CINCINNATI (CN) — Plaintiffs who questioned the impartiality of Ohio’s chief justice last year, in one of the largest medical malpractice case in the state’s history, are fighting for changes in the state’s recusal rules after failing to disqualify a trial judge overseeing their cases.
Hundreds of patients have sued spinal surgeon Dr. Atiq Durrani, claiming he fraudulently billed billions of dollars for medically unnecessary spinal surgeries. Almost 530 cases are pending against the doctor and his former practice group, the Center for Advanced Spine Technologies, in federal and state courts in Ohio.
Last year, 452 plaintiffs questioned the impartiality of Ohio Supreme Court Chief Justice Maureen O’Connor and her choice of special judge to preside over the hundreds of claims.
In January this year, U.S. District Judge Michael Barrett rejected the plaintiffs’ request for an order to prevent O’Connor from deciding an affidavit of disqualification of her special judge, Mark Schweikert of the Hamilton County Court.
Barrett’s ruling appeared to close the door on the plaintiffs’ efforts to prevent the chief justice from deciding the recusal case. But in a lawsuit filed Friday, the plaintiffs challenge the constitutionality of the Ohio Supreme Court’s rules. They say an independent panel should consider recusal cases, so that a judge who is subject to a petition does not get to decide her own case.
In a telephone interview, their attorney Fred Johnson called the rules “unconstitutional on their face” and said that as it stands it is not possible for the plaintiffs to appeal O'Connor's decision on Schweikert. The plaintiffs have accused both judges of bias in favor of the health care industry.
“The buck stops with recusal at the chief justice. So when you file a motion to recuse the chief justice — in this case herself — she makes that decision. And the way that the law is right now in the state of Ohio, we have no relief from that,” Johnson said.
Courts spokeswoman Anne Yeager said she could not comment on pending litigation.
But in a memorandum filed last year, O’Connor called the first lawsuit meritless and replete with speculation.
After O’Connor appointed Schweikert to hear the civil claims against Durrani, the plaintiffs claimed O’Connor had ties to the medical industry and was pulling strings behind the scenes, issuing orders to Schweikert in violation of the patients’ right to a fair trial.
O’Connor rebuffed the claim that campaign contributions have compromised her impartiality as a judge.
“Campaign contributions from the health care industry and law firms do not show bias. Plaintiffs allege the chief justice has received campaign contributions from the health care industry and law firms,” the chief justice’s Dec. 22 memorandum states. “Judicial candidates, like all elected officials, receive campaign contributions from a variety of sources.”
O’Connor initially appointed Jennifer Sargus, a retired Belmont County judge, to expedite handling of the civil cases. After Sargus retired in 2017, the chief justice appointed Judge Schweikert. Friday's lawsuit says that Sargus stepped down “without any explanation” and that O'Connor did not explain why.
Schweikert has little experience as a trial judge, the plaintiffs say, and has mostly handled administrative cases. He acknowledged taking orders from the Chief Justice, the complaint states.
Among other things, Schweikert stated at a social event that the cases are a “pain in his ass,” communicated with defense attorneys without the plaintiffs’ knowledge and has refused to sanction Dr. Durrani for the alleged misconduct, according to the new lawsuit.
Although other “judges presiding in some of plaintiffs’ cases have recused themselves over allegations that are far less serious than those directed to Judge Schweikert,” Chief Justice O’Connor refused to disqualify him or recuse herself, according to the complaint.
Forty patients sued Durrani, his insurer and his attorneys in December, claiming they encouraged the doctor to flee to Pakistan after prosecutors charged him in 2013. He lives in Lahore, where he is still practicing surgery.
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