Thursday, February 25, 2010
Judge OKs amended suit against Carilion
Corrected on 02/25/10 to indicate three attorneys represented Carilion Clinic. Other attorneys present Wednesday represent non-Carilion defendants.
The latest from The Ticker blog
A Roanoke judge is allowing a medical malpractice lawsuit against Carilion Clinic to explore the hotly disputed issue of "leakage."
Leakage is the asserted policy by which Carilion encourages its doctors not to refer cases outside its integrated health care system, allegedly to improve its financial standing at the risk of patient well-being.
Carilion denies such a policy exists. On Wednesday, lawyers for the health care system asked Circuit Court Judge Clifford Weckstein to prevent the attorney for an alleged medical malpractice victim from filing an amended lawsuit raising the leakage issue.
Weckstein let the case go forward, reasoning that to do otherwise would be to prematurely accept Carilion's position that the lawsuit has no merit.
In what has been a contentious legal dispute, Weckstein interjected a moment of levity. The judge quoted a line from the comedy movie "My Cousin Vinny," in which an out-of-place New York lawyer represents two young men on murder charges in Alabama. At one point in the movie, an incredulous judge tells the attorney: "It appears to me that you want to skip the arraignment process, go directly to trial, skip that, and get a dismissal."
Wasn't that essentially what Carilion was doing by trying to stop a civil claim before it was filed? the judge asked.
The $20 million lawsuit, brought by Ronald Burchett, initially claimed that Carilion's substandard medical care caused his colon to burst after he was admitted to Carilion Roanoke Memorial Hospital in March 2008. Burchett was suffering from acute colonic pseudo-obstruction, a condition in which the colon dilates significantly.
Although the initial complaint contained few details, Burchett's attorney, Robert Hovis of Annandale, later sought to bring an amended lawsuit alleging that Carilion's reluctance to call in an outside specialist -- and "leak" business to a competitor -- contributed to the patient's complications.
Carilion attorney Paul Kuhnel argued there is no leakage policy, and that Hovis' latest allegations were an attempt to "vex and harass Carilion."
With no evidence to support his claim, Hovis is expanding what had been a routine medical malpractice case into a conspiracy case in order to gain leverage to seek protected documents from Carilion through the discovery process, Kuhnel argued.
"We don't have a leakage policy," Carilion spokesman Eric Earnhart said after the hearing in Roanoke Circuit Court. "Our focus is on providing our patients the best care possible. Period. We refer to private physicians all the time, I might even say on a daily basis."
Controversy about the issue predates the lawsuit. Three years ago, when Carilion first began converting to a clinic model and absorbing private practices, critics complained it was trying to create a health care monopoly in the Roanoke region that would lead to higher hospital bills.
According to the lawsuit, Carilion offers a financial incentive to its physicians to keep referrals within the network, including bonuses of up to 40 percent.
When Hovis first raised the leakage question during a deposition of a Carilion doctor last November, it caused such a ruckus among the lawyers that Weckstein took the unusual step of moving the process to his courtroom, where he presided over the questioning.
The doctor being deposed said he had no knowledge of the policy Hovis was asking about, and that economic factors played no role in treatment of Burchett, according to court filings by Carilion.
As attorneys continued to spar Wednesday, Weckstein took another unusual step, appointing a special commissioner to preside over discovery, the pretrial phase of a lawsuit in which each party asks the other for evidence. "I am never happy doing this," the judge said.
While Carilion attorneys have complained of nefarious motives by Hovis to defame the health care giant, he has accused them of "stonewalling" his attempts to learn more about their referral system.
The two sides were so far apart on so many issues that they couldn't even agree Wednesday on who got to make their arguments first.
Weckstein asked attorneys on both sides of his courtroom -- Carilion had a team of three litigants on hand while Hovis sat alone at the plaintiff's table -- to turn down the heat.
"What I hear is quibbling over matters that, if lawyers sat down in good faith and were able to lower the bombastic tone ... probably could be resolved in relatively short order," he said.
Now that Hovis has permission to file his amended lawsuit, Carilion CEO Ed Murphy will be added to a list of defendants that now includes 17 corporations and physicians, including some who are not employees of Carilion.
All of the defendants will now have 21 days to respond to the filing. After that, it could be months before details about the leakage policy -- or proof that no such policy exists -- emerge from the proceedings.
