A Louisiana anesthesiologist who wrote a glowing recommendation on behalf of a fellow anesthesiologist to a hospital in Washington State, despite knowledge of the doctor’s habit of diverting Demerol from his patients, was ordered to pay $8.2 million to pay for the damages that resulted when the doctor and hospital was sued for medical malpractice.
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According to a Report in Outpatient Surgery Magazine, Louisiana Anesthesia Associates (LAA) terminated Robert Lee Berry, MD, in 2001 over concerns that he had a problem with substance abuse. William J Preau III, MD was also a member of LAA and participated in the decision to terminate Berry. Even after this, however, Dr. Preau wrote a glowing recommendation to Kadlec Medical Center in Richland, Washington stating: “[Dr. Berry] is an excellent anesthesiologist. He is capable in all fields of anesthesia including OB, peds, C.V. and all regional blocks. I recommend him highly.”
Kadlec Medical Center hired Berry. One year later, Berry was under the influence, failed to properly administer anesthesia to a patient, and the patient fell into a permanent vegetative state. The patient’s family sued Dr. Berry and Kadlec medical center. The case was settled with Dr. Berry paying $1 million and the hospital paying $7.5 million.
Feeling misled by Dr. Preau’s letter, the hospital sought indemnity – repayment of their settlement and legal fees – by suing Dr. Preau and Louisiana Anesthesia Associates (LAA) for intentional misrepresentation, resulting in a new round of litigation in the United States District Court for the Eastern District of Louisiana.
The federal jury awarded $8.2 million to Kadlec for damages that resulted from its settlement with the patient and the medical damages, which was apportioned based on the comparative fault of Dr. Preau and Louisiana Anesthesia Associates. On appeal, however, the United States Court of Appeals for the Fifth Circuit reversed the judgment against LAA, because LAA provided only a neutral recommendation (i.e. a response only indicating that the former employee had been on its medical staff and does not vouch for his credentials). Moreover, the person who prepared LAA’s letter indicated that she did not know anything about Dr. Berry’s termination and other problems, which were kept confidential. See full text of the Appellate Court’s Decision.
The end result was that Dr. Preau was left to fulfill the entire $8.2 million judgment to Kadlec. He filed several lawsuits to have his medical malpractice carrier indemnify him, all of which failed. According to the Outpatient Surgery Article, Preau ended up satisfying the judgment in full.
If there is a moral to the story, be careful when writing a letter of recommendation – particularly if you knowingly conceal negative information.
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