By Carol Gentry and Mary Jo Melone
8/25/2009 © Health New Florida
Florida’s Board of Medicine has dismissed charges of substandard care against a Central Florida physician in the same case that brought a medical malpractice settlement of $1 million.
Lake Mary urologist Michael Friedman was cleared after physicians on the board reviewed the patient’s charts and determined he didn’t make a mistake in the treatment of Harold Knowles of Seminole County.
The lawsuit brought by Knowles, who died of kidney cancer in June 2004, and his wife Leanne asserted that Friedman failed to follow up on occasional traces of blood in Knowles’ urine while treating him for something unrelated.
But the medical board voted unanimously to throw out the administrative complaint at a meeting earlier this month in Jacksonville.
“I don’t think this doctor did anything wrong,” said obstetrician Lisa Tucker of Pensacola.
Jason Rosenberg, a plastic surgeon from Gainesville, concurred. He told Friedman: “I’m sorry you’re here. I’m sorry that a good doctor got caught in a bad system.”
The Friedman case may be the ultimate example of the disconnect between medical malpractice litigation and professional disciplinary action. It’s also an example of how long the disciplinary process often takes; the malpractice suit was settled in March 2004.
The medical board’s decision to dismiss the disciplinary charges surprised the plaintiff’s attorney in the malpractice case, Richard Schwamm. He had known nothing about the disciplinary charges until Health News Florida called.
He said he doesn’t know what evidence the doctors on the board had, but “we trust that (they) are looking out for the health, safety and welfare of the public.”
The state keeps no records comparing medical-board decisions with the amount paid in malpractice claims for the same incident. But the dismissal in this case struck observers as highly unusual.
“I have had them lower penalties before; I have had them raise penalties before,” said J. Charles Ingram, Friedman’s lawyer. But complete vindication, he said, “is not common.”
The Department of Health did not receive a complaint against Friedman, but instead acted on a report from the state insurance division on the closed claim from the lawsuit. It’s not clear why it took so long to get through DOH.
When the charges were brought against Friedman, his attorney and DOH prosecutors negotiated a settlement that called for a $7,500 fine (in addition to costs of $4,400), 50 hours of free medical care, and eight hours of classes on kidney cancer and risk management. The agreement neither admits nor denies culpability.
Friedman said he signed the settlement to get it over with quickly. “I just want to go home,” he said after the hearing.
Florida Consumer Action Network Director Bill Newton says this case shows that physician discipline in Florida is too weak. “They protect each other,” he said.
Tampa plaintiff’s attorney David Tirella said he’s seen many valid malpractice cases go nowhere with the medical board and no longer bothers to file complaints..”I have zero faith in that process,” he said.
Physicians and their attorneys, however, say the Friedman case proves the medical malpractice system amounts to a cynical, big-bucks extortion game, or at best, a lottery.
They believe huge settlements and jury verdicts go to sympathetic patients who have a bad outcome, even when there is little or nothing the doctor could have done to avert it.
Before this case, Friedman had had no prior discipline on his record. He got his M.D. degree at Wayne State University, trained in general surgery and then urology at Barnes Jewish Hospital in Missouri. He is board-certified in urology.
Ingram said Friedman’s insurer, Farmers Insurance, did the urologist a terrible injustice by insisting on settling the lawsuit over his objections.
Farmer’s wanted to leave the Florida market quickly, so it wanted the Knowles case closed, Ingram said. (A spokesman for Farmer’s, based in Los Angeles, said the company had no comment).
Another reason the insurer settled was that the codefendant, Knowles’ primary care physician Sidney Lauteria, died before the suit was filed. He couldn’t be present to defend himself, and his estate wanted the matter settled quickly, Ingram said.
A third factor is that Mr. and Mrs. Knowles came across as nice people. “We had the sympathy factor to deal with,” Ingram said.
Florida law lets the insurance company make the decision about settling, since it’s the one footing the bill, said William Allen, director of the Program in Bioethics, Law and Medical Professionalism at University of Florida College of Medicine.
However, he added, that law makes for “unhappy doctors.”
--Contact Carol Gentry, Editor, at 727-410-3266 or this e-mail.