Legal Question in Medical Malpractice in California
My treating podiatrist, upon seeing the severity of my disfigured toe with a misplaced implant that was not removed as well as a misdiagnosis (a simple non-surgical procedure would have fixed my pain) by the podiatrist who performed the surgery, referred me to an attorney. The attorney asked the treating podiatrist who he had worked with previously to be the expert witness. The defense attorney was extremely unethical, dishonest, devious and manipulative. I lost the case and had to have it dismissed. I feel that insult has been added to injury, as the defense attorney persistently discredited me and lied about what I said with all the podiatrists he deposed. My questions are:
1).I just received a Full & Final Release & Settlement Agreement in which he forbid me to mention my case in Internet websites (eg Yelp) blogs, etc. Can he do this?
2) I feel very strongly about reporting this very unethical attorney. How can I do this?
3)Can a treating doctor also serve as the expert witness?
I would greatly appreciate your response to these questions. Thank you very much.
2 Answers from Attorneys
1. This sounds like a settlement. In a settlement, the parties often negotiate having a confidentiality clause or not.
2. Yes you can and an agreement can't stop you. What you described does not have enough facts of violations that The State Bar would take action. Of course, complaints about opposing attorneys are looked at more skeptically than ones own attorney.
3. Yes and this often occurs.
If you want a settlement, all parties have to agree to all the terms. If you don't agree, don't sign. Whatever terms are agreed to are enforceable, including confidentially. I require that in many of my settlements, to protect parties from emotional and unhappy people slandering someone or creating problems by disclosing the terms of a settlement.
Just because the defense attorney was effective and defeated your claim and your attorney does not make him 'unethical'. Before slandering him or anyone else, go consult with your trial counsel and with independent counsel to get their opinion about your claim of ethical violations. If they agree with you, they you are free to 'report' him to the State Bar in good faith.
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