Lawyer who sued wrong physician won't pay up

The doctor won his attorney's fees back, but the plaintiff's lawyer is appealing.

By — Posted Oct. 22, 2007

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A Mississippi plaintiff lawyer sued the wrong physician in a medical liability case, but the doctor says he's the one paying the price.

Court documents show that Lawrence E. Stewart, MD, a McComb, Miss., otolaryngologist, was confused with his deceased father, Edsel F. Stewart, MD. His father was an obstetrician/gynecologist who practiced in the same town. He died in 1999.

The younger Dr. Stewart said he didn't think twice when he was first served with a lawsuit in 2002. It alleged that he prescribed the nasal spray Stadol to Sarah N. Ratliff and neglected to inform her of the drug's addictive risks.

"I didn't really worry about it because I had a pretty ironclad defense: I didn't even treat this person and never prescribed this drug before," Dr. Stewart said. "I was pretty sure I was going to win this."

Dr. Stewart said he had been wrongfully sued before in a flurry of class-action pharmaceutical lawsuits filed just before Mississippi enacted tort reform to curb the mass litigation. In the past, it usually took no more than a phone call or written notice to resolve the mistake. But this time, "neither phone calls, nor letters, nor notarized affidavits to the court helped," Dr. Stewart said.

Instead, he spent the next year defending himself because plaintiff attorney Charles E. Gibson III of Ridgeland, Miss., failed to drop him from the case voluntarily. Because Dr. Stewart's medical liability insurance policy had a $10,000 deductible, he was forced to pay $6,100 of his own money to cover the cost of dismissing himself from the suit. He won a preliminary victory in 2004, when the U.S. District Court for the Southern District of Mississippi granted his request and ordered Gibson to pay his legal fees.

But Dr. Stewart's battle isn't over.

Gibson, who did not return calls for comment, is appealing the award to the 5th U.S. Circuit Court of Appeals. Dr. Stewart said he would continue to fight.

"When a member of the court is allowed to abuse the system without any penalty and any cost to himself, that is not fair. And yet my doing the right thing is costing me," he said.

Mississippi State Medical Assn. General Counsel Linda McMullen said the case is among the worst they have seen. The MSMA and the American Medical Association/State Medical Societies Litigation Center contributed financially to Dr. Stewart's case.

"This is a real egregious example of a lawyer not doing his due diligence on the front end, and the costs that can mount up on the back end [for doctors]," McMullen said. "And yet it would have been so easy to fix."

The younger Dr. Stewart's troubles began when Gibson, through a June 2003 court order, requested that he turn over any medical records relating to his alleged treatment of Ratliff.

Dr. Stewart's attorney wrote letters to Gibson in September 2003 and March 2004 stating that, although Dr. Stewart had a patient with a similar name, he had no medical records of any Stadol prescription. Also, the doctor's patient was from a different county, and she told Dr. Stewart she wasn't suing him. In the letter, Dr. Stewart asked for more information about Gibson's client before turning over his patient's private medical files.

When Dr. Stewart didn't hear back from Gibson, he filed an affidavit with the court in May 2004 stating his belief that his patient was not the plaintiff in the case, or that perhaps the plaintiff intended to sue his deceased father. The same month, he filed a motion asking the trial court to dismiss him from the case and award him attorney's fees.

Suit settled, doctor dropped

The lawsuit, which also named Stadol's manufacturers, eventually was settled in 2005. At that time, the U.S. District Court for the Southern District of Mississippi granted Dr. Stewart's request to be dropped.

"We were left with no recourse except to go through the court," said Lisa W. McKay, Dr. Stewart's lawyer. "Mistakes like this can happen, and it's not uncommon. What was uncommon was the fact that it was not readily corrected."

But in his appellate brief, Gibson argues that the mistake was not made in bad faith and that he should not be punished. He claims that after he saw Dr. Stewart's affidavit, he contacted his client, who corroborated that the Dr. Stewart who treated her was deceased. But he claims he didn't hear back from her in time to respond to Dr. Stewart's request for dismissal under court deadlines. Ultimately, he substituted the elder Dr. Stewart's name on the lawsuit.

Nevertheless, the lower court concluded that Gibson had the opportunity to correct the error sooner and had failed to do so, court records show.

Doctors hope the court's ruling will be upheld and send a message that will make plaintiff lawyers think twice before pursuing frivolous claims. If it stands, the award could be significant, because punishing lawyers for pursuing frivolous claims is not an easy thing to do, the MSMA's McMullen said.

Courts are generally reluctant to find lawsuits frivolous "because there's almost always some grounds for a suit to be filed," and courts don't want to close that door, she said.

Dr. Stewart's case also demonstrates the need for tort reform to deter frivolous lawsuits from happening in the first place, McMullen added. Since 2002, doctors in Mississippi have succeeded in passing measures that require lawyers to file a certificate of merit with each case and to file lawsuits in the county where the alleged negligence occurred.

Dr. Stewart insists his fight is not about the money, and he could end up paying more than the value of the award just to defend the appeal.

"We are basically fighting because [Gibson] can and I won't give up."

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Case at a glance

Should a plaintiff lawyer be punished for suing the wrong physician?

A federal trial court said yes and awarded the doctor his attorney's fees. The plaintiff lawyer is appealing.

Impact: Physicians say the case demonstrates the high cost of frivolous lawsuits.

Sarah N. Ratliff and Charles E. Gibson III, v. Lawrence E. Stewart, MD, 5TH U.S. Circuit Court of Appeals

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