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Even if your doctor previously had his medical license suspended, don’t try to use that against him in a medical malpractice suit. That was the clear message of the 4th District Court of Appeal in West Palm Beach, Fla., when it overturned a $541,000 judgment against a Fort Lauderdale plastic surgeon earlier this month. Richard Dion, formerly of Fort Lauderdale, had gone to Dr. J. Clifton Lingle in 1996 to have artificial pectoral muscles implanted in his chest to make him look more buff. But Dion wasn’t happy with the results. He had Lingle operate on him twice more. The three procedures were performed in Lingle’s Fort Lauderdale office, because the board-certified plastic and reconstructive surgeon had no staff privileges to operate at any hospitals. Dion had the implants removed by a Rhode Island physician in 1997. He sued Lingle for malpractice in Broward Circuit Court in January 1998, complaining that the three surgeries disfigured him, caused pain and numbness and left him unable to work. Among other things, Dion contended that Lingle was negligent in that he violated a statute requiring him to have hospital privileges before performing office-based surgery under general anesthesia. During the trial, Dion’s attorney, David Kahn of Fort Lauderdale, asked Lingle about a prior six-month suspension of his medical license. The Florida Department of Professional Regulation, following a series of patient complaints, disciplined Lingle in May 1998 for failing to provide adequate post-surgical care to a woman on whom he had performed an outpatient liposuction. Lingle’s license was suspended by emergency order, but it was reinstated in November 1998 as part of a deal imposing a $10,000 fine and three years’ probation. During the Broward trial, Lingle, who represented himself, objected to Kahn’s questions about his disciplinary record. But Judge Thomas M. Lynch IV ordered him to answer. Later, in his written jury instructions, Lynch told jurors to regard Lingle’s performance of office-based surgery under general anesthesia — without having hospital privileges — as negligence per se. The judge’s instruction was based on a statute setting out the standard of care for office-based surgery. When the jury returned, it awarded Dion $400,000 in compensatory damages, plus $141,000 in attorney fees. Lynch reduced the award to $355,000. But the appellate court overturned the judgment and remanded the case to the trial court. The court held that Lynch erred in allowing Kahn to question Lingle about his license suspension. The appeals court wrote that questions about prior disciplinary actions were an improper attack on Lingle’s credibility, because medical peer review actions and decisions are shielded from disclosure under state law. This confidentiality, the court said, is essential for enabling the medical profession to regulate itself. In support, the appeals court cited its own decision in December in Liberty Mutual Insurance Co. v. Wolfson, which held that peer review disciplinary actions against doctors, such as hospital privilege suspensions, are confidential and cannot be disclosed to a jury. The court noted, however, that Lynch “did not have the benefit” of that decision when he presided over the Lingle trial. The appeals court also ruled that Lingle’s lack of hospital privileges was merely evidence of negligence, not negligence per se. It said that “a cause of action in negligence per se is created when a penal statute is designed to protect a class of persons, of which the plaintiff is a member, against a particular type of harm.” But violating a statute that is designed to protect the general public, not a particular class of persons, merely constitutes evidence of negligence. But Kahn thinks the 4th District was wrong and that Dion has grounds for an appeal to the Florida Supreme Court. He argues that Lingle opened himself up to questions about his credentials, credibility and past performance by calling himself as his own expert witness. He also believes the court interpreted the negligence standard incorrectly. “I was disappointed that the court didn’t realize this is a law designed to protect patients in an office,” he says. Lingle, who has retired from medical practice and currently works as a medical business consultant, disagrees. He says Lynch’s faulty jury instruction that his lack of privileges constituted negligence all but guaranteed a plaintiff verdict. He argues that lacking hospital privileges is an unfair measure of negligence, because hospital politics — rather than medical qualifications and skill — often determine who receives credentials. Kahn says Dion, who now lives in Massachusetts, has yet to decide whether to seek a retrial or to appeal to the supreme court. “He had a substantial verdict against Dr. Lingle,” Kahn says, “and I can’t imagine he’s going to walk away from this case.”

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