Dr. Orlito Trias was sued for negligence. The lower court awarded $4 million in damages.
A summary of the case was presented on the Connecticut State Medical Society website.
The case claimed that during a preoperative consultation for the removal of fibroid tumors, Dr. Trias failed to “strongly advise” the plaintiff that her family history of breast cancer greatly increased her risk for developing ovarian cancer. Although clear from the medical records that the risk of ovarian cancer was discussed, the plaintiff claimed that she was not “strongly advised” to undergo removal of her ovaries. The plaintiff subsequently developed ovarian cancer.
As is the norm, Dr. Trias only had $1M in professional liability coverage. He appealed. In August, 2012, the Supreme Court of Connecticut ruled.
- a physician may, in failing to provide a patient with information, incur liability for falling short of the professional standard of care;
- patient alleged a claim of medical negligence, not just a claim of lack of informed consent;
- physician failed to show that trial court’s rulings admitting patient’s testimony regarding the connection between her development of ovarian cancer and her failure to have her ovaries removed, even if improper, were harmful;
- patient was qualified to testify that she would have had her ovaries removed had she been informed of her risk of developing ovarian cancer;
- patient, in establishing causation, could rely on her testimony that she would have had her ovaries removed had she been informed of her risk of developing ovarian cancer;
- trial court did not abuse its discretion in precluding physician from eliciting testimony regarding the probable results of a genetic screening test that was never administered to patient;
- trial court properly permitted patient to make a late amendment to complaint; and
- trial court’s precluding counsel from articulating any basis for their evidentiary objections was not harmful.
The judgment was affirmed.
Ouch.
The Connecticut State Medical Society reported
In May of 2013, the plaintiff’s law firm, Silver, Golub and Teitell, executed on the judgment, and with no notice seized Dr. Trias’ personal and business bank accounts and placed a lien on his real property in an effort to collect the over $4 million owed under the judgment.
It’s not clear whether Trias asked his carrier to settle for policy limits before the case. It is not clear whether Dr. Trias’ professional liability carrier paid any amount above the $1M policy limits. It’s not clear whether the plainitff’s attorneys used the lien as leverage to obtain a settlement above policy limits but lower than the $4M award.
What is clear is Dr. Trias likely put his entire nest egg at risk when he evaluated one patient. Trias acted responsible by purchasing a professional liability policy. It just wasn’t enough. Physicians face this risk each and every day. Doctors should think about implementing a robust asset protection plan well before sensitive body parts are caught in a vise.
This case seems entirely unreasonable: advising and having a patient decline ovary removal and then later claim she was not strongly enough urged seems specious to me. This is to me justice gone awry–horribly.
I call BS on this case. Frankly, the part I would have questioned much more was the lack of diligence to work up the abdominal pain in the following year, NOT the “lack” of strongly urging her to have her ovaries removed. If there was ever a poster child for the typical bottom feeder $$$ grubbing attorney, it’s Peter Dreyer. I hope he is harassed for the rest of his life for what he did to this physician.
Would a recommendation of yearly ultrasounds and ca 125’s have helped ? Either the patient or the physician?
What does “strongly advised” mean? How would you document that so it would stand up in court? Does the patient say she was not “strongly advised” because, if she had been, she would have asked Dr. Trias to remove her ovaries?
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On a totally unrelated note, did you know that in Alabama, it is impermissible for any mention of liability insurance–in any form–to be made at a med mal trial? Found it out in a meeting yesterday. For example, let’s say that Dr. Smith is being tried for med mal, and he is covered by Acme Insurance Company (yes, it also covers Mr. Coyote). Acme retains the famous law firm of Hundegunda, Hundegunda, Hundegunda & McCormick* to represent their interests. H, H, H, & McC look at the roster of their docs and choose several who they also insure to be expert witnesses.
Even so much as asking them if they have the same insurer as Dr. Smith triggers a mistrial. I’ve suggested that this could be used tactically–at least once.
*I’ll give you a dollar if you give me the specific reference to this one without looking it up.
The obscenity which much of the medical malpractice lawsuit “industry” has become is really a spin-off of product liability lawsuits, after the latter began generating multi-million dollar settlements or judgments. The legal definition of medical malpractice, essentially documented injury due to documented negligence on the part of the treating physician(s), has been flung down and danced upon by lawyers who ignore informed consent to known risks and even the natural outcome of a disease or injury, while appealing all too effectively to the emotions of juries. The abiding motto seems to be “my emotions are made up – please don’t confuse me with the facts!”
“Someone ought to pay!” has been the war cry, and the deepest pockets have become those of physicians with large malpractice insurance coverages. I must say that I fault our profession for succumbing to the climate of fear which has been created and buying into multi-million dollar policies (as well as expanding the CYA of medically unnecessary defensive medicine), when we should have done exactly the opposite. I’ve never seen an increase in the size of the honey jar decrease the number of flies swarming to it – quite the contrary! Had we taken a firm stand to stick with state-required minimums and vigorously and successfully fought frivolous malpractice lawsuits, medmal lawyers would have had much less interest in cases unlikely to succeed and generate the huge fees we’ve been seeing. In my own state, we had an MD-run professional insurance company which thoroughly investigated all medmal lawsuits vs. their clients, helped arrange fair settlements (often without need for a trial) where there was genuine fault, and fought every single suit brought without merit with an over 90% success rate. Lawsuits against their client MD’s dropped dramatically as a result.
I had to retire sooner than I wanted to because of the intolerable economic impact upon practitioners who want to spend meaningful time with their patients helping not to just diagnose and Rx but also to educate and train for healthy lifestyles (i.e. true, not lip service preventive medicine). I’m sure I’m far from alone in deploring the negative impact we’ve created by allowing the insurance industry and now the government via the “Affordable” Care Act to take control of both health care delivery and reimbursement in our country. We’re living in difficult times, where lies, dishonesty, greed and corruption are rampant from the lowest to the highest levels of government and corporate leadership. I would hope for the future that honesty, balance, fairness and courage to do what’s right will prevail not only in the realm of medicolegal affairs, but across our entire political and socioeconomic spectrum. Perhaps a good start would be to throw a bunch of the major medmal abusers into Boston Harbor!
After spending $80,000 on an asset protection plan, having a homestead act, only investments in 401k, life insurance and captive insurance 831b, the attorneys can and will enforce judgements by forcing physicians to take business, HELOC and 401k equity loans or force bankruptcy. They will then garnish wages, up to 25% of gross for the remainder of a career. If you think protection prevents these attacks, you are sorely mistaken
No words.
i would seriously like to know what is the definition of “strongly advised” vs. just “advised”
How was this the deciding factor? Because the patient stated she would have her ovaries remove if the advice of the physician had been stronger- of course her word means more than the doctor’s notes. I have found that doctors are guilty until proven innocent.
This is so frightening and yet another reason to either leave medicine or go fee for service.
I agree with Dr. laurence “No words”
OK, I may only be a plastic surgeon but I have taken care of my fair share of breast cancer patients over the years. Unless I am mistaken, a “family history of breast cancer” per se does not increase the risk of ovarian cancer. It is those patients who are BRCA 1 or 2 positive who have a greatly increased risk of ovarian cancer. If Ms Downs was BRCA positive then IMHO it would have been negligent of the surgeon to not “strongly advise” her to have her ovaries removed. Having said that, a brief internet search revealed the following additional info on this case:
The Connecticut Supreme Court upheld a $4 million jury verdict in favor of a woman who alleged medical malpractice against her OB/GYN. According to the court’s ruling in Downs v. Trias, the plaintiff’s family has a lengthy history of breast cancer on her mother’s side of the family. Her mother, grandmother, and two aunts all died from it. As a preventive measure, the plaintiff had a bilateral mastectomy in 1981, at the age of 22. She had an elective partial hysterectomy in 2005 due to a noncancerous fibroid condition. The defendant performed the 2005 procedure, which involved removing the uterus, but not the ovaries or cervix. He had treated the plaintiff for the previous twenty years.
Prior to the hysterectomy, the defendant informed the plaintiff that her ovaries were healthy, and that her family history of breast cancer, based on the information available, did not indicate a heightened risk of ovarian cancer. He noted that she could choose to have supplemental genetic testing to assess her risk for ovarian cancer, but she did not do so at the time. Roughly one year after the hysterectomy, the plaintiff was diagnosed with terminal ovarian cancer that spread into her abdomen. She maintained that she would not have developed the cancer if her physician had removed her ovaries during the hysterectomy.
If the above is accurate, then this verdict is a travesty of all travesties. The patient was offered a chance for genetic testing and DECLINED. How could Dr Trias possibly “strongly advise” her to have her ovaries removed if he did not have the benefit of knowing if she was BRCA positive. On the flip side, what if he had “strongly advised” her to have her ovaries removed and then afterward she found that, despite her family history, she was in fact BRCA negative? Could she then sue him because he negligently had her undergo unnecessary surgery?
This is indeed a travesty. However, I don’t blame the bottom feeder plaintiff’s attorneys. I think they have certainly brought about lawsuits for far less. But rather, I blame our supposed peers that are sitting on that jury.
How is it possible to condemn a physician for only advising a patient, and not strongly advising a patient. I can’t fathom that 10 out of 12 jurors found that he was negligent. But I guess this is the society we live in.
Problem,James, is that they are not a jury of our peers. And plaintiffs’ lawyers count on that when stressing damages and assaulting us verbally at trial. Bad outcome=make the rich doctor pay. (ha)
In England, if an engineer’s bridge were to fall down, (by history) six engineers, truly peers, would sit in judgment. This has been perverted in the American system so that any six people taken at random, usually none of whom could ever have even been admitted to medical school, sit in judgment. I would like to see a case argued on those grounds, i. e., not my peers. if anyone knows of this has been tried, please post it here.
I have a son-in-law who is a malpractice attorney for his Dad’s firm and they only do defense (or else I wouldn’t have paid for the wedding) and I routinely show him stuff like this and then tell him that’s why I hate America. The lawyers have ruined this country and the medical boards encourage it. Its complete extortion and the lawyers have made the laws for the benefit of lawyers and to hell with everybody else. This country sucks for what it has allowed the lawyers to do.
As a practicing OBG, I am aghast at the perversion in this case. Dr. Enevoldsen is entirely cor-rect. If the relevant facts as documented in the Court documents are true and the plaintiff did not have genetic testing even though it was offered because of her family history (which is the standard of care), the preoperative informed consent process is limited by not having a quantitative assessment of risk. So then, how could an allegation of negligence in this case pre-vail on the basis of “strongly recommended” versus just “recommended?” Troubling to say the least. As has been commented ad nauseam many times in this blog by colleagues and others is that the problem is not the facts, it’s the system for adjudicating them Until we have a peer reviewed system instead of a system that allows sympathy for an injured patient (regardless of fault), we will continue to experience the worst that our civil justice system has to offer.
The commentary from the CCMS is particularly disturbing in that this is the first time in their state’s history where the plaintiff sought to attach personal assets in a med-mal case. Now, if the reported fact is true wherein Dr. Trias instructed his insurer to settle within the policy limits and they did not, he may have a cause of action against his carrier for not acting in good faith. This is what happened in my state of NJ. After litigating the matter, there is a 1974 Supreme Court decision referred to as Rova Farms. Rova Farms was not a med-mal case but a personal injury case from an injury sustained in a campground. In the Rova Farms case, the Court held that the insured’s carrier’ss bad-faith failure to settle a claim within policy limits can require the carrier to pay for the entire judgment including that which is in excess of the policy limits (65 N.J. 474(1974) 323A.2d.495. On the downside and in the aftermath of Rova Farms, as expected, there is a penchant to settle rather than fight.
Because litigation is one of the biggest industries in America, I believe in the notion that reasonable asset protection is good business practice for any professional. That said and with the knowledge that no plan is bullet proof because the legal profession and the judiciary ultimately set the rules and parameters of what constitutes “asset protection, ” this is not a valid reason to neglect this important estate planning tool. Let’s hope this is last we hear of this sort of case.
There is an especially dark place in hell for lawyers like these. Unfortunately , sometimes doctors don’t get any justice in court and unfortunately doctors are treated like criminals or morons or both. I cannot imagine how hard it is to go back to work after something like this and this particular doctor seems to need to go back to work since after this trial he is very poor. It’s a very sad story. In the end doctors can expect justice only from God.
This is tragic case with one life lost and one likely ruined.
Although I personally think that the jury award was disproportionate to the defendant’s degree of negligence, the jury likely considered that the patient’s death outweighed any such cconsideration.
Moreover, there did not appear to have been an offset for the plaintiff’s comparative negligence in not obtaining the genetic study. Of course, it’s possible that the plaintiff argued that she wasn’t fully advised of the importance of the study.
Nonetheless, one really can’t argue with a jury’s assessment and there does not appear to have been an argument that it was unduly influenced by improper appeals to emotion or passion.
The really alarming feature of this case is the decision to aggressively pursue the physician’s assets in order to satisfy his uncovered liability. As a general rule, this is a rather uncommon practice although perfectly permissible.
The case should be considered an ominous harbinger of things to come.
Last, I would view any serious reliance by physicians on “asset protection” to be foolhardy. Purchase of higher limits of liability on the base negligence policy or of excess liability coverage appear to be the only reliable alternatives despite their greater cost.
Awful case! Only in US is the medicolegal system so pervasive. To me the problem is the defense lawyer(s) who should know better and turn the table. They had all data. Remember “To Kill a Mockingbird”. Trouble is there is not much to be gained by defending physicians.
This very sad result for Dr. Trias underlines the necessity of hiring your own counsel if there is a possibility that a judgment or verdict might exceed your own coverage. Considering that his coverage ended at $1 million that was a strong possibility. The attorney representing the carrier had no particular interest in defending Dr. Trias beyond the insurance companies’ exposure limit. They basically cut him loose.
If he had “introduced” his own counsel to the attorney representing his carrier, that would have struck sparks. Counsel for the insurance company would be furious. But they also would be put on notice that their own “quality of defense” would be carefully and critically monitored. That plainly did not happen. For Dr. Trias, it would have been well worth the money.
I think we’d all like to know what exactly demonstrates “strong advice?” Does that mean the physician puts on a Halloween mask and does a death march in front of the patient? Stand on his/her head upside down at the corner of the exam room? We have been told for years that we cannot make decisions for patients; and that is NOT our place. It looks to me that most of the relevant information about the risks of ovarian cancer was provided to this patient prior to her surgery.
Like steps in the common law, this verdict and its aftermath (including the very real possibility that Dr. Trias will be skinned like a dead trout) will reverberate through American (legal) Medicine like a tsunami. Asset protection is being touted now as the latest cause célèbre for any physician fortunate enough to have an estate. But there are a lot of caveats on asset protection. Most lawyers who specialize in this will assure you that any attempt to “conceal or redistribute assets to avoid a legal judgment is not only illegal, but may also be considered a crime punishable by a prison sentence.”
Earlier in my career I decided to obtain a Canadian license as a DPM, fearing high MP insurance costs, lawsuits and availability of insurance for podiatrists who did surgery. In some countries doctors don’t face the same all-encompassing legal system we have here. I got my British Columbia license but never practiced there. But it was a fallback position I was grateful to have. Along with your own attempt at asset protection, you might also consider leaving this Country to the lawyers. They own it anyway. There are far worse places to live than Canada.
Please hire your own attorney. It is always legal to hire your own attorney if you think you need one. Dr. Trias certainly did.
Michael M. Rosenblatt, DPM
This breaks my heart. Dr Trias has been my Dr for 30 years. He is the kindest and most caring man I know. I am so sad that this had happened to him.
I practiced in Georgia, and was hit with a major lawsuit, that the insurance company refused to cover. All my assets were collateralized, and were unable to be seized. However, the judge held me in civil contempt, put me in count jail for six months, until I signed over my assets,,,,If you think there is a program for asset protection, I am sorry but you are wrong. You might be able to put up some hurdles to discourage an aggressive attorney,,,however you can not argue with a judge holding you in civil contempt, until the judgement is paid.
Since this event occurred, I had to file bankruptcy, with a resultant criminal case against me within the bankruptcy court, which is finally resolving.
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