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Frivolous business: Lawyers question doctor’s claims

by Amy Kingsley

Eight years ago, Dr. Jeffrey Segal traded his exam table for an executive desk, took an office in Greensboro’s Nussbaum Center and began dispensing legal cures to former colleagues. Call it preventive care for medical malpractitis.

Segal, founder of Medical Justice, patented a blend of contracts, contacts and legal threats that he claims inoculate doctors against frivolous lawsuits. His company currently has 1,700 physician subscribers nationwide and occupies a suite of offices on the third floor of the converted textile factory. On a Wednesday afternoon, Segal’s office maintained more than a touch of its Hippocratic heritage. Diplomas and professional certificates clung attractively to walls. Segal, who still has a doctor’s easy manner, took a seat behind a small conference table. “I decided to find a better way to react to frivolous lawsuits than just being reactive,” Segal said. “Medical Justice is much more proactive.”

Before he moved to Greensboro in 2000, Dr. Segal practiced neurosurgery in Indiana, a state with a former physician in the Governor’s Mansion and a favorable legal climate for doctors. But he noticed something: Doctors in states like New Jersey, Pennsylvania and Florida didn’t have it so good. They paid as much as 10 times more for medical malpractice insurance than their neighbors in less litigious states and still suffered at the hands of juries willing to award millions to injured patients. Segal created Medical Justice for all doctors, but especially for doctors in high-risk specialties like neurosurgery and obstetrics in high-risk states. The idea, he said, was to create a system that would extinguish malpractice lawsuits before they ever hit the courtroom. Doctors who pay Medical Justice’s annual fees get access to contracts they can ask patients to sign that bar them from lodging frivolous lawsuits. They also get the backing of an organization that will lodge complaints against doctors who testify as experts for plaintiffs and will provide up to $100,000 for countersuits. “If you think of the litigation cycle as a sandwich,” Segal said, “then we’re the two pieces of bread and the medical malpractice attorney is the meat in the middle. Before a case ever gets started you first try to prevent it and then set up an infrastructure to enable viable countersuits down the road.” That second part entails suing patients who bring suit. But according to practicing medical malpractice attorneys in North Carolina, that’s easier said than done. “There’s no basis for suing someone for suing you if they have a legitimate complaint,” said Clark Smith, an attorney at Greensboro’s Smith Moore Leatherwood who defends doctors from malpractice suits. “If an attorney brings a suit without basis, he can be sanctioned by the courts. But that rarely happens.” Sometimes the threat of a countersuit, even if it’s unlikely, is enough to keep plaintiffs from filing suit, Segal said. Dr. Larry Schlesinger, a board-certified plastic surgeon in Hawaii, became a client after a patient took him to court, claiming he’d botched a breast augmentation. It was his first medical malpractice case in 28 years of practice. Now he requires his patients to sign a contract that prohibits them from filing frivolous lawsuits. “Lawyers see doctors as fish in a barrel,” Schlesinger said. “But now the fish have uzis. We’re arming the fish.” The problem with Medical Justice, according to Smith and other medical malpractice attorneys, is that there is no epidemic of frivolous malpractice lawsuits. At least not in North Carolina. Burton Craige, a trial lawyer at Patterson Harkavy in Raleigh, said the state already has rules in place to prevent frivolous suits. Before a plaintiff files suit, they need a doctor specializing in the same field as the defendant to testify that the doctor caused an injury. That involves breaching the code of silence that doctors erect around their profession, Craige said. He said Medical Justice’s practice of filing complaints against expert witnesses is simple intimidation. “I think it has an extreme chilling effect on the willingness of doctors to testify on behalf of patients,” Craige said. Segal sees things differently. Medical Justice targets unscrupulous expert witnesses — guns-for-hire who haul inhousandsfor their testimony. Finding a witness willing to testify on theplaintiff’s behalf is as easy as visiting Google, Segal said. Courtshave upheld the right of professional medical organizations to governthe legal testimony of their members. Groups representing specialtieslike orthopedic medicine and neurology have published guidelines fordoctors taking the witness stand. Doctors who disregard these rules canbe censured by their certifying organization, which is an avenueMedical Justice uses to keep experts away from potential plaintiffs. Insurancecompanies also exert an influence, Craige said, by raising premiums orthreatening not to cover doctors who testify in medical malpracticesuits. The relatively small number of medical malpractice insurersmeans that doctors blacklisted by one company might have troublefinding affordable coverage. Craige has crunched the numbers.Between 1998 and 2007, an average of 586 North Carolinians per yearfiled medical malpractice lawsuits, which is a fraction of the numberof patients researchers estimate have been harmed by shoddy medicalcare. That number dipped to 460 in 2007, a 10 percent decrease from theprevious year. Those numbers haven’t changed, even as the number ofdoctors in the Tar Heel State grows.

“If you’re a doctor who’s concerned about getting sued,” Craige said, “then North Carolina is a pretty good place to be.” Or maybe not, according to Shawn Scott, the director of member services at the North Carolina Thatorganization endorsed Medical Justice after it was frustrated in itsattempts to make the medical malpractice litigation process friendlierto the state’s doctors. “Medical Justice is just anotheroption for physicians trying to navigate a rough malpracticeenvironment,” Scott said. But Criage insists that the state’s legalclimate in already tilted in favor of physicians. The uphill battle forplaintiffs doesn’t end at the courthouse door. According to statisticsprovided by Craige, plaintiffs in medical malpractice cases win only 21percent of the time and take home an average of only $300,000 indamages. And when they lose, it isn’t necessarily because their casewas “frivolous.” Medical Society.

RichardBennett, a medical malpractice defense attorney at Bennett &Guthrie in Winston-Salem, said he’s seen some weak cases, but none thathe would describe as frivolous. He hasn’t had any clients who belong toMedical Justice and wonders what, exactly, it is that they offer. “It’s hard to tell from their website what they can do and can’t do,” Bennett said. “In North Carolina they can’t do a countersuit against a plaintiff or a plaintiff’s lawyer. Sometimesphysicians, after the case is over and they’ve been sued, will make acase against the expert. But that’s something that’s relatively newwithin the last five years.” Segal isn’t just offering to helpdoctors navigate the legal landscape; he’s also begun promising to helpthem shape professional reputations increasingly at the mercy ofanonymous online raters. “Rating a doctor is harder thanrating a toaster or a car because patients comes in all flavors,” Segalsaid. “The risk you run is getting doctors who try to game the systemby choosing only patients who are healthy and easy to treat.”

Medical Justice’s anti-defamation products — contracts doctors canrequire patients to sign — that effectively gag patients inclined to goonline and blab about their physician. In return, Segal said the doctorprovides an increased level of privacy to his patients, above andbeyond the confidentiality demanded by law. Segal said the antidefamation contracts have become some of his most popular products. Bennettsaid he is unsure whether such a contract would hold up in court, giventhat patients need to get something from the contract, and that federallaw and doctors’ ethics already stipulate a high degree ofconfidentiality. That establishes the basis for a trustingdoctor-patient relationship, one that could be threatened by requiringa patient to sign what amounts to a gag order. Segal said hehasn’t had to enforce an anti-defamation agreement in court yet, butthe company has already gotten several posts taken off the internet. MedicalJustice’s legal track record — Segal said the organization has enforcedmore than three dozen of its contracts — has the lawyers baffled. Is itgood medicine or a procedural placebo? Is the epidemic it’s meant totreat real or a figment of the medical imagination? “I can’t figure outhow they prevent these cases,” Bennett said. “If they figured that out,they ought to patent it and can it and bottle it and sell it because itwould be very valuable.” To comment on this story, e-mail Amy Kingsley at amy@yesweekly.com.

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