Med Mal lawyer gets sued by his client and by defendant.

Nov. 28, 2007 – Andy Wolfson in the Courier Journal, reports a medical malpractice case from Louisville,  in which the surgeon turned attorney was sued by his client, and by the physician he sued for the client.  Both claims against the experienced  Tennessee attorney Laurence Dry were successful.

This demonstrates the danger of hurrying a case when the statute of limitations is looming.  This is not the first example we have seen at LawReader where  an attorney filed the medical malpractice lawsuit before he had an independent expert medical opinion in hand in order to beat the statute of limitations.

We recommend that when that million dollar case comes in the front door, if the statute of limitations is about to run out, that you either immediately get an expert opinion in writing, or decline the case.

Wolfson reports that the plaintiff’s attorney said he had an oral expert opinion but the expert denied this.  Therefore we had a he said and expert said situation, and the attorney lost that one.  So get your medical expert witness opinion in writing!

Wolfson reported in part:

Dry was found on one hand to have botched a medical malpractice case “so good he couldn’t lose it” and on the other hand to have filed a case “so bad he never should have taken it.

A Jefferson Circuit Court jury found last month that Dry, of Oak Ridge, Tenn., should pay $80,000 for filing a groundless lawsuit against Dr. John R. Johnson, a prominent surgeon who is director of the Norton Hospital Leatherman Spine Center.

Dry, himself a surgeon-turned-attorney, paid the judgment last week.

Dry’s insurer already had paid $750,000 in March to settle a legal malpractice claim brought against him by his former client, John Conley, who had sued Johnson and other doctors for allegedly causing him to lose most of his vision during back surgery.

Conley, who now is legally blind, claimed Dry bungled his court case, which was dismissed.

Johnson’s lawyer, Lee Sitlinger, said the bizarre outcome “reiterates the fact that attorneys have obligations to our clients as well as to the people we sue, particularly professionals.”

Johnson, the chairman of the University of Louisville School of Medicine’s orthopaedic surgery department, said the case shows that lawyers must thoroughly explore their claims before suing doctors.

Dry’s theory was that Conley’s blindness was caused because Johnson and another back doctor used two incompatible blood-control products during the procedure. A packaging insert with one of the products warned that it hadn’t been tested to see if it could be used safely with the other, said W. Kennedy Simpson, who later became Dry’s lawyer.

But despite a rule requiring lawyers to find a medical expert supporting their claim before suing for malpractice, Dry and Rowe failed to do so before suing Johnson and others on Nov. 1, 2001, according to court records.

Dry said he came into the case late, and with the statute of limitations about to expire, had no choice but to do most of his research after filing the complaint.

But one of the expert witnesses he claimed he found later to support his theory insisted in a deposition for Johnson’s case that he had said no such thing. The other expert witness had Alzheimer’s disease and couldn’t be interviewed, Sitlinger said.

With no experts, Dry and Rowe decided the case had no merit and they dropped out of it in November 2004, according to court records. It eventually was dismissed.

But Johnson, the orthopedic surgeon, had spent two years defending himself. And Conley, blind and unable to work, was left without compensation for his impairment.

No probable cause

Conley and his wife sued Dry and Rowe, claiming that they overlooked what the Conleys said was the real cause of his injury — the alleged failure of an anesthesiologist to check the position of his head, to ensure there wasn’t pressure on his eyes as he lay face down through seven hours of surgery.

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