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Counsel That You Can Trust & Depend On

Making a Personal Injury Claim? Tell the truth in all things or watch your claim thrown out of court

May 27, 2013

Leesburg Florida personal injury lawyer discusses why personal injury claimants must tell the truth in all things.

One of the most important things that personal injury and medical malpractice claimants must tell the truth in all things or be subject to a motion to dismiss for fraud on the court. In the recent case of Herman v. Intracostal Cardiology, the defendant moved to dismiss a medical malpractice case alleging fraud on the court. This is the motion de jour for defense counsel in recent years. The facts of the case are as follows.

A medical malpractice lawsuit was filed in 1999. Miriam Herman claimed that her cardiologist was negligent because he didn’t get a nephrology consult before clearing her for open heart surgery. She developed renal failure because of the surgery. Mrs. Herman died in 2001, and her husband continued the lawsuit as personal representative of her estate.

In 2002, the defendant sent a request for documents to Mr. Herman asking for any diaries or notes pertaining to his wife’s medical condition. Mr. Herman indeed had a diary chronicling Mrs. Herman’s medical condition in 1997 leading up to the open heart surgery.

The case was tried in 2006 and resulted in a hung jury. At trial, Mrs. Herman’s video deposition was played for the jury, and Mr. Herman and his daughter also testified.

The case was reset for trial in 2010. In 2009, Mr. Herman and his daughter got into an argument. During the argument, Mr. Herman told his daughter that he was going to write her out of his will. After the argument, the daughter contacted the defense lawyer and told the defense lawyer that her dad “lied” at trial. She also told the defense lawyer that her dad had a diary chronicling her mother’s medical condition.

Defense Files Motion for Fraud on the Court alleging that Mr. Herman lied in the following areas:

  • Mrs. Herman’s pre-surgery activity level

  • Mrs. Herman’s pre-surgery kidney function – the diary had some notations regarding pre-surgery kidney issues.

  • What Mr. Herman was told about the risks of surgery?

  • Whether the defendant gave Mrs. Herman of getting treatment at a university hospital

The trial court dismissed the action for fraud on the court finding:

  • That Mr. Herman gave false testimony that goes to the very issues presented to the jury in this case. The court found that he gave false testimony regarding his wife’s active lifestyle leading up to the surgery, such as her actively biking, dancing, and walking, all of which was offered to establish the alleged damages occasioned by the surgery. The court also found that he “persuaded his daughter to support this fiction” at trial, giving her a list of topics to be covered and stressing the importance of telling the jury that Mrs. Herman was active prior to the subject surgery.

  • The court also found that Mr. Herman’s diary chronicling his wife’s medical treatment was never produced during discovery even though “multiple discovery requests required the production of the diary.” The court said that the diary directly contradicted Mr. Herman’s sworn testimony at trial in several key respects: “This false testimony included when Miriam Herman developed kidney problems, the risks explained to the Plaintiffs at the time of the surgery and the option of having the surgery performed at a hospital in Miami.”

Mr. Herman appealed the dismissal and the District Court of Appeal stated as follows:

After a careful examination of the record, we conclude that this case fails to present the type of egregious misconduct or extreme circumstance which would warrant dismissal with prejudice and therefore reverse. The appellate court reasons:

The record simply fails to demonstrate clearly and convincingly that Mr. Herman sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate the matter. With respect to the grounds that the trial court relied upon in dismissing the case, the alleged falsehoods or inconsistencies in this case were either: 1) in the nature of disputed issues of credibility which were best left for the jury to decide; 2) not actual inconsistencies at all; or 3) immaterial to the central issues in the case.

Lessons learned from this case

This case shows how long medical malpractice cases go on. I’m sure the lawyer had spent close to $100,000 on the case to date. It could have all gone up in smoke. It is important for clients to tell their lawyers everything. When the lawyer asks for information, the client should provide the lawyer with everything and not screen the material. Also, third parties, like the daughter, should not be involved in strategy sessions regarding the case because relationships can go south and people can show spite.

This happens all the time in my office. I have an appointment set the client and he/she shows up with somebody else, who is not their spouse. I politely tell them that they are not able to come into our meeting because their presence breaks the attorney client privilege. A lot of times the client’s feelings are hurt. I would rather hurt a client’s feelings then let somebody sabotage their case if the relationship goes south.