On August 6, 2021, a medical malpractice lawsuit was filed against me. The case involved care I provided between June 29, 2018, and August 3, 2018, while I was an employee at a medical weight loss clinic in Bethesda, Maryland. I resigned from that clinic in November 2018 due to concerns I had about my employer.
The complaint alleged that the patient was defrauded, hospitalized, sustained liver damage, suffered significant physical and emotional pain, endured lost income and significant medical expenses, and likely would never recover. The demand against me alone, including punitive damages, was approximately $1 million.
I first saw the patient on June 19, 2018. However, I never provided the patient with the necessary information to make an informed decision when she signed her contract and consent forms upon joining the program.
On July 20, 2018, I prescribed topiramate, B-12 rapid injections, 5-HTP, phentermine, and metformin. This, according to the complaint, was a departure from applicable standards of care. Within a week, the patient experienced a side effect and contacted me. I dismissed her complaint.
On August 7, 2018, she visited her primary care provider for “flu-like symptoms.” The following day, her bloodwork revealed significantly elevated liver enzymes, and she was advised to go to the nearest emergency room.
The emergency room physician suspected that her diet and multiple medications had caused transaminitis. She was admitted to the hospital on August 8, 2018, and discharged the following day. After her discharge, she took notes provided by the hospital and her primary care provider to the medical weight loss clinic and proceeded to cancel her contract.
When I was served, I had no independent recollection of this patient. I notified my former employer and was contacted by the defense attorney.
I made it abundantly clear to him that I intended to be proactive in my defense and that I wanted to be defended separately from my former employer due to a conflict of interest. I requested copies of all medical records.
Upon receiving them, the first thing I noticed was that I had exercised due diligence. I documented every encounter, notified my employer of a complication, and recommended canceling the patient’s contract.
However, the medical records told a different story from the complaint. The patient’s first encounter with the weight loss clinic occurred over two days, June 19 and 20, 2018. During that time, she met exclusively with non-medical clinic personnel, who recommended a contract. I did not see her during this period.
I first saw her as a physician on June 29, 2018. All referenced medications were standard in medical weight loss management and were medically indicated for other reasons based on lab results from her intake appointment a week earlier. She was also taking Crestor, prescribed by her primary care provider. She was overweight, had dyslipidemia, insulin resistance, and was menopausal. I explained her underlying medical conditions, the risks, benefits, and side effects of all medications, and the necessity of diet, exercise, and lifestyle changes in a medical weight loss program. Included in the medical record was a note stating, “Except for random events, there is 95 percent confidence that the medical intervention for weight loss is both safe and effective.”
The phone log showed no report of a side effect. However, there were several contacts with the business office regarding a credit card transaction. On July 20, 2018, I refilled her medications and injections. I saw her for the last time on August 3, 2018. She was losing weight, feeling well, and able to run three miles.
On August 7, 2018, she visited her primary care provider. According to medical records, she had just returned from vacation and was seen for a bug bite and flu-like symptoms.
On August 8, 2018, she was advised to go to the emergency room due to elevated liver enzymes and was admitted to the hospital. She was discharged the following day and seen again by her primary care provider on August 14, 2018. A progress note indicated that her liver enzymes were normalizing. No future appointments addressed liver conditions, nor was a diagnosis of liver disease or liver damage ever considered.
Medical records from the hospital contained no clinical observation of any “serious injury” to the liver beyond fatty liver. There was a single note by the emergency room physician suggesting that diet and multiple medications may have contributed to transaminitis. However, a tick-borne illness was also implicated.
Upon discharge, a follow-up appointment with infectious diseases was arranged, but the patient never attended. A note recommended stopping her “current diet plan.” Another note from her primary care provider requested a medical cancellation because she had sustained liver damage from the “cocktail of medications” used for weight loss. This was the first and only reference to “liver damage.”
Upon reviewing these notes, I had no doubt that her liver enzymes were elevated. However, I was skeptical of the note from her primary care provider. Nevertheless, I recommended canceling her contract. That was the last I ever saw or heard from this patient—until September 14, 2021, when I was served with the complaint.
After obtaining the medical records, I used my methodology, described in previous posts, to prove with 95 percent confidence that there was no liver damage. On January 21, 2022, I was dismissed from the lawsuit with prejudice. Later, I learned that the plaintiff’s attorney had no medical expert or certificate of merit and had pushed the case to the limits of the statute of limitations.
Once I prevailed, it became my turn. As the defendant in a frivolous claim, I was aggrieved by the malicious actions of the patient for involving me in this lawsuit.
The patient was not so innocent. I had two options: I could sue her for malicious prosecution, hire an attorney, and pay a $10,000 retainer. Or, I could take her to small claims court and represent myself.
On June 5, 2023, when I saw her lawyer and another attorney in small claims court, I knew I had won. By that point, my total cost was less than $100; hers was several thousand.
Howard Smith is an obstetrics-gynecology physician.
