Malpractice: Defend yourself? Read this first

July 22, 2005

This doctor's decision to serve as his own counsel proved risky.

You may think that a malpractice suit is frivolous and not worth the cost of a high-priced defense lawyer. But acting on that thought isn't a smart idea. Michael Charles recently found that out the hard way. He thinks his experience illustrates the absurdity of the legal system, and perhaps it does. But it also shows the importance of hiring competent counsel rather than trying to defend yourself.

Charles, an orthopedic surgeon in St. Augustine, FL, first saw Phyllis Beaver in June 1997, when she came to his office with a complaint of pain in her right knee. Charles examined her, ordered an X-ray, and diagnosed degenerative arthritis. After conservative treatment proved ineffective, he recommended arthroscopic surgery, which he performed in January 1998.

The arthritis turned out to be more advanced than originally thought, however, and the procedure didn't relieve Beaver's symptoms. So Charles recommended a total knee replacement, which he performed in June 1998. Despite that operation, Beaver said she continued to experience pain and limited motion in her knee.

In March 2002, Beaver sued Charles and his practice, a professional corporation, claiming he'd been negligent in recommending and performing the total knee replacement instead of a less aggressive procedure. As a result of his alleged negligence, she claimed, she had suffered unnecessarily for almost two years. Her suit sought damages for pain and suffering, anxiety, loss of income, and medical expenses.

No insurance coverage means no defense attorney Although Charles did have malpractice insurance when he performed the surgeries on Beaver, he let the policy lapse-with no "tail" coverage-shortly before she filed her suit against him. "I was 65 by then," Charles recalls, "and only working part time. Renewing my malpractice insurance would have cost me $48,000, which was more than I made from surgery that year. So I dropped it." (In Florida, doctors aren't required to carry liability insurance if they meet certain financial and professional criteria, such as spending no more than 1,000 hours a year in direct patient care.)

With no coverage, Charles was faced with the prospect of hiring his own defense attorney, which he felt he couldn't afford. Convinced that the case against him was weak, he decided to represent himself. He studied some law books and consulted a family member with a law degree who helped him prepare his legal motions. He also got affidavits from several colleagues testifying that he had met the standard of care. He never had a chance to use them in court, however, or to test his own legal skills.

While the judge agreed to let Charles defend himself at his own trial, he explained that under Florida law Charles couldn't represent his own corporation. (In Florida and most other states, corporations must be represented in court by independent counsel.) The judge warned him several times about the possibility of a default judgment against the practice, but Charles remained convinced that no defense was necessary, and therefore didn't hire an attorney.

With no one to defend the corporation, the judge entered a default judgment against it in December 2003. Charles wasn't alarmed, however, because he says the judge assured him that no monetary judgment would be ordered against the corporation if he wasn't found personally liable in his own case.

The doctor goes "free," but not his practice In February 2004, about two weeks before the scheduled trial against Charles, Beaver's attorney dropped the claim against him because they knew he had no insurance, and because they'd already won the default judgment against his corporation. As a result, Beaver's attorney never had to present expert testimony (from the surgeon who did the repair, and an out-of-state expert) to support her negligence claim, and Charles never had a chance to produce his own experts. The judge dismissed the case against him.