Monday, December 12, 2016
The Vermont Supreme Court found that a state employee's conduct as a juror in a capital case merited termination, reversing the order reducing sanction by the Labor Relations Board
Grievant worked as an environmental biologist for the Vermont Agency of Transportation (AOT) from 1992 until his dismissal in July 2015. In this position, grievant evaluated the potential impact of proposed transportation projects, created reports, and coordinated with others to apply for and prepare environmental permits. Grievant interacted with numerous other state and federal employees, and it was important that he gain and keep the trust and respect of his peers.
In 2005, grievant served as a juror in the federal criminal trial of Donald Fell and engaged in conduct that eventually led to his dismissal from State employment. Fell was charged with two capital offenses, and prosecutors sought the death penalty. In direct contravention of the federal court’s repeated instructions to the jury, grievant and his then-girlfriend traveled to Rutland during trial to view the crime scene and the home and neighborhood where Fell’s mother lived. Grievant then shared his observations with other jurors during deliberations. The jury found Fell guilty of all charges, and sentenced him to death on the capital counts.
Five years later, grievant told Fell’s post-conviction attorneys about his actions during trial. The attorneys drafted a statement for grievant to sign. Grievant made changes and additions to the statement, and reviewed and initialed each paragraph before signing it. Fell’s attorneys then sought to vacate Fell’s convictions, alleging juror misconduct. In sworn testimony before the federal court, grievant denied visiting the crime scene during trial, or telling other jurors about his observations.
In a July 2014 ruling, the federal court concluded that grievant violated the fundamental integrity of Fell’s trial by deliberately undertaking an independent investigation. The court found this definitively established by grievant’s sworn declaration, the testimony of his then girlfriend who traveled with him to the crime scene, and the testimony of a later girlfriend with whom he shared his plans. The court explained that grievant had traveled over two hours to view the crime scenes in knowing violation of the court’s orders. While there, he viewed extra-record information that was highly relevant to the aggravating and mitigating factors presented at trial. After breaching his oath as a juror, he returned to the courtroom where he purposely neglected to inform the court of his transgressions. And years later, during a post-trial proceeding convened specifically to assess the fairness of Fell’s trial, grievant openly lied to the court about whether he had committed these acts. The court concluded that grievant’s “extraordinary and continuous defiance of the [c]ourt’s directives . . . tainted the integrity of Fell’s trial and violated his constitutional right to an unbiased jury.” Despite the significant resources that had been invested in Fell’s trial, grievant’s behavior required the court to vacate Fell’s convictions and schedule a new trial.
A Vermont newspaper reported that the juror was a state employee. He was terminated in 2015.
The Labor Relations Board reversed
Following a hearing, the Board concluded that the State abused its discretion in dismissing grievant. At the outset, it agreed with grievant that the State did not “act promptly to impose discipline . . . within a reasonable time of the offense” as required by the CBA. It found that although AOT became aware of the bulk of grievant’s alleged misconduct from an August 2014 newspaper article, it took seven months to complete an investigative report, and several more months elapsed before grievant was dismissed.
First, as the Board found, grievant committed serious misconduct that related to his fitness as a state employee. He defied a federal court’s instructions in a capital murder case, conducted an improper outside investigation, informed fellow jurors about his discoveries, and then lied about his actions under oath. He exhibited extremely poor judgment and brazen dishonesty. He refused to admit wrongdoing either to the federal court or to AOT officials. His misconduct and his status as a state employee were well-known throughout AOT and other state and federal agencies that interacted with AOT. Grievant lost the trust of his coworkers and peers, and his actions brought discredit to the State. The facts, as found by both the State and the Board, support the State’s conclusion that based on grievant’s serious misconduct, his credibility could not be restored and that the State’s reputation would be severely undermined absent his dismissal. It was objectively reasonable for the State to conclude on these facts that it had just cause to dismiss grievant.
The DHR investigator had twenty-six other active investigations, and it took him seven months to complete the report. There is nothing in the record that links this investigative delay with the State’s level of concern about grievant...
In sum, the record evidence provided reasonable grounds for AOT’s decision not to suspend grievant during the investigation, and reasonable grounds—wholly divorced from AOT’s beliefs about the seriousness of grievant’s misconduct—why there was a delay in imposing discipline. The Board erred in speculating, contrary to the evidence, that AOT did not actually believe its own rationale for dismissing grievant. As the State points out, moreover, the Board’s approach runs contrary to sound public policy. It would essentially require an employer to discipline an employee immediately, even based on incomplete information, in order for it to prove that it had serious concerns about an employee’s conduct. This approach would encourage a rush to judgment, with negative repercussions for employees, especially in cases where dismissal results from the conduct.
...the touchstone of the Board’s review is the “reasonableness” of the State’s decision, and the facts here objectively demonstrate that this standard is satisfied. In light of grievant’s extremely serious misconduct and the deference that the Board must afford to the State in exercising its management function, the State’s disciplinary decision must be upheld.
Wednesday, April 20, 2016
A medical, not legal, malpractice case has resulted in an opinion of the Oklahoma Supreme Court
Patient, who accidentally swallowed a nail, brought a medical malpractice action based, inter alia, upon a claim of lack of informed consent against the hospital's emergency room physician after the physician advised patient to "eat fiber and let the nail pass." The physician did not, however, disclose the alternative medical options which included endoscopic and surgical removal of the ingested nail. Following severe vomiting, the patient proceeded to a different emergency room. Emergency surgery was performed to remove the nail, and the patient was treated for a perforated and infected bowel. The trial court, Honorable Brent Russell, granted partial summary judgment in favor of the physician on the issue of informed consent, and the Court of Civil Appeals affirmed.
Today, this Court emphasizes the doctrine of informed consent applies equally to invasive as well as noninvasive medical treatments and treatment alternatives regardless of a physician's scope of practice. To effectively discharge a physician's duty to disclose, a physician must disclose the medically reasonable alternatives regardless of whether it is the physician's preferred method of treatment. The ultimate decision of what treatment a patient receives rests with the patient, not the physician. The trial court erred in holding that Allen's claim of informed consent was not actionable. Resultantly, this matter is remanded for further proceedings consistent with this opinion.
Thursday, April 7, 2016
A school guidance counselor was improperly dismissed from her employment after protecting the confidentiality of a pregnant 15-year-old student, according to a decision of the New Hampshire Supreme Court.
[Counselor] McKaig suggested that Student A tell her mother about the pregnancy, but Student A refused. Student A and her boyfriend told McKaig that they did not want Student A’s mother to know about the pregnancy because they were afraid for their safety. McKaig researched Student A’s options and found New Hampshire’s parental notification and judicial bypass laws for minors seeking an abortion. See RSA 132:33, :34, II (2015).
After meeting with Student A, McKaig and the other guidance counselor met with the principal and other school staff to discuss the issue of Student A’s pregnancy. The principal expressed his view that the school should inform Student A’s mother about the pregnancy. McKaig disagreed, asserting that Student A had a right to keep the pregnancy confidential. The meeting concluded without a decision about whether to contact Student A’s mother.
After the meeting, McKaig spoke with Attorney Barbara Keshen of the New Hampshire Civil Liberties Union about Student A’s situation. McKaig provided Keshen with Student A’s initials, age, and grade. McKaig and Keshen also discussed Student A’s potential privacy rights. Keshen’s opinion was that the judicial bypass law protected the confidentiality of Student A’s pregnancy and the fact that she was contemplating an abortion. McKaig relayed this opinion to Student A, and Student A made an appointment with a health center and another attorney to assist her with the judicial bypass proceedings.
On December 3, 2012, the principal instructed the school nurse to meet with Student A to tell her that the school would inform her mother about her pregnancy by December 5. That same day, McKaig told the principal about her conversation with Keshen and urged him to contact Keshen to discuss Student A’s rights. The principal did not contact Keshen; however, on December 4, Keshen contacted him. He told Keshen that he had reviewed the parental notification and judicial bypass laws and determined that they did not prevent him from telling Student A’s mother about the pregnancy.
Keshen instituted a petition for a temporary restraining order (TRO) against the principal in superior court to prevent the principal from contacting Student A’s mother. McKaig was named as the petitioner "ON BEHALF OF [Student A]"; she was not named in her individual capacity. The petition did not include Student A’s name. It instead referred to Student A by her initials and mentioned her age and grade, and that she was pregnant.
The district board had agreed with the decision not to renew the counselor's employment and appealed the decision of the state board to reinstate her.
The court majority
Apart from the unique circumstances giving rise to this case, there is nothing remarkable about our analysis; rather, it is based upon a reasoned application of legislative enactments, and employs well-established principles of judicial review, according proper deference to the state board’s decision. We are disappointed by the tone of the dissent and its incorrect assumptions about our motivations. In contrast, we do not choose to speculate upon the motivations of the dissent; rather, after giving due consideration to the legal points raised by the dissent, we reject its substantive criticisms of our analysis...
We acknowledge, as did the district, that, without the ability to order reinstatement, the state board’s authority to reverse a local board’s decision not to renew a teacher or, in the instant case, a guidance counselor, would be meaningless. See RSA 189:14-b. We therefore affirm the state board’s reversal of the local board’s decision, and order that McKaig be reinstated to her former employment. We also remand to the state board the issue of whether McKaig is entitled to additional remedies, which issue should be addressed by the state board in the first instance.
Justice Lynn dissented.
The majority’s holding, that the State of New Hampshire Board of Education (state board) could have reasonably concluded that McKaig was not insubordinate, is based upon two flawed premises. First, the holding is based upon the implicit (albeit unstated) determination that the principal’s decision to disclose Student A’s pregnancy to her parents was in some manner at least arguably unlawful or wrong. Second, it also accepts that, because McKaig disagreed with the principal’s decision to tell the parents, she had a right, not simply to advise the student of her disagreement with his decision, but to become an adversary in a court proceeding against him. Neither of these premises, however, can withstand scrutiny. Additionally, the majority allows the state board to impermissibly act as fact finder regarding McKaig’s breach of Student A’s right to confidentiality per district policy. Had the state board given the required deference to the Farmington School Board’s (local board) decision, it would have been required to uphold the decision not to renew McKaig’s contract. For these reasons, I respectfully dissent...
although the majority studiously avoids saying as much, the only plausible explanation for its holding is that the majority believes McKaig’s action in suing her principal was not insubordinate because the principal’s decision to tell Student A’s parents about her pregnancy was not simply one with which McKaig disagreed, but was in some way wrongful or unlawful. Stated differently, if the principal was properly within his rights to tell the parents about the student’s pregnancy, then it is hard to imagine how the majority could hold that it was not insubordinate for McKaig to participate in a lawsuit against the principal because she disagreed with that otherwise correct decision.
Wednesday, April 6, 2016
A church and its pastors are protected from suit alleging defamation according to a decision of the Minnesota Supreme Court.
Under the ecclesiastical abstention doctrine, pastors and their church are not liable to former parishioners for defamation or related common-law torts for statements made by the pastors during the course of formal church discipline proceedings when the statements were communicated only to other members of the church and participants in the formal church discipline process.
The allegedly defamatory statements that led to excommunication
The Pfeils were actively involved in slander, gossip, and speaking against Braun and his wife, Behnke, and the St. Matthew Board of Elders.
The Pfeils had intentionally attacked, questioned, and discredited the integrity of Braun, Behnke, and other St. Matthew church leaders.
Other people had observed the Pfeils display anger and disrespect toward Braun.
The Pfeils had publicly engaged in "sinful behavior" inside and outside St. Matthew.
The Pfeils had engaged in behavior unbecoming of a Christian.
The Pfeils had engaged in a "public display of sin."
The Pfeils had refused to meet for the purpose of confession and forgiveness.
The Pfeils had "refused to show respect" toward servants of God and St. Matthew church leadership.
The Pfeils had led other people into sin.
The Pfeils had engaged in slander and gossip and had refused to stop engaging in slander and gossip.
The Pfeils had refused to follow the commands and teachings of God’s word.
we agree with respondents insofar as they argue that applying the issue-by-issue approach advocated by the Pfeils to this case would foster an excessive entanglement with religion, unduly interfere with the internal governance decisions of religious organizations, and violate the First Amendment. Ultimately, adjudicating Pfeils’ claims would excessively entangle the courts with religion and unduly interfere with respondents’ constitutional right to make autonomous decisions regarding the governance of their religious organization. We hold that the First Amendment prohibits holding an individual or organization liable for statements made in the context of a religious disciplinary proceeding when those statements are disseminated only to members of the church congregation or the organization’s membership or hierarchy. As a result, the district court properly dismissed the claims brought by the Pfeils against St. Matthew and its pastors.
A dissent from Justice Lillehaug would affirm excommunication but allow a defamation claim
Although religious freedom is, of course, a strong public policy, the court does not demonstrate that the possibility of defamation liability "unduly interfere[s]" with that freedom. Nor does the court discuss why religious organizations cannot procure insurance to protect themselves from defamation liability.
On the other hand, the court concedes that there is "merit" to concerns about injustice to defamation victims. It tries to limit the inoculation from liability it grants with a proviso: the rule of law applies only to statements made "during the course of formal discipline proceedings" and "communicated only to other members of the church and participants." This proviso ignores the reality of how defamation can devastate its victims. Any statement made in a closed meeting of "members" and "participants" is unlikely to stay there. More likely, a vicious falsity uttered in a small-town house of worship will be avidly republished, starting the very next morning during coffee at the Chatterbox Café...
Whether or not the Pfeils accused the minister of theft has little to do with the underlying disciplinary proceeding. I see no reason why a court and jury could not apply neutral principles of law without entanglement to determine whether: (1) the minister made the alleged statement; (2) it was false; (3) it was damaging to reputation; and (4) it was not protected by a qualified privilege.
Friday, April 1, 2016
An opinion issued yesterday by the New York Court of Appeals
Defendants' actions in filming a patient's medical treatment and death in a hospital emergency room without consent, and then broadcasting a portion of the footage as part of a documentary series about medical trauma, were not so extreme and outrageous as to support a cause of action by the patient's family members for intentional infliction of emotional distress. However, the complaint sufficiently states a cause of action against the hospital and treating physician for breach of physician-patient confidentiality. Therefore, the Appellate Division order should be modified to reinstate that cause of action against those two defendants.
Mark Chanko (decedent) was brought into the emergency room of defendant The New York and Presbyterian Hospital (the Hospital). He had been hit by a vehicle, but was alert and responding to questions. Defendant Sebastian Schubl was the Hospital's chief surgical resident and was responsible for decedent's treatment. While decedent was being treated, employees of ABC News, a division of defendant American Broadcasting Companies, Inc. (ABC), were in the Hospital -- with the Hospital's knowledge and permission -- filming a documentary series (NY Med) about medical trauma and the professionals who attend to the patients suffering from such trauma. No one informed decedent or any of the individual plaintiffs1 -- most of whom were at the Hospital -- that a camera crew was present and filming, nor was their consent obtained for filming or for the crew's presence.
Less than an hour after decedent arrived at the Hospital, Schubl declared him dead. That declaration was filmed by ABC, and decedent's prior treatment was apparently filmed as well. Schubl then informed the family of decedent's death, with that moment also being recorded without their knowledge.
Sixteen months later, decedent's widow, plaintiff Anita Chanko, watched an episode of NY Med on her television at home. She recognized the scene, heard decedent's voice asking about her, saw him on a stretcher, heard him moaning, and watched him die. In addition, she saw, and relived, Schubl telling the family of his death. She then told the other plaintiffs, who also watched the episode. This was the first time plaintiffs became aware of the recording of decedent's medical treatment and death.
Wednesday, January 6, 2016
A decision in a case involving allegations of accounting malpractice from the Massachusetts Supreme Judicial Court
The defendant, KPMG LLP (KPMG), is an accounting firm that performed annual audits for the plaintiff, Merrimack College (Merrimack). In the underlying action, Merrimack alleges that KPMG committed malpractice when it failed to detect serious financial irregularities that occurred in Merrimack's financial aid office during fiscal years 1998 through 2004. Based on a dispute resolution provision included in a contract the parties executed for fiscal year 2005, KPMG argues that Merrimack waived its right to sue KPMG regarding services it had provided in prior years and was required to arbitrate those claims. In addition, KPMG maintains that whether Merrimack's pre-2005 claims are subject to compulsory arbitration must be resolved by arbitration. In a thoughtful decision, a Superior Court judge rejected such arguments and denied KPMG's motion to compel arbitration. We affirm.
KPMG has not presented clear and unmistakable evidence that Merrimack ever agreed that only arbitrators could resolve whether disputes that arose under prior agreements nevertheless were subject to the arbitration provision in the 2005 engagement letter. Indeed, because Merrimack never agreed that earlier disputes were subject to the new dispute resolution provision (for the reasons set forth supra), it follows that the procedures spelled out in appendix II simply never came into play.
Thursday, December 24, 2015
The New Hampshire Supreme Court upheld the conclusion that an arbitrator exceeded his authority in failing to dismiss a University of New Hampshire professor
In 2012, Dorfsman was an Associate Professor and the Chair of the Language, Literature, and Culture Department at UNH. In December of that year, he intentionally lowered the evaluations that students had given a certain lecturer by erasing markings on the evaluations; if the highest ranking had been given, he entered a different and lower rating. In May 2013, UNH terminated Dorfsman’s employment for this conduct, which UNH determined constituted an act of “moral turpitude” within the meaning of the CBA. Dorfsman and the Union grieved his termination, and, pursuant to the CBA, the parties submitted to binding arbitration to resolve that grievance.
The acts were bad enough to justify termination
In rejecting UNH’s chosen penalty for moral turpitude, “the arbitrator substituted his views of the proper industrial relationships for the provisions of the contract.” Id. “The arbitrator may not rewrite the labor contract” in such a way. Id. Because the arbitrator erroneously applied a further just cause analysis to misconduct that was enumerated in the CBA as a proper basis for discharge, the arbitrator exceeded the scope of his authority.
Seacoastonline has some details.
In December of 2012, Dorfsman altered the student evaluations of his colleague, French lecturer Emilie Taplin, by lowering her student evaluation scores. Court documents state that Dorfsman changed the average scores for every class Taplin taught that semester, as well as her overall average awarded by students. The tampering made it appear that her performance fell below acceptable limits for her department, court documents state.
Taplin’s contract for re-employment for the 2013 calendar year was still under consideration and had not been renewed as of the time Dorfsman altered her student evaluations. In January, Dorfsman said he came forward with what he had done.
“Last December I had what I can only say was an emotional breakdown and I did a terrible thing,” Dorfsman said in an email sent to colleagues on April 19, 2013. “I lost my judgment and in a moment of great stress I tampered with a colleague’s student evaluations.”
The Professional Standards Committee of the Faculty Senate terminated Dorfsman in May 2013 due to “moral turpitude” after an investigation. An independent arbitrator, who overturned the termination of Dorfsman in November 2013, stated that his actions put Taplin’s visa to remain in the country in jeopardy. UNH filed an appeal of the arbitrator’s decision in Strafford County Superior Court in December 2013.
Wednesday, December 9, 2015
The Minnesota Supreme Court has held
This case requires us to determine whether the therapist-client privilege, which prohibits therapists from disclosing information or opinions in court that they acquired from their clients in a professional capacity, contains an exception for threatening statements. The district court concluded that the privilege does not apply to "statements of imminent threat of harm." The court of appeals reversed, holding that the statute codifying the privilege, Minn. Stat. § 595.02, subd. 1(g) (2014), does not contain an exception for threats. We agree with the court of appeals that the statute does not contain a "threats exception," but disagree that the privilege extends to third parties.
As a condition of his probation for a prior conviction, respondent Jerry Expose, Jr. was required to attend anger-management therapy sessions with N.M., a mental-health practitioner. During one session, Expose became upset and made a threatening statement about D.P., a caseworker assigned to an ongoing child-protection case involving Expose’s children. Expose said that D.P. had told him recently that his continued noncompliance with a requirement of his case plan would delay the commencement of unsupervised visits with his children. Expose then became visibly angry and said that
he felt that [D.P.] was a barrier to him getting his kids back and if court—his future court date did not go the right way that he would break her back, and then if he could not get to her he would call—he’d just have to make a couple phone calls and he can have someone else do it if he couldn’t get to her.
N.M. responded to the threatening statement by informing Expose that she was a mandated reporter, to which he replied, "I don’t give a f--k." N.M. then "proceeded to help him de-escalate and calm down," but Expose made additional statements about D.P., including that "[e]verybody has to go to their car at some point."
Based on her training, N.M. determined that Expose’s statements were not idle threats. Instead, she concluded that Expose had made specific threats of physical violence against an identifiable person that triggered her statutory duty to warn. See Minn. Stat. § 148.975 (2014). To discharge the duty, N.M. reported Expose’s statements to her supervisor, D.P., and the police.
N.M. testified at trial. The Court of Appeals reversed the ensuing conviction.
the therapist-client privilege statute lacks a "threats exception," either by implication from the duty-to-warn statute or under our authority to promulgate rules of evidence. The district court therefore abused its discretion when it allowed N.M. to testify about Expose’s allegedly threatening statements without his consent.
The court found that the error was not harmless and the Court of Appeals correctly reversed the conviction. (Mike Frisch)
Tuesday, December 1, 2015
The New York Appellate Division for the First Judicial Department affirmed the dismissal of a civil case.
Plaintiffs Ullum and French are owners of plaintiff Topaz Siberians Kennel, which breeds and exhibits purebred Siberian Huskies. On December 17, 2010, while attending a show-dog competition sanctioned by defendant the American Kennel Club (AKC), Ullum was accused of poisoning another competitor's dog.
A local Event Committee held a hearing, at which Ullum chose not to testify because criminal charges were pending against him.
The Committee found Ullum guilty of attempting to poison the dog and recommended that he be suspended. AKC denied Ullum's appeal of the suspension and reported the suspension on its website in March 2011. It also reported in its June 2011 newsletter that Ullum "was charged with feeding a dog medication that a veterinarian identified as having the potential to adversely affect the dog's performance and health." After Ullum was acquitted of the criminal charges arising from the incident, he asked AKC to reinstate him, but his request was denied in October 2012. A year later, plaintiffs commenced this action against AKC and its president, defendant Dennis Sprung.
The action was untimely and
Plaintiffs also failed to state a viable cause of action for breach of contract. Plaintiffs' claim is bound by the terms of the entry form, plaintiffs failed to plead that the form prohibited AKC from upholding the local Event Committee's recommendation to suspend Ullum, or that it was obligated to stay Ullum's suspension or grant his request for reinstatement. Moreover, courts are reluctant to interfere with the internal disciplinary affairs of a private voluntary association such as AKC (see Thornton v American Kennel Club, 182 AD2d 358, 358 [1st Dept 1992]), and a breach of contract cause of action is not the proper vehicle for a claim that such an association has failed to fulfill obligations imposed by its internal rules (see Matter of Caso v New York State Pub. High School Athletic Assn., 78 AD2d 41, 45 [4th Dept 1980]; see also James v National Arts Club, 99 AD3d 523, 525 [1st Dept 2012], lv dismissed 21 NY3d 886 ). In addition, there is no allegation that Sprung is a signatory on the entry form in his individual capacity or that he otherwise entered into an agreement with plaintiffs (see Tutora v Siegel, 40 AD3d 227, 228 [1st Dept 2007], lv denied 9 NY3d 808 ).
The Huffington Post covered the acquittal. (Mike Frisch)
Friday, October 2, 2015
A rather unusual medical discipline matter has led to a decision by the Maryland Court of Special Appeals.
During a disciplinary proceeding against appellee Mark Geier, M.D., the Maryland Board of Physicians publicly disclosed confidential medical information concerning Dr. Geier, his wife Anne, and their son David. David Geier was the subject of a separate disciplinary proceeding at the time of the disclosures.
The Geiers responded to the disclosures by accusing the Board, its 22 members, its administrative prosecutor, and two staff members of abuse of power, invasion of privacy, and acting maliciously and vindictively. They filed suit in the Circuit Court for Montgomery County.
In discovery, the Geiers attempted to uncover why the Board publicly disclosed their confidential medical information.
Dr. Geier is a physician who advocates the theory that certain vaccines cause autism in genetically susceptible children. Dr. Geier’s son, David Geier, is not a physician, but has assisted his father in his research concerning that theory. In a case concerning the admissibility of expert testimony, the Court of Appeals has held that “Dr. Geier’s genetic susceptibility theory is no more than hypothesis and conjecture, devoid of a generally accepted methodology to support it.” Blackwell v. Wyeth, 408 Md. 575, 618 (2009).
In protracted and contentious disciplinary proceedings, the Board has established that Dr. Geier committed numerous violations of the Medical Practice Act, HO §§ 14-401 et seq., in his treatment of autistic children...The Geiers contend that the Board has acted against them out of a desire to punish them and to discredit their research.
There were two appeals at issue. The court dismissed one and remanded the other .
Judge Friedman concurred
we find that the circuit court erred by not evaluating the Board of Physicians’ claim of deliberative process privilege by weighing the Board’s, and through it the public’s, need for the confidentiality of its internal processes as expressed in documents against the Geiers’ need to obtain these documents for use in this lawsuit. Maj. Slip Op. at 34-39. In note 23, we give the circuit court some guidance about how to conduct this weighing on remand, directing it to “assess the Board’s immunity claims, because the Geiers can establish no ‘need for disclosure,’ and nondisclosure cannot affect the ‘fair administration of justice,’ if an immunity insulates the defendants from liability or from suit.” Maj. Slip Op. at 39 n.23 (internal citations omitted). I wholeheartedly agree but would go one step further.
I would also direct that the circuit court consider whether every document sought by the Geiers and whose production is sought to be prevented by the Board through a claim of deliberative process privilege, is germane to the appropriate scope of discovery. The Geiers can have no need (and thus they can offer no counterweight to the Board’s, and through it, the public’s right to confidentiality) for documents that are not relevant, or that are no longer relevant, to their lawsuit. While my brethren prefer to leave that discussion for another day, in the circumstances and given the parties’ conduct of discovery so far, I would reach it today.
It is my view that the only documents relevant to this lawsuit are those that are reasonably calculated to lead to the discovery of admissible evidence related to: (1) the Board’s decision to issue the cease and desist order on January 25, 2012; (2) the decision to reveal the Geiers’ confidential medical information in that cease and desist order; and (3) the duration of time that the cease and desist order was publicly available. The Geiers are entitled to any non-privileged documents related to those three topics and if they find evidence of malice in them they are entitled to present that evidence to a jury. But that’s it.
Tuesday, September 15, 2015
The Connecticut Supreme Court held that a state agency's mental health records may not be disclosed in a matter involving treatment records of a notorious serial killer
The present case arises from the ruling of the named defendant, the Freedom of Information Commission (commission), that the defendant Ron Robillard was entitled to the disclosure of documents in the possession of the plaintiffs, the Department of Mental Health and Addiction Services...We conclude that the plaintiffs had standing to appeal the decision of the commission, and further agree with the plaintiffs that the documents at issue are exempt from disclosure under § 52-146e. Accordingly, we reverse the judgment of the trial court and remand the case to that court with direction to sustain the plaintiffs’ appeal.
The plaintiffs received a request under the act from Robillard for any records concerning a person named Amy Archer Gilligan for the period of time from 1924 through 1962. Gilligan was a patient at a facility now known as Connecticut Valley Hospital (hospital) following her conviction for second degree murder for the arsenic poisoning of a resident of her nursing home. Gilligan’s life is widely considered to be the basis for the play and movie entitled ‘‘Arsenic and Old Lace.’’ The plaintiffs provided Robillard with copies of those records pertaining to Gilligan that it deemed were disclosable under the act. Robillard was notified by the plaintiffs that other records, deemed exempt from disclosure under the act, were withheld.
In the present case, the crux of the disagreement between the commission and the plaintiffs is whether medical and dental records contained within Gilligan’s file are exempt from disclosure under § 52-146e. The commission asserts, and the trial court agreed, that these documents were not exempt from disclosure because they were not ‘‘oral and written communications and records thereof relating to diagnosis or treatment of a patient’s mental condition between the patient and a psychiatrist, or between a member of the patient’s family and a psychiatrist . . . .’’ General Statutes § 52- 146d (2). We agree that the medical and dental records are not communications directly between Gilligan and a psychiatrist or between a member of Gilligan’s family and a psychiatrist...
...our understanding of the broad veil of secrecy created by the psychiatrist-patient privilege also supports our conclusion that medical and dental records that are created by an inpatient mental health facility during the treatment of a patient are exempt from disclosure under § 52-146e. On the basis of the relevant statutory language, related statutory provisions and prior interpretations of the act, we conclude that the trial court improperly affirmed the commission’s determination that Gilligan’s medical and dental records were not exempt from disclosure under § 52-146e.
There is a concurring opinion
The majority’s resolution of this case yields the detritus of a needless collision between two competing statutory mandates. On the one hand, the legislature has adopted an evidentiary privilege to foster and protect the free flow of confidential information between a patient and her psychiatrist in a therapeutic setting. On the other hand, the legislature has endorsed a broad presumption that all records in the possession of a governmental agency are public records, unless delimited by an applicable, specific, and narrow exception. Rather than charting a path that balances and accommodates both of these statutory priorities, the majority construes one to vanquish the other and, in the process, deviates significantly from critical principles at the core of open government. In my opinion, it is unnecessary to do so.
The records at issue in this appeal and cross appeal concern Amy Archer Gilligan, a notorious serial killer who was perhaps America’s deadliest murderess. M. Phelps, The Devil’s Rooming House: The True Story of America’s Deadliest Female Serial Killer(2010). Historians and others have been focused on her case for decades. Her crimes have inspired several books, articles, plays, and even a major motion picture. Authors remain drawn to the facts and circumstances of her crimes to this day. The complainant in the present case, author Ron Robillard, seeks records from the plaintiff Department of Mental Health and Addiction Services (department) relating to Gilligan’s thirty-eight year involuntary commitment at the Connecticut State Hospital, now Connecticut Valley Hospital (hospital) following her conviction for murder in the second degree. Robillard seeks the information to shed light on how this state historically has handled its mentally ill convicts.
The concurrence has a lengthy discussion of the psychiatrist- patient privilege.
Connecticut History.org has details on the crimes. (Mike Frisch)
Saturday, September 12, 2015
The Nevada Supreme Court reversed and remanded a district court's denial of injunctive relief to a medical doctor sanctioned for allegedly showing up for surgery in a state of intoxication.
His blood alcohol tested at .06
Respondent Nevada State Board of Medical Examiners found that Dr. Tate had violated NAC 630.230(1)(c) by rendering services to a patient while under the influence of alcohol and in an impaired condition. The Board suspended Dr. Tate's license for six months, issued a public reprimand, ordered him to complete an alcohol diversion program and pay $35,564.44 in investigation and prosecution costs and a $5,000 fine, and to complete continuing medical education on the subject of alcohol.
NRS 630.356(1) grants physicians the right to judicial review of Nevada State Board of Medical Examiners final decisions, while NRS 630.356(2) simultaneously prohibits district courts from entering a stay of the Board's decision pending judicial review. As a matter of first impression, we are asked to determine whether this prohibition violates the Nevada Constitution's separation of powers doctrine. Because we conclude that it does, we reverse the district court's order denying appellant injunctive relief and remand this matter for proceedings consistent with this opinion...
To bar a district court's ability to grant injunctive relief while judicial review is pending effectively "render[s] the appeal a meaningless and merely ritualistic process," Smothers, 672 S.W.2d at 65, as the sanctions imposed will likely have been implemented or completed before the court could judicially review the case. Such sanctions may, among other things, irreparably penalize a physician through loss of patients, income, job opportunities, and/or damage the physician's professional reputation and standing if the court were to later overrule the Board's decision and the sanctions imposed.
Here, Dr. Tate has been sanctioned with, among other things, fees and fines, a public reprimand, and suspension of his license for a six month period. If the district court were prohibited from staying the sanctions imposed until it can determine whether the Board's decision was in error, Dr. Tate may be irreparably penalized thus negating the purpose of his right to judicial review. Moreover, under federal law, these sanctions must be reported to the National Practitioner Data Bank within 30 days of their implementation, 45 C.F.R. §§ 60.5 and 60.8, resulting in the Board's decision and sanctions against Dr. Tate being recorded in a national database before the district court can review the Board's decision. Thus, the statutory prohibition against stays would effectively "eradicate[ ] any practical reason for taking the appeal." Smothers, 672 S.W.2d at 65.
Furthermore, we are inclined to agree with Dr. Tate that public interest militates in favor of injunctive relief when the district court deems it necessary...
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)