Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘sued if you do’

Blogs on Poliner

The medical blogs are naturally talking about the Poliner litigation, where a doctor who had privileges suspended for allegations of improper care sued everyone involved in the peer review decision and eventually got a jury verdict of $366 million (Aug. 30). Dr. Rangel (Sep. 1) takes an interesting and nuanced view based in part on personal experience with the plaintiff; db’s MedRants blog (Aug. 31) calls for a “barf bag”; Bard-Parker (Aug. 31) suggests that one solution may be more systematic use of outside review, but notes that fear of litigation may not make that reform feasible.

Commenters are focused mostly on the liability decision, but one thing that immediately strikes the eye is the complete divorce from reality of the damages figure of $366 million. Even if one assumes that Poliner’s career was completely ruined notwithstanding a different peer review’s exoneration and throws in a million dollars for psychic injury, the figure is off by at least a factor of ten; if one more realistically limits damages to the few months he was out of practice, at least a factor of 100; if one limits damages to the month between the initial suspension and the privileged decision of the peer review committee, even more. Usually the remedy for excessive damages is “remittitur,” a fancy Latin word for the process where the judge makes up his or her own damages figure and tells the plaintiff to agree to that reduced figure or a motion for a new trial will be granted. But if a jury’s damages determination was the irrational product of passion, why presume (and, often, essentially assume) that the liability decision was reasoned?

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From the “damned if you do, damned if you don’t” files

In three separate cases in 1997, nurses at Presbyterian Hospital of Dallas’s cardiac catherterization lab expressed concerns about Dr. Lawrence R. Poliner’s care of patients. When the director of the lab, Dr. John Levin, alleged to the hospital’s chief of cardiology, Dr. John Harper, that Poliner had also recently performed an emergency angioplasty on the wrong artery, the chair of department of internal medicine, Dr. James Knochel, confronted Poliner, and told him to voluntarily stop performing cardiac catheterizations while his privileges were reviewed or face termination. A six-doctor peer review committee met the next month, decided that Dr. Poliner had given substandard care in 29 out of 44 cases, and voted unanimously to suspend Dr. Poliner’s privileges at the lab.

So far, so good, right? After all, we’re told by the plaintiffs’ bar that the medical malpractice crisis would go away magically if the medical profession would just police its own, and that’s exactly what happened here. Can you imagine what a trial lawyer would do with the peer review committee’s conclusions if the hospital did nothing and had been sued for Poliner’s work afterwards?

Dr. Poliner eventually got his privileges reinstated a few months later in a hearing held before a different peer review committee of doctors after a number of prominent cardiologists spoke on his behalf; another appellate committee at the hospital found no wrongdoing by the initial peer review committee, who Poliner accused of seeking to eliminate him as “competition.” Not satisfied with exoneration, Poliner sought retribution. He, with the help of medical malpractice attorney Charla Aldous, sued the hospital, Knochel, Harper, Levin, and the six doctors on the peer review committee for supposed antitrust and “consumer fraud” violations, breach of contract, defamation, interference with contractual relations, and intentional infliction of emotional distress. The antitrust and consumer fraud claims were thrown out (BNA, “Antitrust Claims Are Eliminated From Physician Suspension Case”, Antitrust & Trade Reg. Rep., Nov. 7). So were the claims against the six peer review committee doctors, who had immunity under Texas Peer Review Immunity Statutes, which the state trial lawyers’ association had fought hard against in the legislature.

But the case against the other three doctors and the hospital proceeded. A jury found in favor of Dr. Poliner’s conspiracy theory that competitive malice motivated the entire affair. The jury’s proposed payday for six months’ missed work by the 60-year-old? $366 million: “$141 million to be paid by Dr. Knochel, $32 million each from Dr. Harper and Dr. Levin and $161 million from Presbyterian.” The hospital announced that it would appeal: “From time to time, hospitals and members of the medical staff leadership must make decisions relating to patient care and safety, and these decisions sometimes affect an individual doctor’s privileges at that hospital.” (Terry Maxon, “Dallas doctor awarded $366 million in damages”, Dallas Morning News, Aug. 28).

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Campus taverns: sued if they do…

Pressured by University of Wisconsin officials and by a federal campaign against underage and binge drinking, 24 taverns near the university’s Madison campus agreed voluntarily a year and a half ago to stop cheap-drink promotions on weekends. Can you guess the sequel? A Minneapolis law firm has now swooped down with a class-action antitrust suit filed on behalf of three named UW-Madison students. The suit accuses the taverns of unlawful restraint of trade and demands what it says could be tens of millions of dollars in treble damages on behalf of “the victims of price fixing — basically anyone who patronized the downtown taverns on Friday or Saturday nights and paid full price”. It also names the university and the Madison-Dane County Tavern League. Not being sued, apparently, is the federal government, even though the bars’ agreement to limit weekend drink specials came about “as part of the federally funded PACE project. PACE, which stands for Policy, Alternatives, Community and Education, is in the seventh year of a comprehensive campus-community partnership designed to reduce the negative consequences of high-risk drinking.” (Mike Ivey and Aaron Nathans, “Students sue 24 campus bars”, Capital Times (Madison), Mar. 24). In other campus-drinking-related news, the Milwaukee paper reported last month that Seattle’s Hagens Berman and other law firms who are gearing up big courtroom campaigns against brewers and distillers (see Feb. 16, Dec. 1) were likely to try a demonization campaign against Budweiser’s talking frog and similar marketing devices akin to the successful campaign to demonize R.J. Reynolds’s Joe Camel mascot (Tom Daykin, “Beer may suffer the Joe Camel effect”, Feb. 21). Plus: Vice Squad has more (Mar. 29)(& welcome Reason “Hit & Run” readers). Update May 2, 2005: judge dismisses Madison tavern case after defendants spend $250,000.

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Damned if you do, damned if you don’t

You may have heard of the $100 million lawsuit filed by postal workers against US Postal Service officials for failing to evacuate the anthrax-contaminated Brentwood facility and to treat workers quickly enough. (Allan Lengel, “Postal Workers File Suit Over Handling of Anthrax Crisis”, Washington Post, Oct. 15). The press coverage universally fails to note that while two workers, Joseph P. Curseen, and Thomas J. Morris, Jr., died from anthrax, the lawsuit was filed on behalf of all 2200 workers in the facility, and none of the five named plaintiffs represent the families of the deceased or, though all the Brentwood postal workers were tested for the disease, allege that they contracted anthrax. Instead, they allege, vaguely, “anthrax-like symptoms” for which they wish to receive damages. (At the press conference, the lead lawyer apparently claimed that there are several other anthrax-linked deaths, a fact we’re sure the CDC would be curious to know even as it was being reported uncritically by the Washington Post.) At least some postal workers who actually contracted anthrax have already brought individual suits that won’t be affected by the class action. (Linell Smith, “More anthrax suits likely against Postal Service”, Baltimore Sun, Jan. 10; “Lawsuit Over Anthrax Death Settled”, Washington Post, Aug. 9, 2002). Again, this went unnoted by the press coverage, which focused on the postal workers who were harmed, rather than the claims of the named plaintiffs. Also less publicized is the fact that New Jersey postal workers are suing Bayer, claiming that they were injured because they took Cipro as a precaution against anthrax exposure, and requesting class action status. (“Postal Workers Sue Maker of Cipro”, AP, Oct. 19).

UPDATE, Oct. 24: Reader William Jones writes to point us to a recent study of Brentwood postal employees in a CDC publication that shows no additional mortality from the anthrax exposure beyond the deaths of Curseen and Morris. (K. Berry et al., “Follow-Up of Deaths Among U.S. Postal Service Workers Potentially Exposed to Bacillus anthracis — District of Columbia, 2001–2002”, Morbidity and Mortality Weekly Report, Oct. 3 ).

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