RBS: It was prompted by a meeting I had with the Pennsylvania Medical Board in early November of last year. I was shocked to find out that, in the 30-month period since Act 13 was passed – which requires physicians to report when they are sued for malpractice – that 5,600 doctors had been sued over that time frame. That’s six a day, seven days a week, for 30 months. Even more shocking, I found that of the 5,600 lawsuits that the Medical Board was looking at, they had worked their way through 3,600 of them and completed investigations as required by Act 13 – and in only four cases did the Medical Board feel it was necessary to go forward with a rule to show cause upon the doctor, or to hold a hearing. It struck me that there were an awful lot of frivolous lawsuits out there.

RBS: No. Frivolous is a word of art in two Pennsylvania statues, the Dagonetti Act and the Abuse of Process Act, which enables someone who has been the object of a frivolous lawsuit, under certain circumstances, to bring a suit against the person who filed the frivolous lawsuit, and perhaps their attorney and the expert witness.

RBS: Let me give you an example. I was speaking at Bloomsburg Hospital a couple of weeks ago and a doctor at the hospital stood up and said he had been sued. Apparently, there was someone with a similar name to this doctor, I think it was at Wilkes-Barre General. This doctor was sued and it took him two years to get his name out of the lawsuit. The real problem here is that, when a doctor is sued, the doctor’s medical malpractice insurance company can impose a surcharge, sometimes up to 30 or 50 percent of the basic policy premium, and the surcharge can last up to five years.

RBS: There is no disincentive right now. There’s no penalty on the lawyer or the plaintiff other than the potential of a countersuit.

RBS: It’s a complicated area and I don’t think anybody knows the answer to that yet. It doesn’t seem to have done anything, since the cases are still pouring into the Medical Board.

RBS: Anybody who has been the object of a frivolous lawsuit. We will gather the material and refer it to an attorney who is willing to sue another attorney, the plaintiff, or the plaintiff’s expert. I have contacted by e-mail the 5,600 members of PAPA and asked them if anyone was the object of a frivolous lawsuit. The program has only been going on since January and I have on my desk inquiries from 25 physicians who were sued and whose cases were dismissed. Some of them are horror stories. For example a plastic surgeon in Swarthmore, Pa. was sued by someone who claimed that she operated on his nose 30 years ago and left packing in there, and he just discovered it in the year 2000. The suit was dismissed. The patient couldn’t prove that she operated on him, and there is no hospital record that she ever provided any services to that patient. But nevertheless, she was sued and her insurance carrier had to get involved to provide a defense. These defenses can run from $20,000 to $90,000 to pay an attorney to represent them and extricate the physician from the lawsuit. What PAPA wants to do is to try to put an end to lawyers suing every doctor in sight, every doctor on the chart, whether or not the doctor had anything to do with the patient. I just got one in the other day where all a young doctor did was consolidate material on a patient’s chart and wrote a discharge summary. Never saw the patient.

RBS: I have a questionnaire with eight questions, which I sent out to PAPA’s 5,600 members. The physicians initially approach me. They answer the questions and send me the material. I ask who the plaintiff is, who the plaintiff’s attorney is, what happened, which defense attorney was provided by the insurance company, who the insurance company was, the nature of the believed-to-be-frivolous lawsuit, and how the lawsuit terminated – if it has terminated. I look at this material and preliminarily make a decision as to whether or not we need further documents. Some of the cases are so frivolous – where a doctor had nothing to do with the patient, never saw the patient – that it’s perfectly obvious that they ought to be referred to counsel. While I’m a lawyer, and admitted to practice in the United States District Court, I don’t practice in state court. I don’t make any legal judgments. All I do is look at it and say to myself, "Okay, this one should go to a lawyer who can look at it and give a final legal opinion on it."

RBS: In 30 years since 1972 to 2002, the number of lawyers has quadrupled while the state’s population of 12 million has remained static. So, there’s plenty of lawyers out there who will take cases, and there’s plenty of lawyers who will take cases against other lawyers. I have one attorney in Chester County and one in Delaware County that have taken cases so far. I have a list of over 300 attorneys in Pennsylvania who will take cases against lawyers.

RBS: As a general proposition, I don’t think any attorney who does medical malpractice work from the plaintiff’s side would be willing to take one of these cases. Several law firms that I’ve talked to, particularly large ones, have been unwilling to take the cases because of the potential of conflict, not only because some lawyers in their firm will represent plaintiffs and suits against doctors, but also some of them represent insurance companies who insure doctors. I’ve had to look around for smaller firms outside of Philadelphia.

RBS: They do the same thing I do, only they apply some legal analysis to it. They determine whether or not it is clearly frivolous – brought in bad faith or continued in bad faith after the attorney knows that there’s no case. If warranted, they will bring a countersuit and the damages sought can include the increase in insurance premium for the doctor, which could be very substantial, as well as the emotional distress and the time out of the office that the doctor has to take. Doctors by nature hate courtrooms. They hate that kind of contention. I represented doctors over the years in medical malpractice cases – not very many, but I did some. I know what happens to a doctor when they are sued. They’re emotionally destroyed. So, that would be a damage in the lawsuit against the attorney, plaintiff, or plaintiff’s expert.

RBS: That’s why I will only hear from a small percentage of the doctors who have been the object of frivolous lawsuits. Many doctors, when they get out of the case, don’t want anything to do with the court system or lawyers ever again in their life. But, the reality is that it’s not unlikely that they will be sued again, particularly if they are high risk specialists such as neurosurgeons, ob/gyns, orthopedic surgeons, general surgeons, anesthesiologists. The average ob/gyn starting out today can expect to be sued three times – at least – in their professional career.

RBS: The plastic surgeon in Swarthmore falls into the category of, "I’m mad as hell and I’m not going to take it anymore." I would say that the primary motive of doctors who are willing to do this is to stand up and say, "Enough. No more. We’re going to try and put a stop to this." I also think some of these cases could be worth significant dollars. A doctor who’s had to put out a quarter million dollars over a five-year period because of a surcharge on their basis malpractice insurance policy – it’s not unlikely that they would want to get that money back.

RBS: No, I do not. They’ve been fairly infrequent. There has never been, in the history of Pennsylvania, the number of lawsuits that have been brought against a given professional or given group of people such as we now have against physicians: 5,600 lawsuits in 30 months, many of which are frivolous.

RBS: Most physicians have the training, expertise and ability to know whether or not the suit is unwarranted. It will have to go to the lawyer to determine whether or not it fits the frivolous test.

RBS: I am getting attorneys to take these cases on a contingent fee basis. The doctor is going to have to pay some court costs, but it’s minimal.

RBS: Through my e-mail and fax list of PAPA’s membership, which currently includes 5,600 doctors around the state, but I will also entertain a questionnaire from a non-PAPA doctor.

RBS: I don’t think there’s going to be that huge number of countersuits because of physicians’ distaste for lawsuits, courtrooms, lawyers, judges. A physician will think long and hard, even after they’ve been battered in a frivolous lawsuit, before going back into that arena again. So, I don’t expect a huge load of them coming through. I do expect a significant number. But more importantly, I want lawyers to understand that the free lunch in suing every doctor in sight, whether or not the doctor had anything to do with the case, is over – and that the lawyer faces potential liability if they continue that practice.

RBS: Jack Gallagher, who is president of the Pennsylvania Trial Lawyers Association, doesn’t think any lawsuits will be brought. He didn’t give any basis for that view and – while I’ve known Jack Gallagher for 30 years and I consider him a friend – it’s his nature to pooh-pooh a program such as this. He says things like, "There are more doctors in Pa. today than there were two years ago," and that "Caps on noneconomic damages on jury verdicts will only cause insurance premiums to go up."

RBS: I’m hopeful that it will cause lawyers to think long and hard before they just sue everybody in sight. I just hope to bring down the number of frivolous lawsuits – 5,600 doctors sued from May 2002 to November 2004 is just staggering.