Case: Medical Malpractice
By Andrew Wolfson
Four times, Dr. Frank Bonnarens was sued for malpractice, and four times, the lawsuits were dismissed.
So after a fifth suit was filed and later dropped, the Louisville orthopedic surgeon fought back -- filing his own suit against the moonlighting state government attorney who had sued him in the fifth case.
"I just felt I needed to say this was wrong," Bonnarens said.
Earlier this month, a Jefferson Circuit Court jury unanimously found that attorney Walter Bedford Jr. sued Bonnarens for the sole purpose of harassing him into paying a settlement.
The jury ordered Bedford to pay Bonnarens $450,000, including $200,000 in punitive damages.
Bonnarens, 48, said he thinks the May 11 verdict will make lawyers "think twice before they file a frivolous lawsuit."
The judgment is the second of its kind in six years returned against a plaintiff's lawyer in Kentucky. Bedford was defended by the attorney who was the subject of the previous verdict, Fred Radolovich. A jury in June 2000 ordered Radolovich to pay $72,000 for negligently suing a Louisville neurosurgeon.
In Bonnarens' case this month before Circuit Judge James Shake, jurors found Bedford failed to collect medical records that would have showed the surgeon was blameless in his treatment of a patient's shoulder injury.
"He made all attorneys look bad," said jury foreman Robert Coomer, a Louisville Metro Police narcotics detective.
Louisville lawyer William McMurry, who usually represents plaintiffs in medical malpractice cases, said he agreed to represent Bonnarens for free in part "to overcome the bias and prejudice" that lawyers like Bedford have created "against legitimate plaintiffs."
In an interview, Bedford, who is black, said the verdict was "borne out of passion and prejudice." And Radolovich said in a motion for a new trial that there was no evidence that Bonnarens' reputation was harmed by the lawsuit.
Radolovich said McMurry and Bonnarens' sole aim was to "destroy Mr. Bedford."
But the president of the Kentucky Academy of Trial Attorneys, Steve Downey, hailed the verdict, which he said shows that doctors have a remedy from frivolous suits without so-called tort reform.
"This shows the system is working," said Downey, who practices in Bowling Green.
Dr. David Bizot, president of the Greater Louisville Medical Society, said the case may deter some frivolous cases but not all because the notion of the "lawsuit as a lottery ticket" is embedded in our culture.
Dr. Dan Varga, president of the Kentucky Medical Association, said it's hard for doctors to find lawyers willing to file such countersuits and "usually not worth the hassle." He and Bizot said caps on damages would provide a broader deterrent to frivolous litigation.
The Bonnarens case began in November 2002, after a bookshelf fell on Iman Talaat, a vice principal at Liberty High School, and injured her shoulder, according to court records.
During arthroscopic surgery, Bonnarens found Talaat had damage to a bushing between her shoulder blade and collar bone, but he specifically noted that there was no full tear of her shoulder.
About six months later, Talaat re-injured the same shoulder while breaking up a fight between two students, one of whom weighed 350 pounds. She returned to Bonnarens, who ordered an MRI that showed she had torn her shoulder from one end to the other. He recommended surgery to repair the lesion.
Instead, she went to another surgeon, Dr. Edward Tillett, who performed the operation. She then hired Bedford, who sued Bonnarens, claiming he had missed the lesion when he performed the first surgery.
As required under Kentucky law, Bedford consulted an expert before filing the suit -- Dr. David Seligson, the former chairman of the department of orthopedic surgery at University of Louisville's medical school.
Bedford claimed Seligson assured him that a suit would not be "medically frivolous." But Seligson said he told Bedford no such thing.
"I told him that this was a matter that would take some time looking into but that I was not prepared to do that," Seligson testified in a deposition that was read at Bedford's trial.
According to Bedford's own testimony and other court records, he failed to provide Seligson with photographs and other medical records that would have showed Talaat had no tear when Bonnarens operated on her.
Bedford also conceded that he didn't talk at all with Tillett, who testified later at trial that if asked, he would have told Bedford that Bonnarens did nothing wrong.
"There was quite a bit of evidence that the lawyer didn't bother to get," said Coomer, the jury foreman.
Bedford agreed to dismiss the suit eight months after he filed it, when an expert who examined a complete set of Talaat's medical records for him found no basis for the litigation.
Talaat declined to comment.
Bonnarens' suit against Bedford charged that he filed the original complaint without first conducting a proper investigation to determine if there was probable cause for it. Bonnarens said he spent about 80 hours on his defense, for which he asked for and got $50,000 from the jury.
In a deposition before his trial, Bedford claimed he was "quite qualified" to handle a medical malpractice case, but at trial he said: "As I sit here today, I would recharacterize that to say that I consider myself qualified to practice law."
Bedford worked from 1987 to 1991 as an attorney and arbitrator in the state Department of Worker's Compensation. In 1991 then-Gov. Paul Patton appointed him as an administrative law judge, but after a Senate committee refused to recommend confirmation of the appointment, Bedford withdrew his nomination and resigned from the agency.
Bedford said that when he filed the suit for Talaat, he was off work on comp time from the Cabinet for Families and Children, where he worked from June 2002 through December 2003.
He said he now practices out of another lawyer's office, although he has no listed business number.
McMurry said Bedford has no liability insurance and limited assets, so it may be impossible to recover the judgment if it is affirmed. Bedford declined to comment on whether he has the means to pay.
No matter, Bonnarens said, the verdict is "a victory of principle and precedent."