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Exonerated Dr. Sues Attorney for malicious prosecution.

GAIL CONWAY-LENZ SUED DR. TERRY GILLIAN FOR MEDICAL MALPRACTICE ARISING OUT OF BREAST AUGMENTATION SURGERY. Her attorney was D. Mitchell Taylor. After the suit was resolved in favor of Dr. Gillian, the doctor sued his former patient's attorney for malicious prosecution. According to the patient, when Dr. Gillian told her he was going to remove "the capsules and some of the breast tissue the silicone (from an earlier procedure with which Dr. Gillian was not involved) had damaged. She told him she wanted to be pretty much the same size "between a B and a C," that he then wrote something down on a piece of paper, which he gave to his assistant. He then told her to return the next day for surgery. In Dr. Gillian's notes of that visit, Dr. Gillian stated that they discussed the possibility of not putting any implants in place, but the patient stated she wanted to be a larger size. Dr. Gillian also stated that they discussed the possibility of disruption of the medial attachments, which referred to tears of the cleavage between the breasts which may be caused by an increase in size. Dr. Gillian reported that they were planning to put in 235 cc and 280 cc implants. However, the patient stated that she waited to be at least a cup size larger. Dr. Gillman said he advised the patient to consider going to a smaller size, but she definitely wanted to be much larger than originally planned. The notes stated that they discussed the various sizes of implants and agreed on approximately 450 to 475 cc implants. Dr. Gilliam also stated in the notes that the larger implant would be on the left side, while the smaller one would be on the right, even though it was the right side that required the larger implant and the sizes initially noted were 280 on the left and 235 on the right, which were the sizes he ordered. The implants inserted were 450 ccs that Dr. Gillian increased to 475 ccs. The post operative report shows that two 472 cc implants, not the different size implants, Dr. Gillian had noted in his pre-operative report, which indicated the implants would be 235 cc on the right and 280 cc on the left. The patient alleged that it was only after she complained that the implants were too large and, inter alia, "tight," that she was informed that the larger implants were used. Consequently, the patient sued Dr. Gillian for, inter alia, medical malpractice and failure to obtain informed consent. The Superior Court of Fresno County returned a judgment in favor of the defendant attorney. The judgment was predicated on the fact that attorney Mitchell had "probable cause" to sue Dr. Gillian for medical malpractice arising out of the breast augmentation surgery performed by him. Dr. Gillian appealed.

THE COURT OF APPEAL OF CALIFORNIA AFFIRMED THE JUDGMENT FOR THE DEFENDANT ATTORNEY. The court held, inter alia, that the plaintiff doctor failed to prove his case. The court rejected Dr. Gillian's contention that liability for medical battery should be limited to cases in which a doctor performs an operation to which the patient had not consented, such as where a clearly unauthorized surgical procedure is performed. The court found that this may not have been such a clear-cut issue in the case at bar; however, that did not mean that no reasonable attorney would have thought the patient's claim untenable. The Supreme Court of California has explained "[c]ounsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win ..." The court recognized that while it may have been unlikely that the patient would have won her case against Dr. Gillian, the patient's contentions, as presented to her attorney, were arguably correct and sound enough for the attorney to proceed to sue Dr. Gillian in good faith.

PHYSICIANS WHO HAVE SUCCESSFULLY DEFENDED THEMSELVES IN MEDICAL MALPRACTICE CASES SHOULD "LOOK BEFORE THEY LEAP" BEFORE SUING. In order to establish lack of probable cause sufficient to support a suit against the patient's attorney, the burden was on Dr. Gillian to show that no reasonable attorney would have considered the patient's claims against Dr. Gilliam to be tenable. This was a tall order! A dispute over a party's knowledge or belief in the facts on which such a suit is based presents a factual question that is appropriately submitted to a jury. What facts and circumstances amount to "probable cause" is a matter of law. Whether they exist in a particular case is a matter of law. The probable cause element calls on a trial court to make an objective determination of the "reasonableness of the defendant's conduct ... "Editor's Note: The editor has represented physicians, nurses, hospitals, and other health care providers in a career spanning over 40 years. He has also represented victims of medical malpractice. It is his humble opinion that the overwhelming majority of medical malpractice attorneys, so-called, will not initiate suits unless they are convinced that they have a cases which are not only meritorious but can be supported by the testimony of competent expert medical witnesses. Attorneys failing to follow this practice subject themselves to suits. Gillian v. Taylor. No. 46815 (Cal.App. Dist.5 10/16/2006)--CA
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Title Annotation:D. Mitchell Taylor vs. Dr. Terry Gillian
Author:Tammelleo, A. David
Publication:Medical Law's Regan Report
Geographic Code:1USA
Date:Dec 1, 2006
Previous Article:OH: in limine ruling on admissibility of expert: plaintiff's 'failure to proffer' expert's testimony.
Next Article:Drs. Sue Dr. & claim peer review immunity does not apply.

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