Michael Smerconish: Lawsuits against Kermit Gosnell spoke loud & clear

Gosnell: Much sued.
Gosnell: Much sued.
Posted: January 27, 2011

AMONG the many lessons from the Kermit Gosnell debacle is that the medical profession needs to do a better job of policing itself.

That includes taking action when repeated litigation against one physician suggests that he's become a problem. Such was the case with Gosnell.

I joined legendary trial lawyer James E. Beasley in the practice of law in 1993. One of the first medical-malpractice files he assigned me had been filed by the firm in November 1992 against a West Philadelphia physician who was not yet a household name.

My client was an African-American woman whose claim was that she'd received substandard medical treatment from Gosnell. Given the filing date of the case, that treatment would likely have been in 1991 or 1992. (Under the law firm's standard policy, the files have long since been destroyed.)

THIS WAS the type of case we described as a "surgical misadventure." There was a complication in her procedure that became life-threatening. I have a vague recollection of taking Gosnell's sworn pretrial testimony, but nothing stands out from the questioning. The case never went to trial - it was settled out of court in August 1996.

Based on the recent news reports, I now know that my case was one of many filed against the doctor over the last two decades, most coming after my encounter.

The amount of litigation never jeopardized his license - but it should have. Malpractice actions provide a valuable insight into the workings of a medical practice. In quantity, they are an alarm bell. And when there are physicians like Gosnell whose conduct is repeatedly the subject of lawsuits, those legal actions should raise the attention of both the commonwealth and fellow physicians.

Trouble is, many don't want to concede that plaintiffs' lawyers provide a valuable service in this regard. While practicing law full time, I used to say that everybody hates trial lawyers - until they need one - just like everyone hates big government until they need their street plowed.

Sure, we all agree that there are too many lawsuits, but one reason there is so much litigation is that the medical profession refuses to wean the bad apples from its ranks.

A handful of doctors often account for the majority of payouts. And when tort reformers make it more difficult to sue all doctors, they also make it harder to sue those like Gosnell.

Remember, too, that if those reformers had their way, a claim against Gosnell would be worth, at most, $250,000. (The same people who want government out of our lives would have government tell juries what they can award as damages. The people who trust the wisdom of common people don't trust those common people when they are given the power to render a payout.)

Much of the criticism of the case thus far has focused on the state Health Department and its inspections in 1989, 1992 and 1993. According to the grand jury report, there were deficiencies noted in these inspections, but those inadequacies didn't stop the clinic's reapproval. That was an obvious failure.

But so too is the alleged breakdown of the Department of State's Board of Medicine, which supposedly regulates Pennsylvania's medical profession by awarding licenses and certification for the state's medical professionals.

Unfortunately in this case, the board's counsel apparently "disregarded notices that numerous patients. . . were hospitalized. . . with fetal remains still inside; and with perforated uteruses, cervices and bowels," according to the grand jury.

That information, coupled with evidence gleaned from litigation against Gosnell, should've caused his ticket to be punched.

Don't misunderstand, the medical community is no different from many other professional groups when it comes to shielding its worst members in the name of protecting all of them.

Police unions try to make it harder for internal affairs to investigate rogue cops in an effort to protect innocent cops from being second-guessed for every decision.

The legal profession has a disciplinary system that is arcane and ineffective.

And look at Wall Street. The financial community does a lousy job of policing itself.

Even the "innocent until proven guilty" legal maxim is designed to let a few guilty go free so as not to convict the innocent.

But when it comes to the medical profession, the results can have catastrophic consequences. Such as appears to have been the case here.

Contact Michael Smerconish via the Web at www.smerconish.com.

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