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Rick Shapiro
Rick Shapiro
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Does the Doctor You Trust Not Trust You? (Especially If You Have A Medical Malpractice Claim)

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Would you be surprised to learn that the physician that you trust has very strong opinions relating to whether or not you should be able to sue a careless doctor for malpractice? Would you be extremely surprised to learn that the doctor you trust, regularly testifies on behalf of doctors that are sued for malpractice and does not believe that physicians should ever testify in support of a patient who has been the victim of clear malpractice? Read on…

Believe it or not there is warfare nationwide relating to medical societies that are trying to suspend the medical licenses of physicians who have testified against other physicians that were careless–irrespective of whether an independent jury found the suspected careless doctor negligent. The point is that many physicians don’t believe their brothers and sisters should ever testify against any doctor–even if death is the result of the negligent conduct.

In one 1998 North Carolina medical malpractice case, a neurosurgeon gave expert testimony in support of the victim asserting various negligent violations by the defendant doctor. Following the verdict, one of the doctors who was sued in the malpractice case complained to the North Carolina state medical board asserting that the neurosurgeon had engaged in unprofessional conduct, had misrepresented the medical standard of care, and had wrongly claimed that one of the defendant doctors may have falsified a medical record. Amazingly, the N.C. Medical Board revoked the neurosurgeon’s license to practice medicine. Then, a N.C. trial court agreed in part, and disagreed in part, allowing part of the license suspension to stand. However, just recently during 2006, a North Carolina Appeals Court reinstated the North Carolina neurosurgeon’s medical license. The court stated that the neurosurgeon had stated under oath that he had difficulty believing the defendant doctor’s notations. The appeal Court noted that the neurosurgeon had never actually stated during his testimony that the defendant doctor had falsified a medical record and he did not ever use the term liar to describe the allegedly careless doctor.

Justice prevailed, and the North Carolina neurosurgeon was ordered to have his license reinstated by the North Carolina medical board, which did not further appeal the decision.

Seth Cohen, the lawyer for the neurosurgeon stated (referring to the negligent doctor who had complained in the first instance) “he couldn’t file a defamation suit against him or malpractice suit, so he just went to the medical board to get his license revoked, which is the worst sanction because it’s not just money, it’s his livelihood.” Cohen went on to add “and the only thing he said [referring to the doctor who supported the victim] was that he didn’t agree with [the defendant doctor’s] notes…. [It] was not just a statement but an opinion based on the evidence he had before him. I could see that the court was taking it seriously. It appeared to me that the panel was upset that the medical board had done this to a doctor when it was clearly just his opinion.” “But people who are making the doctors and the insurance companies mad are the doctors who are brave enough to testify against other doctors, and those are the plaintiff’s experts,” Cohen added.

A similar case arose out of Florida recently. The Florida case involved an internist who testified for the victim/plaintiff in a medical malpractice case. The defendant doctors later wrote the Florida Medical Association, complaining that the internist testimony was unprofessional, false and given solely to advance a frivolous lawsuit. The Florida internist then sued the doctors wrote the medical board and the association itself for defamation, and witness intimidation, claiming this would harm his reputation and his work as an expert witness. He further claimed that the medical association’s expert witness review committee was discouraging legitimate testimony on behalf of victims of malpractice.

The Florida trial court hearing that internist’s suit ruled that the medical Association and the doctors were immune from any liability under various state acts. Fortunately, again, an appeals court reversed the trial court’s decision finding no basis for an immunity shield in favor of the “complaining doctors or association”. While not only denying the “immunity defense” the Court went on to say “the common law has long recognized that an absolute civil privilege extends to a witness’s testimony in connection with or in the course of an existing judicial proceeding,” essentially supporting the doctor’s right to testify in court, and further making clear that a defamation suit should go forward.

John Vail, the attorney for the Florida internist noted that the Appeal Court recognized that “talking about practicing medicine is not practicing medicine.” Accordingly, it was inappropriate to try to take away the physician’s license based on testimony in a civil lawsuit, where the doctor gave his honest opinion about another physician’s medical care and conduct.

The examples above bring the discussion full circle: do you know if your doctor happens to hate victims of malpractice and regularly testifies on behalf of the doctors and never on behalf of the injured victim? The doctors who hate the very existence of THE MERE RIGHT to bring a malpractice action don’t wear a badge or sticker announcing their strong opinions. You would never know who they are, but it seems many of them have been sued for malpractice. Rather than understand that this system HELPS keep us all safer, they want to destroy the civil justice system for legitimate victims. Its pretty spooky.

In our local community there is one orthopedic surgeon in a very reputable practice group who regularly conducts medical examinations for most of the insurance companies and almost always has findings that the patient is faking or is not hurt as claimed. (My daughter has been treated by one of the other orthopedic surgeons in this same group.) The doctor’s regular patients have no idea that he spends so much of his time testifying against patients, many of which are obviously injured and honest people. He has twin personalities: he helps some of his patients, but apparently will rip into any person that he does an insurance exam on–stating many are big fakers–just about all the time, so he writes in report after report.

I had another shocking thing happen in one of my actual cases. My client was the victim of malpractice relating to a gastric bypass, a weight reduction surgery. Many times, when we are helping a client, the client is actively involved in medical care to help them with the aftermath and major complications of a doctor’s careless conduct. Accordingly, sometimes we actually give our clients recommendations for medical experts that can now help them, or more commonly, the client calls us and ask us if we ever heard of a certain medical specialist that they want to go to to help them. This particular patient heard about a North Carolina surgeon who was an expert in the field of gastric bypass so she went to him while she was actively trying to get better from the devastating complications of her gastric bypass. The doctor treated her without incident for the first visit but during her second visit she mentioned to the doctor that she had an active malpractice claim against a United States Government surgeon who had botched her original surgery. Amazingly, this reputable North Carolina General surgeon immediately told my client that he would not treat her! She called me and asked if there was anything I could do-but it was futile and she then found another surgeon. The only reason for his outrageous refusal to treat her further was that she was a victim suing in a malpractice lawsuit. Since that time, I have read legal reports in N.C. and Va. that this particular doctor has testified on behalf of at least two different defendant doctors that have been accused of botching similar gastric bypass cases. I do not believe the surgeon has ever testified on behalf of a patient victimized by a botched gastric bypass! Also, I was amazed to learn that he was one of the head honchos of the North Carolina State Medical Board at the time that I looked into this situation. This stuff is real.

Do you really trust your doctor and does your doctor really trust you? Sometimes it’s more mysterious than you may think.