Two weeks ago I wrote about a defense lawyer in a malpractice case being sanctioned for trying to intimidate the plaintiff’s expert witness. I’ve come across two recent Pennsylvania trial court opinions involving doctors and hospitals themselves being sanctioned for improper conduct.

First up is Borrero v. Lake Erie Women’s Center, et al., a shoulder dystocia birth injury case. (For some general background, see my Erb’s Palsy page.) Opinion is here. In discovery, the plaintiffs served Lake Erie Women’s Center and Hamot Medical Center standard interrogatories seeking “written policies in place in 2000 that pertain to or relate to … shoulder dystocia” and were told no such policies existed. At deposition, Hamot’s corporate designee confirmed there were no such policies, and that the only guide they used was Varney’s Midwifery. The case was tried twice, resulting in two mistrials, one for some problem mid-trial and the other for a deadlocked jury. I’m assuming it then sat for some time awaiting a new trial.

The same plaintiff’s lawyer, Patrick Loughren, then became involved in a separate shoulder dystocia case against Lake Erie Women’s Center and Hamot Medical Center while the case was already in suit. He learned that, in that case, the defendants had produced 56 pages of policies and procedures, including a specific protocol for shoulder dystocia.

“Oops” would be an understatement. “Pants on fire” would be more appropriate.

On behalf of the Borrero, Loughren moved for sanctions. The defendants tried some awfully creative hair-splitting, arguing that, well, you know, those policies were from one of the prior entities before a merger, and they weren’t formally adopted after the merger, and so they were just, schucks, recommendations. Nonsense, held the judge:

They were de facto protocols that were clearly available to anyone working for LEWC. Townsend, Boyd and LEWC should have disclosed their existence during the course of discovery. As to Hamot, although the documents were utilized for a different reason (credentialing), they were within Hamot’s possession and knowledge and should have been disclosed.

Sanctions were ordered. Eventually, Lake Erie Women’s Center was ordered to pay a little under $44,000 in attorneys’ fees and costs, while Hamot Medical Center was ordered to pay a little above $29,000 in attorneys’ fees and costs, and the Court ordered:

At time of trial, the Court shall fashion a jury instruction indicating that the jury may consider the fact that Peg Boyd and Lake Erie Women’s Center, P.C., or its agents, intentionally, or with a gross disregard for the existence of discoverable evidence (Le., the shoulder dystocia policy/protocol), failed to disclose that evidence to the plaintiffs during the discovery process.

The obvious question: what was so damaging in the protocol that the defendants didn’t want the jury to see it? Now the jury gets to see it, with an adverse inference instruction about it.

Next is Heister v. Christina Brown, M.D., Bayside Obstetrics, Gynecology, Infertility, Inc., et al., another OB/GYN malpractice case, though one where I’m not entirely clear on the type of negligence involved. Opinion here.

If I told you the facts, you wouldn’t believe me, so let me just quote the Court:

A jury trial began on February 29, 2012 and on the seventh day of trial this Court was confronted with Ms. Heister’s oral motion to declare a mistrial. Counsel argued that on March 7, 2012, upon conclusion of [defendant] Dr. Brown’s testimony and the dose of her case in chief, Dr. Brown exited the witness stand, walked around Plaintiffs counsel table and embraced [plaintiff] Ms. Heister in the presence of the jury. This Court heard testimony of Ms. Heister, Matthew Diaddigo, plaintiff counsels’ technical assistant, and individually polled several jurors ultimately concluding that the embrace, witnessed by several jurors, prejudiced Ms. Heister and the co-defendant, Dr. Peter Lund, who had yet to present his case in chief.

Maybe the defendant doctor thought it would have been overkill to testify with a basket of kittens and puppies in her lap. The hug was a crass stunt coldly calculated to manipulate the jury into sympathizing with the good, kind-hearted doctor. What’s the plaintiff supposed to do when offered a hug right in front of the jury? Shout, “if you really cared, you would admit that you were negligent and you hurt me”?

Then again, there’s someone in a black robe sitting in the courtroom to make sure everything is fair to everyone, and that cases are decided on their merits, not on cynical ploys. It seems the defendant argued against sanctions by claiming the hug was “unintentional,” and that walking in front of the jury first was utterly necessary before the inadvertent embrace because “it was the only unobstructed pathway in the courtroom.” Said the judge (a different judge from the first, though both cases were in Erie County),

This assertion is unpersuasive because the most direct pathways from the witness box to her seat was not obstructed by lawyers or audio/visual equipment. It was Dr. Brown’s conscious decision to choose the path towards Ms. Heister, embrace her in the presence of the jury and therefore prejudice this case to extent a mistrial was declared.

Moreover, the timing of Dr. Brown’s intentional act further supports the Court’s finding that her conduct was vexatious. At the time the embrace occurred, Ms. Heister had completed her case in chief and the Court only required two additional days to hear Dr. Peter Lund’s case in chief and ultimately closing arguments from all parties. But for the poor timing of Dr. Brown’s intentional decision to approach and embrace Ms. Heister in the presence of the jury this case would have been resolved by verdict.

Result: mistrial and award of $47,075.11 in trial expenses to the plaintiff’s counsel, Friday & Cox.

These sound like victories for patients against doctors trying to evade responsibility for their actions. In many ways, these decisions are victories, because the doctors didn’t get away with their misconduct. But let’s not lose sight of the big picture: in both of these cases, all the plaintiffs and their lawyers received was (1) compensation for the time and expenses wasted due to the defendants’ misconduct and (2) another shot at trial in Erie County, where defendants won two-thirds of all medical malpractice trials in the past five years.

That re-trial, of course, will only happen weeks, months, or potentially years in the future; if the defendants were working off of a ‘justice delayed is justice denied,’ then their stunts were a wild success.