An Ohio judge, citing the state's frivolous conduct statute, ordered a lawyer to pay $6,000 to Zev Randy Maycon, M.D., a Canton gastroenterologist, for keeping Maycon in a medical malpractice suit "when there was no extant expert medical testimony or opinion that he failed to meet the prevailing standard of care."
Stark County Judge Roger Lile ordered Naples, Fla., attorney Catherine Cicchini Little -- and not her clients, plaintiffs Benjamin Barbato and his wife, Kelly -- to pay Maycon.
Little said an appeal already has been filed.
According to court documents, Barbato included Maycon in a malpractice suit that named another physician as the lead defendant.
Maycon said in a telephone interview that Benjamin Barbato's colon was perforated during a liver biopsy performed by another physician from his office. The damage was not discovered until the following day and resulted in a follow-up surgery and the removal of a portion of Barbato's colon.
Maycon said he visited Barbato in the hospital the day after the original procedure and helped marshal forces to diagnose and address the problem. And though Maycon did not perform the original procedure or the follow-up surgery, he was added to the list of defendants when the Barbatos sued for physical, psychological and emotional pain.
Before trial, in March 2003 Maycon's attorney, D. Cheryl Atwell, filed a motion seeking sanctions against Little for violating the state's frivolous action law. On Nov. 14, 2003, just before the trial, the plaintiffs dismissed Maycon from the suit.
But the Ohio State Medical Association, whose frivolous lawsuit committee had been notified by Maycon about the case, noted in a press statement that the plaintiffs' own expert witness, Stuart Finkel, M.D., in his Feb. 3, 2003 report issued more than nine months before trial, did not offer an opinion that Maycon's treatment of Barbato failed to meet the prevailing standard of care.
"The real issue here," Cooper said, "is this is one of those cases that no one said Maycon departed from the standard of care, and even when that was brought to the attention of the plaintiffs' lawyer, it didn't seem to matter.
"That's what makes physicians so angry," Cooper said. "If we can just get plaintiffs' lawyers to be more thoughtful, it would go a long way to alleviate this problem."
The OSMA established the frivolous lawsuit committee in 2004 to help physicians identify potential cases where they could seek judicial relief against attorneys for professional misconduct.
Little said although she never formally withdrew from the case and remained "of counsel," she no longer actively participated in it after turning over the case file to an Ohio lawyer, Patrick O'Malley, who entered his appearance April 24, 2003. It was O'Malley, she said, who kept Maycon involved as a defendant until November. O'Malley, however, was not named in Maycon's motion seeking sanctions.
Little also said the case became muddled when there was a change of judges and as a result, "there are many errors."
Though Maycon said it didn't feel good to be sued and he knows he'll have to explain this malpractice suit throughout his career despite being vindicated, he expressed sympathy for the Barbatos.
"I can see where there was frustration from their point," he said. "There is some risk to (the biopsy), but the risk is unusual."
But the bottom line, he said, was, "The attorney and the patient went about it wrong. I should not have been brought into it.
"The best feeling I had was when the plaintiffs' attorney came back up to address the sanction against her," Maycon said. The hearing forced her to travel from her home in Florida to Ohio.
One of the first things she said at the hearing, Maycon said, was "that she was a young mother and she was shocked and didn't understand why her life was turned upside down to come up here."
"I thought, welcome to our side," Maycon said.