Trial Lawyers Are Good.Their FL Website is Crass. A Dr. is a Criminal.
The Wall Street Journal’s Law Blog shines a light on something that is more than just medical malpractice. It is criminal enterprise. This story concerns a physician and snake-oil saleswoman, all in the same person, who took advantage of the desperation of patients with advanced cancer by selling them an expensive “herbal remedy” that she surely knew would work only to line her pockets with cash.
The WSJ Law Blog also reports on the big dust up in south Florida over a new website called “whocanisue.com.” Many find it crass and distasteful, perhaps because of the ads on billboards and bus shelters promoting it, which feature a lawyer slipping on a banana peel. The name of the site does not exactly inspire love and respect, either. And, according to WSJ and a local Florida paper referenced in its post, some of the people most offended by the site are other Florida lawyers who feel that it degrades the entire profession.
One of the issues addressed in the WSJ post is that the site is not subject to attorney discipline, since it is only a “referral” service. And that’s a valid point. But my concern is, given how successful the site is in drawing in business, according to the press about it, shouldn’t there be some vetting of the firms that advertise on the site? For instance, checking that the attorney: is licensed in the state; has not been the subject of repeated disciplinary action by the state bar; does not have a history of misrepresenting his services to potential clients (i.e., the lawyer promises his individual attention to your case, but hands it off for a percentage of the anticipated fee as soon as he signs you up); and actually has experience in the specialty area he claims expertise in.
Getting back to the more ennobling aspects of lawyering, my Twitter friend, Bill Marler (@bmarler if you want to follow him, which I recommend) delivered shirts emblazoned with the phrase “Put a Trial Lawyer Out of Business” to the Senate earlier this week in an effort to call attention to the need for better food safety regulations, according to the Mass Tort Litigation Blog. Bill was prominently featured in last week’s New York Times article on the devestating effects of E. coli on a children’s dance instructor who ate contaminated hamburger meat. She is now paralyzed from the waist down as a result.
And yes, you can thank a “trial lawyer” like Bill Marler for forcing the hamburger manufacturers to do what they should have been doing all along with regard to food safety, since such arcane concepts as “caring enough not to poison those who eat your product” seem so elusive to such companies, until they stand to lose profits to a lawsuit.
Flashback to 9/11
What does my memory of 9/11 have to do with medical malpractice? Believe it or not, there is a connection. It was in my capacity as a medical malpractice defense lawyer, back in the day, that I was traveling to Staten Island that morning.
I was in the middle of New York Harbor, on the Staten Island Ferry, on my way to a court appearance at a facility called “The Home Port.” The Home Port was once a Navy base, but had been turned into an outpost of Richmond County Supreme Court. About halfway into the trip, passengers began talking, and then shouting, about a passenger plane that had hit one of the World Trade Center’s towers. Some gathered on the deck, myself included, to look back toward the towers, to see if we could observe anything. As I was turning to look, I saw a flash out of the corner of my eye, and heard the people around me start to scream. The second plane had just hit, and suddenly the idea of a wayward private plane accidentally hitting the towers morphed into a base fear that we were under attack. And we felt particularly vulnerable being out on a large, lumbering, orange ferry boat in the middle of the harbor.
The level of instant panic was such that the ferry began to list to one side—the side where all the passengers had gathered to watch for the next event. The ship’s captain ordered the passengers to disperse evenly within the boat, and assured everyone that we were headed to shore as quickly as possible. Upon arriving at the dock in Staten Island, ferry service was stopped, and we were instructed by various emergency personnel to gather on the plaza above the ferry terminal. By this point, we’d had further and more accurate news about the coordinated attacks. Unfortunately, this news was mixed with rumors and exaggerations, such that I feared for my toddler and my pregnant wife, who were in the downtown Brooklyn area, where I had heard that bombs were slated to go off.
The irony that all this was happening on a picture-perfect fall day was not lost on me. Some more time passed on the plaza, and suddenly, the first tower began to crumble. People near me cried out in disbelief. But when the second tower fell a short time later, many more were affected, including myself. Some were crying hysterically. Some, like me, were mute with shock and sorrow. It felt as if the world had changed, and, of course, it had. Communication was out, and access to and from Staten Island was shut down. I got the last room at a flea-bitten truck stop of a motel somewhere on Hylan Blvd., and stayed up all night watching television news of the attack. In the morning, I caught a city bus over the Verrazano Bridge back to Brooklyn. You could see the enormous, gaping, smoking hole where the towers had stood as we rode across the bridge. I went home and found my family.
Medical Malpractice, Negligent Homicide or Failure to Discipline?
When I was an assistant district attorney in Queens County (NYC), New York, my boss, Richard Brown, decided to charge a local OB/GYN with murder, based on a showing of “depraved indifference to human life,” after that physician’s depraved actions during an abortion procedure in a storefront clinic left his immigrant patient dead. The New York Times wrote about the prosecution after the doctor’s conviction for second-degree murder.
The facts of the doctor’s abortion procedure were difficult to hear. Dr. David Benjamin left a 3-inch tear in the victim’s uterus while performing a late-term procedure for which he was unqualified. He left her to bleed to death on a table in his clinic while he performed another abortion on a second clinic patient. He then tried to hide his mistake by telling paramedics that the patient had suffered a cardiac arrest. And, he lied to the trial jury about his knowledge of the gestational age of the fetus.
But even more disturbing was this practitioner’s disciplinary history. As reported by Lynette Holloway in the NY Times article:
“The incident came at [a] time when the doctor’s license was in the process of being revoked. His license was revoked in June 1993 [2 years before this conviction] for ‘gross incompetence and negligence’ in five other cases. During an appeal of the revocation, he was allowed to continue practicing, and Mrs. Negron, a Honduran immigrant, died during that time.”
Unfortunately, it doesn’t end there. Ms. Holloway learned that there had been additional suspensions:
“In 1986, as he practiced under the name of Elyas Bonrouhi, the state suspended his license for three months based on 38 counts of negligence and incompetence.”
So, here are my questions. Why was the doctor allowed to continue practicing after he had been found to be grossly incompetent and negligent in five prior cases? After all, this was not a case of a doctor with one or two unfounded accusations. This was an OB/GYN–someone empowered to perform invasive surgical procedures that were potentially lethal if done improperly–with a history of negligence. Why not order the direct supervision by a qualified OB/GYN over any significant procedures performed by Dr. Benjamin? Why not impose supervised re-training and re-certification before allowing him to practice while his revocation was being appealed? Where was The New York State Medical Society? The AMA? The hospital with which Dr. Benjamin was affiliated?
Luckily, doctors like Dr. Benjamin are the exception and not the rule. But his case illustrates a sad reality that continues to this day. Doctors and hospital executives do a terrible job of disciplining bad doctors, if they take any action at all. And then they have the chutzpah to turn around and claim they are being victimized by greedy trial lawyers bringing frivolous medical malpractice suits. And you tend to hear this chorus of moaning from OB/GYNs above all others, because their liability insurance rates tend to be much higher than those in most other specialties. Some unsolicited advice: look within, and act ethically with regard to your incompetent peers.
Dr. Benjamin was the first New York State doctor to be convicted of a murder based on his medical treatment of a patient. Hopefully, he’ll be the last as well. But his prosecution is not an isolated case in this country.
Three years after Dr. Benjamin’s conviction, California prosecutors tried an ER physician for negligent homicide, using a “depraved heart” theory, after that physician saw an 11-month old child with signs of severe dehydration twice in a three-day period, and then did little more than suggest that the baby be driven to another hospital 55 miles away. The baby died en route. The charges against the physician were dismissed during the trial.
Last year in Massachusetts, an OB/GYN who performed an abortion by himself, with no cardiac or blood pressure monitoring equipment, and no oxygen available for his patient, was charged with manslaughter after the patient’s death. When the doctor could not arouse the patient after the procedure, he delayed in calling 911, and then tried to cover up his negligence by telling his local disciplinary board that he had used oxygen, had monitored the patient’s pulse and that his assistant had been certified in CPR, all of which claims were false. He also misled state investigators about the room in which the prodecure had been performed, showing them one that contained equipment not used during the patient’s procedure.
That doctor, Rapin Osathanondh, surrendered his medical license, and still faces his criminal trial.
Clearly, these physicians did not become dangerously negligent overnight. Just as clearly, they had colleagues and co-workers who saw the quality of the medicine they were practicing. Silence cannot be an option here.