Thursday, May 6, 2010
The web page of the Ohio Supreme Court reports:
(May 5, 2010) The Supreme Court of Ohio ruled today that a nurse employed in a hospital, who steals drugs in the course of her employment, does not occupy a “position of trust” and is not categorically ineligible for Intervention in Lieu of Conviction (ILC).
The Court’s 6-0 decision, authored by Justice Maureen O’Connor, affirmed a ruling by the 9th District Court of Appeals.
R.C. 2951.041 allows Ohio trial courts, at their discretion, to refer a first-time offender charged with a qualifying offense who meets certain requirements to a period of rehabilitation if the court has reason to believe that drug or alcohol usage was a factor leading to the offense. If the defendant successfully completes the intervention plan, the trial court dismisses the proceedings against the offender without a finding of guilt and may seal the records relating to the offense. Among other requirements, to be eligible for ILC, an offender must qualify for community control sanctions (rather than a prison sentence) under R.C. 2929.13(B)(2)(b). A separate statutory provision, R.C. 2929.13(B)(1) lists several findings that disqualify an offender from eligibility for sentencing under R.C. 2929.13(B)(2)(b) and, therefore, for placement in an ILC program. One of these findings, set forth in R.C. 2929.13(B)(1)(d), bars from eligibility an offender who “held a public office or position of trust and [whose] offense related to that office or position.”
In this case nurse Sally Massien was charged with taking drugs from the Akron hospital where she was employed. As a first-time offender, she requested ILC. The trial court granted Massien’s request over the objection of the Summit County prosecutor’s office. The prosecutor appealed, arguing that because Massien was entrusted with special access to drugs as a nurse, and had abused that trust by taking drugs illegally in the course of her employment, she violated a “position of trust,” and was therefore barred from participation in an ILC program. On review, the 9th District Court of Appeals affirmed the trial court’s judgment that Massien did not occupy a position of trust for purposes of the sentencing statute, and the trial court had not erred in finding her eligible for ILC.
The 9th District subsequently certified that its decision in this case was in conflict with State v. France, a 2006 decision in which the 10th District Court of Appeals held that a nurse who stole drugs in the course of her employment at a hospital had abused a position of trust and was ineligible for ILC. The Supreme Court agreed to review the case to resolve the conflict between appellate districts.
Writing for the Court in today’s decision, Justice O’Connor noted that a number of Ohio’s district courts have interpreted the phrase “position of trust,” as used in R.C. 2929.13(B)(1)(d), and have reached conflicting results. While some districts have construed that language narrowly to apply only to government officials and public servants, other courts have construed it more broadly to apply to virtually any public or private individual whose offense involved a breach of trust.
Justice O’Connor wrote: “By including the phrase ‘position of trust’ in R.C. 2929.13(B)(1)(d) without limitation, the General Assembly evidenced its intent not to limit its application to public officials. However, we do not believe that the legislature intended the phrase to apply to all individuals who breach any private expectation of trust.” After reviewing the specific statutory language at issue, and analyzing it in context with eight parallel provisions of R.C. 2929.13(B)(1) that each identify a specific aggravating circumstance that justifies a sentence of imprisonment rather than community control, she wrote: “Each sentencing factor crafted by the legislature applies to a narrow aggravating circumstance that may justify the imposition of a prison sentence rather than the preferred community control for fourth- and fifth-degree felonies. ... Given the narrow application of the sentencing factors identified in R.C. 2929.13(B)(1) and (B)(1)(d), ... we believe that the General Assembly intended a limited application of the phrase ‘position of trust’ in R.C. 2929.13(B)(1)(d). Limiting the application of the section to private individuals who occupy a special relationship of trust and confidence equivalent to a fiduciary relationship and whose offense relates to that fiduciary relationship prevents the disqualification of persons who are not clearly meant to be excluded from ILC.”
Applying this standard, the court considered whether Massien occupied a special relationship of trust and confidence equivalent to a fiduciary relationship as a result of her employment as a nurse. In analyzing the relationship of a nurse with a hospital employer, Justice O’Connor quoted earlier court decisions defining a fiduciary as “a person having a duty, created by his undertaking, to act primarily for the benefit of another in matters connected with his undertaking.” She wrote: “Nurses are persons of ‘superior knowledge and skill,’ who have a duty to their patients to employ the degree of care, skill, and diligence that a nurse of ordinary care should employ in like circumstances. ... However, the duty of care imposed by law on a nurse toward his or her patients does not create a fiduciary relationship between the nurse and his or her employer-hospital. Further, a nurse’s job duties are not sufficiently discretionary to transform the relationship with his or her employer-hospital into a fiduciary relatio
“A nurse occupies a necessary and important supportive role in caring for patients and administering medication. However, as is illustrated by the respective duties of nurses and physicians, discretion relating to the diagnosis and treatment of a patient is statutorily in the hands of the physician, not the nurse. A nurse employed by a hospital does not occupy a position of discretion and, therefore, does not occupy a fiduciary relationship. Because a nurse is not a fiduciary by virtue of his or her employment with a hospital, he or she does not occupy a ‘position of trust’ for the purpose of R.C. 2929.13(B)(1)(d). Therefore, a nurse who steals drugs from the hospital in which he or she is employed is not categorically ineligible for ILC by virtue of his or her employment.”
Justice O’Connor’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Terrence O’Donnell and Judith Ann Lanzinger.
Justice Robert R. Cupp concurred with the majority judgment, but entered a separate opinion stating that in his view the “position of trust” language relied upon by the state in this case applies only to public officials, public servants and those holding public positions of trust. He wrote: “R.C. 2929.13(B)(1)(d) addresses three situations. It is the first category that is at issue in this case: offenders who ‘held a public office or position of trust and the offense related to that office or position.’ The statute uses the phrase ‘a public office or position of trust,’ indicating that the ‘office’ and the ‘position of trust’ are both of a public nature. In this regard, the article ‘a’ operates as a grammatical signal that both ‘office’ and ‘position of trust’ are parallel terms modified by ‘public.’ ... I do not believe that positions of trust held by private individuals which positions are not in the nature of a public trust are included within the first category listed in R.C. 2929.13(B)(1)(d).”
Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.
The opinion is linked here. (Mike Frisch)
Saturday, April 24, 2010
The Idaho Supreme Court affirmed sanctions imposed by the State Board of Accountancy against an accountant who had engaged in a personal relationship with a client while jointly advising the client and her spouse in the preparation of a joint tax return. The relationship had started before an extension was obtained and the return filed. The ethical complaint was filed by the spouse. The board ordered that the accountant pay a fine and costs. The board also required the accountant to take four hours of ethics training.
The court found that the board had reasonably concluded that the conduct ran afoul of ethical rules governing conflicts of interest. However, the board was not entitled to attorneys fees for the prosecution of the charges of misconduct. (Mike Frisch)
Wednesday, April 7, 2010
The New Jersey Supreme Court has reversed a decision of the Appellate Division holding that discussions between a person later charged with sexual assault and a Pastor that he had known for over thirty years were not protected by the cleric-penitent privilege. Applying a standard of "objective reasonableness", the court concluded that the communications were privileged.
The defendant's wife had told the Pastor that the defendant had abused his two daughters. The wife and daughters were members of the Pastor's church; the defendant was not. The Pastor met the defendant and they took a walk to a public play area to talk. When the defendant tried to blame his wife, the Pastor said "if it was [i]n the days of the law of the bible...I'd kill you myself because I think what you've done is deserving of death." The defendant did not directly admit the allegations but sought the Pastor's help and to be baptized, which the Pastor declined.
The trial court declined to admit the evidence but the Appellate Division reversed. Here, the court concludes that "a reasonable penitent could have concluded that [the Pastor] was serving in a [spiritual adviser] capacity." By the Pastor's invoking biblical law and hearing a plea for help, the privilege came into being.
Justice Rivera-Soto dissented: "...the majority has adopted a rule that hermetically insulates the cleric-penitent privilege from its origins, eschews the privilege's clear tradition, and ignores the statutory mandate." (Mike Frisch)
Wednesday, March 10, 2010
Posted by Alan Childress
This is the time of year when I remind readers (and, I hope, Googlers of the phrase law school summer abroad programs in Greece or law study summer school,near Athens) that -- somewhat related to the subject of this blog -- Tulane Law School offers a course June 20-July 9, 2010 in "Comparative Legal Professions and Ethics" on the beautiful care-free and car-free island of Spetses. In Greece, on the Saronic Gulf of the Mediterranean Sea. We offer five other courses as well, including contract theory, comparative torts, intro to Greek, and control of product safety in the EU. We have two other summer schools on the large island of Rhodes (before and after, for instance if you want to combine two as many students do). Classes are in English and admit students from law schools all over. Just contact assistant director J. Sayas for more info, at ac 504 and number 865 - 5981 or email jsayas AT tulane.edu. She knows about Spetses and Rhodos. Here is a link to the resort hotel we stay at (pretty cheap, includes meals) on Spetses: enjoy the view. And links to my course info from past years. Your room looks out on the view left. There is no immediate deadline, but it is best to sign up in March to ensure the program continues.
Thursday, February 11, 2010
Posted, written, directed, produced by, and starring, Jeff Lipshaw
I hope you have the point. I have decided that the article I've been working on (February is the hardest month, isn't it?) has, sometime in the last several days, passed not only the point of minimal coherence, but is indeed ready to leave the womb, sink or swim, fend for itself. I am hoping it takes care of me in my old age. Seriously, folks (ta ta boom), The Venn Diagram of Business Lawyering Judgments: Toward a Theory of Practical Metadisciplinarity is up on SSRN (in the spirit of "tomorrow's research today, not completely complete, but getting there, subject to post-production), now that I've decided what to leave on the cutting room floor. It is the basis of the last part of my book-to-be (in utero), Lawyering and the Mystery of Judgment.
If you get the idea that metaphors have something to do with the point, you win the kewpie doll. What I've tried to do is exploit what is my niche - bridging the real world and the academy - and it is recursive in exactly the way I tend to think of the world: how do we make judgments that bridge or fall between disciplines? Those are interdisciplinary judgments, but is there a skill that focuses on those kinds of judgments, meaning that we are dealing with an even higher order concept, namely metadisciplinarity? Which academic department grants a Ph.D. in that? (The fact that TypePad has just put a dotted red line under metadisciplinarity makes me hopeful I've coined a term!) What I have tried to do is spice the theory with many real world examples, admittedly anecdotal, but also, I think, typical. I will look forward to comments, because I have tried to be provocative, especially with regard to the pitfalls of "thinking like a lawyer", and the education that takes us there.
The abstract follows the fold.
February 11, 2010 in Abstracts Highlights - Academic Articles on the Legal Profession, Comparative Professions, General Counsel, Law & Business, Law & Society, Lipshaw, Straddling the Fence, The Practice | Permalink | Comments (0) | TrackBack (0)
Wednesday, February 10, 2010
In a medical malpractice action, the plaintiff must establish the existence of a doctor-patient relationship with the defendant physician, which the Oklahoma Supreme Court held had not been established when the treating doctor consulted with and relied on a second (sued) doctor. The court concluded:
A medical malpractice action is one of negligence wherein the duty is born from a contractual relationship. In a medical malpractice action, the plaintiff must prove a physician-patient relationship in order to establish a duty owed by the defendant. A telephone conversation between a non-treating physician and the treating physician concerning the patient, even when the treating physician relies on the non-treating physician's opinion, without more, is insufficient to establish a physician-patient relationship. Based on the record before us, we conclude that Dr. Schlinke did not agree to or undertake to treat Crawford or Shelby and did not form a physician-patient relationship with the plaintiffs as a matter of law.
The court reversed the court of appeals and concluded that the district court had properly granted summary judgment in favor of the non-treating physician. (Mike Frisch)
Sunday, January 3, 2010
The Iowa Court of Appeals reversed and remanded an order of professional discipline imposed by the Iowa Board of Medicine, concluding that the defense of laches had been established. The alleged incident of sexual abuse of a minor patient occurred in 1973. The complaint was received in 1998. An initial investigation found that "nothing inappropriate" had happened. The doctor was not notified of the complaint until 2004. Charges were filed in April 2006. The board imposed a $10,000 fine, five years probation and ordered that the doctor see minor patients only with a chaperone. On review, the district court had found the delay was "not ideal" but nonetheless affirmed the board's discipline.
The court here found that the delay was both unreasonable and that the doctor was prejudiced as a result. He had destroyed his records and the records of the alleged victim's therapist also were no longer available. Further, the alleged victim's father had died and mother could not testify due to her health. The mother's deposition was admitted, which deprived the accused of the ability to cross-examine her.
The remand order directs that the charges be dismissed by the district court. (Mike Frisch)
Friday, December 11, 2009
Authority Arguers (Litigating Lawyers) Versus Authority Creators (Transactional Lawyers): It's Still All Outside-In
Posted by Jeff Lipshaw
Some time ago, I wrote an article, largely in reaction to an article Richard Posner had written on contract interpretation, suggesting that there was far less connection than commonly expected by lawyers between a “mutual intention of the parties” supposedly embodied in even a heavily negotiated contract and subsequent colorable disputes involving interpretation of that same contract (see The Bewitchment of Intelligence). Having immersed myself for the last several months in scholarship (such as it is) on consciousness, judgment, and wisdom, I now realize that Bewitchment merely took on one particular manifestation of the objective, rational model that is the teaching, scholarship, and practice of American law.
I am prepared to expand the thesis. I will defer exposition of my own articulation of the difference between arguments from authority and arguments from merit (in process) to Professor Geoffrey Samuel's (Kent, left) more sociological exposition of the same point: the reason it is hard to take law seriously as a “science” (and, I would add, the reason the explanatory so often blurs into the normative) is that law is, and has always has been, based on an “authority paradigm,” more akin to theology than to science. The authority paradigm is the key thing, because authority must come from somewhere: from the standpoint of mind, authority is "outside-in." That distinguishes it from wisdom and judgment, which, from the standpoint of mind, are "inside-out." (Pardon my Kantian tendencies here, but outside-in strikes me as legislating, or heteronomous, while inside-out strikes me as self-legislating, or autonomous.)
Let me bring this back to the practice of lawyering, rather than just the theory of law. We are in the midst of working through our curriculum on transactional skills, and the first building block is, invariably, “contract drafting.” I realize I am treading close to heresy here, and I don’t intend to suggest that contract drafting isn’t one of the transactional lawyer’s core skills. But it dawned on me (again) this morning, as I was reading an essay by Laura Dunham (University of St. Thomas, right) on business ethics in entrepreneurship, that even contract drafting (as a lawyering skill) fails to get at the critical difference between judgment and lawyering. Most of what lawyers think and do (at least classically) either in the litigation or the transactional setting constitutes a category error when it comes to the exercise of judgment (in the everyday and not judicial sense). As I argued in Objectivity and Subjectivity in Contract Law, the fundamental dividing line as between promise and contract doesn’t have to do with efficiency or morality; it has to do with objective versus subjective, or public versus private, or (perhaps?) inside-out versus outside-in.
The paradox of law in the litigation context is that both parties are praying to the same god for victory in the name of justice. The Europeans (like Luhmann or Derrida - at least in the latter's views on justice) expose an uncomfortable possibility: it is not an appeal to justice; it is an appeal to authority with the patina of justice. That’s what we teach first year lawyers: how to make an argument - the best ones being those that satisfy the Dworkinian standard of integrity: fit and justification (i.e., they give the best appearance of being not only just, but consistent with authority). Contract drafters aren’t authority arguers; they are authority creators (in the sense of the private law that is the law of contracts). There is no real connection between the contract and the later dispute (despite the arguments of Judge Posner, Professors Schwartz and Scott, and other rationalists), except in the sense that words that were written will come to constitute whatever “law” there is.
Judgment and wisdom, on the other hand, require that we step back from the authority paradigm (and perhaps also from the self-interest paradigm). That’s the quality that comes after first year doctrine, contract drafting, and deal skills. It means somehow teaching the inside-out rather than the outside-in. Now here’s the tough question: what are the academic and professional bona fides for teaching that advanced course?
December 11, 2009 in Abstracts Highlights - Academic Articles on the Legal Profession, Comparative Professions, Law & Society, Straddling the Fence, The Practice | Permalink | Comments (1) | TrackBack (0)
Wednesday, November 18, 2009
The North Dakota Supreme Court has held that allegations that a psychiatrist who testified as an expert witness violated ethical precepts went to the weight, rather than the admissibility, of the evidence. The testimony was offered in a proceeding that involved the possible release of a sexually dangerous individual. The court concluded:
The district court did not determine whether Dr. Coombs violated the American Psychological Association's Ethical Principles of Psychologists and Code of Conduct, and we will not decide this issue for the first instance on appeal. Whether Dr. Coombs violated the ethical rules of his profession regarding conflicts of interest has no bearing on the admissibility of his testimony. Rather, infirmity in a psychologist's testimony affects the weight given his opinion, but not its admissibility.
The contention was the the psychiatrist had a conflict of interest as a result of his role as both treating doctor and expert witness. (Mike Frisch)
Tuesday, November 10, 2009
Posted by Alan Childress
Sida Liu (Wisconsin-Madison [sociology]) and Ethan Michelson (Indiana-Bloomington [sociology and recently affiliated with the Maurer School of Law program in global legal professions, which also sports our coblogguist Bill Henderson]) have completed an exhaustive nine-year follow-up to Ethan's 2000 survey of the legal profession in China. Results of the newest study are linked here. Ethan reports, "Our preliminary findings clearly suggest that 'the more things change the more they stay the same.' ” The report is in English and also Mandarin, entitled 关于中国法律服务工作环境的问卷调查.
The Vermont Supreme Court rejected contentions of a medical doctor that his license to practice had been improperly suspended by the Medical Practice Board while charges of unprofessional conduct are adjudicated. The allegations:
On March 31, 2009, the State moved to summarily suspend [the doctor's] medical license based on a simultaneously-filed specification of charges containing fifty-five counts of alleged unprofessional conduct, a State investigator’s affidavit, and an exhibit consisting of [the doctor's] 2004 “letter of assurance” to the Board. Based on a review of the medical records of ten patients, pharmacy records, and several interviews, the State alleged, in summary, that [the doctor] had repeatedly abused his authority by prescribing excessive quantities of powerful narcotics for patients without noting and copying the prescriptions in patients’ charts, conducting adequate medical histories and examinations, documenting the physical symptoms and medical bases for the prescriptions, considering indications of drug dependency and adverse side effects from the large quantities of narcotics prescribed, or accounting for the risk of drug abuse and diversion, all in violation of acceptable standards of professional conduct.
In addition, the charges alleged that [the doctor] had altered patients’ charts, failed to produce medical records requested by the Board, made material misrepresentations to the Board, and violated numerous provisions of an earlier letter of assurance to the Board. The letter was the product of a State investigation, dating from 2000, into pharmacist reports concerning [his]prescriptions of large quantities of narcotics. The investigation remained open, and in 2004 resulted in a detailed letter of assurance from [him] agreeing to several conditions, including promises to consult regularly with a New Hampshire-based anesthesiologist concerning the use of narcotics to treat pain; to accept no new patients likely to require treatment for chronic pain; to prescribe no Schedule II drugs for periods longer than fourteen days; to scrupulously maintain patient charts, documenting their diagnosis, condition, and the rationale for prescribing controlled substances; to retain copies of all prescriptions for Schedule II drugs; to require all patients being treated for chronic pain to enter into written agreements governing their receipt and use of prescriptions for controlled substances; and to promptly comply with all Board requests for records.
The court found that the preponderance of evidence standard did not violate the doctor's rights. (Mike Frisch)
Saturday, November 7, 2009
Jayanth Krishnan at Indiana (Bloomington) is expanding his ouevre of comparative legal profession studies with his latest on SSRN, The Joint Law Venture: A Pilot Study (here). As with his other work, this one's an interesting (and, yes, fun) read. Congrats, Jay!
(Posted by Nancy Rapoport)
Tuesday, October 20, 2009
The Maryland Court of Appeals has held that a proffered expert witness in a medical malpractice case was properly prevented from testifying at trial "when the expert devoted annually more than 20 percent of his professional activities to activities that directly involved testimony in personal injury claims."
The proposed witnessed had been educated in France and had practiced interventional neuroradiology (the area of practice at issue) for 45 years prior to his retirement in 2001. He had performed the medical procedure over 30 times, although the procedure is now done with a stint that the witness had never used. He testified that he is retained in 3-4 cases a year and devotes approximately 50 hours a year to expert witnessing. His only income is his expert fees and his pension. He testified that he devotes over 500 hours to professional activities such as reading journals, attending conferences, observing procedures and the like.
The court interpreted the so-called Twenty Percent Rule (which derives from a Maryland statute) to conclude (contrary to the Court of Special Appeals) that the witness may not testify. Activities are considered to be "professional" when the function "contributes to or advances the profession to which the individual belongs or involves...active participation in that profession." Excluded are activities "undertaken for personal or leisurely reasons." Reading, attending and observing does not count.
The rule "allows a qualified doctor to continue to utilize his or her expertise, but prevents him or her from launching a second career as purely an expert witness. The primary professional activities (at least 80 percent) must still be in the medical profession that he or she is professing." (Mike Frisch)
Wednesday, October 7, 2009
New Institute on Law in Latin America and Related Civil Jurisdictions to Hold Conference in Madrid Nov. 11
Posted by Alan Childress
A prof of the law school of Monterrey Tech, Carlos Gabuardi (who is also a Tulane law grad with a PhD from us in comparative law), shown below with a hopefully wise Latina Justice, passes along this announcement of a relatively new Center and its second program to be held Nov. 11, 2009, in Spain. Congrats, Carlos, and much success as the Director. Here is an intro.
The Center for Legal Innovation, Development and Research for Latin America has been established thanks to the generous support of the Instituto Tecnológico y de Estudios Superiores de Monterrey (Monterrey Tech), through the Cátedra Eduardo A. Elizondo, and the Spanish law firm Garrigues to the purpose of having a forum for discussing those issues that may have legal relevance for the Latin American region.
2. Establishing a web-based forum based upon an Internet portal with State of the Art technology for the permanent discussion of the initiatives generated within the forum by the Group of the 100.
3. Having an annual meeting of the Group of the 100 of the Garrigues – Monterrey Tech Center for Innovation, Development and Research for Latin America.
Further info on the Center is linked here in a Word document: Download CENTER - 2009 doc. And on attending the program in Madrid, just ask Carlos. Contact info for Carlos Gabuardi is at this link, and his bio is here.
Tuesday, October 6, 2009
Posted by Alan Childress
Call for Participation -- Due Date: December 8, 2009
The 2010 Annual Meeting of Law and Society Association Thursday, May 27 through Sunday, May 30, at the Renaissance Chicago Hotel.
Theme: AFTER CRITIQUE: What is Left of the Law and Society Paradigm?
Born out of disillusionment with the failures of liberal legalism to deliver social justice or equality, law and society scholarship at the time aimed to expose those failures and challenge liberal legalism’s legitimating premises. Twenty years after the founding of LSA, during the decade of the 1980s, the critical impulse of law and society scholarship was itself put under the microscope by some who turned critique inward, calling out law and society scholars for embracing empty empiricism or for their complicity with legal and political elites. In this period, meta-debates raged over theoretical, methodological, and political questions.
More recently events in the academy and the world seem to have squelched our appetite for critique either of the legal order itself or of the premises and purposes of our own scholarship. In an era when the rule of law has come under sustained attack, can we go beyond celebrating it and allying ourselves with its projects? At a time when there are no dominant theoretical or methodological perspectives in the academy, should we turn away from epistemological questions and just get on with our work?
The theme of the 2010 LSA Meeting–After Critique–invites us to consider the law and society enterprise today and to think about its future direction. We want to reflect on the various ways that law and society scholarship has been and should be engaged with the threat of terrorism and governmental responses to it, national and global attacks on the rule of law, questions of sovereignty and sovereign prerogative, the contemporary situation of identity politics, and the collapse of the global economy and the crisis of neo-liberalism.
This year there is a new option: the Work in Progress Paper. For info on this and any other question, contact Judy Rose.
Friday, August 28, 2009
A tenured Spanish professor at Creighton University was the subject of a sexual harassment complaint filed by a junior colleague. The evidence consisted primarily of email exchanges between the two in Spanish and Catalan. The parties differed on the proper translation of the emails. The school's sexual harassment committee found merit to the complaint and placed the accused on probation with a counseling requirement.
The professor then sued the complainant for tortious interference with a business relationship. The Nebraska Supreme Court affirmed the dismissal of the lawsuit, finding that there was sufficient evidence that the complainant told the truth. There is no tort for truthful disclosures.
The emails are set forth in the court's decision, along with the court's view that the Spanish Department was a place where people did not work well together: "It is apparent from the record that the faculty in the Depatment did not get along with one another." (Mike Frisch)
Tuesday, August 25, 2009
The New York Appellate Division for the First Judicial Department held that the State Board for Professional Medical Conduct had sufficient evidence to issue a subpoena for a doctor's records of nine HIV patients. The court further concluded that steps to protect confidentiality were appropriate:
In recognition of the need for confidentiality in this matter, any disclosure order must provide for redactions of material that is not necessary for the conduct of the investigation and must otherwise comply with § 2785(6). At this preliminary stage, the redacted material would include the names and identifying information of the patients whose files are sought (their files can be identified by code), as well as the names and identifying information of other individuals whose names might appear in the file. We caution, however, that the redaction of the names at this stage of the investigation should not be construed to mean the names are to be permanently redacted. There may be a point in the future when the needs, or the results, of the investigation warrant disclosure of certain identities to the OPMC by court order. Respondent also proffers no reason why personal information such as sexual history should be disclosed.
Furthermore, notwithstanding the apparent anomaly in the statute and because the records now are being provided by court order in response to a motion to compel, we direct that each of the nine patients whose files are being sought shall be given the opportunity before the court to submit any objections to the release of certain information in his or her file, and to request appropriate redactions. In weighing such objections the court must be mindful to balance the patients' privacy concerns with the nature of the investigation itself, which involves serious allegations.
Saturday, August 22, 2009
Posted by Jeff Lipshaw
Paul Lippe, who has been an agent provocateur (or thought leader, as they say) on the subject of legal education, has a follow up to his original Am Law Daily commentary to which our Bill Henderson linked a while back. Follow the link and read it for yourself, but I'm not sure if the comments are available if you aren't a member of Paul's Legal OnRamp, so here's mine if you want to hit the "back" button on the browser after you read his column:
* * *
Like Ray [Campbell, visiting professor at Penn State Law School, who also commented - UPDATE: see his original comments below the fold], I'm a former Big Law partner, and I was the VP & GC of a Fortune 850, NYSE company. I'm less likely than Ray (based on his comments) to try to argue that today's paradigm of legal scholarship has anything more than a passing relevance to the in-the-trenches practice of law. But that's not really the point. Practitioners have to understand that we started down a particular path over a hundred years ago when C.C. Langdell came up with the idea that law could be derived inductively from the reading of cases, akin to the scientific method in other disciplines. (There's a social science term called "path dependency" and it has to do with how hard it is to get off a particular path once you are on it; as an example, if you take a job at the beginning of your career with Weil,Gotshal, you've created different path dependencies for future choices than if you take a job with Sooem & Servem in Elko, Nevada.) Law became a subject for instruction in research universities, not merely for the training of lawyers, and with that developed a community of legal scholars, developing, indeed evolving, their own standards for what constituted advancement in knowledge. For a long time, that had to do mainly with legal doctrine, and academic energy devoted itself to the great treatises, and the great doctrinal advances like the UCC.
The problem with comparing law to medicine (as I did, and to which Paul links) is that while the practice of medicine is both art and science, the science is still hard science, and, moreover, the linkage between cutting edge theoretical research and its practical application is far more intuitive. For example, my son has his name on a paper that deals with work on the very subtle science of diabetic neuropathy in cells - how at a molecular and cellular level does the glucose cause the problems it does? Even if the research isn't directed at a cure, we can understand it in the web of scientific research that leads to useful advances and human flourishing.
That's far harder to do in law, and one only needs to scan the titles of the last 2,000 or so papers uploaded onto SSRN to confirm the hypothesis. Moreover, there's a lot of work produced and in spotty quality because of two structural features of academic law as it has moved down its particular path: (a) the sheer number of law professors compared to other disciplines, because the training of professionals subsidizes the theoretical pursuits; and (b) the plethora of student-edited (and non-peer-reviewed) journals. In short, law as academic discipline is still finding its place in the world. Given a hundred years of path dependence, however, "solving" the problem of legal education isn't going to occur without some acknowledgment of the academic paradigm. For example, we could certainly, as a logical possibility, move to a world in which most lawyers are trained in vocational institutes, and make theoretical "law and..." part of more traditional humanities and social science Ph.D. programs. But I suspect that most lawyers like their ties to the status of research universities that spawned most of them.
Tuesday, August 11, 2009
The Massachusetts Supreme Judicial Court remanded a case involving possible misconduct by a physician. The issue related to access to the physician's credentialing file, which the Board of Registration in Medicine had sought but the trial court had held was protected by privilege.
The relevant facts:
Hallmark Health Corporation is the parent of Hallmark System, Inc., a licensed hospital facility whose "campuses" include the former Melrose-Wakefield and Lawrence Memorial Hospitals (collectively, Hallmark). The information sought from Hallmark by the board is located in Dr. Doe's credentialing files, which Hallmark maintains pursuant to the requirement that all hospitals have a "qualified patient care assessment program" (QPCAP) to address, among other things, the credentialing of medical staff members. Under Hallmark's medical staff credentialing policy, physicians seeking clinical privileges at Hallmark must apply for an initial appointment and must apply for reappointment at periodic intervals no greater than two years thereafter. An applicant for an initial appointment must provide, among other things, information about prior education, training, experience, and licensure, as well as potentially negative information, including whether the applicant has ever been a criminal defendant, lost a professional license, had clinical privileges withdrawn, or been involved in any professional misconduct proceedings. For reappointment, an applicant must provide, among other things, information about compliance with Hallmark's rules, continuing qualifications, pending malpractice challenges or challenges to licensure, and any limitation, reduction, or loss of clinical privileges. In addition to information supplied by the physician, any incident reports or complaints involving the particular physician become part of the physician's credentialing file. (citations omitted)
The court held:
We remand the case to the Superior Court for an individualized consideration whether each of the documents listed on Hallmark's privilege log is protected by either § 204 (a ) or § 205 (b ), bearing in mind that the burden is on Hallmark to establish that each document is privileged.
The case is Board of Registration in Medicine v. Hallmark Health Corporation, decided today. (Mike Frisch)
Sunday, June 21, 2009
The full Massachusetts Supreme Judicial Court rejected as premature a nurse's objections in a reciprocal discipline licensing proceeding. The opinion:
The board has moved to dismiss the appeal on the ground that the single justice's decision was interlocutory. It is well established that, in an action seeking judicial review of an administrative agency's decision, no appeal lies from a decision of the trial court remanding the matter to the agency for further proceedings where "the administrative tribunal has choices to make about the result, in nuance and fundamental conclusion." "An order of remand ... is ... not final, particularly when the operative verb in the order has been 'reconsider.' " Lankheim argues that the order of remand is final and appealable because the board's discretion is limited in that it may no longer consider one of the aggravating factors on which it relied. However, Lankheim misstates the principle on which she relies: a judicial order remanding a matter to an administrative agency may be deemed an appealable judgment when "the administrative body [is] given no discretion, being ordered to decide the matter in controversy in a manner specified by the court." The single justice's order of remand did not direct the board to impose a particular sanction on Lankheim. The order merely removed one factor from the board's consideration and left the board with ample discretion to evaluate the remaining facts and circumstances in the case. Accordingly, Lankheim may not appeal from the single justice's order remanding the matter to the board for reconsideration of the appropriate sanction, as it was not a final judgment. (citations omitted)
The case is Lankheim v. Board of Registration in Nursing, decided June 19. (Mike Frisch)