The Gist: While neither Kentucky Rules of Evidence and Procedure, nor case law, require the hiring of medical experts before the filing of a medical malpractice claim, this case, regardless of outcome, is a cautionary tale recommending such preparation. At the least, one needs to be prepared to outline the probable cause relied on prior to filing.
— Keith McCormick, JD
— By Dan Clifford, publisher
Attorneys Joe White and Michael O’Connell sued Jewish Hospital of Louisville, Ky., representing 96 clients who had sought relief from unsanitary conditions at the hospital that resulted in illness and death from hospital-acquired staph infections.
The hospital, led by outside counselor Alice Herrington, countersued the attorneys on May 1 claiming, “Abuse of Process, Slander Per Se, False Light, Invasion of Privacy, Interference with Prospective Business Advantage and Wrongful Use of Civil Proceedings,” according to Lawreader.com.
The countersuit also asked for damages including punitive damages, attorney fees and court costs.
Lawreader stated that “It should be noted that there is no direct claim of legal malpractice among these claims…. These multiple legal theories are an aggregation of every legal theory but the kitchen sink. We hope she [Herrington] 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.”
Part of the underpinnings of the suit involves the proper procurement of expert witnesses, and too much leakage of facts to the press.
Herrington, in a story in The Courier-Journal, said “They are missing the point of our lawsuit — that before they filed their cases they had no medical expert who connected the alleged conditions at Jewish and the health conditions of particular patients.”
But Lawreader 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… 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 flip-flopping debate pivots on a number of issues:
• The hospital, via the The Courier Journal, claims that the plaintiffs did not hire a medical doctor or other experts before filing any suits.
In the hospital’s counterclaim, however, the claim notes that four experts had been retained. In fact, they had been deposed, according to Lawreader.
One of the experts was Donna Adkins, RN, LNCC, who is a member of this newspaper’s editorial board.
Adkins said, “I think he [White] had already sued when I was brought on board. But it’s normal to name experts up until the judge’s deadline.”
One expert, Rodney Luck, MD, had to drop out of the case citing a busy schedule, but was emphatic in his theory of medical causation.
• The hospital counter-complaint states that its infection rate was below the national average, and that had White “submitted the… data to a qualified expert, he would have learned that the allegations were not true.” This statement advances a theory that overall statistics preclude and defend individual actions, a theory that Lawreader.com found absurd.
And White supposedly had the advice or testimony of Dr. Luck.
• Jewish Hospital pointed to the fact that the plaintiffs moved to postpone the trials 22 times, seeming to allege no real intention to go to trial. Lawreader noted that even if settlement is a lawyer’s only goal, it may not be improper.
• But hard data abound.
Lawreader stated that White had 600 telephones calls from former patients attesting to illnesses caught while being patients at Jewish Hospital, and 96 plaintiffs. White turned down 275 others, according to Lawreader. Expert Adkins confirmed that there was a high number of plaintiffs and potential plaintiffs.
White also had deposed a former environmental services employee who testified to unclean conditions involving bodily fluids and inadequate cleaning. But a less than perfect sanitation record could beg the “M*A*S*H” defense, as offered by Charles Duffy, COO of a regional hospital in central Kentucky. Duffy quoted one of his hospital administrator mentors, who was a solider on Okinawa in WWII, who said, “Miracles were performed on the battlefield, and there wasn’t a shred of wallpaper on those tents.”
• While White made comments about the hospital’s alleged shoddy hygiene to the press, Herrington spoke to the press as well, noted Lawreader, and fair comment on a matter of public interest is usually considered to be protected speech. Also, a large company dealing with public matters of life and death arguably does not enjoy a right to privacy.
The hospital asked for a gag order in this case, but later dropped the request.
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