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The Doctor’s Advocate | First Quarter 2016


 
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Testimony Results in Felony Perjury Charges

by Joseph Farchione, Esq., Wheeler Trigg O’Donnell

Imagine sitting as a defendant in a medical malpractice action, looking at a jury made up of your peers. They are not, however, your professional peers and do not have your specialized medical knowledge and experience. Imagine also that when a medical expert testifying against you is confronted with an article that directly contradicts his opinion, he lies to discredit the article instead of conceding the contradiction. You know that the expert lied, but does the jury? What can be done?

This exact scenario has happened in the past, and it recently happened again. The difference between the past and the present is that, through tenacious work by attorneys in several different law firms, the “expert” was indicted on felony perjury charges.

Dr. Michael Hall is an obstetrician from Denver, Colorado, who cannot recall ever testifying on behalf of a healthcare provider, but he has certainly testified for plaintiffs across the country. On October 13, 2015, Dr. Hall testified before a jury in a trial in Ohio. The claim was an alleged failure to properly correct shoulder dystocia resulting in permanent Erb’s palsy. During testimony, defense attorney Brant Poling confronted Dr. Hall with a medical article authored by Dr. Harvey Lerner that contradicted Dr. Hall’s opinion and supported the defense. Dr. Hall called the article a “hoax” and further testified under oath that Dr. Lerner “got fired” as a result of the article.

Mr. Poling and his co-counsel, Wayne Waite, who knew that Dr. Hall’s assertions were not true, contacted Dr. Lerner that night to obtain an affidavit. Because counsel knew that I was taking Dr. Hall’s discovery deposition in two days in an unrelated medical malpractice case, I was contacted to help. During my deposition of Dr. Hall, he was confronted with Dr. Lerner’s affidavit. Dr. Hall admitted that he had “exaggerated” and that he had no basis to make the claim that Dr. Lerner was fired.

On October 19, 2015, Dr. Hall was recalled by video conference to appear before the Ohio jury and judge. The judge read Dr. Hall his Miranda rights, which he waived. He was then forced to tell the truth and recant testimony.

Upon reviewing the facts, the Ohio prosecutor determined that Dr. Hall had lied about a material fact with the intent to influence the jury. The prosecutor presented the testimony to a grand jury to investigate further, resulting in criminal felony perjury charges. Dr. Hall recently appeared at a bail hearing and was released on his own recognizance. Trial will be set early in 2016.

This case illustrates the tenacity of The Doctors Company’s defense teams in coordinating a superior defense and underscores the benefits of close communication among members of the defense bar.

 

The Doctor’s Advocate is published by The Doctors Company to advise and inform its members about loss prevention and insurance issues.

The guidelines suggested in this newsletter are not rules, do not constitute legal advice, and do not ensure a successful outcome. They attempt to define principles of practice for providing appropriate care. The principles are not inclusive of all proper methods of care nor exclusive of other methods reasonably directed at obtaining the same results.

The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider in light of all circumstances prevailing in the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

The Doctor’s Advocate is published quarterly by Corporate Communications, The Doctors Company. Letters and articles, to be edited and published at the editor’s discretion, are welcome. The views expressed are those of the letter writer and do not necessarily reflect the opinion or official policy of The Doctors Company. Please sign your letters, and address them to the editor.

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The Doctor’s Advocate

First Quarter 2016

Director's Forum
Analysis of Closed Hospitalist Claims

An Ounce of Prevention
Are Decisions Shared?

Government Relations Report
The 2016 Election Is in Full Swing

Testimony Results in Felony Perjury Charges

The Foundation News
Grants Awarded in 2015

The Back Page
Industry and Company News

Tribute Plan Insert: First Quarter 2016

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