Lubell Rosen Wins Complete Defense Verdict on Sept. 30 for Client Jorge Jose Sowers, M.D. in $26 Million Failure to Detect Breast Cancer Medical Malpractice Case

MIAMI, Oct. 3, 2014 /PRNewswire/ — Steven L. Lubell, Esq., and Mark L. Rosen, Esq., partners at Lubell Rosen – A Law Firm for Medical Professionals and the Healthcare Industry – are pleased to announce that on Sept. 30, 2014, the firm achieved a complete defense verdict for its client, defendant Jorge Jose Sowers, M.D., in a failure to detect breast cancer case. The jury rejected the plaintiff’s theory of liability against Dr. Sowers in court case # 12-41665 CA 10 (Hortensia Martin, Alain Martin and Alan Martin, Plaintiffs v. Jorge Sowers, MD, defendant).

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The plaintiff’s counsel, Maria Rubio, Esq. of Miami, Fla., requested damages in excess of $26 million. The defendant was insured by Lancet Indemnity RRG, a physician owned and directed professional liability insurance carrier.

Lubell Rosen Partners Lubell and Aldo M. Leiva, Esq. represented the defendant. Associates Ariel Widlansky and Josh Bloom also participated for the defense. The case was heard by Judge Peter Lopez for the 11th Judicial Circuit for Miami-Dade County, Florida.

The plaintiff, 41-year-old patient Hortensia Martin, alleged that Dr. Sowers failed to detect cancer in her right breast. The plaintiff’s counsel requested damages in the amount of $5,316,940 in lost earnings, past and future medicals; and $20,985,000 in pain and suffering.

Court records confirmed that the plaintiff went for a routine mammogram screening test on July 14, 2008, which was interpreted by Dr. Sowers, a radiologist. The mammography report, which was offered into evidence, identified a “nodule” in the plaintiff’s right breast. It was uncontroverted at trial that the plaintiff’s primary care doctor never met with the patient nor informed the plaintiff of the results. It was also uncontroverted that the plaintiff subsequently presented to a second primary care doctor complaining of breast pain.

Lubell called both primary care doctors as adverse witnesses. The first primary care doctor admitted that it took four months for him to fax the plaintiff a copy of her mammography report. The second primary care doctor admitted that although she saw the plaintiff on four occasions, she did not review the mammography report at all.

Lubell called Kevin Inwood, M.D., a board certified internal medicine specialist of Jupiter, Fla., to testify against the primary care doctors. Dr. Inwood testified that the primary care doctors fell below the standard of care by failing to refer the plaintiff for a surgical consult and/or surgical biopsy. Expert testimony offered by both parties confirmed that had a surgical biopsy been ordered within a year of the original finding, the plaintiff’s cancer more likely than not would have been detected before it metastasized.

The plaintiff’s oncologist testified that approximately one year later, the plaintiff developed metastasized cancer, which spread from her breast to her lymph nodes and ultimately to her vertebrae. By the time of trial, the plaintiff’s cancer progressed and testimony offered at court indicated that her life expectancy is less than two years.

Court records confirm that the plaintiff dismissed both primary care doctors as co-defendants prior to trial.

The plaintiff’s counsel argued that Dr. Sowers actually knew that there was cancer on the film in 2008, but failed to indicate it in his report. Counsel played to the jury a videotaped deposition, taken in 2013, in which Dr. Sowers admitted he was aware of cancer in July of 2008. Dr. Sowers subsequently recanted the testimony in a later deposition, claiming that he was confused at the earlier deposition.

“As medical malpractice defense attorneys, we were able to successfully defend our client in this very difficult case,” said Lubell. “As we do for all of our clients, we worked diligently to prove Dr. Sowers’ innocence.”

Lubell closed the trial by stating to the jury, “Our hearts go out to Ms. Martin and her family.  However, Dr. Sowers did nothing wrong in this case, except give a bad deposition.”

About Lubell Rosen
Lubell Rosen is a law firm dedicated to providing full service representation as well as defending and protecting physicians, healthcare professionals and businesses in the healthcare industry. The firm has been named a U.S. Top Ranked Law Firm by FORTUNE Money Magazine. Only the finest attorneys are invited to join the practice. Lubell Rosen’s headquarters are located at 200 S. Andrews Ave., Suite 900, Fort Lauderdale, FL 33301. To reach Lubell Rosen’s headquarters, call 954-880-9500. The firm also has offices in Coral Gables, FL. and Syosset, N.Y. For more information, visit

Duree Ross / Duree & Company, Inc.

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SOURCE Lubell Rosen


Outcomes Based Medical Care

Staff Report

During an interview with Jeremy Al Lazarus, MD, AMA president, by Leslie Kane, MA at the October 2012 MGMA meeting in San Antonio, TX, Dr. Lazarus talked about many issues affecting physicians these days.

Regarding future sustainable growth rates, Dr. Lazarus pointed out that it can affect patients as well, citing the difficulty almost 25% of seniors have finding doctors who accept Medicare at all or who limit the overall number of Medicare patients they accept. This has not happened suddenly, but is appears to be a gradual change over time.

He thought a possible replacement measurement for sustainable growth rates could be provider payments that encourage better care outcomes at decreased costs; one possibility is paying an outcome based fee. For example a fee can be based on coordination of care that leads to improved outcomes. Dr. Lazarus reported that the AMA delivered its recommendations to the US Senate with basic principles that could form the basis for changes from sustainable growth rates to improved outcome of care measurements, based on practice size and overall population served.

AMA is working with various sized practices to determine sources of fulfillment and satisfaction for physicians. They are looking at, among other things, practice infrastructure, team training, or physician ages in order to develop suggestions to their membership to model their incentive programs.

In late 2012, Nikhil Sahni and Robert Kocher wrote about “Creating Outcome-Driven Health Care Markets”. Nikhil Sahni is a health care analyst working on policy implications and Robert Kocher is a partner at Venrock and focuses on healthcare IT and services investments. They state that “Patients with Chronic Disease” is a category that would work well for outcomes based fees. They say that for chronic disease patients, the main goal is to improve outcomes to “minimize a condition’s short-term inconveniences and long-term complications”. For providers, there should be incentives to create a long-term focus on patient engagement, adherence, and side-effect prevention. A provider system should be able to care for all aspects of a patient’s chronic condition. Patients seeking this level of care provide the incentives for doctors, other medical providers and pharmaceuticals to manage cost, deliver annual health and avoid complications at lower costs.

Sahni and Kocher suggest that, with this model, incentives work best when providers are paid using a risk-adjusted, capitated payments. To be competitive, the providers can enter into organizations such as Patient-Centered Medical Homes, multi-specialty groups, ACOs or other integrated delivery systems. These organizations must have the capabilities to manage risks as well as population-based health and medical costs. With this approach, patients are more involved and are reinforced to adhere to their treatment plans and remain under care.

Patient Satisfaction

Staff Report

Based on studies conducted by Jeff LaConte of the P&G Healthcare Consumer Institute (HCI), the following is a list of key areas of patient satisfaction. In a survey conducted with over 9,500 primary health care consumers, HCI reported the following results to help understand their met and unmet needs. This perception of performance is designed to help identify the gaps and missed opportunities to enhance satisfaction and overall patient contentment. The survey was performed about a decade ago, but according to many practice management consultants, the items driving patient satisfaction are still valid today and apply to many types of practices. Practices that have a large turnover in their patient population and have problems growing their practice should take note of the following attributes considered important to patient.

Patient Satisfaction with the Primary Care Physician
Of the greatest importance to patients, both male and female, is that their physician makes decisions in the patient’s best interests, and is someone that they can trust. They expect their physician to be familiar with their medical history and be willing to ask questions to understand their current condition. Respect for patients’ privacy is also among the most important aspects. Their physician must be willing to explain the treatment plan, and be willing to listen to the patient’s concerns and questions. They want a physician with good diagnostic skills along with the ability to explain the diagnoses, the needed medications and treatment options. The ability to get timely appointments and returned phone calls is considered critical as well

Also at the top of the list, patients wanted their physician to be caring, pleasant and approachable, and the providers and staff need to be knowledgeable and provide quality care. Services need to be reasonably priced for self-pay patients. Wait time should be reasonable. The staff should process claims within a reasonable time period with little or no difficulty. Patients define excellent care as a combination of technical competence with an attentive, personalized style and service.

Key Insights
Female patients are more concerned and sensitive than male patients regarding the way that the physician and the staff communicate with them. Women have higher expectations of service which means the practice has a greater chance of disappointing. Females want a patient experience where all forms of communications (telephone, reception, exam room) are courteous and respectful. All the practice staff and providers need to be aware of this concern and should apply it consistently to both female and male patients.

Improvements that Most Practices Can Make
Some areas may be easy to fix and will give a big boost to patient satisfaction. It is recommended that practices make an improvement in appointment availability and the timeliness of returned phone calls. They would also recommend an improvement of the wait time spent to see the doctor. It was also noted that many patients have a preference for additional evening and Saturday office hours. Satisfied patients stay with the practice for the long term and if something goes wrong, they are more likely to forgive.

Liabilities of Sharing Space

Staff Report

John Miller II and Rush Smith, Jr., JD, wrote an article in November 2011 about potential liabilities when sharing office space. They report that the terms “apparent agency” or “vicarious liability” are more than just vague legal jargon.

While there is no question that physicians are legally responsible for their own office staff and those directly employed by their practice, many do not realize they are vulnerable to lawsuits for the actions of those they do not employ but share common space.

Miller and Smith describe “apparent agency” as a relationship where a principal leads a patient to believe that the principal employs an independent contractor, who then injures that client, leading to legal redress. By “vicarious liability”, they describe liability that is imposed on a principal who did not actually act negligently, but who has implied legal ties to (thus, an “apparent agency” with) the independent party that did cause an injury.

When two physicians share space and expenses for receptionist, assistants, bookkeeper and rent, a patient who visits one of the physicians could reasonably perceive that this is a group practice. Errors by an employee paid an equal share by the two physicians, could place both of the physicians (the perceived group practice) and all fellow employees at risk for medical malpractice.

The following aspects for the space-sharing relationship can help convince the court to dismiss the non-participating physician from a malpractice suit or avoid involvement altogether.

  1. 1.) Advertising needs to specifically point out that there are two different practices in this space, rather than misleading anyone to believe it is a group practice.
  2. 2.) Phones cannot identify the office as Drs. X and Y’s office or the X and Y Clinic. Whenever possible use separate phone and fax lines for each legal entity.
  3. 3.) Signage in the building cannot imply that this is a group practice. Separate signs should be posted, one for Dr. X and another for Dr. Y.
  4. 4.) Forms and Stationery are separate for the two legal entities, not implying that this is a group practice.
  5. 5.) Billing must reflect two different legal entities
  6. 6.) Shared Employees should be paid by a “master employer” rather than split payments by two separate employers. This would render only the “master employer” liable for any actions by the shared employee(s) whose actions lead to malpractice liability.

Sometimes potential liability by a shared employee would need to be covered by specific insurance for “employee actions.” This is sometimes titled a “leased employee” policy and is an endorsement to each doctor’s professional liability policy. In addition, office procedures need to be in place to prevent errors when handling lab results, radiography or other test results.

When multiple legal entities sign an office lease, each entity shares liability. It would be better for one physician to sign the lease and, with the approval of the landlord, have a sublease for the second physician.

Finally, as in most business affairs, be sure to look into the other physician(s)’ credentials, credit rating, references and reputation before entering into any kind of legal agreement with them.

Build a Successful Practice

Staff Report

Practices run the gamut from struggling to produce acceptable revenues to succeeding beyond expectations. The successful practices appear to attract new patients, add new providers, and have greater revenues than their peers because these practices understand the fact that a medical practice is a business and act accordingly. Management needs a basic understanding of business operations and has the ability to change as circumstances warrant. Following is a list of some of the qualities that practices need to have to be successful.

Look for Opportunities and Have a Plan
Successful partners do not leave growth to chance. They have the ability to analyze their resources and the competition so they can find opportunities for growth. They look for opportunities that provide important services to communities that can drive practice growth; they plan for long-term growth and provide immediate and near-future plans that advance those long-term plans. Sometimes a simple change of facilities and advertising in local publications will lead to new patients. It may be necessary to form a multi-specialty practice to offer specialties that better handle community needs that are not yet being met efficiently.

Know How to be Visible
Use a TV monitor in the reception area that reports on the services that the practice offers. Maybe add extended hours or weekend hours to accommodate working patients. Advertise to social and professional networks for new patients. Effective advertising should communicate the practice’s unique services.

Keep Patients Happy
The most successful tactic of all is to keep patients happy. Word-of-mouth has always been the best marketing tool. Quality care is the goal of every staff member from the front desk to the physicians. Such goals are emphasized from hiring through every-day activities.

Reliable Data
Use data, not guesswork. Know when patients need specific testing done. Know the time it takes to be paid for specific procedures and their volume. Success requires the right data at the right time to make correct medical decisions. Integrated electronic health records and practice management systems can help organize your data and alerts.

Strong Leadership
Managing physicians set the direction for the rest of the staff. Hire the right people who can handle day-to-day needs so providers can focus on overall goals and clinical issues.

The team
must successfully interact to accomplish the overall business goals. Successful managing physicians spend at least 90% of their time with patients with the remainder spent tracking business goals and efficiencies.

Time Management
The most successful practices efficiently manage doctor-patient time. Productivity benefits everyone, including patients. Set up reasonable and consistent policies. Thus, basic business practices consistently applied to everyone will form the basis for a successful practice.

Benefits of Setting up Grievance Procedures

Staff Report

Kathryn Moghadas, a registered nurse, warns that a patient’s unresolved complaint about you or your office could evolve into a lawsuit.  This article summarizes her advice on how physicians can implement a written grievance process that provides patients with a way to get action on a problem before it escalates into a larger issue or becomes a lawsuit.

In an ideal visit, the appointment is on time, the staff is friendly and knowledgeable, and the doctor listens to the patients concerns and then performs the appropriate exam or explains a medical decision, prescribes a treatment, and asks for any questions or additional concerns.  But some visits are not perfect and patients will have complaints.

If a patients leave with an unresolved complaint, they may talk about their “poor” treatment to their friends and relatives directly or express the grievances on a M.D. rating web site which are now common. They may also complain to an insurance carrier or, worst of all, file a malpractice claim.  If a practice has a straightforward policy for handling grievances, it can be used to limit negative outcomes.  This policy can be short and succinct. The goal is to resolve complaints and gather information for corrective action to limit unhappy patients who may leave, denigrate the physician’s reputation or cause litigation.

Make Your Policy Known to Your Patients

Post your grievance policy where your patients can read it.  Provide a visible suggestion box and critique forms and a copy of the policy to patients at the reception window.  The policy should explain that the doctor reviews all complaints, major and minor, as part of the office improvement program.  It’s also important to clearly post how patients can contact appropriate managers at the practice to share their questions or concerns.  This helps to resolve problems early and avoid escalation.

Common Reasons for Grievances

Ms. Moghadas states that most common reasons for patient grievance are:

(1)  Failure to communicate

(2)  Failure to fulfill expectations for examination and treatment

Other complaints arise from prolonged wait time, rudeness of the staff and billing communication issues.  The first two reasons pose a litigation risk whereas all will cause the patient to leave the practice.

Basic Grievance Process Template

A basic grievance policy’s objective states that all complaints related to care or services are handled as courteously and quickly as possible.

    • 1.) The policy should designate the individual to contact for complaints or grievances
    • 2.) Train all staff members on the policy and the process
    • 3.) Provide an easily obtainable complaint form for patients
    • 4.) Staff must document verbal complaints
    • 5.) Investigate the underlying cause for complaint.
    • 6.) Develop corrective actions that eliminates the cause
    • 7.) Communicate the corrections to the patient


Reduce Primary Care Malpractice Risk due to Diagnosis Errors

Staff Report

Suraj Achar, MD and Wiggin Wu, in their article in the July/August 2012 issue of Family Practice Management, report that recognizing warning signs and careful documentation are two keys to reduce the risk of malpractice lawsuits.  They report that approximately 5% of family physicians and 7% of all physicians are sued for malpractice in the USA each year.  The occurrence of lawsuits is much greater in some surgical specialties (approaching 20% for neurosurgery and cardiothoracic surgery).

In a malpractice suit, the plaintiff must prove that the physician neglected the “owed duty of care” and that the physician’s action or inaction led to damage causing the plaintiff to suffer harm as a result of the breach of duty.  Malpractice is proven by presenting convincing evidence showing its probable truth or accuracy. This is a lower standard than in criminal cases requiring proof of guilt beyond a reasonable doubt.

In the following diagnosis errors section, we summarized the recommendations that help reduce a physician’s malpractice risk.

Diagnosis Errors:

The five most common malpractice lawsuits for primary care physicians involve errors in diagnosis for myocardial infarction, breast cancer, appendicitis, lung cancer and colon cancer.  Lung, breast and colon cancer cases usually involve delayed diagnosis.  Appendicitis cases are the result of not addressing the possibility of appendicitis if initial symptoms worsen plus lacking a documented follow-up plan.  Misdiagnosing heart conditions comprise 50% of diagnosis error cases.  These lawsuits are filed by patients that are most likely to be misdiagnosed because they are younger, have atypical histories or don’t exhibit many of the risk factors.

Dr. Anchar and Mr. Wu state that careful chart documentation can help get a case dismissed.  If there is failure to report a differential diagnosis and there is absence of contrary evidence, you can expect jurors to assume the worst.

Also, physicians need to be sure their notes reflect shared decision-making with patients.  Documentation should explain alternatives to patients including the associated risks and benefits, the agreement on a treatment plan, and the follow-up plans if symptoms continue or worsen.

Goals, expectations, and progressive effects of treatments should also be part of the physician’s documentation.  Any warnings given or risks discussed should be included in the chart notes on file.  Use the patient’s opinion of the treatment to determine his understanding of the plan and document when the “patient understands and agrees”.  Be sure the documentation reports an “after visit summary” was provided that included the diagnosis, orders given (including phone numbers for consultations and/or testing) and patient instructions.  Good documentation is critical for a good defense.


Should There Be Caps on Pain and Suffering in Malpractice Lawsuits?

The odds of being sued approach 99%1 for physicians that practice in the five most-sued specialties, which are neurosurgery, thoracic cardiovascular surgery, general surgery, orthopaedic surgery, and plastic surgery. More than half of the states place limits for medical liability awards. But most of the award payments come from “pain and suffering” with no legal limits to the amount that can be awarded by a jury.

To be fair, we have looked at capitation arguments on both sides of this issue.

Those in favor of capitation of pain and suffering for malpractice awards point out that capitation would fight out of control health care costs. Excessively unfair verdicts would not be determined by overly emotional cases. At this point there is still no limit on damages for lost wages and medical bills which affects the cost of medical liability insurance. With caps, patients may be discouraged from filing a frivolous complaint because it is expensive and time consuming. If a substantial verdict is not possible, many lawyers will be more selective when taking cases on a contingency basis. Thus, any type of damage cap may reduce a percentage of frivolous filings. Actually, many cases are settled out of court at a lower settlement to avoid cost and time of both parties. Plaintiffs want to avoid a long trial and the possibility of losing. Capitation would also help lower these settlement amounts.

Some doctors are leaving their practices, retiring early, or eliminating higher risk procedures due to rising malpractice insurance costs. Physicians are caught between stagnant or lower reimbursements from insurers and rapidly rising practice overhead expenses. Mistakes by others are penalizing good doctors. Perhaps the greatest concern of many doctors is that they have to practice defensive medicine. Their focus is on not making mistakes rather than providing the quality of care they learned in their training. Some doctors order unnecessary additional diagnostic tests to verify the accuracy of their diagnosis. Some doctors feel the need to work in large impersonal hospitals rather than be part of a small, responsive private practice because of the increasing overhead costs.

Those in opposition to capping pain and suffering argue that every case is different and that a jury should determine damage amounts. They state that a cap would leave very little negotiating room for settlements. They say not capping encourages hospitals to oversee strong safety procedures so that doctors exercise the greatest possible level of care. A study at Harvard University’s Kennedy School of Government found that only 2.4 percent2 of health expenditures on average arise from medical liability including legal costs, verdicts, settlements and the use of “defensive” medical testing. Damage caps affect only large cases with merit; these caps do nothing to limit so-called “frivolous” medical malpractice lawsuits. Those in opposition to caps declare that there are adequate filters to eliminate claims that have no merit: our judges. Also, they state that personal injury lawyers need to choose cases with merit before incurring large expenses they may have to eat.

Avoiding Malpractice Litigation

In our ever growing litigious society, bewildered physicians are desperately looking for an answer to the question “How can I prevent a malpractice suit”? This a rather tall order when juries are no longer asking the question what did the doctor do wrong, but rather can the doctor prove that he did everything right? Is there not a sure fired way to not face the dreaded malpractice suit? Dr. George Thomas, a physicist and medical doctor, has studied this concern in great detail and asserts that physicians who follow his recommendations “to the letter” can greatly reduce their malpractice exposure.

Dr. Thomas focuses his treatise from the knowledge that most physicians are sued for failing to properly diagnose an ailment or failing to make a referral in a timely manner. Following is a summary of his do’s and don’ts to reduce the chances of a malpractice lawsuit.

When a doctor recommends that a diagnostic test be taken and the patient refuses, the patient/doctor relationship should be terminated immediately. In court, juries have felt that a physician was not forceful enough in suggesting a particular test. Also, forget your ego and recommend that, after your diagnosis, the patient see a specialist in an appropriate field. Again, discontinue the patient as a client if he/she refuses. If a patient or family member requests a particular test, order the test and refer to an appropriate specialist.

The telephone may have many very useful purposes; however giving medical advice over the phone is not one of them. Physicians should try to not give medical advice over the phone. Recent laws and good sense prohibit prescribing new medication without an examination. It goes without saying that every prescription involving the central nervous system should be accompanied by a warning about driving or operating machinery. Experienced practitioners recommend that doctors officially discontinue care for the patient with written notice because the patient is non-compliant. It is also recommended that the primary care physician should probe to see if the patient is suicidal or has suicidal thoughts.

Dr. Thomas admits, and most of us would agree, that neither he nor the great majority of physicians practice medicine following every one of these issues to the letter. It is, however, critical that the consequences of not following them are present every time there is contact with a patient. He recognizes that good doctoring is a combination of skills, intuition, and art. Insurance companies and juries should not be able to dictate the practices of medical professions, but the realities of present day societal influences cannot be ignored.