Ethics of compiling a list of malpractice litigants

[Guest Steve U of T]

Here's a neat article I found in the New York Times today:

www.nytimes.com/2004/03/0...anted=2&th

(you need to login to access the full article, but registering an account is free)

 

A group of Texas doctors have compiled a list of anyone ever involved in a malpractice lawsuit (plaintiffs, lawyers, expert witnesses for the plaintiff, etc.), whether frivolous or not. Do you think this is ethical? On the one hand, patients who may have had good reason to sue are blacklisted and will have great difficulty finding a doctor in Texas. On the other hand, doctors should have a right to know about the person who sues every doctor that ever saw him.

 

Here's the link to the database:

doctorsknowus.com/

 

In Texas, Hire a Lawyer, Forget About a Doctor?

By RALPH BLUMENTHAL

 

Published: March 5, 2004

 

HOUSTON, March 4 — As domestic security director for 16 north Texas counties, Greg Dawson of Fort Worth has many dealings with doctors and hospitals, preparing for a terrorism emergency he hopes will never come.

 

So, Mr. Dawson said, he was stunned this week to find that his name had been added to a little-known Internet database for doctors attacking "litigious behavior." His offense: filing a medical malpractice lawsuit against a Fort Worth hospital and doctor over the death of his 39-year-old wife, whose brain tumor was missed, and winning an undisclosed settlement.

 

For months, an obscure Texas company run by doctors has been operating a Web site, DoctorsKnow Us.com, that compiles and posts the names of plaintiffs, their lawyers and expert witnesses in malpractice lawsuits in Texas and beyond, regardless of the merit of the claim.

 

"You may use the service to assess the risk of offering your services to clients or potential clients," the Web site says.

 

For fees listed as low as $4.95 a month for the first 250 searches and thereafter 2 cents a search, subscribers are invited to search the database "one person at a time or monitor any sized group of individuals for litigious conduct." They can also add names to the database "from official and unofficial public records." Whether that could include a doctor's own files is not clear.

 

"They can sue but they can't hide," says the Web site.

 

A founder of the group, Dr. John S. Jones, a radiologist in Terrell, near Dallas, declined to respond to questions, saying through a lawyer, Vincent A. Bacho, that he had given one newspaper interview and had agreed not to give another before it was published.

 

The sponsors draw no distinctions among cases in what they say is the first effort to use public sources to compile a list of litigants in "predatory lawsuits" that are causing a medical crisis. One couple was put on the list after winning $40.9 million over a botched operation by a drug-dependent surgeon.

 

Mr. Dawson said he recently had trouble finding a doctor for his son and considered it possibly retaliatory. "I thought how amusing, I'm blacklisted," he said.

 

He said he learned he was on the list from Texas Watch, a consumer research and advocacy organization based in Austin.

 

Dan Lambe, executive director of Texas Watch, said: "Medical malpractice patients need more care, not hurdles. It's offensive on different levels."

 

One other doctor besides Dr. Jones, Hoyt Allen, is named on the Web site run by DoctorsKnow.Us, which registered with the State of Texas on Jan. 30, 2003. Dr. Allen did not respond to messages left with his medical office in Kaufman, also near Dallas. The group lists an address in Mesquite, Tex., that has no telephone. No one responded to messages sent to the group's e-mail address.

 

The American Medical Association said that it had just learned of the group and that it saw no ethical issues at stake.

 

"There's no question that physicians are totally frustrated by the relentless assault on the medical profession by trial lawyers," said Dr. William G. Plested, chairman of the A.M.A.'s board of trustees and a cardiovascular surgeon in Santa Monica, Calif. Dr. Plested said the government already maintained a database of doctors who had been sued, for use by medical professionals.

 

"Is it fair to come to me if you've sued the last 10 physicians you've seen and never collected?" he asked. "Is it fair for me not to know that?"

 

The Texas Medical Association referred questions about the group to its general counsel, Rocky Wilcox, who responded in a short statement: "We are not a part of and, in fact, don't even know who is running this service. The fact that it exists testifies to the continued frustration physicians feel as they try to care for their patients amidst the epidemic of lawsuit abuse."

 

How many people are listed on the Web site or what happens to them when they seek further medical care is not clear.

 

But Mr. Dawson, 42, director of Emergency Preparedness Department for the North Central Texas Council of Governments, said that since last month he had been seeking some minor medical attention for his 18-year-old son and been turned away by half a dozen doctors. They said they had full schedules or rejected his insurance, he said.

 

Among other people listed were Dolores and Ricardo Romero of Humble, Tex. In 1998, Mrs. Romero said, her husband, then 40, went into the hospital to have a herniated disk repaired. The operation went awry and he nearly bled to death on the operating table, suffering serious brain damage. Now, he can barely walk or see and needs help feeding himself and using the toilet.

 

The Romeros's lawsuit revealed that the surgeon, Dr. Merrimon Baker, was addicted to painkillers, had once left a surgical sponge inside a patient, and on other occasions operated on the wrong hip and amputated the wrong leg. The jury, finding that the hospital acted with malice since it knew of the doctor's history, awarded the Romeros $40.9 million. A higher court overturned the malice finding and an appeal is pending.

 

Dr. Baker, who is practicing outside Houston, did not respond to a message left with his office.

 

"Well, I think it's ridiculous," Mrs. Romero said of her appearance on the litigants list. "My husband's a victim of a doctor's malpractice — it's not frivolous."

 

A prominent Texas plaintiff's lawyer, Richard W. Mithoff, who represented the family and also turned up on the list, said he was not totally surprised. "I've heard rumors of such lists but I've never seen anything surface until now," Mr. Mithoff said.

 

Another couple listed, Rick and Sheila Beeson of Wichita Falls, Tex., also voiced dismay. Their son, now 7, suffered severe brain damage from untreated low blood sugar at birth. They settled with the hospital and doctors for $9.4 million.

 

"All we did was try to help our son," Mr. Beeson said. "My job as father is to look out for him, his financial security since they took all that away from him. It's not fair to do what we have to do and be put on a blacklist."

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