As reported on page one of the Chicago Daily Law Bulletin

More than 120 Cook County women will divide a $1.5 million settlement in a medical malpractice case based on what lawyers describe as a “novel theory” of liability against a medical laboratory.  The women’s recovery is premised on the laboratory’s duty to report suspected unethical conduct of a doctor who allegedly performed hundreds of unnecessary gynecological surgeries.

Attorneys involved in the Cook County litigation against Dr. Robert Joel Lee say that the Himmel doctrine has not previously been used in any reported lawsuit nationwide as a theory of liability against a health care provider.  The so-called Himmel rule requires lawyers to report fellow lawyers’ misconduct, incompetence or impairment to the Illinois Attorney Registration and Disciplinary Commission and has previously been applied solely to attorney discipline cases.  In re Himmel, 125 Ill.2d 531 (1998).

The women plaintiffs settled with Metpath Inc., a clinical laboratory that analyzed tissue specimens sent to them by the women’s gynecologist, Dr. Lee, who practices in southwest suburban Oak Lawn.  William S. Wojcik, an Oak Lawn attorney who represented 110 of the 122 women who settled their lawsuit against Metpath, alleges the laboratory had an ethical duty to report Lee’s unnecessary procedures when it first suspected wrongdoing several years ago.  Bryan J. O’Connor, who represents six of the plaintiffs, said the laboratory’s ethical violation was the women’s primary theory of liability against it.

The women alleged that Lee told each of them that they had cervical polyps that had to be removed immediately to avoid greater risk of contracting cervical cancer.  Lee, Wojcik said, surgically removed the supposed polyps and sent the tissue to Metpath for analysis.  “Pathology reports, however, showed that no polyps were removed from any [of the plaintiff] women,” said Wojcik.  “The predominant pathological diagnosis was smooth muscle tissue.”

The suit alleged that the laboratory should have immediately raised its concerns about the appropriateness of the surgeries to Lee rather than waiting for three years to bring it to his attention.  The laboratory ultimately terminated its relationship with lee.  “They knew something was wrong, and they were ethically obligated to take appropriate action and not simply ignore the information in their possession,” said Wojcik.  “I really think this is the portent of things to come with regard to medical malpractice cases.  I believe that ethical violations by all professionals – doctors, lawyers, etcetera – will in the future be used successfully as the basis of a cause of action.  I think that’s the trend.”

O’Connor and Wojcik said they knew of no other lawsuits to rely on the Himmel doctrine as the basis of a lawsuit against a health care provider.  Judge Patrick E. McGann entered a good-faith finding on the settlement last week.  The settlement was paid today, Wojcik said.  Wojcik said he could not estimate an “average” amount that each plaintiff will receive from the settlement.  The parties attorneys had created a “settlement matrix” that establishes a formula for calculating each plaintiff’s share of the settlement, based on the number of surgeries they had with Lee.  One plaintiff, Wojcik noted, had 16 supposed polyp removals with Lee over 21/2 years while many women had four of the allegedly unnecessary surgeries.  “The significance is not so much the specific amount of money the women received, but the victory that belongs to all the women for prompting the health care provider to discharge its ethical obligations in their health care,” Wojcik said.

Wojcik initially filed suit against Lee, his employer, and the laboratory in November 1993 on behalf of 11 female patients.  After media reports of the lawsuit, the rest of the women plaintiffs came forward in the six months following the suit, Wojcik said.  The individual lawsuits against Lee had been consolidated for discovery purposes and motion to consolidate for trial currently pends, according to O’Connor.

Metpath was represented by Kay Schichtel and William B. Weiler of Swanson, Martin & Bell.  Schichtel was reported out of the office Tuesday while Weiler did not return a voice mail message to his office Tuesday.  Other Plaintiffs were represented by Timothy M. O’Brien, who has his own Loop firm; Richard H. Lucy, a partner in Lucy & Suhar; Joseph V. Roddy, who has his own firm; and Kevin P. Durkin of the Clifford Law Offices.  The portion of the lawsuit against Lee and his employer, Weiss & Weiss, a medical practice group in Oak Lawn, still pends in Cook County Circuit Court before Judge Julia M. Nowicki.

The case is Gloria Lunn, et al. v Robert Joel Lee, M.D., et al., No 93 L 13829