Wednesday, August 5, 2015
A North Carolina Central State chemistry professor who had retired after 38 years of teaching expected to be accorded professor emeritus status.
He did not get it.
He sued but lost in an affirmance of the North Carolina Court of Appeals.
In the instant case, at no point before or after retirement did Plaintiff actually acquire the specific benefit of Professor Emeritus status. He was merely “nominated.” No alleged facts, even when taken as true, indicate nomination results in automatic approval. To the contrary, Plaintiff’s complaint forecasts that conferral of the status is a discretionary university decision; the nomination must pass several stages of approval by multiple committees. Such a discretionary conferral process cannot give rise to more than a “unilateral expectation” of the status.
The professor had no property interest protected by state or federal law
The absence of any record or legal support underlying Plaintiff’s claim to a “due process property interest” in Professor Emeritus status compels us to conclude his section 1983 causes of action premised solely thereupon must fail...It is therefore unnecessary to address Plaintiff’s contention that the change in NCCU’s nomination procedure—which appears now to include a faculty deliberation of a nomination outside of a candidate’s presence without a “name-clearing” hearing—deprived him of that alleged interest.
His defamation claim also was dismissed. (Mike Frisch)
Thursday, July 23, 2015
The discipline of a licensed clinical social worker for violation of professional standards was upheld by the New York Appellate Division for the Third Judicial Department.
The court rejected the contention that the attorney for the social worker was improperly disqualified
Petitioner retained Michael Sussman, who was already representing JC in a separate civil rights action against her employer in federal court. [The Office of Professional Discipline] moved to disqualify Sussman from representing petitioner...
To represent petitioner, Sussman would have had to effectively cross-examine JC, who was a key witness in OPD's case against petitioner. His simultaneous representation of her in a pending federal action potentially gave him access to information not otherwise available for use on cross-examination. Moreover, in this proceeding, Sussman would be attempting to diminish her credibility, whereas an opposite result would be pursued in the federal action. There was a sufficient conflict of interest to justify disqualifying Sussman.
The court found sufficient evidence that petitioner had crossed professional boundaries in his "couple therapy" treatment of DC and JC
OPD's expert, David Olsen, testified in detail regarding boundaries that a social worker must maintain, the training social workers receive about boundaries, and the reasons for the boundaries, which include protecting client confidentiality and making the client feel safe. He opined that petitioner had many boundary violations and that his actions deviated from the acceptable practices within the profession. Among other things, petitioner had, during the relevant time and while JC was a client, played golf with DC and JC's father and had eaten meals with JC and DC at their home. Petitioner attempted to explain his presence at JC's home as consistent with a counseling theory advanced by Salvator Minuchin advocating sessions in a client's home as facilitating the therapeutic process. However, petitioner acknowledged that there was no documentation in his notes that he was using Minuchin's techniques in counseling JC and DC. Olsen also testified regarding the many deficiencies in petitioner's records including, but not limited to, the lack of progress notes.
The license is suspended for two years. (Mike Frisch)
Wednesday, July 15, 2015
The New Jersey Supreme Court has held that a medical doctor employed by a medical device manufacturing company is protected by the state's whistleblower laws.
From the court's summary
In this appeal, the Court considers whether an employee, whose job duties entail knowing or securing compliance with a relevant standard of care and knowing when an employer’s actions or proposed actions deviate from that standard of care, may invoke the whistleblower protections afforded under N.J.S.A. 34:19-3 of the Conscientous [sic] Employee Protection Act (CEPA or Act), N.J.S.A. 34:19-1 to -14.
Plaintiff Joel S. Lippman, M.D., was employed by defendant Ethicon, Inc., a subsidiary of defendant Johnson & Johnson, Inc., a manufacturer of medical devices used for surgical procedures, from July 2000 until his termination in May 2006. For the majority of his employment, plaintiff served as worldwide vice president of medical affairs and chief medical officer of Ethicon. He was responsible for safety, medical reviews, and medical writing. Plaintiff served on multiple internal review boards, including a quality board that was created to assess the health risks posed by Ethicon’s products and provide medical input regarding any necessary corrective measures with respect to their products in the field. On numerous occasions, plaintiff objected to the proposed or continued sale and distribution of certain Ethicon medical products on the basis that they were medically unsafe and that their sale violated various federal and state laws and regulations.
In some instances, plaintiff opined that a particular product should not go to market, should be recalled, or that further research was necessary. Although he received “push back” from executives and other members of the boards whose interest and expertise aligned with Ethicon’s business priorities, Ethicon ultimately followed many of his recommendations. In April 2006, plaintiff advocated the recall of a particular product that he believed was dangerous, and it was eventually recalled in late April or early May 2006. On May 15, 2006, Ethicon terminated plaintiff’s employment.
CEPA’s protections extend to the performance of regular job duties by watchdog employees. Unless and until the Legislature expresses its intent to differentiate among the classes of employees who are entitled to CEPA protection, there can be no additional burden imposed on watchdog employees seeking CEPA protection...
Although the Court agrees with the Appellate Division’s finding that watchdog employees are entitled to CEPA protection when performing their ordinary job duties, it disagrees with the panel’s reformulation of the elements required to establish a prima facie CEPA claim, as set forth in Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003). The panel’s requirement that watchdog employees demonstrate pursuit and exhaustion of all internal means of securing compliance is incompatible with prior precedent and imposes an obligation nowhere found in the statutory language. Where the Legislature intended to impose an exhaustion requirement, it has said so clearly. Consequently, the Court modifies the Appellate Division judgment to the extent that it imposed an exhaustion requirement not supported by the statute’s terms. CEPA imposes no additional requirements on watchdog employees bringing a CEPA claim unless and until the Legislature expresses its intent that such employees meet a special or heightened burden. (pp. 35-38.
The judgment below was affirmed as modified and the case was remanded. (Mike Frisch)
Monday, May 4, 2015
The Connecticut Appellate Court has affirmed a $2 million judgment against a medical doctor for his surveillance of the woman for whom he had left his wife and nine children.
She was a physician's assistant; he was her supervisor.
The parties flirted with each other, but when the defendant expressed his interest in exploring a relationship with her, the plaintiff indicated that she would not consider dating a married man unless and until he moved out of his family’s home. In April, 2001, the defendant moved out of that house and into an apartment. The parties then began a personal relationship that lasted for years. The plaintiff testified that she fell deeply in love with the defendant. The two talked about getting married and having children together, while shopping for engagement and wedding rings and selecting children’s names. At the same time, the plaintiff ‘‘was very frustrated that [the defendant] was still married [because] that wasn’t in accordance with the value system that [she] wanted to be living.’’
During the relationship, she moved into her dream home and gave the doctor a set of keys. It proved to be a mistake.
The relationship had began in 2001 and ended in 2007 when the doctor (a cardiovascular and thoracic surgeon) left her for a nurse.
By February, 2007, the defendant had begun dating a nurse at the hospital without the plaintiff’s knowledge. On February 12, 2007, the defendant returned his set of house keys to the plaintiff. At that time, he explained that he was preoccupied with starting his own medical practice and finalizing his divorce. The plaintiff was devastated. When he ended their relationship,the defendant never informed the plaintiff that he had installed surveillance equipment in her home, computer and vehicle, or that he was dating another woman. The defendant testified that, in the months that followed, he continued to receive daily e-mails documenting everything that the plaintiff wrote on her computer and that the surveillance equipment in the plaintiff’s home continued to broadcast and record from therein.
Thereafter, the surveillance was discovered
the plaintiff hired a plumber to repair a broken faucet on her property. In order to do so, the plumber entered the crawl space in her basement and discovered the defendant’s surveillance equipment. At the plumber’s urging, the plaintiff contacted the police. Members of the Bloomfield Police Department responded to her residence and discovered both the recording equipment in the basement and the two clock radios in her bedroom containing spy cameras. The plaintiff immediately realized that the defendant had been spying on her. As she testified, ‘‘I was devastated. I knew exactly how they had been—flashback in my head [to] him handing them to me.’’ Realizing that the defendant had been spying on her for years, the plaintiff felt ‘‘betrayed, alarmed, betrayed, humiliated, controlled. I didn’t feel like a person. I felt like I was just a—I don’t even know, something that he—just like a toy of his, like I just didn’t count.’’ When she called the defendant and confronted him about the surveillance equipment, the defendant offered an ‘‘empty apology’’ and did not deny that he had spied on her over the course of their relationship. Notably, the defendant did not inform the plaintiff that he also had monitored her computer with a spyware program or that he had monitored her vehicle with a GPS device. At that time, the plaintiff declined to press charges against the defendant.
He continued to hound and frighten her in person.
The extent to which he spied on her is set forth in the court's opinion.
In December, 2004, the defendant gave the plaintiff a laptop computer as a Christmas gift. Unbeknownst to the plaintiff, the defendant had installed a spyware program on the computer that discreetly forwarded to him, via e-mail on a daily basis, a copy of everything composed thereon. A few months later, the defendant purchased an air purifier for the plaintiff. That would be the first of several gifts given to her by the defendant that secretly housed wireless spy cameras. After unsuccessfully attempting to install spy cameras in the ceiling above her bed, the defendant gave the plaintiff two clock radios and a television, which all contained spy cameras and were positioned in her bedroom in the direction of her bed. The air purifier likewise was positioned in the direction of her bathroom shower
Viewed in a light most favorable to sustaining the verdict, the present case involves a plaintiff irreparably damaged any sense of privacy and security, even in her own home. The record does not indicate that the jury predicated its award on an improper basis, but rather that it sought to compensate the plaintiff for the injuries that resulted from the defendant’s intentional conduct. We, therefore, conclude that the court did not abuse its discretion in denying the defendant’s motion for remittitur.
Thursday, March 12, 2015
A psychiatrist licensed in New York had his license revoked by the Administrative Review Board for Professional Medical Conduct based on findings of professional misconduct that took place in Texas.
The action was affirmed by the New York Appellate Division for the Third Judicial Department.
Texas had reprimanded the doctor for sex with a patient and failure to maintain records.
New York took a dimmer view, rejecting the suggestion that the sex was kosher under New York law because it was with a former patient
Petitioner asserts that the conduct leading to the 2009 order did not constitute misconduct in New York because Education Law § 6530 (44) prohibits "any physical contact of a sexual nature between licensee and patient," but does not expressly preclude a sexual relationship with a former patient. While that argument is a dubious one, it is not one we need to resolve, as the ARB determined that a physician-patient relationship existed at the time the sexual relationship occurred. The Texas Medical Board found that petitioner saw the patient primarily for medication management and that, on the day their sexual relationship began in December 2007, the patient visited his office to obtain his signature on a prescription assistance form. Petitioner took advantage of what he perceived as an "invitation to intimacy" afforded when the patient burst into tears in his presence. After the sexual encounter, petitioner cautioned the patient to remain silent about the encounter because he was a psychiatrist. The two had several more sexual encounters in the following months, and the patient did not request her medical records from petitioner until June 2008. These facts provide a rational basis for the ARB's finding that petitioner engaged in a sexual relationship with a current patient and that he committed professional misconduct under New York law...
Interesting case involving reciprocal discipline for doctors. (Mike Frisch)
Thursday, February 26, 2015
The two-year suspension of a dentist for his involvement in a criminal scheme was affirmed by the New York Appellate Division for the Third Judicial Department.
The court rejected the suggestion that the sanction imposed by the Board of Regents should be reduced
Here, the Board expressly took into consideration many of the mitigating factors upon which petitioner now relies, including petitioner's cooperation with the Attorney General and his demonstrated remorse, as well as the fact that his conduct did not directly implicate patient care, that he did not submit claims for work not actually performed, that he was not convicted of larceny or fraud, that he is paying restitution in an amount greater than many of his codefendants and that his misconduct consisted solely of an illegal fee-splitting arrangement and "making small improper payments to patients." Although petitioner testified – and continues to emphasize – that he was unaware that such activities were criminal in nature, he readily acknowledged at the hearing that he was aware that "flyer guys" were retained to "lure" Medicaid patients into the clinic's practice (often by utilizing small cash payments) and that he knew that this activity "was wrong" and did not "seem kosher." Nonetheless, petitioner turned a blind eye to this activity for approximately four years, during which time he reaped the financial benefits of being employed at the clinic. In light of petitioner's misconduct, and taking into consideration the mitigating factors cited by petitioner, the gravity of the underlying offense and the need to fashion a penalty that serves as a deterrent to other health professionals, we cannot say that the two-year suspension imposed by the Board is so disproportionate to petitioner's offense as to shock one's sense of fairness.
Wednesday, August 20, 2014
Maeve Hosier, a recent doctoral graduate of NUI Galway, has published her thesis The Regulation of the Legal Profession in Ireland. After seeing her Law & Society Asssociation conference talk on the Irish financial meltdown and its implications for the profession, I asked to include her larger study in my Quid Pro Books publishing project's Dissertation Series. She agreed and we worked hard all summer to get it out in time to be considered while reform legislation is on deck. In earlier legislative debate, Ireland's Minister of Justice called it "marvelous" and declared it "compulsory reading." Then John Flood generously provided a Foreword and explained the worldwide implications of Maeve's observations and comparative research (she
looked particularly at other bailout nations, Greece and Portugal). The book came out this week, with paperback linked at Amazon (more general information here). Consider recommending it to be adopted by a law library. Here's the abstract to John's intro as posted on SSRN:
The foreword shows how in the recession of 2008 lawyers escaped culpability while bankers were excoriated for their role in it. Nevertheless in Ireland, when it became a debtor country in the Eurozone, the Troika (IMF, EU, ECB) enforced a restructuring of the legal services market. This is viewed in the global context of a shift towards liberalisation of the legal services market at national and supranational levels. Despite
the shift lawyers are rejecting change where they can, or, if they are unable to resist, at least attempt to delay it.
Somewhat unrelated, and lighter reading to be sure (more of a commuter or beach read), we also published this week a lawyer's novel-like true account of a trial stemming from a shipwreck, The
Widow Wave, by Jay Jacobs (or in Kindle, etc.). And completely unrelated is a modern take on Cicero's "On Old Age," called How to be Old, by Richard Gerberding. Thanks for letting me update what's now out after a summer's worth of editing, working with some really great authors. [Alan Childress]
Monday, July 14, 2014
A reprimand of a vetrinarian by the Board of Vetrinary Medicine was upheld by the New Hampshire Supreme Court.
The sad facts
The Board found or the record establishes the following pertinent facts. On August 6, 2007, a couple took their male five-month old Shih Tzu puppy, Toby, and two other puppies to see the respondent, a licensed veterinarian, for routine vaccination and de-worming. The respondent asked the couple whether they had any concerns about Toby’s behavior. They responded that they did not. The respondent then inquired as to which puppy was male, picked Toby up, and administered an oral de-wormer. The respondent asked whether they had experienced any dominance issues with Toby. The couple answered that they had not.
The respondent determined that Toby was "dominant" and proceeded to demonstrate a dominance-submission technique, which included picking Toby up by the scruff of his neck and pinching his snout. Toby then began to urinate. The respondent restrained Toby on the examination table. Toby defecated, struggled briefly, lay still, and then began bleeding from his mouth. Toby died later that day. A necropsy revealed the cause of death to be a non-cardiogenic pulmonary edema (NPE).
The court concluded that the board properly concluded that the vertrinarian engaged in "unprofessional behavior" and that the standard was not unconstitutional vague. (Mike Frisch)
Friday, June 6, 2014
Case Western Reserve University (my alma mater) has been ordered to award a medical degree to a student who had completed his graduation requirements but was deemed "unprofessional" by the school's Committee on Students.
The order came from the United States District Court for the Northern District of Ohio, which dismissed the University's contentions regarding an alleged lack of professionalism.
The university relied on the student's failure to report a DUI arrest as well as incidents recited below. Notably, the school handbook did not require students to report arrests.
In April 2014, the university told the student he was graduating with honors; four days later, they told him of their concerns about his conduct. Within days, the school ordered him to resign or be withdrawn from the medical school.
A Michigan resident, he sued the university in federal court.
While Case should receive great discretion in judging academic standards, the determination of “professionalism” goes well beyond academic or patient related matters. The University's definition of "professionalism" expresses a moral judgment, rather than an evaluation against a set of specialized criteria. Case describes "professionalism" in moral judgment terms: "ethical, honest, responsible and reliable behavior”; “respectful dialogue”; “personal limitations and biases”; and “professional and interpersonal behavior, sensitivity, sense of responsibility, and ethics, and the ability to conduct oneself suitably.”
Although courts should give almost complete deference to university judgments regarding academic issues, the same deference does not follow university character judgments only distantly related to medical education.
Ultimately, Case denied Al-Dabagh a diploma because it believed he should have reported an out-of-state arrest and prosecution for driving while impaired that had not yet concluded and despite University Handbook provisions that did not require an arrest be reported. It also believed he earlier dissembled regarding being late for class and earlier dissembled by giving summaries on patients when he might, or might not, have examined the patient before giving the summary.
Medical schools have no special expertise regarding judging character for honesty.
The other conduct
Case relies upon four examples. First, in his first year, Al-Dabagh was five to ten minutes late for a class and Al-Dabagh may have asked his instructor not to mark him late. Second, Al-Dabagh went drunk to a school dance, harassed two women to dance with him, and may have grabbed another woman’s behind and argued with that woman’s date. Later that night and while drunk, Al-Dabagh then tried to stiff a cab driver by rolling out of a moving cab to avoid paying his bill. Third, an unidentified student said Al-Dabagh presented on a patient he had not personally examined. Fourth, a patient’s family asked that Al-Dabagh not treat their relative when Al-Dabagh was doing an internal medicine internship, likely for personality reasons.
The school dance is called the Hippo Ball.
As to the student
For Al-Dabagh, the stakes are high. Al-Dabagh completed (and paid for) five years of medical school. He has successfully published more than a dozen articles or book chapters on dermatology, including an article published in one of the leading dermatology journals. And the physician who supervised his dermatology research described Al-Dabagh as “quite the team player. . . willing to lend a helping hand even without being asked to do so. He is well read, punctual and prepared for his clinics. His caring demeanor is apparent when he interacts with patients. He exhibited a can do, help others spirit that has been a huge benefit to research projects, helping other students and faculty on collaborative review articles and original research.” If denied injunctive relief, Al-Dabagh’s medical career will be lost or significantly diminished.
The court found that the University had acted arbitrarily and capriciously. (Mike Frisch)
Friday, April 11, 2014
Most of the ebooks and print books produced by the book project I started in 2010, called Quid Pro Books, are on law, history or political science, and are not really the topic of this blog. But one we released this week goes to its core. It is a republication, in Kindle, Google Play, and Nook formats (and next week in Apple iTunes; this summer in paperback), of the renowned collection edited by Robert Dingwall and Philip S.C. Lewis, The Sociology of the Professions: Lawyers, Doctors and Others. The new edition adds a substantive 2014 Foreword by Sida Liu of the University of Wisconsin. Chapters are by Dingwall, Lewis, Paul Atkinson, Maureen Cain, John Eekelaar, Eliot Freidson, Marc Galanter, Gordon Horobin, Malcolm Johnson, Geoff Mungham, Topsy Murray, Alan Paterson, Dietrich Rueschemeyer, P.M. Strong, and Philip Thomas. A full description is found at any of the links above.
We also just released a courtroom thriller by University of Houston law prof David Crump, The Target Defendant. Its ebooks are out already, and the paperback will follow next week. And last month we published a mystery novel by Stanford law prof Lawrence Friedman, called Who Killed Maggie Swift? Here is an interview of Professor Friedman in Palo Alto Weekly in which he discusses mystery writing and his other books with this publishing project ... and shouts out to me! [Alan Childress]
Monday, March 24, 2014
Not a legal profession case but worthy of note is a decision last week from the New York Appellate Division for the First Judicial Department finding that dismissal of a tenured teacher was a "strikingly disproportionate" sanction for the behavior at issue:
Petitioner taught Spanish at James Madison High School (JMHS) from 2003 until November 20, 2009. On Friday, November 20, 2009, she ate dinner with colleagues and returned to the school later that evening to watch a musical competition in the first floor auditorium, although she was not required to do so. During the performance, petitioner was allegedly observed in an upstairs classroom "partially undressed (Specification 2) and "engaging in what appeared to be sexually inappropriate behavior with a colleague" (Specification 3). These actions allegedly "caused widespread negative publicity, ridicule and notoriety to [JMHS] and the New York City Department of Education (DOE) when [petitioner's] misconduct was reported in New York area news reports and papers" (Specification 4).
But in mitigation
Petitioner was present at the school as an audience member and not in any official capacity. The incident involved a consenting adult colleague and was not observed by any student. Before the incident, petitioner, a tenured teacher who had made many positive contributions to the school, had an unblemished disciplinary record, and, moreover, was described by her supervisor as one of the best teachers she had ever worked with...
While petitioner's behavior demonstrated a lapse in judgment, there is no evidence that this incident, was anything but a one-time mistake...
Nor is there is any indication in the record that petitioner's conduct will affect her ability to teach or that she intended to inflict any damage on any student. While it is unfortunate that the incident garnered so much attention and was exploited in the media, that in and of itself does not warrant the penalty of termination...
The matter was remanded for imposition of a lesser penalty. (Mike Frisch)
Tuesday, March 11, 2014
The Maine Supreme Judicial Court has reversed a judgment affirming a decision by the Board of Certification for Geologists and Soil Scientists that had concluded that a geologist had run afoul of the governing Code of Ethics by giving opinions in a report
...without being as thoroughly informed as might reasonably be expected.
The Code of Ethics and the statutes governing the Board’s authority to impose discipline permit the Board to sanction a geologist for issuing an opinion that is the result of gross negligence, incompetence, or misconduct, see 10 M.R.S. § 8003(5-A)(A)(2); 32 M.R.S. § 4913(1)(B), or that contains a “false statement” or “false information,” 6 C.M.R. 02 070 003-3 § 2(F). Additionally, section 2(D) mandates that geologists issue their opinions only in situations where they have enough information to do so. However, the language of section 2(D) does not allow for the determination of an ethical breach when the Board’s conclusion is simply that the geologist’s opinion is not “reasonable” in light of the underlying data. Because the plain language of section 2(D) compels a contrary interpretation, we conclude that the Board committed an error of law in determining that Lippitt violated that section.
The board had imposed a "warning" and costs of $3,000 as sanctions. (Mike Frisch)
Tuesday, November 5, 2013
Tuesday, August 6, 2013
The Connecticut Supreme Court has held that physician disciplinary proceedings before the Medical Examining Board are properly governed by a preponderance of the evidence standard of proof.
The court affirmed the imposition of discipline.
The doctor had argued that the higher "clear and convincing evidence" standard that is applied in lawyer discipline matters should also apply to physicians.
The court disagreed:
...the plaintiff suggests that the disciplinary procedures to which attorneys are subjected has some bearing on the appropriate disciplinary procedures applied to physicians. We are not persuaded... the plaintiffs arguments fails to recognize that attorney discipline, unlike physician discipline, is overseen by the judicial branch....physician discipline is administered by the [Medical Examining Board], which is unquestionably an administrative agency under the [Uniform Administrative Procedure Act], Thus, because there is no indication that the legislature intended to impose a heightened standard of proof in cases involving physician discipline, we decline to depart from the default standard [of proof]...
Better to be a lawyer in hot water in Connecticut than a doctor. (Mike Frisch)
Tuesday, May 7, 2013
The Maryland Court of Special Appeals invoked the rule of "no backsies" in affirming a consent order between the Board of Physicians and an experienced doctor who was charged "with improperly prescribing opiates and other controlled substances for a dozen patients over more than eight years."
A deal is always a deal, but this appeal brings to mind the long-standing playground rule of "no backsies." By calling "no backsies" before finalizing the agreement, the parties reinterate and reinforce their intention to be bound and stay bound.
The court concluded that the board did not err in denying the physician's demand to revise the consent order. (Mike Frisch)
Tuesday, April 23, 2013
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio ruled today that a health care provider’s sympathetic statements to a patient regarding an unanticipated outcome of medical care may not be admitted as evidence of liability in any medical malpractice lawsuit initiated after the September 13, 2004 effective date of legislation barring such evidence.
Applying that analysis to a Portage County malpractice action filed in 2007, the court held that R.C. 2317.43, Ohio’s “medical apology statute,” prevented the admission of sympathetic statements made by a doctor to a patient who had suffered complications following gall bladder surgery, despite the fact that the patient’s injury occurred and the doctor’s statements were made in 2001, three years before the apology statute became law.
The court’s 7-0 decision, authored by Justice Judith Ann Lanzinger, reversed a ruling by the Eleventh District Court of Appeals.
The case involved a medical malpractice suit filed by Jeanette Johnson against Dr. Randall Smith, who surgically removed Mrs. Johnson’s gall bladder in April 2001. The surgery was scheduled to be done laparoscopically. But when Mrs. Johnson’s common bile duct was injured during the procedure (a known surgical risk), Dr. Smith converted to an “open procedure” to repair the duct. After the surgery, Dr. Smith explained to Mrs. Johnson the manner in which the injury had occurred and the manner in which he had repaired the duct.
One month later, Mrs. Johnson returned to the hospital because of complications resulting from the bile-duct injury. Her treatment required that she be transferred to another hospital. Before the transfer, she became upset and emotional. In an effort to console her, Dr. Smith took Mrs. Johnson’s hand and attempted to calm her by saying, “I take full responsibility for this. Everything will be okay.”
In August 2002, Mrs. Johnson and her husband, Harvey Johnson, filed a medical malpractice suit against Dr. Smith and the corporation through which he conducted his practice. They voluntarily dismissed that action in September 2006. In a new complaint filed July 26, 2007, the Johnsons alleged that Dr. Smith had rendered negligent medical treatment to Mrs. Johnson and that Mr. Johnson had sustained a loss of consortium.
A jury trial was scheduled for June 2010. Before trial, Dr. Smith submitted a motion to prohibit the introduction of any evidence regarding the statement of apology that he made to Mrs. Johnson before her transfer to the second hospital. Dr. Smith asserted that his statement constituted an expression of sympathy that could not be admitted into evidence under R.C. 2317.43.
The Johnsons submitted two responses to Smith’s motion. First, they argued that the statement was not an apology or expression of sympathy, but rather an admission of the doctor’s negligence. Second, they argued that R.C. 2317.43 did not apply, because it was enacted and took effect three years after the malpractice claim arose and the statement was made. The trial court ruled that any evidence regarding the doctor’s statement would be inadmissible at trial, concluding that witness testimony about Smith’s words and gestures at the time he made his statement indicated his intent to console and express sympathy for Johnson, and therefore the statement was covered by the apology statute.
The jury returned a general verdict in favor of Dr. Smith on the two claims asserted by the Johnsons following a trial at which no evidence of Smith’s statement was presented.
The Johnsons appealed, and the Eleventh District Court of Appeals reversed the trial court’s judgment, holding that the trial court had erred in applying R.C. 2317.43 because the General Assembly had not expressly stated its intent that the statute should apply retroactively. The court of appeals ordered a new trial. One judge dissented, stating that the pivotal issue was the date on which the suit was initiated not the date on which a statement was made or the plaintiff’s claim arose.
Smith sought and was granted Supreme Court review of the Eleventh District’s ruling
In today’s unanimous decision, Justice Lanzinger wrote: “The General Assembly, in enacting R.C. 2317.43, prohibited the introduction of any sympathetic statements and gestures made by a healthcare provider in any civil action ‘brought’ by an alleged victim of an unanticipated outcome of medical care. The effective date of the statute was September 13, 2004.”
“The language of RC. 2317.43(A) is clear and unambiguous. By its express terms, R.C. 2317.43 applies to ‘any civil action brought’ by persons described in the statute. This means that the statute applies to a civil lawsuit filed after the effective date of the statute. The Johnsons argue that they ‘brought’ this civil action when they initially filed their original complaint against Dr. Smith in August 2002. That action, however, was voluntarily dismissed in 2006. When an action has been voluntarily dismissed, Ohio law treats the previously filed action as if it had never been commenced. ... The action filed by the Johnsons in 2002 must be treated as if it never existed. The Johnsons ‘brought’ or commenced this civil action upon the filing of their complaint on July 26, 2007. When this action was brought by the Johnsons, R.C. 2317.43 had been in effect for almost three years.”
“The Johnsons’ filing of this case on July 26, 2007, meant that the statute applied. ... Because we have determined that the statute applies, the next step is to determine whether Dr. Smith’s statement was properly excluded. ... (D)ecisions granting or denying a motion in limine are reviewed under an abuse-of-discretion standard of review. ... For an abuse of discretion to have occurred, the trial court must have taken action that is unreasonable, arbitrary, or unconscionable.”
“In this case, the trial court heard testimony from witnesses before ruling on the motion in limine. Based upon its observation, the court concluded that ‘the statements and gestures and actions are covered under 2317.43.’ The court of appeals, in reviewing the decision, did not analyze under an
abuse-of-discretion standard whether the trial court had acted unreasonably, arbitrarily, or unconscionably in reaching its conclusion. Thus, it was improper to reverse the trial court’s decision to exclude Dr. Smith’s statement. The trial court had determined that Dr. Smith was faced with a distressed patient who was upset and made a statement that was designed to comfort his patient. This is precisely the type of evidence that R.C. 2317.43 was designed to exclude as evidence of liability in a medical-malpractice case.”
“Dr. Smith’s statement was properly excluded pursuant to R.C. 2317.43. We therefore reverse the judgment of the Eleventh District Court of Appeals and remand the case to the trial court to reinstate the jury’s verdict and the trial court’s judgment.”
Justice Lanzinger’s opinion was joined by Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy, Judith L. French and William M. O’Neill. Justices Paul E. Pfeifer and Terrence O’Donnell concurred in judgment only.
The court's opinion is linked here. (Mike Frisch)
Monday, November 12, 2012
The Vermont Supreme Court has held that a physician is not answerable in professional discipline for failure to supervise his physician's assistant.
The assistant was reported to the physician as a possible source of illegally prescribed opiates. The physician reported the concerns and the assistant admitted the misconduct.
Charges of failure to supervise were then brought against the physician. The court here found no basis to impose professional sanctions. (Mike Frisch)
Friday, October 26, 2012
The Massachusetts Supreme Judicial Court has remanded with orders to vacate a decision revoking the license of a funeral director and embalmer.
After an adjudicatory hearing, the Board of Registration of Funeral Directors and Embalmers (board) issued an order permanently revoking Troy J. Schoeller's licenses to do business in the Commonwealth as a funeral director and embalmer. G.L. c. 112, §§ 61, 84. The disciplinary action arose after Schoeller made comments to a newspaper reporter about his experiences in the embalming profession and those comments were later published as part of an article about Schoeller. Schoeller did not reveal any confidential or private information about any deceased person or bereaved family members whom he had served. Rather, the board found that Schoeller had violated an ethical regulation prohibiting an embalmer from "comment[ing] on the condition of any dead human body entrusted to his or her care," 239 Code Mass. Regs. § 3.13(7) (1998), and that he had used unprofessional language in his descriptions of dead bodies. By doing so, the board concluded, Schoeller had "engaged in gross misconduct and unprofessional conduct which undermines the integrity of the profession." Schoeller filed a petition in the county court, pursuant to G.L. c. 112, § 64, seeking review of the board's order. The single justice reserved and reported the case without decision.
The board's action violated First Amendment protections:
...while there may be circumstances in which the board can appropriately seek to limit the speech rights of licensed funeral directors and embalmers...in proscribing all "undignified" comments, the board has "traveled in the constitutionally unacceptable direction," Mendoza v. Licensing Bd. of Fall River, 444 Mass. 188, 201 (2005), of banning a substantial amount of protected speech. The board cannot apply § 3.13(7) to restrict such a wide range of speech, nor may it limit that speech by relying on a generalized notion of the integrity of the funeral services profession.
The case is Schoeller v. Board of Registration of Funeral Directors and Embalmers, decided today. (Mike Frisch)
Tuesday, October 16, 2012
The New York Appellate Division for the First Judicial Department reversed a judgment denying a petition to annul a decision by New York University that expelled the petitioner from its dental college.
The petitioner was expelled without possibility of readmission based on findings that she forged a patient treatment record and presnted forms she knew to be false to obtain the practice model values (PMV) required for graduation.
The court noted that the PMV "appears to have been the subject of controversy." The program creates an obligation to generate income for NYU.
The petitioner was, except for the PMV issue, an otherwise exemplary student. She contended that the issue was sprung on her literally moments before her scheduled graduation.
Petitioner's academic performance at NYU dental college was exemplary, and
this incident was at worst a single lapse in judgment in the face of extraordinary pressure. As Ploumis — who has been a member of NYU dental college for over 20 years — explained:
"In a moment of panic and desperation, Katie did something foolish and imprudent that blemished an otherwise spotless record. Her lapse was not premeditated ....
"... The entire student body is aware of, and aghast at, the punishment. Every student and graduate I have spoken to has indicated that, given a similar set of facts and conditions, he or she could envision acting similarly in a moment of panic....
"... Decent people, compassionate institutions, don't throw a student away on the eve of her graduation for one lapse."
Furthermore, because petitioner was able to enter the dentistry program before completing her undergraduate degree, expulsion from NYU leaves her with no degree of any kind after seven years of educational toil and the expenditure of hundreds of thousands of dollars.
There are also extenuating circumstances, grounded in the Code of Ethics, that were not given the weight they were due.
The court held that NYU failed to follow its own policies and felt compelled put the word "hearing" in quotes in describing the process that led to expulsion. The court further found evidence that NYU frustrated the petitioner's ability to complete the requirement and had treated similarly situated students less harshly.
The dismissal order of the Supreme Court is linked here. (Mike Frisch)
Friday, October 5, 2012
A son donated a kidney to his father. After the transplant surgery, the kidney failed and had to be removed. The son sued the doctor for post-transplant medical malpractice that, allegedly, led to the transplant failure.
The Nebraska Supreme Court tody affirmed the dismissal of the malpractice action, holding that the doctor owed no duty of care to the kidney donor for any malpractice in the treatment of the donee. (Mike Frisch)