Malpractice Lawsuit: My First and Only
Aristotle taught that fish and eels sprang forth from sand,
mud and putrefying algae, which is a silly idea. Today we know this is where lawyers come from.
―Doug Robarchek, Charlotte Observer
The year 1990 began with a jolt. I received a ninety-day letter stating a local law firm, on behalf of one of their clients (a recent patient of ours), was contemplating a medical malpractice suit for negligence. Since the beginning of my medical career in 1966, I only had one threat of malpractice. It was deemed frivolous and dismissed by the court before it even got started. I immediately forwarded the threat to my malpractice insurance carrier. I reviewed the medical file. This was a thirty-seven-year-old white male who recently complained of rectal bleeding. One of our doctors did a rectal exam and felt a small mass but did not know what it was. He referred him to an internal medicine specialist for a sigmoidoscopic examination. The report came back with a diagnosis of “internal hemorrhoids.” We treated him with suppositories for a few weeks. He came back a month later and said he could see a little bright red blood on his toilet tissue again. He was treated again with rectal suppositories. A month later he came back and requested to see the senior doctor on staff―that was me. I did a hemoglobin test and it showed a slight anemia. Although chronic bleeding can occur over a long period of time with hemorrhoids and produce anemia, I didn’t think this was his problem. I sent him for more testing of his upper and lower GI tract. These showed normal except for a small hiatal hernia. Over time these hernias can cause reflux and an erosion of the stomach and esophageal lining leading to anemia. I didn’t think this was his problem either. Perplexed, I sent him to a rectal surgeon who found the problem right away. He had a tiny tumor at the tip of the anus, an extremely rare cancer especially in such a young man. It was a Stage III cancer because it had spread through the wall of the rectum. The surgeon operated on him right away and removed the affected part of the rectum. He had to wear a colostomy bag, but it was reversible. He would enjoy a long life after the tumor was removed.
The patient’s lawyers took the depositions of our doctors, the internist and the surgeon as to what we’d found, what we did and why we did it. About three months later we were served papers that we, along with the internist, were being sued for $1.2 million. The allegation was that because there was a delay in diagnosis, we caused him to have a colostomy. In reality, from the time we saw him to the time of surgery, only eight months had passed. There was no way of telling what stage the cancer was at eight months before. Because it was so rare, there was very little data in the scientific literature about this type of cancer.
I sent the lawsuit papers to our malpractice insurer, and they assigned a defense attorney to represent us, Ken Blumenthal. He was a partner in a large Columbus firm only doing malpractice defense work for doctors. He had never been on the other side suing doctors, which gave me more confidence in him. He said he had approval from the insurance company to settle the case for a $1 million. If the case were not so serious, I would have laughed in his face. I told him I had reviewed the case and felt confident that we were not negligent and had not committed malpractice. My defense was simple and verified by our well-documented chart. The facts would show that as soon as we discovered the mass on the first visit, we referred him to a specialist to identify the mass. Despite the specialist’s completely missing the cancer, we persisted with diagnostic tests and finally sent him to another specialist when things were not making sense. We never dropped the ball. The surgeon cut out the cancer, and I believe, we saved his life by our prudent actions. There was no way I was going to settle for even a penny. I was ready to fight. I liked Ken Blumenthal. He struck me as a tough fighter himself. Before he went to law school he was a dealer at a Las Vegas casino. He had a rough edge about him that suited my defense. I told him to go forward with the defense, and I was prepared to go to court every day until we proved our innocence.
The day before the trial, the plaintiff lowered his demand to $1 million hoping to reap a quick bonanza. They didn’t know the kind of man with whom they were dealing.
I said an emphatic, “No!”
There was one hiccup. We couldn’t locate our doctor who had first found the mass. He had left the state, and there was no forwarding information. This was not critical to the case because we had his notes on the chart and the “referral for rectal mass” was clearly written. However, it would have been supportive to hear his testimony. We chose a jury based on no particular courtroom theories but rather on our unscientific feeling that this juror or that juror would be objective, unbiased, and sympathetic to our side of the story. Both sides made opening statements. In Ohio, the plaintiff puts on his case first. The plaintiff calls you every name in the book―malpracticer, negligent, uncaring, and worse. The jury despises you. They seemed to be staring at me with vindictive eyes. You just have to endure it. I sat there for a week and could hardly believe what I was hearing from their experts. The prosecutor’s first witness was the patient himself. Let’s call him Mr. Eel. He described everything that took place in the last year. He claimed he was disabled from our malpractice and could not work. Mr. Eel was accepting welfare checks from the state. His wife did not work either. Nothing new was revealed with his testimony. His wife, who was also suing us for loss of consortium, said they hadn’t had sex during his whole illness because it was too uncomfortable for him and she did not like his colostomy bag. Their testimony never hurt us or helped them. I don’t think the jury was sympathetic to their story.
His first expert medical witness was the pathologist who made the microscopic diagnosis. He was chief of pathology in a Columbus hospital and a friend of the plaintiff’s attorney. Their kids played baseball together. Let’s call him Dr. Jerry. He freely admitted he had never seen this type of tumor before, but when asked what the doubling time was (the time it took for a tumor to double in size), he said every thirty days. That is extremely rapid for any tumor, but his answer, if allowed to be unchallenged, made their case. This implied that in the eight months between diagnosis and surgery, the tumor had time to invade the full thickness of the wall of the bowel. By invading the bowel wall, there was damage that required a colostomy bag and could shorten his life. The pathologist rendered an opinion that all of this could have been prevented by an earlier diagnosis.
The next witness was a doctor from out of town. He was a paid expert witness who made his living testifying against other doctors for a fee. In other words he was a medical prostitute. He said that our care fell beneath the standard of care for the community. He said we were negligent in not operating earlier. He quibbled over some irrelevant minor details. But he also revealed that he was not a general practitioner (as we were), but rather an internist. This turned out to be another plaintiff’s misstep. Their expert did not hurt our case either.
The third witness was the surgeon who made the diagnosis and performed the operation. DiCuccio, the lead plaintiff’s attorney, led her to say that we had committed malpractice by delaying the referral for so long. This was damning to have our own specialist make such a statement. Blumenthal would take care of the surgeon and her reckless statement later. The plaintiff’s attorney, a very large, blustery man, swaggered around the courtroom delighting in the drama he was creating.
The fourth witness was our physician’s assistant, Ron Roberts, P.A. He had treated the patient on two occasions, continuing the treatment protocol established by our physicians. DiCuccio attempted to make it appear by his questioning that a P.A., not being a physician, was therefore not qualified to practice medicine. His motive was to try to show the jury we were delivering substandard care. Mr. Roberts comported himself extremely well and explained the licensing and duties of a P.A. in Ohio. No harm was done there.
DiCuccio’s next witness was an economist who tried to tell the jury that this man’s disability was worth more than a million dollars in lost wages. How could that be? He and his wife were on welfare, and he claimed he had not worked before he discovered the rectal bleeding due to a prior back injury that he had sustained on a construction job. The jury wasn’t buying it. At this point, I was feeling pretty good about our case. Early on, my attorney asked me every morning whether I wanted to settle the case. He explained the money would come from the insurance company, not me, so it wouldn’t cost me anything out of pocket. But where do you go to get your reputation back?
Once more I said, “No.”
He never asked me again. After the first full week of testimony, DiCuccio was feeling pretty smug, and as he walked by the defense table, he whispered to me that for $500,000 he would let me walk. I laughed at him. I wasn’t worried, but I could not wait to tell our side of the story.
The trial was now in its second week. I had no idea what expert witnesses Ken Blumenthal had retained for my defense. Were they competent? What would they say? I had to trust him. I batted leadoff. He wanted me to tell the story. Blumenthal called me to the stand as our first witness and reviewed my education, training, certifications, and war record. He asked me to explain all of the notes on the chart in detail to the jury. I looked at the jury as I read line by line the notes on the chart and what they meant. Ken had a big cardboard blowup copy of the notes in front of the courtroom so the jury could follow along. They could see I wasn’t hiding anything. I explained what we did and why we did it. I emphasized the fact that we had immediately referred the patient to a specialist for a sigmoidoscopy to provide a direct look at the mass and biopsy if required. We leaned heavily on the results of that exam and treated him for hemorrhoids. When it became apparent that our therapy was not working, we referred him for a second opinion. That was our case. On cross-examination, DiCuccio tried smoke and mirrors to confuse me—and the jury. He was very experienced and used a lot of old courtroom tricks. At one point, he read from a very old medical book about rectal tumors and asked me if I agreed. It was all outdated information. If I disagreed with a medical book, it would appear to the jury I didn’t know my medicine. So I asked him the date of publication. He gave the date, and as I guessed, it was ancient. I told the courtroom I disagreed with his textbook because it was outdated information. He then asked me a series of very specific and minutely detailed medical questions about the tests I’d ordered to make me stumble and appear unsure to the jury. This was a blunder. He was in my arena now. He didn’t know what I knew and how well I knew it. Frankly, he wouldn’t have known if I gave him correct answers or not. I confidently answered every question in layman’s terms, so the jury could understand. He then read from a Physician’s Desk Reference (PDR) about one of the medications we had prescribed and asked me if I agreed with the statement. I was onto his game. I took a gamble; this was an outdated reference too. I knew by the color of its binding it was an old PDR. I told him that the information he’d just read was outdated and there were new indications for the medication’s use. I therefore disagreed with him. In his frustration he literally charged at me in the witness chair and yelled his next question right to my face. I had a few tricks of my own from years of giving testimony in personal injury and worker’s compensation cases. Instead of answering, I turned to the judge and told him DiCuccio was intimidating me, and would he tell him to move back from me. The judge admonished him, told him to move away from the witness, and advised him in the future to ask permission to approach the witness. DiCuccio was cowed by the judge’s warning and ended his barrage of questions. I could tell by their body language and facial expressions that the jury did not like his aggressive behavior toward me. After my testimony, they were looking at me more empathetically. The jury sentiment began to swing away from the plaintiff. They did not like DiCuccio, and they did not like the plaintiffs. I learned that people (in general) want to see their own doctors in a good light, and will usually give them the benefit of the doubt.
We finally got to call on our expert witnesses. Second in our lineup following me was a family doctor from Columbus. Let’s call him Dr. Whelby. I had heard his name in Columbus for years but had never met him. Ken asked him the usual credentialing and experience questions. Dr. Whelby also offered that he was president of the Columbus Academy of Medicine. He was a general practitioner and practiced in Columbus for thirty-five years. He was asked if he had reviewed the patient’s chart. Yes, he had. Was there anything in there that fell beneath the standard of care for a general practitioner in Columbus, Ohio? No. He said the care was fine, and there were no exceptions. He would have done the same thing himself. Dr. Whelby pointed out that the standard of care for a GP was not as high as a specialist’s because of the specialist’s extra training. It was important that a respected Columbus family doctor tell a Columbus jury that we met the standard of care in our own community.
Our power hitter, batting third, was a doctor from Baltimore, Maryland. Let’s call him Dr. Kildaire. Neither Kildaire nor Whelby were professional witnesses. I didn’t know Dr. Kildaire, but I was anxious to hear him speak about the case. Dr. Kildaire was chief of the Gastroenterology Department of Johns Hopkins Medical School and Hospitals in Baltimore, a world famous and time-honored institution. He was in his late forties and well-spoken, making an immediate favorable first impression. Blumenthal asked him if he was familiar with the type of tumor the patient had. He said yes, but it was very rare, both the location and the cell type. There were only about ten cases known according to the world’s medical literature. All bowel cancers in the state of Maryland were sent to him for his review, and he kept the tumor registry for the state for all cancers. In twenty years he had only seen four tumors of this type. He was not bragging but attempting to educate the court. Ken asked him if he was familiar with Bockus Gastroenterology―the venerable four-volume gold standard text for gastroenterologists in the world. He was not only familiar with it, he was also one of its editors and had written the section on lower bowel malignancies.
Amazingly, Ken Blumenthal had managed to find the world’s leading expert on this type of tumor. Blumenthal then asked him if he had heard the plaintiff’s expert, Dr. Jerry, tell the court that the doubling time of this tumor was thirty days. Did he agree with that?
He did not agree with that because he said no one knew what the doubling time was. No one had ever studied the doubling time of this tumor. There was no data in the medical literature because there weren’t enough cases to study. So here is the world’s expert, Dr. Kildaire, telling the jury that Dr. Jerry flat-out made up his answer. Their expert witness’s testimony was shattered, and their case for damages blew up. Blumenthal was not finished with Dr. Jerry and called him back to the stand. Ken asked him whether he was familiar with Bockus Gastroenterology.
“Yes, of course.”
“Are you familiar with the section on GI malignancies?”
“Was there anything in Bockus with which you would disagree?”
Of course he said, “No.”
Blumenthal asked him if he attended the Symposium on Gastrointestinal Diseases at The Ohio State University two months ago?
“Did you hear Dr. Kildaire’s lecture on lower GI malignancies at that symposium?”
“Was there anything that Dr. Kildaire said in his lecture with which you would disagree?”
“No, there was nothing.”
Finally, Blumenthal asked Dr. Jerry if he wanted to revise his answer about the doubling time of the tumor after hearing Dr. Kildaire’ s testimony that nobody in the world knew the answer. He stupidly held on to his lie. When DiCuccio passed my table he lowered his demand to $250,000. I guess things weren’t going as well as he had planned.
Blumenthal recalled the surgeon, Dr. Deborah Mesig, who had started all of this trouble by telling the patient that we had committed malpractice. Hadn’t she read our referral note that he had been examined by another specialist? Didn’t we get any credit for making a second referral to her? During her testimony, he asked her if she had read any of our notes. She said she had not. Did she ever communicate to us her thoughts about the case? No, she hadn’t. Then how could she make such a damning statement to the patient without trying to find out all the facts? Knowing what she knows now, did she think there was malpractice?
To her credit she said, “No.”
Would she like to apologize?
Either as a testament to her character or to relieve her embarrassment, she did apologize. I believe this went a long way in front of the jury.
We learned that the plaintiff was a real parasite on society. We were tipped off that while on welfare and receiving disability payments, he was working a construction job and was being paid under the table. He was committing Medicaid fraud and workers’ compensation fraud, both felonies and jailable offenses. We had copies of his construction job work hours. To compound his crime, Mr. Eel never paid income taxes on his earnings, a federal crime. We decided to expose his multiple frauds to the jury as evidence of his bad character. We brought him back to the stand and had him identify his work sheets during the time he had told the jury he could not work. We introduced his welfare payment records from the state. The jury was composed of all hard-working, nine-to-five, law-abiding, tax-paying citizens. Their contempt for him was obvious. Eel was just looking for another easy payday.
We were supposed to wrap up all the testimony the next day. Ken told me that DiCuccio―at the last hour―wanted to bring in a witness who was not on the original witness list. This was highly irregular but the judge allowed it. Who was this mystery witness? We had no idea. It was late Friday and the judge adjourned until Monday. I wondered all weekend whom it might be and what damage he or she could do.
Monday we found out. DiCuccio had located the doctor who originally found the mass. He was practicing in Kentucky, and they were bringing him in as a plaintiff’s witness. What could he say to help them and hurt us? He was a young doctor who had not completed his residency when he came to work for me. I gave him a job when he needed one. He was smart and pleasant, but he did not get along well with one of my other doctors. They often clashed, and that was his reason for leaving. He and I, on the other hand, had a good relationship. Let’s call him Dr. Young. He was called to the stand and sworn in. We made eye contact but he broke his gaze. I knew something bad was coming. DiCuccio asked him to read his notes from the initial exam. He did, and then DiCuccio used another old courtroom trick. He asked him about the “cancer.” He was using the term “cancer” now instead of the original term, “mass,” which was clearly written on the chart. He had Dr. Young confused, and he fell in lockstep with DiCuccio, and also began using the word “cancer” instead of “mass.” We knew where this line of questioning was leading. This was damaging to our case because if we knew it was a cancer from the first visit, we should have done something corrective right away. Blumenthal and I looked at each other. Blumenthal had to turn this around and quickly. On cross-examination he asked Dr. Young to read his note verbatim describing the mass. Again, it clearly read “mass” and not “cancer.” He asked him how he found the mass. Dr. Young said by digital exam.
“So, you felt it with your finger?”
“Did you use a proctoscope?”
“Did you use a sigmoidoscope?”
“Did you use a colonoscope?”
“Then you never actually saw it, did you?”
“Then it could have been anything, a hemorrhoid, cyst, abscess, or a benign tumor?”
Young said, “No. it wasn’t any of those. It was a cancer.”
Ken was on him now. “If you never used any kind of a scope, how would you know what is was, Dr. Young? Do you have an eyeball at the end of your finger?” The jury had to stifle their laughter. Ken Blumenthal had delivered the most hilarious closing line ever heard in a Columbus courtroom.
We recessed for lunch. There was nothing to do now but wait for the verdict. It only took about an hour, and we were all called back into the courtroom. DiCuccio didn’t even bother to show up. Knowing he’d lost the case, he sent one of his lackeys instead. The jury had decided and was ready to deliver a verdict.
The foreman stated: “Not guilty of malpractice, no negligence, no damages, and no money award.”
We were completely exonerated. Ken Blumenthal, a perfect stranger to me before the trial, became a friend after the trial. He did a magnificent defense job. When I walked out of the courtroom into the waiting area, the jury followed, and as a group, they apologized to me for my being dragged into this mess. They were very happy with their decision. They told me that very early in the trial they had developed a distrust of DiCuccio and a dislike for his clients.
There is a sequel to this story. I had been audited by the IRS every year from 1979 to 1990. I was really getting fed up with this harassment. The government never found anything out of line, just minor adjustments. Sometimes I paid them a few bucks, and sometimes I got a small credit. Partially in anger and partially in frustration, I said to my examining agent, “Why don’t you go after someone who is not paying their taxes?”
She asked me if I knew of such a person. I wrote the name of the plaintiff on a piece of paper and slipped it to her.
Stay tuned for more from Bernie Master’s personal memoir, No Finish Line. To be published one week from today.