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Dr. Charles, an orthopedic surgeon in St. Augustine, FL, first saw Phyllis Beaver in June 1997,
when she came to his office with a complaint of pain in her right knee. Charles examined her, ordered an X-ray, and diagnosed degenerative arthritis. After conservative treatment proved ineffective, he recommended arthroscopic surgery, which he performed in January 1998.
The arthritis turned out to be more advanced than originally thought, however, and the procedure didn't relieve Beaver's symptoms. So Charles recommended a total knee replacement, which he performed in June 1998. Despite that operation, Beaver said she continued to experience pain and limited motion in her knee.
In November 2000, Beaver consulted another orthopedist who examined her and detected several problems with the knee replacement. In March 2001, he performed a revision and repair of the right knee arthroplasty; it apparently solved her problem.
In March 2002, Beaver sued Charles and his practice, a professional corporation, claiming he'd been negligent in recommending and performing the total knee replacement instead of a less aggressive procedure. As a result of his alleged negligence, she claimed, she had suffered unnecessarily for almost two years. Her suit sought damages for pain and suffering, anxiety, loss of income, and medical expenses.
No insurance coverage means no defense attorney Although Charles did have malpractice insurance when he performed the surgeries on Beaver, he let the policy lapse with no "tail" coverage shortly before she filed her suit against him. "I was 65 by then," Charles recalls, "and only working part time. Renewing my malpractice insurance would have cost me $48,000, which was more than I made from surgery that year. So I dropped it." (In Florida, doctors aren't required to carry liability insurance if they meet certain financial and professional criteria, such as spending no more than 1,000 hours a year in direct patient care.)
With no coverage, Charles was faced with the prospect of hiring his own defense attorney, which he felt he couldn't afford. Convinced that the case against him was weak, he decided to represent himself. He studied some law books and consulted a family member with a law degree who helped him prepare his legal motions. He also got affidavits from several colleagues testifying that he had met the standard of care. He never had a chance to use them in court, however, or to test his own legal skills.
While the judge agreed to let Charles defend himself at his own trial, he explained that under Florida law Charles couldn't represent his own corporation. (In Florida and most other states, corporations must be represented in court by independent counsel.) The judge warned him several times about the possibility of a default judgment against the practice, but Charles remained convinced that no defense was necessary, and therefore didn't hire an attorney.
With no one to defend the corporation, the judge entered a default judgment against it in December 2003. Charles wasn't alarmed, however, because he says the judge assured him that no monetary judgment would be ordered against the corporation if he wasn't found personally liable in his own case.
The doctor goes "free," but not his practice. In February 2004, about two weeks before the scheduled trial against Charles, Beaver's attorney dropped the claim against him because they knew he had no insurance, and because they'd already won the default judgment against his corporation. As a result, Beaver's attorney never had to present expert testimony (from the surgeon who did the repair, and an out-of-state expert) to support her negligence claim, and Charles never had a chance to produce his own experts. The judge dismissed the case against him.
Charles thought his troubles were over at that point but they weren't. Unfortunately for him, the damages part of the case against his corporation ended up before a different judge. This one allowed Charles to observe, but not to speak since he wasn't the corporation's attorney. Outraged at what he called a "mockery of justice," Charles stormed out of the courtroom.
With no one to contest Beaver's claim for damages, the judge awarded her $75,000, mostly for her medical expenses. By then, Charles had closed his practice and dissolved the corporation, which no longer had any assets. Having given up his private practice, he now does only locum tenens work for groups that provide him with malpractice coverage.
Asked recently if he'd hire a defense lawyer if he had it to do over again, Charles still insists he wouldn't. "I think I did very well as my own attorney," he says proudly. "The whole case never cost me anything, and they didn't get a nickel from me. So it was really a Pyrrhic victory for them."
St. Augustine attorney Robert McLeod, who represented Beaver, doesn't agree. He admits he hasn't collected any of the $75,000 judgment yet, but he intends to. "If we can show that Charles dissolved the corporation to avoid paying the claim," he says, "we can go after his personal assets under Florida law."
Was it really so crazy for Charles to try to defend himself in this case? "Of course it was," says McLeod. "He's a physician, for heaven's sake, not a lawyer. It would be just as crazy for me to operate on my own knee. I'm an attorney, and even I wouldn't think of representing myself in a trial.
"It might have cost him $25,000 for a lawyer to represent him at his own trial. And even if he wanted to handle that himself, he could have hired one for less than $5,000 just to defend the corporation. In fact, every doctor who incorporates his practice should have a good defense attorney to represent it."
The dangers of representing yourself There's no law that says doctors can't defend themselves against malpractice claims, as orthopedist Michael Charles did, as described in the accompanying article. But both defense attorneys and plaintiffs' lawyers generally agree that it's a risky idea. In fact they often refer to those who try it as "having a fool for a client."
Legally, anyone can represent himself "pro se" in a lawsuit. But judges generally discourage malpractice defendants from doing so because few doctors are likely to be able to provide an adequate defense against an experienced plaintiffs' attorney.
"I would have loved to have every physician I sued defend himself in court," says Donna Lee Mantel, a Bridgewater, NJ, defense attorney who formerly represented malpractice plaintiffs. "If they did, my win/lose ratio would have been much better. Doctors shouldn't get the idea that reading a few legal books and serving up an erudite clinical analysis will be enough to win over a jury."
James Lewis Griffith Sr., a malpractice attorney in Philadelphia, warns would-be doctor/lawyers: "It's not the judge's duty to protect you, or teach you the rules of evidence. And if the judge or the jury are put off by your procedural errors, you could end up losing the case regardless of the evidence."
This is why doctors should not try to defend themselves.
