Thursday, May 17, 2007

United States: Connecticut Attorney General Investigating Possible Anticompetitive Impact of Practice Guidelines

16 May 2007
Article by Judith L. Harris

Medical societies and associations of health professionals routinely adopt and disseminate practice guidelines, opine in position papers, provide expertise, and engage in advocacy before policymakers and, increasingly, before third-party payors on issues of concern to their membership. While these activities are generally designed to promote the highest quality patient care, they often, too, are in the best interest, sometimes the best pecuniary interest, of their members, and sometimes also have the effect of excluding certain products and services from the market.

The recent announcement by Richard Blumenthal, Connecticut’s Attorney General, of an investigation into the potentially anticompetitive impact of practice guidelines for the treatment of Lyme Disease—issued this past fall by the Infectious Diseases Society of America ("IDSA" or "Society")—has some in the scientific community crying "foul." At a minimum, however, Mr. Blumenthal’s investigation should serve as a caution to professional groups contemplating action that could adversely affect competing practitioners or the availability of treatment options.

Because of the very character of professional associations and learned societies, comprised as they are of individual competitors, and because of the nature of their activities and the reach of their influence, such groups and their members must be highly attentive to the antitrust laws. While some of their actions, such as "lobbying" governmental entities or legislatures on issues of collective concern, are generally immune from antitrust scrutiny, not all the activities of professional associations and learned societies are so protected.

It has long been recognized that by petitioning the government for certain forms of relief, competitors might be able to exclude others from commercial opportunities and thereby cause significant harm to competition. Notwithstanding such potentially anticompetitive results, however, courts have conferred antitrust immunity upon a wide range of activities designed to influence governmental bodies, as long as those activities do not fall within a "sham" exception. This exemption from the antitrust laws for legitimate efforts to influence legislative, administrative or judicial processes is known as the Noerr-Pennington doctrine, so named for the two U.S. Supreme Court cases in which the immunity was originally articulated. See, Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961); United Mine Workers v. Pennington, 381 U.S. 657 (1965). See also California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972).

However, many actions by professional associations, including those that tend to have the effect of excluding competitors or groups of competitors, are subject to antitrust scrutiny. As a general proposition, an association may be liable under Section 1 of the Sherman Act, 15 U.S.C. § 1, for engaging in exclusionary conduct intended to harm providers of products or services that pose a potential competitive threat to its members. Indeed, courts have frequently found professional associations or societies liable for unreasonable exclusionary behavior, including behavior growing out of the adoption of standards, practice guidelines and the like. See, e.g., American Society of Mechanical Engineers, Inc. v. Hydrolevel Corp., 456 U.S. 556 (1982); Radiant Burners, Inc. v. Peoples Gas Light & Coke Co., 364 U.S. 656 (1961).

Conduct has generally been deemed "exclusionary" not only when the exclusion is literal—such as when an authoritative standard-setting body uses a biased process to declare a product or service to be non-compliant with its standards—but also, for example, when an association of competitors engages in a coordinated campaign of disparagement intended to limit market access by others. In order to evaluate the legality of such conduct by a learned or professional society or association, courts generally apply a "rule of reason," meaning that joint conduct is deemed unlawful only where it is found to have resulted in an "unreasonable restraint on competition." Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 49 (1977); see also, FTC v. Indiana Federation of Dentists, 476 U.S. 447, 458 (1986); Wilk v. American Medical Ass’n, 895 F. 2d 352, 359 (7th Cir. 1990).

In order to prevail in a rule of reason analysis, it must first be shown that a defendant possesses power in the relevant market and, then, that the actual or potential negative impact of the challenged conduct on competition in that market outweighs any putative benefits to consumers (or patients). Associations are typically treated as possessing market power if, either directly or through their members, they comprise a substantial portion of competitors in the relevant market or otherwise can be shown to wield substantial influence over competition in that market.

Claims have been brought with some regularity against medical associations and physician groups based also on unreasonable or unfounded disparagement of potentially competitive products or service providers. See, e.g., Summit Health, Ltd. v. Pinhas, 500 U.S. 322, 326-27 (1991) (antitrust claim properly stated against ophthalmologists who sought to prevent competition from a practitioner of a lower-cost surgical procedure by disseminating an unfair and biased peer review report); Wilk v. American Medical Ass’n, 895 F. 2d 352, 356–57 (7th Cir. 1990) (affirming an antitrust judgment against the AMA based on disparaging and unfounded characterization of chiropractors as "an unscientific cult" and other conduct intended to "eliminate chiropractic" competition), but see, Schachar v. American Academy of Ophthalmology, 870 F. 2d 397 (7th Cir. 1989) (rejecting the claim of a group of ophthalmologists performing radial keratotomy surgeries that sued the American Academy of Ophthalmology for labeling the procedure "experimental.").

Lately, more and more third-party payors have been relying on association practice guidelines and "expert" position papers describing treatment options and medical devices as "untested," "unproven," "experimental," and the like to deny coverage for a wide array of treatment options, often with devastating effects on patients. This appears to be the concern driving the Connecticut investigation. Further, Mr. Blumenthal apparently has not ruled out extending his office’s inquiry to insurers which deny coverage for chronic Lyme disease,- citing the IDSA guidelines in their coverage statements.

According to a statement by Mr. Blumenthal, the ISDA, through its overly strict recommendations, might harm Lyme disease patients by effectively limiting their insurance coverage. "These rules diminish the options available to doctors and their patients in ways that can sanction insurance company decisions to deny coverage, so they have an economic impact that could be very serious," Mr. Blumenthal said in an article that appeared in the Boston Globe in late December ("Connecticut disputes doctors’ Lyme disease guidelines," by Associated Press, Dec. 31, 2006.)

The scientific community is alarmed. A recent article in The Scientist describes Mr. Blumenthal’s investigation as "an unprecedented move that raises questions about the government’s role in scientific consensus." ("State official subpoenas infectious disease group," published Feb. 7, 2007). The Scientist quotes IDSA’s lawyer as saying that, "If we have to worry each time [we craft medical guidelines] that maybe we will be getting subpoenaed and to go through the time, effort, and expense of responding, then we might not take controversial but appropriate positions."

The ISDA, not surprisingly, sticks by the guidelines it enacted in October, which, it contends, were carefully researched and are sound. The Society’s website, when last visited April 19, 2007, prominently posted a message from its President, Dr. Henry Masur, in which he described ISDA Practice Guidelines as "valuable, credible, flexible," indeed, "one of the most important activities" of the Society. In his message, Dr. Masur noted that, last year alone, more than 150,000 visitors downloaded the Society’s guidelines from the IDSA website. Dr. Masur then went on to describe in some detail how IDSA ensures the quality of its guidelines…an action that he apparently felt compelled to take "(g)iven [the guidelines’] importance, and the recent attention some—particularly the new guidelines on Lyme disease—have received in the media."

At last check, Connecticut’s investigation remains open; its outcome uncertain. Mr. Blumenthal’s office is in the process of reviewing documents and answers to interrogatories provided by the Society in response to an administrative subpoena issued to the IDSA in November. Whatever the resolution of this particular investigation, the matter should serve to reinforce how carefully associations must tread when their actions might adversely impact competition and, thus, might implicate the antitrust laws.

This article is presented for informational purposes only and is not intended to constitute legal advice.
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Chromium in drinking water causes cancer: U.S. agency

By Jill Serjeant
Wednesday, May 16, 2007; 8:18 PM

LOS ANGELES (Reuters) - A type of chromium highlighted in the film "Erin Brockovich" causes cancer in lab animals when they drink it in water, and it could be harmful to people, the U.S. National Institutes of Health said on Wednesday.

Hexavalent chromium, also called chromium 6, already has been shown to cause lung cancer when inhaled and is controlled by the Environmental Protection Agency as well as by states.
It is best known as the contaminant exposed by campaigner Erin Brockovich, whose battle against a polluter was dramatized in the May 2000 movie of the same name.

"I am relieved and pleased and sorry because there are a lot of people who have ingested chromium 6," said Brockovich, who still works in Los Angeles as a legal consultant on environmental issues.

"It is high time but it is no surprise to me," she told Reuters. "This is a chemical that there have been ongoing arguments about, and now a third party has concluded that it can cause cancer by ingestion."

Environmentalists, who have been fighting for decades for tighter limits on how much chromium can be present in drinking water, said the findings offered a basis for such restrictions.

High doses of chromium 6 given to rats and mice in drinking water caused malignant tumors, the two-year study by the NIH's National Toxicology Program or NTP found.

"In the rats we saw oral cavity tumors," said Michelle Hooth, who worked on the report. "In the mice we saw tumors in the small intestine."

Hooth said the animals were given much higher doses of chromium than people would ever encounter in drinking water, which is the usual practice in testing chemicals for cancer-causing potential.


Hexavalent chromium compounds are often used in electroplating, leather tanning and textile manufacturing and have been found in some drinking water sources, the NTP said.

Brockovich started investigations in 1991 into exposure to chromium 6 in drinking water in the town of Hinkley, California. In 1996, she and lawyer Ed Masry won a landmark $333 million settlement with Pacific Gas and Electricity over claims of toxic exposure.

Brockovich said on Wednesday she had settled another lawsuit with PG&E involving the contaminant last year. But she said there were potentially dozens more toxic sites around the country.

The lowest doses given to rats and mice in the study were 10 times higher than what humans could consume from the most highly contaminated water sources identified at Hinkley, the researchers said.

From 1987 to 1993, according to the Toxics Release Inventory, chromium compound releases to land and water in various U.S. states totaled nearly 200 million pounds.

"The chromium industry has been trying to convince regulators for years that hexavalent chromium is actually quite safe when consumed via drinking water, even though it has long been known to be carcinogenic when inhaled," said Renee Sharp, a senior analyst at the Environmental Working Group.

"NTP's findings will finally allow state and federal regulators to set drinking water standards based on up-to-date sound science, rather than having to rely on old, inadequate, and/or biased studies often funded by chromium polluters," added Sharp, whose group has lobbied for tighter regulation of chromium and other chemicals.

(Additional reporting by Maggie Fox in Washington)

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State high court declines to review previous ruling

By Terri Somers

May 17, 2007

The state Supreme Court yesterday delivered a final, fatal blow to the legal challenges that have prevented California from issuing bonds to fund stem cell research since 2005.

The state's high court declined to review a lower court ruling that upheld the constitutionality of the California Institute for Regenerative Medicine, created when 59 percent of voters approved a $3 billion ballot measure in November 2004.
“The California Institute for Regenerative Medicine has lift-off today,” said Robert Klein, a lawyer and patient advocate who wrote the initiative known as Proposition 71 and later was chosen to lead the institute's governing board.

Proposition 71 was promoted as an avenue for California taxpayers to circumvent federal funding restrictions on human embryonic stem cell research, which proponents say has the potential to lead to therapies for some of the world's most devastating diseases.

The research is controversial because it destroys human embryos. Taxpayer advocacy groups with ties to individuals who oppose abortion had challenged the constitutionality of the initiative, and the stem cell institute it created, because the money it would be distributing was not under the direct control of state officials.

Since that argument was centered on state issues, lawyers on both sides agreed yesterday that it could not be pursued in federal courts. The state treasurer's office therefore can begin to issue the bonds to fund the stem cell institute.

“The taxpayers are the real losers here,” said Dana Cody, a lawyer with Life Legal Defense Fund who represented the People's Advocate, one of the initiative's challengers. Also challenging the initiative were the California Family Bioethics Council and the National Tax Limitation Foundation.

The court's decision allows $3 billion in taxpayer money “to go down the rabbit hole,” Cody said. “But voters voted for it, so what can I say?”

Cody said there could be other issues on which to base future legal challenges. “My client will probably continue to look at what is going on as far as (the institute's) spending,” she said. “Its first audit was just completed not too long ago, and it was pretty questionable.”

Gov. Arnold Schwarzenegger said yesterday the will of the voters had finally prevailed.

“(The court's) decision reaffirms voters' will to keep California on the forefront of embryonic stem cell research,” he said. “California's leadership gives the best promise of finding a cure for deadly and debilitating diseases.”

Under Proposition 71, the state treasurer's office can be authorized to sell up to $350 million in bonds annually to fund the stem cell institute. If the institute does not use all that funding in a given year, what is left can be rolled over to the following year.

Last year, the state authorized the treasurer's office to sell $250 million in bonds for the institute as soon as the legal challenges were resolved. Those bonds will now be sold, Klein said.

Funds raised through the bond sale will be used to repay $153 million in state loans and $45 million in loans from private individuals and foundations that were made to the stem cell institute to help it start operations and issue its first grants while the legal challenges played out, Klein said.

Among those who made loans were Padres owner John Moores and Qualcomm founder Irwin Jacobs. If the state had lost the legal challenges, their loans would have become donations to the institute.

“It's gratifying to know the legal system works,” Moores said after hearing about the court's decision.

He said the “mean-spirited” challenges were a delaying tactic of which “the impact on humans is incalculable, because these scientists are going to do great things with that bond money.”

As for his loan, Moores said he always intended for those funds to go to stem cell research. His refund check, he said, would likely go to the Scripps Research Institute, of which he is chairman.

To date, the stem cell institute has approved $158.8 million in research and training grants, making it the world's largest funder of embryonic stem cell research, Klein said. However, most of that money has been promised to cover multiyear grants and has not actually been distributed.

The institute has the available funds to cover another $48.5 million in grants that it plans to award this year for the construction of research lab space that can be shared by scientists pursuing stem cell research, Klein said.

In August, the institute plans to issue a request for applications for $220 million in grants that will be awarded for the creation of major research facilities. Applicants for these grants will be required to show that they can provide matching funds, which means another $440 million will be directed to advancing stem cell research, Klein said.

The availability of funds will also allow the institute to hire more staff. Since its inception in January 2005, the institute has been able to hire less than half of the 50-member staff allowed under Proposition 71.

The current staff has put together the documentation and support needed to fight the lawsuits, as well as accommodate more than 90 public meetings of the institute's governing board and its subcommittees. It has also been involved in creating the agency's medical and ethical standards and conducting due diligence on those awarded grants.

Taxpayer advocates, who monitored and critiqued the institute for the past two years as its standards and policies were formulated in public meetings, lauded the court's decision, but remained cautions.

“Like anyone else interested in stem cell science, I am delighted with the court's decision,” said John Simpson, of the Foundation for Consumer and Taxpayer Rights in Santa Monica. “But I hope in light of the understandable exuberance that everyone at the institute must be feeling that they don't forget the very solid procedures that they have put in place . . . and hand money willy nilly out the door.”

Klein said that while the institute would intensify its funding of stem cell research, it would continue to fund only the most promising science and scientists.

Some institute watchdogs said they thought the funding delay may have been positive for the institute.

At the institute's first meeting, in January 2005, Klein said he wanted the first round of grants to be made by May of that year, recalled Jesse Reynolds of the Center for Genetics and Society.

“I think the lawsuit, although we didn't support it, was a blessing in disguise because it put the brakes on, so they could get policy in place before the big bucks started going out,” Reynolds said.

But longtime Proposition 71 supporters scoffed at that argument. The institute would have had a full staff and found a way to do it right, said Larry Goldstein, an embryonic stem cell researchers at the University of California San Diego.

Goldstein was a member of the initial group of politicians, patient advocates and scientists who came up with the idea of asking state taxpayers to fund stem cell research.

“It's not that we would have come up with a new therapy or cure in those two years,” he said. “It's that we are starting two years behind. And if it takes 15 years total to come up with a cure, it's going to take us 17 years. And that is going to affect whoever gets sick 10 years from now.”

“It's a real human cost when you score it.”

Tuesday, May 15, 2007

Malpractice Suit Proceeds Against Firms

Anthony Lin
New York Law Journal
May 14, 2007

A New York state judge has permitted a legal malpractice suit to proceed against plaintiffs lawyers who allegedly failed to seek a bankruptcy extension for their client, causing her medical malpractice case to be thrown out as untimely.

In denying a motion to dismiss the action against law firms Morelli Ratner and Schapiro & Reich, Manhattan Supreme Court Justice Emily Jane Goodman said a combination of equitable estoppel and the U.S. Bankruptcy Code's tolling of statutes of limitations might have saved the underlying lawsuit, even though the medical malpractice at issue took place over a decade ago.

Victoria Kremen underwent a double mastectomy in 1995 after receiving a cancer diagnosis from two doctors. But she claimed she found out on April 14, 1999, that the cancer had been misdiagnosed and that the surgery was unnecessary. In October 1999, she filed for personal bankruptcy.

A medical malpractice suit was not filed in the case until July 2001, a month after Kremen retained the law firm now known as Morelli Ratner. The suit was originally filed on behalf of Kremen and her bankruptcy trustee, but her lawyers took steps to have the trustee removed from the case.

The statute of limitations for medical malpractice cases in New York is 2 1/2 years following the malpractice. The trial court dismissed the suit as untimely and rejected the plaintiff's argument that the misdiagnosis had been fraudulently concealed from her. The Appellate Division, 1st Department, upheld the ruling in 2005, finding that Kremen's 25-month delay in bringing an action even after learning of the alleged malpractice in 1999 was "unreasonable as a matter of law."

But Justice Goodman, in Kremen v. Morelli & Associates, 101739/06, said the delay may not have been unreasonable in light of §108 (a) of the Bankruptcy Code, which grants debtors an additional two years to file claims that "applicable nonbankruptcy" laws would otherwise require them to file in the midst of bankruptcy.

The judge said New York's laws on the tolling of statute of limitations law constituted the type of non-bankruptcy law contemplated in the Bankruptcy Code.

She also cited prior decisions in which courts applied equitable estoppel to toll statutes for plaintiffs who only discovered alleged medical malpractice years after undergoing a treatment or procedure. In such cases, she noted, a delay of several months in filing a claim had been found reasonable. Thus, Kremen's claim could still have been viable when she filed for bankruptcy in October 1999, and then preserved by bankruptcy tolling until October 2001.

The case is against some well-known names in the legal community. Morelli Ratner is the firm headed by Benedict P. Morelli, the former president of the New York State Trial Lawyers Association. The now-defunct Schapiro & Reich was the firm of Perry S. Reich, a noted appellate lawyer who is serving a 27-month sentence for forging a federal magistrate judge's order.

Kremen is represented by Scott H. Seskin.

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Lawyer's Alleged 'Bedside Manner' Is Ground for Ethics Probe, Not Lawsuit

Charles Toutant
New Jersey Law Journal
May 10, 2007

When Miguel Herrera was badly hurt in a 2002 car crash, he didn't have to look far for legal representation. Cherry Hill, N.J., lawyer Jeffrey Hark appeared one day in his hospital room. Herrera says that in pain and under heavy medication, he signed a contingency fee agreement.

It wasn't until much later, Herrera says, that he learned of Hark's conflict of interest: The other driver in the crash was Vernon Roth, Hark's wife's grandfather.

Herrera says Hark told him he could not recover more than Roth's $100,000 automobile insurance policy, even though Hark knew Roth had substantial assets.

And, Herrera says, Hark arranged a lawyer for him in a municipal court case arising from the crash while arranging for another lawyer to represent Roth. Both were tenants of Hark's law building.

While those facts make out a prima facie case of deviation from acceptable professional standards, a Camden County, N.J., judge properly dismissed Herrera's legal malpractice case on summary judgment, an appeals court ruled on Tuesday.

Herrera can't recover damages for malpractice because the lawyer who replaced Hark in the negligence case settled it for an acceptable amount. "Herrera has not shown how he would have obtained a better result than the $95,000 settlement, even if Hark had disclosed his conflict of interest. In short, no showing of damages has been made," wrote Judges Ariel Rodriguez and Thomas Lyons in Herrera v. Hark, A-1862-05.

Nevertheless, the panel referred the case to the Office of Attorney Ethics for an investigation of Hark's conduct.

The panel cited Rule of Professional Conduct 7.3(b)(1), which forbids initiation of contact with prospective clients whose physical, emotional or mental state is such that the person could not exercise reasonable judgment, and In re Pajerowski, 156 N.J. 5 (1998), which found RPC 7.3(b)(1) violated where a runner was sent to a victim's hospital room shortly after an accident.

Hark, contacted after Tuesday's ruling, disputed many of the facts Herrera alleged. He did not visit the hospital room unannounced but was contacted by a friend of Herrera about representation, and Herrera signed the fee agreement in Hark's office, not the hospital, Hark says. He also says he had no involvement in retaining lawyers to represent Herrera or Roth in municipal court.

Hark says Herrera sued him for malpractice to get leverage in a fee arbitration between Herrera and the law firm that settled the case, Perskie, Wallach, Fendt & Holtz of Atlantic City, N.J. Herrera also sued the Perskie firm, which was dismissed as a defendant.

Hark says Herrera reported him to the OAE and that an investigation has been pending for three years.

Herrera's lawyer, Sebastian Ionno II of Clifford Van Syoc's office in Cherry Hill, did not return a call.

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Eagloski calls lawyer's conduct 'degrading, demeaning, unprofessional'

5/15/2007 12:00 PM
By Steve Korris -Putnam Bureau

WINFIELD - Putnam Circuit Judge Ed Eagloski chased a Texas lawyer back to the Lone Star State for misbehaving in a deposition.

At a hearing May 11, Eagloski vacated an order allowing Kevin Oncken of San Antonio to defend Putnam General Hospital in malpractice suits.

"He was degrading, demeaning and completely unprofessional," said Eagloski, who had seen tape of Oncken deposing a plaintiff.

Eagloski said Oncken told Charleston attorney Richard Lindsay that if he wanted to talk to him, he should put on lifts. Oncken stands about 10 inches taller than Lindsay.

Eagloski said he would refer Oncken to the West Virginia Bar, and he said he would send the tape to the Bar. He also said he could also take privileges away from Oncken's partner, Jeffrey Uzick.

"But I think he will take the warning of this court appropriately," Eagloski said. "Will you do that, sir?"

"Yes sir," Uzick said.

About a dozen other attorneys witnessed the drama on behalf of parties in Putnam General Hospital malpractice cases. Eagloski told them all to take his ruling as a road map for decorum in depositions and in court.

Oncken blew his fuse Feb. 8, deposing a Lindsay client named Mayfield. After the deposition, Lindsay moved for sanctions.

At the hearing, Lindsay said Oncken harassed Mayfield and threatened both Mayfield and himself with financial penalties.

Lindsay said he was in his fourth decade practicing law and nothing like this had happened before.

"It's crossing all civil boundaries," he said.

He said Oncken's colleague, Scott Johnson, laughed at Mayfield.

"It was clearly intimidating and troubling to Mr. Mayfield," Lindsay said.

He said at the end Oncken told him he would file a motion for sanctions the next day. He said that did not happen.

Oncken then began his explanation. He said the court had a tape. Eagloski said he had viewed it in its entirety.

Oncken said his comments at the start were based on Johnson's deposition of a plaintiff named Wilfong. He said Johnson had told him how Lindsay coached Wilfong.

He said he read the deposition and recognized that it would be difficult to get straight answers. He said Mayfield exaggerated his claims and denied culpability for his alleged injury. He said Mayfield was in a fist fight after surgery on his knee.

He said three doctors told him there was grave risk, but Mayfield left against their advice. He said his opening exchange was directed at Lindsay, not Matfield.

Eagloski said it was a mistake to bring up sanctions at the beginning.

Oncken said he didn't, but Eagloski said that on page five Oncken said there could be a penalty of $250 per violation.

Oncken started to answer, but a strange sound filled the room. Eagloski wailed a short "a" sound at high pitch. The pitch fell and the sound changed as he said, "Aah I hear you. Go ahead."

Oncken said if he had a regret, it was that it should have been done behind closed doors.

He said Johnson did not snicker.

"Mr. Mayfield apparently read something into Mr. Johnson's presence and raised a question about it in an adversarial manner," Oncken said.

He said Lindsay got on his feet, raised his voice and pointed.

"Things got heated at that point, judge," Oncken said. "I said things I shouldn't have said."

He said he apologized to Lindsay in an e-mail. He said he asked Lindsay if he apologized for referring to him as a thug.

"I didn't get a response," Oncken said. "He just set the motion for hearing."

He asked Eagloski to appreciate the magnitude of the litigation.

"It is extraordinarily tense," Oncken said. "It is extraordinarily high pressure. It is extraordinarily high stakes.

"I regret the statement I made at the end of the deposition."

He said he assumed Lindsay apologized for calling him a thug.

"Sometimes the tongue moves faster than the mind," Oncken said.

He said he made a remark at the end about moving for sanctions but he stepped away from the emotional moment and conferred with lawyers.

"We let the emotion pass and we decided -- I decided -- that it did not further the goal of the litigation," he said.

Lindsay responded that hard work was no reason to abuse a witness.

"My client should not be punished because they say they're tired," Lindsa said.

He also said he never called Oncken a thug. He said he told him if he acted like a thug, the deposition would be over.

He said Oncken apologized to him but not to his client. He said Oncken just called his client a liar.

"This is the way he practices," Lindsay said.

Plaintiff attorney John Curry of Charleston said Oncken and Uzick signed affidavits that did not list all their admissions to West Virginia courts.

"We can't believe what we are being told," Curry said. "Even under oath, we can't believe what we are being told."

Oncken said he received no notice of the exhibits.

Eagloski asked if he signed them under oath. Oncken said yes.

Oncken said the affidavits were forwarded to them. He said he did not know why some cases were not listed. He said being portrayed as rogues struck deep at their integrity.

"You don't like it, do you, when somebody goes after your integrity?" Eagloski asked, to which Oncken replied no.

"I have worked hard to develop a reputation as a first rate trial lawyer and a man of integrity," Oncken said.

Curry then said, "Putnam General has plenty of attorneys. This one should not be allowed to practice because of what has occurred."

Johnson said, "May I make a brief response?" Eagloski said no.

Eagloski said Oncken violated canons of conduct.

"Referral will be made to the State Bar regarding his actions," Eagloski said, adding that Oncken stated that Lindsay did not know how to practice law.

"It is a personal attack in front of his client," Eagloski said.

He said Oncken told Lindsay, "If you are going to talk to me, put on your lifts."

"That is not tolerable by this court," Eagloski said.

He said it was not the first time the court talked to Oncken about integrity. He said Oncken alleged that Curry paid someone to be his client and that the court reprimanded Oncken.

He said professional rules allow no conduct in a deposition that would not be appropriate in front of a judge. He said Oncken's behavior exceeded any reasonable degree of civility.

He said Oncken could attend depositions if he attended as an agent of the defendant.

He told Uzick that Oncken's actions impinged on him. He told Uzick he deposed plaintiffs when he should not have been there.

"But your actions are not personal regarding another person or party to this action," Eagloski said.

Johnson said he would seek a writ of prohibition.

"You may file your writ, of course," Eagloski replied. "Anything further?"

No one spoke, and the hearing ended.

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Ideas for malpractice insurance

Daniel H. Belsky, D.O.
Boca Raton

When I completed my residency in obstetrics and gynecology in 1961 and entered practice, my annual malpractice premium was $150. It would now cost me over $200,000 for the same coverage in the state where I practiced.

In order to rein in the runaway costs of malpractice insurance, I suggest the following:

Do away with contingency fees for attorneys. Have lawyers charge a fee for service, the same as they do when preparing a will. Upon successful settlement of a case, the attorney would have collected a fee for hourly services. If the case is decided against the plaintiff, the attorney would have already been paid for his or her services.

Have a system of compulsory arbitration for all malpractice claims. This system has worked successfully in dealing with injury in the workplace. An arbitration board -- usually a union representative, a physician, an attorney and a lay person -- reviews the claim. Responsibility is assigned, contributory negligence is determined, and the board recommends a dollar amount as award. Compulsory arbitration could be as effective in medical malpractice cases, helping to drive down the costs appreciably by limiting large legal fees.

Put a cap on awards for non-economic damages (i.e., pain and suffering).

Restrict suing physicians for punitive damages, where the doctor must seek private counsel, since malpractice policies do not cover this. The threat of punitive damages may force many physicians to rush to settlement.

Hospitals and physicians must police themselves better. It has been estimated that approximately 6 percent of doctors account for most medical malpractice cases. Establish a system of supervision for the chronic offenders, have mandatory re-training programs instituted by the hospitals and medical schools, and have the State Board of Medical Examiners play a more active role in the process by suspending or revoking the licenses of chronic offenders who defy rehabilitation.

Will young scientific minds continue to be attracted to the medical profession? I fear not; most will find other ways to pursue productive and creative careers in the sciences

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Medical case wins $2.27M

By Heather Stauffer, Sentinel Reporter, April 26, 2007

A $2.27 million verdict handed down in a medical malpractice lawsuit Friday may be the largest verdict ever awarded by a Cumberland County jury in a personal injury matter, according to the plaintiff’s attorney.

“Cumberland County is notoriously a difficult county to bring a medical malpractice case in,” said Daniel Weinstock, who with attorney Carolyn Chopko represented Carlisle residents Gerard and Linda Boullianne in a case concerning the birth and death of their son, Christian. “I think this case sort of demonstrates that if the case is clear enough, a medical malpractice case can be won in any venue.”

Weinstock said he talked to court personnel who said they thought the verdict was the largest of its kind ever awarded in the county. The Sentinel has not been able to confirm whether that is the case.

The lawsuit was filed in 2002. According to the plaintiff’s pre-trial memorandum, Christian Boullianne was born at Carlisle Hospital on Jan. 26, 1999, with severe brain damage and spastic cerebral palsy. He was delivered by nurse midwife Pamela Kozick of the former Women’s Health Associates of Carlisle.

The plaintiffs said that Christian’s condition was caused by Kozick’s negligent failure to recognize obvious signs of fetal distress during labor. On Friday the jury agreed, handing in a verdict that found Kozick negligent and a substantial factor in bringing about harm to Christian. It awarded the Boulliannes $273,471.61 under the Wrongful Death Act and $2 million under the Survival Act.

Also named in the suit was Women’s Health Associates of Carlisle, which dissolved in 2003 and was replaced by Women’s Health Specialists of Carlisle.

“It all really involves the malpractice situation,” member Dr. John Lowthian told The Sentinel in 2003. “To be honest with you, we can’t afford malpractice premiums. We either have to move out of state or become an employee of someone who is self-insured and can absorb the cost.”

The former Carlisle Hospital, whose liabilities were assumed after its sale by the Carlisle Area Health and Wellness Foundation, also was originally named in the suit but was dismissed with prejudice on April 10 of this year.

Monitoring at issue

Weinstock said his case was based on fetal monitor readings, which he said were “non-reassuring” for the last hour and 24 minutes of the labor.

“The defendant is a nurse midwife,” Weinstock said of Kozick. “There’s a very clear hospital policy that says if the (fetal monitor) strips are non-reassuring, she needs to call a doctor. She failed to do that.”

Throughout the trial, Weinstock said, Kozick maintained that the readings were completely normal.

But attorney Peter Curry, who represented Kozick, said that wasn’t completely correct.

“It was our position that the fetal monitor strips for the last 30 minutes, maybe even 40 minutes, were normal, within the normal range,” Curry said. “Earlier there were some indications that the strips were — there were signs on the strips that needed attention, and midwife Kozick responded appropriately.”

Curry described Kozick as “extremely well educated, certainly experienced, and extremely competent.”

“I think it’s unfortunate that I wasn’t able to persuade the jury that our position was correct,” Curry said, “but I also recognize that that’s how the system works, and it’s the best system we have.”

Reviewing appeal option

He said he and his client are “still reviewing” whether to appeal the verdict.

Curry also said that he asked Kozick not to comment to the press. Kozick did not respond to a message left for her at her office.

A check with the Pennsylvania Department of State shows that she has been licensed as a registered nurse since 1977 and as a midwife since 1996. Both licenses are current and in good standing, and no disciplinary actions were found against either.

Department of State spokeswoman Leslie Amoros said that a guilty verdict in a civil trial does not trigger an automatic review of the defendant’s license. However, she said, if the agency learns of such a verdict, it may take a look at the situation.

“We will look at it, check it out, and if it falls within our jurisdiction and appears there may be some violation of licensure laws, we will proceed with opening a file,” she said.

Weinstock, who called many medical experts to support his position, said, “Their opinions were all strongly supported by objective medical literature that wasn’t prepared for litigation at all.” Because juries often don’t know which expert is right and which is wrong, he said, the medical literature can be a tie-breaker.

Weinstock noted that the award was more than the plaintiff demanded. The plaintiff’s pre-trial memorandum shows an initial demand of $1.75 million.

“It could have been settled for much less,” he said. “The defense refused to make any offer at all.”

“I hope she learned her lesson,” said Gerard Boullianne of Kozick, who is currently practicing with Women’s Health Specialists of Carlisle. “I hope she puts nobody else through this like she put us through.”

Normal pregnancy

Boullianne said his wife had a normal, healthy pregnancy up to delivery, and that they had no misgivings about having Kozick as the attendant.

“We thought she was fully competent,” Boullianne said. “She seemed to know what she was doing.”

But, he said, within about 10 minutes of Christian’s birth, he began to get concerned.

“I used to be an EMT, so I know how to read a birth monitor,” he said. “It didn’t look good.” He also saw his son’s color change, he said.

When he voiced that concern to Kozick, he said, she ignored it.

“Basically she didn’t want to hear what I had to say,” he said. Boullianne noted that the trial did not address the issue of what cut off Christian’s blood or oxygen supply, instead focusing on Kozick’s failure to call a doctor.

As soon as Christian was born, his father said, they knew something was wrong.

“He looked dead,” he said, “but they found a faint heartbeat, and they capitalized on that. They resuscitated him.”

Christian spent the first four weeks of his life on life support, Boullianne said, and even after that he required around-the-clock care. “We bought a special van and everything.”

“My family and friends pulled together and helped us,” he said. Because he worked evenings, he said, he would cover the night shift, nurses would come from 6 a.m. to 2 p.m., and his wife covered the rest of the time.

Seeking justice

Before Christian died at age 2, Boullianne said, he had talked to a local attorney about legal action. The attorney told him he didn’t have a case, he said.

Later, Boullianne said, a television ad featuring attorneys who specialize in medical malpractice lawsuits encouraged him to try again. Eventually the Boulliannes got in touch with Weinstock, an attorney with the Philadelphia firm of Feldman, Shepherd, Wohlgelernter, Tanner & Weinstock who specializes in medical malpractice lawsuits.

Boullianne and his wife decided to sue, he said, because they wanted justice. And that, he said, is what they got.

Boullianne said he hopes the case encourages other practitioners, particularly nurse midwives, to be a lot more careful.

“If there’s any question about the health of the child, they should contact the doctor immediately and let him make the decision,” he said. “They should be more willing to call the doctor, instead of being afraid of getting in trouble.”

The most important thing, he said, is saving the life of the child.

“My wife cries about him (Christian) all the time,” Boullianne said.

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Attorney here defends docs, dentists in disciplinary cases

By Rocky Wilson

Spokane attorney Steve Lamberson’s legal practice includes a little-known specialty in which he defends physicians and dentists against threats to their careers that he believes are more serious than malpractice lawsuits.

Lamberson, a partner in Etter McMahon Lamberson & Clary PC, represents health-care professionals who face possible disciplinary action by the Washington state Department of Health, and says the outcomes of such proceedings can be far more damaging than civil lawsuits.

“They can effectively end your career,” he says.

Though such cases comprise less than 20 percent of Lamberson’s practice, which also includes defense work in malpractice and municipal-liability cases as well as construction litigation, he believes he’s one of only a handful of Spokane lawyers who handle them. He declines to disclose examples of the some 40 disciplinary cases he’s handled each year over the past 18 years, but sheds light on a process that gets little attention.

Lamberson says most physicians and dentists here, in addition to their malpractice insurance policies, have insurance coverage that pays their attorney’s fees if they must face state disciplinary proceedings.

He says about 45 percent of the clients he represents in disciplinary cases are physicians, 45 percent are dentists, and the rest are either nurses or chiropractors. In disciplinary cases, he says, his role is clear: While the Department of Health’s objective is to protect the public, his is to protect the interests of his client.

That state agency oversees four commissions, the Medical Quality Assurance Commission (MQAC), Dental Quality Assurance Commission, Nursing Care Quality Assurance Commission, and Chiropractic Quality Assurance Commission, says Blake Maresh, executive director of the MQAC. He says those commissions handle complaints that can trigger disciplinary action against providers.

Lamberson says, “Although most complaints come from patients, they also are generated by colleagues, pharmacists, insurance providers, and other agencies.”

The power those commissions have over health-care providers is huge, he says.

“Generally, they can put any restrictions they want on your license,” Lamberson says. They can revoke or suspend the license of a physician, dentist, nurse, or chiropractor; put a practitioner on probation; or limit a professional’s practice by prohibiting him or her from seeing certain types of patients, including females, or children, for instance, he says. They also can prohibit physicians and dentists from prescribing drugs without the co-signature of another provider, and even trigger limits on how they get paid.

“More often than not, if you have any restrictions placed on your license by a disciplinary board, you can’t be reimbursed by Medicaid or Medicare,” Lamberson says. “Plus, such restrictions on one’s license can cause that practitioner to lose preferred-status coverage with a major insurance provider,” which means they can’t bill such insurers for the services they provide. That, he says, typically forces patients to look elsewhere for treatment, rather than paying for care out of their own pockets.

Although similar in some ways, malpractice lawsuits and state disciplinary complaints differ in how and by whom issues are resolved. While malpractice often stems from an accusation that a practitioner has been derelict in performing his or her duty, state disciplinary procedures can be triggered by any of a long list of unprofessional actions that aren’t related necessarily to incompetence or negligence, Lamberson says.

Among the 25 examples of unprofessional conduct listed in state law that can lead to disciplinary procedures before the Department of Health are: abuse of or sexual contact with a client or patient; misuse of alcohol or drugs; willful betrayal of practitioner-patient privileges; failure to cooperate with the disciplinary authority; and false, fraudulent, or misleading advertising.

While malpractice lawsuits that aren’t dropped or settled end up in court, complaints against providers to the Department of Health, if they go far enough, end up in an administrative hearing before one of the department’s commissions, he says.

Lamberson says a high percentage of such complaints never make it that far. Instead, they’re dropped for lack of merit or settled through a compromise that could include continued education for the practitioner, he says. When a case ends up in an administrative hearing, it’s heard by three or more commission members, who also are health-care providers, and that group decides the fate of the physician, dentist, nurse, or chiropractor, he says, adding that the provider, or even the Department of Health, then has the right to appeal the ruling in a court of law.

A health-care law judge presides over administrative hearings and sits in on the deliberation process, but doesn’t have a say in the outcome; rather he or she serves as a legal adviser to the commission, Lamberson says. In such hearings, the state attorney general’s office prosecutes the case, he says.

The disciplinary process begins after a complaint is registered with a Department of Health commission regarding alleged misconduct of a provider. The first step is for the state to assign an investigator, often a former law officer, or team of investigators to study the case and determine the initial validity of the claims, says Lamberson.

Normally, some of that investigative work is done before the physician is notified of the complaint and is given the opportunity to respond to the allegations, Lamberson says.

He says some providers respond to the allegations themselves, but asserts, “It’s very risky to deal with the commission without an attorney.”

Commonly, it’s at that point when his services are called upon.

Lamberson typically then does his own investigation, interviewing his client; witnesses, such as employees where the practitioner works; and the commission’s investigators. When necessary, he’ll retain a consultant to help review documentation of the complaint, he says. From what he finds, he drafts a response to the allegations against his client.

Once the commission’s investigators have completed their work, their findings are turned over to one member of the state commission, who studies the information and recommends to the full commission whether the case should be dismissed, settled in a compromise manner, or continued to the administrative-hearing stage, says Lamberson. If the matter proceeds to the administrative-hearing stage, administrative charges are filed with the Department of Health by the appropriate commission, says Lamberson.

He says about 80 percent of complaints brought against health-care providers are dropped at the recommendation of the one commissioner after he has reviewed the investigatory information.

“Just because the patient had a bad outcome or was treated badly by the front office doesn’t mean necessarily there was unprofessional conduct on the part of the practitioner,” he says.

Of the 160 disciplinary cases decided by the MQAC in the July 2003-June 2005 biennium, 43 reached the administrative-hearing stage, says Maresh. He says 131 cases were decided by the dental commission during that period, and 21 proceeded to an administrative hearing. The number of cases decided by the nursing-care commission over that two-year span, 407, was much higher than either the physician or dental commissions decided, but only 18 of them were ruled upon at the administrative-hearing level, Maresh says. The comparable numbers for chiropractors were much lower, with 35 cases decided by that commission and only three of them reaching administrative hearings, he says.

A 1982 graduate of Gonzaga University School of Law and a Spokane resident most of his life, Lamberson says he received no special training to defend health-care providers in disciplinary matters. Like most lawyers, he learned his specialty while working at the job, he says.

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Nevada reviews doctor apology bill


A medical malpractice attorney blamed insurers for a lack of compassion during a hearing Friday on a bill to let doctors apologize to patients for an adverse medical result without having the apology used against them in court later on.

The Nevada Trial Lawyers Association and the Nevada State Medical Association are at odds over SB174, called the "I'm sorry" law, but their criticisms of the current system both revolved around insurers' prohibitions against apologies by doctors.

SB174, sponsored by Sen. Joseph Heck, R-Henderson, would make statements of apology, regret, or condolence inadmissible in a court case against a doctor. Heck, an emergency room doctor, said similar laws in other states greatly reduced malpractice cases. Hospitals which encouraged apologies saw lawsuits and settlements costs reduced, in some cases by up to 50 percent.

Heck said the immunity granted by the bill would reassure insurance companies they can rid their contracts of prohibitions against apologies.

Both groups said apologies could help doctors show compassion toward patients when they need it most and would enable the doctor to help make the person "whole" again.

Dr. Keith Brill told the Assembly Judiciary Committee that when doctors don't apologize, patients are more likely to get angry and sue.

Bill Bradley, a medical malpractice attorney who spoke for trial lawyers, said insurers and doctors ought to be honest anyway when a patient clearly was wronged and needs compensation. He opposed the bill on grounds it would eliminate evidence of negligence, the doctor's own admission.

"There ought to be accountability. If that physician is willing to say, 'I'm accountable, I did this wrong,' then that physician and insurance company ought to be able to say, 'We don't need lawyers involved in this and let's get this person whole again.' I just don't see that happening," Bradley said.

Some lawmakers on the panel were skeptical about how doctors could express an apology without then lying on the stand about their own negligence.

Assemblyman William Horne, D-Las Vegas, pushed several times on the issue, asking what a doctor would say if, after giving an apology, he was asked on the stand if he was negligent.

Dr. John Martin, president of the Clark County OB/GYN Society, said an effective trial lawyer would be able to provide ample evidence if negligence did occur.

"If you said 'no' to taking out the wrong kidney, you'd be an idiot. A good plaintiff's attorney should be able to prove you did it, whether you admit it or not," Martin said.

No insurance industry representatives spoke at Friday's hearing. Contacted after the meeting, Jim Wadhams, a lobbyist who represents several insurers, said insurance companies are not showing a lot of concern about the bill and consider it a matter of policy for the state.

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Attorney Hit With $6.6 Million Malpractice Verdict

Shannon P. Duffy
The Legal Intelligencer
April 23, 2007

A lawyer who is now with Montgomery McCracken Walker & Rhoads was hit with a legal malpractice verdict of more than $6.6 million in a suit brought against her and her former firm by a corporate real estate client that said her poor drafting of a lease agreement sparked a lawsuit in California that cost $4 million to settle.

In his verdict from a nonjury trial, Judge Mark I. Bernstein of Philadelphia's Commerce Court ruled that attorney Karen Senser and Segre & Senser must reimburse Crown Cork & Seal the $4 million it paid to settle the California suit, as well as more than $972,000 in attorney fees and $1.6 million in interest.

Bernstein's one-page ruling included no discussion of the case, but simply announced his verdict and damages awards totaling $6,643,054.

Crown had initially filed suit against both Senser and her partner, Nina Segre, as well as Montgomery McCracken. But in pretrial rulings, 1st Judicial District President Judge C. Darnell Jones II dismissed Segre from the suit and ruled that all claims against Montgomery McCracken were barred on statute of limitations grounds. Jones also dismissed all claims of breach of fiduciary duty and negligence-based malpractice claims.

As a result, the case went to trial only on a contract-based malpractice claim against Senser and her former firm.

Senser's lawyer, James W. Christie of Christie Pabarue Mortensen & Young, said he was "surprised and disappointed" by the ruling, and that he intends to file an appeal.

But Christie said that since Bernstein has not yet written an opinion, he cannot discuss the issues in detail because he is "confused about the basis for the decision." The evidence at trial, he insisted, showed that "there was no malpractice," and that "no contract was breached."

Crown's lawyers -- John M. Elliott, Henry F. Siedzikowski and Mark J. Schwemler of Elliott Greenleaf & Siedzikowski -- said that if the judgment is not satisfied, they, too, intend to appeal and seek reinstatement of the dismissed claims against all of the defendants, including Montgomery McCracken.

The case centered on work done by Segre & Senser in 1996 and 1997 when Crown hired the firm to work on the leasing and sale of a large piece of real estate in Van Nuys, Calif. (Both Senser and Segre joined Montgomery & McCracken in 1998.)

Crown claims in the suit that it asked the firm to draft a lease for the property that could be canceled by Crown if the property sold.

But when Crown evicted Universal Warehouses from the property, the suit says, the tenant sued for wrongful eviction.

After protracted litigation in the California courts, the case went to trial in February 2002, the suit says, and Crown was hit with a verdict against it in the liability phase of the trial.

Crown claims in the suit that the liability verdict pointed up the malpractice by Segre & Senser.

In announcing his ruling, Los Angeles County Superior Court Judge Stanley Weisberg said the lease agreement drafted by Segre & Senser was "inartfully written and done so in a confusing fashion, which lends itself to ambiguities and disagreements."

Weisberg also said in his ruling from the bench that he was forced to decide whose testimony was more credible, and that he rejected Senser's testimony.

According to a transcript of the judge's bench ruling, Weisberg said: "Had she [Senser] meant the first right to cancel to be as expansive as she described it here in court, then she would have described it that way in her written communications and binding agreement she prepared between Crown and Home Depot. She did not do that."

Crown claims in the suit against Senser that Weisberg's ruling on the liability phase of the case forced it to settle for $4 million in order to avoid the prospect of a much larger verdict if the case had gone forward.

But Christie said in an interview that Crown's decision to settle was "voluntary," and that it continued to have "complete defenses" that would have prevented it from facing any money judgment against it in the California court.

Elliott, in an interview, disputed that claim, saying the law is clear that a former client such as Crown has the right to settle under such circumstances where it has already been hit with a liability verdict and faces the prospect of a much larger verdict if it refuses to settle prior to the damages phase.

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Mayor, Conrad differ on code

Sunday, May 13, 2007

By GINNY WRAY - Bulletin Staff Writer

Martinsville Mayor Kimble Reynolds Jr. said Treasurer Pat Conrad would have to approve the transfer of delinquent tax collections to City Attorney Eric Monday under the state code.

The code states, “The governing body may appoint or hire, with the approval of the treasurer and upon such terms as may be agreed upon, one or more attorneys to collect any local taxes or other charges which may have been delinquent for six months or more.”

“Obviously we want to make sure we do not encroach on the treasurer,” Reynolds said Saturday as he quoted the code.

But Conrad is not so sure Reynolds is right. She pointed out that the next paragraph in the code states, “In the alternative to the procedure set forth in subsection A, the governing body may place local taxes or other charges which have been delinquent for six months or more in the hands of the sheriff of the county or city for collection or employ a local delinquent tax collector to make such collections ... .”

If given the say on the matter, Conrad said she “absolutely” would want to keep the collections.

“I want to do it because across Virginia, except Bristol, treasurers do it. It’s more efficient financially for the treasurer to do it because there is no commission, all revenues go into the general fund, and the taxpayers won’t have to pay an additional fee” for the commission of a tax collector, she said.

As part of his contract to become a full-time attorney for the city of Martinsville and Patrick County, City Attorney Eric Monday would take over collections of taxes that are delinquent more than six months. That contract, which Monday drew up, has been approved by Martinsville City Council and the Patrick County Board of Supervisors but not signed.

As the delinquent tax collector, state law permits him to collect and keep a 20-percent commission on all past-due tax bills he collects, according to both Monday and Conrad.

City treasurers are not entitled to the commission, Conrad said.

Conrad provided statistics showing that from July through April, her office collected about $456,562 in delinquent personal property taxes and about $500,000 in delinquent real estate taxes, for a total of $956,562.

If all of the $956,562 was owed at least six months, the 20 percent commission would equal $191,312.40, calculations show.

However, it could not be determined Friday how much of those taxes had been delinquent for more than six months and therefore would be subject to the commission.

Monday defended the 20-percent commission, saying it was set by state code and is less than an attorney would make in private practice. For instance, he said a private attorney who takes a case on contingency would get a one-third commission on a personal injury case and 40 percent on a medical malpractice case.

“When you compare it with the standards of the legal profession, it’s half of what a lawyer would normally take,” he said.

It also can reflect the effort that goes into a case, Monday said.

“If someone is willing to pay their taxes, they’re not going to pay 20 percent. If they make me run all over creation ... I don’t have any problem taking 20 percent,” he said.

Monday said he intends to offer delinquent taxpayers a chance to pay less.

“My intention is to send notification to these folks that says, ‘You’re six months in arrears. If you pay now, it will be significantly less than 20 percent. ... If you don’t pay (the tax bill), you have to pay 20 percent,’” he said.

He added that he has not yet determined what “significantly less” will be.

Most people pay their taxes, Monday said, noting that only about 1 percent of the city’s total tax bills are delinquent. It is virtually impossible to have 100 percent collections, he said.

“I think Pat’s (Conrad) collections have been quite effective. She has a 98-99 percent collection rate,” he said.

But, Monday said, tax collections are time-consuming for her office, and there are different collection tactics that could be used.

“If I’m effective, council will be pleased,” he said. If not, council can return the collections to the treasurer’s office at the end of his three-year contract, he added.

Conrad plans to approach Martinsville City Council to oppose shifting the collections from her office at its work session Tuesday.

She will say that the change will cost Martinsville residents more money, will decrease city revenues “and I can continue to do the same job that I am and if they would hire an attorney to sell properties, they would have a win-win situation.”

Several years ago the city hired a Norfolk law firm to sell properties with delinquent taxes because then-City Attorney David Worthy said he did not have time to deal with it. Conrad said she referred about 10 properties to the firm and three were sold.

She would like to see the city hire an attorney to do that work, she said, adding that it costs money in the short run for the legal work, but in the long run it returns properties to the tax rolls.

Monday said the city has about $1.5 million in delinquent taxes, but Conrad says that varies month to month. Most months, it is a little over $1 million, she said.

As of May 1, the city had about $700,000 in delinquent personal property taxes and $578,000 in delinquent real estate taxes, according to figures from her office.

Patrick County has just less than $400,000 in delinquent taxes, Monday said.

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Man awarded $3M in malpractice suit

HAMMOND | A Lake County Superior Court jury deliberated nearly nine hours Friday before awarding Steven Sangster $3 million in a medical malpractice suit.

Sangster, 30, filed against orthopedic surgeon Dr. Richard Oni and anesthesiologist Dr. James Kim whose medical actions left Sangster with brain damage.

After Judge Diane Kavadias Schneider read the verdict, Tametra Burns, Sangster's sister and legal guardian, broke down into tears and hugged the family's attorney, John Kopack, of Kopack & Associates in Merrillville.

"Steven ... was in court and smiled at me after the verdict was read," Kopack said in a release. "He didn't fully understand what had happened, but I hope he knows that for once in his life, he got a fair shake from fate and that it was a good jury that did it for him."

After four days of testimony and a day of deliberations, the seven-member jury found the physicians negligent.

On July 12, 1996, Sangster, then 19, underwent spinal surgery by Oni at Methodist Hospitals Northlake Campus in Gary, for the correction of congenital scoliosis or curvature of his spine, the release stated.

About three hours into the surgery, the anesthesiologist informed Oni that some of the patient's monitoring equipment had malfunctioned, but Oni chose to continue the surgery.

An hour later, Sangster went into cardiac arrest and a coma.

Later, he was diagnosed with permanent brain damage due to lack of oxygen during the surgery, Kopack said in the statement.

In 2001, a medical review panel of three doctors ruled that Oni and Kim had breached the standard of care during surgery and caused Sangster to suffer injuries.

"I think that the panel included one doctor that was appointed by both Dr. Oni and Dr. Kim, and their own panel expert ruled against them, convinced the jury to take the testimony of the experts hired by the doctors' insurance companies with a very large grain of salt," Kopack said in the statement.

Kopack could not be reached for comment Friday evening. It was not immediately known where Sangster is from.

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Woman says surgery causing facial pain

By Phil Ray,

An Altoona woman who claims she has experienced constant pain in her face and head for years has sued her doctor, alleging he clipped a nerve when he operated on her in 2003.

A Blair County civil court jury is being asked this week to resolve the dispute pitting the patient, Sandra Saive, against the doctor, Ramesh Agarwal, an otolaryngologist who has practiced in the Altoona area for more than two decades.

The doctor says he was not negligent in treating the woman, who came to him with sinus problems. While operating on her, the doctor said, he noticed a growth in the sinus and performed a biopsy to determine if it was cancerous.

As it turned out, the supposed growth was determined to be an ‘‘abnormal extension of a nerve,’’ according an attorney for the doctor.

The trial began Monday in the courtroom of Judge Elizabeth Doyle before a jury of six men and six women.

Court activity is suspended today because of the primary election, but will resume Wednesday. Doyle has set aside the entire week for the medical malpractice case.

Attorney Matthew Wimer of Pittsburgh, representing Saive, said his client suffered from allergies each spring, which brought on headaches and other problems. Her problems worsened in 2002 when she experienced head pain and her jaw locked up.

During the surgery, Wimer said, Agarwal was able to correct the problem in Saive’s sinus but he also noticed the growth. The laboratory at the former Bon Secours Hospital indicated the biopsied material included ‘‘irregular pieces of nerve tissue.’’

Beginning immediately after the operation, Saive said she had numbness and facial pain triggered by eating, by holding her head in a certain position, or by touch.

She has undergone three surgeries and pain therapy since the operation.

The attorney representing the doctor, John Helsey of Pittsburgh, said, ‘‘(The growth) turned out not to be malignant, but Dr. Agarwal did not know that at the time of surgery.’’

He said the doctor corrected the problems with Saive’s sinus and then biopsied the growth.

‘‘He did what he was supposed to do,’’ said Helsey.

Just because the patient ended up injured does not mean the doctor was negligent in his treatment, Helsey argued.

He asked the jury to find in Agarwal’s favor and not to decide the case based on ‘‘sympathy.’’

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State bar suspends Los Osos lawyer

A Los Osos attorney has been suspended from practicing law for two years and ordered to repay thousands of dollars to clients after state bar officials found that he turned over his Los Angeles law practice to employees who were not lawyers.

Robert Howard Sack — who has practiced law in San Luis Obispo County since 1996 — was found responsible for 20 counts of misconduct related to his Los Angeles practice, according to documents from the State Bar of California, the agency that regulates attorney conduct.

The allegations ranged from failing to perform services competently to not notifying clients that the firm had their settlement checks.

Those allegations also included failure to refund money to clients for legal services not performed and asking that clients withdraw their complaints against him, according to state bar documents.

The state bar court placed Sack on probation for three years and ordered him to pay about $50,000 in restitution to clients. His license was suspended as of Feb. 17.

Sack denied some of the violations last week in a brief conversation with The Tribune and said none of the incidents involved clients in San Luis Obispo County. He did not return repeated phone calls for further comment.

The problems with Sack’s Los Angeles law office began in 1998 when he opened the business while living in Morro Bay, according to a state bar investigation. Because of his wife’s health problems, he spent little time in the Los Angeles office, the state bar record states.

That practice, which handled mostly personal injury cases, was being run by employees who were not attorneys, state bar records showed.

About a half-dozen employees, including an accountant and a translator/office manager, ran the office, according to state bar records.

Those employees took money from clients for their personal use, opened bank accounts in Sack’s name without his consent, lied to clients and forged signatures on settlement checks, state bar records showed.

For about two years, Sack’s employees settled cases and collected money on clients’ claims without the knowledge, authorization or consent of clients.

They also interviewed prospective clients, evaluated cases and collected advance fees, all without oversight from Sack.

“In many cases (Sack) never met or ever spoke to his clients,” the state bar investigation showed. “(Sack’s) misconduct significantly harmed his clients… over $100,000 was misappropriated….”

The firm wrote one client at least 23 bad checks after he demanded the return of $32,000 because Sack had not worked on his case, records showed.

At least one client filed a lawsuit against Sack for a debt owed, according to records, and two clients filed complaints with the state bar.

Sack has filed civil lawsuits against his employees, including two against his accountant.

In one suit, Sack sued for malpractice and in the other for filing fraudulent and inaccurate tax returns.

The malpractice lawsuit had not been resolved at the time of Sack’s testimony before the bar court, and the tax-return lawsuit resulted in a judgment in Sack’s favor for $15,000.

Sack asked the state bar court to review his suspension, but his appeal was denied last month.

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Doctor: Promise no lawsuit

By Mary Jo Layton
The Record (Hackensack N.J.)

HACKENSACK, N.J. — If you want to see gynecologist Ruth J. Schulze, you’ll have to sign a contract promising never to sue her for malpractice.

The veteran physician in Ridgewood, N.J., requires the contract as a condition of treatment.

Schulze sees it as the only way to control the rising malpractice premiums that have put some of her brethren out of business. But patient advocates and legal experts are troubled by the idea of asking patients to sacrifice their legal rights — and they worry that the practice could spread.

By signing the contract, patients forfeit their right to a jury trial and agree to limits on pain and suffering awards and punitive damages. The contract blames patient lawsuits for “ever-escalating’’ malpractice insurance rates.

Schulze said most of her patients haven’t balked at signing the contract.

“About 80 to 90 percent sign up and don’t have a problem with it,’’ said Schulze, a former president of the Bergen County Medical Society.

“Some people ask a few questions to understand what it is,’’ she said. “Other people say: ‘God, I hear what you’re going through; let me sign.’ Some people ask to take it home.’’

Patient advocates, however, say these contracts have no place in a doctor-patient relationship.

“They’re asking patients to sign away their rights preemptively before they’ve even delivered medical services,’’ said Laura MacCleery of Public Citizen Health Research Group, a Washington, D.C., patient-advocacy organization. “This is outrageous.’’

Gary Saperstein, president of the Association of Trial Lawyers of America-New Jersey, said he doesn’t think the contracts will hold up in court.

“People are under duress when they’re seeking medical care,’’ he said. “I think it’s unconscionable that they’re trying to conduct business in this form and fashion.’’

The president of the company that insures Schulze insists the contracts are legally binding. Eugene A. Rosov said they are modeled after conflict resolution programs used in a variety of businesses.

In fact, California’s largest health insurer, Kaiser Permanente, requires patients to agree to binding arbitration rather than a jury or court trial.

For physicians who have struggled as malpractice premiums skyrocketed in recent years, these new policies are significantly less expensive. OB-GYNs practicing in New Jersey paid $87,081 to $171,199 last year for regular malpractice coverage — more than double the base rates four years ago that ranged from $41,391 to $77,983, according to Medical Liability Monitor, which tracks rates nationally.

Schulze’s new policy costs her half of what she had paid. She refused to disclose the actual cost.

She is one of more than a dozen New Jersey doctors who have joined Obstetricians & Gynecologists Risk Retention Group of America Inc.

“This is a choice for physicians and patients,’’ Schulze said. “It keeps premiums under control.’’

Schulze insists that switching to OGRRGA isn’t just about saving money. The company requires extensive risk management — independent review of medical charts, for instance — which she said will lead to better medicine.

“We’re going to tell them when their charting is bad, when they’re not properly doing informed consent,’’ Rosov said. “We’re going to criticize recordkeeping. It’s designed to make them question themselves all the time and challenge themselves to make them better doctors.’’

In North Jersey, Ruth Schulze has been the very public face of what doctors dubbed the “malpractice crisis.’’ A respected practitioner who has tended to 2,900 births, Schulze has a clean record — she was sued twice and won both cases. Yet her premiums continued to climb.

In 2003, Schulze was an eloquent leader in the campaign to curtail rising liability costs. She urged her colleagues to strike and march at the state capitol to demand limits on malpractice awards.

The effort failed.

In 2005, she stopped delivering babies, a move that lowered her insurance costs but left Schulze and some of her patients tearful. She now practices gynecology part-time.

Schulze sees the contract she asks patients to sign as a way to “level the playing field between patient and doctor.’’ If a patient she has treated for years declines to sign, she said, she would consider still providing care.

By signing, patients agree to forgo their right to a jury trial and agree to binding arbitration. Pain-and-suffering awards are capped at $250,000. Punitive damages are limited.

In the event of a claim, the physician and patient each select an arbitrator, then jointly agree on a third. Experts in gynecology and obstetrics decide the case, not a jury. There are no appeals.

Arbitration eliminates the need for lengthy and expensive trials, Rosov said. Defending a physician costs up to $200,000, even when the verdict is in their favor — the case in the vast majority of malpractice trials, he said.

If patients win an award in arbitration, attorneys aren’t taking one-third or more of the money, as they often do in trial awards, Schulze pointed out. In arbitration, claims are resolved much more quickly.

But limiting a patient’s legal rights raises many questions for patient advocates.

Robert Hunter, an insurance expert with Consumer Federation of America, considers arbitration “nowhere near as consumer-friendly as a court and jury. It’s very one-sided.’’

Lee Goldsmith, an Englewood Cliffs, N.J., medical malpractice attorney, said an “angry’’ patient recently provided him with a copy of one of the contracts. The 61-year-old woman’s gynecologist had asked her to sign it. She refused and found another doctor, he said.

“What disturbs me is that the physician seems more concerned with litigation than quality of care,’’ Goldsmith said. “Doctors are trying to intimidate patients.’’

Others question the very premise of the contracts — that excessive payouts to litigious patients are driving up malpractice premiums. In a recent national study of malpractice payouts, Public Citizen found that payouts declined 15.4 percent between 1991 and 2005.

“We call it ‘the great medical malpractice hoax,’ ” MacCleery said.

Risk-retention groups have grown rapidly across the nation in the last few years — in New Jersey alone, three dozen have registered to insure physicians and health-care providers, state banking officials said. Owned by policyholders rather than investors, they emphasize profits less, Rosov said.

Not all require patients to sign contracts forfeiting their rights to a jury trial.

The Government Accountability Office, the investigative arm of Congress, is concerned about the rise in these plans. In a 2005 report, it warned about “the potential for future solvency risks.’’

Schulze, convinced that the new policies will lead to fewer lawsuits and better medicine, is willing to take the chance.

Lower malpractice rates will keep doctors in business and attract younger physicians who currently find liability costs prohibitive, she said.

“When all is said and done,’’ Schulze said, “the analysis will come down to this: It’s fair to all parties concerned and it is where American medicine should go.’’

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Doctor cleared in malpractice suit

By Anthony McConnell
A former Cody doctor was cleared of medical malpractice Friday.The six-man, six-woman jury took less than one hour to make its decision, delivering the verdict just before 6 p.m.
“I'm grateful the jury found in my favor,” said Dr. L. Charles Christensen of Helena, Mont., while still in the courtroom following the week-long trial. “I'm truly thankful.”In April 2006 Christensen, a urologist, and Dr. Rita Payne, formerly of Cody, were co-defendants in a similar civil lawsuit; the doctors won that case.Judge Wade Waldrip of Rawlins heard the case last week. Plaintiffs attorneys Larry Grubbs and Michael Eiselein of Billings, also the plaintiff's attorneys in the 2006 trial, have several more similar cases pending against Dr. Christensen.Theresa and Juan Pina sought $855,193 from Dr. Christensen for past and future medical expenses, pain and suffering and loss of enjoyment of life. They also sought $75,000 for Juan Pina for the effects his wife's illness had on his life.
“This is a case about complications,” Christensen's attorney, Scott Klosterman of Casper, said in his closing argument. “Complications happen in medicine. They always have, they always will.”“Complications do not equal negligence,” he added. “There is simply no evidence Dr. Christensen is responsible for her condition.”Pina's complications were due to pre-existing conditions not disclosed before surgery, Kolsterman said.Had those preexisting conditions been disclosed Christenen said his treatment would have remained the same.Christensen testified Mrs. Pina was referred to him by Dr. Payne in October 2001 for an incontinence evaluation.During the evaluation Pina revealed her urethra had been damaged during the birth of one of her children.Christensen suspected Pina had a urethral diverticulum, a defect in the urethra, and recommended she have surgery to correct the issue.The surgery involved placing a “sling” around the urethra in an effort to relieve Pina's incontinence.The procedure was scheduled to coincide with a hysterectomy being performed by Dr. Payne.During the surgery Christensen determined Pina did have a diverticulum and performed the sling procedure.“There was no indication the surgery wasn't a success,” Christensen testified.Shortly after her surgery, Pina developed a hole in her urethra. Another surgery was scheduled and performed by Christensen.Throughout his treatment of Pina, there were no signs of infection until after the second surgery, he said.According to Christensen, Pina developed a staff infection two weeks after her second surgery due to a clogged catheter. She was treated with high-dose antibiotics.After the second surgery Christensen referred Pina to a doctor in Denver. That doctor performed a third surgery to correct another hole in her urethra.Pina's suit further alleged Christensen implanted foreign tissue (cadaver tissue) into an inflamed and infected area, putting Pina's health at risk. She also alleged he should have replaced a foley catheter, which the parties agreed was removed too soon by Dr. Payne.When asked why he didn't replace the catheter, Christensen testified that he and Pina decided on self catheterization as a better option.“Given the circumstances I thought that would be the most appropriate option,” he said.When asked about the possibility that the use of cadaver tissue could have caused Pina's complications Christensen said there was no indication the tissue or his treatment was responsible.Two medical experts testified they would have taken the same actions as Dr. Christensen.Mrs. Pina and Grubbs declined comment following the jury verdict Friday night.

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