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Lawyer sanctioned for filing frivolous liability lawsuit

A column analyzing the impact of recent court decisions on physicians

By Amy Lynn Sorrel covered legal, antitrust, fraud and liability issues from 2005 to 2010, and has also written the "In the Courts" column. Posted April 5, 2010.

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Physicians are expected to adhere to a professional standard of care. So it should come as no surprise that doctors expect the same of lawyers.

A recent Virginia Supreme Court ruling bolstered that notion when it affirmed sanctions imposed by the state bar against an attorney who filed a medical liability case against the wrong physician. The high court agreed with the Virginia State Bar's findings that the lawyer's actions amounted to frivolous conduct.

In August 2004, Michael P. Weatherbee filed a liability action on behalf of Dianna Broyles, alleging that ob-gyn Ward P. Vaughan, MD, and others had been negligent in their treatment of her during an obstetrical procedure at Warren Memorial Hospital in Front Royal, Va. An operative report from Broyles' surgery indicated the lead surgeon in the case was assisted by "Bob Vaughan," whom Weatherbee believed to be another physician, though the report did not specify his credentials, according to court records.

In attempting to discover the assistant's identity, Weatherbee turned to the Virginia Board of Medicine's Web site, which listed 15 licensed physicians named Vaughan, three of whom specialized in obstetrics. Two of them were women who practiced out of state, leaving one male ob-gyn who practiced in Winchester, Va.: Ward P. Vaughan, MD.

Weatherbee then sued Dr. Vaughan and the other defendants involved in Broyles' care.

As it turned out, Dr. Vaughan was not involved in the surgery at issue, legal records show. Nor did he have privileges at the hospital when the procedure was performed there, contrary to information Weatherbee collected from Broyles' former attorney. A state bar investigation found that Weatherbee failed to independently verify Dr. Vaughan's involvement.

Doctor takes action

Dr. Vaughan, with the help of his lawyer, took steps to get himself dismissed from the case and was successfully dropped from the lawsuit in September 2004. He also filed a complaint against Weatherbee with the Virginia State Bar.

That prompted an investigation, which revealed Weatherbee's missteps. The bar ultimately filed disciplinary charges against the attorney for violations of professional conduct, including filing a frivolous lawsuit and failing to act with competence and diligence.

Weatherbee challenged the charges before a three-judge panel of the Arlington County Circuit Court, which dismissed the competence and diligence allegations in April 2009. But judges agreed that Weatherbee had filed a non-meritorious claim against Dr. Vaughan and upheld a state bar order that he be reprimanded publicly.

Weatherbee appealed the ruling to the Virginia Supreme Court, which unanimously upheld the lower court's findings.

"The record demonstrates by clear and convincing evidence that Weatherbee's action against Dr. Vaughan was frivolous because it had no basis in law or fact," Chief Justice Leroy R. Hassell Sr. wrote.

Legal experts agree that what constitutes a frivolous lawsuit is highly dependent on the facts of a case.

Virginia justices noted that, according to court rules, an action is not meritless merely because the facts have not been fully substantiated before discovery or even if the lawyer believes that his client will not prevail.

An action is frivolous, however, if it is taken for malicious reasons, "or if the lawyer is unable either to make a good-faith argument on the merits of the action taken or to support the action taken," the court noted.

In this instance, the high court took issue with the fact that Weatherbee did not take what justices called "simple" steps to adequately research Dr. Vaughan's involvement, such as verifying his hospital privileges or contacting Dr. Vaughan's office regarding Broyles' medical records.

The court also noted that the lawsuit had a "deleterious impact" on Dr. Vaughan's practice. Local radio and television stations immediately reported the lawsuit against the physician, after which "he lost patients and was subject to ridicule and scorn," the opinion states.

Dr. Vaughan declined to comment for this article.

Weatherbee maintains that, despite the mistake, his actions did not rise to the level of frivolity. He said he researched the mysterious assistant in the operating report in good faith before filing the action, and as soon as he was notified that Dr. Vaughan was not the correct Vaughan, the physician was dropped.

"There could not have been a faster turnaround time, and he was not subjected to a deposition," he said.

The underlying medical liability action ultimately was settled.

Fighting back

Doctors who find themselves on the wrong end of frivolous actions have recourse. But their first line of defense should be getting themselves removed from the lawsuit as quickly as possible, said Brent Mulgrew, executive director and former general counsel at the Ohio State Medical Assn.

"The question becomes whether there is a reasonable response" from the other side, Mulgrew said. If the doctor is dropped promptly, that may not necessarily count against the lawyer as malpractice. "But if they continue in the face of significant evidence that they either had the wrong person or the doctor had nothing to do with the incident, then it may be appropriate to inform the lawyer that you intend to take action," he said.

That can come in several forms, depending on state laws and court rules, experts said.

Filing a complaint with the state bar is one avenue.

To physicians who may be skeptical of the weight a public reprimand may carry, "it's one step short of a license suspension and one of the most serious sanctions a hearing panel can impose," said Edward L. Davis, bar counsel at the Virginia State Bar. The action is publicized to the media and circuit courts where the disciplined attorney resides and works.

Physicians also can petition the court overseeing the liability case to sanction an attorney, typically for costs related to defending a meritless claim.

"That's a separate matter, and that's the court maintaining control of its courtroom," Davis said. "The state bar, on the other hand, has obligations to regulate the profession and protect the public, and may seek action above and beyond what is already done by a court."

While bar complaints typically do not result in compensation to the aggrieved physician, "this is rarely about the money," Mulgrew said. When physicians are wrongfully sued, "what you're claiming is the physician failed to meet his or her professional responsibility, and physicians take that very personally. It's about the emotional cost."

A third option is a countersuit, through which a doctor sues the offending lawyer in a separate action. In that scenario, a doctor generally must wait until the underlying liability action is resolved, Mulgrew said, whereas doctors can seek court sanctions during litigation.

As for proving frivolousness, experts said there is no single formula, since courts and state bar authorities tend to evaluate such issues on a case-by-case basis.

But Mulgrew said the OSMA's successes thus far in fighting frivolous claims have caught the attention of the legal community there.

"If the facts warrant it, they have the right to go forward," he said. "But when a lawyer is making that decision, the knowledge that the filing might be reviewed as a basis for a countersuit should only cause them to be more thorough."

Amy Lynn Sorrel covered legal, antitrust, fraud and liability issues from 2005 to 2010, and has also written the "In the Courts" column.

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