I could say, this is the tort reform that’s needed: The end of corruption and abuse in the system.
Efforts to Prevent Justice for Claimants
Thomas A. Moore and Matthew Gaier
It is no secret that the prosecution of malpractice actions has become more challenging over the years. Jurors have been colored by decades of tort-reform propaganda. Mandatory pretrial disclosure of experts’ credentials results in exposure of their identities and efforts to deter them from testifying for plaintiffs. The same pressure may now be exerted on a plaintiff’s treating doctors by virtue of court-sanctioned ex parte interviews with defense counsel.
In recent years, however, more sinister tactics have been unleashed against malpractice victims, their advocates and their experts. Despite empirical data establishing that there are as many as 98,000 avoidable deaths per year throughout the United States as a result of medical negligence in hospitals alone,1 the medical establishment has been more focused on defeating lawsuits than it has on improving the quality of care.
At least one medical fraternal organization, the American Academy of Orthopedic Surgeons, has attempted to regulate expert testimony with “standards” for giving testimony (rather than focusing exclusively on the standards for practicing medicine), the establishment of a grievance procedure for alleged violations by expert witnesses and recommended penalties, including expulsion from the organization. It also appears that businesses have been born with the purpose of deterring lawsuits.
Malpractice defendants or their representatives have sometimes taken (or threatened to take) actions against malpractice claimants, their experts and their lawyers. This may include the filing of complaints with disciplinary committees and professional societies, or the filing of lawsuits.
Fortunately, the law affords a measure of protection from at least some of these tactics. In this column, we will examine how the courts of this state have responded to these situations in cases where they have become involved.
Several years ago, in Biegeleisen v. Jacobson, 198 A.D.2d 57 (1st Dept. 1993), a doctor who had been a defendant in a medical malpractice action subsequently filed a defamation action against another doctor who testified as an expert for the malpractice plaintiff. The Supreme Court dismissed the suit on summary judgment. The Appellate Division affirmed, noting that statements an expert witness made during the course of testimony “cannot be the subject of a defamation action unless they constituted falsehoods ‘so obviously irrelevant as to warrant an inference of malice,'” and that the testimony at issue did not satisfy that standard. The court characterized the expert’s statements as “blunt and degrading,” but found them to be primarily expressions of opinion rather than fact, and that they were directly relevant to the accepted standards of care. The court further noted that it was to no avail to argue that the statements were “factually false and perjurious.”
A lawsuit of a similar nature was recently addressed in Cattani v. Marfuggi, 74 A.D.3d 553 (1st Dept. 2010), affirming, 26 Misc.3d 1053 (Sup. Ct., New York Co. 2009). The plaintiff in that case was a cosmetic surgeon who brought suit against another doctor who testified against him as an expert in three separate malpractice actions. The surgeon alleged that the expert gave false testimony in all three actions.
The lower court opinion reveals that there were malpractice verdicts in all three cases, but that one was reversed on appeal and appeals were pending in each of the other two. The court further noted that the surgeon did not claim that the trial or appellate court criticized the expert or found his testimony unreliable. Our research reveals that the cosmetic surgeon was a defendant in DiCicco v. Cattani, 59 A.D.3d 660 (2d Dept. 2009), and that the Appellate Division reversed the judgment against him on the sole ground that the jury should have been charged with respect to comparative negligence by the plaintiff. The Appellate Division expressly stated that the defendant’s remaining contentions were without merit.
In any event, Justice Marcy S. Friedman dismissed the cosmetic surgeon’s action against the expert on the ground that he was entitled to absolute immunity for the subject statements. The court also issued sanctions against both the surgeon and his counsel for frivolous conduct pursuant to 22 NYCRR 130-1.1.
With regard to immunity, the court quoted appellate authority holding that statements made by parties, attorneys and witnesses in judicial proceedings are absolutely privileged, “notwithstanding the motive with which they are made, so long as they are material and pertinent to the issue to be resolved in the proceeding.” The court rejected the defendant’s argument that false testimony can never be material or relevant, citing case law providing that an offending statement pertinent to the proceeding is absolutely privileged regardless of any malice, bad faith, recklessness or lack of due care, and regardless of its truth or falsity. The test, the court noted, is whether a statement is at all pertinent to the litigation.
Under this standard, a statement made in the course of a judicial proceeding is only actionable if it is “so outrageously out of context as to permit one to conclude, from the mere fact that the statement was uttered, that it was motivated by no other desire than to defame.” Applying these standards, Justice Friedman found that the expert’s statements in the malpractice actions concerning claimed deviations from the standards of care were pertinent to the respective action, and thus entitled to immunity.
The surgeon nevertheless argued that his claims fell within an exception under Newin Corp. v. Hartford Acc. & Indem. Co., 37 N.Y.2d 211 (1975), permitting a cause of action for fraud where the perjury was merely a means to accomplish a larger fraudulent scheme. He asserted that the larger fraudulent scheme was that the expert “manufactured claims in the three underlying suits so that he could charge a series of expert witness fees.” Finding that the surgeon offered no factual support for the assertion and that no such scheme was pleaded in the complaint, the court rejected the argument as “a transparent and patently insufficient attempt to bring this action within the Newin exception.”
The court’s opinion also rejected the surgeon’s argument that the immunity doctrine does not apply to expert witnesses, citing two appellate decisions, including Biegeleisen. It also noted that the policy considerations underlying the immunity cases apply soundly to the claims against the expert, observing that “immunity from subsequent suit is necessary to encourage the cooperation of expert witnesses so that they will freely speak without fear of the financial hazard of subsequent litigation.”
With regard to sanctions, the opinion noted that the attorney was expressly informed of the court’s concern that continued maintenance of the action could result in sanctions, was provided with citations of the immunity cases, and was afforded an adjournment to consult with other counsel. Despite this, he continued to pursue the claims, attempting to distinguish the cases on unsupportable grounds and to advance “meritless” and erroneous suggestions concerning immunity. The sanctions were awarded not only against the attorney but the surgeon as well, based on the attorney’s representation that the doctor was consulted on the matter and indicated he did not want to withdraw the action.
The Appellate Division affirmed Justice Friedman’s order in its entirety, finding that there was “woefully” insufficient particulars to support the scheme alleged by the surgeon. It found that the lack of details, the “well-established nature of the absolute immunity,” and the admission of the surgeon’s attorney that he was unaware of the Newin exception when he brought the action and declined to withdraw it, supported the finding of frivolous conduct.
Another recent case that has come to our attention is Alcantara v. N.Y. Hispanic Family Medical, P.C., Supreme Court, New York County, Index No. 105030/08, a medical malpractice action in which the court ordered discovery with respect to various actions that were taken by the defendant physician.2Papers filed in court indicate that the plaintiff claims to have suffered a heart attack and a stroke the day after presenting to the defendant with symptoms indicating a cardiac problem, and that the doctor failed to make the diagnosis and instead prescribed anti-anxiety medication.
The court papers, specifically, a decision on the record by Justice Alice Schlesinger, indicate that the defendant doctor initiated a disciplinary proceeding against the plaintiff’s lawyer, accusing her of forging the plaintiff’s signature in the complaint and possibly other papers as well. The decision noted that the disciplinary action was dismissed after the attorney submitted a letter of explanation.
In addition, subsequent to the disciplinary proceeding, the plaintiff’s attorney received a letter from a lawyer in Indiana, stating that he represents “Medical Justice®,” and that the defendant doctor “is a Plan Member for Medical Justice Services, Inc.” The letter indicated that “Medical Justice® pays the expenses up to $100,000.00 to bring claims against proponents of nonmeritorious medical malpractice suits,” and that “[t]he system is designed to discourage the use of expert witnesses who deliver deceptive or false testimony; particularly when they are outside the scope of their training and/or field of specialty.” The letter also stated that the organization is not designed to thwart legitimate complaints, and is merely a “funding agent for remedies already available to physicians….”
On its Web site (www.medicaljustice.com), Medical Justice describes itself as “a membership-based organization that offers proven services and proprietary methods to protect physicians’ most valuable assets—their practice and reputation.” It takes the position that “[w]hile Medical Justice is sensitive to the fact that there are legitimate claims by patients who have been harmed by negligent care, the fact remains that the majority of medical malpractice cases are ultimately deemed without merit” (underscore in original). Under “Service Plans,” the Web site touts:
Preventing Medical Malpractice Suits
Medical Justice® pre-emptively deters frivolous medical malpractice lawsuits, provides early action if a plan member is sued for medical malpractice, and makes effective response strategies a viable, affordable, and expedient option when appropriate.
Among the “[s]ervices common to all plans,” the Web site lists, “[p]ursuit of counterclaims against expert witnesses in their professional societies and state licensing boards.” Another portion of the Web site indicates that “if a frivolous medical malpractice lawsuit is filed or a plaintiff attempts to use an unqualified expert witness, a member may bring a counterclaim against the patient in the underlying suit.”
In the malpractice action, Alcantara, the plaintiff’s attorney sought discovery from the defendant regarding both the disciplinary action he had initiated, and his contacts with Medical Justice. Justice Schlesinger granted the discovery to the extent of ordering a further deposition of the defendant at which he could be questioned about the disciplinary proceeding and about Medical Justice. The court also ordered discovery of written statements, paperwork and e-mail correspondence the defendant sent to Medical Justice pertaining to the malpractice action, as well as his application to the organization, with the names of any patients redacted.
In resolving a subsequent defense motion regarding this disclosure, the court explained that the materials and testimony could reflect upon the defendant’s treatment of the plaintiff and his views of what he believed was an unjust lawsuit, as well as have bearing on his credibility. The court also limited the materials ordered to be disclosed in the discovery order to communications the doctor had with Medical Justice to the extent that they refer to the subject malpractice action or that patient. Subsequent papers filed in court indicate that the court undertook an in camera review of the documents provided by the defendant to Medical Justice, and found them discoverable.
The cases discussed above represent something of a sea change in the tactics being employed against malpractice claimants. Doctors, as a profession, have long expressed resentment at being subject to lawsuits by patients claiming to have been injured as a result of substandard care. However, they are not, as a profession, above the law, and must be held accountable for injuries they may wrongfully inflict on others, just like anyone else.
Most malpractice actions are not frivolous. Contingency fees, under which a lawyer receives nothing if the case is lost, provide a powerful disincentive to the prosecution of cases that have no merit. Tactics intended to intimidate claimants, experts or lawyers are not necessary. If a malpractice action has no merit, it will be won by the defendant on that basis. If a lawsuit is frivolous, sanctions may be awarded, just like they were against the doctor who brought the lawsuit against the expert in Cattani.
Thomas A. Moore is senior partner and Matthew Gaier is a partner of Kramer, Dillof, Livingston & Moore.
1. “To Err is Human: Building a Safer Health System,” Institute of Medicine, pp. 1, 26 (1999).
2. Martha Gold, who represented the plaintiff in this action, supplied some of the materials referenced in this article.