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Litigation Boutique


Case Example No. 2


Mr. Kapp's client, a well-respected Los Angeles County-based physician, was convicted of a drug crime during his medical residency in 1983 and was sentenced.  At that time, his medical license was automtically revoked.  He completed all of the terms of his criminal sentence in the mid-1980s and began to rebuild his life and maintain his medical knowledge.


In the early 1990s, the physician sought, and received, reinstatement based on his undeniable world-class over-the-top rehabiliation.  In restroing his license, the Medical Board noted that he had been a well-trained doctor who had "made a mistake as a young man" and was a perfect candidate for reinstatement.


The doctor restarted his practice in the early1990s, completing his board certification requirements and a respected masters' of public health (MPH) while becoming a highly respected physician in his religious and professional communities, including workers' compensation where he would become a very busy and highly sought "neutral evaluation"  whose opinions were invariably accepted by workers' compensation judges.  


In 2009, the doctor hired a very wealthy entrepreneur/businessman to assist with his practice and expanded that contract relationship in 2012.  About 18 months later, the doctor realized that the businessman and his companies were not meeting his needs and, pursuant to their contract, attempted to end their relationship. As that business relationship was winding up, the businessman – as he later testified – demanded $500,000 from the doctor or the businessman would inform the entire workers' compensation community of the doctor's then over 35 year old felony. This is textbook extortion.


When the doctor refused to pay the extortion demand, the businessman invoked the binding arbitration clause claiming that the doctor had breached the contract the arbitrator rejected and that Dr. Fishman owed him at least $4.2 million. After almost 2 years of arbitration litigation, handled by Mr. Kapp, the arbitrator found that the businessman was indeed an extortionist and that every single claim made by the businessman was false and meritless and awarded Mr. Kapp's client over $600,000, primarily in attorney's fees.

After losing that case, the businessman and his attorneys filed no less than 5 additional lawsuits, including a challenge to the binding arbitration award. After additional years of litigation (some of which are still pending in 2021), Mr. Kapp was able to prevail on behalf of the doctor in every case and now holds judgments over $1 million against the wealthy businessman who continues to file additional lawsuits and appeals to delay the inevitable payment of additional hundreds of thousands of dollars.

While Mr. Kapp, and the legal community, consider Mr. Kapp to be a leading medical and legal malpractice plaintiff attorney (representing victims of malpractice), he has, on occasion, represented the interests of physicians in civil lawsuits and administrative proceedings before the Medical Board of California, when the individual interest of the physicians are consistent with our values, the protection of the public and the interests of justice. This primarily includes physicians who are wrongfully accused of wrongful behavior or subjected to inadequate or unfair representation by insurance-retained defense counsel, either by ignorance or because of conflicts of interest.


Avoidance of Unnecessary Lawsuits


Mr. Kapp is particularly proud of his nearly 40 years of experience in medical and legal malpractice cases. Good asleep

In the number of cases, Mr. Kapp has intervened on behalf of physicians and/or patients where there where there was a very strong likelihood of unnecessary or meritless litigation resulting from either stringent, but avoidable, legal requirements (such as legal deadlines) or ignorance or other mistakes.


                                                                                      Case Example No. 1

For example, Mr. Kapp has represented a highly qualified surgeon who was accused of causing the death of 2 unrelated patients during different elective medical procedures. While there was no doubt that these patients died "as a result" of that surgery, Mr. Kapp was able to compile irrefutable information showing that the surgeon's conduct of the surgeries was entirely within the standard of care but that it was subsequently determined that the universal technique had previously unknown statistical risk of death whuch required a significant change in the community standard technique.   Since the conduct of physicians (and any other professional) are measured by the community standards at the time of the conduct (and not later developments), this surgeon had, under law not deviated from the standard of care at all.

This surgeon was sued for malpractice in 2 death cases, both of which were tragic but done precisely as done by other surgeons until later developments. In one case, Mr. Kapp was able to convince the family of the deceased to dismiss the lawsuit as meritless; in another action, Mr. Kapp, after replacing top-flight insurance-retained counsel (who believed that the case was indefensible and adamantly refused to consider the facts offered to show the doctor's innocence), took over handling of the case, prepare the case for trial and prevailed by showing, among other things, that the County autopsy was wrong ("botched").  In that case, the trial court granted the deceased's family's a new trial solely on the grounds of technical "jury misconduct"


While that civil case was pending a retrial (which occurred in early 2020), the Medical Board of California filed a petition to revoke the surgeon's license based on 35 separate counts of alleged misconduct. These were based on allegations made by another surgeon who was involved in a multimillion dollar civil dispute with Mr. Kapp's client. These allegations were supported by another (competing) surgeon's allegations, who Mr. Kapp later exposed as a fraud, including deception manipulation of key facts, and whose allegations were so disreputable that the Medical Board terminated his services and dismissed every case in which their "expert" had offered opinions.


One week before the Medical Board "trial", their attorneys dismissed 30 of the 35 charges, including 1 of the 2 charges of culpable patient death.  At the trial, Mr. Kapp and his team established that the remaining 5 charges were fraudulent contortions of the doctor being sued by Mr. Kapp's client (and would later be found liable for $3.5 millions, including punitive damages).


Thereafter, Mr. Kapp lead the retrial on the wrongful death malpractice case for this surgeon and, after a second trial, obtained  a ruling from the trial judge that Mr. Kapp's client was not responsible, on the merits, for this patient death as a matter of law.

Mr. Kapp's Representation of Health Care Providers