NY Doctor and Lawyer Sanctioned For Suing Opposing Expert-Physician

A doctor that has thrice been sued for medical malpractice, with the same expert coming in against him all three times, got fed up and sued the opposing expert, claiming fraud. For his troubles in the unusual suit, both he and his attorney have been socked with sanctions by a New York judge.

The decision by Justice Marcy Friedman in Cattani v. Marfuggi, filed last week in New York County Supreme Court (our trial level court), ripped both Dr. Robert Cattani and his counsel Richard Paul Stone, for bringing an action she deemed frivolous. Because of an “overwhelming body of case law, reiterated repeatedly by the appellate courts of this state,” against such suits, Justice Friedman sanctioned both lawyer and doctor $1,000, and has scheduled a hearing for them to come back to determine reasonable legal fees to be paid.

Judge Friedman reiterated the long-held position that “statements made by parties, attorneys, and witnesses in the course of a judicial or quasi-judicial proceeding are absolutely privileged, notwithstanding the motive with which they are made, so long as they are material and pertinent to the issue to be resolved in the proceeding.”

During the pendency of the action, Justice Friedman said that she took Mr. Stone aside in chambers and warned him of the potential for sanctions if he didn’t drop a suit that could not be maintained, but that Stone informed the court his client wanted to go forward.

The standard for frivolous conduct is well known here, and is set forth in our rules of court (22 NYCRR 6 130-1.1[a]). Conduct is frivolous if it “is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law.”

Lesson to be learned: Learn to say no to potential clients with crazy claims. There is nothing to be gained by bringing frivolous suits, and much to be lost. A successful law practice isn’t made simply by hoping you might win the case, but by learning which cases not to take.

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5 Responses Leave a comment

  • Anonymous 2009.12.10 at 20:28 | Quote

    It is wonderful to see a judge finally show some backbone. The sad thing is, this is news because it is so rare. How many times have you seen a judge actually impose sanctions for unethical conduct? Now how many times have you seen sanctionable conduct?

    -Randazza

  • Eric Turkewitz 2009.12.11 at 09:53 | Quote

    It’s rare to see.

    Wish I saw it more, particularly with the obstruction of discovery.

  • Lawrence 2009.12.12 at 10:35 | Quote

    Cattani has been sued dozens of times. “The word” is that he doesn’t settle. I’ve heard he had three trials last year, with another jury to be picked next week.

  • Eric Turkewitz 2009.12.22 at 11:07 | Quote

    So the crux of the issue eric is that you can pay a doc to say anything on the stand without repercussions.

    Of course not. All witnesses are subject to the rules regarding perjury.

    And there is nothing to stop action being taken against a doctor’s license if s/he goes off the rails with medicine that clearly isn’t.

    And there is also a hearing one can request (under Daubert or Frye, depending on jurisdiction) to preclude junk science if it is offered.

  • Eric Turkewitz 2009.12.29 at 15:26 | Quote

    When is the last time a doc witness was accused of perjury?

    If you come prepared, it often becomes unnecessary because you can expose the doctor under cross.

    There is no doubt they have great leeway, of course, since much that goes on that is contentious is opinion. But it simply isn’t accurate to say they can “say anything on the stand.”

    When is the last time you brought up the Daubert standard?

    In NY it comes under Frye, and the answer is, this year.

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