GLORIA BUTLER BALDWIN

It was a case of mistaken identity when Ridgeland attorney Charles E. Gibson III first sued McComb otolaryngologist Lawrence Stewart. But, what started out in error has now cost Stewart thousands of dollars to defend his case. It’s a prime example that pits doctors against zealous lawyers with both digging their heals in and not budging on their own principles.

The suit, which Stewart claims was most likely meant for his deceased father, Edsel F. Stewart who had been an OB/GYN, claims Stewart prescribed Stadol to a patient and neglected to tell her of the drug’s addictive risks. Stewart told the courts he hadn’t been worried when receiving the court order to turn over his records because, although he had a patient with a similar name, she was from a different country plus he had no records showing a Stadol prescription. In addition, Stewart said the patient said it wasn’t her that was suing him. The lawsuit also named Stadol’s manufacturers, but was settled in 2005. The U.S. District Court for the Southern District of Mississippi granted Stewart’s request to be dismissed from the case and ordered Gibson to pay his legal fees. To date, Gibson hasn’t paid a cent. Gibson is appealing the rulings of two separate federal judges who awarded payment to Stewart, to the 5th Circuit Court of Appeals in New Orleans.

Stewart said it isn’t fair that he must pay unnecessary attorney fees caused by a member of the court and Gibson isn’t being penalized at all.

“It’s just not right,” Stewart said. “Mr. Gibson can appeal it for free because he does his own legal work except paying a $15 filing fee. He’s not out anything. But I have to pay $150 an hour to keep defending myself in the appeals when two federal judges have already said he has to pay me. The reason I haven’t given up is because I’m stubborn. I’m spending $15,000 to recover $7,000.”

Stewart said although rules are in place and there are sanctions for abuse of the process to protect “’people like him from people like Gibson,” the only way to win in our justice system is to stay out of it.

“There were a number of these suits two or three years ago right before the tort reform new law went into effect,” he said. “I can’t read their mind but I think they were trying to beat the deadline and take advantage of the old laws. I found myself served in about eight or nine of these cases and another 10 to 12 cases I found my name associated with. I found myself on the mailing list for these patients — several of which I had no idea who the case even was — other than I was getting copies, so I assumed I was somehow involved. But, in every one of these cases, I was able to get myself removed from the suit by calling or writing the attorney that they had the wrong guy. Most were easy to get dismissed. Not this guy.”

Lawrence said it took a year of him telling Gibson he had the wrong guy before Gibson ever asked his client. When he finally did ask her, she immediately informed him he did have the wrong doctor. It wasn’t Dr. Lawrence the ENT, but Dr. Lawrence the OB/GYN. Still, Gibson wouldn’t drop the case.

Mississippi State Medical Association (MSMA) general counsel Linda McMullen told American Medical Association News the case is among the worst they have seen. The MSMA and the American Medical Association/State Medical Societies Litigation Center contributed financially to Stewart’s case.

“This is a real egregious example of a lawyer not doing his due diligence on the front end, and the costs that can mount up on the back end (for doctors),” McMullen said. “And yet it would have been so easy to fix.”

Stewart’s lawyer, Lisa W. McKay, said mistakes aren’t uncommon, but what was different was that this one wasn’t quickly and readily corrected.

Gibson claims the suit was filed in good faith and he corrected the name on the affidavit once his client confirmed she had the wrong doctor listed as defendant. Therefore, he said, he shouldn’t be punished.

The lawsuit is a feather in the cap of those supporting comprehensive tort reform legislation. Frivolous lawsuits against the medical community cause premiums to skyrocket and force many doctors out practice or at the least, out of certain communities.

Medical Justice News (MJN) reported in July that at any given moment, approximately 60,000 medical malpractice suits are being tried in the United States. But MJN also states that while the medical tort system is designed to deter unsafe practices and to make negligently injured patients whole, that’s not the case. Nor does it prevent a high frequency of frivolous lawsuits.

For example, California has enacted reforms, which limit certain types of damages to plaintiffs, but it hasn’t slowed frivolous lawsuits from being filed. Through the reform, a California obstetrician will pay between $30,000 and $50,000 annually in liability premiums as compared to $170,000 in New York. But California doctors are sued more often that those in New York. That, according to MJN is in part due to tort lawyers seeking to compensate for decreased payments by pursing a greater number of claims.

Louisiana is considered a tort reform success story, according to MJN. The state’s dominant malpractice insurer reported it spent more money on defending claims than on settlements and judgments. Louisiana law requires cases to go before a screening panel before a lawsuit is filed. The winner, usually the physician, is forced to pay the cost of the panel, but not the excessive amounts for a claim. So although he has to pay, he loses less than he would through a lawsuit.

Said Stewart: “My point is this: Whenever an attorney files these junk lawsuits and they’re groundless, it doesn’t cost them anything but a couple of hours of their time. But it costs the doctors several hundred or thousands of dollars to fight it. Even if you win, you don’t win. You’ve got time put into it; it costs money and effects your reputation. Attorneys know this and hope if they drag it out long enough, you’ll just go away and drop the whole thing.”
Gibson did not respond to numerous interview requests.



December 2007