Earlier this year, a Philadelphia judge sanctioned a medical malpractice lawyer for intimidating a medical expert witness. Apparently, the malpractice lawyer was unhappy with an opinion offered by an opposing expert. Rather than simply do her job by attacking the merits of the opinion, the lawyer decided to personally attack the medical expert by contacting the expert's employer, a hospital, to complain about the opinion offered by their employee. Fortunately, when the judge learned about the lawyer's misconduct, the judge promptly sanctioned the lawyer for her appallingly unethical behavior.
In Sutch v. Roxborough Memorial Hospital, the plaintiff filed a medical malpractice lawsuit claiming his wife unnecessarily died because a doctor failed to follow up on diagnostic testing ordered for his patient. Had this been done, the plaintiff maintains his wife would have been diagnosed sooner and received timely cancer treatment. Instead, the doctor never communicated the diagnostic findings to the patient or the patient's primary care physician. Consequently, the patient's lung cancer went undiagnosed until it was too late for treatment to make any real difference.
In most medical malpractice cases, the plaintiff is unable to retain a local medical expert willing to publically criticize a fellow doctor in their community. As result, most plaintiff lawyers must look out-of-state for their medical experts. However, in the Sutch case, the plaintiff's lawyer was able to retain a local Philadelphia doctor willing to testify against a fellow Philadelphia doctor. This apparently infuriated the defense lawyer for the doctor because she went on a personal attack against the local doctor for testifying against her client. Specifically, the defense lawyer contacted the doctor's employer/hospital, telling the hospital the doctor offered an improper opinion against another local doctor. If this was not bad enough, the lawyer then went one step further by telling the hospital that the conduct of its physician could expose the hospital, itself, to significant liability on future matters against the hospital.
When the plaintiff's lawyer found out what the defense lawyer did, the plaintiff's lawyer filed a motion against the defense lawyer. In the motion, the plaintiff's lawyer sought sanctions against the defense lawyer "for violations of ethical rules, improper conduct and obstruction of justice." The Judge agreed and promptly sanctioned the defense lawyer. In doing so, the Judge forbid the lawyer from any further attempts to contact the medical expert or his employer and reserved ruling on further sanctions until a later date.
As a practicing medical malpractice lawyer, I was disgusted when I read this story. When any lawyer resorts to harassment or intimidation to try to win their case, it undermines the entire legal process. Unfortunately, the behavior of this Philadelphia lawyer is not an isolated incident for the profession. There have been numerous examples of intimidation tactics by lawyers--some worse than those outlined in the recent Philadelphia case. When highly unethical behavior by a lawyer is uncovered, it should be exposed publically, no matter how embarrassing it may be to the profession. Public exposure of unethical behavior by any lawyer serves two purposes: 1) it punishes that lawyer; and 2) deters similar misconduct by that lawyer and other lawyers considering similar behavior. In the end, this can only benefit our legal system.
Litigationandtrial.com, Defense Lawyer Sanctioned For Expert Witness Intimidation In Medical Malpractice Case, May 11, 2012.