TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Wednesday, May 7, 2008

Fine Against X-Ray Outfit Upheld

So the folks at Provost Umphrey hired MOST Health Services, Inc., to do screening of 161 people for potential silicosis injuries.  The screenings took place at various hotels in Pennsylvania.  Only problem -- oops! -- MOST didn't comply with the state regulations on x-ray screenings, failing to get either Department of Environmental Protection approval or the presence of a licensed health professional at the screenings.  The DEP fined the company $80,500 ($500 per unauthorized screening).  The company appealed, not challenging liability but the amount of the fine, which it contended was excessive.

The Environmental Hearing Board upheld the fine: Download mosthealth.pdf

The Board concluded that though it found MOST's behavior to be closer to negligent than reckless (disagreeing with the lower officer), it concluded that the amount of the fine was not excessive.  The majority focused on the fact that the lower officer had already reduced the fine significantly from the default amount ($805,000).

A lively concurrence said that a much higher fine would have been appropriate too ("Before X-raying, Provost Umphry did not inquire of the patients as to their medical history, but it did make sure to have them sign contingent fee agreements respecting occupational exposure litigation."; "MHI is not entitled to a volume discount.").

And a dissent argues, more or less, that it would have been trivial to obtain approval of either DEP or of a physician, and so a much smaller fine would be appropriate.


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Provost, a Texas law firm, "ordered" X-rays of 161 people in Pennsylvania?

1) Is that the unauthorized practice of medicine by Provost? Or of nursing or of any other licensed profession able to order the X-ray?

2) Does the fine make any finding void for irregularity or void for illegality? Whichever it is, is there a per se exclusionary rule in civil litigation for illegal or irregular evidence?

3) If Provost is the inducer of this irregularity, what happens if anything to them?

BC notes: I don't know how it's played out in the ultimate litigation. The order makes clear that the x-rays were apparently done correctly; at least some of the authors of the various opinions state that it would have been easy to get a doctor to sign off on the work, so that might suggest that the results are admissible. And this entity has no oversight over out-of-state law firms, and I've no idea what's happened, if anything, to Provost.

Posted by: Supremacy Claus | May 9, 2008 5:53:56 AM

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