The target of a "shotgun" suit fires back

This physician turned the tables on an attorney who brought him into a case even though he'd never even seen the patient.

By Dorothy L. Pennachio
Senior Editor

Lawyers take heed: If you're thinking of suing Saad Mossallati, do your homework or face the consequences. After the thoracic surgeon was sued in a wrongful death case involving a patient he'd never seen, he spent four years defending the lawsuit that was ultimately dropped. Then Mossallati got even, winning an undisclosed, but "very substantial" settlement against the Wheeling, WV, attorney who'd brought the suit.

"The lawyer picked on the wrong kid," says Thomas G. Dyer, the Clarksburg, WV, attorney who represented Mossallati, "and it came back to bite him on the backside."

The initial malpractice case against Mossallati involved a 58-year-old man who'd torn his thoracic aorta in a car accident in 1994. Before the man died, the ED doctor at United Hospital Center in Clarksburg reportedly asked a nurse to enlist Mossallati's help. But the surgeon was operating on another patient at the time and wasn't on call. Still, that was enough to get Mossallati's name on the chart.

And that's how he ended up in court. The lawyer Mossallati countersued had filed a "shotgun" lawsuit, spraying everyone whose name appeared on the medical chart, instead of taking the time to see who might reasonably be at fault, says the surgeon.

"Doctors should hold the legal profession accountable when attorneys overstep," says Mossallati. "Give them a taste of their own medicine and ask for damages. The shotgun approach has to stop."

The surgeon tries to reason with the lawyer

Mossallati, who trained under Texas heart surgeon Denton Cooley, had been caught in the shotgun spray of litigation before, but hadn't chosen to sue. Why this time?

When Mossallati first received the lawyer's letter, he thought there'd been a mistake, so he called the attorney. Mossallati says William E. Parsons II of Wheeling told him his name and pager number were on the record. The surgeon tried to persuade Parsons to drop him from the case, but the lawyer wouldn't agree.

"He wasn't even willing to talk," says Mossallati. "That's what prompted me to bring suit. I would have let it go if he'd listened and been reasonable. But to drag it out for four years?" Mossallati had to attend depositions in defending the suit, or he could have been held in contempt of court.

The surgeon's defense cost his insurance company $81,000, and his premium was raised as a result. Mossallati also feels his reputation was tarnished.

"Lawyers have an obligation to differentiate between negligence and complication, to determine who's even remotely involved and who isn't before they file suit," says Mossallati. "They cause heartache, anxiety, emotional distress, not to mention a waste of money."

When he was finally dismissed from the malpractice suit, Mossallati couldn't find a lawyer willing to countersue. So, initially, he represented himself. But after five months, a judge insisted he get representation.

What made Dyer, a plaintiffs' attorney and member of the West Virginia Trial Lawyers Association, decide to incur the wrath of his colleagues by taking on the surgeon as a client? "Dr. Mossallati has a very compelling personality. He's hard to say No to."

Embattled local physicians are heartened

Mossallati's win bolstered colleagues in his state, where doctors have been fighting an uphill battle in a ferocious malpractice environment. West Virginia is one of 12 states designated by the AMA as in a medical liability crisis. The state's major malpractice carriers are either going out of business or refusing to insure physicians for less than exorbitant premiums.

"Liability insurance rates have skyrocketed in recent years, and in many cases are two or three times those being paid by physicians in other states," says Evan Jenkins, executive director of the state's medical association and a state senator. "West Virginia physicians are very frustrated and are starting to fight back," he adds.

Physicians have tried to call attention to the need for reform by conducting well-publicized work stoppages and demonstrations. In January, more than two dozen surgeons took month-long leaves of absence, leading to a suspension of almost all surgeries at four hospitals. In response, the state passed tort-reform legislation last March. Among other provisions, the new law includes tax credit for medical liability insurance premiums and a cap on noneconomic damages.

Mossallati's insurance premium is $119,000 a year. He says some colleagues pay upwards of $200,000. Still, Mossallati says he's not against malpractice suits—only abusive suits. "I want to see patients and doctors protected equally," he says. "Mistakes happen, and when they do, patients should be compensated. But there should be limits.

"The malpractice arena shouldn't be a game. The way things are structured now, it's a lottery where the most skilled attorney extracts the most money. Outcomes are not based on merit."

Why lawyers file shotgun suits

Do lawyers have a choice but to scatter shot? The statute of limitations for an adult patient in most states runs for two to three years following the alleged negligence. When the deadline approaches, the attorney's inclination is to sue anyone and everyone remotely involved, then sort out the facts in discovery, say malpractice observers.

"That's prudent," says Kevin Outterson, associate professor of law at West Virginia University College of Law in Morgantown and a health policy specialist. He points out that if the plaintiff's lawyer fails to sue a person, and two years later that person is found to be at fault, there can be a malpractice judgment against the attorney for letting the statute expire against the true defendant.

"But lawyers need to do their homework before the deadline approaches," says Outterson.

Mossallati's attorney Thomas Dyer agrees. "An attorney has an obligation to zealously advocate on the part of his client, but when an attorney picks up a chart containing a half dozen names, and without taking a closer look, includes them, a couple of nurses, and the institution, that's like Mean Joe Greene from the 1970s tackling the whole backfield, then sorting out the guys to find the one with the ball."

Dyer concedes that in a massive automobile accident action that may be an appropriate way to proceed, "but not in medmal actions. The consequences of being named as a defendant are too devastating."

Dyer also notes that Parsons had the case for more than a year before he filed suit—presumably enough time to learn that Mossallati had no involvement.

Is a countersuit worth trying?

When we contacted plaintiff's attorney William Parsons, he responded, "You will do your readers a disservice if the message of your article is 'sue the lawyer who sues you.' You will have a lot of doctors disappointed in the outcome."

Dyer doesn't disagree. "It's exceptionally rare for a doctor to successfully sue a plaintiffs' lawyer for a malicious or wrongful prosecution," he says. "If a doctor's going to sue a lawyer, it's more common for him to sue his own attorney for negligence in the way he defended a case. But Mossallati's was an egregious case that needed to be redressed." Law professor Outterson also finds this case unusual. "I've never seen one like it in West Virginia," he says.

Still, Dyer encourages other doctors to pursue countersuits. "Lawyers need to understand the devastating effect these cases have on doctors—financially, emotionally, and professionally," he says. If they do, he adds, they'd make certain they had a viable cause of action before they filed.

"Malpractice cases hurt," says Ronald S. Dubin, an orthopedic surgeon in Middlesborough, KY, who won a similar countersuit years ago, "because you feel you've done something wrong when you haven't. Attorneys use degrading terms and make you feel incompetent." He says that during his case, "I went to bed angry about it every night. I couldn't sleep."

Outterson adds, "Insurance companies tend to drop doctors who are sued a lot, and sometimes they aren't very careful about how they make their decisions. Clearly, a company shouldn't drop a physician who's sued indiscriminately and dismissed, but it happens."

"Even when a doctor is cleared of any wrongdoing, the defense cost is significant, and that affects insurance premiums," adds Jenkins of the state medical association. "I expect we'll see more and more physicians following Dr. Mossallati's lead."

That may be true. Mossallati has been getting calls from all over the country asking his advice on how best to countersue. "A lot of doctors go through what I did, but don't think of fighting back," he says. "I hope when they see I was successful, it'll encourage them to do the same," he says.

"We shouldn't be content to be clay pigeons," adds orthopedist Ronald Dubin. "We've got to fire back."

Want to countersue?

The rules vary subtly from state to state. In general, the malpractice suit must have terminated in your favor, through summary judgment, dismissal, or a trial victory, says Thomas G. Dyer, the Clarksburg, WV, attorney who represented surgeon Saad Mossallati in his countersuit. Then you have to prove that the case was completely groundless and filed maliciously. The malice can be inferred from the circumstances. The original case has to be completely without probable cause.

To prevail, you also have to prove that you suffered damages, such as lost income or attorney's fees. Humiliation, loss of reputation, and other potential noneconomic damages are also generally recoverable. Consult a respected local tort litigator to determine precisely what types of claims are available to you.

Kevin Outterson, associate professor of law at West Virginia University College of Law in Morgantown and a health policy specialist, offers this advice to doctors caught in the net:

"If you just want to get dismissed from a case and are not contemplating a countersuit, your professional liability insurance carrier is going to run the show. Communicate with the company's lawyer, not the plaintiff's attorney. Communicate early and clearly and produce evidence. That allows the attorney to get you dismissed quickly."

He also suggests hiring a personal attorney who can act as a liaison with the insurance company's attorney about an appropriate motion to dismiss.

"Your communication with him may provide him with evidence to get you dismissed early, well before depositions," says Outterson.

You may end up spending thousands to get your own lawyer, but it's worth it, and the carrier might pay the tab.

Dorothy Pennachio. The target of a "shotgun" suit fires back.

Medical Economics

2003;7:43.