Sunday, December 23, 2007
Doctor Says Dropped Suit Hurt Reputation
By Colleen Heild
Copyright © 2007 Albuquerque Journal; Journal Investigative Reporter
It would be an understatement to say Dr. Kenneth Rogers was surprised when he learned he had been sued for malpractice last summer in the death of Gregory Alan Grisham.
Now, he's angry even though the case against him has been dropped.
The Albuquerque physician had last seen Grisham in 2003, more than a year before Grisham collapsed while jogging and died the next day from a ruptured aneurysm.
There had been no request by anyone to examine Grisham's medical records, and the case hadn't gone through a state review process that is supposed to hear claims before they get to court.
The four-page wrongful death lawsuit filed on behalf of former state Health Secretary Michelle Lujan Grisham alleged her husband, Gregory, 45, had "severe headaches while a patient of Rogers, and that Rogers diagnosed these as migraine. "Rogers did not order a CT (Cat Scan) or MRI," the lawsuit said.
After learning he'd been sued last July, Rogers dug through his files and gave medical records to Michelle Lujan Grisham's attorney. Weeks later, the case was quietly dropped.
Rogers, who specializes in internal medicine, said a check of the records would have shown that Gregory Grisham never complained to him of headaches. Grisham also answered "no" when asked on a patient questionnaire if he had headaches.
Prominent Albuquerque malpractice lawyer Dan Shapiro said Michelle Lujan Grisham approached him about the case "at the last minute" and there wasn't time to first investigate the allegations.
He said his examination of the records convinced him to obtain his client's permission for the dismissal in October.
First of all, the statute of limitations had run out, Shapiro said.
"Secondly, Dr. Rogers did not see Mr. Grisham for headaches so he had no involvement, and that was a complete surprise."
The case is gone, but Rogers can't shake his anger.
He received no explanation as to how it happened. No letter of apology. And he is concerned the lawsuit will affect his malpractice insurance rates which for internists can run up to $11,000 a year.
"How can someone's reputation be besmirched this way?" said Rogers, who practices in Albuquerque.
Shapiro said he filed the case the day after Michelle Lujan Grisham contacted him.
"I'm sorry this happened, but nothing wrong was done. A client needs to have his rights protected... . We have such a tragic event, you want to make sure some justice is done."
New Mexico allows three years from the date of the occurrence to file malpractice lawsuits, and the three-year anniversary of Gregory Grisham's death was just weeks away.
"We had no records, and she didn't remember the dates. So what we're dealing with is every day could be too late. In those circumstances, you have to do something," Shapiro said.
He said he knew Michelle Lujan Grisham "from other things" and didn't consider turning her away. She did not return a Journal request for comment last week.
Grisham announced in October she would seek the Democratic nomination for 1st Congressional district seat. She headed the state health department from 2004 until last June.
The lawsuit on behalf of Grisham and her two daughters also named Southwest Medical Associates, where Rogers practices.
Rogers, who has been in private practice since 1981, said news of the legal action reached friends, patients and colleagues.
"I had patients who happened to be friends of mine call me and say, 'Gee, I'm sorry.' I had colleagues, who said, 'Gee, we're sorry that this happened.' They wrote me a personal letter of sympathy and support."
He said he explained the situation to those who inquired, but added, "I don't have any idea if patients left me because of this."
Rogers said, in the past "when I have had legal actions against me, there has been a well-documented trail of releases of records and legal correspondence.
"Presumably, they had done due diligence to see if there's a reason to proceed."
But Shapiro said obtaining medical records would have taken up to two months.
"We try very hard to be careful, and before filing a lawsuit we usually have someone ... look at the records. That's done virtually 98 percent of the time," said Shapiro, who has been representing plaintiffs in malpractice cases for 30 years.
Shapiro said he didn't try to get any publicity for the lawsuit, adding, "I didn't call any reporter."
The case didn't go before the state's Medical Review Commission, which was set up by the Legislature in 1976 to address a growing number of malpractice lawsuits.
New Mexico law states that "no malpractice action may be filed in any court" before an application is made to the commission and a decision is made.
The law applies only to health care providers who are covered through the state patient's compensation fund which Rogers is.
"One of the reasons to have the commission is to test out your case and try to get things resolved before you file a lawsuit," said attorney Mike Rueckhaus, acting director of the commission.
Asked how often lawyers bypass the commission and file in court, Rueckhaus said, "sometimes."
There is no penalty under the law for doing so.
Shapiro said he didn't know whether Rogers was covered under the review panel and didn't have time to find out. Just in case, Shapiro said he filed an application with the panel at the same time he filed the lawsuit.
In recent weeks, Rogers met with his insurance carrier about potential fallout from the lawsuit. The insurance representative was sympathetic, Rogers said, but "didn't have knowledge nor could he promise that it would not influence my insurance rates."
Rogers suggested the insurance company send Shapiro a bill for the company lawyer's time.
Shapiro said he hasn't received a bill, but added, "I think they're intelligent enough not to try that."