Frivolous suits

These doctors bite back

A Texas judge hits a high-profile lawyer with a $50,000 fine for filing a frivolous malpractice suit.

By Robert Lowes
Senior Editor

Corpus Christi, TX, and surrounding Nueces County number among the nation's "judicial hellholes," in the words of one tort reform group. Area physicians would agree—six of every 10 had at least one malpractice claim filed against them during the four years from 1988 through 2001, according to the Texas Board of Medical Examiners.

Few have made it hotter for local doctors than personal-injury attorney Thomas J. Henry. Until recently, a giant sign advertising his services stood across the street from Driscoll Children's Hospital, greeting ambulances—no chasing needed.

Last year, though, Henry received some unwelcome publicity when a judge fined him $50,000 for bringing a frivolous, harassing suit against ED physician Stephen Smith and internist Robert Low. The two doctors said they were falsely accused of prescribing a drug alleged to have caused a patient's death. Henry had either neglected to study the patient's medical records or else had filed the suit knowing the allegations were false, they argued.

Curiously enough, Henry had filed a motion to withdraw as counsel the same day he filed the suit. The litigation itself was hurriedly dropped, but not before it inflicted psychic damage on the doctors.

"Being sued," says Smith, "is like someone ripping out your heart."

Corpus Christi physicians cite Henry as a prime example of why malpractice premiums are soaring. "Flimsy suits like his are filed before there's adequate investigation," says Low.

The pugnacious attorney, however, sees a small cadre of bad physicians as the true source of the malpractice crisis.

"Look at the stats," says Henry, who has appealed his fine. "How many people die from malpractice? It's very high. If you kill all the lawyers tomorrow, you'll still have an unbelievable crisis in the health care community."

Did Henry ever study the medical records?

The case that led to the attorney's comeuppance involved a 58-year-old man named Henry White. On Nov. 20, 1999, White went to the ED at Columbia North Bay Hospital with symptoms of what doctors later diagnosed as an ischemic stroke. Smith, the first to see White at the hospital, treated him for 30 to 45 minutes and then handed him off to another ED physician. Low took over the next day. Several days later, a comatose White was transferred to another hospital, and he died shortly thereafter.

White's medical record contained a statement that colored the subsequent litigation. It said that one of his current medications was the heartburn remedy Propulsid. That was a red-flag drug for a plaintiffs' attorney like Henry, because its maker, Janssen Pharmaceutica, a subsidiary of Johnson & Johnson, pulled the product from the market in 2000, after studies linked Propulsid to heart rhythm abnormalities and 80 deaths. Janssen was battered with hundreds of lawsuits, including one in Mississippi that resulted in a $100 million jury verdict (later reduced to $48 million) in September 2001.

However, White's medical record indicated that no one at Columbia North Bay Hospital had prescribed Propulsid during his stay. And while the drug was listed as a current medication, White had been off the drug for approximately two weeks before he went to the ED.

Shortly before the Propulsid verdict in Mississippi, Henry began collecting White's medical files. Then, on Jan. 31, 2002, just a few days before the statute of limitations would bar the action, he filed a lawsuit on behalf of White's widow, Joyce White.

The suit's defendants included Janssen, Columbia North Bay Hospital, a nurse practitioner, and eight physicians—among them Smith, Low, two radiologists, and a pathologist. It was a classic shotgun suit, in which an attorney sues anyone mentioned in the medical record and then searches for evidence to find a truly liable party (See "A plaintiffs' attorney admits to filing shotgun suits").

The suit accused the hospital and physicians of prescribing Propulsid. Later on, the suit listed 16 allegations against the health care providers, one of which faulted them for inadequately monitoring Henry White's heart condition. The suit didn't state which defendant committed what act, another shotgun-lawsuit tactic that sparked contention later on.

Low and Smith responded with separate court motions to sanction the attorney for filing a frivolous suit. Henry quickly filed a court document to drop the suit. He says he did so at the request of Joyce White—although he no longer represented her. "No attorney ever took over the case," says Henry.

"He didn't believe it, he never believed it."

White's suit was history, but Henry's own legal problems were just beginning. His lawyering came under hostile scrutiny at a sanctions hearing in July 2002 before state district Judge Ronald Yeager.

Kevin Oncken, the attorney for Low and Smith, noted that when Henry signed the initial petition, he certified under Texas law that the pleading was not groundless or brought in bad faith. His request to withdraw as Joyce White's counsel on the day he filed the suit, Oncken argued, demonstrated that he deemed the case groundless.

"He didn't believe it, he never believed it," Oncken said.

Two other doctors from the area testified that Henry had hit them with frivolous litigation, too. Ob/gyn Robert Mastin said Henry had brought a Propulsid suit against him in May 2001 on behalf of a woman whom he had never treated. The suit, eventually dropped after Henry was threatened with sanctions, was nearly identical to the White suit, and Henry later admitted that he had used a boilerplate petition stored in his computer.

Henry also represented another woman who sued Mastin and two other members of his group in 1998, even though she hadn't been their patient. One member, Christine Canterbury, testified that she and the other doctor hadn't even belonged to Mastin's group when the malpractice allegedly occurred.

Mastin and Canterbury admitted, however, that the controversial lawyer had notched at least one legal victory against them. Henry had named the pair in another suit involving a brain-damaged baby, and both doctors had recently agreed to a six-figure settlement. Canterbury called her medical actions defensible, but suggested that she was afraid of taking her chances with a local jury.

With regard to the White lawsuit, Keith Gould, a lawyer for Henry, argued that his client shouldn't be sanctioned because, among other reasons, the suit went beyond Propulsid. Granted, Smith and Low hadn't prescribed the drug. But some of the allegations centered on tests that Smith and Low should have ordered for White. If Henry hadn't sued them, he might have been guilty of legal malpractice, according to Gould.

No one should fault Henry because the outcome of the litigation was uncertain, his lawyer added. "There's nothing in the law," argued Gould, "that requires attorneys to have a lockdown, 100 percent certain winner of a lawsuit before they file it."

Gould's arguments didn't convince Judge Yeager, who fined Henry $50,000. He later stated that the penalty was warranted to deter Henry and other lawyers from filing groundless, bad-faith suits.

Henry takes the stand: "I felt the case had merit"

Henry didn't attend the sanctions hearing, but testified before Judge Yeager at a second hearing in an attempt to overturn the penalty. "There was a conflict between my client and myself regarding the pursuit of this particular case, and that precipitated the motion to withdraw," he testified. "I felt the case had merit, but it was one that I did not want to spend my time and effort on."

Henry said he hadn't intended to blame all the doctors for prescribing Propulsid, though the suit's language seemed to do just that. He admitted that only one of the eight doctors possibly ordered the drug—he wasn't sure. He also stated that of the 16 allegations against the physicians, only a portion of the 16th—failing to continue to monitor White's condition—applied to Low and Smith.

The attorney, however, maintained that he had solid reasons to sue the two doctors. He launched into new accusations not found in the suit—that Smith had failed to diagnose the stroke or order a CT scan to pinpoint White's problem, and that Low hadn't brought in a neurologist. Another local personal-injury attorney backed Henry up, saying the doctors' actions suggested negligence. But Judge Yeager refused to admit the new evidence.

Henry has appealed the sanction, alleging a long list of errors on Judge Yeager's part—admitting extraneous evidence such as the testimony from Mastin and Canterbury, excluding relevant evidence, focusing solely on Propulsid, erroneously requiring White's suit to state which defendant committed which offense, and jumping to conclusions about Henry's motives, to name a few. On that last point, Henry's appeals brief suggests that his motives were admirable: An attorney might file a suit he doesn't want to prosecute himself simply to help a client beat a statute-of-limitations deadline.

Tort reform that didn't work and white-coat withdrawal

One tort reform that directly addresses frivolous lawsuits didn't prevent the White suit. Texas is one of 19 states that require a plaintiff to file a certificate of merit from a medical expert attesting to negligence or stating the suit is reasonable. While some states require plaintiffs to attach the form to their suit, others allow them to submit it after the suit is filed.

At the time of the White suit, Texas plaintiffs had to submit the expert's report within 90 days, or else file a bond and submit the report within 180 days. But judges often failed to enforce these provisions, says Rocky Wilcox, general counsel for the Texas Medical Association. No report was ever filed in the White case. (Texas has since toughened the provisions and now requires judges to dismiss cases that don't meet them.)

Another line of defense against frivolous litigation, of course, is a court sanction. Texas and 21 other states authorize judges to penalize lawyers who file such suits, according to the American Tort Reform Association. But it's costly to physicians and others to bring charges against attorneys. Internist Robert Low says his malpractice carrier financed his effort to have Henry sanctioned, but that other carriers won't foot the bill for colleagues in the same situation.

Plus, it's hard to convince a judge to punish an attorney, says Bob R. Fields, executive vice president of claims operations for Texas Medical Liability Trust, a malpractice carrier. "In Texas, judges run for election and receive campaign contributions from attorneys," he says. "If judges sanction someone, they risk losing a contributor. So it rarely happens."

It's not clear whether Henry's fine has lowered the litigation temperature in Corpus Christi. What's perfectly clear, however, is the ongoing mood of despair among doctors. "We have lots of lawyers like Henry, the judges are partial to them, and the juries are the icing on the case," says Stephen Smith. "You can't afford to go in front of a jury, even if you know you're innocent."

Corpus Christi, like other "judicial hellholes," is experiencing white-coat withdrawal. Several neurosurgeons have left town or retired early, some ob/gyns have stopped delivering babies, and specialists of all sorts are cutting back ED call and refusing high-risk cases. "We're losing health care resources," says anesthesiologist Mary Peterson.

If it's any comfort, Henry appears to be advertising less these days. He's not on the cover of the Corpus Christi Yellow Pages anymore.

Then again, other personal-injury lawyers have taken his place.

A plaintiffs' attorney admits to filing shotgun suits

Personal injury attorney Thomas J. Henry in Corpus Christi, TX, is normally the one asking all the pointed questions. But in a hearing held last year, he was cross-examined by Kevin Oncken, an attorney for the physicians who had sought sanctions against the lawyer for filing a frivolous lawsuit against them. In the following exchange, taken from a court transcript, Henry concedes that he sometimes names a menagerie of doctors as defendants to find his real malpractice target later on:

Q. It is true that it has been your practice, when faced with and when you have decided to accept a case for filing that is at or up against the statute of limitations, that you will sue every physician whose name appears in the chart. And then, after the case has been preserved, you will go through and dismiss those for whom there is no merit in your allegations. True?

A. That's not my—that's not necessarily my common practice, but that has occurred.

Q. You have done that, haven't you?

A. Named doctors that are in records? That's your question?

Q. Named physicians in records simply—simply because the statute of limitations approaches, with the specific intent to carve out those for whom there is no support after the fact. You've done that?

A. Because discovery has to occur. And sometimes that does occur, yes.

Q. You've done that, haven't you, Mr. Henry?

A. I sure have.

Q. Your office has done that as per your instruction as well. True?

A. Sometimes we name doctors to protect our clients' rights, yes.

Q. Doctors who didn't even see the patient. Correct?

A. I can't think of a case off the top of my head, but that's possible.

"The sign made me angry every time I drove by it"

Some Corpus Christi physicians harbor an almost visceral dislike of Thomas J. Henry, the plaintiffs' attorney who was fined $50,000 for filing the frivolous malpractice suit described in the accompanying article.

When his photo appeared on the front and back of the local Yellow Pages last year, more than one doctor ripped off the covers.

Henry also advertises extensively on television. The advertising that has galled doctors the most, however, is the sign Henry put up on a low wall outside a now-defunct office of his across from Driscoll Children's Hospital. "Loving parents always protect their children and justice demands that children be protected," the sign stated. It mentioned some child injury cases he handled: Auto accident, cerebral palsy, brain damage, burns, and amputations.

"The sign made me angry every time I drove by it," says anesthesiologist Mary Peterson, who works at Driscoll. "It was another example of ambulance chasing."

The Corpus Christi City Council had its own beef about the sign. At roughly 80 square feet, it was almost four times bigger than the zoning code allowed. Eventually, Henry removed the sign and erected a smaller version on a nearby vacant lot. This second sign came down last spring.

Henry says he never intended his signs to suggest that hospitals were places to avoid. "Loving parents will bring a sick child to the hospital," says Henry. "But if they feel something has not gone right, they should question what happened."

Robert Lowes. Frivolous suits: These doctors bite back.

Medical Economics

Sep. 19, 2003;80:41.