Civil death penalty imposed

A doctor who allegedly gave false sworn testimony in a medical malpractice case has lost his right to deny liability, as a Virginia trial judge invoked the court’s inherent authority to punish “fraud on the court.”

Such a harsh penalty by a Virginia judge is unusual if not unique, but the circumstances that drove the decision are rarely seen, litigation attorneys said.

The March 27 ruling by Circuit Judge G. Carter Greer granting summary judgment on liability to the med-mal plaintiff sets the scene for a trial against Martinsville cardiologist Jack A. Painter on the issue of damages only.

In his $2 million lawsuit, patient David French claims he developed a permanent neurological injury after a 2009 cardiac catheterization procedure by Painter led to an interruption of blood flow to his right leg.

French claimed Painter failed to perform a femoral angiogram, known colloquially as a “groin shot,” which allegedly would have shown plaque in an artery. The presence of plaque would have been a contraindication for the use of a vascular closure device in the procedure.

Painter claimed he performed the “groin shot,” but there was no record of it in the patient’s chart, according to Greer’s 16-page opinion in French v. Painter (VLW 013-8-024).

Regardless of the merits of the claims, Painter “intentionally engaged in a pattern of deceptive and abusive conduct designed to undermine the court’s ability impartially to adjudicate the case,” Greer wrote.

Greer said the evidence suggested Painter’s misdeeds began the very day he received notice of the lawsuit. French sued in 2011 and his lawyer, Martinsville’s Robert W. Mann, promptly had the suit papers delivered to Painter’s office through a sheriff’s deputy.

That same day, someone from Painter’s office copied 30 pages of records from French’s hospital medical chart. In addition to records related to the disputed 2009 surgery, the pages included records from French’s hospital admission the following year for treatment of addiction to alcohol, pain pills and marijuana, Greer said.

Those later records suggested the pill addiction stemmed from complications of the disputed cardiac catheterization, according to Greer’s summary of the evidence.

Painter denied reading those records, but, after three hearings on a motion for sanctions, Greer concluded the doctor did read the records and also faxed them to his attorney two weeks later.

It appeared Painter read the records, the judge said, because Painter mentioned French’s drug use in a later conversation with the patient’s treating neurologist. That conversation appeared to be an effort to discredit the patient and influence a material witness, Greer said.

When he gave a deposition, Painter denied having seen any of French’s post-surgical medical records and denied talking about the patient to anyone other than the neurologist. “Those statements were false, and the defendant knew that they were false,” Greer wrote.

Greer cited testimony from a representative of the manufacturer of the medical device used in the procedure that Painter had approached him with concerns about a case where a patient had complications after use of the device.

Painter’s deposition produced other problems for the doctor. At one point, he was asked to mark a diagram to show where he had inserted a needle. Later, that diagram could not be found, Greer said.

As Painter later admitted, he pocketed the deposition drawing “on an impulse” and then watched without comment as the lawyers and court reporter tried to find the missing paper.

After the deposition, Painter provided a written statement under oath that he was not in possession of the drawing and did not know where it was.

When asked at the sanctions hearing how he managed to pocket the diagram with everyone else sitting at the table, he responded, “I guess I’m just Houdini.”

Greer made it clear he did not ascribe any improper conduct to Painter’s lawyers. Walter H. Peake of Roanoke represents Painter in defense of the lawsuit. Roanoke’s Powell M. Leitch III served as Painter’s personal lawyer concerning the motion for sanctions.

Painter was previously represented by Robert F. Donnelly of Richmond. Donnelly and his firm withdrew from the case shortly after Painter’s deposition, Greer said in the opinion.

Painter’s hiding of the diagram put Leitch in an awkward position, Greer said. At the first sanctions hearing, Leitch argued there was no evidence Painter had anything to do with the disappearance of the drawing. Painter later gave the drawing to Leitch, who then submitted it to the court as Painter acknowledged his actions, according to the court opinion.

Greer made it clear he imputed no wrongful conduct to Painter’s lawyers, who enjoy “sterling reputations,” in the judge’s words.

By contrast, Greer was unimpressed with Painter’s conduct at the sanctions hearings. “Referring to the plaintiff as a ‘bum,’ raising objections on his own, and calling himself ‘Houdini’ during his testimony, the defendant displayed a scornful demeanor, and his testimony as a whole was not credible,” the judge wrote.

Greer sought the proper legal remedy for Painter’s behavior. Virginia’s litigation discovery rules allow for sanctions, but only for violation of a court order. Attorneys and parties may be sanctioned under Va. Code § 8.01-271.1, but only for the filing of improper pleadings.

Painter’s conduct fell outside the ambit of those penalties.

Greer concluded the court has the inherent power to punish fraud on the court when proved by clear and convincing evidence. He noted three cases in which Virginia circuit judges, confronted with misconduct by plaintiffs, had imposed assessments against any later recovery.

In another opinion, cited by the plaintiff but not mentioned in Greer’s opinion, a Richmond circuit judge took the unusual step of dismissing a plaintiff’s case outright based in part on findings of false statements in discovery responses. That 1999 case is Harris v. Van Dyer (VLW 099-8-445).

Painter argued default would be too harsh a penalty because the doctor’s alleged misconduct concerned matters that were peripheral to the merits of the case. Greer, however, found “the defendant’s credibility, or lack thereof, is central to the case.”

Since the plaintiff claimed a femoral angiogram would have avoided his injury and the doctor claimed he did a femoral angiogram, “whether the defendant is credible is at the heart of the case,” Greer wrote.

Greer found fraud on the court by clear and convincing evidence. “The court cannot tolerate such conduct, and a sanction is unquestionably warranted,” he wrote. “The court grants the motion for sanctions, strikes the defendant’s answer, and grants the plaintiff summary judgment on the issue of liability. The case will proceed to trial on the issue of damages only.”

A jury trial scheduled for last December was postponed to allow consideration of the sanctions motion. No new trial date has been set.

Leitch, who defended the sanctions motion, was surprised at the outcome. “It’s not what I expected,” he said.

Greer’s decision presents “some novel issues,” said Peake, Painter’s lawyer in the ongoing lawsuit.

“We are currently reviewing the court’s letter opinion and ruling and our course of action,” Peake said.

“The court’s opinion speaks for itself,” said Mann, French’s lawyer, who declined further comment on the record.

Reading Greer’s opinion, Richmond plaintiff’s lawyer Malcolm P. McConnell III said he had never seen a situation with a defendant who so undermined his defense. The judge undoubtedly had the authority to lower the boom on Painter’s defense, McConnell said.

“There’s no question the doctor was abusing the system in order to gain an advantage in the litigation. It all seems logical the judge would be able to do that,” he said.

The judge’s carefully written opinion highlights the unusual nature of the penalty, said Gary B. Mims of Fairfax, another plaintiff’s lawyer who reviewed the decision. “Clearly, Judge Greer felt he was somewhat embarking on uncharted territory just by the way he carefully analyzed it,” Mims said.

The outcome was not as surprising as the facts themselves, Mims said. “It’s rare to have actual misconduct on behalf of the named defendant like this,” he said.

Greer’s decision raises the possibility of liability insurance coverage problems for Painter, lawyers who read the opinion said. The nature of Painter’s alleged misconduct, however, suggests the insurance company might not be in a position to deny coverage, Mims said.

“When you read the factual findings in this case, while [Painter’s actions] were all bad acts, it looks as though they were all committed in an attempt to defend himself,” Mims said.

Painter has been both a plaintiff and defendant in other litigation, according to court records. He sued a Florida hospital in 2008 claiming he was defamed when the hospital suspended some of his clinical privileges and reported the action to the National Practitioner Data Bank. That lawsuit was settled in 2010, according to court records.

Painter was a defendant in a Martinsville wrongful death medical malpractice action that settled in 2011, and he is named among defendants in a current malpractice lawsuit in Martinsville, according to court records and attorneys involved in those cases.