Taking the Fifth

When it comes to litigation, the Cleveland Clinic gets as noncommunicative as a Mafia don.

medical mess-ups legal eagles
Will your doctor be there for you when you wake up?
Will your doctor be there for you when you wake up?

It's the stuff horror movies are made of. You go in for a routine surgery. A nurse pats your arm as the anesthetic creeps into your veins. Then you wake up, only to realize something has gone horribly wrong.

For lawyer Francis Sweeney's client, that nightmare arrived in 2003, when the young man went to MetroHealth Medical Center for surgery to cure chronic sinus infections. Once the man was asleep, a surgeon handed the scalpel to a first-year resident and told him to get his feet wet.

While clearing out the maze of passageways behind the man's nose, the student slipped, carving a hole in the eggshell-thin wall of his sinus — and sucking out part of his eyeball. The man was left with permanent double vision.

Sweeney had an open-and-shut malpractice case against the surgeon in charge. But first he'd need the opinion of his client's new doctor at the Cleveland Clinic, who'd been caring for the patient since the disastrous operation.

The process is usually a smooth one — the doctor gives his opinion, and Sweeney cuts him a check for his time. But on this occasion, a Cleveland Clinic lawyer showed up at the deposition. Suddenly, the doctor began behaving like a Mafia capo in the midst of a RICO trial. When Sweeney asked the doctor whether he felt surgical error was to blame for his client's injuries, the physician punted.

"I could not even get him to concede that it was the surgery that caused my client's injuries," says Sweeney.

He's convinced that the Cleveland Clinic's legal department stonewalled the case. "You could ask a panhandler on the street if the surgery caused my client's injury, and he'd say it did."

It's no secret in legal circles that the Clinic doesn't like its doctors testifying against other physicians. Renowned cardiothoracic surgeon Mark Botham, for instance, often provided expert testimony before joining the Clinic in 2000. His new employer put an end to that practice.

"Subsequent to being employed with the Cleveland Clinic, we are strongly encouraged not to participate in lawsuits on behalf of plaintiffs," Botham said in an October 2006 deposition.

The Clinic's motive is no mystery. "It's business," says lawyer Christian Patno. "The Clinic doesn't want to kill off their referral source." Even if it means harming patients in the process.

The Clinic has never been timid about safeguarding its $4.4 billion bottom line. It's currently fighting Beachwood to keep its nonprofit property-tax exemption in the suburb, though its office there does no actual charity work. U.S. Senator Chuck Grassley (R-Iowa) is also investigating its nonprofit status, criticizing it for failing to provide enough care to the poor.

And now it seems to be cutting ties to the legal system altogether. Even on routine injury cases, lawyers say getting doctors to cooperate is like pulling teeth.

"None of us like what's going on with [the Clinic]," says attorney Janet McCamley. "They don't cooperate at all."

It happens a hundred times a day: the squeal of tires on asphalt, the crunching of steel and plastic, the splintering of bone. But if you happen to be treated at the Cleveland Clinic, good luck getting an insurance check to cover your injuries.

Most of these cases never go to court. Instead, the lawyer for the injured person works with the other driver's insurance company to come up with a settlement. But to do that, the lawyer needs the client's doctor to write a brief report describing how the accident caused the injuries.

Attorney Dave Pomerantz's client was driving on I-271 when a car going in the opposite direction plowed across the median and collided with her head-on, leaving the woman with several broken bones and some torn tissue. It didn't take Dr. House to see that the woman had been in a wreck. But when Pomerantz called up the woman's doctor at the Clinic, he was told he'd first have to speak with the hospital's legal department.

The move wouldn't have angered Pomerantz so much if the legal department had tried to work with him. Instead, the attorney didn't get the doctor's report until several months later. In the meantime, the patient was forced to wait indefinitely for her much-needed insurance money.

"We just got this huge runaround and delays," he says. "The longer it takes to settle or resolve a case, the insurance company is holding onto that money that rightfully belongs to the injured party."

Call up any personal-injury lawyer in the Yellow Pages, and he'll tell you similar tales of woe. Doctors at University Hospitals and MetroHealth Medical Center are usually happy to cooperate, the lawyers say. But dealing with the Clinic is like waiting on hold with the electric company. And while lawyers don't generate much sympathy, it's their clients who are footing the bill.

"If a client's case is dragged out, that can be a problem," says lawyer Blake Dickson. "Your credit can be destroyed because you can't pay your bills, and the Cleveland Clinic contributes to that."

The Clinic's top lawyer, Vicky Vance, provides only vagaries when explaining their policy. "Our goal is to ensure everyone's interest is being adequately represented."

Yet while lawyers seem ready for a fight, the Clinic is doing its best to just walk away.

Attorney Mark Wakefield's client wasn't the litigious type. A hardworking cement mason, the guy would have been happy to go through his life never meeting a lawyer. But one day on the job, as he was rinsing out the cement barrel, the heavy metal hopper overhead gave way, crushing him against the side of the truck.

In chronic pain and unable to earn, the man filed a worker's comp claim against his employer. A year and a half later, the case was still dragging its way through the court system. The man was burning up his life savings on medical bills, and his neck and back still felt like they were being held in a vise. Desperate for relief, he made an appointment with a pain-management doctor at the Cleveland Clinic.

As the man waited in the office, a physician's assistant came out to speak with him. She was sorry, she explained, but the doctor refused to treat him. It was his policy not to care for patients who had sued someone.

"They simply told him that, because you are involved in litigation, they can't treat you," says Wakefield. "The Clinic doesn't want to be bothered."

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