Sunday, November 10, 2019

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)

November 10, 2019 in Comparative Professions | Permalink | Comments (0)

Wednesday, April 17, 2019

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)

April 17, 2019 in Comparative Professions | Permalink | Comments (0)

Thursday, March 14, 2019

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)

March 14, 2019 in Comparative Professions | Permalink | Comments (0)

Wednesday, October 3, 2018

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)

October 3, 2018 in Comparative Professions | Permalink | Comments (0)

Friday, February 23, 2018

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)

February 23, 2018 in Comparative Professions | Permalink | Comments (0)

Thursday, January 11, 2018

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)

January 11, 2018 in Blogging, Comparative Professions | Permalink | Comments (0)

Wednesday, June 14, 2017

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)

June 14, 2017 in Comparative Professions | Permalink | Comments (0)

Friday, June 2, 2017

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)

June 2, 2017 in Comparative Professions | Permalink | Comments (0)

Tuesday, February 21, 2017

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)

February 21, 2017 in Comparative Professions | Permalink | Comments (0)

Monday, December 12, 2016

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)

December 12, 2016 in Comparative Professions | Permalink | Comments (0)

Wednesday, April 20, 2016

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)

April 20, 2016 in Comparative Professions | Permalink | Comments (0)

Thursday, April 7, 2016

Counselor Who Treated Teen Pregnancy As Confidential Reinstated

A school guidance counselor was improperly dismissed from her employment after protecting the confidentiality of a pregnant 15-year-old student, according to a decision of the New Hampshire Supreme Court.

[Counselor] McKaig suggested that Student A tell her mother about the pregnancy, but Student A refused. Student A and her boyfriend told McKaig that they did not want Student A’s mother to know about the pregnancy because they were afraid for their safety. McKaig researched Student A’s options and found New Hampshire’s parental notification and judicial bypass laws for minors seeking an abortion. See RSA 132:33, :34, II (2015).

After meeting with Student A, McKaig and the other guidance counselor met with the principal and other school staff to discuss the issue of Student A’s pregnancy. The principal expressed his view that the school should inform Student A’s mother about the pregnancy. McKaig disagreed, asserting that Student A had a right to keep the pregnancy confidential. The meeting concluded without a decision about whether to contact Student A’s mother.

After the meeting, McKaig spoke with Attorney Barbara Keshen of the New Hampshire Civil Liberties Union about Student A’s situation. McKaig provided Keshen with Student A’s initials, age, and grade. McKaig and Keshen also discussed Student A’s potential privacy rights. Keshen’s opinion was that the judicial bypass law protected the confidentiality of Student A’s pregnancy and the fact that she was contemplating an abortion. McKaig relayed this opinion to Student A, and Student A made an appointment with a health center and another attorney to assist her with the judicial bypass proceedings.

On December 3, 2012, the principal instructed the school nurse to meet with Student A to tell her that the school would inform her mother about her pregnancy by December 5. That same day, McKaig told the principal about her conversation with Keshen and urged him to contact Keshen to discuss Student A’s rights. The principal did not contact Keshen; however, on December 4, Keshen contacted him. He told Keshen that he had reviewed the parental notification and judicial bypass laws and determined that they did not prevent him from telling Student A’s mother about the pregnancy.

Keshen instituted a petition for a temporary restraining order (TRO) against the principal in superior court to prevent the principal from contacting Student A’s mother. McKaig was named as the petitioner "ON BEHALF OF [Student A]"; she was not named in her individual capacity. The petition did not include Student A’s name. It instead referred to Student A by her initials and mentioned her age and grade, and that she was pregnant.

The district board had agreed with the decision not to renew the counselor's employment and appealed the decision of the state board to reinstate her.

 The court majority

Apart from the unique circumstances giving rise to this case, there is nothing remarkable about our analysis; rather, it is based upon a reasoned application of legislative enactments, and employs well-established principles of judicial review, according proper deference to the state board’s decision. We are disappointed by the tone of the dissent and its incorrect assumptions about our motivations. In contrast, we do not choose to speculate upon the motivations of the dissent; rather, after giving due consideration to the legal points raised by the dissent, we reject its substantive criticisms of our analysis...

We acknowledge, as did the district, that, without the ability to order reinstatement, the state board’s authority to reverse a local board’s decision not to renew a teacher or, in the instant case, a guidance counselor, would be meaningless. See RSA 189:14-b. We therefore affirm the state board’s reversal of the local board’s decision, and order that McKaig be reinstated to her former employment. We also remand to the state board the issue of whether McKaig is entitled to additional remedies, which issue should be addressed by the state board in the first instance.

Justice Lynn dissented.

 The majority’s holding, that the State of New Hampshire Board of Education (state board) could have reasonably concluded that McKaig was not insubordinate, is based upon two flawed premises. First, the holding is based upon the implicit (albeit unstated) determination that the principal’s decision to disclose Student A’s pregnancy to her parents was in some manner at least arguably unlawful or wrong. Second, it also accepts that, because McKaig disagreed with the principal’s decision to tell the parents, she had a right, not simply to advise the student of her disagreement with his decision, but to become an adversary in a court proceeding against him. Neither of these premises, however, can withstand scrutiny. Additionally, the majority allows the state board to impermissibly act as fact finder regarding McKaig’s breach of Student A’s right to confidentiality per district policy. Had the state board given the required deference to the Farmington School Board’s (local board) decision, it would have been required to uphold the decision not to renew McKaig’s contract. For these reasons, I respectfully dissent...

although the majority studiously avoids saying as much, the only plausible explanation for its holding is that the majority believes McKaig’s action in suing her principal was not insubordinate because the principal’s decision to tell Student A’s parents about her pregnancy was not simply one with which McKaig disagreed, but was in some way wrongful or unlawful. Stated differently, if the principal was properly within his rights to tell the parents about the student’s pregnancy, then it is hard to imagine how the majority could hold that it was not insubordinate for McKaig to participate in a lawsuit against the principal because she disagreed with that otherwise correct decision.

 

(Mike Frisch)

April 7, 2016 in Comparative Professions | Permalink | Comments (0)

Wednesday, April 6, 2016

From Church To The Chatterbox Cafe

A church and its pastors are protected from suit alleging defamation according to a decision of the Minnesota Supreme Court.

Under the ecclesiastical abstention doctrine, pastors and their church are not liable to former parishioners for defamation or related common-law torts for statements made by the pastors during the course of formal church discipline proceedings when the statements were communicated only to other members of the church and participants in the formal church discipline process.

The allegedly defamatory statements that led to excommunication

 The Pfeils were actively involved in slander, gossip, and speaking against Braun and his wife, Behnke, and the St. Matthew Board of Elders.

 The Pfeils had intentionally attacked, questioned, and discredited the integrity of Braun, Behnke, and other St. Matthew church leaders.

 Other people had observed the Pfeils display anger and disrespect toward Braun.

 The Pfeils had publicly engaged in "sinful behavior" inside and outside St. Matthew.

 The Pfeils had engaged in behavior unbecoming of a Christian.

 The Pfeils had engaged in a "public display of sin."

 The Pfeils had refused to meet for the purpose of confession and forgiveness.

 The Pfeils had "refused to show respect" toward servants of God and St. Matthew church leadership.

 The Pfeils had led other people into sin.

 The Pfeils had engaged in slander and gossip and had refused to stop engaging in slander and gossip.

 The Pfeils had refused to follow the commands and teachings of God’s word.

 Holding

we agree with respondents insofar as they argue that applying the issue-by-issue approach advocated by the Pfeils to this case would foster an excessive entanglement with religion, unduly interfere with the internal governance decisions of religious organizations, and violate the First Amendment. Ultimately, adjudicating Pfeils’ claims would excessively entangle the courts with religion and unduly interfere with respondents’ constitutional right to make autonomous decisions regarding the governance of their religious organization. We hold that the First Amendment prohibits holding an individual or organization liable for statements made in the context of a religious disciplinary proceeding when those statements are disseminated only to members of the church congregation or the organization’s membership or hierarchy. As a result, the district court properly dismissed the claims brought by the Pfeils against St. Matthew and its pastors.

 A dissent from Justice Lillehaug would affirm excommunication but allow a defamation claim

Although religious freedom is, of course, a strong public policy, the court does not demonstrate that the possibility of defamation liability "unduly interfere[s]" with that freedom. Nor does the court discuss why religious organizations cannot procure insurance to protect themselves from defamation liability.

On the other hand, the court concedes that there is "merit" to concerns about injustice to defamation victims. It tries to limit the inoculation from liability it grants with a proviso: the rule of law applies only to statements made "during the course of formal discipline proceedings" and "communicated only to other members of the church and participants." This proviso ignores the reality of how defamation can devastate its victims. Any statement made in a closed meeting of "members" and "participants" is unlikely to stay there. More likely, a vicious falsity uttered in a small-town house of worship will be avidly republished, starting the very next morning during coffee at the Chatterbox Café...

Whether or not the Pfeils accused the minister of theft has little to do with the underlying disciplinary proceeding. I see no reason why a court and jury could not apply neutral principles of law without entanglement to determine whether: (1) the minister made the alleged statement; (2) it was false; (3) it was damaging to reputation; and (4) it was not protected by a qualified privilege.

(Mike Frisch) 

April 6, 2016 in Comparative Professions | Permalink | Comments (0)

Friday, April 1, 2016

Death Be Not Filmed

An opinion issued yesterday by the New York Court of Appeals

Defendants' actions in filming a patient's medical treatment and death in a hospital emergency room without consent, and then broadcasting a portion of the footage as part of a documentary series about medical trauma, were not so extreme and outrageous as to support a cause of action by the patient's family members for intentional infliction of emotional distress. However, the complaint sufficiently states a cause of action against the hospital and treating physician for breach of physician-patient confidentiality. Therefore, the Appellate Division order should be modified to reinstate that cause of action against those two defendants.

 Facts

Mark Chanko (decedent) was brought into the emergency room of defendant The New York and Presbyterian Hospital (the Hospital). He had been hit by a vehicle, but was alert and responding to questions. Defendant Sebastian Schubl was the Hospital's chief surgical resident and was responsible for decedent's treatment. While decedent was being treated, employees of ABC News, a division of defendant American Broadcasting Companies, Inc. (ABC), were in the Hospital -- with the Hospital's knowledge and permission -- filming a documentary series (NY Med) about medical trauma and the professionals who attend to the patients suffering from such trauma. No one informed decedent or any of the individual plaintiffs1 -- most of whom were at the Hospital -- that a camera crew was present and filming, nor was their consent obtained for filming or for the crew's presence.

Less than an hour after decedent arrived at the Hospital, Schubl declared him dead. That declaration was filmed by ABC, and decedent's prior treatment was apparently filmed as well. Schubl then informed the family of decedent's death, with that moment also being recorded without their knowledge.

Sixteen months later, decedent's widow, plaintiff Anita Chanko, watched an episode of NY Med on her television at home. She recognized the scene, heard decedent's voice asking about her, saw him on a stretcher, heard him moaning, and watched him die. In addition, she saw, and relived, Schubl telling the family of his death. She then told the other plaintiffs, who also watched the episode. This was the first time plaintiffs became aware of the recording of decedent's medical treatment and death.

(Mike Frisch) 

April 1, 2016 in Comparative Professions | Permalink | Comments (0)

Wednesday, January 6, 2016

Accounting Malpractice Not Subject To Arbitration

A decision in a case involving allegations of accounting malpractice from the Massachusetts Supreme Judicial Court

The defendant, KPMG LLP (KPMG), is an accounting firm that performed annual audits for the plaintiff, Merrimack College (Merrimack). In the underlying action, Merrimack alleges that KPMG committed malpractice when it failed to detect serious financial irregularities that occurred in Merrimack's financial aid office during fiscal years 1998 through 2004. Based on a dispute resolution provision included in a contract the parties executed for fiscal year 2005, KPMG argues that Merrimack waived its right to sue KPMG regarding services it had provided in prior years and was required to arbitrate those claims. In addition, KPMG maintains that whether Merrimack's pre-2005 claims are subject to compulsory arbitration must be resolved by arbitration. In a thoughtful decision, a Superior Court judge rejected such arguments and denied KPMG's motion to compel arbitration. We affirm.

Holding

KPMG has not presented clear and unmistakable evidence that Merrimack ever agreed that only arbitrators could resolve whether disputes that arose under prior agreements nevertheless were subject to the arbitration provision in the 2005 engagement letter. Indeed, because Merrimack never agreed that earlier disputes were subject to the new dispute resolution provision (for the reasons set forth supra), it follows that the procedures spelled out in appendix II simply never came into play.

(Mike Frisch)

January 6, 2016 in Comparative Professions | Permalink | Comments (0)

Thursday, December 24, 2015

Faculty Evaluations And Moral Turpitude

The New Hampshire Supreme Court upheld the conclusion that an arbitrator exceeded his authority in failing to dismiss a University of New Hampshire professor

In 2012, Dorfsman was an Associate Professor and the Chair of the Language, Literature, and Culture Department at UNH. In December of that year, he intentionally lowered the evaluations that students had given a certain lecturer by erasing markings on the evaluations; if the highest ranking had been given, he entered a different and lower rating. In May 2013, UNH terminated Dorfsman’s employment for this conduct, which UNH determined constituted an act of “moral turpitude” within the meaning of the CBA. Dorfsman and the Union grieved his termination, and, pursuant to the CBA, the parties submitted to binding arbitration to resolve that grievance.

The acts were bad enough to justify termination

In rejecting UNH’s chosen penalty for moral turpitude, “the arbitrator substituted his views of the proper industrial relationships for the provisions of the contract.” Id. “The arbitrator may not rewrite the labor contract” in such a way. Id. Because the arbitrator erroneously applied a further just cause analysis to misconduct that was enumerated in the CBA as a proper basis for discharge, the arbitrator exceeded the scope of his authority.

 Seacoastonline has some details.

In December of 2012, Dorfsman altered the student evaluations of his colleague, French lecturer Emilie Taplin, by lowering her student evaluation scores. Court documents state that Dorfsman changed the average scores for every class Taplin taught that semester, as well as her overall average awarded by students. The tampering made it appear that her performance fell below acceptable limits for her department, court documents state.
Taplin’s contract for re-employment for the 2013 calendar year was still under consideration and had not been renewed as of the time Dorfsman altered her student evaluations. In January, Dorfsman said he came forward with what he had done.
“Last December I had what I can only say was an emotional breakdown and I did a terrible thing,” Dorfsman said in an email sent to colleagues on April 19, 2013. “I lost my judgment and in a moment of great stress I tampered with a colleague’s student evaluations.”
The Professional Standards Committee of the Faculty Senate terminated Dorfsman in May 2013 due to “moral turpitude” after an investigation. An independent arbitrator, who overturned the termination of Dorfsman in November 2013, stated that his actions put Taplin’s visa to remain in the country in jeopardy. UNH filed an appeal of the arbitrator’s decision in Strafford County Superior Court in December 2013.
(Mike Frisch)

December 24, 2015 in Comparative Professions | Permalink | Comments (0)

Wednesday, December 9, 2015

No Threats Exception

The Minnesota Supreme Court has held

This case requires us to determine whether the therapist-client privilege, which prohibits therapists from disclosing information or opinions in court that they acquired from their clients in a professional capacity, contains an exception for threatening statements. The district court concluded that the privilege does not apply to "statements of imminent threat of harm." The court of appeals reversed, holding that the statute codifying the privilege, Minn. Stat. § 595.02, subd. 1(g) (2014), does not contain an exception for threats. We agree with the court of appeals that the statute does not contain a "threats exception," but disagree that the privilege extends to third parties.

The story

 As a condition of his probation for a prior conviction, respondent Jerry Expose, Jr. was required to attend anger-management therapy sessions with N.M., a mental-health practitioner. During one session, Expose became upset and made a threatening statement about D.P., a caseworker assigned to an ongoing child-protection case involving Expose’s children. Expose said that D.P. had told him recently that his continued noncompliance with a requirement of his case plan would delay the commencement of unsupervised visits with his children. Expose then became visibly angry and said that

he felt that [D.P.] was a barrier to him getting his kids back and if court—his future court date did not go the right way that he would break her back, and then if he could not get to her he would call—he’d just have to make a couple phone calls and he can have someone else do it if he couldn’t get to her.

N.M. responded to the threatening statement by informing Expose that she was a mandated reporter, to which he replied, "I don’t give a f--k." N.M. then "proceeded to help him de-escalate and calm down," but Expose made additional statements about D.P., including that "[e]verybody has to go to their car at some point."

Based on her training, N.M. determined that Expose’s statements were not idle threats. Instead, she concluded that Expose had made specific threats of physical violence against an identifiable person that triggered her statutory duty to warn. See Minn. Stat. § 148.975 (2014). To discharge the duty, N.M. reported Expose’s statements to her supervisor, D.P., and the police.

 N.M. testified at trial. The Court of Appeals reversed the ensuing conviction.

Here

the therapist-client privilege statute lacks a "threats exception," either by implication from the duty-to-warn statute or under our authority to promulgate rules of evidence. The district court therefore abused its discretion when it allowed N.M. to testify about Expose’s allegedly threatening statements without his consent.

The court found that the error was not harmless and the Court of Appeals correctly reversed the conviction. (Mike Frisch)

December 9, 2015 in Comparative Professions, Privilege | Permalink | Comments (0)

Tuesday, December 1, 2015

I'll Be Doggone

The New York Appellate Division for the First Judicial Department affirmed the dismissal of a civil case.

Plaintiffs Ullum and French are owners of plaintiff Topaz Siberians Kennel, which breeds and exhibits purebred Siberian Huskies. On December 17, 2010, while attending a show-dog competition sanctioned by defendant the American Kennel Club (AKC), Ullum was accused of poisoning another competitor's dog.

A local Event Committee held a hearing, at which Ullum chose not to testify because criminal charges were pending against him.

The Committee found Ullum guilty of attempting to poison the dog and recommended that he be suspended. AKC denied Ullum's appeal of the suspension and reported the suspension on its website in March 2011. It also reported in its June 2011 newsletter that Ullum "was charged with feeding a dog medication that a veterinarian identified as having the potential to adversely affect the dog's performance and health." After Ullum was acquitted of the criminal charges arising from the incident, he asked AKC to reinstate him, but his request was denied in October 2012. A year later, plaintiffs commenced this action against AKC and its president, defendant Dennis Sprung.

The action was untimely and

Plaintiffs also failed to state a viable cause of action for breach of contract. Plaintiffs' claim is bound by the terms of the entry form, plaintiffs failed to plead that the form prohibited AKC from upholding the local Event Committee's recommendation to suspend Ullum, or that it was obligated to stay Ullum's suspension or grant his request for reinstatement. Moreover, courts are reluctant to interfere with the internal disciplinary affairs of a private voluntary association such as AKC (see Thornton v American Kennel Club, 182 AD2d 358, 358 [1st Dept 1992]), and a breach of contract cause of action is not the proper vehicle for a claim that such an association has failed to fulfill obligations imposed by its internal rules (see Matter of Caso v New York State Pub. High School Athletic Assn., 78 AD2d 41, 45 [4th Dept 1980]; see also James v National Arts Club, 99 AD3d 523, 525 [1st Dept 2012], lv dismissed 21 NY3d 886 [2013]). In addition, there is no allegation that Sprung is a signatory on the entry form in his individual capacity or that he otherwise entered into an agreement with plaintiffs (see Tutora v Siegel, 40 AD3d 227, 228 [1st Dept 2007], lv denied 9 NY3d 808 [2007]).

The Huffington Post covered the acquittal. (Mike Frisch)

December 1, 2015 in Comparative Professions | Permalink | Comments (0)

Friday, October 2, 2015

Remand In Doctor Discipline Appeal

A rather unusual medical discipline matter has led to a decision by the Maryland Court of Special Appeals.

During a disciplinary proceeding against appellee Mark Geier, M.D., the Maryland Board of Physicians publicly disclosed confidential medical information concerning Dr. Geier, his wife Anne, and their son David. David Geier was the subject of a separate disciplinary proceeding at the time of the disclosures.

The Geiers responded to the disclosures by accusing the Board, its 22 members, its administrative prosecutor, and two staff members of abuse of power, invasion of privacy, and acting maliciously and vindictively. They filed suit in the Circuit Court for Montgomery County.

In discovery, the Geiers attempted to uncover why the Board publicly disclosed their confidential medical information.

Background

Dr. Geier is a physician who advocates the theory that certain vaccines cause autism in genetically susceptible children. Dr. Geier’s son, David Geier, is not a physician, but has assisted his father in his research concerning that theory. In a case concerning the admissibility of expert testimony, the Court of Appeals has held that “Dr. Geier’s genetic susceptibility theory is no more than hypothesis and conjecture, devoid of a generally accepted methodology to support it.” Blackwell v. Wyeth, 408 Md. 575, 618 (2009).

In protracted and contentious disciplinary proceedings, the Board has established that Dr. Geier committed numerous violations of the Medical Practice Act, HO §§ 14-401 et seq., in his treatment of autistic children...The Geiers contend that the Board has acted against them out of a desire to punish them and to discredit their research.

There were two appeals at issue. The court dismissed one and remanded the other .

Judge Friedman concurred

we find that the circuit court erred by not evaluating the Board of Physicians’ claim of deliberative process privilege by weighing the Board’s, and through it the public’s, need for the confidentiality of its internal processes as expressed in documents against the Geiers’ need to obtain these documents for use in this lawsuit. Maj. Slip Op. at 34-39. In note 23, we give the circuit court some guidance about how to conduct this weighing on remand, directing it to “assess the Board’s immunity claims, because the Geiers can establish no ‘need for disclosure,’ and nondisclosure cannot affect the ‘fair administration of justice,’ if an immunity insulates the defendants from liability or from suit.” Maj. Slip Op. at 39 n.23 (internal citations omitted). I wholeheartedly agree but would go one step further.

I would also direct that the circuit court consider whether every document sought by the Geiers and whose production is sought to be prevented by the Board through a claim of deliberative process privilege, is germane to the appropriate scope of discovery. The Geiers can have no need (and thus they can offer no counterweight to the Board’s, and through it, the public’s right to confidentiality) for documents that are not relevant, or that are no longer relevant, to their lawsuit. While my brethren prefer to leave that discussion for another day, in the circumstances and given the parties’ conduct of discovery so far, I would reach it today.

It is my view that the only documents relevant to this lawsuit are those that are reasonably calculated to lead to the discovery of admissible evidence related to: (1) the Board’s decision to issue the cease and desist order on January 25, 2012; (2) the decision to reveal the Geiers’ confidential medical information in that cease and desist order; and (3) the duration of time that the cease and desist order was publicly available. The Geiers are entitled to any non-privileged documents related to those three topics and if they find evidence of malice in them they are entitled to present that evidence to a jury. But that’s it. 

(Mike Frisch)

October 2, 2015 in Comparative Professions | Permalink | Comments (0)

Tuesday, September 15, 2015

Arsenic And Old Records

The Connecticut Supreme Court held that a state agency's mental health records may not be disclosed in a matter involving treatment records of a notorious serial killer

The present case arises from the ruling of the named defendant, the Freedom of Information Commission (commission), that the defendant Ron Robillard was entitled to the disclosure of documents in the possession of the plaintiffs, the Department of Mental Health and Addiction Services...We conclude that the plaintiffs had standing to appeal the decision of the commission, and further agree with the plaintiffs that the documents at issue are exempt from disclosure under § 52-146e. Accordingly, we reverse the judgment of the trial court and remand the case to that court with direction to sustain the plaintiffs’ appeal.

Background story

The plaintiffs received a request under the act from Robillard for any records concerning a person named Amy Archer Gilligan for the period of time from 1924 through 1962. Gilligan was a patient at a facility now known as Connecticut Valley Hospital (hospital) following her conviction for second degree murder for the arsenic poisoning of a resident of her nursing home. Gilligan’s life is widely considered to be the basis for the play and movie entitled ‘‘Arsenic and Old Lace.’’ The plaintiffs provided Robillard with copies of those records pertaining to Gilligan that it deemed were disclosable under the act. Robillard was notified by the plaintiffs that other records, deemed exempt from disclosure under the act, were withheld.

At issue

In the present case, the crux of the disagreement between the commission and the plaintiffs is whether medical and dental records contained within Gilligan’s file are exempt from disclosure under § 52-146e. The commission asserts, and the trial court agreed, that these documents were not exempt from disclosure because they were not ‘‘oral and written communications and records thereof relating to diagnosis or treatment of a patient’s mental condition between the patient and a psychiatrist, or between a member of the patient’s family and a psychiatrist . . . .’’ General Statutes § 52- 146d (2). We agree that the medical and dental records are not communications directly between Gilligan and a psychiatrist or between a member of Gilligan’s family and a psychiatrist...

...our understanding of the broad veil of secrecy created by the psychiatrist-patient privilege also supports our conclusion that medical and dental records that are created by an inpatient mental health facility during the treatment of a patient are exempt from disclosure under § 52-146e. On the basis of the relevant statutory language, related statutory provisions and prior interpretations of the act, we conclude that the trial court improperly affirmed the commission’s determination that Gilligan’s medical and dental records were not exempt from disclosure under § 52-146e.

There is a concurring opinion

The majority’s resolution of this case yields the detritus of a needless collision between two competing statutory mandates. On the one hand, the legislature has adopted an evidentiary privilege to foster and protect the free flow of confidential information between a patient and her psychiatrist in a therapeutic setting. On the other hand, the legislature has endorsed a broad presumption that all records in the possession of a governmental agency are public records, unless delimited by an applicable, specific, and narrow exception. Rather than charting a path that balances and accommodates both of these statutory priorities, the majority construes one to vanquish the other and, in the process, deviates significantly from critical principles at the core of open government. In my opinion, it is unnecessary to do so.

The records at issue in this appeal and cross appeal concern Amy Archer Gilligan, a notorious serial killer who was perhaps America’s deadliest murderess. M. Phelps, The Devil’s Rooming House: The True Story of America’s Deadliest Female Serial Killer(2010). Historians and others have been focused on her case for decades. Her crimes have inspired several books, articles, plays, and even a major motion picture. Authors remain drawn to the facts and circumstances of her crimes to this day. The complainant in the present case, author Ron Robillard, seeks records from the plaintiff Department of Mental Health and Addiction Services (department) relating to Gilligan’s thirty-eight year involuntary commitment at the Connecticut State Hospital, now Connecticut Valley Hospital (hospital) following her conviction for murder in the second degree. Robillard seeks the information to shed light on how this state historically has handled its mentally ill convicts.

The concurrence has a lengthy discussion of the psychiatrist- patient privilege.

Connecticut History.org has details on the crimes. (Mike Frisch)

September 15, 2015 in Comparative Professions | Permalink | Comments (0)