Real Life Stories Show Doctors Need Defensive Planning

November 8, 2016

Recent headlines illustrate the wide range of risks that doctors should be legally and financially prepared to face during the course of their career.

Asset protection for doctors takes many forms, from managing risks proactively to implementing the right legal strategies and insurance if that risk management falters. It’s often helpful to examine specific cases in the context of the abstract discussions we have on risks as we did last week, when I shared a details on a planing failure that cost one doctor $500,000.

Wrongful Conception:

A Michigan woman is suing her physician after she was told that she did not need the permanent birth control procedure she requested. According to a FOX Health report:

In 2008, the now-50-year-old claims she went to undergo a permanent birth control procedure, but her doctor told her that her fallopian tubes were blocked and she had no chance of becoming pregnant. In fact, Cichewicz claims, the doctor told her she didn't even need to use birth control. But just three years later, she became pregnant.

The result was that she has delivered a down-syndrome child, which she had been warned about and allegedly prompted her initial request for the procedure. She is suing for claims including the emotional distress caused by the unwanted pregnancy and  may be expanded to include claims for the life-long costs of the child’s special needs.

Failure to Diagnose, Misdiagnosis and a Business Claim from another Doctor.

In this unusual case a physician in Palm Beach is being sued by multiple former patients and the doctor he sold his practice to in Colorado (we’ve covered this risk before in detail as well) because he allegedly misdiagnosed and subsequently treated multiple patients as having MS when they did not. Some of those patients suffered very significant adverse side effects from the unnecessary treatment and others have claims for the emotional distress of being misdiagnosed with such a significant illness. Based on the doctor’s own statements reported by Florida Today , there was a gap in both his malpractice coverage and asset protection planning as he cites the cost of defense being an estimated $150,000 as part of the decision to surrender his license in Colorado.

Brenda Culhane is one of four people who filed suit against Weiss in Colorado in August after she said he misdiagnosed her and treated her for the disease for seven years. She believed that she had MS until she was advised by the doctor who took over Weiss’s practice in 2013 to seek a second opinion at the University of Colorado Hospital. A doctor there reviewed Culhane’s test results and concluded she did not have MS. Culhane’s lawsuit claims she “suffered numerous side effects, including nervousness, depression, anxiety, stress, and fear” as a result of her misdiagnosis and treatment by Weiss.

The doctor who advised both patients to seek second opinions, Mark Pithan, also sued Weiss when he took over his practice in 2013, claiming that Weiss had inflated the value of his practice by providing unnecessary diagnostic tests.

Failure to Plan Leads to Abuse of Physician by Adult Children

In this New York case, the physician is the plaintiff, through her husband.  He was forced to action when his wife, a psychologist in her 70s dying from Alzheimer’s, had her $3.5 million New York apartment listed for sale without permission and $800,000 of her retirement accounts allegedly stolen by her two adult sons, aged 43 and 47. Unfortunately, these stories are common and are growing in number every day generating lots of work for probate lawyers who are dealing with scenarios including:

1. Failure to plan, dealing with probate claims based on successful people who either had no estate planning or who had planning that wasn’t updated at divorce, death or a spouse or re-marriage;

2. Fraud or theft of assets by heirs, spouses and most often, adult children including cases where they try to cheat their siblings out of a share of the estate or abuse the power that they were given in the estate plan.

Make sure your planning is complete and that you can live (or die) with the choices you’ve made on who will control both your assets and healthcare choices at your death or in the event you are disabled. In some cases, using a dispassionate third-party professional trustee (as opposed to a family members) may be the best choice.