919 854 4454
800 350 7574
Mailing Address
P.O. Box 30303
Raleigh, NC 27622
Street Address ( Map )
1500 Sunday Drive, Suite 208
Raleigh, NC 27607
Send us a message
An article from the Spring 2001 Duke Law Magazine, reproduced here with permission of Duke Law School.
Elizabeth Kuniholm '80 Bests HMOs in Trial Against Abusive M.D.
by Laura Petelle '03
My parents always taught me that you're supposed to give back. -Elizabeth Kuniholm '80
Elizabeth Kuniholm '80 took on more than 20 health care companies that failed to protect female patients from a doctor who molested them-and won. Slim and stylishly-dressed, Kuniholm hardly looks much older than the fresh-faced law students she teaches in her trial practice class at Duke.
But Kuniholm garnered national attention as the attorney for a group of 15 women who were sexually molested by Dr. Wallace Evans, a family physician who practiced in Cary, N.C.
She says she's not a hero. The real heroes, she avers, are the women who stepped forward.
"It took incredible courage to do what they did," she says. "It is infinitely easier to be the lawyer than to be the plaintiff."
In recognition of their work in exposing Evans' abusive behavior, Kuniholm and her 15 clients were presented the Steven J. Sharp Public Service Award last July from the Association of Trial Lawyers of America. The North Carolina Academy of Trial Lawyers also honored Kuniholm with its Walter Clark Award for extraordinary service to justice and the academy.
Evans' name first surfaced two years after Kuniholm started her own firm, focusing on medical malpractice. "In 1993 a woman came to me and reported having been molested by her doctor during a physical exam. She was very concerned about it, and had reported it to her HMO and the medical board and was not getting much of a response," Kuniholm recalls. "She wanted to make sure that he didn't do it to anyone else. At that point, I told her that I thought it would be very difficult, that at the end of the day, it was hard to predict what a jury would award, and whether it was worth the financial or emotional cost.
"I turned her away," Kuniholm says, "and told her to pursue her complaints with her HMO."
Kuniholm didn't revisit the incident until a second woman walked through her door a year and a half later.
"A second woman reported similar conduct on the part of the doctor that occurred two and a half years after the first woman's reported abuse," says Kuniholm. "At that point I had enough experience that it was apparent to me that this was someone probably engaged in a pattern of abusive conduct."
The two women, with Kuniholm as their lawyer, sued Evans, the HMO and several other corporations they identified as responsible for the doctor's conduct, practice and licensing.
Elizabeth Kuniholm '80 came by her crusading spirit early on. She discovered the law could be a potent vehicle for positive social and policy change.
The Raleigh News and Observer soon picked up the story. After it ran, "I got 65 calls from other women who had hadsimilar issues with the same doctor," Kuniholm recounts. "Virtually every one of them had thought she was the only one, and they were calling because they wanted to make sure that everybody knew it was true: That he, in fact, did thesethings. Some of them had complained to the medical board; some of them had complained to HMOs, and there was absolutely nothing to indicate that anyone had done anything to stop the doctor."
Eventually Kuniholm went forward with 15 plaintiffs and sued a group of defendants that included Maxicare, Blue Cross/Blue Shield of North Carolina and a collection of doctor-run managed care companies based in Calif., which had purchased Evans's practice in 1994.
The defendants asked the judge to bifurcate and sever "everything from everything," Kuniholm remembers. While the judge did not give the defendants exactly what they had asked for, he did separate the punitive and compensatory damages issues, and severed the doctor from the corporate defendants.
In December 1999, Kuniholm and six plaintiffs who belonged to Blue Cross/Blue Shield of North Carolina won their case against the doctor and his practice, but the case was appealed. Several days later, all the plaintiffs and defendants settled all claims. A confidentiality agreement covers the terms of the settlement.
"These women have done what the medical community failed to do: They have stopped Dr. Evans," Kuniholm was quoted as saying in The News & Observer on Jan. 14, 2000.
But Kuniholm is not completely satisfied with her victory.
"Two things trouble me," Kuniholm says. "We were able to put together a case that survived summary judgment against the HMOs based on documents that they produced indicating that they had complaints about [Evans] ... We got those documents back in 1997. Shortly after we got the documents, the North Carolina legislature passed a law that extended to HMOs the peer review privilege that applies to hospitals. Once that law was passed, we never would have been able to discover those documents, because they would have been protected by a peer review privilege.
"The second thing," she continues, "is that North Carolina effected a cap on punitive damages and changed the punitive damages law. Because most of the claims involve emotional distress damages, that kind of a claim is pretty uncertain in terms of what a jury will give you. The cap is $250,000 or three times compensatory damages, whichever is greater. We were under the old law in our case."
Kuniholm says it would have been impossible to bring such a case under the new law. "We wouldn't have had access to the documents that proved Evans was a danger to patients, that the HMOs knew about it, and it would have been impossible to sustain the case with the potential recovery being uncertain or insignificant. And I believe that if we had not brought the case that he would still be practicing medicine."
A long-time resident of Durham, Kuniholm moved to the city from Hamden, Conn., in 1962 when she was 15; her father had accepted a position at Duke as the chairman of the physics department.
"It was an incredible time to be thrust into the South," she recalls. "I came from a multiracial, multi-ethnic community, and I'd had black teachers who'd been some of my favorite and best teachers. Coming to Durham was a real shock. My sister became very involved in the civil rights movement. Within two years, the Civil Rights Act was passed, and there was this incredible change that occurred in the first few years. It was a fascinating time to be a young person, so I think that was very formative for me."
After earning her undergraduate and law degrees at Duke, as well as a master's in public policy, Kuniholm clerked a year for The Honorable J. Dickson Phillips of the 4th Circuit Court of Appeals. Then she went to the Raleigh firm of Tharrington, Smith and Hargrove as an associate. "I got into litigation there and started doing some plaintiffs' medical malpractice," she says. "My parents always taught me that you're supposed to give back, that you're supposed to do things that will make the world better," she explains. "And I've been tremendously fortunate in the opportunities I've had.
"I think the law is a powerful instrument for change," she says. "I've seen it happen in the years that I've been involved in medical negligence cases; I've seen policies and procedures change in hospitals to protect patients. I was inspired in law school when I read about Brown v. The Board of Education and the lawyers who essentially worked their whole lives for the changes the law finally required."