Doctor Files Malpractice Suit Against Attorneys

For physicians, it might seem like the ultimate revenge fantasy—suing for malpractice the malpractice attorneys who represented them, but not to their satisfaction.

For Berton Forman, MD, it's a vivid reality that may be a cautionary tale for other physicians.

Forman, a Nassau County, N.Y. anesthesiologist, has no fear of the legal arena, even though malpractice litigation has already cost him $1 million from his insurance coverage. That ultimately derailed his career. And in a rare twist, the 60-year-old doctor is looking to litigate—this time, to save his reputation. Forman has been waiting five years for his day in court.

In 2008, Forman filed a breach of contract lawsuit against his original malpractice attorneys, Martin Clearwater & Bell, LLP. Opening arguments in the New York Supreme Court lawsuit are scheduled to begin this week.

It's an unfolding case that should be watched by other physicians concerned about malpractice litigation impacts. Such a case is extremely unusual, says Henry J. Miller, an attorney representing Martin Clearwater & Bell. "You've got a legal malpractice case underlying a medical malpractice case," Miller told me. "I haven't seen one like it."

In 2006, Forman was one of the defendants in a malpractice case settlement that he says led, in part, to his eventually quitting medicine after practicing for 30 years.

Forman was part of a group that included several physicians, the insurer and hospital, who paid out $1.3 million stemming from a complicated and problematic delivery of a baby at Mercy Hospital in Nassau County, NY. The baby survived, but lawyers for Martin Clearwater & Bell said the baby was severely brain damaged.

In his lawsuit, Forman says he's seeking unspecific damages for breach of contract, misrepresentation, and conflict of interest because he was told he was at most 15% to 20% responsible for the malpractice award.

When it was finally paid out, he was left to pay a majority—$1 million out of his insurance policy—of the $1.3 million settlement. Mercy paid $300,000, he said.

That $1 million payment eventually "triggered an investigation by the New York State Office of Professional Medical Conduct," and made it difficult for him to gain employment after he left Mercy, Forman said in a statement. Forman says he eventually retired for health reasons.

A review of Forman's complaint and an interview with him suggests the trial may raise questions about loyalty, agreements among physicians, hospitals and insurers, and proper recordkeeping and clinical decisions. The case also shows mistakes Forman says he made in agreeing to a settlement, without looking at all the details, which he says should be a lesson to other physicians. He says the lawyers asked him to be a "team player" prior to the settlement years ago, but he considers that concession a mistake.

"I took the blame for the case because I was the idiot who was willing to play ball and signed off on the consent," he says. "Another lesson—when you sign off on a consent and your attorney tells you, 'This is going to be $100,000,' make sure he puts that down in writing. Do not believe what your attorney tells you unless he puts it in writing. I would never do that again."

"It's a case of man bites dog," Forman calls it. "It's imperative to be proactive in this process. You can't be passive."

"I was told I would be responsible for 15 to 20% of the payout. Instead I paid out 81%, so I paid for all of the defendants," he says. "This is the essence of the case. My own attorneys were representing the interests of the insurance company [and] hospital, before defending my interests."

In his suit against his malpractice attorney, Forman charges that Martin Clearwater & Bell used "undue influence to pressure" him into agreeing to a settlement that effectively benefited the hospital where he worked, Mercy Hospital, and an insurer, Medical Mutual Liability Insurance Company. The firm represented the insurers and hospital in the case as well.

Two Martin Clearwater & Bell lawyers who were cited by Forman have denied the physician's claims, according to court papers filed by attorney Robert Frisenda of White Plains, NY. The lawyers deny "each and every allegation," but admitted that "defendant Martin Clearwater & Bell agreed to and did provide to plaintiff appropriate legal counsel in connection with the defense of the malpractice action."

The papers add: "Dr. Forman executed an unconditional consent to settle the underlying malpractice action." Frisenda did not comment further.

Miller, who is co-counsel defending Martin Clearwater & Bell, says "there's very little we agree with in the plaintiff's case." As for the malpractice settlement, Forman may have been hit with "many millions of (dollars) in damages, way beyond his insurance coverage," Miller said.

As far as Forman is concerned, one of the problems that impacts physicians in malpractice cases is when the same insurance company represents the doctor and hospital. "Someone is going to get the short end of the stick, especially if one defendant signs off on the consent and the others don't," Forman says.

There was another thing that he didn't do that certainly might have helped his cause, and should be in a physician's playbook to avoid malpractice litigation, and that's to keep tabs on hospital records, he says.

Before agreeing to the settlement, the anesthesiologist was told that he "needed to be a team player for the hospital that had been good to him," Forman recalls. He says an internal hospital review essentially exonerated him and he had good employment records. But Forman says in his suit that his employment records were mistakenly shredded by the hospital after he left.

"It was a nightmare, but something you put in your rearview mirror," Forman says. "I want to shed light on this situation because lawyers and the insurance industry have to become more transparent."