Blog

By: David J. Cutshaw, Attorney

In May of 2016, we contrasted the ability of a private citizen to sue a doctor for a violation of the child abuse reporting statute and the right of a doctor to sue a lawyer for an inadvertent disclosure of a doctor’s name in a medical malpractice complaint.  Since May of 2016, Indiana Courts have continued to refuse to imply a private right of action for violations of other statutes in the following circumstances:

Doe v. Ind. Dept. of Child Services, 81 N.E. 3d 199 (Ind. 2017):  The Indiana Supreme Court refused to infer a private right of action where the identity of a confidential informant who reported child abuse was released by DCS directly to the suspected abuser, resulting in threats to and harassment of the informant and his family.  The statute in that case required DCS to keep the identity of the informant confidential.  The Indiana Supreme Court held the informant had no legal recourse against DCS, adding more meaning to the no-good-deed-goes-unpunished mantra and creating the danger that other informants will hesitate to report child abuse at his or her own physical peril.

Shirey v. Flenar, 89 N.E. 3d 1102 (Ind. Ct. App. 2017):  The Court of Appeals refused to recognize a private right of action when a physician lost or destroyed a patient’s records contrary to the requirements of an Indiana statute that requires the doctor to preserve a patient’s records and produce them to the patient when properly requested.  In this case, the patient was unable to sue her doctor who did not produce her medical records for her inability to fully document her personal injury claim due to the lost/destroyed records.  Again, doctors can sue lawyers for inadvertently disclosing their involvement in a medical malpractice suit, but a patient cannot sue a doctor under the circumstances in Shirey.

By: David J. Cutshaw, Partner and Gabriel A. Hawkins, Partner

Cohen & Malad, LLP has been involved in several what we call mass tort medical malpractice cases.  In essence, these cases involve situations where a doctor or surgeon has performed unnecessary procedures, not for the patient’s benefit, but for the benefit of the doctor’s pocketbook or ego.

As an example, an ENT in northern Indiana was performing unnecessary sinus surgeries.  He advertised that he could fix sinus problems and snoring.  He would bring the patient into his office, take a sinus CT scan (an xray of the sinuses), tell the patient that he or she had extensive sinus disease (when he or she did not), and then schedule the patient for seven to eleven sinus surgeries that cost tens of thousands of dollars.  He did not do the surgeries he reported and got paid for, and instead just poked a hole in the patient’s maxillary sinuses (which often made the patient worse.)  When we filed several claims against the ENT Surgeon, he cashed out, converted his cash to diamonds and fled the country.  He remained on the run for five and one-half years until he was apprehended in the Italian Alps in a tent.  Those cases were settled for millions.

As another example, we also have claims against a group of cardiologists who were implanting unnecessary pacemakers and defibrillators—and in many cases falsifying medical records to make it appear that those devices (which have wires that are screwed into the patient’s heart muscle) were appropriate—when they were not.  We are currently looking at other cases where an ENT was billing for procedures that he did not do, similar to the case of the ENT in northern Indiana noted above.

When these cases arise, doctors, medical associations, and the public blame the lawyers, claiming the lawyers are only trying to line their own pockets.  But the lawyers did not perform the unnecessary procedures; the doctors did.  Filing these cases often puts a stop to this predatory conduct and puts the doctor out of business, so to speak.  When this occurs, the doctor cannot hurt or endanger patients anymore; and we are very proud that we have been able to stop doctors from this conduct through these mass tort medical malpractice case filings.

In the case of the northern Indiana ENT, doctors in his area knew what he was doing for at least two years before we began filing lawsuits, but did nothing to stop it.  In Indiana, there is a regulation that requires doctors to report other doctors who engage in improper conduct to the Health Professions Bureau, formerly known as the Medical Licensing Board, which will investigate the matter and take action to suspend or revoke the offending doctor’s license to practice medicine.  844 IAC 5-2-8 provides:  “A practitioner who has personal knowledge…that another practitioner…has engaged in illegal, unlawful, incompetent, or fraudulent conduct in the practice of medicine shall promptly report such conduct to a peer review or similar body….This provision does not prohibit a practitioner from promptly reporting said conduct directly to the medical licensing board.” (emphasis added).  The doctors who knew about this unethical and harmful conduct did not report the offending doctor and the conduct continued for at least two more years.

There are also ethical standards that doctors should live by which have been issued by their professional associations.  For example, the American Board of Internal Medicine Foundation (which governs Internal Medicine doctors, Cardiologists and Electrophysiologists) has issued an ethical pronouncement which states:  “As members of a profession, physicians are expected to work collaboratively to maximize patient care, be respectful of one another, and participate in the processes of self-regulation, including remediation and discipline of members who have failed to meet professional standards….Physicians have both individual and collective obligations to participate in these processes.”

If doctors took these legal and ethical considerations to heart, there would be no need for mass tort medical malpractice cases or lawyers who often have to step in an put a stop to such conduct which harms patients, raises the cost of medical care, and deprives patients who actually need care from receiving proper treatment.  So, the next time you are tempted to blame the lawyers, look below the surface and understand that the fault lies elsewhere.