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Zealous Representation...or Intentional Infliction of Emotional Distress? You Decide...

Here's a recent story (7/27/07) about a New Jersey couple suing a doctor for asking "inhumane" questions during a routine deposition of a grieving mother taken during a medical medical malpractice case against the hospital for the death of her six-day-old newborn.

According to the story, Andrew and Phyllis Rabinowitz brought their newborn daughter to St. Barnabas Medical Center in New Jersey, where doctors discharged her.  Two days later the infant died and the parents brought suit.  During the deposition, Judith Wahrenberger, the attorney for one of the emergency room doctor asked Mrs. Rabinowitz whether she might have been involved in her daughter's death by handling the baby too roughly.  Rabinowitz's attorney Bruce Nagel objected to this line of questioning, but Wahrenberger continued.  Thereafter, Nagel brought suit against Wahrenberger, arguing that she had no basis for asking the question except for the inhumane and malicious desire to hurt the couple.  Wahrenberger initially claimed that an expert report suggested that the baby might have died from shaken baby syndrome, though apparently, the expert has since stated it was not.

So far, I've seen little in the way of defense for the Rabinowitzs' suit against Wahrenberger.  Legal ethics expert Stephen Gillers, quoted in the article, says lawyers have broad protection from these types of claims so that they can defend their clients vigorously.  Attorney Jeff Lewis comments here that the suit would probably be dismissed quickly under California's anti-SLAPP law.

I agree.  For starters, the question didn't seem out of line, irrespective of whether an expert report suggested that shaken baby syndrome may have caused the death or not.  The purpose of discovery is to explore all possible causes of a claim, and if it had turned out that Mrs. Rabinowitz had been rough with the baby, the hospital might have used that information to re-evaluate the medical records.  Moreover, while I understand Mrs. Rabinowitz's extreme grief, her lawyer should have prepared her for the deposition and provided counseling and personal attention to see her through this kind of questioning.

Finally,  I'm not sure why attorney Bruce Nagel felt that he needed to bring a lawsuit.  Had the questions truly been out of line, he could have halted the deposition and sought sanctions.  If there wasn't enough of a basis for sanctions, I don't see how there's enough of a basis for a cause of action against the lawyer involved.  Ultimately, there's got to be some kind of "back story" here that hasn't yet emerged. 

Posted by Carolyn Elefant on July 27, 2007 at 05:33 PM | Permalink | Comments (1)


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