Medical-malpractice battle gets personal

By Laura Parker, USA TODAYThere are 73,084 working lawyers in Texas. Selina Leewright never thought that being married to one would cost her her job.
But that's why Leewright, a nurse, was fired last summer by Good Shepherd Medical Center in the East Texas city of Longview. In dismissing her, hospital officials praised her nursing skills as "fantastic." But they told her that because her husband, Marty, worked at a law firm that does medical-malpractice litigation, the hospital could not continue to employ her. "I was dumbfounded," Leewright says. "They just assumed that my husband does medical malpractice, which he doesn't at all."

Leewright's firing was a measure of how toxic the battle over medical-malpractice lawsuits has become. Hospital administrators and doctors across the nation, furious over what they see as waves of frivolous lawsuits that have driven up malpractice insurance costs, are striking back against lawyers with hardball tactics that, in some cases, are raising ethical questions.

Some doctors are refusing medical treatment to lawyers, their families and their employees except in emergencies, and the doctors are urging the American Medical Association to endorse that view. Professional medical societies are trying to silence their peers by discouraging doctors from testifying as expert witnesses on behalf of plaintiffs. And a New Jersey doctor who supported malpractice legislation that his colleagues opposed was ousted from his hospital post.

While sharing their peers' anger over malpractice lawsuits, some doctors see such tactics — particularly the refusal of treatment — as contrary to the Hippocratic oath, in which new doctors acknowledge "special obligations to all my fellow human beings."

But Chris Hawk, a surgeon in Charleston, S.C., says the notion of refusing treatment to malpractice lawyers, their family members and associates not only is justified, it's necessary. "This idea may be repulsive," Hawk says. "It's hardball. But it's ethical."

Hawk, 57, says that a doctor's ethical obligation to treat patients applies only to emergency care. "Physicians are not bound to treat everybody who walks through their door," he says.

Doctors and lawyers long have been at odds over malpractice litigation. But soaring malpractice-insurance premiums, which hit doctors in high-risk specialties such as neurosurgery and obstetrics particularly hard, have fueled the debate. For doctors who blame the increases in their premiums on unwarranted lawsuits and large jury awards, the solution is clear: Overhaul the nation's civil litigation system, starting with limits on what jurors can award in damages.

Malpractice lawyers, led by the Association of Trial Lawyers of America, counter that rising premiums have more to do with the insurance industry than jury awards. They say tighter regulation of the industry is needed.

The lawyers say that stifling malpractice litigation could deny Americans some of their rights to seek redress in court when doctors make mistakes.

The AMA is backing federal legislation, now stalled in the U.S. Senate, that would cap pain-and-suffering awards against obstetricians and emergency room doctors at $250,000. Meanwhile, the battles continue in state legislatures. All but nine states have restricted medical-malpractice lawsuits in recent years. But the AMA contends that only six states have passed "effective" legislation, meaning laws that cap money awards.

This month in Mississippi, where lawmakers have been at odds over the issue for years, the legislature limited medical-malpractice awards for pain and suffering — as opposed to actual medical bills — to $500,000. The measure was approved amid acrimony that Percy Watson, a lawyer and legislator from Hattiesburg, says was unlike anything he had seen in his 25 years in the state House.

Watson says that at one point he got a letter from an angry doctor he doesn't know, and that the doctor told Watson he would refuse to treat the lawmaker because of his opposition to limiting malpractice awards against doctors.

"But it's not only with this doctor, it's prevalent in other areas in the state," Watson says. "Some of my colleagues in Hattiesburg who were not involved in (malpractice issues) have been refused the services of doctors just because they are lawyers."

In South Carolina, Hawk says he first urged fellow doctors to refuse non-emergency treatment to lawyers, their families and employees in a speech at the state medical association's convention in March.

The state association declined to endorse his proposal. Patricia Westmoreland, a dermatologist and member of the association's board of trustees, says she supports limits on awards and sympathizes with Hawk's frustration. But she disagrees with his approach.

"It flies in the face of just basic honesty and goodness," she says. "It's prejudiced. As a physician, I take an oath to see people and take care of people, and to refuse to take care of a sick person is just anathema to me."

But Hawk wants the AMA to adopt his view as its policy. That seems unlikely — AMA leaders have been silent on the issue — but Hawk plans to argue his case in Chicago this week during the AMA's annual meeting. Hawk says his tactic is "analogous to hitting the lawyers with a 2-by-4. Now we have their attention. Now maybe we can make some progress."

Plaintiffs allegedly blacklisted

The bitter divide between doctors and lawyers has been exposed in a range of ways recently.

Earlier this spring, a Texas radiologist's Web site, DoctorsKnow.Us, set up a national database of patients and their attorneys who have sued for malpractice. The site's stated purpose was to discourage frivolous lawsuits. But patients and their attorneys suggested the site essentially blacklisted some patients from receiving doctors' services.

The site was shut down in March, after news reports detailed difficulties people listed on the site had in getting medical care.

In New Hampshire, Tim Coughlin, president of the New Hampshire Trial Lawyers Association, recalls an angry confrontation last fall with RickMiller, a neurosurgeon from Portsmouth, N.H. Miller told Coughlin, 40, that because Coughlin lobbied against limits on malpractice suits, Miller would refuse him treatment.

"I don't do medical-malpractice work. I'm just a basic urban lawyer," Coughlin says. "He told me he had made a decision. I told him I thought that was uncalled for. He and I disagree on political matters.

"He's known as the best neurosurgeon on the Sea Coast. If I had a brain situation, I would hope he would operate on me regardless of my position" on malpractice suits. "But he's told me he wouldn't."

Miller describes his position as "firing a shot across (the) bow" of the trial lawyers group. "If Tim Coughlin came into the emergency room with some life-threatening emergency, I wouldn't hesitate to treat him. But if he came into my office because he had a herniated disk and wanted me to take care of him as an elective patient, I would decline to see him."

Miller, who says he has not been sued for malpractice, says he pays $84,151 a year for malpractice insurance. He says that after he paid business costs and taxes last year, his take-home pay was $64,000.

"That's less than my malpractice premium," Miller says. "This puts in perspective how desperate the situation is. Attorneys who choose to speak out and try to derail efforts at meaningful tort reform do so at some risk — that they will not be able to come to the best neurosurgeon in New Hampshire. They'll have to go elsewhere, the same way that patients will have to go elsewhere if neurosurgery is no longer available on the Sea Coast."

The refusal-to-treat tactic has generated the most controversy in the conflict over medical malpractice. But more disturbing to many lawyers are the efforts to silence doctors from testifying as expert witnesses on behalf of plaintiffs:

• In Florida, Tampa General Hospital announced plans in February to revise its employee "code of conduct" by prohibiting staff from testifying on behalf of plaintiffs. (They may testify as witnesses for hospitals and doctors.)

• Also in Florida, three doctors who were sued unsuccessfully for malpractice urged the Florida Medical Association to investigate a California doctor's testimony on behalf of the plaintiffs to "prevent the medical profession from being terrorized ... by similar 'experts.' "

John Fullerton, a San Francisco internist, has responded by suing the Tampa doctors for libel. He claims that he was defamed by statements the trio made in urging a review of his testimony. His lawsuit also alleges conspiracy, witness intimidation and violation of state racketeering laws.

• In Jersey City, the medical staff at Christ Hospital voted to remove George Ciechanowski as chief of staff, according to news accounts, because he backed malpractice legislation that many of his colleagues opposed.

Lawyers decry the refusal to treat lawyers and the efforts to silence physicians. The lawyers say doctors want it both ways: They want the legal limits on malpractice lawsuits, yet have no qualms about filing suits themselves.

When Hawk began his campaign against lawsuits, critics noted that he had filed one after his wife was in a car accident during the mid-1980s. Hawk's insurance company refused to pay the claim because he filed it three days after the legal deadline for doing so had expired, so he sued. A jury awarded his wife $525,000. But an appeals court threw out the case. It said Hawk's suit was moot because he had missed the filing deadline.

"I'm not saying somebody shouldn't have the right to sue," Hawk says. "I'm saying we should ... limit the awards, and in some way make the loser pay so that we don't have a lot of frivolous suits. An automobile accident is rarely a frivolous suit."

'I didn't do anything wrong'

In Texas, Leewright is considering whether to sue the Longview hospital for wrongful termination.

Leewright, 30, was hired on May 29, 2003, and assigned to work in the hospital's nursery. Leewright, whose fluent Spanish helped with Spanish-speaking patients, says she often was called to work extra shifts. "There was a nursing shortage. I wanted them to know I was a team player."

Leewright says she thought the job was going well. Then, on July 16, she was called in to meet with her bosses. She says they praised her nursing skills, but then told her that because her husband is a lawyer, she was being terminated.

A hospital spokeswoman, Victoria Ashworth, citing confidentiality, says "all personnel matters are private and not discussed with outside parties."

Leewright filed a complaint with the Texas Equal Employment Opportunity Commission, which did not make a finding on the merits of her case but issued a notice of her right to sue. Documents filed in that case outline the hospital's practices regarding spouses of lawyers.

The hospital, according to one document submitted by its attorney, has an "unwritten practice" not to employ spouses of lawyers who represent plaintiffs in medical malpractice or personal injury lawsuits "because of the perceived likelihood of a conflict of interest."

The profitability of Marty Leewright's law firm provides a financial benefit to his wife, the document says. "That gives her an incentive to pass on confidential information that she obtains as a Good Shepherd employee."

Leewright says the hospital never mentioned its unwritten practice regarding spouses when it interviewed her for the job. She says she did not violate hospital ethics.

"I didn't do anything wrong," she says. "They assume I'm going to be unethical. They assume that I'm kind of sneaky and will try to refer cases. That's absurd."

It took her until November to find work at Longview's only other hospital. Marty Leewright says his wife's experience has been difficult. "All the nursing students know about what's happened to her," he says. "It's just like a cloud that follows her around."