Doctor vs. Defense Lawyer – What came first the chicken or the rotten egg?
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What is the controversy?
It’s reported by the Boston Herald that a patient who had plastic surgery performed at the Beth Israel Deaconess Medical Center sued the hospital and the doctors involved. Before the plaintiff could serve the petition, sometimes referred to as a civil complaint, the doctor left the Boston area traveling across the country on vacation never intending to return. At the end of this vacation the doctor’s intention appears to be to move to Israel and start practicing in Israel.
So what is the controversy?
Service is important because without putting it in the doctor’s hands the lawsuit can’t start, at least as it affects the defendant-doctor. Think of service of process like you do party invitations, but with rules. If you print party invitations, but never get them into the hands of the guests, the party can’t ever start. Same type of issue in this case. Get the Petition served or call off the party. Tort reform measures have caused courts around the country to be sensitive to criticism from big business so deadlines have been imposed. If you don't get the suit papers served within a certain length of time the court dismisses the case. Ouch!
So why was the doctor hard to serve?
While on the road the doctor testified he gets a cell phone voicemail from his lawyer saying don’t call me back just know if they can't serve you, the case goes away and oh by the way you can't be served in Israel. The doctor allegedly states in his deposition he calls the lawyer back three weeks later instructing him to essentially remain unavailable; a fact the lawyer denies. I've not had the pleasure of reading the deposition transcript but that's the gist of the problem faced by both plaintiff and the court system.
So why is this of any interest?
Well the lawyer is constrained by his rules of ethics to not disclose information gained through client representation without permission of the client. The doctor and lawyer’s are at odds over the truth and who said what and when. The plaintiff probably wants to prove the doctor-defendant was trying to avoid service of process thereby relieving him of service of process deadlines that could result in his lawsuit being dismissed.
The lawyers can't say much unless the doctor waives the attorney-client privilege. So the lawyer gets to play the punching bag. Of course if the lawyer did instruct the doctor to avoid service of process there might be an ethical violation involved. But why would lawyers do that when they can simply have what Abe Lincoln referred to as "The Lecture"?
What’s a solution?
The process would be aided by the doctor waiving the privilege and allowing the attorney to testify about his conversation. Under oath of course.
Meanwhile Beth Israel Deaconess Medical Center is scheduled to lose as much as $20 million this year.