The Pennsylvania Medical Society’s Hypocrisy On Malpractice Cases
The Philadelphia Inquirer recently picked up on a story that has been around the Philadelphia legal community for a while, i.e., the $1 million in sanctions entered against attorney Nancy Raynor in the Sutch v. Roxborough Memorial Hospital case.
Raynor was defending Roxborough Hospital in a medical malpractice case in which the hospital failed to inform a patient or her doctor that her chest x-ray had revealed a potentially cancerous nodule on her lung. Twenty months later, the patient was diagnosed with Stage IV lung cancer. She died six months later, and her relatives sued.
The decedent was a smoker. In advance of the trial, the court held that the defense could not admit evidence of her smoking into the trial. That’s not unusual: Pennsylvania law precludes doctors from trying to avoid responsibility for their malpractice by blaming the plaintiff for their own cancer. Patients go to doctors for treatment; it’s irrelevant when or how a plaintiff was injured. What matters is if the doctor did, or did not do, what they were supposed to do. Indeed, the Sutch case has been around so long that it already went through its appeal to the Pennsylvania Superior Court, which affirmed the trial court’s order excluding from the case any reference to smoking.
At trial, however, Raynor called to the stand one of her expert witnesses, Dr. John Kelly, and asked him, “Did [the patient] have any cardiac risk factors?” In response, the expert said: “The patient was a smoker. The patient was hypertensive. So, yes, I mean, those are big risk factors.” That was, obviously, in violation of the court’s order. The plaintiff’s lawyers at Klehr Harrison and Messa & Associates moved for a mistrial and for sanctions. The court, after hearing Raynor and Dr. Kelly’s side of the story, granted the sanctions, the bulk of which are attorney’s fees for the time the plaintiff’s lawyers had to spend on what ultimately ended up being a superfluous trial.
I won’t comment more on the sanctions, except to make two points. First, it wasn’t the first time Raynor was sanctioned in the case — she had previously been sanctioned by another judge for improperly contacting the employer of the plaintiff’s expert witness. Second, after the sanctions were entered, this is how Raynor responded to The Legal Intelligencer:
“I’m not only going to appeal the decision, I am going after everyone in this,” Raynor said, adding that she is calling for an investigation into [Judge] Panepinto and has met with lawyers to discuss lawsuits against Messa & Associates and Klehr Harrison. … “If they think for one nanosecond that I’m laying down and putting up with their bullshit, they’re crazy,” Raynor continued.
It is rarely helpful to “call for an investigation into” or to “go after” a judge who enters an adverse order.
But my interest in this case was piqued by a follow-up article in yesterday’s Inquirer, in which it was reported that the Pennsylvania Medical Society hopes to get involved in the case by filing an amicus brief. The hypocrisy of the Pennsylvania Medical Society is almost too much to take:
Society president-elect Scott Shapiro, an Abington cardiologist, said he expects his organization to file legal papers in support of Berwyn lawyer Nancy Raynor to overturn the sanctions.
“Multiple physicians have reached out to me, and they have all indicated in a variety of ways that this will impact physicians’ ability to have the full benefit of a complete and thorough defense if they are named in a malpractice case,” Shapiro said. “If I were a lawyer, [I would ask] why would I do a full-court press if my assets are on the line?”
Plaintiff’s lawyers run into the issue the Medical Society suddenly finds so concerning on every single case, because our assets are always “on the line” in every single malpractice case we file. If the case isn’t successful, we lose not just the time we put into it — which can be thousands of hours — but also all of the out-of-pocket costs, which typically exceed $20,000 even in the most simple malpractice case, and often exceed $100,000. Even if the case is successful, we can still lose money depending on the settlement, and even if the case is very successful, it can take years of hard work with no pay and extensive costs before the settlement is obtained.
In contrast, defense lawyers get paid every month for every minute they spend on the case. Doctors rarely pay a dime for malpractice cases, even if they lose: virtually every settlement is within their insurance coverage, including the subsidized insurance coverage they get from the state via the MCARE fund.
It’s thus more than a little hypocritical for Dr. Scott Shapiro and the PA Medical Society to claim that it’s unfair to ask a lawyer to put their own assets on the line just to advocate zealously for the client — negligent doctors throughout Pennsylvania benefit greatly from that very problem, and the sheer expense, difficult, and risk that malpractice lawyers must take on when they pursue a case. Indeed, in this case, the “assets on the line” problem is even greater for the plaintiff’s lawyer: The plaintiff’s lawyers here didn’t get a windfall, they were merely compensated for the time and money they lost because the defendant’s paid expert violated the court’s order.
If Dr. Shapiro and the PA Medical Society really think it’s a problem when a lawyer has to put their assets on the line to represent a client, then they should be first in line to argue that malpractice victims should have the costs of their cases subsidized upfront by the medical profession. Fair’s fair, right?