A med mal summons normally reads as a logical argument as to why the patient – now a plaintiff – has a legitimate legal beef and is entitled to monetary damages. You may disagree with the logic or the conclusion. But the argument should read as a syllogism. A leads to B.  B leads to C. Hence A leads to C. 

A Medical Justice member was served with a summons of a case filed in federal court and signed by the clerk of the court. The patient filed pro se – so no lawyer was involved. The surgeon has a limited window of time to respond. Absent a timely response, this patient could receive a default judgment in her favor.  

This patient appears to exhibit some of the hallmarks of schizophrenia. Either she has never been diagnosed. Or she is not being effectively treated.  

I was let go from my sales position with XXX after being fired on YYY, 2009 for interfering with a fire drill. I continued to perform for the company even after 911 when my house caught fire. The EEOC issued me a right to sue letter but could not obtain proper legal counsel. My attorney at the time told me to “fire him”, which now I realize was not legal, knowing I needed representation. 

I had a surgery performed before I was let go that put me into a non-consensual human experimentation program in 2009. I heard the physician say “You will be controlled for the rest of your life.” I swear this under oath. This I feel is against the Violence Against Women’s Act of 1994.  

My claim also states that Advanced Neuroimaging shows brain matter alterations in U.S. Government Personnel who developed neurological symptoms in Cuba.  

Electronic Harassment and the use of Directed Energy weapons are used together with implants to further cause pain and suffering. These weapons can range from highly focused energy, laser, microwaves and particle beams. They are easy to prove and played a role in the Cuban Embassy Crisis. Some weapons can be purchased on-line or the deep web. Phones can be used as a weapon as well for someone who is implanted with RFID, Samsung or whatever patent the chip holds. I have been attacked by direct energy weapons for 10 years. I went to the emergency room almost on a monthly basis. 

Removal of implant in left chest area would grant relief of a great deal of the pain I am experiencing since it was told to me by my neurologist that it is the first source of technology activated to cause the pain in and around my skull as well. It is something I do not need and did not consent to as an adult -or child. 

(I request] removal of eye implants [which] would be a source of relief. 

(I request] order to Cease and Desist to all perpetrators and investigations of all fusion centers since they are believed to be a hub. 

(I request] relief from Remote Neural Monitoring should start immediately. Other terms the “Brain Initiative.” Grants over one million given to CMU and UPMC for brain study.  

(I request I be] awarded relief and justice for all the wrong doings, pain and frustration. Evil occurs when good men and women do nothing. I plead the court to please listen to my pleas. Many are suffering from this same injustice and America is getting a bad rap for it. Please help to keep America the land of the free. Allow the good people of our country to take it back. Many crimes of the deep state are hidden from the average American because they are too hideous to believe. With your help targeting innocent citizens of our own country can actually come to an end. 

Oh dear. 

By the way, this case was filed with and signed by a clerk of the court. The bar for filing a claim is low indeed. 

What to do? 

The first recommendation was to notify the carrier. The duty to defend is broader than the duty to pay out. A carrier may try to argue this is not a med mal case, so they have no duty to assist. Still, in spite of the word salad and paranoid ideation, the patient is alleging the doctor did something wrong in the context of practicing medicine. A carrier that chooses to sit on the sidelines here will not fare well. 

To illustrate, I point to Woo versus Fireman’s Fund Insurance. Dr. Woo was a dentist. He was also a hunter. His dental tech raised pot bellied pigs. Dr. Woo enjoyed taunting her with accounts of his boar-hunting trips, and a picture of a skinned pig hanging from a hook. He predicted a similar fate for Walter, the tech’s beloved pet pig. Dr. Woo informed that this was all part of a “friendly working environment.” 

The story continues as below: 

When the dental tech required surgery to replace two teeth, Dr. Woo saw an opportunity to cement this self-impression of bonhomie. Once she was completely sedated, he halted the agreed procedure, and began a new one. Replacing her teeth required the temporary installation of standard false teeth. Dr. Woo had secretly ordered a second set of temporary teeth, shaped like boar tusks. Removing her oxygen mask, he inserted the tusks and – we must assume this was part of the friendly working environment – took photographs of her with her eyes and mouth pried open. Returning at last to his professional duties, he removed the tusks and inserted the correct temporary teeth. 

A month later, Dr. Woo’s staff presented the tech with the pictures at her birthday party. The fun-loving Woo described them as a “trophy” to take home. Home she went, never to return. Instead, she sued Dr. Woo for battery, invasion of privacy, medical malpractice, and a host of related claims.  

Dr. Woo filed a claim with his dental malpractice carrier. His carrier stated that inserting wild boar parts into a patient’s mouth during a procedure was not the practice of dentistry. They denied coverage.  

Dr. Woo settled with the dental tech for $250k, then turned around and sued his carrier for bad faith, arguing the carrier had a duty to defend that was broader than the duty to pay a judgment.  

A Washington appellate court agreed and awarded a cool $1M to Dr. Woo. A 4 to 1 return on his “investment.” 

Back to the original case.  

The carrier should assign a lawyer to defend the case even if the legal argument demonstrates paranoid and schizophrenic ideation that only marginally states a cognizable claim. 

Next, how can one defend? 

From a procedural standpoint, the surgeon’s lawyer would likely argue that the plaintiff is not competent and a guardian must be appointed to prosecute her case. Let’s look at California as a representative state. 

In California, a party must have “capacity” to prosecute or defend a civil lawsuit. A party who lacks the requisite capacity may be deemed “incompetent” by the court and a guardian ad litem may be appointed to represent him or her in the litigation. 

In California, a party is incompetent, for purposes of determining necessity to appoint a guardian ad litem, if he or she lacks capacity to understand the nature or consequences of the proceeding, or is unable to assist counsel in the preparation of the case.  AT&T Mobility, LLC v. Yeager, E.D.Cal.2015, 143 F.Supp.3d 1042 (2015). 

The provisions on representation of insane or incompetent persons are similar to those applicable to infants. Both groups are regarded by the law as unable to act independently. Section 372 of the Code of Civil Procedure provides that when a person lacking legal capacity to make decisions or a person for whom a conservator has been appointed is a party, “that person shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court.” This section defines an incompetent person to include a person for whom a conservator has been appointed. 

California law sets out an extensive scheme for appointment of conservators, not merely for the actually insane and incompetent, but also for persons who suffer only partial physical or mental disabilities not rendering them totally incompetent. Cal. Probate Code §§ 1400 et seq., 1800 et seq. 

An adult is incompetent for purposes of Code of Civil Procedure Sections 372 and 373 if a preponderance of the evidence shows that the individual is either: (1) a person for whom a conservator could be appointed, as set forth by Probate Code Section 1801, or (2) unable to understand the proceedings or effectively assist his or her attorney in protecting his or her interests, as set forth by Penal Code Section 1367. Sarracino v. Superior Court, 13 Cal.3d 1, 11-12 (1974). 

Evidence of incompetence may be drawn from various sources, but the evidence relied upon must “speak … to the court’s concern … whether the person in question is able to meaningfully take part in the proceedings.” In re Christina B., 19 Cal.App.4th 1441, 1450 (1993). California law adopts a broad view of relevance, emphasizing a trial judge’s “duty…to clearly bring out the facts.” In re Conservatorship of Pamela J., 133 Cal.App.4th 807, 827–28 (2005). The court’s first-hand observations of and interactions with the person may inform a court’s decision. See Guardianship of Walters, 37 Cal.2d 239, 249 (1951); see also In re McConnell’s Estate, 26 Cal.App.2d 102, 106 (1938). 

A guardian ad litem has a great deal of power and decision-making discretion, including accepting a settlement compromise and discharging claims as necessary.  

[A]n attorney opposing an incompetent plaintiff … should consider pursuing an application for the appointment of a guardian ad litem who will be better suited to reasonably and meaningfully evaluate the issues of liability, damages, and settlement value. 

Here, the defense attorney would petition the court to appoint a guardian ad litem for the pro se plaintiff.  

What about getting this plaintiff care? 

This is even more challenging.  

Most jurisdictions have the following criteria for determining whether a person should be taken involuntarily to an emergency inpatient facility.  

a. Is the person a danger to himself or herself?  

b. Is the person a danger to others?  

c. Is the person so impaired as to not be able to tend to the basic necessities of life? 

This is a high bar. It’s unclear the patient in our case would meet that threshold.  

There are situations where a public guardian may be appointed to assist the patient (plaintiff) in matters beyond the pending litigation. That’s a topic for another day.

In closing – this event was anything but expected. When unexpected events like these take place, it pays to have access to seasoned advisers. This event easily could have ended in a bad outcome for the doctor – but because he was a member of Medical Justice, he had access to the resources necessary to take control. No one can truthfully claim that he’s “seen everything.” But at Medical Justice, we’ve seen a lot. Members benefit from our medico-legal hotline –  a veritable life preserver during events like those described in the article. Call us before a crisis strikes. Or call us after it strikes – we’ll provide valuable guidance either way. But we advocate for preventative action.

Use the tools below to get in touch and learn how Medical Justice membership protects what is integral to the practice of good medicine – and how it does away with what is detrimental.

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ABOUT THE AUTHOR

Jeffrey Segal, MD, JD

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal received his M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.

If you have a medico-legal question, write to Medical Justice at infonews@medicaljustice.com.com.