West Virginia physician caught in legal net hooks lawyer, lands settlement

Another attorney hopes the case will make others in his profession think twice about trying to snag everyone nearby in malpractice actions.

By Tanya Albert, AMNews staff. Dec. 2, 2002. Additional information

West Virginia thoracic surgeon Saad Mossallati, MD, has a message for lawyers suing him -- or any other physician -- for medical malpractice: Do your homework or face the consequences.

He's not afraid to countersue if he believes the lawsuit against him isn't justified.

Dr. Mossallati last month successfully settled his frivolous lawsuit case against Wheeling, W.Va., lawyer William E. Parsons II. The physician pursued the case after he spent four years -- and his insurance company spent $81,000 -- defending a medical negligence and wrongful death case filed by relatives of a patient he never saw. The case against Dr. Mossallati was ultimately dropped.

The settlement reached with Parsons was for an undisclosed amount. All Dr. Mossallati can say is that it was "very substantial."

But the thoracic surgeon said the case wasn't about the money.

He hopes that his success story will lead more doctors to go after lawyers they believe wrongly named them in a medical malpractice lawsuit. Physicians say that frivolous malpractice lawsuits have contributed to rising insurance costs in West Virginia, one of a dozen states the American Medical Association has identified as being in the midst of a medical liability crisis.

"We all should be more active in looking after ourselves," Dr. Mossallati said. "I've had many phone calls from other physicians, and I tell them, 'If you think the case is totally baseless, sue them back.' "

Dr. Mossallati also hopes his countersuit -- a tactic that physicians do not often pursue -- garners the attention of lawyers.

"They should do their homework," Dr. Mossallati said. "You can't just sue somebody without finding out the facts. I'm not against malpractice lawsuits, but I am against abusive lawsuits."

Dr. Mossallati said the facts show that the lawyer didn't thoroughly investigate before naming him in a medical malpractice lawsuit involving a car crash victim. The surgeon said he was added to the lawsuit simply because his name was mentioned in hospital charts.

How the wrongful death suit emerged

In July 1994, an ambulance took Hayward L. Myers, 58, to United Hospital Center in Clarksburg, W.Va., following a car collision.

The on-duty emergency department physician, Steven Smith, DO, examined Myers and found many problems, including multiple rib fractures, according to court records.

Dr. Smith also suspected an aortic laceration.

He stabilized Myers and then ordered someone to contact the on-call trauma team captain, Gaspar Barcinas, MD, and the on-call thoracic surgeon, Walter Williamson, MD, immediately. Dr. Barcinas had only 30 minutes left on the on-call shift and asked Dr. Smith to contact the next on-call surgeon, T.H. Chang, MD.

Dr. Chang saw the patient and recommended flying him to West Virginia University Hospital, Morgantown, W.Va., which is better equipped to handle trauma cases. But a helicopter couldn't take off because of fog.

Dr. Williamson was not available and Dr. Smith told a nurse to contact Dr. Mossallati, the only other thoracic surgeon in the hospital, according to hospital and court records.

Dr. Mossallati said he wasn't notified about Myers. He was not on-call and he was operating on another patient during the time in question.

"Even if they had contacted me, I couldn't leave the patient I was already with," Dr. Mossallati said.

Dr. Mossallati said he called Parsons when he was served to explain why he should not have been named in the suit. But Dr. Mossallati said that Parsons told him to contact his insurance company.

Four years later, Dr. Mossallati was dropped from the lawsuit. When he couldn't find a lawyer to represent him in a lawsuit against Parsons, Dr. Mossallati did some research about the law and filed the case on his own.

Parsons declined to directly comment on the case, but court records show he believes he was justified in naming Dr. Mossallati in the lawsuit. Parsons said he drafted a letter to Dr. Mossallati's insurance company before the lawsuit was filed and that the company told him it would not settle because it could defend the physicians. Parsons, in court records, said the insurance company gave him no indication that Dr. Mossallati had no involvement in the case.

The attorney, who has handled medical negligence cases for two decades, said he put Dr. Mossallati's name on the lawsuit because part of the medical chart marked "consultation" contained the physician's name and the time 0737 next to his name, court records show. He also filed the lawsuit after consulting a medical expert and after reviewing Myers medical records and the hospital's medical records.

The information "constituted a sufficient basis upon which a reasonable attorney would have probable cause to file a civil action against Mossallati and others," Parsons said in a brief filed with the court before the case was settled.

But Dr. Mossallati insisted that the lawyer should have done more to find out whether the nurse actually consulted him. And the physician eventually found a lawyer who agreed to help him with his case.

Lawyer says profession looked bad

Clarksburg, W.Va., lawyer Tom Dyer, who has represented plaintiffs in medical malpractice cases for the past several years, said he was reluctant to take the case when it was referred to him. But, he said, once he saw Dr. Mossallati's sincerity about the issue and once he looked at the facts, he wanted to help the physician.

"As I got into it, I learned how often frivolous and nonmeritorious cases are pursued," said Dyer, who received several calls from physicians in similar circumstances after Dr. Mossallati's case was settled. "I also saw how devastating the effects on doctors are both financially and emotionally."

Dyer said he was surprised Parson's didn't confirm whether Dr. Mossallati was consulted before the case was filed. That should have been done to even create the possibility Dr. Mossallati might have been negligent, Dyer said. He hopes this case has a chilling effect on lawyers who file medical negligence cases.

"A positive chilling effect," Dyer said. "In the long run, it will be favorable to the profession. Our public perception will be enhanced. We need to regain the public confidence."

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Copyright 2002 American Medical Association. All rights reserved.