10 years in legal hell

During the campaign that led to the passage of a tort reform law in Illinois last summer, the case of neurosurgeon Lenard Rutkowski played a prominent role. His 10-year malpractice ordeal, and his willingness to publicize it, made him a poster boy for reform advocates in the state's medical community. In press releases and interviews with the media, they often cited his case as a prime example of a runaway jury and a heartless, unjust judicial system.

But was it really? Rutkowski's horrific experience may well confirm doctors' darkest fears of being wiped out-financially and emotionally-by a malpractice suit involving a small army of lawyers. And the case does appear to reveal a shocking disregard by the judicial system for the defendant's patients. But how typical a case is it? Do doctors really have to fear malpractice plaintiffs going after their personal assets? While Rutkowski did face the prospect of a devastating bankruptcy, does that happen with any regularity, or is this case an aberration? To find out, we took a closer look.

Rutkowski's epic battle began in 1992. He'd been in solo practice for 13 years in Joliet, IL, about 30 miles southeast of Chicago. Like most neurosurgeons, he'd been sued several times over the years, but he'd ended up making payments in only two cases: a $900,000 verdict in one, and a $300,000 settlement in the other. Given the rate of claims against high-risk specialists like neurosurgeons, that's not such a bad record.

Over the next few months, Murphy made follow-up visits to Rutkowski, and had physical therapy. The pain apparently improved, but Murphy claimed that the weakness remained, preventing him from doing the lifting required by his job. In 1993, he consulted another neurosurgeon, who told him that Rutkowski should have operated on the herniated disk at C6-7 instead of the healthy one at C4-5.

In 1994, that doctor removed the disk at C6-7 and fused the joint. Unfortunately, that didn't solve Murphy's problems, either. He continued to experience persistent pain in his neck, shoulder, and arm, and eventually sought treatment from a pain management specialist.

The legal battle begins

In June 1994, Murphy filed a malpractice suit against Rutkowski and the radiologist who had interpreted the X-rays Rutkowski had relied on for the surgery. The suit charged Rutkowski with negligence in interpreting the X-rays, misdiagnosing the problem, and operating on the wrong level. ISMIE Mutual Insurance Co., the doctor-owned carrier for both physicians, appointed an attorney (lawyer No. 1) to defend them.

Because he didn't want to upset his wife, Rutkowski didn't tell her about the suit for several years, even though she was also his office bookkeeper. When she did find out, she feared the case would result in a big jury verdict, and convinced him to settle. Rutkowksi then informed ISMIE that he wanted to settle the case. "I told them I was willing to take the hit," he recalls, "as long as they covered my legal expenses if I had to file for bankruptcy."