Smith’s surgeon, hospitalist, and nursing staff fell below the standard of care because they failed to administer anticoagulants following the surgery. After the surgery, Mr. Smith’s surgeon referenced “DVT/VTE prophylaxis/anticoagulation” in the record and another note read “already ordered,” according to Keith Beiermeister, MD, a colon and rectal surgeon retained by the Smiths’ attorney, Robert E. Murdock. However, the order section of the notes included no specific order for heparin or Lovenox (enoxaparin). A hospitalist who cared for Mr. Smith after the surgery also mentioned “DVT prophylaxis” in the progress notes, but the hospitalist did not order it nor ensure that anticoagulants were given, the lawsuit claims.

“In a surgery such as this, the standard of care requires both mechanical and chemical anticoagulation,” Dr. Beiermeister wrote in the complaint. “This is especially true after colectomy and with Brayden’s history. Anticoagulants and mechanical anticoagulation are needed to prevent emboli. The medical literature is clear that patients undergoing colorectal surgery as compared to general surgery have a significant increase in the risk of emboli. This is especially true with preexisting inflammation as is present in inflammatory bowel disease.”

A spokesman for St. Rose said the hospital does not comment on pending litigation.

Mr. Smith was a five-time Jeopardy! winner and gained national fame during his championship run. In a statement, Jeopardy! officials said the Jeopardy! family was “heartbroken by the tragic loss of Brayden Smith” and that he “will be missed.”
 

Surgeon must face second trial in stroke suit

A cardiovascular surgeon must face a second trial over claims that he performed an unnecessary surgery that caused a patient’s stroke, the Iowa Supreme Court has ruled.

William McGrew visited a Waterloo, Iowa, cardiovascular surgeon in 2014 after experiencing transient foggy vision in one eye. An ophthalmologist initially diagnosed Mr. McGrew with cataract, but he was referred to the surgeon to rule out other possibilities.

Because of Mr. McGrew’s age (69) and history of hypertension, the cardiovascular surgeon suspected carotid disease and recommended a CT angiogram to further investigate, according to a summary in the Iowa Supreme Court’s opinion.

The CT angiogram was performed at a local imaging center and read by a radiologist who interpreted it as showing 65% stenosis, or narrowing, of the right carotid artery. The surgeon did his own review and interpreted the results as showing 70% stenosis, according to court documents. The surgeon believed that McGrew was at significant risk for stroke and he recommended surgery, specifically a right carotid endarterectomy to remove the plaque from the right carotid artery. He advised McGrew of the surgery’s possible risks, the most common being a stroke.

The endarterectomy initially appeared successful, but the next morning, Mr. McGrew experienced facial droop and weakness on his left side. An MRI and CT scan showed that Mr. McGrew experienced a stroke on the right side of his brain. A CT angiogram showed that his right carotid artery was blocked. The surgeon performed another surgery to remove the carotid artery blockage, but the second surgery did not alleviate Mr. McGrew’s symptoms, according to court documents. Mr. McGrew remains wheelchair-bound, unable to move his left side, and requires nursing home care.

Mr. McGrew and his family later went to a neurologist who analyzed Mr. McGrew’s prior CT angiogram. He interpreted the angiogram as showing only 40% stenosis. The neurologist also asked a neuroradiologist to analyze the CT angiogram, and he assessed the stenosis at 32%. In his opinion, 40% stenosis was not significant to justify an endarterectomy, the neurologist told Mr. McGrew.

Mr. McGrew sued the surgeon and the radiologist in 2016, and later settled with the radiologist. The McGrews claimed that the surgeon negligently misinterpreted the CT angiogram and performed an ill-advised surgery that resulted in a stroke. The McGrews sought damages for pain and suffering, permanent loss of function, loss of income, past and future medical expenses, and loss of consortium.

At trial, attorneys for the surgeon asked the court to limit his and the radiologist’s testimonies, arguing that their opinions were not properly disclosed in expert reports. The trial court granted the motion, and jurors heard only a limited version of the testimony. In addition, some medical records were redacted. A jury found in the surgeon’s favor, deeming him not negligent.

The McGrews appealed. In a Jan. 21, 2022, opinion, the Iowa Supreme Court ruled that the trial court abused its discretion by not allowing the earlier testimonies. Justices said both the neurologist and the neuroradiologist should have been allowed to testify on the applicable standard of care. The district court also abused its discretion in preventing Mr. McGrew from introducing complete versions of the contemporaneous medical records, the court ruled.

Justices reversed the district court’s decision and remanded the case for a new trial.
 

Court: Patient must pay doc’s legal expenses

A patient must pay a physician about $20,000 in legal expenses after the patient’s malpractice suit was thrown out, an Arizona appeals court has ruled.

Scottsdale plastic surgeon Corwin Martin, MD, performed dental implant surgery on Penny Preszler in February 2012. Following the surgery, Ms. Preszler claimed numbness in her face and mouth, according to the appellate decision. She sued Dr. Martin and his practice for malpractice in 2015.

As the case continued, Ms. Preszler withdrew her first expert and disclosed a new expert. When Ms. Preszler’s second standard of care expert withdrew, she was given 30 days to disclose a new expert. When she failed to do so, Dr. Martin asked the court to dismiss the suit based on Ms. Preszler’s failure to disclose a proper standard of care expert.

She eventually presented a third expert, but Martin’s attorneys argued that the doctor was not a qualified expert under state law because he was board certified in periodontia, while Dr. Martin is board certified in oral and maxillofacial surgery. By this time, the case had gone on for 4 years.

When Ms. Preszler couldn’t come up with a fourth expert who was qualified, the court dismissed the case. The judge also awarded Dr. Martin $19,279.05 for expenses incurred in discovery related to Ms. Preszler’s first expert, attorneys’ fees, and expenses.

Ms. Preszler appealed, arguing that the periodontist was qualified to testify against Martin because he performed dental implant surgeries in the past without the board certification Dr. Martin obtained. In its Jan. 20, 2022, decision, a panel of the Arizona Court of Appeals upheld the decision, ruling that the expert was not qualified to opine. The patient must also pay the physician’s legal expenses as ordered by the lower court.

“[Ms.] Preszler has not shown the superior court abused its discretion in the award issued,” appellate judges wrote. “Three years after [Ms.] Preszler disclosed her first expert witness, that expert withdrew. [Dr.] Martin claimed substantial expenses relating to discovery addressing [Ms.] Preszler’s first expert, which were no longer beneficial given his withdrawal. ... [Ms.] Preszler has not shown that the expenses awarded to [Dr.] Martin were unreasonable or disproportionate to the time and costs expended regarding the withdrawn expert.”

A version of this article first appeared on Medscape.com.

It was a freezing December day, and two young brothers were playing outside near a swimming pool when the younger boy, a 3-year-old toddler, fell into the water.

The 7-year-old immediately jumped into the pool to save his brother and was able to pull the toddler to the pool steps where the boy’s head was above water. But the icy temperatures overcame the older brother and he drifted underwater.

“Despite being at the forefront of medicine, what we don’t understand often exceeds what we do understand,” said Harley Rotbart, MD, author of “Miracles We Have Seen” (Health Communications: Deerfield Beach, Fla., 2016).

Paramedics arrived to find both boys unconscious and rushed them to the Children’s Hospital of Philadelphia. The younger boy regained consciousness in the ICU and recovered. The 7-year-old, however, was unresponsive and remained in a coma, said Dr. Rotbart a pediatrician and author based in Denver.

Family members stayed at the boy’s bedside and prayed. But after several weeks, the child’s condition remained unchanged. His parents began to discuss ending life support and organ donation. Then late one night, as Dr. Rotbart sat reading to the unconscious patient, the little boy squeezed his hand. In disbelief, Dr. Rotbart told all of his colleagues about the squeeze the next morning. Everyone attributed the movement to an involuntary muscle spasm, he said. After all, every test and scan showed the boy had no brain function.

But later that day, the child grasped another staff member’s hand. Shortly after that, he squeezed in response to a command. Dr. Rotbart and his staff were stunned, but cautious about feeling too much hope. 

Days later, the child opened his eyes. Then, he smiled. His parents were overjoyed. 

“When he walked out of the hospital more than 2 months after the near-drowning and his heroic rescue of his little brother, we all cheered and cried,” Dr. Rotbart wrote in his book. “We cried many times in the weeks preceding, and I still cry whenever I recall this story.”

The experience, which happened years ago when Dr. Rotbart was a trainee, has stayed with the pediatrician his entire career. 

“His awakening was seemingly impossible – and then it happened,” Dr. Rotbart said. “Despite being at the forefront of medicine and science, what we don’t understand often exceeds what we do understand. And even when we think we understand, we are frequently proven wrong.”

For many, Dr. Rotbart’s experience raises questions about the existence of medical miracles. Although the term can have different definitions, a “medical miracle” generally refers to an unexpected recovery despite a dire prognosis. Frequently, the phrase has a religious connotation and is used to describe a supernatural or paranormal healing.

Do physicians believe in medical miracles? The answers are diverse.

“I have no doubt that extraordinary outcomes happen where patients who are overwhelmingly expected not to survive, do,” says Eric Beam, MD, a hospitalist based in San Diego. “That’s one of the reasons we choose our words very carefully in our conversations with patients and their families and remember that nothing is 0%, and nothing is 100%. But doctors tend to treat situations that are 99.9% as absolute. I don’t think you can practice medicine with the hope or expectation that every case you see has the potential to beat the odds – or be a medical miracle.”
 

Disappearing cancer hailed as ‘miracle’

In 2003, physicians projected that Joseph Rick, 40, had just a few months to live. His mucosal melanoma had spread throughout his body, progressing even after several surgeries, radiation therapy, and a combination of chemotherapy agents, recalled Antoni Ribas, MD, PhD, an oncologist and director of the tumor immunology program at Jonsson Comprehensive Cancer Center in Los Angeles.

Mr. Rick’s melanoma had spread to his intestines with traces on his stomach and bladder. Tumors were present on his liver, lungs, and pancreas. Rick bought a grave and prepared for the worst, he recounted in a Cancer Research Institute video. But his fate took a turn when he enrolled in an experimental drug trial in December 2003. The phase 1 trial was for a new immune modulating antibody, called an anti–CTLA-4 antibody, said Dr. Ribas, who conducted the trial. 

Over the next few weeks and months, all areas of Rick’s melanoma metastases disappeared. By 2009, he was in remission. He has lived the rest of his life with no evidence of melanoma, according to Dr. Ribas.

Mr. Rick’s case has been referenced throughout literature and news stories as a “medical miracle” and a “cancer miracle.”

Does Dr. Ribas think the case was a medical miracle?

“The response in Joseph Rick was what happened in 10%-15% of patients who received anti-CTLA-4 therapy,” Dr. Ribas said. “These were not miracles. These patients responded because their immune system trying to attack the cancer had been stuck at the CTLA-4 checkpoint. Blocking this checkpoint allowed their immune system to proceed to attack and kill cancer cells anywhere in the body.”

The scientific basis of this therapy was work by University of Texas MD Anderson Cancer Center immunologist James Allison, PhD, that had been done 5 years earlier in mouse models, where giving an anti–CTLA-4 antibody to mice allowed them to reject several implanted cancers, Dr. Ribas explained. Dr. Allison received the 2018 Nobel Prize in Physiology or Medicine for this work, subsequently opening the door for what we now call “immune checkpoint blockade therapy for cancer.” Dr. Ribas added.

“We tend to call miracles good things that we do not understand how they happened,” Dr. Ribas said. “From the human observation perspective, there have been plenty of medical miracles. However, each one has a specific biological mechanism that led to improvement in a patient. In cancer treatment, early studies using the immune system resulted in occasional patients having tumor responses and long-term benefits.

“With the increased understanding of how the immune system interacts with cancers, which is based on remarkable progress in understanding how the immune system works generated over the past several decades, these ‘miracles’ become specific mechanisms leading to response to cancer, which can then be replicated in other patients.”
 

Patient defies odds after 45 minutes without heartbeat

Florida ob.gyn. Michael Fleischer, MD, had just performed a routine repeat cesarean birth, delivering a healthy baby girl. His patient, Ruby, had a history of high blood pressure but medication taken during the pregnancy had kept her levels stabilized.

In the waiting room, Dr. Fleischer informed Ruby’s large family of the good news. He was planning to head home early that day when he heard his name being called over the hospital’s loudspeaker. Ruby had stopped breathing.

“The anesthesiologist was with her and had immediately intubated her,” Dr. Fleischer said. “We checked to make sure there was no problems or bleeding from the C-section, but everything was completely fine. However, we couldn’t keep her blood pressure stable.”

Dr. Fleischer suspected the respiratory arrest was caused by either an amniotic fluid embolism or a pulmonary embolism. Intubation continued and physicians gave Ruby medication to stabilize her blood pressure. Then suddenly, Ruby’s heart stopped.

Dr. Fleischer and other doctors began compressions, which they continued for 30 minutes. They shocked Ruby with defibrillator paddles multiple times, but there was no change.

“I was already thinking, this is hopeless, there’s nothing we can do,” he said. “The writing is on the wall. She’s going to die.”

Dr. Fleischer spoke to Ruby’s family and explained the tragic turn of events. Relatives were distraught and tearfully visited Ruby to say their goodbyes. They prayed and cried. Eventually, physicians ceased compressions. Ruby had gone 45 minutes without a pulse. The EKG was still showing some irregularity, FDr. leischer said, but no rhythm. Physicians kept Ruby intubated as they waited for the background electrical activity to fade. As they watched the screen in anguish, there was suddenly a blip on the heart rate monitor. Then another and another. Within seconds, Ruby’s heart went back into sinus rhythm.

“We were in disbelief,” Dr. Fleischer said. “We did some tests and put her in the ICU, and she was fine. Usually, after doing compressions on anyone, you’d have bruising or broken ribs. She had nothing. She just woke up and said: ‘What am I doing here? Let me go see my baby.’ ”

Ruby fully recovered, and 3 days later, she went home with her newborn.

While the recovery was unbelievable, Dr. Fleischer stopped short of calling it a medical miracle. There were scientific contributors to her survival: she was immediately intubated when she stopped breathing and compressions were started as soon as her heart stopped.

However, Dr. Fleischer said the fact that lifesaving measures had ended, and Ruby revived on her own was indeed, miraculous.

“It wasn’t like we were doing compressions and brought her back,” he said. “I can scientifically explain things in my mind, except for that. That when we finally stopped and took our hands off her, that’s when something changed. That’s when she came back.”
 

How do ‘medical miracles’ impact physicians?

When Dr. Rotbart was writing his book, which includes physician essays from across the world, he was struck by how many of the events happened decades earlier.

“This is another testament to the powerful impact these experiences have on those witnessing them,” he said. “In many cases, physicians describing events occurring years ago noted that those early memories served to give them hope as they encountered new, seemingly hopeless cases in subsequent years. Some contributors wrote that the ‘miracle experience’ actually directed them in their choice of specialty and has influenced much of their professional decision-making throughout their careers. Others draw on those miraculous moments at times when they themselves feel hopeless in the face of adversity and tragedy.”

Dr. Fleischer said that, although Ruby’s story has stayed with him, his mindset or practice style didn’t necessarily change after the experience.

“I’m not sure if it’s affected me because I haven’t been in that situation again,” he said. “I’m in the middle. I would never rule out anything, but I’m not going to base how I practice on the hope for a medical miracle.”

In a recent opinion piece for the New York Times, pulmonary and critical care physician, Daniela Lamas, MD, wrote about the sometimes negative effects of miracle cases on physicians. Such experiences for instance, can lead to a greater drive to beat the odds in future cases, which can sometimes lead to false hope, protracted critical care admissions, and futile procedures. 

“After all, in most cases in the ICU, our initial prognoses are correct,” she wrote. “So there’s a risk to standing at the bedside, thinking about that one patient who made it home despite our predictions. We can give that experience too much weight in influencing our decisions and recommendations.”

Dr. Beam said unexpected outcomes – particularly in the age of COVID-19 – can certainly make physicians think differently about life-sustaining measures and when to discuss end-of-life care with family members. In his own practice, Dr. Beam has encountered unexpected COVID recoveries. Now, he generally gives extremely ill COVID patients a little more time to see if their bodies recover.

“It remains true that people who are really sick with COVID, who are on ventilated or who are requiring a lot of up respiratory support, they don’t do well on average,” he said. “But it is [also] true that there are a handful of people who get to that point and do come back to 80% or 90% of where they were. It makes you think twice.”
 

What to do when parents hope for a miracle

In his palliative care practice, Nashville, Tenn., surgeon Myrick Shinall Jr., MD, PhD, regularly encounters families and patients who wish for a medical miracle. 

“It happens pretty often from a palliative care perspective,” he said. “What I have experienced the most is a patient with a severe brain injury who we don’t believe is recoverable. The medical team is discussing with the family that it is probably time to discontinue the ventilator. In those situations, families will often talk about wanting us to continue on [our life-sustaining efforts] in the hopes that a miracle will happen.”

Dr. Shinall and Trevor Bibler, PhD, recently authored two articles about best practices for responding to patients who hope for a miracle. The first one, published in the American Journal of Bioethics, is directed toward bioethicists; the second article, in the Journal of Pain and Symptom Management, targets clinicians.

A primary takeaway from the papers is that health professionals should recognize that hope for a miracle may mean different things to different people, said Dr. Bibler, an ethicist and assistant professor at Baylor College of Medicine, Houston. Some patients may have an innocuous hope for a miracle without a religious connotation, whereas others may have a firm conviction in their idea of God, their spirituality, and a concrete vision of the miracle.

“To hear that a family or patient is hoping for a miracle, one shouldn’t assume they already know what the patient or the family might mean by that,” Dr. Bibler said. “If a patient were to say, ‘I hope for a miracle,’ you might ask: ‘What do you mean by a miracle?’ Health professionals should feel empowered to ask that question.”

Health care professionals should explore a patient’s hope for a miracle, be nonjudgmental, ask clarifying questions, restate what the patient has said, and delve into the patient’s world view on death and dying, according to Dr. Bibler’s analyses. In some cases, it may be helpful to include a chaplain or the presence of a theology outsider in discussions. 

When his patients and their families raise the subject of miracles, Dr. Shinall said he inquires what a miracle would look like in their opinion and tries to gauge how much of the assertion is a general hope compared with a firm belief. 

“I try to work with them to make sure they understand doctors’ decisions and recommendations are based on what we know and can predict from our medical experience,” he said. “And that there’s nothing we’re going to do to prevent a miracle from happening, but that that can’t be our medical plan – to wait for a miracle.”

Despite the many patients and families Dr. Shinall has encountered who hope for a miracle, he has never experienced a case that he would describe as a medical miracle, he said. 

Dr. Rotbart believes all physicians struggle with finding balance in how far to push in hope of a miracle and when to let go.

“Miracles, whether they happen to us, or we hear of them from colleagues or we read about them, should humble us as physicians,” he said. “I have come to believe that what we don’t know or don’t understand about medicine, medical miracles, or life in general, isn‘t necessarily cause for fear, and can even be reason for hope.

“Medicine has come a long way since Hippocrates’ theory of The Four Humors and The Four Temperaments, yet we still have much to learn about the workings of the human body. As physicians, we should take comfort in how much we don’t know because that allows us to share hope with our patients and, occasionally, makes medical miracles possible.”

A version of this article first appeared on Medscape.com.

It was a freezing December day, and two young brothers were playing outside near a swimming pool when the younger boy, a 3-year-old toddler, fell into the water.

The 7-year-old immediately jumped into the pool to save his brother and was able to pull the toddler to the pool steps where the boy’s head was above water. But the icy temperatures overcame the older brother and he drifted underwater.

“Despite being at the forefront of medicine, what we don’t understand often exceeds what we do understand,” said Harley Rotbart, MD, author of “Miracles We Have Seen” (Health Communications: Deerfield Beach, Fla., 2016).

Paramedics arrived to find both boys unconscious and rushed them to the Children’s Hospital of Philadelphia. The younger boy regained consciousness in the ICU and recovered. The 7-year-old, however, was unresponsive and remained in a coma, said Dr. Rotbart a pediatrician and author based in Denver.

Family members stayed at the boy’s bedside and prayed. But after several weeks, the child’s condition remained unchanged. His parents began to discuss ending life support and organ donation. Then late one night, as Dr. Rotbart sat reading to the unconscious patient, the little boy squeezed his hand. In disbelief, Dr. Rotbart told all of his colleagues about the squeeze the next morning. Everyone attributed the movement to an involuntary muscle spasm, he said. After all, every test and scan showed the boy had no brain function.

But later that day, the child grasped another staff member’s hand. Shortly after that, he squeezed in response to a command. Dr. Rotbart and his staff were stunned, but cautious about feeling too much hope. 

Days later, the child opened his eyes. Then, he smiled. His parents were overjoyed. 

“When he walked out of the hospital more than 2 months after the near-drowning and his heroic rescue of his little brother, we all cheered and cried,” Dr. Rotbart wrote in his book. “We cried many times in the weeks preceding, and I still cry whenever I recall this story.”

The experience, which happened years ago when Dr. Rotbart was a trainee, has stayed with the pediatrician his entire career. 

“His awakening was seemingly impossible – and then it happened,” Dr. Rotbart said. “Despite being at the forefront of medicine and science, what we don’t understand often exceeds what we do understand. And even when we think we understand, we are frequently proven wrong.”

For many, Dr. Rotbart’s experience raises questions about the existence of medical miracles. Although the term can have different definitions, a “medical miracle” generally refers to an unexpected recovery despite a dire prognosis. Frequently, the phrase has a religious connotation and is used to describe a supernatural or paranormal healing.

Do physicians believe in medical miracles? The answers are diverse.

“I have no doubt that extraordinary outcomes happen where patients who are overwhelmingly expected not to survive, do,” says Eric Beam, MD, a hospitalist based in San Diego. “That’s one of the reasons we choose our words very carefully in our conversations with patients and their families and remember that nothing is 0%, and nothing is 100%. But doctors tend to treat situations that are 99.9% as absolute. I don’t think you can practice medicine with the hope or expectation that every case you see has the potential to beat the odds – or be a medical miracle.”
 

Disappearing cancer hailed as ‘miracle’

In 2003, physicians projected that Joseph Rick, 40, had just a few months to live. His mucosal melanoma had spread throughout his body, progressing even after several surgeries, radiation therapy, and a combination of chemotherapy agents, recalled Antoni Ribas, MD, PhD, an oncologist and director of the tumor immunology program at Jonsson Comprehensive Cancer Center in Los Angeles.

Mr. Rick’s melanoma had spread to his intestines with traces on his stomach and bladder. Tumors were present on his liver, lungs, and pancreas. Rick bought a grave and prepared for the worst, he recounted in a Cancer Research Institute video. But his fate took a turn when he enrolled in an experimental drug trial in December 2003. The phase 1 trial was for a new immune modulating antibody, called an anti–CTLA-4 antibody, said Dr. Ribas, who conducted the trial. 

Over the next few weeks and months, all areas of Rick’s melanoma metastases disappeared. By 2009, he was in remission. He has lived the rest of his life with no evidence of melanoma, according to Dr. Ribas.

Mr. Rick’s case has been referenced throughout literature and news stories as a “medical miracle” and a “cancer miracle.”

Does Dr. Ribas think the case was a medical miracle?

“The response in Joseph Rick was what happened in 10%-15% of patients who received anti-CTLA-4 therapy,” Dr. Ribas said. “These were not miracles. These patients responded because their immune system trying to attack the cancer had been stuck at the CTLA-4 checkpoint. Blocking this checkpoint allowed their immune system to proceed to attack and kill cancer cells anywhere in the body.”

The scientific basis of this therapy was work by University of Texas MD Anderson Cancer Center immunologist James Allison, PhD, that had been done 5 years earlier in mouse models, where giving an anti–CTLA-4 antibody to mice allowed them to reject several implanted cancers, Dr. Ribas explained. Dr. Allison received the 2018 Nobel Prize in Physiology or Medicine for this work, subsequently opening the door for what we now call “immune checkpoint blockade therapy for cancer.” Dr. Ribas added.

“We tend to call miracles good things that we do not understand how they happened,” Dr. Ribas said. “From the human observation perspective, there have been plenty of medical miracles. However, each one has a specific biological mechanism that led to improvement in a patient. In cancer treatment, early studies using the immune system resulted in occasional patients having tumor responses and long-term benefits.

“With the increased understanding of how the immune system interacts with cancers, which is based on remarkable progress in understanding how the immune system works generated over the past several decades, these ‘miracles’ become specific mechanisms leading to response to cancer, which can then be replicated in other patients.”
 

Patient defies odds after 45 minutes without heartbeat

Florida ob.gyn. Michael Fleischer, MD, had just performed a routine repeat cesarean birth, delivering a healthy baby girl. His patient, Ruby, had a history of high blood pressure but medication taken during the pregnancy had kept her levels stabilized.

In the waiting room, Dr. Fleischer informed Ruby’s large family of the good news. He was planning to head home early that day when he heard his name being called over the hospital’s loudspeaker. Ruby had stopped breathing.

“The anesthesiologist was with her and had immediately intubated her,” Dr. Fleischer said. “We checked to make sure there was no problems or bleeding from the C-section, but everything was completely fine. However, we couldn’t keep her blood pressure stable.”

Dr. Fleischer suspected the respiratory arrest was caused by either an amniotic fluid embolism or a pulmonary embolism. Intubation continued and physicians gave Ruby medication to stabilize her blood pressure. Then suddenly, Ruby’s heart stopped.

Dr. Fleischer and other doctors began compressions, which they continued for 30 minutes. They shocked Ruby with defibrillator paddles multiple times, but there was no change.

“I was already thinking, this is hopeless, there’s nothing we can do,” he said. “The writing is on the wall. She’s going to die.”

Dr. Fleischer spoke to Ruby’s family and explained the tragic turn of events. Relatives were distraught and tearfully visited Ruby to say their goodbyes. They prayed and cried. Eventually, physicians ceased compressions. Ruby had gone 45 minutes without a pulse. The EKG was still showing some irregularity, FDr. leischer said, but no rhythm. Physicians kept Ruby intubated as they waited for the background electrical activity to fade. As they watched the screen in anguish, there was suddenly a blip on the heart rate monitor. Then another and another. Within seconds, Ruby’s heart went back into sinus rhythm.

“We were in disbelief,” Dr. Fleischer said. “We did some tests and put her in the ICU, and she was fine. Usually, after doing compressions on anyone, you’d have bruising or broken ribs. She had nothing. She just woke up and said: ‘What am I doing here? Let me go see my baby.’ ”

Ruby fully recovered, and 3 days later, she went home with her newborn.

While the recovery was unbelievable, Dr. Fleischer stopped short of calling it a medical miracle. There were scientific contributors to her survival: she was immediately intubated when she stopped breathing and compressions were started as soon as her heart stopped.

However, Dr. Fleischer said the fact that lifesaving measures had ended, and Ruby revived on her own was indeed, miraculous.

“It wasn’t like we were doing compressions and brought her back,” he said. “I can scientifically explain things in my mind, except for that. That when we finally stopped and took our hands off her, that’s when something changed. That’s when she came back.”
 

How do ‘medical miracles’ impact physicians?

When Dr. Rotbart was writing his book, which includes physician essays from across the world, he was struck by how many of the events happened decades earlier.

“This is another testament to the powerful impact these experiences have on those witnessing them,” he said. “In many cases, physicians describing events occurring years ago noted that those early memories served to give them hope as they encountered new, seemingly hopeless cases in subsequent years. Some contributors wrote that the ‘miracle experience’ actually directed them in their choice of specialty and has influenced much of their professional decision-making throughout their careers. Others draw on those miraculous moments at times when they themselves feel hopeless in the face of adversity and tragedy.”

Dr. Fleischer said that, although Ruby’s story has stayed with him, his mindset or practice style didn’t necessarily change after the experience.

“I’m not sure if it’s affected me because I haven’t been in that situation again,” he said. “I’m in the middle. I would never rule out anything, but I’m not going to base how I practice on the hope for a medical miracle.”

In a recent opinion piece for the New York Times, pulmonary and critical care physician, Daniela Lamas, MD, wrote about the sometimes negative effects of miracle cases on physicians. Such experiences for instance, can lead to a greater drive to beat the odds in future cases, which can sometimes lead to false hope, protracted critical care admissions, and futile procedures. 

“After all, in most cases in the ICU, our initial prognoses are correct,” she wrote. “So there’s a risk to standing at the bedside, thinking about that one patient who made it home despite our predictions. We can give that experience too much weight in influencing our decisions and recommendations.”

Dr. Beam said unexpected outcomes – particularly in the age of COVID-19 – can certainly make physicians think differently about life-sustaining measures and when to discuss end-of-life care with family members. In his own practice, Dr. Beam has encountered unexpected COVID recoveries. Now, he generally gives extremely ill COVID patients a little more time to see if their bodies recover.

“It remains true that people who are really sick with COVID, who are on ventilated or who are requiring a lot of up respiratory support, they don’t do well on average,” he said. “But it is [also] true that there are a handful of people who get to that point and do come back to 80% or 90% of where they were. It makes you think twice.”
 

What to do when parents hope for a miracle

In his palliative care practice, Nashville, Tenn., surgeon Myrick Shinall Jr., MD, PhD, regularly encounters families and patients who wish for a medical miracle. 

“It happens pretty often from a palliative care perspective,” he said. “What I have experienced the most is a patient with a severe brain injury who we don’t believe is recoverable. The medical team is discussing with the family that it is probably time to discontinue the ventilator. In those situations, families will often talk about wanting us to continue on [our life-sustaining efforts] in the hopes that a miracle will happen.”

Dr. Shinall and Trevor Bibler, PhD, recently authored two articles about best practices for responding to patients who hope for a miracle. The first one, published in the American Journal of Bioethics, is directed toward bioethicists; the second article, in the Journal of Pain and Symptom Management, targets clinicians.

A primary takeaway from the papers is that health professionals should recognize that hope for a miracle may mean different things to different people, said Dr. Bibler, an ethicist and assistant professor at Baylor College of Medicine, Houston. Some patients may have an innocuous hope for a miracle without a religious connotation, whereas others may have a firm conviction in their idea of God, their spirituality, and a concrete vision of the miracle.

“To hear that a family or patient is hoping for a miracle, one shouldn’t assume they already know what the patient or the family might mean by that,” Dr. Bibler said. “If a patient were to say, ‘I hope for a miracle,’ you might ask: ‘What do you mean by a miracle?’ Health professionals should feel empowered to ask that question.”

Health care professionals should explore a patient’s hope for a miracle, be nonjudgmental, ask clarifying questions, restate what the patient has said, and delve into the patient’s world view on death and dying, according to Dr. Bibler’s analyses. In some cases, it may be helpful to include a chaplain or the presence of a theology outsider in discussions. 

When his patients and their families raise the subject of miracles, Dr. Shinall said he inquires what a miracle would look like in their opinion and tries to gauge how much of the assertion is a general hope compared with a firm belief. 

“I try to work with them to make sure they understand doctors’ decisions and recommendations are based on what we know and can predict from our medical experience,” he said. “And that there’s nothing we’re going to do to prevent a miracle from happening, but that that can’t be our medical plan – to wait for a miracle.”

Despite the many patients and families Dr. Shinall has encountered who hope for a miracle, he has never experienced a case that he would describe as a medical miracle, he said. 

Dr. Rotbart believes all physicians struggle with finding balance in how far to push in hope of a miracle and when to let go.

“Miracles, whether they happen to us, or we hear of them from colleagues or we read about them, should humble us as physicians,” he said. “I have come to believe that what we don’t know or don’t understand about medicine, medical miracles, or life in general, isn‘t necessarily cause for fear, and can even be reason for hope.

“Medicine has come a long way since Hippocrates’ theory of The Four Humors and The Four Temperaments, yet we still have much to learn about the workings of the human body. As physicians, we should take comfort in how much we don’t know because that allows us to share hope with our patients and, occasionally, makes medical miracles possible.”

A version of this article first appeared on Medscape.com.

It was a freezing December day, and two young brothers were playing outside near a swimming pool when the younger boy, a 3-year-old toddler, fell into the water.

The 7-year-old immediately jumped into the pool to save his brother and was able to pull the toddler to the pool steps where the boy’s head was above water. But the icy temperatures overcame the older brother and he drifted underwater.

“Despite being at the forefront of medicine, what we don’t understand often exceeds what we do understand,” said Harley Rotbart, MD, author of “Miracles We Have Seen” (Health Communications: Deerfield Beach, Fla., 2016).

Paramedics arrived to find both boys unconscious and rushed them to the Children’s Hospital of Philadelphia. The younger boy regained consciousness in the ICU and recovered. The 7-year-old, however, was unresponsive and remained in a coma, said Dr. Rotbart a pediatrician and author based in Denver.

Family members stayed at the boy’s bedside and prayed. But after several weeks, the child’s condition remained unchanged. His parents began to discuss ending life support and organ donation. Then late one night, as Dr. Rotbart sat reading to the unconscious patient, the little boy squeezed his hand. In disbelief, Dr. Rotbart told all of his colleagues about the squeeze the next morning. Everyone attributed the movement to an involuntary muscle spasm, he said. After all, every test and scan showed the boy had no brain function.

But later that day, the child grasped another staff member’s hand. Shortly after that, he squeezed in response to a command. Dr. Rotbart and his staff were stunned, but cautious about feeling too much hope. 

Days later, the child opened his eyes. Then, he smiled. His parents were overjoyed. 

“When he walked out of the hospital more than 2 months after the near-drowning and his heroic rescue of his little brother, we all cheered and cried,” Dr. Rotbart wrote in his book. “We cried many times in the weeks preceding, and I still cry whenever I recall this story.”

The experience, which happened years ago when Dr. Rotbart was a trainee, has stayed with the pediatrician his entire career. 

“His awakening was seemingly impossible – and then it happened,” Dr. Rotbart said. “Despite being at the forefront of medicine and science, what we don’t understand often exceeds what we do understand. And even when we think we understand, we are frequently proven wrong.”

For many, Dr. Rotbart’s experience raises questions about the existence of medical miracles. Although the term can have different definitions, a “medical miracle” generally refers to an unexpected recovery despite a dire prognosis. Frequently, the phrase has a religious connotation and is used to describe a supernatural or paranormal healing.

Do physicians believe in medical miracles? The answers are diverse.

“I have no doubt that extraordinary outcomes happen where patients who are overwhelmingly expected not to survive, do,” says Eric Beam, MD, a hospitalist based in San Diego. “That’s one of the reasons we choose our words very carefully in our conversations with patients and their families and remember that nothing is 0%, and nothing is 100%. But doctors tend to treat situations that are 99.9% as absolute. I don’t think you can practice medicine with the hope or expectation that every case you see has the potential to beat the odds – or be a medical miracle.”
 

Disappearing cancer hailed as ‘miracle’

In 2003, physicians projected that Joseph Rick, 40, had just a few months to live. His mucosal melanoma had spread throughout his body, progressing even after several surgeries, radiation therapy, and a combination of chemotherapy agents, recalled Antoni Ribas, MD, PhD, an oncologist and director of the tumor immunology program at Jonsson Comprehensive Cancer Center in Los Angeles.

Mr. Rick’s melanoma had spread to his intestines with traces on his stomach and bladder. Tumors were present on his liver, lungs, and pancreas. Rick bought a grave and prepared for the worst, he recounted in a Cancer Research Institute video. But his fate took a turn when he enrolled in an experimental drug trial in December 2003. The phase 1 trial was for a new immune modulating antibody, called an anti–CTLA-4 antibody, said Dr. Ribas, who conducted the trial. 

Over the next few weeks and months, all areas of Rick’s melanoma metastases disappeared. By 2009, he was in remission. He has lived the rest of his life with no evidence of melanoma, according to Dr. Ribas.

Mr. Rick’s case has been referenced throughout literature and news stories as a “medical miracle” and a “cancer miracle.”

Does Dr. Ribas think the case was a medical miracle?

“The response in Joseph Rick was what happened in 10%-15% of patients who received anti-CTLA-4 therapy,” Dr. Ribas said. “These were not miracles. These patients responded because their immune system trying to attack the cancer had been stuck at the CTLA-4 checkpoint. Blocking this checkpoint allowed their immune system to proceed to attack and kill cancer cells anywhere in the body.”

The scientific basis of this therapy was work by University of Texas MD Anderson Cancer Center immunologist James Allison, PhD, that had been done 5 years earlier in mouse models, where giving an anti–CTLA-4 antibody to mice allowed them to reject several implanted cancers, Dr. Ribas explained. Dr. Allison received the 2018 Nobel Prize in Physiology or Medicine for this work, subsequently opening the door for what we now call “immune checkpoint blockade therapy for cancer.” Dr. Ribas added.

“We tend to call miracles good things that we do not understand how they happened,” Dr. Ribas said. “From the human observation perspective, there have been plenty of medical miracles. However, each one has a specific biological mechanism that led to improvement in a patient. In cancer treatment, early studies using the immune system resulted in occasional patients having tumor responses and long-term benefits.

“With the increased understanding of how the immune system interacts with cancers, which is based on remarkable progress in understanding how the immune system works generated over the past several decades, these ‘miracles’ become specific mechanisms leading to response to cancer, which can then be replicated in other patients.”
 

Patient defies odds after 45 minutes without heartbeat

Florida ob.gyn. Michael Fleischer, MD, had just performed a routine repeat cesarean birth, delivering a healthy baby girl. His patient, Ruby, had a history of high blood pressure but medication taken during the pregnancy had kept her levels stabilized.

In the waiting room, Dr. Fleischer informed Ruby’s large family of the good news. He was planning to head home early that day when he heard his name being called over the hospital’s loudspeaker. Ruby had stopped breathing.

“The anesthesiologist was with her and had immediately intubated her,” Dr. Fleischer said. “We checked to make sure there was no problems or bleeding from the C-section, but everything was completely fine. However, we couldn’t keep her blood pressure stable.”

Dr. Fleischer suspected the respiratory arrest was caused by either an amniotic fluid embolism or a pulmonary embolism. Intubation continued and physicians gave Ruby medication to stabilize her blood pressure. Then suddenly, Ruby’s heart stopped.

Dr. Fleischer and other doctors began compressions, which they continued for 30 minutes. They shocked Ruby with defibrillator paddles multiple times, but there was no change.

“I was already thinking, this is hopeless, there’s nothing we can do,” he said. “The writing is on the wall. She’s going to die.”

Dr. Fleischer spoke to Ruby’s family and explained the tragic turn of events. Relatives were distraught and tearfully visited Ruby to say their goodbyes. They prayed and cried. Eventually, physicians ceased compressions. Ruby had gone 45 minutes without a pulse. The EKG was still showing some irregularity, FDr. leischer said, but no rhythm. Physicians kept Ruby intubated as they waited for the background electrical activity to fade. As they watched the screen in anguish, there was suddenly a blip on the heart rate monitor. Then another and another. Within seconds, Ruby’s heart went back into sinus rhythm.

“We were in disbelief,” Dr. Fleischer said. “We did some tests and put her in the ICU, and she was fine. Usually, after doing compressions on anyone, you’d have bruising or broken ribs. She had nothing. She just woke up and said: ‘What am I doing here? Let me go see my baby.’ ”

Ruby fully recovered, and 3 days later, she went home with her newborn.

While the recovery was unbelievable, Dr. Fleischer stopped short of calling it a medical miracle. There were scientific contributors to her survival: she was immediately intubated when she stopped breathing and compressions were started as soon as her heart stopped.

However, Dr. Fleischer said the fact that lifesaving measures had ended, and Ruby revived on her own was indeed, miraculous.

“It wasn’t like we were doing compressions and brought her back,” he said. “I can scientifically explain things in my mind, except for that. That when we finally stopped and took our hands off her, that’s when something changed. That’s when she came back.”
 

How do ‘medical miracles’ impact physicians?

When Dr. Rotbart was writing his book, which includes physician essays from across the world, he was struck by how many of the events happened decades earlier.

“This is another testament to the powerful impact these experiences have on those witnessing them,” he said. “In many cases, physicians describing events occurring years ago noted that those early memories served to give them hope as they encountered new, seemingly hopeless cases in subsequent years. Some contributors wrote that the ‘miracle experience’ actually directed them in their choice of specialty and has influenced much of their professional decision-making throughout their careers. Others draw on those miraculous moments at times when they themselves feel hopeless in the face of adversity and tragedy.”

Dr. Fleischer said that, although Ruby’s story has stayed with him, his mindset or practice style didn’t necessarily change after the experience.

“I’m not sure if it’s affected me because I haven’t been in that situation again,” he said. “I’m in the middle. I would never rule out anything, but I’m not going to base how I practice on the hope for a medical miracle.”

In a recent opinion piece for the New York Times, pulmonary and critical care physician, Daniela Lamas, MD, wrote about the sometimes negative effects of miracle cases on physicians. Such experiences for instance, can lead to a greater drive to beat the odds in future cases, which can sometimes lead to false hope, protracted critical care admissions, and futile procedures. 

“After all, in most cases in the ICU, our initial prognoses are correct,” she wrote. “So there’s a risk to standing at the bedside, thinking about that one patient who made it home despite our predictions. We can give that experience too much weight in influencing our decisions and recommendations.”

Dr. Beam said unexpected outcomes – particularly in the age of COVID-19 – can certainly make physicians think differently about life-sustaining measures and when to discuss end-of-life care with family members. In his own practice, Dr. Beam has encountered unexpected COVID recoveries. Now, he generally gives extremely ill COVID patients a little more time to see if their bodies recover.

“It remains true that people who are really sick with COVID, who are on ventilated or who are requiring a lot of up respiratory support, they don’t do well on average,” he said. “But it is [also] true that there are a handful of people who get to that point and do come back to 80% or 90% of where they were. It makes you think twice.”
 

What to do when parents hope for a miracle

In his palliative care practice, Nashville, Tenn., surgeon Myrick Shinall Jr., MD, PhD, regularly encounters families and patients who wish for a medical miracle. 

“It happens pretty often from a palliative care perspective,” he said. “What I have experienced the most is a patient with a severe brain injury who we don’t believe is recoverable. The medical team is discussing with the family that it is probably time to discontinue the ventilator. In those situations, families will often talk about wanting us to continue on [our life-sustaining efforts] in the hopes that a miracle will happen.”

Dr. Shinall and Trevor Bibler, PhD, recently authored two articles about best practices for responding to patients who hope for a miracle. The first one, published in the American Journal of Bioethics, is directed toward bioethicists; the second article, in the Journal of Pain and Symptom Management, targets clinicians.

A primary takeaway from the papers is that health professionals should recognize that hope for a miracle may mean different things to different people, said Dr. Bibler, an ethicist and assistant professor at Baylor College of Medicine, Houston. Some patients may have an innocuous hope for a miracle without a religious connotation, whereas others may have a firm conviction in their idea of God, their spirituality, and a concrete vision of the miracle.

“To hear that a family or patient is hoping for a miracle, one shouldn’t assume they already know what the patient or the family might mean by that,” Dr. Bibler said. “If a patient were to say, ‘I hope for a miracle,’ you might ask: ‘What do you mean by a miracle?’ Health professionals should feel empowered to ask that question.”

Health care professionals should explore a patient’s hope for a miracle, be nonjudgmental, ask clarifying questions, restate what the patient has said, and delve into the patient’s world view on death and dying, according to Dr. Bibler’s analyses. In some cases, it may be helpful to include a chaplain or the presence of a theology outsider in discussions. 

When his patients and their families raise the subject of miracles, Dr. Shinall said he inquires what a miracle would look like in their opinion and tries to gauge how much of the assertion is a general hope compared with a firm belief. 

“I try to work with them to make sure they understand doctors’ decisions and recommendations are based on what we know and can predict from our medical experience,” he said. “And that there’s nothing we’re going to do to prevent a miracle from happening, but that that can’t be our medical plan – to wait for a miracle.”

Despite the many patients and families Dr. Shinall has encountered who hope for a miracle, he has never experienced a case that he would describe as a medical miracle, he said. 

Dr. Rotbart believes all physicians struggle with finding balance in how far to push in hope of a miracle and when to let go.

“Miracles, whether they happen to us, or we hear of them from colleagues or we read about them, should humble us as physicians,” he said. “I have come to believe that what we don’t know or don’t understand about medicine, medical miracles, or life in general, isn‘t necessarily cause for fear, and can even be reason for hope.

“Medicine has come a long way since Hippocrates’ theory of The Four Humors and The Four Temperaments, yet we still have much to learn about the workings of the human body. As physicians, we should take comfort in how much we don’t know because that allows us to share hope with our patients and, occasionally, makes medical miracles possible.”

A version of this article first appeared on Medscape.com.