Sued if you do, sued if you don’t.

by David Nieporent on April 12, 2007

Hospital X was grossly — if not criminally — negligent, and you ought to award zillions of dollars in punitive damages for their misconduct! Consider this list of sins: this hospital knew that its surgeon was mentally ill. He had been diagnosed with bipolar disorder, and they knew it. He had been locked up in mental institutions at least twice before. The danger here was very real. Don’t let them try to claim they didn’t foresee danger. Why, once when that surgeon was operating on a patient, multiple witnesses will tell you that he “became disoriented during the surgery, forgot the names of certain instruments and at one point appeared to be talking to the wall!” Even after he was treated, two different psychiatrists who evaluated him refused to unequivocally state that he was competent. And they let him continue to operate on vulnerable patients. Without any supervision. Even though they knew he had a history of failing to take his medication.

Well, that would be the summary of my argument to the jury if the surgeon in question botched my poor client’s operation and left him permanently injured. So a hospital would have to be crazy to let this state of affairs go on, right?

Right. Except that when Wyoming Valley Health Care System decided not to take any chances, and refused to let mentally ill surgeon Jonathan Haas operate without supervision, he sued the hospital in federal court for violating the Americans with Disabilities Act. And this week, a Pennsylvania jury awarded $250,000 to Haas for this violation of his rights. That’s the case, even though the Americans with Disabilities Act ostensibly has an exception for situations where employing the disabled person would be a threat to the health or safety of other people.

Haas’s complaint was that since he couldn’t find anybody to supervise him, the hospital’s condition effectively prevented him from acting as a surgeon. (Oddly, once this happened, Haas moved on to a hospital in Minnesota which imposed exactly the same supervisory requirement on him, which he accepted. But neither the judge nor jury found that relevant to the question of whether the requirement was reasonable.)

In short, the hospital had the choice of risking a patient’s life and being sued for malpractice, or restricting the privileges of the surgeon and being sued for discrimination. (And we know that had a patient sued for malpractice, the hospital couldn’t possibly have defended itself by pointing to the requirements of the ADA and saying that it was forced to employ the surgeon.)

{ 10 comments }

1 Deoxy 04.12.07 at 9:55 am

Par for the course.

In fact, I’d hazard a guess that many lawyers LIKE this situation – guaranteed employment and money for them.

2 Anirban 04.12.07 at 11:15 am

Dirty Harry thus said ” the law is crazy”

3 Yoda 04.12.07 at 11:20 am

Provided that the statements made in this thread are true, what hospital in their right mind would every hire this guy?

I wouldn’t hire a surgeon who was a double amputee, because his disability prevents him from performing his job in an acceptable manner (you kinda need your hands for surgery), and I wouldn’t hire a person who has an unreasonably high expectation (both by predisposition and past historical example) of being able to perform their functions in a safe and proper manner.

4 David Wilson 04.12.07 at 2:20 pm

David’s find is a great example of what’s making American law fundamentally illegitimate. A sound legal system must provide some level of expectation about what will happen with a given dispute or set of facts. That’s part of what gives law its social utility — allowing social participants to plan their lives and activities accordingly. Otherwise, we may as well replace “law” with simple “authority,” and give the local strongman carte blanche to settle disputes as his whim dictates.

But this is a yet sicker perversion. Here, it’s not merely that the degree of liability isn’t ascertained, it’s that you face diametrically opposed consequences for the same set of actions. Even with a strongman, you know that the punishment will go from “bad” to “worse” and you can at least plan for that. But here, no plan is rational, and a model citizen – intent on obeying the law the best he can – is crushed.

The argument that lawsuits might be expensive but aren’t simply raw opportunism (and thus have social value because they advance some good cause) is obliterated with a case like this.

5 KingTubby 04.12.07 at 6:51 pm

Actually, it wouldn’t hurt any of you to read the facts of the case more closely. Following an episode which even the hospital concedes was uncharacteristic, WVHCS administrators DECLARED that Dr. Haas had suffered from a delusional episode, without the benefit of any examination. The hospital required Dr. Haas to receive psychiatric clearance inorder to resume operating. So Dr. Haas went to a doctor, who found NO EVIDENCE of mental illness. The board made him see another doctor, who again found NO EVIDENCE of mental illness. The board then made him see a third doctor, who stated that whatever Dr. Haas’ condition was, it was now “stable.” There still isn’t a shred of evidence on the record that Dr. Haas has EVER been diagnosed with an Axis I psychiatric condition.

At this time, the board decided that in order to reclaim priveleges, Dr. Haas would have to persuade a fellow orthopaedic surgeon from the hospital — that is, the doctors who COMPETED AGAINST HIM for patients — to supervise him for six months. Dr. Haas was not permitted to go outside the hospital system to find a supervisor. When a respected general surgeon volunteered to supervise Dr. Haas, the board rejected his offer. After six months, no one had agreed to supervise Dr. Haas in surgery; when he complained to the board that the standard they had established was impossible to meet, they refused to hear his complaint, on the grounds that it was not timely.

It seems plain from these facts that WVHCS had ZERO intention of accomodating Dr. Haas, reasonably or otherwise. Despite reports from three psychiatrists that Dr. Haas was able to work, despite the presence of a surgeon willing to supervise him, they refused to implement a plan that he could meet. I think the hospital plainly violated the ADA, and the jury award was appropriate.

6 OBQuiet 04.12.07 at 7:22 pm

KingTubby,

Are you saying that the news account is wrong about his having been diagnosed with Bipolar disorder? What other part of the first paragraph is incorrect. And if it is accurate, do you think a jury would be swayed by it? I sure do and I doubt that saying that the ADA demanded they keep in on would cut it unless they had a court order to that effect.

The problem here is not that the hospital could have or should have accommodated him. It is that whatever they did, they would be held liable.

7 Deoxy 04.13.07 at 10:14 am

“The problem here is not that the hospital could have or should have accommodated him. It is that whatever they did, they would be held liable.”

QFT.

Besides that, if the claim is that he DIDN’T have mental problems, how could they possibly b violating the ADA? The fact that he had mental problems is the only reason the ADA was invoked in the first place!

8 Donald Hudson 04.13.07 at 3:54 pm

Deoxy you are not correct.
If the employer treats someone, as if or with the belief that he/she has a disability than the ADA still applies

9 ben tillman 04.13.07 at 8:16 pm

Tort law is in fact law. Anti-discrimination “law” is the opposite of law. It should not be surprising that the two produce conflicting dictates.

10 Deoxy 04.16.07 at 6:32 pm

“If the employer treats someone, as if or with the belief that he/she has a disability than the ADA still applies”

So, in this case, the ADA applies because it says they can’t fire a surgeon who is mental. Eve if th guy WASN’T mental, the whole point is that they couldn’t fire him over BEING mental.

Either way, it’s still messed up.

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