A gynecologist in Connecticut had his personal assets seized to satisfy a plaintiff's verdict of $5 million which exceeded his liability insurance policy limit of $1 million.
According to an article in a recent newsletter from the Connecticut State Medical Society (CSMS) entitled "A Lesson for all Physicians," this case represents the first time that such action has been taken in a medical malpractice case in Connecticut.
The trial involved a patient with a family history of breast cancer who developed metastatic ovarian cancer one year after a hysterectomy for fibroids.
The article said one allegation was that the surgeon, despite evidence that he discussed removing her ovaries with her, did not "strongly advise" that they be removed.
Another notable feature of the case was that the doctor was said to have asked his malpractice carrier to settle the case for his $1 million limit, but the company refused.
The seizure of the doctor's personal and business bank accounts and the placement of a lien on his property were executed without notice less than a year after the verdict was upheld on appeal.
As I thought about writing this post, I had in mind a strong rebuke of the entire legal system. It was to be a typical rant that you might expect from a doctor.
But after doing some research on the case, I have adjusted my views a bit.
I found a complete summary of the Connecticut Supreme Court's opinion rejecting the appeal of the case. It revealed some significant facts which were omitted from the CSMS version of the events.
The plaintiff's family history consisted of her mother, maternal grandmother and two maternal aunts, all of whom had died of breast cancer. When she was 22 years old, the plaintiff underwent prophylactic bilateral mastectomies.
The opinion states, "At a preoperative consultation, the defendant explained to the plaintiff that, although she had a significant family history of breast cancer, that history, unless supplemented by genetic testing, which the plaintiff had not undergone, did not point to an increased risk of ovarian cancer."
Whether the gynecologist recommended genetic testing or not was in dispute and not resolved.
The court went on to say, "The plaintiff elicited testimony from the defendant indicating his limited understanding of her cancer risk. She also presented expert testimony opining that the defendant fell short of the medical standard of care in failing to appreciate the heightened risk of ovarian cancer associated with her family history of breast cancer and in subsequently failing to provide her with information and advice as would have been appropriate had the defendant appreciated the risk."
Without access to the trial transcript, one can only wonder what a defense expert could have possibly said on the gynecologist's behalf.
And the court rejected all five of the defendant's points of appeal with only a mild dissent on a portion of one point.
I have done some malpractice case reviewing for the defense over the years. It is easy to say after the fact, but this case seems like it had a very slim chance of receiving a verdict for the defense. Although the CSMS article says the doctor's carrier refused to settle, it is possible that the plaintiff would not accept an offer of the $1 million policy limit.
As stated in the title of the CSMS piece, the "lesson for all physicians" was that they should strong consider a plan of asset protection because this case paves the way for similar actions in the future.
That may be the way to go, but as this New York Times article points out, it isn't as simple as you might think.
Is an asset protection trust a viable option for most doctors? I wonder how many have set up one.
An even more important lesson may be that a $1 million malpractice insurance policy limit may be inadequate for some specialties.
Skeptical Scalpel is a recently retired surgeon and was a surgical department chairman and residency program director for many years. He is board-certified in general surgery and a surgical sub-specialty and has re-certified in both several times. For the last two years, he has been blogging at SkepticalScalpel.blogspot.com and tweeting as @SkepticScalpel. His blog averages over 900 page views per day, and he has over 6300 followers on Twitter.