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Four years ago, a judge called an Atlanta defense firm’s repeated assertion of the peer review privilege during discovery nothing more than a “smoke screen.” Now, a plaintiff calls it racketeering. A former anesthesiologist at Piedmont Hospital in Georgia is suing the defense lawyers who once opposed him in court — Sidney F. Wheeler, now of Atlanta-based Weinberg, Wheeler, Hudgins, Gunn & Dial, and M.B. Satcher III, now of Marietta, Ga.-based Jennings, Sparwath & Satcher — and their former firm of Long, Weinberg, Ansley & Wheeler. Dr. Lawrence Conrad Freeman’s Fulton State Court suit accuses the lawyers of racketeering, fraud, negligent misrepresentations and abusive litigation. Their litigation tactics and “baldface lies,” his suit claims, cost him his reputation and career, which he says are worth at least $3 million. But the lawyer-defendants insist they simply were doing their job, representing their client and following the law as they understood it. And the law, they argue, required them to withhold certain information from Freeman because absolute confidentiality is accorded to the peer review process. The claims of racketeering, they argue, are outrageous and based on nothing more than a heated discovery dispute. Whether it amounts to a discovery disagreement or racketeering, the bitter fight between Freeman and his lawyer, sole practitioner Jerry B. Hatcher of Alpharetta, Ga., and the Long Weinberg lawyers now has lasted 10 years. Long Weinberg first encountered Freeman in 1991 when he sued their client, Piedmont Hospital’s chief of anesthesiology, for intentional interference with business and contractual relations. Freeman, now of Freeman Physicians, P.C., claims he spent six frustrating years in that Fulton Superior Court litigation trying to discover information about complaints that nurses allegedly made about him, only to be stonewalled by the Long Weinberg lawyers’ insistence that the information must be kept secret under Georgia’s peer review privilege. That statutory privilege is designed to encourage candor among medical professionals in reviewing the actions of their peers. But in 1997, based on the testimony of a hospital administrator, a Fulton Superior Court judge called the defense lawyers’ assertion of that privilege a “classic case” of a smoke screen and ordered the information produced. Since then, Freeman has tried to add the opposing lawyers as defendants in his Superior Court suit, which is pending. He also filed a second, separate suit against them in Fulton State Court, naming the Long Weinberg firm; Wheeler, Satcher, Piedmont Hospital and the administrator, now retired, as defendants. (Long Weinberg became Weinberg Wheeler in 1999.) A Fulton State Court judge is considering Long Weinberg’s motion for summary judgment. DISPUTE AMONG DOCTORS The first face-off between Freeman and Long Weinberg had its origins in Freeman’s tenure at Piedmont Hospital and his rocky relationship with the hospital’s then-head of anesthesiology, Dr. Walter H. Butler, now retired. The two anesthesiologists had been at odds over personal and professional matters years before Freeman resigned in 1989, court papers say. That year, Freeman lost a Florida suit against a third party over the purchase of a boat, and Butler expressed concern that because the judgment was partially based on fraud, it could adversely affect their business, a professional association called Piedmont Anesthesiology Associates. Freeman claimed Butler simply wanted him out of Piedmont, and that he resigned when he grew tired of fighting with Butler. But hospital officials claimed Freeman was already in trouble because of complaints about his work. The nature of those alleged complaints was the information shielded for years by the peer review privilege. Several weeks after Freeman’s departure, Hulett Sumlin, then administrator at Piedmont, informed the state medical board that Freeman had resigned. He wrote to the board that Butler had reported “concerns of the staff nurses and recovery room nurses regarding Dr. Freeman’s performance” to the hospital’s credentials committee but that Freeman resigned prior to any formal action by that committee. The credentials committee is a peer review group that has the power to deprive a doctor of hospital privileges. The medical board investigated but took no action against Freeman, according to court documents. Defense lawyers conceded that Sumlin’s letter was inaccurate in that Butler never reported the nurses’ concerns to the credentials committee because Freeman resigned first. Freeman sued Butler, Sumlin and Piedmont in 1991, alleging that Sumlin’s 1989 letter damaged his reputation and career. By the time the case got to trial in 1996, only Freeman’s claim of interference with contractual and business relations against Butler remained. A judge had dismissed Piedmont Hospital and Sumlin as defendants. Freeman lost at trial, but not before Fulton Superior Court Judge Bensonetta Tipton Lane posed a question to Sumlin on the stand. She asked the administrator if his letter had initiated the peer review. “There never was any peer review,” Sumlin answered, because Freeman resigned. ‘SMOKE SCREEN’ REVEALED To Freeman and Hatcher, Sumlin’s answer was an admission that the entire defense had been a lie. In a lengthy brief, Hatcher argued that the defense had committed a fraud on the court and engaged in a conspiracy to “orchestrate and manufacture the facts.” Lane later granted Freeman a new trial, writing that he had been unfairly denied information based on the peer review privilege. “A peer review,” she wrote, “cannot be automatically assumed to be in place when one of its members is contacted or has a discussion about a problem. It cannot be used as a smoke screen to hide malicious or vindictive acts by persons who happen to be connected to a peer review organization or to automatically immunize such persons from the requirements of the litigation process.” In her Oct. 16, 1997, order, Lane wrote, “The Court often hears the term ‘smoke screen’ used in litigation. This appears to be a classic case, the smoke screen here being entitled ‘peer review.’ ” Freeman v. Butler, No. D-90611 (Fult. Super. filed June 6, 1991). But the Long Weinberg lawyers responded that Hatcher’s contentions were “outrageous” and “inappropriate.” They argued that they followed the law in asserting the peer review privilege and that it still should apply. Lane’s conclusion, they claimed, was at odds with the record since everyone knew no formal peer review meeting ever occurred. They argued that appellate court rulings in Freeman’s case had held that the peer review process can include communications that occur before formal proceedings. PENDING CONCERNS Freeman’s new trial hasn’t occurred yet. Pending are motions to add Wheeler, Satcher and their former firm as defendants and to add claims under Georgia’s Racketeer Influenced and Corrupt Organizations Act against them. In the meantime, Freeman filed a separate suit in Fulton State Court. The nurses’ concerns, the suit says, turned out to be nothing more than complaints about Freeman’s handwriting and an incomplete report. In his RICO claim, Freeman accuses the lawyers of mail and wire fraud to further a “peer review scheme, trick and device.” The attorneys’ fees, he adds, were the “proceeds” from the “illegal activity.” The Long Weinberg lawyers, represented in that case by Thomas E. Greer of Carrollton, Ga.’s Tisinger, Tisinger, Vance & Greer, have a different version. In their brief seeking summary judgment, they say several nurses were worried about Freeman’s mood shifts, lapses in attention, and record keeping. The defense brief claims that Freeman and Hatcher are either forum shopping, attempting to get leverage for a settlement, or just trying to harass the defendant-lawyers. It also outlines a lengthy and frequently heated discovery dispute between Hatcher and the Long Weinberg lawyers over the information about the nurses. “[O]nce the layers of hyperbole, posturing and invective are peeled back, the gravamen of the [plaintiff's] claim is quite simple: a discovery dispute between opposing attorneys over the interpretation of a statute that different trial courts and different appellate courts in this case have decided differently,” Greer writes in the defense brief. Freeman v. Wheeler, No. 00VS006145H (Fult. St. June 14, 2000). Georgia law, he argues, doesn’t authorize plaintiffs to file separate actions against opposing attorneys over alleged discovery abuses. Plaintiffs have existing remedies without resorting to new litigation. And, he wrote, Lane already has granted Freeman relief — a new trial. “This additional act of filing a new lawsuit during the pendency of the initial case, to avenge perceived slights and disagreements over discovery should be discouraged by summary disposition by this Court,” Greer writes. “If not, an already overloaded judicial system will be under tremendous pressure from the resultant increase in filings.” Greer didn’t return a call for comment. Neither Wheeler nor Satcher could be reached. Hatcher said he had no time and no comment on the case.

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