Ohio physicians fight back: Panel documents frivolous lawsuits
■ The aim is to set a legal precedent that will encourage physicians and discourage lawyers.
By Tanya Albert amednews correspondent — Posted Feb. 16, 2004
Wanted: Blatant examples of frivolous medical malpractice lawsuits filed against Ohio physicians.
Reward: A chance to recover the money spent defending the lawsuit and put lawyers on notice that physicians are going to stand up to meritless suits.
"We are looking to find the most egregious cases to bring forth as test cases in the court and shed light on the issue," said Almeta E. Cooper, the Ohio State Medical Assn.'s general counsel.
OSMA hopes that its newly formed Frivolous Lawsuit Committee will give Ohio lawyers a disincentive to file baseless cases. The committee is believed to be the first of its kind formed by a state medical association.
OSMA is responding to an increasing number of physician members concerned that they are being named in "shotgun" lawsuits that include every physician listed on a chart. They also know of a few instances in which physicians were included even when their names weren't in the chart.
Frivolous suits are a common complaint among doctors nationwide. Physicians and insurers say these cases are contributing to rising medical liability insurance costs that are forcing doctors to retire early, discontinue high-risk services or move to states that have enacted tort reform.
They point out that it still costs insurance companies thousands of dollars to defend lawsuits that are eventually dismissed.
"More than the money, physicians have to shut down their offices to defend the suits, and it's an emotional strain," said Findlay, Ohio, internist William Kose, MD, who has a law degree and is serving on the Frivolous Lawsuit Committee. "Physicians take lawsuits personally. Someone is telling them they did not do their job properly."
But few physicians have challenged lawyers, and the success rate among physicians who have is small. OSMA hopes to change that.
Since OSMA late last year put out the call to physicians to send examples of lawsuits in which they believe they should not be defendants, the committee has received more than 40 cases to review. They expect more.
The first test case
OSMA has already joined Columbus, Ohio, intensive care specialist Victoria Ruff, MD, in a court action.
The medical society helped Dr. Ruff and her attorneys file a "motion for sanctions for frivolous conduct" against the plaintiff and attorney who named her in a lawsuit in a case in which she was not involved until she was called when the patient was coding. The motion was filed in December 2003 and could result in reimbursement of her court costs. OSMA will continue to offer assistance as the request winds through the court.
The association got involved because the case seemed to have all of the right ingredients, Cooper said.
A helicopter transferred the patient from Cleveland to Columbus. Blood was not flowing properly to his lower extremities; he had cardiovascular disease and diabetes.
He went to the intensive care unit in the middle of the night. Dr. Ruff said she was involved with the patient for 15 minutes before he died.
Months later, she became one of 23 people in Columbus and Cleveland named in a lawsuit. Immediately, she asked her lawyer to get her removed. It took 17 months, six motions and a deposition during which she told the plaintiffs attorneys she had nothing to add to the case before her name was dropped.
During that time, though, her medical liability insurance came up for renewal. And she was named in another lawsuit and again removed before the case went to trial.
The insurer told her and her partners that it would not renew their contract. They had to scramble to find a new insurer. When they signed with the new company, they had to switch from a less expensive occurrence policy to a more expensive claims-made policy. Dr. Ruff's premiums doubled after the first year and continue to climb. Also, the new policy would require her to pay tail coverage if she decides to change companies again.
Consequently, Dr. Ruff can show financial damage for having been named in two lawsuits that were ultimately dropped.
Laying the groundwork for others
In addition to Dr. Ruff's case, OSMA expects to get involved in a second case in coming months, Cooper said.
OSMA says it isn't suggesting that there aren't legitimate cases in which it might not be clear-cut whether a certain physician should be named in a lawsuit.
But "when someone brings a shotgun lawsuit, the lawyer doesn't make a good-faith effort to find out what happened before it is filed," Cooper said. "In the past, there hasn't been any disincentive for lawyers to do this."
OSMA knows that proving these cases is often difficult. Courts want plaintiffs to be able to bring claims in good faith without the fear of being sanctioned. That is why they are looking for the most egregious examples.
Few cases have been filed so far because doctors are reluctant to do so. Their insurance won't cover the costs, and they are emotionally drained from fighting the initial lawsuit.
Dr. Ruff and others, though, believe the climate is ripe for change.
"If there is a positive outcome, more physicians will be willing to do this," Dr. Ruff said. "And this is a way for organized medicine to say, 'This is what we are doing.' "