Careful what you say - and don't say - in the next letter of recommendation you're asked to write. A Louisiana anesthesiologist was ordered to pay $8.2 million for a clinical error he didn't commit, all because he wrote glowing letters of recommendation for a colleague without disclosing the colleague's habit of diverting Demerol from his patients. In his next job, the colleague committed a serious medical error that left a woman in a permanent vegetative state and was sued for malpractice, and the letter-writer found himself implicated in the case.
In this rare case, a hospital successfully sued another for failing to disclose adverse information about a doctor being considered for privileges to practice there.
Louisiana Anesthesia Associates terminated Robert Lee Berry, MD, in 2001 over concerns that he had a problem with substance abuse that affected his work, according to court records. Nevertheless, William J. Preau III, MD, a member of the practice who was involved in firing Dr. Berry, wrote an uncritical appraisal of him for a prospective employer. The appraisal didn't mention any problems with Dr. Berry, stating: "He is an excellent anesthesiologist. He is capable in all fields of anesthesia including OB, peds, C.V. and all regional blocks. I recommend him highly."
That letter helped Dr. Berry find work thousands of miles away at Kadlec Medical Center in Richland, Wash. Then, about a year into his new job, Dr. Berry was "under the influence," failed to properly administer anesthesia and let his patient, Kimberly Jones, then a 31-year-old mother of 3, fall into a permanent vegetative state, court records show. Ms. Jones's family filed a malpractice lawsuit against Dr. Berry and Kadlec Medical Center. The case was settled with Dr. Berry paying $1 million and Kadlec paying $7.5 million.
Litigation over the Jones case then entered a second phase, in which Kadlec took an unusual step. To get its money back, the hospital filed a lawsuit against Dr. Preau and Lakeview Regional Medical Center in Covington, La., where Dr. Berry had been on staff. Kadlec's lawsuit claimed Dr. Preau and Lakeview, which had also evaluated Dr. Berry, had committed "intentional and negligent misrepresentation" by failing to disclose his drug abuse and termination.
Unlike Dr. Preau's laudatory letter, Lakeview's evaluation didn't praise Dr. Berry but simply noted he had been on its active medical staff - a response that often signals the former employer had been unhappy with performance. But the person who wrote Lakeview's evaluation said that she had not actually known about Dr. Berry's termination and other problems, which had been kept private. The decision against Lakeview was reversed on appeal.
In its reversal, however, the appeals court suggested that if the hospital letter-writer had known about problems with Dr. Berry, the hospital might have had a "more difficult" time getting dropped from the suit. Thus, even a neutral, arm's-length evaluation like Lakeview's might implicate the writer in a malpractice suit, because crucial known information would be withheld from the prospective employer, wrote legal scholar Sallie Thieme Sanford in a 2009 evaluation of the case in the Drexel University Law Review. "The hospital did have a duty not to mislead Kadlec in its response," wrote Ms. Sanford, an assistant professor at University of Washington School of Law.
Unlike Lakeview, Dr. Preau was not dropped from the lawsuit, due to his glowing report. The court ruled he engaged in negligent misrepresentation and ordered him to pay Kadlec $8.2 million in total damages, representing the medical center's full settlement amount plus its legal bills. Dr. Preau still hoped to cover the damages through his malpractice carrier, St. Paul Fire & Marine Insurance, but the company refused to pay, noting it guaranteed payment only for "covered bodily injury." St. Paul argued that since Dr. Preau hadn't personally committed bodily injury, the coverage guarantee did not apply.
Dr. Preau then sought to force St. Paul to pay in a third and final lawsuit in the Jones litigation that ended up in U.S. District Court. Asked for a summary judgment, the court initially ruled St. Paul should pay, but a federal appeals court reversed that decision in June 2011. "The economic damages Kadlec sought for Preau's tortious misrepresentation are distinct from the damages Jones or any other party might seek for her bodily injuries," the court explained. Thus Dr. Preau got stuck having to pay $8.2 million in damages for someone else's medical error, based simply on a three-sentence evaluation he had penned.
Attorneys in this case were not identified in the court's opinion. Efforts to reach Drs. Preau and Berry were unsuccessful.
Leigh Page
