"Let the dead dog lie"

November 19, 2001

That's a lawyer's advice to a doctor who let his anger at being sued get the better of him.

 

"Let the dead dog lie"

That's a lawyer's advice to a doctor who let his anger at being sued get the better of him.

By Berkeley Rice
Senior Editor

Doctors facing malpractice suits typically go through a predictable cycle of reactions including shock, fear, shame, and anger. Even when they win, they're apt to harbor thoughts of revenge against the plaintiff or his lawyer. Friends and colleagues usually discourage such notions, urging the irate doctor to "forget the suit and get on with your life." But Rudy Busby couldn't forget.

Busby, 57, is a prominent general surgeon in Salisbury, NC, where he's been practicing for nearly 25 years. In 1995, he and several colleagues treated a retired banker who died as a result of a ruptured appendix. The banker's sons sued several physicians in the case, including Busby.

After a two-week trial in May 1998, the jury found no fault with Busby. But they did find one of his colleagues negligent and assessed damages of $150,000.

Despite being exonerated, Busby wasn't happy. Joe McLeod, who represented the plaintiffs in the original malpractice case, recalls: "He had a real chip on his shoulder. He obviously resented anyone bringing a suit against him, or against any doctor."

The day after the verdict, Busby wrote a letter and put a copy in the mailbox of every physician on the staff at Rowan Regional Medical Center in Salisbury, the county's only hospital. The letter began:

"Dear Colleagues: Please be appraised [sic] of the following: "People who have sued doctors" [followed by the names and addresses of the two plaintiffs in the case] "Jurors who have found a doctor guilty" [with the names and addresses of the 12 jurors] and "Others of whom I am leery" [with the names and addresses of four witnesses for the plaintiffs].

The letter, signed "Rudy," concluded: "I am now back and offering a full line of General, Vascular, and Thoracic Surgery!"

It's not clear what the doctors who received Busby's letter thought of it, but somehow copies became public. Plaintiffs' lawyer McLeod called the letter "reprehensible" and "an affront to the legal system." He filed a motion with the trial judge asking him to hold Busby in contempt for intimidating and threatening the plaintiffs and jurors.

The matter eventually reached the state attorney general's office, which declined to pursue the issue. "While I personally believe that Dr. Busby's letter was distasteful," a prosecutor there told the Salisbury Post, "it did not violate any criminal law."

By then, Busby realized he'd made a mistake. Upon the advice of his lawyer, he wrote to his colleagues again, apologizing for and retracting his first letter, and asking them to discard it. "I did not intend to imply or suggest to any of you," the new letter read, "that the persons named, or anyone else, should be denied medical treatment, or that they should receive anything other than the best possible medical care that you can give them."

Whatever effect this semi-apology had on Busby's colleagues, it did little to mollify the jurors, who remained outraged. Interviewed by The [Raleigh] News & Observer, several expressed their anger at Busby. "What he did undermined the system itself," said Gene Moore. "Jurors should be able to make a decision without fear of repercussions." He recalled that the jurors had actually worried about possible repercussions during their deliberations, saying, "We've got to go to these doctors."

Another juror, Joy Clement, said, "We could not believe this happened. It really upset us. It was scary. We live in a small town, and have only a certain number of doctors here. . . . When I go to different doctors now, I'm afraid they'll recognize my name."

In May 1999, eight of the jurors sued Busby in state court, claiming his letter had interfered with and damaged their relations with their own physicians. They sought compensatory damages for invasion of privacy, intentional infliction of emotional distress, and obstruction of justice by "threatening and intimidating" the jurors. The suit also sought punitive damages against Busby for "intentional and malicious" actions and "outrageous and extreme" conduct designed to "injure, harass, and intimidate" the jurors.

The trial judge dismissed the case, agreeing with the arguments by Busby's lawyer: that the jurors had no legal cause of action since they were not directly threatened by the letter, that their names and addresses were a matter of public record, and that the letter was protected by the right of free speech. The jurors appealed.

Last March, the North Carolina Court of Appeals reinstated the jurors' suit. The appellate court agreed with the judge's dismissal of several of the jurors' claims, but upheld their right to sue for obstruction of justice and intentional infliction of emotional distress, thereby allowing for possible punitive damages. Busby has appealed the appellate decision to the state's Supreme Court. Because his appeal is pending, Busby and his attorney declined requests for an interview.

If this case does go to trial, and Busby loses, he could be liable for sizable damages. Would his malpractice insurance cover such a judgment? "Not under our policy," says David P. Sousa, general counsel for Medical Mutual Insurance Company of North Carolina, the state's doctor-owned malpractice carrier. "His alleged conduct doesn't fall within the definition of 'professional services,' and the letter was an intentional act, not negligence."

Whether Busby ultimately wins or loses, his retaliation may have already caused as much damage to his own reputation as a malpractice suit might have done. While any doctor who's endured a malpractice suit can understand Busby's instinct for retribution, Sousa offers this advice: "Once the case is over, let the dead dog lie."

 

Berkeley Rice. "Let the dead dog lie". Medical Economics 2001;22:30.