Legal Profession Blog

Sanction For Sex With Patient

The College of Doctors of Quebec Disciplinary Board has imposed a three year disqualification of a psychiatrist 

 In August 2021, the respondent, a psychiatrist practicing his professional activities at the Roberval Hospital, performed a troubleshooting contract in Kenora, Ontario. He then sees a patient in consultation. She is known to have a history of major depressive disorder. Shortly after, the Respondent received an invitation on the Instagram platform and realized that it was the same patient. That same evening, they have protected penetrative sex. The patient discloses this relationship to her therapist and this leads to an investigation by the College of Physicians and Surgeons of Ontario (CPSO). At the same time, in March 2022, the Respondent himself reported his sexual misconduct to the Collège des médecins du Québec (Count 1).

Then, in June 2022, the respondent was involved in a second incident concerning another patient, followed at the Baie-Comeau psychiatric outpatient clinic. She denounces the fact that the Respondent would have opened up to her about his frequentation with women, and would have mentioned that if he had met her in a bar, he would have hit on her. She adds that the Respondent called her back the same evening. The Respondent presents the facts differently. He intends to have noticed a transference during the meeting and wanted to explain the concept of the positive transference by giving the example that if he met her in a bar, she would not speak to him. However, he acknowledges having exposed this patient to aspects of his personal life and specifies that he himself is the subject of psychological follow-up. He acknowledges the inappropriateness of this sharing of information at such a stage of the therapeutic relationship (Count 2). The Respondent admits having called this patient back the same evening to ensure that the consultation went well. Bearing in mind his self-denunciation of the previous March, he said he was anxious about it. He then asks her for her agreement to call her back in the presence of a nurse. The Respondent acknowledges that, with hindsight, this approach is clumsy.

 

 The Respondent enters a guilty plea to each of the two counts of the disciplinary complaint.

 

In addition to the disqualification the board 

 IMPOSES on the Respondent a permanent limitation of his right to engage in professional activities, as follows:

Be accompanied at all times by a female health professional, member of a professional order, during the assessment, follow-up or care of a female person, and this, regardless of the pathology presented by the latter.

(Mike Frisch)

Bad Medicine

The New York Appellate Division for the Third Judicial Department confirmed a determination to revoke a medical license

Petitioner, a physician board-certified in family practice, was licensed to practice medicine in New York in 2009. She subsequently became involved in a personal development organization known as NXIVM and was invited to join a secret society operating under the umbrella of NXIVM known as Dominus Obsequious Soroium (hereinafter DOS). Membership in DOS involved a lifetime commitment to a "master/slave relationship" between a "mentor" and a new member, wherein an enrollee would give a "vow of obedience" – backed by damaging collateral1 – and undergo an initiation ceremony that involved receiving a specific branding in the pelvic region that included the NVIXM founder's initials. Over the course of petitioner's involvement with DOS, she performed the video-recorded ceremonial branding of 17 women with an electrocautery device, most of whom were nude and had to be held down by other members or enrollees.

In 2020, following the investigation into a complaint filed by a former DOS member (hereinafter the complainant) who had been branded by petitioner, the Bureau of Professional Medical Conduct charged petitioner with committing 47 specifications of professional misconduct. The charges related primarily to petitioner's actions of branding women during the DOS initiation ceremonies, but certain charges were also related to petitioner's attendance at a NXIVM corporate retreat and her failure to report the outbreak of an illness thereat. Petitioner narrowly challenged the charges on the ground that respondent did not have jurisdiction to bring such charges against her because she was not engaged in the practice of medicine while performing the branding and that her duty to report an outbreak did not extend to her attendance at a corporate retreat.

Following an extensive hearing, a Hearing Committee of respondent (hereinafter the Committee) found that petitioner was engaged in the practice of medicine, sustained all 47 charges and revoked petitioner's license to practice medicine. Petitioner then commenced this CPLR article 78 proceeding seeking to annul the Committee's determination.

Petitioner did not seek review by respondent's Administrative Review Board; therefore, our scope of review is limited to whether the Committee's decision is supported by substantial evidence.

The court

Here, we find that substantial evidence supports the Committee's determination to sustain the specifications of professional misconduct related to the ritual branding of members of DOS. The record established that petitioner acknowledged that she relied on her medical background for "life" and that she could not "separate [herself] from [her] medical experience" or from her "education as a physician." Her status as a physician was well-known within the NXIVM community. Resultantly, she was approached by higherranking DOS members to perform the ceremonial brandings and, although several nonphysician members were considered to perform the branding, petitioner was ultimately chosen. Several of the DOS members who were branded, including the complainant, provided testimony to the effect that they were relieved or comforted knowing that a physician would be performing the branding.

And

Similarly, we also find that substantial evidence supports the Committee's determination to sustain the specifications of professional misconduct related to petitioner's failure to report the outbreak at a week-long NXIVM corporate retreat.

(Mike Frisch)

Deceptive Hair Restoration Ads Draw Sanction

The Massachusetts Supreme Judicial Court affirmed sanctions imposed on a doctor for false advertising

"First, do no harm." While apocryphal, this storied quotation attributed to Hippocrates, the father of modern medicine, embodies a higher standard to which we often hold our physicians. See Travers, Primum Non Nocere: Origin of a Principle, 71 S.D. J. Med. 64, 65 (Feb. 2018), quoting Hippocrates, 1 Epidemics in Adams, The Genuine Works of Hippocrates (1849) ("to do good or to do no harm"). This case implicates that higher standard; it concerns the question whether due process requires that the Board of Registration in Medicine (board) find the common-law elements of fraud, including, inter alia, the elements of intent and reliance, before it may suspend a physician's license to practice medicine on  the basis that the physician violated 243 Code Mass. Regs. § 2.07(11)(a)(1) (2012), prohibiting "[a]dvertising that is false, deceptive, or misleading," and 243 Code Mass. Regs. § 1.03(5)(a)(10) (2012), prohibiting "engaging in conduct which has the capacity to deceive or defraud." Because the board's regulations, which by their plain terms do not require proof of the common-law elements of fraud, are rationally related to the Commonwealth's legitimate interest in protecting public confidence in the integrity of the medical profession and thus have a rational tendency to promote the health and safety of the public, we conclude that the regulations do not offend due process. Further concluding that the board's findings that the petitioner physician violated these regulations were supported by substantial evidence and that neither the findings nor the sanction imposed were arbitrary or capricious, we affirm the board's decision.

Petitioner

The petitioner, Dr. Ryan J. Welter, was licensed to practice medicine in Massachusetts in 2000 and has a certification in family medicine from the American Board of Family Medicine. He is the founder and manager of Tristan Medical Enterprises, P.C., which does business as New England Center for Hair Restoration (New England Hair). In 2011, Welter received an employment inquiry from Clark Tan, who attended medical school in the Philippines but who was not licensed to practice in the United States. Welter does not dispute that he knew Tan was not licensed to practice in the United States. Welter consulted with the Massachusetts Medical Society (MMS), however, and concluded that MMS regulations permitted him to delegate work to Tan as a non-licensee. Welter hired Tan as a nonprofessional assistant, and Tan worked for New England Hair between January 2015 and November 1, 2017.

At issue was the holding out of Tan as a licensed doctor

In 2016, upon learning that Tan was not a licensed physician, two of New England Hair's patients -- each of whom was a physician -- complained to the board.

The court

we conclude that the challenged regulations are unambiguous -- they do not require any showing as to the common-law elements of fraud, namely intent, knowledge, materiality, or reliance. Instead, they require only an objective assessment whether the advertisement is "deceptive" or "misleading," 243 Code Mass. Regs. § 2.07(11)(a)(1), and whether the conduct at issue has the "capacity to deceive," 243 Code Mass. Regs. § 1.03(5)(a)(10).

The violation

A reasonable prospective patient could reasonably read the website and believe that New England Hair employed multiple doctors, that Tan was licensed to practice in the United States, and that Welter was board certified in hair
restoration. And a reasonable prospective patient could further be misled as to Tan's licensing status by the consent forms, the business cards, and the practice of calling Tan a doctor. Indeed, the two complaining patients, who themselves were physicians, were misled precisely in this manner.

The court cited lawyer advertising decisions in support of the result. (Mike Frisch)

Feet First

The full Massachusetts Supreme Judicial Court affirmed a single justice's order that had upheld the revocation of a license to practice podiatry due to false statements on a licensure application.

As to admissions elsewhere

 In this section, Franchini listed three licenses, issued by the States of Rhode Island, Connecticut, and New York, respectively. The board found that Franchini's response was incomplete, misleading, and knowingly made, as Franchini had also been licensed in Vermont, Maine, and the District of Columbia.

Disclosure of prior sanctions

The board concluded that this statement was false because Franchini's privileges to practice podiatry were summarily suspended by the United States Department of Veteran's Affairs, VA Maine Healthcare System by correspondence dated April 28, 2010, due to concerns "raised to suggest that aspects of [Franchini's] clinical practice do not meet the accepted standards of practice and potentially constitute an imminent threat to patient welfare." The board further concluded that Franchini knew the statement was false when he completed the application.

There were also issues concerning disclosure of civil actions

Franchini's license to practice podiatry in Massachusetts was issued in reliance on the false or incomplete and misleading answers provided by him. Based on all these findings, the board revoked his license.

Here

Franchini's repetition of those arguments here does not satisfy his burden to demonstrate that the board's decision was arbitrary and capricious, unsupported by substantial evidence, or that it suffered from another enumerated defect under G. L. c. 30A, § 14 (7). See Knight, supra at 1022. Accordingly, we affirm the judgment of the single justice.

(Mike Frisch)

The Price Plaintiffs Pay

The United States District Court for the District of Columbia (Judge Cooper) denied a stay pending appeal to a medical doctor suing the US for revocation of her clinical privileges and removal 

Dr. Doe seeks a stay to prevent the VA from reporting her loss of privileges and termination in the National Practitioner Database (“NPDB”). The NPDB is a web-based repository of reports containing information on adverse actions related to health care practitioners, providers, and suppliers. About Us, National Practitioner Data Bank (https://www.npdb.hrsa.gov/topNavigation/aboutUs.jsp). The reports are confidential and accessible to health care entities and medical licensing boards but are not available to the general public. Id. The stated mission of the NPDB is to “improve health care quality, protect the public, and reduce health care fraud and abuse in the U.S.” Id.

The onus for reporting to the NPDB stems from federal regulations. The VA is required to report the revocation of Dr. Doe’s privileges and her termination to the NPDB 38 C.F.R. § 46.4 (requiring the VA to file an “adverse action report” with the NPDB for actions that adversely affect clinical privileges); 45 C.F.R. § 60.5 (requiring reporting to the NPDB “within 30 days following the action to be reported”). The Court’s summary judgment ruling passed no judgment on whether the VA must report Doe’s adverse disciplinary record to the relevant oversight bodies.

The US sought to have her proceed under her name rather than as Jane Doe

While the Court declines to rule on this issue, it offers the following observations. Each year, scores of federal employees like Dr. Doe challenge agency personnel actions before courts across the country. When they do so, the public record reveals what actions were taken and the agency’s grounds for them. Those grounds include findings of unprofessionalism, incompetence, misconduct, and worse. The disclosure of that information – which is only a Google search away from anyone interested in finding it – is no doubt harmful in some respects to each plaintiff’s professional reputation and future job prospects. But transparency is the norm in judicial proceedings. So it is a price plaintiffs pay for their day in court. These plaintiffs run the occupational gamut, from secretaries and scientists to librarians and lawyers. The Court sees no reason to treat Doe differently just because she is a doctor.

(Mike Frisch)

Unclear Lines And Criminal Indictments

The New Jersey Appellate Division affirmed the dismissal without prejudice of indictments alleging, among other things,  unauthorized medical practice

In these three appeals, consolidated for our opinion, the State contends the trial court wrongly dismissed (without prejudice) a six-count indictment against Lisa Ferraro, M.D., Yvonne Jeannotte-Rodriguez, and Marta Galvan. During the relevant time period, Rodriguez served as a medical assistant in Dr. Ferraro's medical office, and Galvan was the office manager and worked on billing. The State alleged Rodriguez practiced medicine without a license; Dr. Ferraro and Rodriguez fraudulently billed for Rodriguez's services; and Galvan joined Rodriguez and Dr. Ferraro in conspiring to commit this fraud. The State asserts it presented sufficient evidence to survive dismissal and urges us to reinstate the indictment in full. Dr. Ferraro and Galvan cross-appeal, contending the court should have dismissed the indictment with prejudice.

We affirm. The trial court did not abuse its discretion in dismissing the indictment without prejudice. Most significantly, the prosecutor failed to adequately and accurately instruct the grand jury about what a medical assistant may do without encroaching upon the licensed practice of medicine. And, because the law does not clearly draw a line around a medical assistant's allowable activities, prosecuting someone for crossing the line may violate the right to fair warning.

The prosecutor also improperly referred to additional evidence that he did not present to the grand jury, and presented a questionable analysis of the amount of money involved in the charged offenses. And the indictment lacked sufficient detail to give defendants a fair opportunity to mount a defense.

(Mike Frisch)

Riding Crops And Psychiatric Treatment

The Tennessee Court of Appeals affirmed sanctions imposed on a psychiatrist

As set out in the notice, the specific allegations against Dr. Augustus were that she: (1) “struck [a patient, P.T.,] on the buttocks with a riding crop” during a patient’s session in July 2015; (2) “has struck other mental health patients with a riding crop;” and (3) “has had both a riding crop and a whip displayed in her office.”

Response

In her response to the Notice of Charges, Dr. Augustus did not deny the use of a riding crop in her practice but averred that she “did not strike the patient with the intent to cause harm or pain.” Rather, Dr. Augustus explained that the “riding crop was used in a humorous exchange intended to foster the physician/patient relationship.”

Testimony at the  contested hearing before the Board of Medical Examiners

Patient, P.T., whose complaint that Dr. Augustus struck her with a riding crop during her July 2015 visit gave rise to the investigation, testified that she had been Dr. Augustus’ patient for five months. Although P.T. acknowledge that she had noticed the riding crop and whip in Dr. Augustus’ office, she explained that it “never dawned on [her] that . . . it would be used [to strike patients].” P.T. further testified that during the July 2015 visit, she was very depressed, “very withdrawn,” and that “[e]very time [she] spoke, it was through tears; that she was feeling very vulnerable and had no purpose for living.” During the therapy session, P.T. informed Dr. Augustus that she had not followed Dr. Augustus’ previous instruction to journal. P.T. testified that because she failed to follow Dr. Augustus’ instruction, Dr. Augustus struck her on the buttocks with the riding crop as she was exiting the office. P.T. stated that, “I wouldn’t say that it was dramatic force, but it was enough force that I kn[e]w she hit me and that it stung, and it left a bruise.”

Response

During her testimony, Dr. Augustus admitted that she used the riding crop to “tap” and “make contact with [P.T.’s] buttocks.” She testified that she had also used the crop  on other patients as part of a humorous exchange when those patients failed to follow her recommendations and instructions...

However, Dr. Augustus denied using enough force with the crop to hurt the patient and further opined that none of her patients thought her use of the crop was anything other than humorous.

Expert testimony

Dr. Augustus called William C. Wolters, J.D., M.D., as her expert in psychiatry. Dr. Wolters opined that Dr. Augustus’ use of the riding crop may have crossed a boundary, but it was not a deviation from the standard of care. He opined that, “Humor is important, and I think, I can understand you don’t want someone to leave on kind of a down note. You want to kind of put things in perspective and bring some humor in and some . . . encouragement.”

The board found violations

The Board suspended Dr. Augustus’ medical license for at least 60 days and ordered her to submit to an assessment of her ability to safely practice psychiatry and to attend a two-day course in medical ethics, boundaries, and professionalism. The Board also placed Dr. Augustus on probation and imposed a penalty of $10,000 plus the costs of the administrative proceedings, up to maximum of $50,000.

Her request for reconsideration was denied. The appeal followed.

Despite Dr. Augustus’ decision to defend her actions by arguing that her intent was never to hurt or injure her patients, the gravamen of the Notice of Charges is not whether Dr. Augustus inflicted (or intended to inflict) physical harm or pain on her patients, nor are the charges based on the amount of force Dr. Augustus used in wielding the riding crop. Rather, the gravamen of the charges is Dr. Augustus’ use of a riding crop in any manner during the patients’ therapy sessions.

The court concluded that notice was adequate and substantial evidence supported the findings

Here, the facts and the legal conclusion drawn by the Board are supported by material evidence in the record; as such, the sanctions imposed on Dr. Augustus are not without justification in fact, nor unwarranted in law.

The trial courts order is affirmed, and the case is remanded for such further proceedings as may be necessary and are consistent with this opinion.

The Tennessean reported on the allegations. (Mike Frisch)

Court Reporter's Facebook Posts Draw Reprimand

An unusual order of the Kansas Supreme Court reprimands a court reporter who had transcribed a high-profile murder trial.

The defendant was convicted of killing her ex-husband and his girlfriend and while on appeal

An article in the Topeka Capital Journal on October 29, 2017, discussed the murder, conviction, and appeal, and included alleged Facebook quotes from Respondent. Specifically, the article attributed to Respondent the following comments about the Chandler trial:

'Were you there listening to it? I was,' said April Shepard, a court reporter who worked the Chandler trial. 'I will not say that I agree with everything Jacqie Spradling said or did, but it didn't change anything. Dana Chandler is not innocent. She may get a new trial, but the outcome will be the same. No one else would've done this but Dana Chandler.'

Copies of screen shots from Facebook that are attributed to Respondent include the following (some dates may not be accurate):

'a. Oh, stop. Dana Chandler is not innocent. She may get a new trial but the outcome will be the same. (April 7, 2016)

'b. No one else would've done this but Dana Chandler. (April 18, 2016)

Well, I can tell you that it won't be that judge because JUDGE PARRISH is a fair judge and I know her well. Just because he says this doesn't make it so. Were you there listening to it, I was. I will not say that I agreed with everything Jackie Spradling said or did, but it didn't change anything. (April 19, 2016)

'c. I don't believe Jackie [S]pradling lied. (August 2016)

'd. Look, I was there, I was the court reporter for that trial and, yes, Jackie pushed a little too far at times, but there was nothing more damning than those telephone jail calls between Dana Chandler and her sister Shirley and that's what changed it for everyone if they thought she didn't do it before. The fact of the matter is she's the only one that could have done it and would have done it. She had a major axe to grind with Karen Harkness and Mike Sisco for she stalked them repeatedly. (January 2017)

'e. It's not that wrong if you think about how many cases there are. They're more right than they are wrong. (June 25, 2017)

'f. Linda Coe, I'm confident they got the right perpetrator in this case. Look, I was there, I reported that whole case. I saw firsthand this case. I do agree, though, a lot of times they have prosecuted the wrong person and I believe those people should be exonerated however it happens. This case however is very different. (July 12, 2017)'

Respondent acknowledges that the above posts were her posts. She had forgotten about a couple of the posts, but has stated she will 'take ownership of them.'

The conviction was overturned on appeal.

The court

The respondent does not contest the findings by the hearing panel. Indeed, she stipulated to the facts and admits she violated Board Rule No. 9.F.9. (2019 Kan. S. Ct. R. 419) (failure to maintain impartiality). Furthermore, the findings of the hearing panel establish by clear and convincing evidence the alleged misconduct. The evidence also supports the panel's conclusions. We adopt the panel's findings and conclusions. We, accordingly, find respondent engaged in prohibited conduct by failing to maintain impartiality toward each participant in a trial she reported for in district court.

The only remaining issue before us is the appropriate discipline for the respondent's violation. The Board may recommend the following discipline to the Kansas Supreme Court: (1) public reprimand; (2) imposition of a period of probation with special conditions which may include additional professional education or re-education;
(3) suspension of the certificate; or (4) revocation of the certificate. Board Rule No. 9.E.4. (2019 Kan. S. Ct. R. 418).

Sanction

In support of her requested discipline, respondent's arguments are summarized as follows: (1) the rule prohibiting partiality lacks a clear definition; (2) she was not partial toward either side during the actual reporting of the trial; (3) the trial and jury conviction occurred several years before she made the comments and she had moved to another  county so she knew she would never be involved with the case again; (4) she had been "baited" into making the comments; (5) she did not make these comments to any public news reporter or outlet; (6) she has cooperated with the investigation, apologized, and promised not to make the same mistake; and (7) this is her first violation and she has remained in good standing during her more than 25 years of reporting...

Respondent's conduct was egregious, and respondent agrees her comments, which were made over a year's period of time, damaged her profession. However, once a formal complaint was filed against her, she cooperated with the investigation, agreed she made inappropriate comments, apologized, and stated she will not make the same mistake again. These are mitigating factors that we consider in determining the appropriate  discipline.

Having considered all matters raised, we find the Board's recommendation for a public reprimand to be persuasive.

Oral argument video linked here. (Mike Frisch)

The Pedal Extremity

A medical malpractice claim must be tried according to a recent decision of the New York Appellate Division for the First Judicial Department

In this medical malpractice action, plaintiff testified that after he saw an advertisement by defendant in a magazine about alternative medicine he sought treatment from defendant for Lyme disease. Defendant is a licensed podiatrist who the record shows told plaintiff that he could treat a host of incurable non-podiatric conditions. Defendant wrote in plaintiff's medical records that plaintiff suffered from varicose veins, and recommended that plaintiff take part in his ozone therapy study. It is undisputed that this treatment is not FDA-approved. Following the third session of this therapy, defendant noted in the medical record, plaintiff fell asleep, and on waking became confused and disoriented. He was taken and admitted to a hospital, where he was examined and found, inter alia, to have left-sided weakness and paralysis. Although there was an initial concern that plaintiff had suffered a stroke, and he was evaluated for a possible stroke and seizure, this was not a conclusive diagnosis. Nevertheless, plaintiff was kept in the hospital from October 26, 2013, the date of his admission, until he was discharged on November 8, 2013, which would seem to suggest that plaintiff was suffering a valid, even if undiagnosed, medical condition. Plaintiff claims that after he was released from the hospital he was confined to bed for three months, and that inflammation caused by the ozone therapy damaged veins in his forearms, and that inflammation of his brain and nerves resulted in paralysis of his limbs and face, memory loss, lack of concentration, chronic fatigue, personality changes, and other physical and neurological injuries that some evidence shows may be associated with ozone therapy.

Defendant has a history of being accused of using his putative study of ozone therapy's ostensible benefits in treating podiatric conditions as a cover for his treatment of non-podiatric conditions (see e.g. Altman v Robins, Sup Ct, NY County, Mar. 9, 2009, Lobis, J., index No. 103794/08). In the present case, the record reflects that the putative treatment was not for a podiatric condition, and thus that defendant was practicing medicine outside of the medical confines of podiatry (see Education Law § 7001[2]), which raises an issue of professional misconduct (see Education Law § 6509[2]).

Defendant failed to make the necessary prima facie showing of entitlement to judgment as a matter of law, requiring reversal and denial of his motion for summary judgment regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Bongiovanni v Cavagnuolo, 138 AD3d 12 [2d Dept 2016]). Defendant failed to establish the standard of care with which he should have complied for the treatment of Lyme disease, as to which he submitted no expert evidence (see Ocasio-Gary v Lawrence Hosp., 69 AD3d 403 [1st Dept 2010]). Thus, on this record, it cannot be determined whether defendant deviated from accepted standards of practice. A trial is required on the issue whether defendant's treatment proximately caused the physical and neurological manifestations of injury alleged by plaintiff.

(Mike Frisch)

Suspension Of Doctor Upheld; Court Considers Interplay Between Medical Board And Hearing Examiner Findings

Professional discipline imposed on a medical doctor was upheld by the West Virginia Supreme Court of Appeals

Doctor Omar Hasan (“Dr. Hasan”), petitioner herein, appeals a final order entered in the Circuit Court of Kanawha County on July 13, 2018, that affirmed a decision by the respondent herein, the West Virginia Board of Medicine (“the Board”), that imposed professional discipline, including a one-year suspension of his medical license with the requirement that he petition for reinstatement. Before this Court, Dr. Hasan contends that the Board erred by failing to adopt recommended findings of fact by its hearing examiner, by improperly considering the content of text messages, and by misstating various facts in its final order. Based upon our thorough consideration of this appeal, we conclude that the Board has the authority to amend findings of fact recommended by its hearing examiner so long as it provides a reasoned, articulate decision that explains the rationale for its changes. Because we find the Board provided such rationale, did not err in considering the text messages, and did not commit reversible error by misstating certain evidence, we affirm.

Petitioner practiced psychiatry

In September 2014, M.B. filed a complaint with the Board alleging that Dr. Hasan engaged in an improper sexual relationship with her; that the relationship included, among other things, texting, phone calls, gifts, and sexual encounters on numerous occasions at various locations; and that the relationship led her to attempt suicide when it was ended by Dr. Hasan. The Board investigated M.B.’s allegations. At the conclusion of its investigation the Board found probable cause to institute disciplinary proceedings against Dr. Hasan for professional misconduct.

He answered and denied the allegations

The Board appointed a hearing examiner, and a public hearing was held from April 25, 2017, through April 28, 2017. The evidence presented at the hearing included significant details provided by M.B. regarding dates and locations where M.B. and Dr. Hasan had met and either engaged in sexual activities or discussed their ongoing affair. In addition, according to Dr. Hasan’s own AT&T phone records, he and M.B. exchanged more than four thousand text messages between January 2013 and January 2014,  and spent more than sixteen hours engaged in phone calls. This evidence was particularly striking given that Dr. Hasan had treated M.B. with psychopharmacological care and treatment, and had not treated her with psychotherapy; thus there appeared to be no medical reason for Dr. Hasan to engage in such numerous and lengthy communications with M.B. outside of the office setting. Additionally, there were no out-of-office communications with M.B. documented by Dr. Hasan in M.B.’s medical record. Although Dr. Hasan has disputed the content of the texts, the fact that this volume of texts occurred is not disputed.

Hearing examiner findings

Following the hearing, the hearing examiner issued his recommended findings of fact and conclusions of law on June 13, 2017, in which he found that the Board had failed to prove by clear and convincing evidence that Dr. Hasan had committed the violations alleged in Counts I, II, III, IV, and V of its amended complaint. The hearing examiner further found that the Board did prove by clear and convincing evidence that Dr. Hasan had committed the violation alleged in Count VI, by failing to properly document his out-of-office communications with M.B.

The board

The Board modified the hearing examiner’s recommendations and found that Dr. Hasan had violated Counts I, III, V, and VI of the Amended Complaint. The Board concluded that violations of Counts II and IV of the Amended Complaint had not been proven.

The doctor appealed the board's proposed suspension. The Circuit Court affirmed the board.

The Board contends that, in light of the totality of the evidence, it reasonably disagreed with the hearing examiner’s perception that the lack of corroborating witnesses was fatal to M.B.’s claim.

The court set out the roles of the hearing examiner and the board

the hearing examiner is afforded no authority to declare findings of fact or conclusions of law that are in any way final. Instead, the hearing examiner’s authority extends only to proposing such findings and conclusions to the Board, who then is tasked with rendering a final determination...

There is, however, a limitation on the Board’s exercise of this authority. As demonstrated by the following cases, when modifying the findings and conclusions of its appointed hearing examiner, the Board must present a “reasoned, articulate decision.”

And they did

We have thoroughly examined both the hearing examiner’s recommended findings and the Board’s final order. We find that the Board provided detailed reasoning and a discussion of the evidence supporting its modifications of the hearing examiner’s recommended findings, including a discussion of some of the evidence that had not been addressed by the hearing examiner in his recommended findings. For example, the hearing examiner rejected M.B.’s assertion that the couple had met at a Microtel based upon the testimony of Dr. Hasan and supporting evidence explaining he was elsewhere at the time M.B. claimed they were together at the Microtel. However, the Board explained that close scrutiny of Dr. Hasan’s various explanations and evidence for where he purportedly was during the time M.B. claimed they were together at the Microtel actually placed him at two locations at once, which would be impossible. The Board found that this discrepancy in Dr. Hasan’s evidence bolstered M.B.’s claim. Another example is a house where, according to M.B., the couple had met on multiple occasions. M.B.’s testimony describing the house contained both accurate and inaccurate information. The hearing examiner focused on the inaccuracies in M.B.’s descriptions and concluded she had not been in the home. The Board, on the other hand, focused on the fact that M.B. had correctly related a large number of details about the house and concluded that she had, in fact, been in the home. Finally there was disputed evidence regarding whether M.B. and Dr. Hasan had met at his sleep center on a specific date. The hearing examiner found they had not, based upon testimony by an employee that she had worked that night and had seen no one. The employee’s time-sheet supported that she had worked that night during the time when Dr. Hasan and M.B. would have been there. In reaching a contrary conclusion, the Board served conflicts in the employee’s testimony. The employee stated that three employees would be present for a sleep study. She also testified that she was administering a sleep study on the night in question, but she claimed to be at the sleep center alone.

Because the Board explained the rationale and evidentiary basis for its modifications of the hearing examiner’s recommended findings of fact in a reasoned, articulate decision, the Board demonstrated its findings are supported by substantial  evidence contained in the record, and the Board’s modified findings are not arbitrary or capricious. Accordingly, we find no error.

The court rejected the petitioner's remaining objections.

Justice Hutchison concurred

In this case, the Board of Medicine’s Final Order rejected some of the hearing examiner’s findings of fact regarding witness credibility. I think that in some instances, the Board skated close to crossing the line into making its own credibility decisions based upon the cold record. However, after considering the entire record, I agree with the majority’s conclusion that the Board has adequately justified its decision with reasoned, evidence based explanations. As such, I respectfully concur.

(Mike Frisch)

Professionals Beware

Is a physician-patient relationship a necessary predicate to a medical malpractice action?

No, according to the Minnesota Supreme Court, which reversed the grant of summary judgment against a medical provider that did not admit the patient despite her nurse practitioner's recommendation.

This case arises out of an interaction between employees of two Minnesota health systems. A nurse practitioner in one system sought to have a patient admitted to the hospital of the other system. Admission was allegedly denied by a hospitalist. Three days later, the patient died.

She died of a staph infection. 

To be sure, most medical malpractice cases involve an express physician-patient relationship. And a physician-patient relationship is a necessary element of malpractice claims in many states.

But we have never held that such a relationship is necessary to maintain a malpractice action under Minnesota law. To the contrary: when there is no express physician-patient relationship, we have turned to the traditional inquiry of whether a tort duty has been created by foreseeability of harm.

A legal ethics chestnut from the distant past is a case that I teach in class one

We have applied the same principle to legal professionals. In Togstad v. Vesely, Otto, Miller & Keefe, Joan Togstad met with an attorney to discuss a potential medical malpractice claim on behalf of her husband, John. 291 N.W.2d 686, 689–90 (Minn. 1980) (per curiam). The attorney took notes and asked questions as Togstad told her story, and then said “he did not think [she] had a legal case.” Id. at 690. Relying on this statement, the Togstads did not pursue the claim for some time. Id. When Joan Togstad decided to investigate the claim again, she learned that the statute of limitations had run. Id. In response to a legal malpractice claim, the attorney and his firm argued that there was no attorney-client relationship between Togstad and the attorney and, therefore, that he and the firm owed her no duty of care.

We held that there was a duty, based on foreseeability of harm. The duty attached, we said, when legal advice was given “under circumstances which made it reasonably foreseeable to [the attorney] that Mrs. Togstad would be injured if the advice were negligently given.” Id. at 693.

In other words, although there was not an explicit attorney-client relationship, the attorney still owed Togstad a duty “derived from the professional relationship.” Molloy II, 679 N.W.2d at 717. It was reasonable for Togstad and her husband to rely on the attorney’s professional advice and foreseeable that both would be harmed if the advice was negligent. Id. at 718.

...for 100 years in Minnesota, a physician has had a legal duty of care based on the foreseeability of harm. Although ours is the minority rule, it is by no means unique. This rule has served Minnesota sufficiently well, and we have no compelling reason to overrule our precedent.

Justice Anderson dissented

At issue here is whether Dr. Richard Dinter owed Nurse Practitioner Sherry Simon’s patient Susan Warren a duty of care. Because it was not reasonably foreseeable that Warren, who never met or talked to Dinter, would rely on Dinter’s decision, reached in a single phone call between Dinter and Warren’s actual treating professional, Simon, there is no legal duty here. I therefore respectfully dissent.

In my view, no duty existed here. Dinter could not have reasonably foreseen based on this single conversation that Simon, who did owe a duty to Warren, would fail to make reasonable treatment decisions regarding her patient, including further infection-related testing of her patient or electing to move her patient to emergency care. Even viewing the evidence in the light most favorable to Warren, the record contains no evidence from which we can infer that it was reasonably foreseeable to Dinter that Simon’s single phone call and limited disclosure of information regarding her patient would be determinative in preventing further care for Warren, including hospitalization, if that is what the professional who was actually treating Warren—Simon—deemed necessary for her patient. Concluding that Dinter owed a duty to Warren under these facts stretches foreseeability too far.

The case might be called Palsgraf for doctors

By concluding that a duty exists in these circumstances, the court introduces confusion into the law governing tort claims based on professional relationships. The court acknowledges that although Simon worked in a healthcare system that provided for “collaborative management,” see Minn. Stat. § 148.171, subds. 3, 6, 11, 13 (2012), Simon’s collaborating physician was not her supervisor, and Simon had her own “authority, based on [her] training and licensing, to provide . . . direct care” to patients. These points are difficult to reconcile with the court’s conclusion that Dinter should have foreseen that his discussion with Simon about her patient’s condition—a discussion far less formal than the collaborative relationship between Simon and Baldwin—would be relied on by Simon, and derivatively, by her patient.

The fact that Dinter interacted with another medical professional, who then interacted with the party asserting that a duty was owed, is the critical distinction from the cases cited by the court. None of our previous decisions on which the court relies imposed a duty on a professional in the absence of an actual interaction between that professional and the party that claimed the duty was owed...

Skillings, Togstad, and Molloy show that reliance by persons who seek out the advice of professionals may be reasonably foreseeable even in the absence of an express contractual relationship between those persons. These cases do not, however, address reliance by professionals on the advice of other professionals, the circumstances that prevail here, and for good reason.

As the court of appeals observed, the most immediate result of the court’s expansive holding is that hospitalists who wish to avoid liability must “refuse to take calls from other professionals to discuss potential hospitalization of those professionals’ patients.” Warren v. Dinter, No. A17-0555, 2018 WL 414333, at *4 (Minn. App. Jan. 16, 2018). This new rule is unlikely to serve Minnesotans well, particularly those who may have access to primary health care but lack access to a deep network of medical specialists.

Parade of horribles

Today’s expansion of duty also has a broader impact. The informal conversation that occurred between Simon and Dinter is not unique to the medical profession. Lawyers, accountants, architects, engineers, and other professionals often engage in similar conversations with their colleagues—brief conversations, by telephone, on complicated topics, without formal transfer of paperwork, and without follow-up, that serve as a reasonable means of evaluating professional decisions and judgment calls. Often, the subject of these conversations—the client, the patient, or the customer—is unaware of the exchange. And, just like in this case, the professional that seeks the input of colleagues will take that input into consideration in making final decisions, such as Simon did here in turning to Baldwin and in deciding to discharge Warren without further consideration of hospitalization.

But if these kinds of conversations create a duty, and thus potential liability, then no prudent professional will share insight, ideas, and recommendations with a colleague “without a promise of indemnification,” Ford v. Applegate, No. B159756, 2003 WL 22000379, at *7 (Cal. Ct. App. Aug. 25, 2003), as amici persuasively argue.

Chief Justice Gildea joined the dissent.

Update: there is a problem with the link. The case is Justin Warren v. Richard Dinter, et al., Respondents, decided April 17, 2019.  (Mike Frisch)

Hotel House Calls Get Doctor Placed On Probation

The New York Appellate Division for the Third Judicial Department affirmed a monitored five-year probationary sanction imposed by the Administrative Review Board for Professional Medical Conduct

Petitioner, a physician licensed to practice in New York, was charged with multiple specifications of professional misconduct arising from his treatment of patients who suffered from acute illness while visiting New York City from foreign countries. The charges included exercising undue influence over the patients to exploit them for financial gain.

The conduct

The record shows that when patient A became ill, the hotel front desk put her in touch with a medical service, called Doctors 24 Hours, that provided consultations in the patient's hotel room. This service, referred to as a "hotel concierge practice," was owned by petitioner's fiancée.

Patients C and D arranged for similar medical consultations in their hotel rooms through a separate service called the Global Medical Center. Petitioner attended to patients A and D on behalf of the respective service, and his physician's assistant attended to patient C. In each instance, a dispute arose over the amount of the fee, with charges of $3,700, $3,000 and $5,000 to patients A, C and D, respectively. The common protocol was for each patient to provide credit card information to the service in advance of the consultation. The dispute centers on whether each patient was informed as to the amount of the charge in advance of the consultation. Patient A and the mother of patient D testified that they only learned of the charge after the consultation was completed. In patient A's case, she maintains that petitioner informed her that she needed to go directly to the hospital for gall stones and then asked her to sign a credit card slip for $3,700. When she balked, petitioner assured her that the charge would be covered by her travel insurance. Patient D's mother testified that petitioner attended to her daughter for about 10 minutes and prescribed antibiotics for flu symptoms. After completing the evaluation, petitioner took a picture of her credit card and she was subsequently charged $5,000. When she objected, petitioner responded that "this is how much, you know, doctors charge in the United States." After treating patient C for a stomach virus, petitioner's physician's assistant testified that she telephoned petitioner for instructions and was directed to charge $3,000. The physician's assistant testified that patient C initially refused to pay. A confrontational phone call ensued between patient C and petitioner, after which patient C handed the phone back to the physician's assistant and petitioner advised "she will pay."

Although petitioner maintained that the fee was prearranged between each patient and the service, that factual conflict presented a credibility issue for the ARB to resolve. Moreover, the record shows that petitioner was proactive with respect to the fees, securing additional credit card documentation from patients A and D and engaging in a contentious phone conversation with patient C. Petitioner acknowledged that he had patients sign credit card  authorizations "to prevent a charge back" against the medical service. Significantly, petitioner also confirmed that his services were provided on a flat fee basis, substantiating that the charge was at least known to him in advance of his evaluation of each patient. Although petitioner maintains that he was an independent contractor and that his fiancée, as owner of Doctors 24 Hours, received all the profit, he also acknowledged receiving $200,000 for services rendered in 2015. The statute also extends to conduct that benefits a third party – in this instance, the medical service owned by petitioner's fiancée. In our view, the ARB's determination to sustain the undue influence charge is rational and has ample support in the record. The question here is not simply the amount of the fee, but whether the patients were duly informed in advance. The record supports the ARB's determination that they were not and, given the circumstances of each patient, petitioner engaged in undue influence to procure payment benefitting both himself and the medical service owned by his fiancée.

He also was found to have failed to keep adequate records. (Mike Frisch)

The Eyeball Test And The Thousand Dollar Pills

The Delaware Supreme Court reversed a Superior Court decision overturning professional discipline imposed on two nurses who work in a correctional facility.

The Board of Nursing had found the two had violated professional standards in handling very expensive pills used to treat inmates for hepatitis C.

Twelve of the $1,000 pills had spilled onto the floor while being handled by other nurses, who placed the pills in a waste container. Authorities were notified and the two accused nurses were summoned and shook the container until the pills (and other discarded medical waste) came out.

Along with the pills came some syringes, retractable lancets, and diabetic testing strips. There was additional medical waste in the container that the twelve pills could have touched, but once all twelve pills fell out, the nurses stopped shaking the container, leaving those materials behind. No one knows—or can know—what that waste was. What is known is the sorts of things that can be found in that type of container: saturated wound dressings, items soiled with more than five milliliters of blood or other bodily fluids, items from patients on strict isolation, skin-piercing objects such as needles, disposable scissors, scalpels, and catheters, and other disposable equipment for internal use.

Then 

[Nurses] Francis and DeBenedictis wrapped the pills in a paper towel and took them to their office. There, they were met by the on-site pharmacist, and together, they looked at the pills. To the pharmacist, “there did not appear to be anything wrong with [them]”—“they looked like they came out of a bottle.”  This eyeball test, consistent with the five-second rule some might use to determine whether to eat food dropped on the floor, is not one that any witness testified is a professionally recognized practice...

The pills were later given to the inmate. He suffered no ill effects, but he was not told the pills had been retrieved from a medical waste container until after he had taken them. In other words, no one informed the inmate of what had happened to the pills or gave him a chance to give or deny consent or request that he receive pills not retrieved from a medical waste container.

No one—not the nurses, not the on-site pharmacist, not the head pharmacist, and not the head physician—took responsibility for deciding that the pills were fit for use. Francis, DeBenedictis, and the head physician claimed it had been one of the pharmacists, while the head pharmacist insinuated it had been the head physician.  The on-site pharmacist pleaded ignorance.

A whistleblower came forward

When one of the nurses who had disposed of the pills in the waste container learned they had been retrieved and given to an inmate, she reported it to the Delaware Division of Professional Regulation. After an investigation, the State brought disciplinary proceedings against the head physician and the two nurses, and a hearing was held before an administrative hearing officer.

The charge was "unprofessional conduct."

The nurses pleaded reliance on the pharmacist and called expert witnesses to bolster the contention that the pills created no risk to the inmate.

 the hearing officer concluded that, contrary to the experts’ assumptions, no one examined the contents of the waste container after the pills fell out, so the container’s full contents “were and are currently unknown.” Because no one could say for sure what the pills may have encountered, the hearing officer found that giving them to the inmate was not a riskless endeavor...

the hearing officer found that disposing of medication that falls on the floor is an accepted standard of the nursing profession and that retrieving those pills from a sharps container and administering them to a patient violated that standard.

As to reliance, the hearing officer found that the nurses were obligated to exercise their own independent judgment.

Before the Board

In two short orders, the Board adopted the hearing officer’s conclusions of law, placed the nurses on probation for ninety days, and required them to undergo training in pharmacology and nursing ethics. Despite the hearing officer’s invitation for the Board to expound on the “accepted standard” that nurses are expected to follow in this sort of scenario, the Board’s order simply adopted the hearing officer’s recommendations and offered no further comment.

The nurses appealed to the Superior Court

The Superior Court sided with the nurses, but for a reason neither side had anticipated. After considering the three rules the nurses were found to have violated, the Superior Court concluded that each of them required the State to prove—as an essential element of its case—that the nurses’ behavior had caused harm. And the court agreed with the nurses that the record supplied no basis for the hearing officer to have found that the inmate had been harmed.

The court found that proof of actual harm was not required

We...disagree with the Superior Court’s apparent finding that unless improper nursing behavior creates actual harm, it is not sanctionable under any of the Nursing Board’s rules. And on this record, it is plain from the testimony of the nurses’ own witnesses that they engaged in conduct, in concert with others, that put the inmate patient at risk.

The nub

We start by reiterating something that is critical. Both of the nurses testified that they were trained that pills that fall on the floor must be discarded. This is not a small point. Both nurses knew that the risks of contamination from the floor alone justified disposal, and their own expert physician testified that inspecting that floor would be a crucial part of ensuring that the pills had not been contaminated.

The pills’ journey did not, of course, end there. They ended up in a sharps container, and contrary to the Superior Court’s view, there was evidence in the record—from the nurses’ own expert—that giving a patient pills retrieved from an uninspected sharps container is risky. The nurses’ expert physician made a point to caution that if pills are to be fished out of a waste container and given to a patient— setting aside, for a moment, the ethical implications—it would be “critical” to examine all of the contents of the container. His opinion that these pills were safe depended on that assumption, and the nurses do not dispute the hearing officer’s finding that a full inspection of this container never occurred.

The court also rejected a "just following [pharmacist's] orders" defense. (Mike Frisch)

No Stay For Revoked Doctor

The Delaware Superior Court denied a stipulated application for a stay of an order revoking a medical license of a doctor who 

Appellant is a physician whose license was revoked by the Board of Medical Practice and Licensure for, in the words of the Hearing Officer, “enabling a criminal drug gang in Pennsylvania by providing them with a regular source of controlled substance prescriptions to be sold on the street.” The physician now seeks a stay of the revocation of his license pending the results of this appeal. It is manifest on the face of his application that he has not alleged any substantial issue to be raised on the appeal. Therefore, even though the State has stipulated to a stay, the court will deny it.

The evidence

The State based its case against Dr. Hannan on his treatment of eight patients. The court need not detail the evidence relating to each patient at this point. Suffice it to say, the Board found that the “record of how these patients were treated is deplorable.”

Dr. Hannan repeatedly prescribed opioid medications for patients without documenting any justification for doing so. He increased dosages even though there was no report of new symptoms or increase pain, and in at least one case ordered an increase in dosage even though he recorded that the patient reported she was doing well.

Urine drug screens frequently were negative for the opioids he was prescribing, suggesting that the patient might be diverting the medication rather than taking it.

On some occasions Dr. Hannan prescribed Oxymorphone (a drug with twice the potency of Oxycodone) without any justification being apparent from his records...

The board

Dr. Hannan’s practices show a clear priority on money-making at the expense of appropriate patient care. There is a real concern for public safety.

The court noted that the doctor is now prescribing drugs in Florida

there are policy considerations which weigh heavily against granting the stay in this case. This court is reluctant to be a party to what is essentially a contrivance (albeit a lawful one) to prevent the Florida authorities from promptly learning of the Delaware Board’s disciplinary action. Florida, like all states, relies in part upon information supplied by the National Practitioner Data Bank, and a stay would delay transmission of the Delaware Board’s revocation to the Data Center which in turn would delay the Florida authorities from learning of that revocation. This court will not enter a stay for the sole purpose of preventing the Florida Department of Health from learning information which may (or may not be) relevant to the health and safety of the people of that state.

(Mike Frisch)

Doctor Beware

A health care provider may be liable for the release of confidential patient information, according to a decision of the Connecticut Supreme Court

The plaintiff sought to recover damages from the defendant health care provider for, inter alia, negligence and negligent infliction of emotional distress in connection with the defendant’s allegedly improper release of certain confidential medical records in responding to a subpoena issued in the course of a separate paternity action filed against the plaintiff. The defendant filed a motion for summary judgment arguing, inter alia, that it was entitled to judgment on the plaintiff’s negligence claims because Connecticut’s common law did not recognize a cause of action against health care providers for breach of the duty of confidentiality in the course of responding to a subpoena. The trial concluded that this state had not yet recognized a common-law privilege for communications between physicians and their patients, and, accordingly, granted summary judgment in favor of the defendant on the plaintiff’s negligence claims. On the plaintiff’s appeal, held that, in light of applicable principles of public policy, case law from other jurisdictions, relevant provisions of the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. § 1320d et seq., and the statute (§ 52-146o) recognizing an evidentiary privilege arising from the physician-patient relationship, a duty of confidentiality arises from the physician-patient relationship and that unauthorized disclosure of confidential information obtained in the course of that relationship for the purpose of treatment gives rise to a cause of action sounding in tort against the health care provider, unless the disclosure is otherwise allowed by law, and that, because there was a genuine issue of material fact as to whether the defendant violated that duty of confidentiality by the manner in which it disclosed the plaintiff’s medical records in response to the subpoena, the trial court improperly granted summary judgment for the defendant on the plaintiff’s negligence claims; moreover, the defendant could not prevail on its claim that summary judgment should nevertheless be granted in this case because the plaintiff’s medical records were disclosed in response to a subpoena and § 52-146o does not require a patient’s consent for such a disclosure, as the mere existence of a subpoena does not preclude recovery for breach of confidentiality, the fact that a disclosure is in response to a subpoena does not necessarily ensure compliance with § 52-146o, and the defendant apparently complied neither with the face of the subpoena nor with the federal regulation (45 C.F.R. § 164.512 [e]) governing responses to such subpoenas.

(One justice concurring separately)

Argued May 1, 2017—officially released January 16, 2018

 There is a concurring opinion. (Mike Frisch)

Self-Medicating Doctor Denied Reinstatement

A doctor's effort to secure reinstatement was denied by the Massachusetts Supreme Judicial Court, affirming the order of the Board of Registration in Medicine.

Langan is a board-certified physician in geriatrics and internal medicine. In 2008, after he had tested positive for various controlled substances, he and the board entered into a letter of agreement, under which he agreed to certain conditions in order to continue practicing medicine, including refraining from the use of alcohol and controlled substances without a prescription and submitting to substance use monitoring by Massachusetts Physician Health Services (PHS).  The letter of agreement provided that violating its terms would "constitute sufficient grounds for the immediate suspension of [Langan's] license," and that Langan had a right to an adjudicatory hearing as to any violation found by the board.

There were then three positive tests that led to a second agreement

On February 1, 2012, Langan, represented by counsel, signed an addendum to his letter of agreement requiring, in particular, that he "participate in a minimum of three (3) 12-step meetings per week" and "submit proof of said participation to PHS." In October, 2012, PHS reported that Langan had misrepresented attending meetings. In November, 2012, Langan again tested positive for EtS and EtG. Langan entered into a voluntary agreement not to practice and was asked to produce documentation that he had attended all required meetings. He did not do so, and in February, 2013, the board determined, based on all the documentation before it, that Langan was in violation of his letter of agreement for the second time. The board therefore suspended his license.

He was not permitted to challenge the two agreements with the board.

Notably, the court rejected a First Amendment claim

Langan also argues that his rights under the establishment clause of the First Amendment to the United States Constitution were violated by the requirement that he attend twelve-step support group meetings. Even assuming that such support groups are religiously based, his argument fails for several reasons. Langan voluntarily agreed to attend meetings when he signed the 2012 addendum to the letter of agreement; the requirement was not unilaterally imposed by the board. Langan did not timely challenge the suspension. Moreover, the board's 2015 decision makes it clear that Langan would have been permitted to attend a secular support group if he had so requested. Finally, and most importantly, the 2015 decision, which is the only one properly before us, was not based on Langan's failure to attend meetings, but on his failure to fulfil the conditions of reinstatement.

(Mike Frisch)

Practicing Architecture Without A License

The Oregon Supreme Court reversed in part the Court of Appeals and agreed that individuals had practiced architecture without a license

The Oregon Board of Architect Examiners (board) seeks review of a decision of the Court of Appeals that reversed in part the board’s determination that respondents (the Washington firm Twist Architecture & Design, Inc., and its principals, Callison and Hansen), engaged in the unlawful practice of architecture and unlawfully represented themselves as architects. ORS 671.020(1).1 The board urges this court to conclude that respondents, who were not licensed to practice architecture in Oregon, engaged in the “practice of architecture” when they prepared master plans depicting the size, shape, and placement of buildings on specific properties in conformance with applicable laws and regulations for a client that was contemplating the construction of commercial projects. The board further urges that respondents’ use of the term “architecture” in the logo on those master plans and the phrase “Licensed in the State of Oregon (pending)” on their website violated the law prohibiting unlicensed individuals from representing themselves as architects or indicating that they are practicing architecture. For the reasons that follow, we agree with the board. Accordingly, we reverse in part the decision of the Court of Appeals, Twist Architecture v. Board of Architect Examiners, 276 Or App 557, 563, 369 P3d 409 (2016), and affirm the board’s order.

...respondents were paid to plan commercial shopping center buildings for a client who was contemplating the construction of the buildings shown in the plans. Respondents described their services as “architectural design” services and provided their client with master plans that showed details such as the precise size, shape, and placement of the buildings on a specific piece of property in conformance with applicable laws and regulations. In that circumstance, we conclude that respondents “plann[ed]” “buildings” for purposes of ORS 671.010(6), and thus engaged in the “practice of architecture” without licenses to do so in violation of ORS 671.020(1).

And

In addition to prohibiting the unlicensed practice of architecture, ORS 671.020(1) also prohibits one who is not licensed to practice architecture in Oregon from using “any title, sign, cards or device indicating or tending to indicate, that the person is practicing architecture.” Because we have concluded that respondents’ preparation of master plans for Gramor constituted the “practice of architecture” under ORS 671.020(1), respondents violated that statute when they used their logo on those plans. That logo included the words “Twist” and “Architecture,” indicating that respondent Twist was practicing architecture in the preparation of the plans on which the logo was used.

No refuge in the First Amendment

the false statements about pending licensure on respondents’ website, when viewed in conjunction with information on the website about architectural projects in Oregon, could mislead Oregon consumers into believing that respondents were authorized to practice architecture in Oregon. We reject without further discussion respondents’ contentions that such speech was constitutionally protected.

(Mike Frisch)

Conduct Unbecoming For A Teacher

The New Jersey Supreme Court reversed an arbitrator's favorable rulings in a matter involving termination of a tenured high school teacher.

Count One

Evidence adduced at the arbitration hearing established that defendant used the devices, sometimes during work hours, on the District computer network to send explicit pictures of himself and to seek similar pictures in return from various women on the internet. On the District-issued devices, defendant saved nude pictures and sexually explicit emails, sent and received by defendant, including negotiations for paid sexual services.

Count Two alleged "inappropriate" behavior toward female staff'

In support of the charges, the Board produced physical evidence taken from defendant’s Board-issued computer and iPad, as well as testimonial evidence that defendant, in the presence of students, propositioned staff members to date him and commented on the physical appearance of female staff. Notably, defendant’s remark about the tight fit of a female teacher’s pants prompted a follow-up question by a student who was present when defendant uttered the remark. Defendant also used a student as his personal courier to deliver flowers and “inappropriate” messages to a colleague he was pursuing.

A  hearing was held

the Board determined by a majority vote that the evidence supported the charges and warranted dismissal. The Commissioner of Education (Commissioner) reviewed the charges and agreed they warranted termination. The charges were then submitted for review by an arbitrator, pursuant to N.J.S.A. 18A:6-16. The arbitrator found that the Board had proven the allegations underlying Count I but dismissed Count II with prejudice, reducing the penalty from dismissal to a 120-day suspension without pay.

Before the court

The Board urges this Court to reverse the judgment of the Appellate Division, contending that the arbitrator’s hostile work environment analysis was improper. The Board argues that there is a fundamental difference between charges of “unbecoming conduct” and “sexual harassment” and that the arbitrator improperly conflated the two to require the Board to prove a hostile work environment under Lehmann.

In support of the Board’s position, the amicus Association maintains that the arbitrator lacked the authority to alter or rewrite the charges. The Association contends that the arbitrator should have limited his analysis to a determination of unbecoming conduct. The Association underscores the practical impossibility of trying to prepare and present appropriate evidence if “arbitrators [have] the ability to unilaterally change the charges presented.” Further, the Association asserts that requiring the Board to prove hostile work environment “would be anathema in a school setting.” It argues that schools would have no recourse against isolated but abhorrent incidents that would not rise to the level of a hostile work environment, yet would satisfy the standard of unbecoming conduct.

Held

proving hostile work environment is not necessary to satisfy the burden of showing unbecoming conduct. A charge of unbecoming conduct requires only evidence of inappropriate conduct by teaching professionals. It focuses on the morale, efficiency, and public perception of an entity, and how those concerns are harmed by allowing teachers to behave inappropriately while holding public employment. The Court has made it clear that the failure of a school board to prove a different offense does not preclude a finding of unbecoming conduct...

Here, the arbitrator erroneously faulted the Board for failing to prove a charge that it did not bring. The arbitrator erred in his reliance on Lehmann because he imposed a different and inappropriate standard of proof on the Board to sustain its unbecoming conduct in the presence of students claim. The arbitrator “imperfectly executed” his power by misinterpreting the intentions of the Board so significantly as to impose a sexual harassment analysis, when such an analysis was different context -- under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. wholly ill-suited in this context...

The judgment of the Appellate Division reinstating the arbitrator’s award is reversed, and the matter is remanded for arbitration with a new arbitrator to determine whether defendant committed unbecoming conduct, and any appropriate penalty.

The Appellate Division opinion is linked here. (Mike Frisch)

The Scene Of The Crime

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.

The court

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.

On delay

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.

The Burlington Free Press reported  on the story. Their original story is linked here. (Mike Frisch)

All Things Must Pass

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.

Holding

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.

(Mike Frisch)