Friday, April 11, 2014

New release in ebooks of classic collection on the sociology of the professions

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, andThe Sociology of the Professions cover interior Q 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 Target Defendant cover Apple interiorweek. 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]

April 11, 2014 in Childress, Comparative Professions, Law & Society | Permalink | Comments (0) | TrackBack (0)

Monday, March 24, 2014

Removal Excessive For One Time Mistake

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)

March 24, 2014 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 11, 2014

Restoring A Soiled Reputation

 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 court

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)

March 11, 2014 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 5, 2013

John Flood on an inside view of the corporate law firm

Here's a new book in my Quid Pro project that is about the legal profession. UK law prof John Flood (Westminster) embedded himself into a Chicago firm and accounted for the firm's activities, culture, and representations beyond litigation. It was one of the first black-box views of BigLaw. It's like an Cover  Flood bookanthropological look inside a law firm. He updated it throughout into this Second Edition, and added a new introduction and afterword on the global changes to law practice and firm governance (comparing the UK). Lynn Mather of SUNY Buffalo law school added a new Foreword. You may want to recommend to your library that they add this book to the collection. Find it at YBP, Ingram, Amazon, B&N, etc., in paperback, hardcover, and ebooks. [Alan Childress]

November 5, 2013 in Books, Childress, Comparative Professions, Law & Society, Law Firms | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 6, 2013

Better To Be A Lawyer than A Doctor (In Connecticut)

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)

August 6, 2013 in Bar Discipline & Process, Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 7, 2013

The Law Of "No Backsies"

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."

The court:

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)

May 7, 2013 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 23, 2013

It's OK To Say I'm Sorry

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)

April 23, 2013 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Monday, November 12, 2012

No Discipline For Physician's Failure To Supervise

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)

November 12, 2012 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Friday, October 26, 2012

A Dead Issue

The Massachusetts Supreme Judicial Court has remanded with orders to vacate a decision revoking the license of a funeral director and embalmer.

The facts:

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)

October 26, 2012 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 16, 2012

Dental School Expulsion Reversed

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)

October 16, 2012 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Friday, October 5, 2012

Failed Transplant, Failed Lawsuit

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)

October 5, 2012 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Thursday, September 6, 2012

Sex With Former Patient Criminal Statute Constitutional In New Hampshire

The New Hampshire Supreme Court has reversed a trial court order dismissing a criminal charge against a licensed psychologist who engaged in a consensual sexual relationship with an adult to whom he had provided therapy, within one year of the termination of the professional relationship.

The court found that the state statute that imposes strict felony liability for such conduct did not violate the Federal or State Constitutions.

A dissent relies on the United States Supreme Court's decision in Lawrence v. Texas in concluding that the statute is unconstitutional as applied to the defendant as it imposes "strict liability ion the therapist even when the 'protected' partner was actually capable of giving or refusing consent and did, in fact, freely give it..." (Mike Frisch)

September 6, 2012 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Friday, April 13, 2012

Lactating Mothers Protected In Medical Licensing Exam

The Massachusetts Supreme Judicial Court has vacated a dismissal of a complaint brought by a medical student and nursing mother against the National Board of Medical Examiners, which administer the United State medical licensing examination:

We conclude that, in refusing to provide additional break time to Currier during the exam, the NBME did not violate the civil rights act because its conduct did not amount to coercion under that act. The judge, therefore, properly granted summary judgment to the NBME on this claim. We further conclude that Currier proffered sufficient evidence to raise a genuine issue of material fact as to whether the NBME violated her rights under the equal rights act. Thus, summary judgment on that count is inappropriate. Concerning Currier's claim under the public accommodation statute, we reject the legal arguments advanced by the NBME regarding the application of that statute to these circumstances, and conclude that Currier is entitled to summary judgment on that claim. Because Currier is entitled to statutory relief under the public accommodation statute (and possibly also under the equal rights act), we do not decide her constitutional claim...Our decision in the context of the equal rights act and public accommodation statute counts, that lactation is a sex-linked classification, recognizes that there remain barriers that prevent new mothers from being able to breastfeed or express breast milk. We take this opportunity to extend protection to lactating mothers in the context of lengthy testing required for medical licensure.

The case is Currier v. National Board of Medical Examiners, decided April 13, 2012. (Mike Frisch)

April 13, 2012 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Monday, April 2, 2012

Nurses Must Report Abuse, Not Grandmothers

A Delaware nurse who had been suspended by the Board of Nursing for two years on charges that she failed to report possible child sex abuse had the sanction overturned by the Superior Court. On the appeal of the board, the decision was affirmed by the Delaware Supreme Court.

The court found no violation of the statutory duty to report because the nurse had not learned of the possible abuse as a result of her nursing duties. Rather, she received second-hand information in her capacity of grandmother. (Mike Frisch)

April 2, 2012 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 16, 2011

Referring Doctor Not Liable

In a decision that may provide some level of comfort to attorneys who refer persons to other counsel, the Delaware Supreme Court has held that a doctor who refers a patient to a specialist for treatment is not liable for the specialist's medical malpractice. The referring doctor had transferred full responsibility for the patient's care to the specialist. (Mike Frisch)

November 16, 2011 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Friday, August 12, 2011

No Third Party Liability For Health Care Providers

The New York Appellate Division for the Second Judicial Department has held that claims that sound in medical malpractice should have been dismissed where the plaintiff did not have a doctor-patient relationship with the defendants.

The patient, who was in outpatient treatment, had murdered the spouse of the plaintiff:

...we conclude that the extension of a physician's duty of care beyond a narrow class of potential defendants, such as immediate family members, cannot be supported under any analysis of duty. Clearly, medical professionals should not be singled out to be subjected to liability to a limitless class of potential defendants. In addition, we cannot justify such an extension of duty based solely upon moral or even ethical considerations. As indicated, "[w]hile moral and logical judgments are significant components of the [duty] analysis, we are also bound to consider the larger social consequences of our decisions and to tailor our notion of duty so that " the legal consequences of wrongs [are limited] to a controllable degree' "...Therefore, regardless of any sense of outrage which is evoked by the heinous actions of Evan Marshall, society's interest is not best served by concluding that a doctor who treats a patient, within the context of mental health, undertakes a duty to the public at large.

Indeed, it seems certain that such a greater risk of liability would negatively impact the medical treatment of mental health patients. At worst, mental healthcare providers may be reluctant to even undertake treatment of those who are most in need of their services. At the very least, the extension of possible liability would encourage such health care providers to opt in favor of what may be unnecessary confinement for such patients, and concomitantly, decrease the ability of such patients to ultimately successfully integrate into society.

(Mike Frisch)

August 12, 2011 in Comparative Professions | Permalink | Comments (1) | TrackBack (0)

Thursday, July 14, 2011

No Immunity For Clinical Medical Faculty

A decision issued yesterday by the Ohio Supreme Court:

In a 7-0 decision announced today, the Supreme Court of Ohio ruled that a physician who serves as a volunteer “clinical faculty member” by allowing students at a state university medical school to observe his private practice is not entitled to personal immunity from malpractice liability under R.C. 9.86 as an employee or officer of the state.  The Court’s opinion, which reversed a ruling by the 10th District Court of Appeals, was authored by Justice Paul E. Pfeifer.

The Ohio Court of Claims Act, Section 9.86 of the Revised Code, generally immunizes “officers and employees” of the state from personal liability for injuries caused by the negligent performance of their job duties. Rather than seeking recovery from the individual who allegedly caused injury, the law authorizes persons harmed  by state employees’ acts or omissions to recover damages by filing suit against the state in the Court of Claims.

In this case, patient Larry Engel Jr. suffered injuries as a result of alleged malpractice by Dr. Marek Skoskiewicz during the performance of two vasectomy surgeries on Engel at the Henry County Hospital in Napoleon. Engel was a patient of Dr. Skoskiewicz’ private medical practice. The hospital is a private, non-profit facility that is not affiliated with the University of Toledo or any other state agency. The surgeries were observed by a third-year medical student at the University of Toledo College of Medicine (UTCM) who was “shadowing” Dr. Skoskiewicz at the time as part of a program in which private physicians across the state serve as volunteer “clinical faculty members” of the state’s six medical schools by allowing medical students to observe the day-to-day operation of their private medical practices.

Engel filed a malpractice lawsuit against Dr. Skoskiewicz in the Henry County Court of Common Pleas. While Engel’s suit against him remained pending, Dr. Skoskiewicz entered a motion to dismiss or postpone proceedings in the common pleas court. He argued that because he was being observed by a medical student at the time he operated on Engel, he was acting within his capacity as an appointed member of the UTCM faculty. Accordingly, the doctor claimed he was immune from personal liability for Engel’s injuries, and Engel must pursue recovery for his damages by suing UTCM in the Court of Claims. The common pleas court postponed further proceedings pending a ruling by the Court of Claims on whether or not the doctor qualified for personal immunity under R.C. 9.86.
In order to obtain such a ruling, Engel filed suit against UTCM in the Court of Claims. The Court of Claims concluded that Dr. Skoskiewicz had “performed the operations as a state employee” and that, therefore, he was entitled to personal immunity. Engle appealed. The 10th District Court of Appeals affirmed, based on its conclusion that Dr. Skoskiewicz “satisfies the definition of ‘officer or employee’ in R.C. 109.36(A)(1)(a).” The Supreme Court accepted Engel’s discretionary appeal.

Writing for a unanimous Court in today’s decision, Justice Pfeifer agreed with UTCM’s arguments that Skoskiewicz was not acting as a state employee at the time he operated on Engel because there was no contract of employment between the doctor and the medical school, the school did not exercise control over the doctor’s conduct of Engel’s surgery, which was conducted on a private patient in a private hospital, and the medical school did not pay Skoskiewicz either directly or through a university-affiliated organization for providing medical services.

In order to meet the alternative requirement for immunity that Skoskiewicz was acting as an elected or appointed  “officer” of the state, Justice Pfeifer wrote: “To be sure, the letters that Dr. Skoskiewicz received from the College of Medicine stated that the College of Medicine had approved his ‘appointment’ to the volunteer faculty at the rank of clinical assistant professor.  As support for the proposition that Dr. Skoskiewicz had been appointed to an R.C. 109.36 ‘office or position,’ however, these letters are a slender reed. We refuse to read so much into the letters’ use of the word ‘appointment’ because, to us, the more significant words in R.C. 109.36(A)(1)(a) are ‘office and position with the state.’

“In State ex rel. Newman v. Skinner (1934) ... (w)e stated that ‘[a] public officer, as distinguished from an employee, must possess some sovereign functions of government to be exercised by him for the benefit of the public either of an executive, legislative, or judicial character.’ ... Clearly, Dr. Skoskiewicz possessed no ‘sovereign’ function of an executive, legislative, or judicial character.  And his duties were not of a level consonant with those of a public office.  The appointment did not entitle Dr. Skoskiewicz to office space, staff, or authority at the College of Medicine; did not enable him to lecture or teach a class at the College of Medicine; did not allow him to conduct university-sponsored research, although he was allowed to collaborate with College of Medicine researchers; did not allow him to practice at the university clinic; and did not entitle him to payment from the College of Medicine.  In truth, based on the record before us, the appointment did not enable Dr. Skoskiewicz to do anything except, as stipulated, allow students to ‘rotate through Dr. Skoskiewicz’s practice as a part of one-month clerkships.’”

“Dr. Skoskiewicz and the many other volunteer clinical faculty in Ohio provide an important service.  But that service, however commendable, does not transform the volunteers behind it into an arm of the state.  Based on the record before us, we conclude that Dr. Skoskiewicz did not hold an appointed office or position with the state. ... Accordingly, he is not entitled to personal immunity pursuant to R.C. 9.86.”

(Mike Frisch)

July 14, 2011 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 5, 2011

Sex Assaults Result in Medical License Permanent Revocation

The Maryland Court of Special Appeals approved the permanent revocation of a doctor's license as ordered by the State Board of Physicians.

The court found that the board had found on competent evidence that the doctor had sexually assaulted four patients over a two year period. The first victim brought criminal charges that resulted in an acquital. Three patients filed complaints with the medical board and a fourth was brought while the allegations were pending.

The court held that board was not obligated to refer the doctor to a counseling program. Further, the board has the authority to impose the sanction, provided the required process and did not impose permanent revocation arbitrarily or capriciously.  (Mike Frisch)

July 5, 2011 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Thursday, June 30, 2011

HIV Misdiagnosis Actionable

The District of Columbia Court of Appeals, sitting en banc, has held that a plaintiff who was told that he was HIV positive when he in fact was not, and suffered severe depression during the five years he dealt with the misdiagnosis, has a cause of action for the negligent infliction of emotional distress against the doctor and clinic.

The court expanded the "zone of physical danger" concept generally applied to tort actions:

...the zone of physical danger requirement imposes an unnecessary limitation upon, and is not to be applied indiscriminately in all cases to, claims of emotional distress brought against a defendant who has a relationship with the plaintiff, or has undertaken an obligation to the plaintiff, and whose negligence causes serious emotional distress to the plaintiff. We, therefore, adopt a rule – itself a limited one – that supplements the zone of physical danger test. We hold that a duty to avoid negligent infliction of serious emotional distress will be recognized only where the defendant has an obligation to care for the plaintiff’s emotional well-being or the plaintiff’s emotional well-being is necessarily implicated by the nature of the defendant’s undertaking to or relationship with the plaintiff, and serious emotional distress is especially likely to be caused by the defendant’s negligence.

We conclude this is such a case...

The court concluded that the doctor-patient relationship created the obligation to avoid the negligent infliction of severe emotional distress. Presumably, the attorney-client relationship would as well.

The decision was unanimous. (Mike Frisch)

June 30, 2011 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Monday, June 13, 2011

A Lower Standard Of Proof For Doctor Discipline

The Connecticut Appellate Court affirmed sanctions imposed (reprimand, probation and a fine) against a medical doctor on allegations that he had treated and prescribed medications for two minors without ever conducting an examination. The minors were in Nevada.

The court rejected the doctor's contention that his due process rights were violated. The court also rejected the claim that the clear and convincing evidence standard should be applied because that is the burden of proof in attorney discipline proceedings: 

 The plaintiff’s contention ignores the fact that attorney discipline proceedings, unlike the present matter, are not governed by the [Uniform Administrative Procedure Act]. The statewide grievance committee ‘‘is an arm of the court, and is not a body in which the legislature has reposed general powers of administration of a particular state program with which it has been given statutory authority to act for the state in the implementation of that program.’’ (citation omitted) 

(Mike Frisch) 

June 13, 2011 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)