COVER STORY

"I didn't know I was suing you!"

More and more doctors are hearing this as more and more patients are lured into class-action suits.

By Dorothy L. Pennachio
Senior Editor

I asked a patient who came for an office visit today why she was suing me. Mrs. X assured me she was not. I showed her the complaint.

"Oh, that," she said. "A lady called and asked if I wanted to join the class-action suit about Rezulin. I told her Okay, but not to drag you into it, because you're my doctor, and I know you were just trying to help me."

"But you weren't harmed by the drug," I said. "Why are you suing?" The patient said she didn't know, except that "the lady said I'd make money when it was over."

Mrs. X said she was sorry and promised to call her attorney and withdraw from the suit. I told her it was unlikely the attorney would drop her or me from the litigation at this point—I've had four patients instruct their attorneys to remove my name, and I have yet to be removed from any suits.

We recently received the e-mail above from Kurt Bruckmeier, an internist in Hattiesburg, MS, who is, he says, "the proud owner of 10 lawsuits regarding Rezulin." The drug is a diabetes medication that was withdrawn from the market in 2000 after reports of liver damage and fatalities.

Bruckmeier is just one of many doctors around the country who've been sued unwittingly by their patients. Typically the doctors are in states like Mississippi and Texas where plaintiffs' attorneys find the litigation climate especially to their liking.

AMA President and Louisiana surgeon Donald J. Palmisano cited the problem in his presentation before the National Press Club in Washington on July 9: "[Internist/ pediatrician Kurt W. Kooyer] left the small town of Rolling Fork [MS], finally fed up with a legal system that allowed lawyers to file suit against him without the patient's knowledge they were suing their physician."¹

According to Kooyer, who now practices in North Fargo, ND, "Anytime lawyers need to keep a case in a local court, doctors are going to be brought in as co-defendants." That's because an attorney can't file a class-action suit in a plaintiff-friendly venue until he has a class of local defendants in that venue. Says Terry Bryant, a Houston attorney who's handled many class-action suits against drug companies and doctors: "Juries are different in different states. We have to take that into consideration when we represent people."

Typically, drug companies try to get the venue moved to less plaintiff-friendly states, but plaintiffs' attorneys bolster their position by naming local doctors as co-defendants. Once the venue is secured, these doctors are often dropped from the suit.

But, by then, the damage has been done. "Being named as a co-defendant in a lawsuit distracts you from your work, makes it harder to get insurance, and costs a lot of money, not to mention the emotional strain," says Kooyer. "The damage is not just monetary—it goes to the heart of the patient-physician relationship."

Why patients don't know they're suing you

"I've been named in several class-action lawsuits against drug companies," says FP John Mann of Philadelphia, MS. "None of my patients was aware that they were including me in their suits."

Attorney Terry Bryant says he always makes it clear to his client when a family doctor is named in a suit. "We let them know in writing," he says. "If a patient wants us to take the doctor's name off a case—and that has happened—we honor his wishes."

But not every lawyer extends the same courtesy. And, sometimes pressure is exerted, as in this letter from one law firm: "We need to find out now if you will give us permission to sue the doctor that prescribed you Paxil. If you do not allow us to sue the doctor that gave you Paxil, important rights you have may be lost. . . . If you are willing to allow us to sue your doctor, please fill out the attached sheet completely. I am convinced that the best course for your case is to sue the doctor that gave you Paxil." A self-addressed envelope is typically included in the mailing.

Is the practice of filing suit without a plaintiff's knowledge ethical? Hardly, say legal experts. "Lawyers are obligated to make whom they are suing clear to all plaintiffs," says Monroe Freedman, a professor at Hofstra University School of Law in Hempstead, NY.

Freedman speculates that patients may know that their doctors were named, but feel too intimidated or embarrassed to acknowledge it when confronted by the doctor.

"The psychology of a plaintiff who's part of a class action suing a large drug company somewhere far away is very different from that of a patient suing his local doctor of 10 years," says Walter Olson, senior fellow at the Center for Legal Policy at the Manhattan Institute, a think tank in New York, and editor of the Web site, www.overlawyered.com . "For every 10 people willing to sue an impersonal outsider, there's only one willing to sue his own doctor."

Psychology notwithstanding, it's likely that many patients really don't know that their doctor's been included in a class-action suit because of the way law firms troll for plaintiffs for these suits. If you go to www.plaintiffdirectmail.com , you'll get an inkling of how easy it is for attorneys to build a class. At that site, "Plaintiff Direct Mail and Marketing Experts Helping Attorneys Reach Potential Plaintiffs," the company promises to "save time and money by letting [us] handle your legal mailings and target potential plaintiffs via direct mail."

On the Web site is a list of more than 60 drugs and promotional language promising a database of more than 30,000,000 people who suffer medical ailments from heart disease to eczema. It costs an attorney 15 to 20 cents per name for a database of potential litigants. For another 55 to 65 cents per name, the company will handle a direct mail campaign soliciting plaintiffs, says Mark Ward, the company's vice president of marketing. Where does the company get its data? From consumer surveys that contain questions on a wide range of subjects, including medications: "Do you use any prescription drugs? Which ones?"

"Attorneys identify plaintiffs from our lists of prescription users from the surveys," says Ward.

Typically a phone call or letter goes to everyone in a particular class informing the recipients that unless they opt out, they'll become members of the class once the case is certified as a class action. "The patient may have gotten a four-page, fine-print letter saying, 'If you were prescribed such and such a drug between this year and that year, you may be a member of a class entitled to money,' " says Rob Scroggins, an attorney and practice management consultant with Clayton L. Scroggins Associates in Cincinnati. "The patient may have thrown it in the garbage or said, 'Let's see what happens.' " But he'll probably have no way of knowing that his doctor is part of the suit.

"But I never even prescribed that!"

Larry Gibson, an FP in Raleigh, MS, not only was sued by a patient who didn't know she was suing him, but he'd never even prescribed the drug in question. For several years, he'd been the primary physician for a patient who was seeing a diabetes specialist. It was the endocrinologist who'd prescribed Rezulin.

"When the information came out about the potential for liver damage with Rezulin, I told my patient to stop taking the medication," says Gibson, who's also a pharmacist. "Then I got a summons." Only when the patient came for an office visit did she find out that she was suing Gibson and the local drugstore, in addition to the pharmaceutical company.

"I told the patient that, on advice of my insurance company, I couldn't see her anymore as long as I was a co-defendant in the suit," says Gibson. "She was devastated. She told her attorney she wanted the suit dropped. That was months ago. Last week, I got another letter on the case."

Although patients have the right to opt out of a class-action suit, there are time limits. So if a patient doesn't opt out by a certain date, it may be too late.

Gibson says he's never had a lawsuit until this year; now, he's facing six nuisance cases. Gibson expects that his malpractice premiums will rise as a result. "I can't afford to be an FP anymore. I know I can make $85,000 as a pharmacist at Wal-Mart; what with insurance rates, I'm barely making that now as a physician."

In Smith County where Gibson practices, there are 16,000 people, three doctors, two pharmacies, and no hospital.

"If I have to leave, there's no chance of getting another doctor here," he says.

Should you fire patients who sue you?

Like Gibson, many doctors make it a practice to terminate their relationship with patients who sue them. And attorneys generally agree: "Until a matter is cleared up, everything a doctor says may be used as evidence in court," says Victor Schwartz, general counsel for the American Tort Reform Association in Washington. "That puts him in a difficult position when he continues to treat a patient who's suing him."

Some doctors go further still, refusing to accept new patients if they've ever sued a healthcare worker. John Hey, an FP in Greenwood, MS, and former chairman of his state medical ethics committee, has such a policy. "We have a right to choose our patients just as they have a right to choose their doctors," says Hey.

"The physician-patient relationship is one of fiduciary trust and confidence," says ethicist Michael Ambrosio. Trust has implications for many aspects of care—following directions, sharing information, privacy, and so on. If that trust is compromised, both doctor and patient have the option of withdrawing from the relationship.

"I can see where knowing that a patient is suing you could create unconscious resentments that may affect your judgment. It could be appropriate to stop seeing a patient if you think you can't treat him objectively," says Ambrosio.

If you feel trust has been compromised to the point that you no longer can care for a patient, you have to follow protocol:

• Inform the patient or competent relatives that you'll no longer be his treating physician.

• Give him sufficient time to find a new doctor.

• Facilitate referral to a doctor who is equally competent, convenient, and appropriate.

• Turn over medical records.²

"In the case of a medical emergency, though, the doctor has to suspend his concerns," says Michael Goldrich, chair of the AMA's Council on Ethical and Judicial Affairs and an ENT specialist in New Brunswick, NJ. "Physicians have a primary obligation to assure the patient's continuity of care. Whether that care is best delivered by one physician or another depends on the circumstances."

Are these tactics legal?

How far a lawyer can go in soliciting plaintiffs for a class action depends on jurisdiction," says Monroe Freedman, a professor at Hofstra University School of Law in Hempstead, NY. "It's generally permissible to put an ad in the paper or on TV." Or to engage in a direct-mail campaign like the ones discussed in the accompanying article that are launched by organizations like www.plaintiffdirectmail.com .

"But no venue other than Washington, DC, permits in-person solicitation," says Freedman.

Still, some attorneys do hire "runners" to enlist and cull plaintiffs, promising a cut of the action. Unfortunately, it's difficult to catch law firms that employ runners, notes Michael Ambrosio, professor of jurisprudence and professional ethics at Seton Hall Law School in Newark, NJ. "Firms take risks because runners won't turn them in unless they get disgruntled," he says.

"An attorney once called to say he was working for an out-of-state law firm," reports FP Kurt Kooyer, formerly of Rolling Fork, MS, and now practicing in North Fargo, ND. "He wanted me to provide him with a list of patients for whom I had prescribed one of the drugs now being litigated.

"I told him I thought that was probably illegal and definitely unethical and didn't give him any names. Later I was sued by a patient who'd taken that medication. She publicly claimed she hadn't suffered any injury from the drug and didn't know she was suing me."

"If you believe that a law firm obtained your name unethically, consult a local attorney to see what your options are," says Peter Geraghty, a researcher in the American Bar Association's Center for Professional Responsibility in Chicago. "If a lawyer violates ethics rules, a doctor can file a complaint with the disciplinary authority in the state which will investigate the matter. The authority can suspend the lawyer's right to practice or at least reprimand him."

¹ See "Why Dr. Kooyer had to move," Dec. 23, 2002
²For more information about your legal requirements when you terminate a patient, see "Taming the difficult patient," March 8, 2002.

Dorothy Pennachio. "I didn't know I was suing you".

Medical Economics

Nov. 7, 2003;80:77.