Garcia gives free, friendly advice
                   as a lawyer— who’s also a doctor

This article by Jack Sowers first appeared in the April 2003 issue of Rounds

     Roger Garcia, J.D., D.O. (’83), paid a visit to his old and gave a curious demonstration: how to lose a malpractice lawsuit.

     Of course, the example was cautionary and made to help students who attended his lunch address in Irvine Hall avoid exactly that — losing a lawsuit. Given the current litigious climate and spiraling malpractice insurance rates, medical students need as much information as possible about how to protect themselves from potential lawsuits after they begin practicing, he said.

     Garcia is just the person to provide legal and medical advice on malpractice issues. Not only is he a physician, he also is a 1996 graduate of Capital University’s law school and a trial lawyer for Colley, Shroyer and Abraham in Columbus. The law firm he works for specializes in malpractice law, personal injury and product liability.

     “When I was in high school, my dream was to be a doctor,” Garcia said. “I consider myself a doctor first, a lawyer second.

     “OU-COM is home for me in ways. I had great experiences here,” Garcia continued. “So being here is like a ‘blast from the past.’ I can’t believe 20 years have passed. I am one of you. I am a D.O. through and through.”

     With the call for tort reform at the forefront of physicians’ agendas, Garcia took time to explain the term. “Tort is, according to Black’s Law Dictionary, an injury to one person for which the person who caused the injury is legally responsible.”

     The tort legal system in Ohio typically uses monetary awards to compensate for injuries. “So if you commit a tort it doesn’t mean you will be stoned to death or have your license pulled forever,” Garcia said. “We’re just going to say someone was injured allegedly through some act or omission and that the plaintiff needs to be compensated in some way.”

     A plaintiff must prove negligence to win a malpractice case, and intent is essentially never part of the equation. “In law school I had to learn a whole new language,” Garcia said. “The law is different. It’s not that you purposefully did this tort, but that it was foreseeable. If you leave a chart in the cafeteria and someone reads it, the law says it was foreseeable that this could occur.”

     Garcia explained the elements of negligence in civil trials — legal duty, breach of duty, causation and damages. “Several things have to occur, however, to prevail in lawsuit,” he said. Garcia gave an example of unexpected duty: a physician’s casual notice of or comment about a patient’s mole, which subsequently was left untreated. Unfortunately for the patient and physician, the mole turns out to be cancerous. “The patient has the reasonable expectation that you gave him medical advice — however casual the advice seemed to the physician,” he said. “Legal duty will attach in that circumstance.”

     Garcia said a physician is responsible for his patients even when on vacation “if you have a physician cover for you, and you didn’t make sure his credentials were solid, and he or she causes a harm,” he said. “This happens more than you realize, especially in poorer communities.”

     Another potential source for liability is telephone calls. “You don’t give advice over the telephone.” Why? Duty has been expanded to include telephone calls, said Garcia. “In a way, it serves to put distance between us and our patients and probably reduces the quality of care.”

     Garcia said legislative tort reform, as well as insurance reform is necessary to preserve the medical community and provide medical care to the people who need it. “I think we obviously know that,” he said. “We’re all to blame, to be honest with you. We’re all stakeholders, and we want to maintain our stake in the system. And trial lawyers have a big stake in the system. I think tort reform has to occur. I think insurance reform has to occur, and physicians have to be better trained and be more thorough practitioners as well.”

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