A surgeon passes a clamp to a team member during an operation under focused lights.
WEST PALM BEACH, Fla. - A group of personal-injury plaintiffs involved in an alleged scheme to submit inflated medical bills in accident lawsuits can’t sue their doctors for malpractice, a Florida appeals court ruled, possibly putting an end to convoluted litigation one judge compared to “an introductory statement of a John Grisham novel.”
All of the plaintiffs were clients of Fenstersheib Law Group, which referred them and hundreds more to medical providers including 17 entities owned by Craig and Brian Bauer. The Fourth District Court of Appeal dismissed their complaint in an Oct. 28 decision.
As has been alleged in other cases in Georgia and New York, FLG’s clients racked up substantial medical bills under arrangements that guaranteed their doctors a share of any money they received in settlements. Those arrangements have been criticized by insurance companies as giving doctors a financial incentive to perform unnecessary procedures, or fake them altogether.
That’s exactly what 41 FLG clients claimed after unsavory details came to light, including charges an FLG employee embezzled more than $6 million in trust accounts that was supposed to cover clients’ medical bills. The Bauers and other medical providers sued FLG and the plaintiffs for their share of the settlement money and the plaintiffs returned fire by suing the doctors for malpractice, fraud, racketeering and emotional distress.
The litigation grew more heated, with the doctors accusing FLG of reporting the embezzlement to the Florida Bar as part of a pressure campaign to get them to drop their demand for payment. The providers said FLG told the bar they “were engaged in fraudulent practices and performed `fake’ surgeries.” The providers also claimed plaintiffs pocketed settlement money that belonged to them.
Houston Specialty Insurance got involved when it covered FLG’s defense costs. It sued the law firm in federal court to recover its expenses, saying FLG had threatened to stop referring clients to the medical providers unless they gave up claims on their unpaid medical bills. FLG ultimately settled lawsuits by the plaintiffs and the providers for $5.5 million, while the judge ordered FLG to repay the insurance company’s defense costs.
That left the lawsuit by 41 plaintiffs against their former doctors. They accused the medical providers of conspiring to perform unnecessary procedures, saying they “lied to plaintiffs, put them under general anesthesia, and then ‘operated’ on them by cutting them open and sewing them back up without performing any medically beneficial surgery at all.”
A trial judge dismissed the first and second complaints, warning the plaintiffs they were running out of chances to plead their case. The judge described one complaint as “more like an introductory statement of a John Grisham novel, rather than a legally based short concise statements of facts.” When they filed a third amended complaint that was even longer than the preceding ones, the judge dismissed it again and warned them they had one more chance.
The plaintiffs filed a fourth amended complaint with more than 1,700 paragraphs of allegations, but failed to explain specifically who injured which plaintiff when or how, the appeals court said.
“No plaintiff was alleged to have paid a fraudulent bill,” the court said. “In fact, the complaint indicates the bills were used to corroborate the plaintiffs’ claims in their personal injury actions, which were then settled.”
Saying it was time to end the lawsuits once and for all, the appeals court affirmed the trial court’s dismissal.
“This is a case where it is impossible to find a life raft―`a short and plain statement of the ultimate facts showing that the pleader is entitled to relief’―in a vast ocean,” the court concluded.
Embezzlement wasn’t the only crime alleged amid the litigation. While the lawsuits were still under way, Robert Fenstersheib was killed by his son in a murder-suicide.
Harris Appeals, Mager Parúas, Zoeller, Hayden & Thron and Lytal, Reiter, Smith, Ivey & Fronrath represented the plaintiffs. Hicks, Porter & Stein, White Russell and Lubell & Rosen represented the defendants.
