JEWISH HOSPTIAL COUNTERSUIT APPEARS TO CALL FOR IMPLEMENTATION OF LOSER PAYS DOCTRINE TO AMERICA.

Review of The Jewish Hospital  Defamation Lawsuit against Medical Malpractice Attorneys.  

   Some in the Jefferson County legal community have described the lawsuit filed by Jewish Hospital against two Louisville attorneys as a frontal assault on the legal profession.  Some have opined that this countersuit is intended to send a message to MedMal lawyers to back off the medical community.

Having obtained dismissals of the 96 complaints, Jewish Hospital has now filed a countersuit also known as a SLAPP suit (Strategic Lawsuits Against Public Participation).  This appears to be a call for the courts to implement the “Loser Pays? Doctrine in America.

   Under the “Loser Pays? Doctrine, the successful defendant in a civil lawsuit is awarded their attorney fees, costs and sometimes damages. That doctrine is used in England and other places, but has yet to gain a foothold in the United States. 

   We have reviewed the 41 page complaint filed in behalf of Jewish Hospital against Louisville attorneys Joseph L. White and Michael J. O’Connell.  The attorney for Jewish Hospital is Alice Barns Herrington of Woodward, Hobson & Fulton.  After the lawsuits were originally filed by White, Michael O’Connell entered the lawsuit as co-counsel. 

   Joseph White in 2004 filed lawsuits in behalf of 96 clients who claimed that they had contracted illnesses due to the unsanitary conditions at Jewish Hospital.  In statements to the press, Harrington alleged that White had failed to obtain a medical expert prior to the filing of his clients suits.   In a prior article on this subject, LawReader has pointed out that Kentucky case law does not require an attorney to consult with a medical expert prior to the filing of a medical malpractice claim.  (Although we noted it was the better practice.)   There is no statute or rule of procedure that requires consultation with a medical expert prior to the filing of a medical malpractice claim.

 The rule holds that if the question is a complex medical issue normally outside the understanding of jurors, then the party advancing such medical theory must present a qualified expert in order to get admission of the medical opinion before the jury. The case law in Kentucky has numerous examples of medical malpractice cases that were allowed to go to the jury without a medical expert being required.
 

                    No Medical Experts Relied on by Attorney White?  Upon review of the Jewish Hospital complaint prepared by Ms. Harrington and Jennifer Kincaid Adams, it appears that they admit in the body of the complaint that in fact White had secured the advice of medical experts.

On Page 10, line 56 of the Jewish Hospital complaint it is stated:
56. On October 11, 2005, White filed expert witness disclosures that he authored on behalf of the Plaintiff’s in the Miles lawsuit. The disclosures identified Rodney Luck M.D. (“Dr. Luck?) , an infectious disease physician; George Nichols, M.D. (Dr. Nichols?), a pathologist and former medical examiner; Donna Adkins, R.N. (“Ms. ; Adkins?), a registered nurse? and John Hyde, Ph. D. (“Dr. Hyde?), a hospital administrator.These same witnesses are stated in the Jewish Hospital complaint to have been listed by White in a number of the other cases.

The complaint details the theory of Ms. Harrington that justifies her claim that “White never obtained an opinion from any expert witness…?  

 First she qualifies the claim that White did not support his case with an expert by limiting the statement (which was not reported in her interview with the Courier-Journal) by adding the phrase “…regarding the significance of the infection data, and did not challenge the conclusion that the Hospital’s infection rate was below the national average.?

In fact the record reveals that these medical witnesses called by White were in fact deposed.

While their comments at the deposition may have failed to impress the trial judges, in fact they were called.  Anyone who has ever hired an expert will surely have war stories of how an expert was good in the initial interview, and then fell apart at the deposition. This is quite a different scenario from NOT HAVING CALLED AN EXPERT AT ALL.  We have not found a case in the authorities, where a failed expert justified a legal malpractice claim.

We would note that saying that “NO MEDICAL EXPERT? was relied on by White is one thing, but then saying that she only meant that he did not call an expert in  “infectious diseases? is quite a departure from her comments published in the Courier-Journal article. It should be noted that White had consulted with Dr. Luck who is identified in the Jewish Hospital complaint filed by Ms. Harrington as an expert in “infectious diseases?.  Dr. Luck was secured by White as an expert witness, but later Dr. Luck withdrew citing his busy schedule, but he stated in his letter of withdrawal, that he did not back down from his medical conclusions. 

We are not privy to what his medical conclusions were, but we cannot imagine White having secured Dr. Luck as an infectious disease expert if he had not opined that there was a causation link between the illnesses of the original plaintiff and the conditions in the hospital. 

  Ms. Harrington repeatedly in her complaint refers to the claim that “the Hospital’s infection rate was below the national average?. She repeatedly presents this statement as an absolute defense to medical malpractice by the Hospital.  She concludes that Had White submitted the Hospital’s data to a qualified expert, he would have learned that his allegations were not true.On the face of that statement in the complaint, we fail to agree with her reasoning.  Overall statistics do not disprove an individual case of negligence.

We would suggest that under this theory proposed by Ms. Harrington, that if a hospital had amputated a patient’s left leg instead of the diseased right leg, that this would not be actionable if the Hospital’s statistics reported less incidents of such an act than other hospitals. (???)   The law for hundreds of years has dictated that any act of negligence is actionable, but Harrington propounds a theory that as long as your statistics are pretty good, that you can amputate with a blindfold on the surgeon and the decision on which leg to amputate can be made by tossing a coin.

                           Pursuing a Settlement is an Abuse of Process?

Ms. Harrington, states in the complaint at Page 25, Line 158:
“158. Defendants employed the Bartley, Miles, McCutcheon, and Weber lawsuits in particular and the MRSA litigation in general, for the improper purpose of forcing JHSMH to offer a monetary settlement in the face of false and adverse publicity.?
“159. Defendants’ conduct amounts to abuse of process.?Ms. Harrington was kind enough in her complaint to settle all issues of fact with her repeated observation (See page 10, Line 55) where she concludes that all claims of unsanitary conditions were “false? by reasoning:

“Had white submitted the Hospital’s data to a qualified expert, he would have learned that his allegations were untrue.?

Again, she concludes that the hospital’s statistics as compared to other hospitals infection rates were low, and therefore she reasons, White’s claims of unsanitary conditions were “false?.  Ergo, We don’t need a jury in such cases, we just need to rely on “statistics? and White and O’Connell must ignore the fact that White received “600 telephone calls? regarding complaints from former patients about the cleanliness of the Hospital.  

Further, Ms. Harrington fails to mention the fact that a former employee of Jewish Hospital, a Mr. Glen Bray gave a deposition on July 6, 2004. Mr. Bray was employed to disinfect the hospital rooms.  He expressed concerns about several types of infections the rooms had been exposed to, and the fact that he wasn’t given the time to correctly clean some rooms. We will provide some excerpts from his deposition:

Page 5 Question 10- How long have you worked for Jewish Hospital?
Answer 11- Eight and a half years approximately.
Page 6-Question 20-What did you do at Jewish Hospital?
Answer 21- I was a building service supervisor in the environmental services area.
Page 8  Answer 12 line 19—A lot of times we weren’t able to do our job.
Question 21 – Why?
Answer 22 – Because the census would be so high at the hospital that they needed the room, and they couldn’t keep the room down in the amount of time I needed to clean the room because the chemicals needed to do its job.
Page 9- Question 23- did you express your concern to anyone in management that you were not being given enough time to do the cleaning work that you were—your duties called on you to do—called on you to do and were not being given the time to allow the disinfectants to do their work?Page 10-Answer 4- Yes, I did.
Page 12 –Line 5-Question- To your knowledge were patients ever placed in rooms without the room being cleaned?
Line 7- Oh, yes.
Line 8- Question -Few or many times?
Line 13 –Answer- A lot.Bray detailed examples of bodily fluids contaminating patient rooms at Jewish Hospital.  The original lawsuits were filed by White in January of 2004.  The Bray deposition was taken in July of 2004.

                                          Throwing the Kitchen Sink

    Ms. Harrington in the Jewish Hospital complaint says that the lawsuits were based on “false? claims so egregious that White and O’Connell should be subjected to the Jewish Hospital’s lawsuit alleging multiple claims of Abuse of Process, Slander Per Se, False Light, Invasion of Privacy, Interference with Prospective Business Advantage, Wrongful Use of Civil Proceedings, and should be subject to damages including Punitive Damages, Attorney Fees and Court Costs.  

   It should be noted that there is no direct claim of legal malpractice among these claims in the Jewish Hospital complaint. These multiple legal theories are an aggregation of every legal theory but the kitchen sink.  We hope she has consulted with an expert before filing these claims, as her new standard for the filing of lawsuits might just boomerang. Under her theory, if she fails in any of these claims, then she should be subject to a countersuit by White and O’Connell.

                  The claim of Jewish Hospital appears to be based on two theories.


1.      An attorney should not file a medical malpractice lawsuit without an expert medical witness supporting the claim. While that is a good thing to do, it is not a requirement under Ky. Law.

This raises a number of possible defenses that Jewish Hospital must overcome.

“Kentucky has adopted an exception that allows medical malpractice claims to proceed without expert testimony where the negligence is so apparent that a layperson with general knowledge would have no difficulty recognizing it.? See Jarboe v. Harting, Ky., 397 S.W.2d 775, 778 (1965); Harmon v. Rust, Ky., 420 S.W.2d 563, 564 (1967); Maggard v. McKelvey, Ky. App., 627 S.W.2d 44, 49 (1981).

While White may have had medical experts in hand, he also was entitled to consider that it was possible that an expert wasn’t necessary if he believed that jurors would be allowed to make a finding that ‘if a patient without an infection is placed in a room full of infection, that the new patient may contract the infection.’  White and O’Connell had four medical witnesses.  The trial courts disallowed the testimony of three of these witnesses and one withdrew before giving testimony. The test that must be imposed by the court is not what the attorneys result was, but whether the attorneys were reasonable in their belief at the time of the filing of the lawsuits and whether or not that violated the practice followed by other lawyers..

Further White and O’Connell had the deposition of Mr. Glen Bray, the person in charge of cleaning up infections found in patient rooms, and who testified that he was ordered to turn over unclean and infected rooms to patients.  They had 600 telephone calls reporting illnesses contracted by patients of Jewish Hospital.

It is common knowledge that infections can spread from an infected person to a non-infected person.  While two of the trial judges, after the lawsuits were filed, disallowed the testimony of the plaintiff’s medical “experts?, at the time of the filing, the court must ask ‘was White acting negligently or “falsely? by believing his experts would be able to qualify?’

Was it a fraudulent act that White may have believed the initial medical opinions of the experts he consulted with?

We know of no legal authority that makes a lawyer responsible for negligence when his expert fails to deliver in a manner later found by the trial court to be insufficient for admission into evidence.

We have found no case ruling that requires a medical expert witness being in hand prior to the filing of a medical malpractice lawsuit. (We do not know when the four experts White secured were secured by White.)2. The lawsuits were never supported by any facts and all allegations were “false? in all material respects, and were instituted only for “the improper purpose of forcing JHSMH to offer a monetary settlement in the face of false and adverse publicity.?

Jewish Hospital must show that White knew the claims in his original complaint were false.  The only support offered in the 41 page complaint is that the hospital’s statistics as compared to other hospitals was pretty good.  The reasoning presented is that since White didn’t immediately accept this reasoning as the gospel truth, that this is proof of his fraudulent intent. 

We have never heard of the legal theory that made the seeking of a settlement an improper purpose. We have read nothing in the newspaper that appears to be Slander Per Se, but that is a matter of law for the trial court to decide.  White said the hospital rooms were not clean, and that the patients claimed they contracted their illnesses by reason of the lack of hygiene.  It would appear that if White received “600 telephone calls? from people reporting problems at the hospital, and only accepted 96 cases from that group, that some degree of discretion and professional judgment was exercised.


We have never heard of a legal theory that made it actionable for an attorney to submit to an interview by the press. (Ms. Arrington, herself has been interviewed at least once and is now, after the Courier-Journal story by Andy Wolfson, seeking a gag order preventing White and O’Connell from speaking to the press.

 The comments made by White in his original lawsuit and in court are privileged.  The comments made to the press may not be privileged, but then again they just may be. One of the defenses to a slander claim is the concept that fair comment on a matter of public interest is protected speech. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

It will be interesting to see if Jewish Hospital can bear the heavy burden of proof they have created for themselves.

     The bottom line is that Jewish Hospital after successfully extricating themselves from 96 lawsuits, has shown their intent to make an object lesson for anyone suing them.  They did not consider the sage advice in these matters that goes…? The publicity that results from a defamation lawsuit can create a greater audience for the false statements than they previously enjoyed.?   Jewish Hospital is not satisfied with dismissal of the 96 lawsuits, they now seek to crush the opposition. They now attempt to silence all the people who have made claims of unsanitary conditions at their facility, and discourage public discussion of an issue of great concern to the public.
   

After the original publication of this article, the Courier-Journal published the following editorial and news article.  Note that they say only 84 suits have been dismissed.

Courier Journal Article   May 31, 2007

Hospital drops request for gag order in lawsuit (see article)


 Jewish Hospital no longer wants a judge to bar lawyers from discussing its suit against two lawyers who unsuccessfully sued the hospital over allegedly unsanitary conditions.
 

Courier Journal Editorial   May 31, 2007

“People have some legitimate expectation of privacy. Companies — especially those dealing in life and death services for the public — don’t. “
 Gagging on the gag order
 Jewish Hospital did the right thing by withdrawing its request for a gag order, which would have prevented lawyers on both sides from publicly discussing the hospital’s suit against attorneys Joe White and Mike O’Connell.
 Gag orders are presumptively suspect. The system of justice in this country is supposed to operate in the open.
 This was a particularly bad case in which, instead, to invoke secrecy. It arose in reaction to suits filed by Mr. White and Mr. O’Connell alleging unsanitary conditions in Jewish Hospital facilities that could have led to serious consequences for patients.
Clearly, the public has a huge stake in any such dispute, involving one of the region’s primary health care providers. And it’s extremely unlikely that a judge would have agreed to subordinate the public’s need to know about such matters to a hospital company’s desire for secrecy.
 People have some legitimate expectation of privacy. Companies — especially those dealing in life and death services for the public — don’t.
 What’s hard to figure is why Jewish would have gone to court in the first place, attacking Mr. White and Mr. O’Connell, since those two attorneys’ numerous suits against the health care combine already had come to naught. It was inevitable that such an action would present numerous opportunities for repeating all the scary allegations that the hospital so earnestly wanted to defeat and silence.
 As for requesting the gag, so-called “protective orders” rarely are approved, and when they are it’s usually to prevent publicity that would taint a jury pool and prevent a fair trial. There was no justification for fearing that kind of extreme media coverage in this instance.
 Gary Weiss, who represents one of the two lawyers, offered a more persuasive explanation: The gag was sought to spare the hospital from ridicule and bad publicity. Which it’s getting anyway.

 

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