Miller v. Jacoby

Court of Appeals Division I
State of Washington

Opinion Information Sheet

Docket Number: 43725-9-I
Title of Case: Mary Lou Miller, Appellant
v.
Karny Jacoby, Md., Respondent
File Date: 08/28/2000

SOURCE OF APPEAL
—————-
Appeal from Superior Court of King County
Docket No: 98-2-14064-0
Judgment or order under review
Date filed: 10/30/1998
Judge signing: Hon. James W. Bates Jr

JUDGES
——
Authored by H. Joseph Coleman
Concurring: C. Kenneth Grosse
Dissenting: Marlin J Appelwick

COUNSEL OF RECORD
—————–
Counsel for Appellant(s)
Marcus B. Nash
Stafford Frey & Cooper
2500 Rainier Twr
1301 5th Ave
Seattle, WA 98101-2621

Counsel for Respondent(s)
Lory R. Lybeck
7525 SE 24th St Ste 110
Mercer Island, WA 98040

Katharine W. Brindley
1325 4th Ave #1500
Seattle, WA 98101

Marilee C. Erickson
Reed McClure
Two Union Square
601 Union St Ste 4800
Seattle, WA 98101-3900

Sherry H. Rogers
Two Union Square
601 Union St Ste 4800
Seattle, WA 98104-7081

Kara R. Masters
7525 SE 24th St Ste 110
Mercer Island, WA 98040

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MARY LOU MILLER, an individual, )
) No. 43725-9-I
Appellant, )
) DIVISION ONE
v. )
)
KARNY JACOBY, M.D., and JOHN )
DOE JACOBY, wife and husband, and )
the marital community composed )
thereof; ROBERT C. IRETON, M.D., )
and JANE DOE IRETON, husband and )
wife, and the marital community )
composed thereof; and NORTHWEST )
HOSPITAL, ) Published Opinion
)
Respondents. ) FILED:
)
)

COLEMAN, J. – Mary Lou Miller sued two physicians and their employer
for medical malpractice when a portion of a Penrose drain remained in her
body following surgery. The drain was deliberately placed in the surgical
wound to facilitate postoperative healing but was not completely removed
before the patient was discharged. Miller offered no expert testimony to
prove that the physicians’ actions were negligent. After carefully
reviewing the facts presented in this case, we conclude that without expert
testimony, a layperson could not determine whether the physicians failed to
act in a reasonably prudent manner. Therefore, we affirm the trial court’s
summary judgment dismissal of the claims.
FACTS

On January 30, 1997, Miller underwent surgery for the removal of
kidney stones. Dr. Robert Ireton performed the surgery at Northwest
Hospital. Before completing the surgery, Dr. Ireton placed a one-half inch
Penrose drain in the wound to facilitate post-operative healing. A Penrose
drain is a soft piece of tubing placed in a wound to drain fluid.
Dr. Ireton ordered the drain to be removed some days following
surgery. When the nurse on duty, Leslie Rockom, attempted to remove the
drain, she felt resistance and told Miller that the drain "wouldn’t come
out," and that she would call a doctor to remove it. In a deposition,
Rockom estimated that since 1965 she has cared for approximately 100
patients with Penrose drains and that probably only five drains resisted
removal to the degree that she called in a physician. Miller later
testified that she felt pain when Rockom tried to pull out the drain.
Dr. Karny Jacoby responded to Rockom’s request for help in removing
the drain. Rockom informed Dr. Jacoby that she tried to pull out the drain
and that she met resistance, causing pain. Dr. Jacoby then proceeded to
remove the drain. She later testified that she had no difficulty in
removing the drain and thus did not think it necessary to examine the drain
in detail. Miller claimed, however, that after Dr. Jacoby removed the
drain, she stated, "I hope I got it all."
Miller was discharged on February 3, 1997. She continued to suffer
pain in her right side and swelling in her abdominal area. After two
follow-up appointments, Dr. Ireton discovered on April 29, 1997, that a
portion of the drain remained in the area of the surgical site. Miller
consulted with a different physician for the removal of the drain, Dr.
Robert Weissman, who performed a second surgery on May 23, 1997. According
to Dr. Weissman’s operative report, the end of the drain that he removed
was angular, ragged, and irregular, "possibly representing where the drain
broke off." Dr. Weissman indicated, however, that Miller’s complaints of
pain and swelling after the first surgery were probably unrelated to the
presence of the drain.
On June 9, 1998, Miller sued Dr. Ireton, Dr. Jacoby, and Northwest
Hospital for medical malpractice. Dr. Jacoby obtained a deposition from
Dr. Wayne Weissman,1 a urologist, in which he testified that Dr. Jacoby’s
actions in removing the drain conformed to the standard of care. He
further testified that "{g}iven the fact that one end of the Penrose drain
removed {in the second surgery} was ragged and irregular, it is highly
likely that the Penrose drain was inadvertently sutured in place, deep
within the wound, beneath the muscle layers." Dr. Weissman stated that
suturing a Penrose drain in place "deep within the wound" did not comport
with common practice. ‘It is the usual and customary practice to lay the
Penrose drain in place, deep within the wound, and only secure the drain
with a single superficial suture at the skin level. The procedure to
remove a Penrose drain involves cutting the skin suture and then pulling
the drain out.’
Miller offered no expert testimony of her own, however, to support her
claims.
The defendants moved for summary judgment, arguing that because Miller
offered no expert testimony, she failed to raise a genuine issue of fact
regarding whether the defendants had breached the standard of care. The
court granted the motions and dismissed all of Miller’s claims. Miller
appeals.
ANALYSIS

Miller argues that the trial court erred in dismissing her medical
malpractice claims due to her failure to offer expert testimony. She
contends that the evidence submitted was sufficient to support the
conclusion that Drs. Ireton and Jacoby were negligent, relying on the rule
that holds that a medical provider who inadvertently leaves a foreign
object in a patient’s body during surgery is negligent as a matter of law.
This rule, however, does not apply in determining whether a physician was
negligent in the performance of a surgical or postoperative procedure. In
this case, expert testimony is needed to prove negligence.
We review a trial court’s summary judgment order de novo. Benjamin v.
Washington State Bar Ass’n, 138 Wn.2d 506, 515, 980 P.2d 742 (1999).
Summary judgment is appropriate if no genuine issue of material fact exists
and the moving party is entitled to judgment as a matter of law. Benjamin,
138 Wn.2d at 515. In reviewing a summary judgment order, we consider the
facts in the light most favorable to the nonmoving party. Reid v. Pierce
County, 136 Wn.2d 195, 201, 961 P.2d 333 (1998).
To prove medical malpractice, a plaintiff must establish that her
"injury resulted from the failure of a health care provider to follow the
accepted standard of care{.}" RCW 7.70.030(1). In order to establish that
the health care provider departed from this standard, the plaintiff must
prove that "{t}he health care provider failed to exercise that degree of
care, skill, and learning expected of a reasonably prudent health care
provider at that time in the profession or class to which he belongs, in
the state of Washington, acting in the same or similar circumstances{.}"
RCW 7.70.040(1).
The standard of care in a medical malpractice action must generally be
established through expert testimony. Harris v. Robert C. Groth, M.D.,
Inc., 99 Wn.2d 438, 449, 663 P.2d 113 (1983). Although medical facts can
be established with lay testimony if the facts are observable by a
layperson’s senses and describable without medical training, a layperson
generally cannot observe or describe whether a particular medical practice
is reasonably prudent. Harris, 99 Wn.2d at 449.
However, Washington courts have long followed the rule that a medical
provider who introduces a foreign object into a patient’s body during
surgery and inadvertently fails to remove the object before the wound is
closed can be negligent as a matter of law. See, e.g., Bauer v. White, 95
Wn. App. 663, 668, 976 P.2d 664, review denied, 139 Wn.2d 1004 (1999); Van
Hook v. Anderson, 64 Wn. App. 353, 357-59, 824 P.2d 509 (1992); McCormick
v. Jones, 152 Wash. 508, 511, 278 P. 181 (1929). "This is because cases
involving ‘objects lost in the patient’s body probably constitute the
clearest examples of malpractice.’" Bauer, 95 Wn. App. at 667 (quoting
Philip A. Talmadge & Ann Marie Neugebauer, A Survey of Washington Medical
Malpractice Law, 23 Gonz. L. Rev. 267, 289 (1987-88)). In cases where an
object is inadvertently left in a patient during surgery, the medical facts
are generally observable to a lay person and expert testimony is therefore
not required. See Bauer, 95 Wn. App. at 667.
Miller relies on two recent cases to support her argument that this
rule applies to her case. In Van Hook, 64 Wn. App. at 356, a sponge was
inadvertently left in the plaintiff’s body during surgery. Two nurses were
responsible for counting sponges inserted and retrieved during the surgery.
In holding that the surgeon performing the operation was not directly or
vicariously responsible for the nurses’ failure to account for all of the
sponges, the court assumed that the nurses’ acts constituted negligence as
a matter of law. Van Hook, 64 Wn. App. at 357-59. In Bauer, 95 Wn. App.
at 665, a metal pin was inadvertently left in the plaintiff’s leg during
knee surgery. Finding that there was no evidence that any particular
medical provider who attended the surgery was responsible for removing the
pins, the court held that the surgeon in charge of the operation was
negligent as a matter of law, explaining that its holding was "consistent
with Washington’s long history of requiring a physician, or at least
someone in the operating room, to account for all foreign objects." Bauer,
95 Wn. App. at 668.
The rule applied in the Van Hook and Bauer decisions is not, however,
applicable to this case. In Van Hook and Bauer, the medical providers held
to be negligent as a matter of law had a duty to account for foreign
objects used during surgery and to remove the objects before closing the
wound. Expert testimony is certainly not required to understand that
objects placed in the body during surgery must be properly accounted for
and removed at the completion of surgery. In both of the cases cited by
the plaintiff, the objects remained in the patients’ bodies because the
medical providers failed to perform this duty.
Here, in contrast, the respondent physicians did not have a duty to account
for and remove the drain during surgery. Dr. Ireton deliberately
positioned and left the drain in place after the wound was closed in order
to drain the wound following surgery. Dr. Jacoby attempted to remove the
drain during a separate, postoperative medical procedure. Although she did
not remove the entire drain, this was not because she had failed to account
for it. Dr. Jacoby may have been negligent in the manner and method of
removal, but that determination can be made only by evaluating the standard
of care required of a reasonably prudent physician. To hold otherwise
would mean that anytime a small piece of catheter or drain flaked off and
remained in the patient’s body, causing injury, the physician who attempted
to remove the drain would be liable as a matter of law. This is contrary
to the rule requiring expert testimony to establish medical negligence.
Such testimony is necessary to set forth the appropriate standard of care
under these circumstances.
Likewise, a layperson could not determine, without expert testimony,
whether Dr. Ireton’s actions in placing the drain in Miller’s body were
within the standard of care. Miller theorized that Ireton acted
negligently by suturing the drain in place during surgery. The record,
however, contains no direct evidence that Dr. Ireton sutured the drain in
place. Even assuming for purposes of summary judgment that Miller has
raised an inference that Ireton inadvertently sutured the drain in place,
Miller must still prove that Ireton’s actions were negligent, and expert
testimony is needed to prove that claim. Although Dr. Weissman attested
that it is not the usual and customary practice to suture a drain in place
within the wound, he did not address whether a reasonably prudent surgeon,
acting within the standard of care, could nonetheless inadvertently suture
a drain in place. Opining that Dr. Ireton’s procedure did not comport with
common practice is not the equivalent of testifying that his procedure
violated the standard of care. In fact, Dr. Weissman did not testify
regarding the standard of care, and the only evidence addressing this
question contradicts Miller’s position. In his own declaration, Dr. Ireton
attested that ‘an unintended or inadvertent suture . . . does not represent
or establish negligence. In circumstances such as those presented during
Ms. Miller’s surgery, an inadvertent suture can occur without any deviation
from reasonable, prudent and appropriate medical care.’ Without additional
expert testimony, a layperson could not conclude that a surgeon who
inadvertently sutured a drain in place was negligent. That conclusion
would require knowledge of surgical practices and procedures, which the
average layperson does not possess.
As for Dr. Jacoby, Miller argued that she breached the standard of
care by not noticing or informing her that a portion of the drain remained
in her body. But from the evidence presented, a layperson also could not
have concluded that Dr. Jacoby acted imprudently or unreasonably. Dr.
Jacoby attested that she had no reason to suspect that the drain was
sutured under the skin. Neither the operative notes nor the progress notes
mentioned that the drain had been sutured. And although Rockom experienced
unusual resistance in attempting to remove the drain, Dr. Jacoby had no
difficulty. Without any knowledge of medical practices, a layperson could
not conclude that when a doctor feels no resistance in removing a drain and
there is no indication in the operative or progress notes that the drain
has been sutured in place, the doctor should nonetheless inspect the drain
in detail. Moreover, the only expert testimony contained in the record
that addresses the issue directly contradicts Miller’s theory. Dr.
Weissman testified that Dr. Jacoby had no reason to examine the drain in
detail "as there was no indication of a problem in removing the drain.
Since Dr. Jacoby did not know the drain tore, she could not inform the
patient of a problem." In Dr. Weissman’s opinion, Dr. Jacoby conformed to
the standard of care of a reasonably prudent urologist when she removed the
drain.
Finally, Miller argues that the evidence is sufficient to prove that
the respondents were negligent under the res ipsa loquitur doctrine. The
doctrine of res ipsa loquitur recognizes that an occurrence may be of such
a nature that the occurrence is, by itself, sufficient to establish
negligence on the part of the defendant, without any further proof. Tinder
v. Nordstrom, Inc., 84 Wn. App. 787, 791, 929 P.2d 1209 (1997) (citing
Morner v. Union Pac. R.R. Co., 31 Wn.2d 282, 291, 196 P.2d 744 (1948)).
For the doctrine to apply, the plaintiff must prove in the abstract that
there is a reasonable probability that the event producing the injury would
not have occurred in the absence of negligence. See Tinder, 84 Wn. App. at
792-93 (‘The mere occurrence of an accident and an injury does not
necessarily infer negligence.’). Here, however, Miller has failed to show
that the circumstances of her injury support such an inference. As
discussed above, a lay person would not be able to determine, without
expert testimony, that Drs. Ireton and Jacoby departed from the standard of
reasonable, prudent, and appropriate medical care. Thus, the doctrine of
res ipsa loquitur does not apply.
Because Miller offered no contrary expert testimony to support her
claim that the respondents breached the standard of care, we conclude that
the trial court did not err in dismissing her claims on summary judgment,
and we affirm.

WE CONCUR:

1Dr. Wayne Weissman served as an expert witness; Dr. Robert Weissman was
the surgeon who removed the retained portion of the Penrose drain.

Mihailescu v. Sheehan (Full Text)

SUPREME COURT OF THE STATE OF NEW YORK – NEW YORK COUNTY
PART %

4h/+ N l CclO(AS

PRESENT:

fiGU G b A
J u s d e s-C .

MOT ION DA T E

MOTION SEQ . N O .

MOTION CAL . NO .

The following papers , numb e r ed 1 t o

w e r e read on th is mo t ion to / fo r

Notice of Mo t ion / Order t o Show Cause – A f f idav i ts – Exhibits …
An sw e r ing A f f idav i ts – Exhibits

Rep ly ing A f f idav i ts
Cross-Mot ion: 0 Yes 94 NO
Upon t h e forego ing papers, it i s ordered t h a t this mo t ion

PAPERS NUMBERED
1
I

UNFlLEP JUDGMENT
mls Judgment has not heen entered by the County Clerk
and nottce of entry csrnnut be sawi3d Lased hereon. To
obtafn enpy, counsel or authorized r@presentPthre must
appear In person at the Judgment Clerk’s Dimk (Room
d 41 0 ) .
–

– –

Check one: I)d F INAL D ISPOS IT ION
I
– 1 NON-F INAL D ISPOS IT ION
LA D O N O T P O S T
.. .
r1 REFERENCE
Check if appropriate:
–

– —

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
In the Matter of the Petition of

VIVIAN GINA GIOVANNA MIHAILESCU, M.D.,

In this Article 78 proceeding, a medical doctor seeks to set aside a determination by the

State Medicaid Inspector General (the Medicaid IG) denying her application to be reinstated as a

provider in the Medicaid program. The Director of the State Office of Professional Conduct

(OPMC) has also been joined as a respondent in this proceeding. Both respondents hold

positions as bureau heads within the State’s Department of Health. The TG’s denial of

petitioner’s application, however, effectively bars petitioner from a work venue specifically

contemplated as available to her under a prior settlement with the Director.

Petitioner, a 1990 emigrb from Rumania, is licensed to practice in New York and is

board-certified in psychiatry and neurology. Between 1990 and 2003, she was employed by

hospitals in the Greater New York area and at the end of that period was an attending physician

in an out-patient clinic at Metropolitan Hospital. At the beginning of 2004, however, one of her

patients filed a complaint against her with the State Department of Health. The Department

referred the complaint to OPMC, for investigation and possible disciplinary proceedings by the

Board of Professional Medical Conduct (the Board). Petitioner resigned from her position at

Metropolitan Hospital shortly after the complaint against her was filed. Two months later, she

joined the medical staff of St. Joseph’s Medical Center, a community hospital in Yonkers, where

she continued to work for the next two-and-a-half years. During that time, the OPMC

investigation of her case continued.

In late December 2006, petitioner, OPMC, and the Bureau of Professional Medical

Conduct (the Board’s legal department) executed a “Consent Agreement.” Under the

Agreement, petitioner, who was then represented by counsel, waived her right to contest

OPMC’s formal charges, which alleged that she had committed “boundary violations” involving

two patients, including “inappropriate sexual contact” with one of them. Further, the parties

agreed to a 12-months suspension of petitioner’s medical license, as a “penalty.” They also

agreed that, at the end of the 12 month-period, reactivation of her license would be subject to her

meeting specified “conditions,” including her completion of “a continuing education program in

the area of physician-patient boundaries” and her submission of “a current, independent, in-depth

psychiatric evaluation by a board-certified psychiatrist … pre-approved by the Director, showing

that she is fit and clinically competent to practice as a physician.” It was further agreed that

petitioner would be subject to, among other things, the following conditions for a period of 60

months after her license was reactivated:

Unless determined and pre-approved otherwise by the Director
of OPMC, [petitioner] shall work only in a supervised setting,
such as a facility licensed by New York State, where close
practice oversight is available on a daily basis and where quality
assurance and risk management protocols are in effect. [Petitioner]
shall not practice medicine until the supervised setting proposed
by [petitioner] is approved, in writing, by the Director of OPMC ….

The terms of the Agreement were adopted by the Board in a Consent Order dated January

8 ,2007 .

Following its standard practice, early in 2007 OPMC gave notice of the Agreement and

Order to various State and federal agencies, including the Medicaid IG. In view of the license

suspension, the IG automatically terminated petitioner from participation as a Medicaid provider
pursuant to Department of Health regulations ( 1 8 NYCRR 5 504.7[d][l]). The IG twice sent

petitioner notice of this action. The second such notice apparently was prompted by a letter sent

in early June 2007 by the U S . Department of Health & Human Services, advising the IG that

petitioner had been excluded from enrollment as a Medicare provider in view of the license

suspension and directing that the IG take parallel steps on behalf of the Medicaid program

pursuant to section 1320a-7 of title XIX.

Just before the end of the 12-month license-suspension period, the report of an

independent psychiatrist was sent to OPMC, as required under the Agreement. The psychiatrist

based his evaluation of petitioner on seven interviews as well as his review of the details of her

case. The report ended by noting, “Considering that [petitioner] had functioned as a psychiatrist

for over two years after the ‘incident’ without any problems and she has had for the last year

some beneficial psychotherapy, and after evaluating her good grasp of the psychodynamic of her

past emotional difficulties related to the ‘incident,’ I believe that she is ready and able to function

now as a licensed physician.” This report substantially confirmed the substance of another from

a rnental-health professional retained by petitioner.

When her license was reactivated, petitioner made arrangements

to return to St. Joseph’s

staff as a physician in an in-patient unit under supervision and protocols

consistent with the

strictures of the Agreement. The proposed terms of her employment were approved by OPMC.

At the same time, petitioner applied for reinstatement in the Medicare program, and her

application was granted. By a separate application, she also sought reinstatement in the

Medicaid program.

By letter dated June 12, 2008, however, the Medicaid IG denied her application for

reinstatement. The letter advised petitioner that, “Although,[sic] your license is active, the

causes that lead [sic] to your license[’s] being suspended is [sic] sufficient reason for this

Agency’s decision to deny your application . . . .” The letter further advised that petitioner could

not submit a new application for at least two years from the letter’s date, but that she could,

within 45 days of such date, seek reconsideration. Petitioner applied for reconsideration, but a

responsive letter dated September 12 ,2008 , notified her that the IG affirmed h s original decision

and that such action constituted his “final determination.” Petitioner commenced the instant

proceeding on December 30,2008.

It appears undisputed that the denial of petitioner’s application to be reinstated in the

Medicaid program was responsible for the loss of her job at St. Joseph’s. Indeed, respondents do

not deny petitioner’s assertion that, under Medicaid regulations, her continuing exclusion from

the roster of Medicaid providers effectively bars any governmentally licensed or operated facility

from hiring her. Petitioner has remained unemployed and claims that the challenged

determination a s a practical matter prevents her from working as a physician. To be sure,

respondents contend that she could possibly find work in some private practice that might be able

to accommodate the close supervision and protocols required under the Agreement. Petitioner

disputes that contention as unrealistic, if not disingenuous. In any event, there is no dispute that

a prime avenue of employment contemplated in the Agreement – “a facility licensed by New

York State” – has been effectively closed to petitioner by the Medicaid IG’s action.

As will be seen below, the foregoing facts implicate legal issues of first impression.

The threshold legal question concerns respondents’ argument that this proceeding is time-

barred under section 217[1]), requiring that an Article 7 8 proceeding be brought within four

months of the petitioner’s receipt of the agency’s final determination (90-92 Wadsworth Avenue

Tenants Association v City of New York Department of Housing Preservation and Development,

227 AD2d 331). In this connection, respondents base their calculation of untimeliness upon the

IG’s 2007 notices to petitioner that she was being excluded from participating in the Medicaid

program in view of her license’s suspension. Petitioner does not, however, purport to be

challenging that initial exclusion. Her challenge is, instead, to the final determination denying

her reinstatement in Medicaid, as announced by the Medicaid IG in his September 12 ,2008 ,

letter. Her filing of the instant petition on December 30,2008, was therefore timely.

We thus arrive at the substantive issues. At least one governing principle is well

established: where, as here, an Article 78 petitioner asks the court to set aside an agency’s

discretionary action, the court may do so only if the challenged action is arbitrary and capricious

or lacks a rational basis (E Pel1 v Board of Education, 34 NY2d 222’23 1). This does not

happen often. To establish whether this matter is one of the infrequent cases in which the

demanding standard for relief is satisfied, it is necessary to trace the history and content of

statutes and regulations that bear upon respondents’ respective administrative functions and upon

their relationship to the Department within which they operate.

In the mid-l970’s, the State legislature transferred from the Department of Education to

the Department of Health responsibility for overseeing the professional conduct of medical

doctors (L. 1975, ch. 109). The Board, with a majority of its members required to be physicians,

was created at the same time specifically ‘“to improve procedures for the professional discipline

of physicians’,” (Roberts v Gross, 100 AD2d 540, quoting 79 Opns Atty Gen 51) (Public Health
Law, 5 230[ 13).

Since then, OPMC and the Board have served, respectively, as the

Department of Health’s investigatory and adjudicatory a n n s concerning allegations of
professional misconduct by physicians (Education Law 5 6509; Public Health Law 5 230[ 11).

In 1996, some thirty years after Medicaid’s inception, the legislature reposed in the

Department of Health the responsibility for administering Medicaid, in place of the Department

of Social Services (L.1996, c. 4741. As amended, section 363-a(1) of the Social Services Law

directed that, “The department shall … act as the single [Sltate agency to supervise the

administration of [Medicaid] in t h s [ Sltate.. . .” and further directed that all of the statute’s
references to “the department” should be understood to mean the Department of Health (id., 5

233). As an incident of such responsibility, the Department of Health became subject to

Medicaid regulations previously promulgated by the Department of Social Services, including

provisions governing enrollment of providers (1 8 NYCRR, part 504) and sanctions and

reinstatement (1 8 NYCRR, part 5 15).

The position of Medicaid IG as it now exists was not established until 2006. In August

2005, in the wake of a series of newspaper articles reporting that widespread fraud and waste had

cost the State billions of dollars annually, the Governor issued Executive Order (No. 140), which

announced the creation of a Medicaid IG within the State’s Executive Department (Lytle, Meet

the State’s Brand New Medicaid Fraud Legislation, NYLJ, July 10, 2006, at 9, col 1). The

mandate of this new State officer was to review the structure and operations of the State’s

program and to recommend ways to “improve efforts to control fraud, waste and abuse” (9
NYCRR 0 5.14). Six months later, a superseding Executive Order (No. 140.1) removed the

Medicaid IG from the Executive Department and defined his office as “an independent fraud-

fighting entity within the Department of Health” whose central mission was to “prevent []

Medicaid fraud, waste and abuse.” Only a few months after that, the legislature enacted title TII

of the Public Health Law (effective as of July 26,2006).

The new statute borrowed heavily from the later Executive Order’s terms. Among other

things, it expressed the legislature’s intent to “establish[] an independent office of Medicaid

inspector general within the department [of health] ” who would streamline “the [Sltate’s process

of detecting and combating Medicaid fraud and abuse and maximize the recoupment of improper
Medicaid payments” (Public Health Law 5 30). It reaffirmed that “the department [of health] is

the single [Sltate agency for the administration of [Medicaid] in New York [Sltate, provided that

the office [of the Medicaid IG] shall undertake and be responsible for the department’s duties as

[such] single [Sltate agency with respect to

(a) prevention, detection and investigation of fraud and
abuse within [Medicaid]; (b) referral of appropriate cases
for criminal prosecution; and (c) recovery of improperly
expended [Medicaid] funds. Such responsibility shall
include, but not be limited to, [Medicaid] audit functions, …
and the function of [Medicaid] fraud and abuse prevention ….

(Public Health Law 3 1 [ 11).

The statute provided that the Medicaid 1G was to be appointed by and serve at the
pleasure of the Governor (Public Health Law 5 3 1 [2]) and specified as the prerequisite to such

appointment at least ten years’ experience in fraud investigation or auditing or in the profession

of law involving some prosecution or “consideration” of fraud; or some comparable experience

in the area of health care or senior management, with the proviso that such comparable

experience involve “some consideration of fraud” (id.). The statute further provided for “the

transfer of the [Medicaid] audit and fraud and abuse prevention functions from the department
[of health]” to the IG’s office (Public Health Law 5 34). The statute authorized the IG, among

other things, to “solicit, receive and investigate complaints related to fraud and abuse within
[Medicaid]” (Public Health Law 5 32[4]; “to pursue civil and administrative enforcement

actions against any individual or entity that engages in fraud, abuse [and, as recently amended,

illegal or improper acts or unacceptable practices]”(Public Health Law tj 32[6]); and to

“exclu[de] … providers … from participation in the program”(id., [d]). Moreover, the statute

directed that, for the sake of “prevent[hg], detect[ing] and investigat[ing] Medicaid fkaud and

abuse,” the IG work toward “coordinat[ion] among the department [of health] and [other
appropriate entities]” (Public Health Law 4 32[3],[ 181).

The parties’ arguments in our Article 78 proceeding rely on their respective views of the

scope of the Medicaid IG’s power to determine whether a provider may participate in the

Medicaid program where the basis for exclusion is professional misconduct.

The Medicaid IG points out that the applicable statutes and regulations authorize him to

refuse to reinstate a Medicaid provider, and he contends that the terms of the Agreement do not

constrain him to do otherwise in petitioner’s case. His argument is, in effect, that his authority

to exclude physicians from enrollment as Medicaid providers includes the power to determine

independently which providers would pose a threat to the health and safety of Medicaid patients.

The expansiveness of the Medicaid IG’s view of his authority is best appreciated by

contrasting the determination now at issue with the Agreement upon which he avowedly based

that action. As indicated above, the Agreement’s reference to a State-licensed facility clearly

was intended to illustrate the type of work venue in which petitioner could work once her license

was reactivated, a proposition that would have been meaningless if petitioner would not at that

point be allowed to participate in the Medicaid program. Moreover, implicit in such reference

was the Department of Health’s conclusion that, with the specified conditions in place,

petitioner’s return to work in such a facility would not present a reasonably foreseeable danger to

the health and safety of patients. Accordingly, the IG’s decision to deny petitioner

reinstatement tacitly reflects his assumption that he is authorized to assess whether a physician

would be an asset or detriment to patients in the Medicaid program based upon the physician’s

past and anticipated future professional conduct even where his conclusion is inconsistent with a

prior assessment by OPMC and the Board.

Petitioner for her part argues that the legislature intended the Medicaid IG to investigate

and be the arbiter of only such matters as directly relate to the Medicaid fisc, such as cases

involving auditing, accountancy, pursuit of fraud in its t e c h c a l sense, unnecessary prescriptions

for medical services, testing, or drugs, and the like. In other words, she maintains that the IG’s

function does not include independently assessing a provider as a professional per se.

The applicable statutory and regulatory provisions do not establish which of these

competing views of the Medicaid IG’s role is correct. Indeed, the regulations were written and

last amended well before the IG’s office was created, and they are therefore not natural sources

of light by which to locate the jurisdictional boundaries in question here. Thus, although an

application for reinstatement as a Medicaid provider is unquestionably subject to consideration of

factors “having a direct bearing on the applicant’s ability to provide high-quality medical care …”

( 1 8 NYCRR 504.5[a][ 13]), the regulations do not indicate whether the IG is to consider such

factors himself or instead is to depend upon others in the Department of Health to do so, i . e . , the

units whose long-time function and expertise are in the areas of professional conduct and patient

protection.

As for the Public Health Law provisions that created the office of Medicaid IG, they may

be read as arguable support for either of the parties’ competing views of the IG’s role in a case

such as this. Nor does the legislative history provide a definitive answer to this question.

Moreover, there is no prior judicial decision addressing, much less resolving, such issue.

However, certain practical considerations suggest that the IG’s authority necessarily falls short of

what he proposes.

The instant proceeding illustrates the point. Here, the Department of Health, through

OPMC and BPCM, was indisputably responsible for protecting non-Medicaid and Medicaid

patients alike by determining whether their health and safety could be entrusted to petitioner’s

care, and, if so, on what terms. Given the obvious importance of avoiding duplicative

Departmental work and potentially inconsistent intra-Departmental results, the legislature did not

likely intend that the Medicaid IG in such a case might second-guess the Department by also

investigating or evaluating whether the physician in question would present a potential danger to

a sub-set of the patient population, ie., Medicaid recipients. The IG was likelier meant instead

to defer to the conclusions of his sister Departmental units in such regard.

It is noted, however, that in this case the Medicaid IG did not purport to investigate or

independently evaluate petitioner. Indeed, respondents do not claim that the IG’s determination

was anything other than an automatic denial based on the content of the Agreement. To be sure,

the Agreement contained petitioner’s concession that she would not contest the two charges

against her. But it also in effect contained, as noted above, the Department’s conclusion that,

after the 12-month penalty, she could safely be returned to hospital employment under the

stipulated conditions. In the face of such acknowledgment by Departmental staff who had

directly and at length been involved in the review of petitioner’s case, the IG’s perfunctory

refusal to reinstate petitioner – thus hampering her return to such employment -wa s baseless. In

other words, it was arbitrary and capricious.

The same adjectives might be applied to the IG’s

apparent belief that petitioner could be passed from one bureau “within” the Department to

another for serial dispositions reflecting inconsistent resolutions of the same core question of

patient health and safety. Indeed, such a notion runs counter to the agency “coordination” that
the legislature set as an operative theme for the IG (see Public Health Law 9 32([18],[30]).

In view of the foregoing, which moots petitioner’s alternative request for relief against

OPMC, there is no need to decide whether such request is, as respondents argue, premature.

Instead, it is

ADJUDGED that, for the reasons discussed above, Article 78 relief is warranted in this

case, and the petition therefore is granted to the extent that it seeks relief against the IG. The

challenged determination is hereby annulled, and the IG is directed to reinstate petitioner

forthwith to the roster of Medicaid providers.

This constitutes the decision and judgment of the c o u i t

Dated: June 2 4 , 2 0 0 9

ENTER:

J.S.C.

Milford Hosp., Inc. v. Fed. Ins. Co.,

Milford Hosp., Inc. v. Fed. Ins. Co.,
No. X01CV010075817S (Conn. Super. Ct. Oct. 15, 2002)

A hospital and its CEO sued their directors and officers ("D&O")
liability insurer for breach of contract after it refused to pay for 100% of
the defense costs related to a suit brought against the hospital, the CEO, and
a for-profit subsidiary practice plan. The insurer claimed responsibility only
for the portion of the legal fees attributable to the hospital and CEO, and
refused to pay for the portion of those fees that it believed was attributable
to the practice plan. The hospital and CEO argued that the insurer should cover
all of the legal costs associated with the lawsuit. The Superior Court of Connecticut
refused to grant summary judgment to the hospital and CEO, holding that they
were unable to show both that the insurance policy covered the practice plan
and that no portion of the defense could be attributed solely to the practice
plan.

Miguel M. v. Barron (Summary)

HIPAA

Miguel M. v. Barron, 2011 N.Y. Slip Op. 03886 (N.Y. May 10, 2011)

The Court of Appeals of New York reversed a judgment ordering a mentally ill man to receive Assisted Outpatient Treatment (“AOT”), based on a finding that the records of the man’s mental illness were improperly disclosed to the state department of health, in violation of the federal HIPAA privacy regulations and, thus, should not be allowed into evidence during the course of court proceedings to force mental health services upon the man. The court rejected the department of health’s arguments that the disclosures could fall into the public health or treatment exceptions under HIPAA, which permit disclosure without the patient’s authorization. The court noted that treating one man’s mental illness is not consistent with the public health exception, which was designed to address widespread health issues, such as epidemics. The court also held that the treatment exception did not apply because the purpose of that exception is to facilitate the sharing of information among health care providers, not to foster government attempts to force treatment on mentally ill patients.

Mikes v. Straus,

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

_______________

August Term, 2000

(Argued: May 23, 2001 Decided: December 19, 2001 )

Docket Nos. 00-6269, 00-6270

_______________

PATRICIA S. MIKES, U.S. Gov’t. Ex Rel., Patricia S.
Mikes,

Plaintiff-Appellant-Cross-Appellee,

MARC J. STRAUS, JEFFREY AMBINDER, ELIOT L. FRIEDMAN,

Defendants-Appellees-Cross-Appellants.

_______________

Before: CARDAMONE, F. I. PARKER,
Circuit Judges, and SPATT*,
District Judge.

_______________

This appeal is taken from a judgment
entered August 7, 2000 in the United States District Court for the Southern
District of New York (McMahon, J.). Plaintiff appeals the district court’s grant
of summary judgment dismissing her complaint under the federal False Claims
Act, which alleged that the defendants requested Medicare reimbursement for
medical procedures performed in a substandard manner. Plaintiff also appeals
the district court’s award of attorneys’ fees to defendants, while defendants
cross-appeal the amount of the award.

Affirmed.

_______________

HAROLD R. BURKE, Greenwich, Connecticut (Holland Kaufmann & Bartels,
LLC, Greenwich, Connecticut, of counsel), for Plaintiff-Appellant Patricia
S. Mikes, M.D.

BARRY B. CEPELEWICZ, White Plains,
New York (David J. Meiselman, Arthur
G. Larkin, Meiselman, Denlea, Packman & Eberz, P.C., White Plains, New York,
of counsel), for Defendants-Appellees Marc J. Straus, M.D., Jeffrey M. Ambinder,
M.D. and Eliot L. Friedman, M.D.

GIDEON A. SCHOR, Assistant United
States Attorney, New York, New York
(Jeffrey Oestericher, Assistant United States Attorney, Mary Jo White, United
States Attorney for the Southern District of New York, New York, New York, of
counsel), for Amicus Curiae United States of America.

JESSIE K. LIU, Washington, D.C.
(Paul M. Smith, Robert M. Portman,
Jenner & Block, LLC, Washington, D.C., of counsel), for Amici Curiae
American Medical Association, Medical Society of the State of New York, American
Academy of Family Physicians, American Academy of Orthopaedic Surgeons, American
Association of Neurological Surgeons-Congress of Neurological Surgeons, American
College of Chest Physicians, American Society of Cataract and Refractive Surgery,
and Association of American Medical Colleges.

_______________

Anthony L. DeWitt, Jefferson City,
Missouri (Bartimus, Frickleton, Robertson
& Obetz, PC, Jefferson City, Missouri, of counsel), filed a brief for
the American Association for Respiratory Care as Amicus Curiae.

Amy M. Wilken, Washington, D.C.
(Dylan G. Trache, Taxpayers Against
Fraud, The False Claims Act Legal Center, Washington, D.C.; Bruce J. Terris,
Terris, Pravlik & Millian, LLP, Washington, D.C., of counsel), filed
a brief for Taxpayers Against Fraud, The False Claims Act Legal Center as Amicus
Curiae.

_______________

CARDAMONE, Circuit Judge:

On this appeal we review a complaint asserting
violations of the False Claims Act (Act), 31 U.S.C. §3729 et seq.
(1994), brought by a plaintiff employee against her former employers, who are
health care providers. The appeal raises issues of first impression in this
Circuit concerning the applicability of medical standards of care to the Act.

Congress enacted the False Claims Act after
disclosure of widespread fraud during the War-Between-The-States revealed that
the union government had been billed for nonexistent or worthless goods, had
been charged exorbitant prices, and had its treasury plundered by profiteering
defense contractors. See United States v. McNinch, 356 U.S. 595,
599 (1958). In 1986 the Act was substantially amended to combat fraud in the
fields of defense and health care. See S. Rep. No. 99-345, at 2-4, 8
(1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5267-73. As of February
2000 over half of the $3.5 billion recovered since that amendment derived from
cases alleging fraud against the Department of Health and Human Services. See
Shelley R. Slade & Thomas A. Colthurst, Health-Care Fraud and the False
Claims Act: The Supreme Court Supports a Federal Weapon, 10 Bus. L. Today,
Sept.-Oct. 2000, at 24, 27.

The Act contains a qui tam
provision designed to encourage private individuals to file suit by offering
them a percentage of any money recovered. Those persons bringing a qui
tam suit are known colloquially as whistle-blowers. The plaintiff in
this case purports to blow the whistle on those practices of her employers she
believes violate the Medicare statute, payment for which would defraud the government.
Regardless of whether such suit is successful or unsuccessful (and here it is
unsuccessful), a tale-bearer stands out, and risks being thought as bad as those
alleged to be the tale-makers.

BACKGROUND

A. Facts

In 1991 defendants Dr. Marc J. Straus,
Dr. Jeffrey Ambinder and Dr. Eliot L. Friedman, physicians specializing in oncology
and hematology, formed a partnership called Pulmonary and Critical Care Associates
to extend their practice to include pulmonology, the branch of medicine covering
the lungs and related breathing functions. In July of that year defendants hired
plaintiff Dr. Patricia S. Mikes, a board-certified pulmonologist, to provide
pulmonary and critical care services in defendants’ offices in Westchester and
Putnam Counties, New York. In September 1991 Mikes discussed with Dr. Straus
her concerns relating to spirometry tests being performed in defendants’ offices.
Three months later, plaintiff was fired.

The parties dispute the reason for Mikes’
termination. Plaintiff says she was fired because she questioned how defendants
conducted their medical practice. Defendants declare that Mikes’ employment
agreement provided she was terminable-at-will, and that plaintiff had difficulty
procuring privileges at area hospitals.

On April 16, 1992 Mikes commenced the instant
litigation against defendants in the United States District Court for the Southern
District of New York, asserting not only causes of action for retaliatory discharge
and unlawfully withheld wages, but also a qui tam suit under the
False Claims Act. She served the complaint on the United States Attorney who,
on April 19, 1993, notified the district court that it declined its statutory
right to substitute for Mikes in the prosecution of this litigation. See
31 U.S.C. §3730(b)(2), (b)(4)(B).

B. Prior Proceedings

Plaintiff’s qui tam cause
of action under the Act alleged that defendants had submitted false reimbursement
requests to the federal government for spirometry services. Plaintiff contended
that defendants’ failure to calibrate the spirometers rendered the results so
unreliable as to be "false" under the Act. In addition, Mikes averred
that spirometry is an eligible service under the Medicare statute, and that
defendants submitted Medicare claims for reimbursement during the period relevant
to this dispute - now said to be 1034 claims from 1986 through 1993 -
for a total Medicare payout of $28,922.89.

After the government declined to take over
as plaintiff, Mikes served defendants with her complaint on December 22, 1993.
District Court Judge Vincent L. Broderick, before whom the complaint was then
pending, dismissed it in May 1994 finding fraud had not been pleaded with particularity
as required by Fed. R. Civ. P. 9(b). See United States ex rel. Mikes
v. Straus, 853 F. Supp. 115, 118 (S.D.N.Y. 1994).

Mikes then filed an amended complaint repeating
the spirometry, retaliation and withholding wages claims, and also asserting
that defendants improperly received Medicare reimbursement for referrals to
Magnetic Resonance Imaging (MRI) facilities in which they held a financial interest.
It was Mikes’ contention that receipt of these referral fees violated the anti-kickback
provision of the Medicare statute, 42 U.S.C. §1320a-7b(b)(1) (1994), and
thus defendants’ claims for reimbursement for the MRIs also violated the False
Claims Act. District Court Judge William C. Conner, now assigned to the case,
denied a motion to dismiss the False Claims Act causes of action, and ordered
arbitration of the employment-based claims. See United States ex rel.
Mikes v. Straus, 889 F. Supp. 746, 751-57 (S.D.N.Y. 1995).

Mikes then filed in March 1996 a second
amended complaint that eliminated the claim for improperly withheld wages, and
on July 20, 1999 filed a three count supplemental complaint - the pleading
relevant to the present appeal - containing only the spirometry claims
brought under the False Claims Act. The case was again reassigned, this time
to District Court Judge Colleen McMahon.

Defendants moved for summary judgment on
August 13, 1999, and the government again chose not to intervene. In granting
defendants’ motion on November 18, 1999, the district court ruled that submitting
a claim for a service that was not provided in accordance with the relevant
standard of care does not make that claim false or fraudulent for False Claims
Act purposes. United States ex rel. Mikes v. Straus, 84 F. Supp. 2d 427,
433 (S.D.N.Y. 1999). Defendants’ submission of claims for reimbursement, the
court continued, did not implicitly certify that their performance of spirometry
conformed to any qualitative standard. See id. at 436-38. And,
it concluded, that even were the Medicare claims objectively false, plaintiff
had not shown defendants submitted the claims with the requisite scienter. See
id. at 438-39. Plaintiff’s motion for reconsideration was denied. United
States ex rel. Mikes v. Straus, 78 F. Supp. 2d 223, 224 (S.D.N.Y. 1999).

After plaintiff’s complaint had been dismissed,
defendants asked for attorneys’ fees pursuant to §3730(d)(4) of the Act.
The district court conducted a two-day bench trial and found plaintiff’s withdrawn
MRI claims were vexatious, but that her spirometry claims were not. See
United States ex rel. Mikes v. Straus, 98 F. Supp. 2d 517, 529 (S.D.N.Y.
2000). It held that defendants Ambinder and Friedman were entitled to either
two-thirds of any attorneys’ fees attributable solely to defending the MRI claims
or a default fee of $5000. See id. at 530.

Despite defendants’ declaration that they
had expended $437,000 defending the action, the district court agreed with the
magistrate judge - to whom the attorneys’ fees issue had been referred
- that defendants’ records did not sufficiently delineate the time spent
between the MRI and spirometry causes of action. Judge McMahon accordingly awarded
defendants only the default sum of $5000. From this disposition, plaintiff appeals
the grant of summary judgment and the award of attorneys’ fees for defendants.
Defendants cross-appeal with respect to the amount of the attorneys’ fees award.
1 We affirm.

C. Spirometry

Before turning to a discussion of the law,
it will be helpful to define spirometry - a subject that lies at the heart
of this case - and plaintiff’s allegations regarding defendants’ performance
of this diagnostic test. Spirometry is an easy-to-perform pulmonary function
test used by doctors to detect both obstructive (such as asthma and emphysema)
and restrictive (such as pulmonary fibrosis) lung diseases. The type of spirometers
used by defendants measures the pressure change when a patient blows into a
mouthpiece, thereby providing the doctor with on-the-spot analysis of the volume
and speed by which patients can exhale. The spirometry equipment consists of
readily transportable lightweight machines, and defendants apparently used at
least one in each of their several offices.

Plaintiff’s expert stated that spirometers
are susceptible to inaccuracy through time and usage because they become clogged,
causing false readings. Erroneous measurements may also arise from damage to
the instrument through cleaning or disturbance during transport, or from variations
in barometric pressure, temperature or humidity. Mikes claims that guidelines
first published in 1979 and later updated in 1987 and 1994 by the American Thoracic
Society (ATS guidelines), a division of the American Lung Association, set out
the generally accepted standards for spirometry. To ensure accuracy, these guidelines
recommend daily calibration of spirometers by use of a three liter calibration
syringe, the performance of three successive trials during test administration
and the appropriate training of spirometer technicians. In support of her contention
that the ATS guidelines are the medical standard for spirometry, Mikes notes
they are incorporated by reference in the federal Longshore and Harbor Workers’
Compensation Act, 33 U.S.C. §902(10) (1994), and included in regulations
promulgated pursuant to the Social Security Act, see 20 C.F.R. pt. 404,
subpt. P, app. 1, pt. A, §3.00(E) (2001), the Radiation Exposure Compensation
Act, see 28 C.F.R. §79.36(d)(1)(ii)(B)(1) (2001), and the
Federal Mine Safety and Health Act, 52 Fed. Reg. 34,460, 34,551 (Sept. 11, 1987).

Mikes maintains further that defendants’
performance of spirometry did not conform to the ATS guidelines and thus would
yield inherently unreliable data. She argues that defendants allowed medical
assistants to perform spirometry tests when they were not trained in its proper
administration. Plaintiff states she personally observed the medical assistants
fail to calibrate the spirometer daily and that she was informed the assistants
could not recall the last time the machine had been calibrated. Moreover, defendants
did not possess a three liter calibration syringe, nor did the assistants properly
instruct the patients during the administration of the test or perform three
successive tests.

Defendants insist that after plaintiff
raised her concerns regarding the spirometer and its use in their practice,
they told her to review exam results for inaccuracy, and to train the medical
assistants in proper spirometric administration. Dr. Straus reports that plaintiff
did not apprise the practice of any false readings in response to this directive,
nor did she supervise the medical assistants. With this factual background,
we turn to the law.

DISCUSSION

I Elements of Plaintiff’s False Claims
Act Causes of Action

Mikes challenges the district court’s grant
of summary judgment to defendants that resulted in the dismissal of her False
Claims Act causes of action. Summary judgment is a remedy we review de
novo, see Hamilton Bank, N.A. v. Kookmin Bank, 245 F.3d
82, 89 (2d Cir. 2001), affirming only if we conclude "there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law," Fed R. Civ. P. 56(c); see also Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-49 (1986).

Liability under the False Claims Act occurs
when a person

(1) knowingly presents, or causes
to be presented, to an officer or employee of the United States Government …
a false or fraudulent claim for payment or approval;

(2) knowingly makes, uses, or
causes to be made or used, a false record or statement to get a false or fraudulent
claim paid or approved by the Government; [or]

(3) conspires to defraud the Government
by getting a false or fraudulent claim allowed or paid.

31 U.S.C. §3729(a). Plaintiff brought
suit under each of these subdivisions, but since our analysis applies equally
to all three, we limit discussion primarily to the first. As the language of
that subdivision makes clear, to impose liability under the Act Mikes must show
that defendants (1) made a claim, (2) to the United States government, (3) that
is false or fraudulent, (4) knowing of its falsity, and (5) seeking payment
from the federal treasury. Because plaintiff’s claims fail on other grounds,
we need not decide whether the Act contains another element of proof, namely
a showing that the United States sustained damages. Cf. Harrison v.
Westinghouse Savannah River Co., 176 F.3d 776, 785 n.7 (4th Cir. 1999) (noting
split of authority on whether False Claims Act contains damages element). We
set out briefly the requirements of the above five elements.

The Act expansively defines the term "claim"
to cover "any request or demand, whether under a contract or otherwise,
for money or property … if the United States Government provides any portion
of the money or property which is requested or demanded." 31 U.S.C. §3729(c).
As required by the Medicare implementing regulations, see 42 C.F.R. §424.32
(2000), defendants submitted Medicare reimbursement claims for spirometry on
form "HCFA-1500" or an electronic equivalent. Each submission of the
HCFA-1500 form meets the first two elements of a False Claims Act cause of action
in that it qualifies as a claim made to the United States government. See
United States v. Krizek, 111 F.3d 934, 940 (D.C. Cir. 1997) (holding
that number of claims under Act based upon submission of HCFA-1500 forms).

Regarding the third element, the term "false
or fraudulent" is not defined in the Act. A common definition of "fraud"
is "an intentional misrepresentation, concealment, or nondisclosure for
the purpose of inducing another in reliance upon it to part with some valuable
thing belonging to him or to surrender a legal right." Webster’s Third
New International Dictionary 904 (1981). "False" can mean "not
true," "deceitful," or "tending to mislead." Id.
at 819. The juxtaposition of the word "false" with the word "fraudulent,"
plus the meanings of the words comprising the phrase "false claim,"
suggest an improper claim is aimed at extracting money the government otherwise
would not have paid. See Clarence T. Kipps, Jr. et al.,
Materiality as an Element of Liability Under the False Claims Act, A.B.A.
Center for Continuing Legal Educ. Nat’l Inst. (1998), WL N98CFCB ABA-LGLED B-37,
B-46 ("[A] claim cannot be determined to be true or false without consideration
of whether the decisionmaker should pay the claim - that is, a claim is
‘false’ only if the Government or other customer would not pay the claim if
the facts about the misconduct alleged to have occurred were known.").

This notion also applies to subdivisions
(2) & (3) of 31 U.S.C. §3729(a). The former prohibits a party from
knowingly using or making "a false record or statement to get a false
or fraudulent claim paid or approved by the Government," id.
§3729(a)(2) (emphasis added), while the latter prohibits conspiring "to
defraud the Government by getting a false or fraudulent claim allowed or
paid," id. §3729(a)(3) (emphasis added). The language of
these provisions plainly links the wrongful activity to the government’s decision
to pay.

On this appeal, the parties’ dispute whether
defendants’ Medicare claims rise to the level of being false or fraudulent.
They disagree, in addition, as to the fourth element - i.e., whether
any false or fraudulent claims were "knowingly" made. The Act defines
"knowingly" as either: (1) possessing actual knowledge; (2) acting
in deliberate ignorance of falsity; or (3) acting in reckless disregard of falsity.
See id. §3729(b).

The fifth element of the Act further supports
the conclusion that the statute reaches only those claims with the potential
wrongfully to cause the government to disburse money. The Senate Report accompanying
the 1986 amendments to the Act states that "[t]he purpose of [the amendments]
is to enhance the Government’s ability to recover losses sustained as a result
of fraud against the Government." S. Rep. No. 99-345, at 1, reprinted
in 1986 U.S.C.C.A.N. 5266, 5266. The Supreme Court has further indicated
that the Act’s primary purpose is to indemnify the government - through
its restitutionary penalty provisions - against losses caused by a defendant’s
fraud. See United States ex rel. Marcus v. Hess, 317 U.S. 537,
549, 551-52 (1943). With these understandings of the Act’s language in mind,
we turn to plaintiff’s contentions.

II "Legally False" Certification
Theory

The thrust of plaintiff’s qui tam
suit is that the submission of Medicare reimbursement claims for spirometry
procedures not performed in accordance with the relevant standard of care, that
is, the ATS Guidelines - violates the False Claims Act. Mikes relies principally
on the "certification theory" of liability, which is predicated upon
a false representation of compliance with a federal statute or regulation or
a prescribed contractual term. See Lisa Michelle Phelps, Note, Calling
off the Bounty Hunters: Discrediting the Use of Alleged Anti-Kickback Violations
to Support Civil False Claims Actions, 51 Vand. L. Rev. 1003, 1014-15 (1998).
This theory has also been called "legally false" certification. See
Robert Fabrikant & Glenn E. Solomon, Application of the Federal False
Claims Act to Regulatory Compliance Issues in the Health Care Industry,
51 Ala. L. Rev. 105, 111-12 (1999). It differs from "factually false"
certification, which involves an incorrect description of goods or services
provided or a request for reimbursement for goods or services never provided.
Id.

Although the False Claims Act is "not
designed to reach every kind of fraud practiced on the Government," United
States v. McNinch, 356 U.S. at 599, it was intended to embrace at least
some claims that suffer from legal falsehood. Thus, "a false claim may
take many forms, the most common being a claim for goods or services not provided,
or provided in violation of contract terms, specification, statute, or regulation."
S. Rep. No. 99-345, at 9, reprinted in 1986 U.S.C.C.A.N. 5266, 5274 (emphasis
added).

Just as clearly, a claim for reimbursement
made to the government is not legally false simply because the particular service
furnished failed to comply with the mandates of a statute, regulation or contractual
term that is only tangential to the service for which reimbursement is sought.
Since the Act is restitutionary and aimed at retrieving ill-begotten funds,
it would be anomalous to find liability when the alleged noncompliance would
not have influenced the government’s decision to pay. Accordingly, while the
Act is "intended to reach all types of fraud, without qualification, that
might result in financial loss to the Government," United States v.
Neifert-White Co., 390 U.S. 228, 232 (1968), it does not encompass those
instances of regulatory noncompliance that are irrelevant to the government’s
disbursement decisions.

We join the Fourth, Fifth, Ninth, and District
of Columbia Circuits in ruling that a claim under the Act is legally false only
where a party certifies compliance with a statute or regulation as a condition
to governmental payment. See United States ex rel. Siewick v. Jamieson
Sci. & Eng’g, Inc., 214 F.3d 1372, 1376 (D.C. Cir. 2000) ("[A]
false certification of compliance with a statute or regulation cannot serve
as the basis for a qui tam action under the [False Claims Act]
unless payment is conditioned on that certification."); Harrison,
176 F.3d at 786-87, 793; United States ex rel. Thompson v. Columbia/HCA Healthcare
Corp., 125 F.3d 899, 902 (5th Cir. 1997); United States ex rel. Hopper
v. Anton, 91 F.3d 1261, 1266-67 (9th Cir. 1996).

We add that although materiality is a related
concept, our holding is distinct from a requirement imposed by some courts that
a false statement or claim must be material to the government’s funding decision.
See, e.g., Harrison, 176 F.3d at 785. A materiality requirement
holds that only a subset of admittedly false claims is subject to False Claims
Act liability. Cf. United States ex rel. Cantekin v. Univ. of Pittsburgh,
192 F.3d 402, 415 (3d Cir. 1999), cert. denied, 531 U.S. 880 (2000) (finding
that Hopper held that not every regulatory violation is a "knowingly
false statement" and distinguishing this holding from a materiality requirement).
We rule simply that not all instances of regulatory noncompliance will cause
a claim to become false. We need not and do not address whether the Act contains
a separate materiality requirement.

A. Express False Certification

We analyze first plaintiff’s argument that
defendants’ claims contained an express false certification. An expressly false
claim is, as the term suggests, a claim that falsely certifies compliance with
a particular statute, regulation or contractual term, where compliance is a
prerequisite to payment.

Plaintiff contends that by submitting claims
for Medicare reimbursement on HCFA-1500 forms or their electronic equivalent,
defendants expressly certified that they would comply with the terms set out
on the form. Form HCFA-1500 expressly says: "I certify that the services
shown on this form were medically indicated and necessary for the health of
the patient and were personally furnished by me or were furnished incident to
my professional service by my employee under my immediate personal supervision."
Both the form, which further provides "No Part B Medicare benefits may
be paid unless this form is received as required by existing law and regulations,"
and the Medicare Regulations, see 42 C.F.R. §424.32, state that
certification is a precondition to Medicare reimbursement. We agree that defendants
certified they would comply with the terms on the form and that such compliance
was a precondition of governmental payment. Cf. United States ex rel.
Piacentile v. Wolk, Civ.A.No.93-5773, 1995 WL 20833, at *2-3 (E.D. Pa. Jan.
17, 1995) (finding False Claims Act violation where defendant altered Medicare
Certificates of Medical Necessity without doctor’s authorization, because the
forms contained a certification that the claims represented the physician’s
judgment).

Yet plaintiff’s objections to defendants’
spirometry tests do not implicate the standard set out in the HCFA-1500 form
that the procedure was dictated by "medical necessity." The term "medical
necessity" does not impart a qualitative element mandating a particular
standard of medical care, and Mikes does not point to any legal authority requiring
us to read such a mandate into the form. Medical necessity ordinarily indicates
the level - not the quality - of the service. For example, the requisite
level of medical necessity may not be met where a party contends that a particular
procedure was deleterious or performed solely for profit, see United
States ex rel. Kneepkins v. Gambro Healthcare, Inc., 115 F. Supp. 2d 35,
41-42 (D. Mass. 2000) (procedures chosen solely for defendants’ economic gain
are not "medically necessary" as required by claim submission form),
or where a party seeks reimbursement for a procedure that is not traditionally
covered, see Rush v. Parham, 625 F.2d 1150, 1156 (5th Cir. 1980)
(upholding state’s exclusion of experimental medical treatment from definition
of "medically necessary" services under Medicaid).

This approach to the phrase "medically
necessary" - as applying to ex ante coverage decisions
but not ex post critiques of how providers executed a procedure
- would also conform to our understanding of the phrase "reasonable
and necessary" as used in the Medicare statute, 42 U.S.C. §1395y(a)(1)(A)
(1994) (disallowing payment for items or services not reasonable and necessary
for diagnosis or treatment). See New York ex rel. Bodnar v. Sec’y
of Health & Human Servs., 903 F.2d 122, 125 (2d Cir. 1990) (acknowledging
Secretary’s authority, in determining whether procedure is "reasonable
and necessary," to consider type of service provided and whether service
was provided in appropriate, cost-effective setting); Goodman v. Sullivan,
891 F.2d 449, 450-51 (2d Cir. 1989) (per curiam) (affirming exclusion of experimental
procedures from Medicare coverage pursuant to requirement that procedures be
"reasonable and necessary"); see also Friedrich v.
Sec’y of Health & Human Servs., 894 F.2d 829, 831 (6th Cir. 1990) (noting
that the Health Care Financing Administration, when determining whether a procedure
is "reasonable and necessary," considers the procedure’s safety, effectiveness,
and acceptance by medical community).

Moreover, the section of the Medicare statute
setting forth conditions of participation has separate provisions governing
the medical necessity of a given procedure and its quality. Compare 42
U.S.C. §1320c-5(a)(1) (1994) (practitioner shall assure that the service
"will be provided economically and only when, and to the extent, medically
necessary"), with id. §1320c-5(a)(2) (1994) (practitioner
shall assure that the service "will be of a quality which meets professionally
recognized standards of health care"). This statutory design supports the
conclusion that the medical necessity for a procedure and its quality are distinct
considerations.

Inasmuch as Mikes challenges only the quality
of defendants’ spirometry tests and not the decisions to order this procedure
for patients, she fails to support her contention that the tests were not medically
necessary. Nor has she proffered evidence to support an allegation that the
defendants did not "personally furnish" the spirometry tests as required
by the HCFA-1500 form. The form allows for reimbursement when a procedure is
"rendered under the physician’s immediate personal supervision by his/her
employee," which covers the medical assistants’ performance of spirometry
at defendants’ direction. Thus, plaintiff’s cause of action insofar as it is
founded on express false certification is without merit.

B. Implied False Certification

1. Viability of Implied Certification
Theory

Plaintiff insists that defendants’ submissions
to the government for payment were impliedly false certifications. An implied
false certification claim is based on the notion that the act of submitting
a claim for reimbursement itself implies compliance with governing federal rules
that are a precondition to payment. See Phelps, supra, at 1015.
Foundational support for the implied false certification theory may be found
in Congress’ expressly stated purpose that the Act include at least some kinds
of legally false claims, see S. Rep. No. 99-345, at 9, reprinted in
1986 U.S.C.C.A.N. 5266, 5274, and in the Supreme Court’s admonition that the
Act intends to reach all forms of fraud that might cause financial loss to the
government, see Neifert-White Co., 390 U.S. at 232.

The implied certification theory was applied
in Ab-Tech Construction, Inc. v. United States, 31 Fed. Cl. 429 (Fed.
Cl. 1994), aff’d, 57 F.3d 1084 (Fed. Cir. 1995) (unpublished table decision).
The Court of Federal Claims held that the defendants’ submission of payment
vouchers, although containing no express representation, implicitly certified
their continued adherence to the eligibility requirements of a federal small
business statutory program. See id. at 434. The failure by defendants
to honor the terms of this certification rendered their claims for payment false,
resulting in False Claims Act liability. See id. at 433-34.

But caution should be exercised not to
read this theory expansively and out of context. The Ab-Tech rationale,
for example, does not fit comfortably into the health care context because the
False Claims Act was not designed for use as a blunt instrument to enforce compliance
with all medical regulations - but rather only those regulations that
are a precondition to payment - and to construe the impliedly false certification
theory in an expansive fashion would improperly broaden the Act’s reach. Moreover,
a limited application of implied certification in the health care field reconciles,
on the one hand, the need to enforce the Medicare statute with, on the other
hand, the active role actors outside the federal government play in assuring
that appropriate standards of medical care are met. Interests of federalism
counsel that "the regulation of health and safety matters is primarily,
and historically, a matter of local concern." Hillsborough County v.
Automated Med. Labs., Inc., 471 U.S. 707, 719 (1985); accord Medtronic,
Inc. v. Lohr, 518 U.S. 470, 475 (1996).

Moreover, permitting qui tam
plaintiffs to assert that defendants’ quality of care failed to meet medical
standards would promote federalization of medical malpractice, as the federal
government or the qui tam relator would replace the aggrieved
patient as plaintiff. See Patrick A. Scheiderer, Note, Medical Malpractice
as a Basis for a False Claims Action?, 33 Ind. L. Rev. 1077, 1098-99 (2000).
Beyond that, we observe that the courts are not the best forum to resolve medical
issues concerning levels of care. State, local or private medical agencies,
boards and societies are better suited to monitor quality of care issues. See
Fabrikant & Solomon, supra, at 156-57.

For these reasons, we think a medical provider
should be found to have implicitly certified compliance with a particular rule
as a condition of reimbursement in limited circumstances. Specifically, implied
false certification is appropriately applied only when the underlying statute
or regulation upon which the plaintiff relies expressly states the provider
must comply in order to be paid. See Siewick, 214 F.3d at 1376
(holding that court will "infer certification from silence" only when
"certification was a prerequisite to the government action sought").
Liability under the Act may properly be found therefore when a defendant submits
a claim for reimbursement while knowing - as that term is defined by the
Act, see 31 U.S.C. §3729(b) - that payment expressly is precluded
because of some noncompliance by the defendant.

2. Plaintiff’s Allegations Under the
Implied Theory

Mikes asserts that compliance with §§1395y(a)(1)(A)
and 1320c-5(a) of the Medicare statute is a precondition to a request for federal
funds and that submission of a HCFA-1500 form attests by implication to the
providers’ compliance with both of those provisions.

a. §1395y(a)(1)(A). Section
1395y(a)(1)(A) of the Medicare statute states that "no payment may be made
under [the Medicare statute] for any expenses incurred for items or services
which … are not reasonable and necessary for the diagnosis or treatment
of illness or injury or to improve the functioning of a malformed body member."
42 U.S.C. §1395y(a)(1)(A) (emphasis added). Because this section contains
an express condition of payment - that is, "no payment may be made"
- it explicitly links each Medicare payment to the requirement
that the particular item or service be "reasonable and necessary."
The Supreme Court has noted that this section precludes the government from
reimbursing a Medicare provider who fails to comply. See Heckler v.
Ringer, 466 U.S. 602, 605 (1984); see also United Seniors
Ass’n v. Shalala, 182 F.3d 965, 967 (D.C. Cir. 1999) ("If a service
is deemed not to have been reasonable and necessary, Medicare will not make
payment and the doctor generally is prohibited from charging the patient.");
Mount Sinai Hosp., Inc. v. Weinberger, 517 F.2d 329, 334 (5th Cir. 1975)
(explaining that §1395y controls whether particular services are covered
by Medicare). Since §1395y(a)(1)(A) expressly prohibits payment
if a provider fails to comply with its terms, defendants’ submission of the
claim forms implicitly certifies compliance with its provision.

Yet, Mikes’ insistence that defendants’
performance of spirometry was not reasonable and necessary is without support.
As set forth in our discussion of express certification, the requirement that
a service be reasonable and necessary generally pertains to the selection of
the particular procedure and not to its performance. See Goodman,
891 F.2d at 450-51. While such factors as the effectiveness and medical acceptance
of a given procedure might determine whether it is reasonable and necessary,
the failure of the procedure to conform to a particular standard of care ordinarily
will not. See id. at 450 (noting that under §1395(y)(a)(1)(A)
the Secretary of Health and Human Services prohibits "payment of benefits
for any experimental, investigational, or unproven treatment or diagnostic method
not yet generally accepted in the medical profession"). Since plaintiff
contends only that defendants’ performance of spirometry was qualitatively
deficient, her allegations that defendants falsely certified compliance with
§1395y(a)(1)(A) may not succeed.

b. §1320c-5(a). Plaintiff’s
implied false certification claims rely more heavily upon §1320c-5(a).
That section does mandate a qualitative standard of care in that it provides

It shall be the obligation of
any health care practitioner … who provides health care services for which
payment may be made … to assure, to the extent of his authority that services
or items ordered or provided by such practitioner …

(1) will be provided economically
and only when, and to the extent, medically necessary;

(2) will be of a quality which
meets professionally recognized standards of health care; and

(3) will be supported by evidence
of medical necessity and quality … as may reasonably be required by a reviewing
peer review organization in the exercise of its duties and responsibilities.

42 U.S.C. §1320c-5(a) (emphasis added).

Mikes avers that the ATS guidelines comprise
a "professionally recognized standard of health care" for spirometry,
and that defendants’ failure to conform to those guidelines violates the Medicare
statute. She believes defendants, by submitting HCFA-1500 forms for spirometry
tests that did not comply with the ATS guidelines, engaged in implied false
certification. But plaintiff’s allegations cannot establish liability under
the False Claims Act because - unlike §1395y(a)(1)(A) - the
Medicare statute does not explicitly condition payment upon compliance with
§1320c-5(a).

Instead, §1320c-5(a) simply states
that "[i]t shall be the obligation" of a practitioner who provides
a medical service "for which payment may be made … to assure" compliance
with the section. Hence, it may be seen that §1320c-5(a) acts prospectively,
setting forth obligations for a provider to be eligible to participate in the
Medicare program. See Fischer v. United States, 529 U.S. 667,
672 (2000) (describing §1320c-5(a) as a statutory obligation to qualify
to participate in the Medicare program); see also Corkill v.
Shalala, 109 F.3d 1348, 1350 (9th Cir. 1997) ("In order to qualify
for reimbursement under the Medicare program, a physician must comply with three
statutory requirements [including §1320c-5(a)].").

The structure of the statute further informs
us that §1320c-5(a) establishes conditions of participation, rather than
prerequisites to receiving reimbursement. The statute empowers peer review organizations
to monitor providers’ compliance with §1320c-5(a). See 42 U.S.C.
§1320c-3(a) (1994). If a peer review organization determines that a provider
has "failed in a substantial number of cases" to comply with the requirements
of §1320c-5(a) or that the provider has "grossly and flagrantly violated"
the section, the organization may - after reasonable notice and an opportunity
for corrective action - recommend sanctions. See id. §1320c-5(b)(1)
(1994 & Supp. V 1999). If the Secretary agrees that sanctions should be
imposed, and further finds the provider unwilling or unable substantially to
comply with its obligations, the Secretary may exclude the provider from the
Medicare program. See id.; see also Doyle v.
Sec’y of Health & Human Servs., 848 F.2d 296, 298 (1st Cir. 1988) (explaining
statutory and regulatory procedures).

The fact that §1320c-5(b) permits
sanctions for a failure to maintain an appropriate standard of care only where
a dereliction occurred in "a substantial number of cases" or a violation
was especially "gross[] and flagrant[]" makes it evident that the
section is directed at the provider’s continued eligibility in the Medicare
program, rather than any individual incident of noncompliance. See Fabrikant
& Solomon, supra, at 122-23 (arguing that quality of care standards
are conditions of participation in the Medicare program and not conditions of
payment). This conclusion is reinforced by the ultimate sanction provided by
§1320c-5(b)(1): exclusion of the provider from Medicare eligibility. Further,
the section explicitly provides that the Secretary may authorize an alternate
remedy - repayment of the cost of the noncompliant service to the United
States - "as a condition to the continued eligibility" of the
health care provider in the Medicare program. 42 U.S.C. §1320c-5(b)(3).
Accordingly, §1320c-5(a) is quite plainly a condition of participation
in the Medicare program.

Since §1320c-5(a) does not expressly
condition payment on compliance with its terms, defendants’ certifications
on the HCFA-1500 forms are not legally false. Consequently, defendants did not
submit impliedly false claims by requesting reimbursement for spirometry tests
that allegedly were not performed according to the recognized standards of health
care.

Finally, our holding - that in submitting
a Medicare reimbursement form, a defendant implicitly certifies compliance with
§1395y(a)(1)(A), but not §1320c-5(a) - comports with Congress’
purpose as discussed earlier in this opinion. Section 1395y(a)(1)(A) mandates
that a provider’s choice of procedures be "reasonable and necessary";
it does not obligate federal courts to step outside their primary area of competence
and apply a qualitative standard measuring the efficacy of those procedures.
The quality of care standard of §1320c-5(a) is best enforced by those professionals
most versed in the nuances of providing adequate health care.

III Worthless Services Claim

The government in its amicus brief
and plaintiff at oral argument argue that the district court erred by not considering
whether the defendants’ submission of Medicare claims for substandard spirometry
essentially constituted requests for the reimbursement of worthless services.
An allegation that defendants violated the Act by submitting claims for worthless
services is not predicated upon the false certification theory. Instead, a worthless
services claim asserts that the knowing request of federal reimbursement for
a procedure with no medical value violates the Act irrespective of any certification.

The Ninth Circuit’s recent decision in
United States ex rel. Lee v. Smithkline Beecham, Inc., 245 F.3d 1048
(9th Cir. 2001), is the leading case on worthless services claims in the health
care arena. In Lee, the relator alleged that defendant, an operator of
regional clinical laboratories, falsified laboratory test data when test results
fell outside the acceptable standard of error. Id. at 1050. The Ninth
Circuit held that the false certification theory addressed in Hopper,
91 F.3d 1261, was only one form of action under the Act, and that the district
court should have considered the distinct and separate worthless services claim.
Lee, 245 F.3d at 1053. As the Ninth Circuit explained, "[i]n an
appropriate case, knowingly billing for worthless services or recklessly doing
so with deliberate ignorance may be actionable under §3729 [of the False
Claims Act], regardless of any false certification conduct." Id.

We agree that a worthless services claim
is a distinct claim under the Act. It is effectively derivative of an allegation
that a claim is factually false because it seeks reimbursement for a service
not provided. See Fabrikant & Solomon, supra, at 111-12. In
a worthless services claim, the performance of the service is so deficient that
for all practical purposes it is the equivalent of no performance at all.

We nevertheless find no liability in the
instant case because plaintiff makes no showing that defendants knowingly -
as the Act defines that term - submitted a claim for the reimbursement
of worthless services. We have adopted the Ninth Circuit’s standard that the
"requisite intent is the knowing presentation of what is known to be false"
as opposed to negligence or innocent mistake. Hagood v. Sonoma County Water
Agency, 81 F.3d 1465, 1478 (9th Cir. 1996) (quoted in United States ex
rel. Kreindler & Kreindler v. United Techs. Corp., 985 F.2d 1148, 1156
(2d Cir. 1993)).

Plaintiff fails to substantiate that defendants
knew their Medicare claims for reimbursement were false. At best, plaintiff
urges that defendants submitted Medicare claims knowing they did not conform
to the ATS guidelines. This allegation alone fails to satisfy the standard for
a worthless services claim. The notion of presenting a claim known to be false
does not mean the claim is incorrect as a matter of proper accounting, but rather
means it is a lie. See id. Defendants have presented such overwhelming
evidence of their genuine belief that their use of spirometry had medical value,
we conclude as a matter of law they did not submit their claims with the requisite
scienter.

Initially, the defendants claim to have
relied upon the spirometers’ instruction manual which - contrary to the
ATS guidelines - indicates that daily calibration is not required. Beside
the heading "calibration," the manual provides that "[t]he equipment
is properly calibrated at the time of shipment so that no calibration is required
except for periodical checks." Norman Levine, the defendants’ former chief
medical assistant and a non-party to this action, testified that he reviewed
the spirometers’ instruction manual at the time of purchase. A separate product
information booklet states without qualification that the spirometer conforms
to the ATS guidelines and controlling federal regulations. The booklet identifies
a three liter calibration syringe as only an "optional item."

Moreover, Levine testified that the individual
spirometers were sent out for periodic servicing, at which time the practice
would use loaner machines. Defendant Friedman confirmed that on occasion he
would direct Levine to send a spirometer out for recalibration. Levine also
averred that he received practical training on the operation of the machine
from the sales technicians who sold the spirometers. Finally, defendant Straus
claims that, shortly after the confrontation with plaintiff, he requested that
Levine pursue Mikes’ complaints regarding the spirometers to see if anything
could be done to rectify the alleged problem. Levine asserts that in response
he thoroughly reviewed the practice’s spirometry procedures and found no fault.

Defendants have thus proffered ample evidence
- most of which derives from disinterested non-party witnesses -
supporting their contention that they held a good faith belief that their spirometry
tests were of medical value. In light of this evidence, plaintiff’s unsupported
allegations to the contrary do not raise a triable issue of fact sufficient
to bar summary judgment. See Lipton v. Nature Co., 71 F.3d 464,
472 (2d Cir. 1995) (summary judgment is appropriate even when mental state is
at issue, so long as there are sufficient undisputed material facts); see
also Skouras v. United States, 26 F.3d 13, 14 (2d Cir. 1994) (per
curiam) (record justified district court’s determination at summary judgment
stage that defendants acted willfully).

IV Attorneys’ Fees

Both parties appeal aspects of the district
court’s award of attorneys’ fees to the defendants on plaintiff’s withdrawn
MRI claims. Mikes challenges the court’s holding that the MRI claims were frivolous,
while defendants object to the decision to limit the award to a default fee
of $5000. We review for abuse of discretion both the decision to grant attorneys’
fees under §3730(d)(4) of the False Claims Act and the amount. See
Orchano v. Advanced Recovery, Inc., 107 F.3d 94, 99 (2d Cir. 1997) (reviewing
award of attorneys’ fees under 42 U.S.C. §1988); Caisse Nationale de
Credit Agricole-CNCA v. Valcorp, Inc., 28 F.3d 259, 264, 266 (2d Cir. 1994)
(holding that abuse of discretion standard applies to all aspects of a decision
to impose sanctions under Fed. R. Civ. P. 11). In our review, we bear in mind
that an award of attorneys’ fees is well suited to the daily operations of the
district court because such a decision may ultimately combine extensive factfinding
ability with a large degree of discretion. Dague v. City of Burlington,
976 F.2d 801, 803 (2d Cir. 1992), rev’d in part on other grounds, 505
U.S. 557 (1992).

A. Decision to Award Attorneys’ Fees

Plaintiff’s principal objection derives
from the court’s decision to preclude all testimony regarding "Mrs. D,"
defendants’ former patient who Mikes alleged was improperly examined by use
of an MRI rather than by x-ray. Mikes had contended that defendants -
who held a financial interest in an MRI facility - received illicit remuneration
through referrals to this facility in violation of §1320a-7b of the Medicare
statute and in turn the False Claims Act. Mikes apparently sought to proffer
evidence regarding Mrs. D - mistakenly believing she was a Medicare patient
- to prove that Mikes’ MRI claims were brought in good faith. But the
district court reasoned that Mrs. D’s testimony should be disallowed because,
as a patient under 65 years of age, she was not Medicare eligible and thus plaintiff
could not rely upon Mrs. D’s treatment to plead a violation of the Medicare
statute.

We have not had occasion to analyze §3730(d)(4)
of the Act, which provides that a district court may award a defendant reasonable
attorneys’ fees against a qui tam relator "if the defendant
prevails in the action and the court finds that the claim of the person bringing
the action was clearly frivolous, clearly vexatious, or brought primarily for
purposes of harassment." Any one of these three conditions is sufficient
for an award of attorneys’ fees.

The Act’s legislative history suggests
that the standard of §3730(d)(4) is analogous to that used for claims for
attorneys’ fees brought under 42 U.S.C. §1988. See S. Rep. No. 99-345,
at 29, reprinted in 1986 U.S.C.C.A.N. 5266, 5294. It is noteworthy that
a plaintiff’s subjective bad faith is not an element under §1988. See
Davidson v. Keenan, 740 F.2d 129, 132-33 (2d Cir. 1984). Accordingly,
there could be an award for attorneys’ fees upon a finding that the MRI claims
were objectively frivolous, irrespective of plaintiff’s subjective
intent. A claim is frivolous when, viewed objectively, it may be said to have
no reasonable chance of success, and present no valid argument to modify present
law. See Caisse Nationale, 28 F.3d at 264; see also
Maglione v. Briggs, 748 F.2d 116, 118 (2d Cir. 1984) (per curiam) (whether
claim is frivolous under §1988 is an objective inquiry).

The district court was well justified in
finding that plaintiff’s MRI claims were objectively vexatious. The consulting
agreement between the defendants and the MRI facility in which they held a financial
interest provided for a flat consulting fee. Mikes, 98 F. Supp. 2d at
524. As the defendants’ remuneration would not vary with the number of patients
they referred, little incentive existed to refer extra patients to the facility.
Further, Judge McMahon found no evidence that any Medicare patient inappropriately
received an MRI and rejected plaintiff’s reliance on the case of Mrs. D, finding
such reliance objectively unreasonable. See id. at 524-25 ("Mrs.
D … was in fact in her late forties when she was seen at [defendants’ office]
- a fact that should have been apparent to Dr. Mikes, and that could easily
have been ascertained during discovery."). Since plaintiff’s allegations
were bereft of any objective factual support, they clearly had no chance of
success. Hence, an award of attorneys’ fees to defendants was fully justified.

B. Amount of District Court’s Award

Defendants challenge the directive from
the trial court that they differentiate between those legal services expended
on the MRI and the spirometry claims. They further argue that the default attorneys’
fee award of $5000 was grossly inadequate in light of the alleged $437,000 spent
to defend against Mikes’ action.

It was not an abuse of discretion to limit
the award. The Supreme Court has held that where a lawsuit presents "distinctly
different claims for relief that are based on different facts and legal theories"
the claims should be parsed out and attorneys’ fees granted to a plaintiff only
on successful claims. Hensley v. Eckerhart, 461 U.S. 424, 434-35 (1983).
Similarly, a defendant is entitled to attorneys’ fees for only those particular
claims of a plaintiff deemed to be frivolous. See Simon DeBartolo
Group, L.P. v. Richard E. Jacobs Group, Inc., 186 F.3d 157, 177-78 (2d Cir.
1999).

Plaintiff’s MRI claims are severable from
her spirometry claims. They do not have the same factual core and are not premised
on related legal theories. See Quaratino v. Tiffany & Co.,
166 F.3d 422, 425 (2d Cir. 1999). The MRI claims alleged that defendants improperly
referred patients to a facility in which they held a financial interest, relying
principally upon the Medicare statute’s self-remuneration provisions. The spirometry
claims, conversely, alleged substandard performance of a medical procedure,
relying principally upon §1320c-5(a) of the Medicare statute. The fact
that both claims were brought pursuant to the False Claims Act does not justify
treating them as one for purposes of an award of attorneys’ fees.

Since defendants were entitled to attorneys’
fees only on the MRI claims, they were required to provide those contemporaneous
time records that would allow the district court to determine the amount of
time spent litigating those claims. These records are required to specify the
name of each attorney working on the file, the date the work was done, the hours
spent, and the nature of the work performed. See New York State Ass’n
for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1147-48 (2d Cir. 1983).

Instead, defendants’ documentation calculated
their attorneys’ fees by taking the total costs of the litigation to date and
subtracting those billing entries that specifically referred to spirometry.
This figure was then divided in half, reflecting the district court’s holding
that, of the two types of claims, only the MRI claims were frivolous. As the
district court ruled, defendants failed to establish that their attorneys actually
expended half of their efforts on the MRI claims. If defendants’ attorneys spent
the great majority of their time on the spirometry claims, they clearly would
be entitled to receive less than half of the legal expense incurred. Consequently,
awarding the $5000 default attorneys’ fee was not an abuse of the district court’s
discretion.

CONCLUSION

We have considered the remainder of the
parties’ arguments on appeal and find them unpersuasive. Accordingly, the judgment
of the district court is affirmed.

—- Begin EndNotes —-

1
In addition to the extensive briefs submitted by the parties, we have before
us a number of amicus briefs submitted by the American Association for
Respiratory Care and Taxpayers Against Fraud in support of plaintiff, by a coalition
of Medical Societies (including the American Medical Association) in support
of defendants, and by the United States urging vacatur and remand. In the discussion
that follows we have considered the various arguments raised in these briefs.

Millan v. Hosp. San Pablo

EMTALA

Millan v. Hosp. San Pablo, No. Civ. 02-2687(DRD) (D.P.R. Sept. 8, 2005)

Parents
of a deceased infant filed claims under the Emergency Medical Treatment and
Active Labor Act (EMTALA) against two hospitals, alleging that each hospital
had failed to provide appropriate screening and that the infant was discharged
before being stabilized in the days before the child’s death. The District
Court of Puerto Rico found that each hospital had met its duty to provide appropriate
medical screening under EMTALA. However, the court did not find sufficient
evidence to show the hospitals had met their duty to stabilize the infant,
and therefore denied each hospital’s motion for summary judgment.

Mihailescu v. Sheehan (Summary)

MEDICAID

Mihailescu v. Sheehan, No. 117072/08 (N.Y. Sup. Ct. June 24, 2009)

The New York Supreme Court granted relief to a physician setting aside a determination by the State Medicaid Inspector General ("Medicaid IG") which had denied her application for reinstatement as a Medicaid provider.

The physician entered into a consent agreement after charges had been filed against her for inappropriate sexual contact. The consent agreement included a 12-month suspension of her medical license, which would be reinstated if certain conditions were met, including completion of a physician-patient boundaries program and submission of an independent evaluation by a psychiatrist confirming that she was competent to practice. At the same time, the Medicaid IG immediately terminated the physician from the Medicaid program.

After the physician had served her suspension and complied with the other conditions, she reapplied for her license and it was reactivated. At the same time, the physician applied for reinstatement to the Medicare and Medicaid programs. While her application to Medicare was granted, her application to Medicaid was denied. Medicaid also advised the physician that she could not submit a new application for at least two years.

The physician argued that the Medicaid IG lacked the authority to deny her application because the position was created to "improve efforts to control fraud, waste and abuse." The court ruled that "given the obvious importance of avoiding duplicative Departmental work and potentially inconsistent intra-Departmental results, the legislature did not likely intend that the Medicaid IG in such a case might second-guess the Department by also investigating or evaluating whether the physician in question would present a potential danger to a sub-set of the patient population." The court further held that "in the face of such acknowledgement by Departmental staff who had directly and at length been involved in the review of [the physician’s] case, the IG’s perfunctory refusal to reinstate the [physician] hampered her return to employment and was therefore arbitrary and capricious."

Mileikowsky v. Tenet Healthsystem

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

Defendants and Respondents.

B159733

(Los Angeles County
Super. Ct. Nos. BS056525 &
BC233153)

GIL N. MILEIKOWSKY,

TENET HEALTHSYSTEM et al.,

APPEAL from an order of the Superior Court of Los Angeles County,
Lawrence W. Crispo, Judge. Affirmed.

Roger Jon Diamond for Plaintiff and Appellant.

Ervin, Cohen & Jessup, Mark T. Kawa and Joseph R. Cilic for Defendants
and Respondents.

Plaintiff and Appellant,

Filed 4/6/05

Appellant Gil Mileikowsky, M.D., appeals from an order striking his
complaint for repeated failure to provide discovery. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND
A. Facts Related to Substantive Claims
1. Original Complaint and Preliminary Injunction

Dr. Mileikowsky brought suit against “Tenet Healthsystem” and “Encino-
Tarzana Regional Medical Center”1 in case no. BS056525 in April 1999. The
petition for writ of mandate alleged that Dr. Mileikowsky had medical and surgical
privileges at ETRMC since his appointment to membership on the medical staff in
1986. Every two years thereafter until 1998, he was reappointed to membership.
At that time, he claimed, he was not given actual notice of the approaching
expiration date of his two-year term, and was not timely furnished with the
materials needed to obtain reappointment (essentially a written application) in
violation of medical staff bylaws. In February 1999, Dr. Mileikowsky received
notice that, as he had not timely filed his application for reappointment, he was
considered to have voluntarily resigned. He attempted to file a reappointment
application, but was rebuffed. Dr. Mileikowsky challenged the decision to deem
him a voluntary departee, and ETRMC’s medical executive committee allegedly
rejected that challenge “without prior notice[] or hearing” and in violation of his
“right to due process.”

The petition sought a determination that ETRMC’s actions were invalid and
a denial of Dr. Mileikowsky’s due process rights, and an order directing ETRMC

1
The Encino-Tarzana Regional Medical Center was later said to be a fictitious
name of AMI/HTI Tarzana Encino Joint Venture. This entity and its physical facilities
will be referred to hereafter as “ETRMC.” Additional Tenet entities referred to as “Tenet
Healthcare” and “Tenet Healthcare Corporation” were later added as defendants. These
entities along with Tenet Healthsystem will be jointly referred to as “Tenet.”

to set aside its actions or restraining it from giving effect to its determination that
Dr. Mileikowsky had voluntarily resigned.

On the day the complaint was filed, the court set a hearing on an order to
show cause re preliminary injunction, which it granted on April 19, 1999. The
injunction precluded ETRMC from preventing Dr. Mileikowsky from exercising
the privileges of an active status physician and surgeon and treating patients, or
reporting to others that he had voluntarily resigned.

2. Amended Petition

In June 1999, Mileikowsky filed an amended petition that added two Tenet
entities and 22 individual defendants.2 The amended petition also added tort
claims under Business and Professions Code section 17200, and for interference
with prospective economic advantage and defamation.

On June 16, 2000, the parties stipulated that “[the] preliminary injunction
[was] to remain in effect pending determination of damage claims, and that
[Dr. Mileikowsky] does not need mandamus relief as long as the preliminary
injunction remains in effect.” Thereafter, the court took the petition for writ of
mandate off calendar, and transferred the matter to a trial department.

2
The new entities were Tenet Healthcare, Tenet Healthcare Corporation, and
AMI/HTI Tarzana Encino Joint Venture, doing business as Encino-Tarzana Regional
Medical Center. The individual defendants were Daryl Alexander, Sunit Ben-Ozer,
Stephen Cooper, Gary Dosik, Allan Entin, Brian Fenmore, Rose Franco, Eugene
Gootnick, Paul Greenberg, Theodore Hariton, Laurie Holoff, Patricia Jones, Allan
Lichtman, Debra Miller, Douglas Morrow, Stephen Pine, Peter Rubenstein, Sheldon
Schein, James Shields, Dale Surowitz, William Treiger, and Michael Vermesh.

3. New Complaint and Temporary Restraining Order

In January 2000, while the litigation in case no. BS056525 was ongoing,
ETRMC’s executive committee recommended that Dr. Mileikowsky not be
reappointed to its medical staff.

In July 2000, Dr. Mileikowsky, represented by new counsel, filed a new
complaint (case no. BC233153) for breach of contract, breach of covenant of good
faith, infliction of emotional distress, retaliation for whistleblowing, and
defamation.3 The primary basis of this complaint was that Tenet and ETRMC had
violated the April 1999 preliminary injunction by placing restrictions on his access
to ETRMC facilities, including having him constantly accompanied by security
personnel when on ETRMC premises. Dr. Mileikowsky also claimed he was
retaliated against for reporting alleged violations of medical standards to the
California Medical Association and for assisting a plaintiff in a medical
malpractice action against ETRMC.

In a letter attached to the complaint as an exhibit, Dale Surowitz, ETRMC’s
chief executive officer, stated to Dr. Mileikowsky: “As a condition to your
continued access to hospital facilities and use of hospital resources, you are
directed to inform my office (or the nurse supervisor in charge outside normal
business hours) whenever you enter hospital premises. You are also directed to
inform my office, in advance, of any surgical procedure, which you schedule at
this facility. Hospital Administration will then assure that security personnel
accompany you whenever you are on hospital premises.” The letter went on to
say: “[A]ny failure by you to comply with the measures described [above], or any
further violation of hospital policies (including, but not limited to, perceived

3
This complaint named three entity defendants–Tenet Healthsystem, Tenet
Healthcare Corporation, and ETRMC–and 12 individual defendants–Cooper, Dosik,
Fenmore, Franco, Jones, Lichtman, Miller, Morrow, Pine, Surowitz, and Vermesh, who
had been named in the earlier petition and complaint, and new party Jerry Clute.

threats or intimidation of hospital personnel or medical staff members, and copying
of patient records), will result in the summary suspension of your medical staff
membership and privileges.”

When he filed the new complaint, Dr. Mileikowsky sought a temporary
restraining order (TRO) and order to show cause re preliminary injunction. The
opposition justified ETRMC’s action by relating an incident that occurred in
December 1999. The operating room manager, Marleen Hafer, entered a surgical
suite where Dr. Mileikowsky was operating on a patient, and informed him that his
surgical assistant did not have clinical privileges and should be immediately
replaced by an alternate. Dr. Mileikowsky “aggressively backed Ms. Hafer, who is
less than five feet tall, against a wall while screaming at her, lunging in her
direction with his finger and making a head ing motion toward her.” The
anesthesiologist, “fear[ing] for Ms. Hafer’s physical safety,” interjected himself
and caused Dr. Mileikowsky to turn away. Another observer from outside the
room gathered male personnel in case they were needed to restrain
Dr. Mileikowsky. The opposition further claimed that Dr. Mileikowsky “has been
involved in a longstanding series of incidents in which he has threatened, verbally
attacked and even physically assaulted hospital employees and other members of
the Medical Staff.” The only specific incidence of physical assault described
involved grabbing someone’s name badge “while screaming and acting in an
uncontrolled and dangerous manner” that occurred in February 1999. There was
also a reference to a 1991 incident where Dr. Mileikowsky screamed at someone
over the phone and threatened to “‘become an Israeli warrior and go to war.’”

The court issued a TRO dated July 11, 2000, prohibiting ETRMC from
“requiring [Dr. Mileikowsky] to be escorted while with or in view of any patient.”

In August 2000, Dr. Mileikowsky filed an application for contempt and
sanctions against ETRMC for violation of the July 2000 TRO. Dr. Mileikowsky
contended that security personnel sent to follow him were seen by patients and

family members. In addition, a handwritten memorandum was posted on an
ETRMC bulletin board, stating: “When Dr. Mileikowsky is here, he is to be
escorted by security at all times.” The application was denied.

In September 2000, defendants sought to modify the July 2000 TRO due to
Dr. Mileikowsky’s actions in visiting ETRMC to take photographs in support of
his application for contempt. The request was denied. Subsequently, however, the
court did not put in place a preliminary injunction.4

In October 2000, Dr. Mileikowsky filed a first amended complaint in case
no. BC233153, omitting all of the individual defendants save for Surowitz, and
adding claims for invasion of privacy, false light, and interference with prospective
economic advantage based on the same essential facts of having him followed by
security, interfering with his treatment of patients, etc. The court found that the
case was related to the earlier petition, and deemed the earlier petition the “lead
case.” By order dated January 10, 2001, a motion to consolidate was granted. In
April 2001, however, the court issued an order stating that the cases were
henceforth “unconsolidated.”

In November 2000, ETRMC summarily suspended Dr. Mileikowsky’s
clinical privileges.

In April 2001, Dr. Mileikowsky filed a second amended complaint in case
no. BC233153. Dr. Mileikowsky continued to insist that Tenet, ETRMC, and
Surowitz infringed his rights by interfering with his ability to work at ETRMC in
retaliation for his actions in reporting misfeasance and supporting a plaintiff in a
medical malpractice lawsuit.

In September 2001, Dr. Mileikowsky filed a third amended complaint in
case no. BC233153, further refining his claims. The parties agreed that he would

The original April 1999 preliminary injunction was still in place.

file a fourth amended complaint to streamline the issue and include the facts
contained in case no. BS056525 so that case could be dismissed.

The fourth amended complaint was filed on February 28, 2002. The
defendants were Tenet, ETRMC, Surowitz, Ben-Ozer, Fenmore, Miller,
Greenberg, Pine, Schein, and Vermesh.5 The new complaint contained allegations
of preferential treatment afforded to certain physicians and referral schemes that
amounted to kickbacks uncovered and reported by Dr. Mileikowsky . The
complaint further alleged that defendants had caused Dr. Mileikowsky to lose
privileges at another medical facility. It alleged that Dr. Mileikowsky had been
summarily suspended in November 2000 without good reason. It continued to
alleged that defendants were acting in retaliation for Dr. Mileikowsky’s decision to
assist the plaintiff in a malpractice action.

B. Facts Related to Discovery Sanctions
1. First Motion to Compel

On September 17, 1999, ETRMC and individual defendants Greenberg,
Jones, Lichtman, Miller, Morrow, Pine, Rubenstein, Schein, Shields, Surowitz,
Treiger, and Vermesh each propounded 42 special interrogatories in case
no. BS0565256 seeking to flesh out the facts that supported the contentions made in
the amended petition that defamatory statements were made by propounding
parties, that they engaged in acts intended to drive Dr. Mileikowsky from his
medical practice, destroy his reputation, cause him to be disciplined, etc. The
questions asked by each propounding party were virtually identical in substance,
inquiring whether Dr. Mileikowsky contended that the propounding party made

6
The interrogatories attached an attorney declaration stating that the number was
warranted “because of the complexity and the quantity of existing and potential issues in
[the] action.”

These parties are referred to hereafter as respondents.

defamatory statements or engaged in other actions discussed in the amended
complaint. In addition, ETRMC sought production of documents.
Dr. Mileikowsky was granted four extensions–to December 10, 1999–to respond
to the discovery requests.

On December 17, 1999, the propounding parties filed 13 separate but
essentially identical motions to compel responses to the interrogatories and asked
for monetary sanctions. In Dr. Mileikowsky’s opposition to the motions, his
counsel stated in a declaration that he was “a busy obstetrician/gynecologist” and
that they “had severe difficulty in finding the necessary time to prepare responses
to all of the simultaneously propounded discovery.” Counsel “anticipate[d]
. . . that prior to the time that this matter is heard, that the discovery responses will
have been served.” That did not occur, and by order dated January 6, 2000, the
court instructed Dr. Mileikowsky to respond to the interrogatories and document
requests by January 19, 2000, and awarded a total of $2,322 in sanctions.

2. First Request for Terminating Sanctions; Second Motion to Compel

On January 25, 2000, defendants moved for terminating sanctions or
monetary sanctions due to failure to comply with the court order of January 6.
Counsel stated in a declaration that he had been advised by Dr. Mileikowsky’s
counsel that he would comply with the court’s order two days late–by
January 21–but that no responses had been received. The opposition again
claimed that Dr. Mileikowsky did not have time to complete the discovery due to
his “busy practice.” Counsel stated that responses would be completed before the
hearing date on the request for terminating sanctions.

Also on January 25, 2000, ETRMC moved to compel responses to a second
set of special interrogatories and request for production of documents propounded
on December 10, 1999. The interrogatories and requests were directed at learning
whether Dr. Mileikowsky had copied medical records of persons who were not his

patients, and Dr. Mileikowsky had raised objections without responding.
Dr. Mileikowsky opposed the motions, arguing that his objections, one of which
was that the questions violated his right against self-incrimination, had been well
taken.

By order dated February 16, 2000, the court granted the motions with
respect to monetary sanctions and ETRMC’s motions to compel further responses
to the interrogatories. Dr. Mileikowsky was to serve responses on or before
February 28.

3. Second Request for Terminating Sanctions

On March 6, 2000, ETRMC sought terminating sanctions based on failure to

comply with the January 6, 2000, order by actually producing documents, although
no firm date had been set for that by the court. Instead, the parties were to “confer
with each other through respective counsel and determine a deadline by which
[Dr. Mileikowsky] would produce documents” after receipt of the responses to the
request for production. Dr. Mileikowsky’s opposition stated that the documents
had been delivered on March 9 (or March 14), and blamed the delay on serious
health problems within Dr. Mileikowsky’s family.7 On March 28, 2000, the court
ordered Dr. Mileikowsky to produce the documents by April 7 and to pay
monetary sanctions.

4. Third Motion to Compel

On March 16, 2000, ETRMC brought a motion to compel based on failure to
respond, without objection, to the second set of interrogatories and request for

7
Dr. Mileikowsky stated in his attached declaration that in late February 2000, he
traveled to Belgium to attend his nephew’s bris and naming ceremony, and to be with his
brother who was having a surgical biopsy. He was also needed there to consult with his
mother’s doctors to develop a treatment plan for her chronic cardiovascular problems.

production of documents as required by the order of February 16. In opposition,
Dr. Mileikowsky contended that ETRMC’s attorney failed to meet and confer and
that responses were belatedly served–due to “grave family health reasons”–on
March 21, 2000. In his responses, Dr. Mileikowsky stated that he had not copied
any medical records of persons who were not his patients, and that there were no
documents responsive to the request. By order dated April 6, 2000, the court
ordered Dr. Mileikowsky to pay monetary sanctions. The order further stated:
“This is the third time that the court has imposed monetary sanctions upon
[Dr. Mileikowsky] and his counsel for failures to provide discovery in this
proceeding. The court believes that such monetary sanctions are not sufficient to
obtain compliance by [Dr. Mileikowsky] and his counsel with their discovery
obligations, and the court believes that the failure to provide discovery in this case
has been frivolous and in bad faith. Accordingly, [Dr. Mileikowsky] and his
counsel are warned that any further failures on their part to comply with their
discovery obligations in this matter may result in the imposition of an evidence
sanction, an issue sanction, or a terminating sanction, in addition to monetary
sanctions.”

5. Third Request for Terminating Sanctions

On February 28, 2000, ETRMC served a third set of requests for production

on Dr. Mileikowsky seeking Dr. Mileikowsky’s curriculum vitae, documents
evidencing his board certification in the specialty of infertility, and documents
evidencing his board certification between January 1, 1980, and the present. On
April 13, 2000, ETRMC once again moved for terminating sanctions, this time for
failure to respond to the third set of requests for production. In opposition, counsel
for Dr. Mileikowsky claimed to have inadvertently filed the new request with older
requests, failing to realize that it was new. The two documents responsive to the
request were attached to the opposition. On May 8, the court ordered

Dr. Mileikowsky to pay monetary sanctions, but refrained from dismissing the
action because of “the fact that the discovery request in this instance appears to be
of trivial importance and appears to be one which could readily have been included
in one of the prior discovery requests.” The court was therefore “not positively
certain that this discovery request was not motivated more by the desire to harass
[Dr. Mileikowsky] than by the need of relevant information.”

6. Fourth Motion to Compel

On August 18, 2000, ETRMC and the individual defendants moved to

compel Dr. Mileikowsky to respond to questions he was asked at his deposition
and for monetary sanctions. Dr. Mileikowsky had refused to translate Hebrew
language advertisements he had placed in Hebrew language newspapers, or to
respond to questions concerning behavioral or disciplinary problems experienced
during his medical residency and seeking to identify his referral sources. He had
also refused to produce his engagement calendars. At the same time, ETRMC and
the individual defendants sought an order compelling Dr. Mileikowsky to appear
and conclude his deposition. Dr. Mileikowsky moved for a protective order
because defendants insisted on taking his deposition on four days in a row, rather
than spread out over the calendar to accommodate Dr. Mileikowsky’s schedule.

On September 18, 2000, the parties filed a stipulation setting dates for
Dr. Mileikowsky’s deposition and specifying that documents would be provided.
The court signed the stipulation, and put off the question of appointing a referee.
Later, a discovery referee was appointed, and the parties stipulated to the
appointment of a second one.

7. Fourth Request for Terminating Sanctions

In February 2001, defendants moved for terminating sanctions due to
Dr. Mileikowsky’s failure to post referee fees and refusal to attend a scheduled

hearing before the discovery referee. Dr. Mileikowsky stated in his opposition that
he had refused to appear before the discovery referee because he erroneously
believed he had seen defendants’ counsel engaged in ex parte contact with the
referee. Having realized his mistake, he indicated a readiness to proceed. The
referee recommended that terminating sanctions be denied and that no monetary
sanctions be awarded. The court ruled in accordance with the recommendation.

In March 2001, defendants moved to compel further responses to a request
for production of documents propounded by ETRMC. There were 130 requests in
the set, each asking for documents that pertained to each allegation of the first
amended complaint in case no. BC233153.8 Dr. Mileikowsky had objected to
them all.

In June 2001, the referee recommended that the August 2000 motion to
compel further answers at deposition be granted in part and denied in part. He also
recommended that a motion to compel production of documents filed by
Dr. Mileikowsky be granted in part and denied in part. The court approved and
followed the recommendations.

In May 2001, defendants moved to stay all discovery in the two actions until
an ongoing administrative hearing was concluded.

8. Fifth Motion to Compel

In July 2001, ETRMC moved to compel responses to its third set of
interrogatories, its fourth request for production of documents, and its first set of
interrogatories and requests for production of documents in case no. BC233153,
and for monetary sanctions. The third set of interrogatories and fourth request for
production of documents sought documents and other evidence supporting

8
This was the first discovery pertaining to case no. BC233153; prior discovery
requests pertained to the petition and first amended petition that was ultimately
dismissed.

Dr. Mileikowsky’s damage claims. The requests in case no. BC233153 sought
information on contentions contained in the first amended complaint. Responses
had been submitted to these various discovery requests, but were deemed
inadequate by ETRMC. On December 19, 2001, counsel informed the court that
the parties had entered into stipulations concerning a number of matters, including
outstanding discovery disputes. A “stipulation and order” was signed by counsel
for Dr. Mileikowsky and counsel for respondents on January 10, 2002. In it,
Dr. Mileikowsky agreed to “supplement[] his discovery responses by Friday,
February 15, 2002.” The stipulation and order contained blanks for the signature
of the referee and the court, but it was apparently never signed or filed.

9. Fifth Request for Terminating Sanctions

On February 27, 2002, respondents moved for terminating sanctions on the

ground that Dr. Mileikowsky had violated the stipulation by failing to provide any
additional discovery. Respondents further sought $8,500 in sanctions.
Dr. Mileikowsky and his new counsel claimed to have been working diligently on
discovery responses, but said they were unable to complete them in time. In
addition, counsel was seeking to be relieved.

By report and recommendation dated March 19, 2002, the referee
recommended that the motion be granted as to both termination of the litigation
and sanctions. The referee stated: “[Dr. Mileikowsky] has demonstrated a pattern
of promises and stipulations for the production of discovery responses that are
unfulfilled. Instead of production, [Dr. Mileikowsky] has changed counsel and
repeated the pattern of delay and non-production. The Referee finds this repetition
to be obstructive and willful, and in violation of [Dr. Mileikowsky’s] responsibility
to participate in discovery and to comply with stipulations and court orders.
Sanctions are warranted under CCP 2023(a)(3), (4), and (7).”

With respect to the nature of the discovery requests, the referee found that
respondents “asked for basic information on damage claims[] and contention
interrogatories that are fundamental to respondents’ ability to prepare a defense.”
Dr. Mileikowsky’s counsel “stipulated that production would be complete by
February 15, 2002. That stipulation, with the recommendation of the Referee, was
adopted as an order of the Court [sic9]. Nevertheless, the only further production is
an incomplete ‘confidentiality log’ prepared by counsel and produced with
[Dr. Mileikowsky’s] opposition to this motion. Monetary sanctions in the past
have not successfully gained [Dr. Mileikowsky’s] attention. Terminating sanctions
are appropriate under CCP 2023(a)(7).”

Concerning the separate award of $8,500 in monetary sanctions, the referee
stated: “[T]he Referee finds that monetary sanctions in the amount of $8500 are
justified and necessary as an additional sanction against [Dr.] Mileikowsky, but not
against current counsel. The Referee accepts the representation of counsel that
substantive responses have been prepared and sent to [Dr. Mileikowsky] for
review, but not returned by him. The expense of this motion and assembling the
record demonstrating justification for terminating sanctions should be recovered by
respondent against [Dr. Mileikowsky] personally.”

On March 26, 2002, respondents requested clarification of the referee’s
report and recommendation. Due to the “unconsolidation” of case nos. BS056525
and BC233153, there had been some confusion about whether both should be
subject to terminating sanctions.

At some point either prior to or on April 22, 2002, Dr. Mileikowsky, acting
in pro. per.,10 asked the referee to reconsider his recommendation. The motion for

9
filed.

10
2002.

The court granted Dr. Mileikowsky’s counsel’s motion to be relieved on April 12,

As we have said, the stipulation was never signed by the referee or the court or

reconsideration was denied because “the statutory requirements of CCP 1008 are
not met” in that the request was not timely and there were no new or different
facts. At the hearing on April 22, in response to the referee’s comment that “it was
important on March 19 that your lawyers then representing you told me that they
had completed some discovery responses, had sent those responses to you, but you
had not returned them,” Dr. Mileikowsky said: “I do not deny it . . . .”

Prior to submitting his report and recommendation to the court, the referee
clarified that the termination should be as to both of the related cases, noting that
Dr. Mileikowsky was to have filed an amended complaint consolidating the
operative pleadings of the two matters. On April 24, 2002, the court adopted the
recommendation of the referee concerning sanctions.

Dr. Mileikowsky retained new counsel, and on May 3, 2002, moved for
reconsideration and for relief under Code of Civil Procedure section 473. The
motion pointed out that there was no outstanding court order at the time
terminating sanctions were granted, and contended that the parties’ in-court
stipulation did not provide for terminating sanctions as a method of enforcement.11
The motion also presented evidence that prior counsel had not, as represented to
the referee, sent prepared responses to Dr. Mileikowsky for his review and
signature at any time prior to the date they were due. In addition, evidence was
presented that when other prior counsel sent proposed responses to
Dr. Mileikowsky for review and comment, he responded promptly.

11
Counsel for respondents had explained on the record to the court on December 19,
2001, that the parties had “a stipulated order which can be enforced by way of contempt
of court or issue sanctions should [Dr. Mileikowsky] not provide the responses, as he has
agreed to do.” However, the written stipulation stated: “[Respondents] may file a motion
for sanctions, including but not limited to, issue, evidence or terminating sanctions, if
they do not receive [Dr. Mileikowsky’s] supplemental discovery responses by
[February 15, 2002].” (Italics added.)

Shortly after the motion for reconsideration was filed, respondents moved
ex parte to have the referee approve the parties’ discovery stipulation nunc pro
tunc.12 The referee refused the request. The motion for reconsideration was
denied on June 3, 2002.

On June 21, 2002, a notice of appeal was filed “from the Order Striking
[Dr. Mileikowsky’s] Pleadings in this case and Terminating Sanctions entered on
April 24, 2002.” The notice said the appeal was to include “review of any
underlying or intermediate ruling or proceeding, as well as any motion brought to
reconsider, or correct[,] the order, or any motion seeking relief from the order
under CCP § 473 . . . .” The notice of appeal was filed under case no. BS056525,
which was said to be “Related to” case no. BC233153. No separate notice was
filed under case no. BC233153.

C. Motion to Dismiss Appeal

On June 25, 2002, respondents moved for an order striking the fourth
amended complaint in case no. BC233153 and the first amended petition for writ
of mandate in case no. BS056525. On July 25, it was denied without prejudice.

Respondents moved to dismiss the appeal on the ground that there was no
appealable judgment or order. Apparently, the reason the trial court refused the
motion to strike and refused to enter judgment in favor of respondents was the
pendency of the appeal, which generally divests trial court jurisdiction. This court
denied the motion to dismiss on the ground that sanction orders in amounts greater
than $5,000 are appealable and that we would “proceed to review the imposition of
the monetary discovery sanctions.” We further stated that since there was no order

12
Respondents presented hearsay evidence that prior counsel had blamed
Dr. Mileikowsky for the failure to have the stipulated order signed and filed by the court,
telling counsel for respondents that Dr. Mileikowsky had “specifically prohibited” prior
counsel from giving the court the written stipulation.

dismissing the actions or striking the pleadings, “an appeal on this ground is not
permissible.”

DISCUSSION

We stated in our order denying the motion to dismiss the appeal that since
no order dismissing the first amended petition and fourth amended complaint had
been filed, the only issues before us pertained to the monetary sanctions awarded.
However, despite our attempt to limit the appeal, it appears from the parties’ briefs
that monetary sanctions were based on the same conduct that led to terminating
sanctions, and the two are inextricably intertwined. Indeed, Dr. Mileikowsky’s
principal argument on appeal is that the monetary award, based as it was on the
fees and costs incurred in prosecuting the motion for terminating sanctions, should
be reversed because the motion for terminating sanctions was not appropriate and
should have been denied and respondents “should not be rewarded for making an
unsuccessful motion.” We, therefore, turn to the issue of whether respondents’
motion for terminating sanctions was well taken.

Shortly after the discovery statutes were overhauled in the late 1980’s, the
court in Ruvalcaba v. Government Employees Ins. Co. (1990) 222 Cal.App.3d
1579 held that “before a court terminates a plaintiff’s action for failure to comply
with discovery, there must be a court order compelling plaintiff to comply with the
discovery request.” (Id. at pp. 1580-1581.) In Ruvalcaba, plaintiff brought an
action against his insurance carrier. During the course of the litigation, the
defendants moved to dismiss for failure to comply with document production
requests. The moving papers showed that a request for inspection of documents
had been served on plaintiff and that plaintiff had failed to respond despite two
extensions of time. The moving papers also showed that “numerous times during
the pendency of the matter [plaintiff] had failed to reasonably respond to other

discovery devices and that previously the court had ordered compliance and
sanctions against [plaintiff] and/or [plaintiff’s] counsel.” (Id. at p. 1580.)

The court first looked at the history of discovery legislation: “The code
required the disobedience of a court order as a prerequisite for dismissal based
upon discovery abuses and recognized that lesser sanctions, appropriate for the
particular abuse, should be granted before a terminating sanction, such as
dismissal, was utilized. [Citation.] Although prior case law indicated a prior order
was not mandated [citation], the new legislation acknowledged that dismissal was
a drastic sanction [citation] which should only be used after a party had an
opportunity to comply with a court order.” (Ruvalcaba, supra, at p. 1581.)

The court began its analysis of the new legislation with Code of Civil
Procedure section 2023,13 which addresses sanctions in general. It defines misuses
of the discovery process to include: “Failing to respond or to submit to an
authorized method of discovery” and “Disobeying a court order to provide
discovery.” (§ 2023, subd. (a)(4) and (7).) “To the extent authorized by the section
governing any particular discovery method,” the court may, after hearing and
notice, “impose a monetary sanction”; “impose an issue sanction”; “impose an
evidence sanction”; or “impose a terminating sanction.” (§ 2023, subd. (b), italics
added.)

Section 2031 governing document requests, the “particular discovery
method” at issue in Ruvalcaba, provides in relevant part: “The court shall impose
a monetary sanction under Section 2023 against any party, person, or attorney who
unsuccessfully makes or opposes a motion to compel a response to an inspection
demand, unless it finds that the one subject to the sanction acted with substantial
justification or that other circumstances make the imposition of the sanction unjust.
If a party then fails to obey the order compelling a response, the court may make

13
Statutory references herein are to the Code of Civil Procedure unless otherwise
indicated.

those orders that are just, including the imposition of an issue sanction, an
evidence sanction, or a terminating sanction under Section 2023.” (§ 2031, subd.
(l).) Subdivision (n), governing failure to permit inspection, likewise provides in
pertinent part: “If a party then fails to obey an order compelling inspection, the
court may make those orders that are just, including the imposition of an issue
sanction, an evidence sanction, or a terminating sanction under Section 2023.”
In Ruvalcaba, the court interpreted the italicized language from section 2031

as meaning that when plaintiff did not respond, “the court could have ordered
[plaintiff] to respond to the discovery request and could have imposed a monetary
sanction.” (Id. at p. 1583.) But the court was clear that more serious sanctions
could only come later: “If thereafter [plaintiff] disobeyed this court order,
[plaintiff] would do so at his own risk [citation], knowing that such a refusal
provided the court with the statutory authority to impose other sanctions. Thus, the
court, in its discretion, could have ordered specific facts to be taken as established,
prohibited [plaintiff] from introducing certain matters into evidence, imposed
monetary sanctions, or other sanctions specifically related to the offense.
[Citations.] The court also could have dismissed the action. Without the prior
order directing [plaintiff] to comply, however, it was inappropriate for the court to
dismiss the matter.” (Ibid., italics added.)
The court in Ruvalcaba came to the conclusion that terminating sanctions

could not be applied despite ample evidence of prior sanctionable conduct on the
part of the plaintiff with respect to earlier discovery requests. “The 3,000-page
clerk’s transcript in the matter demonstrate[d] continued discovery abuses by
[plaintiff] and/or his attorney for which sanctions ha[d] already been imposed and
which ha[d] resulted in needless delays and costs.” (Id. at p. 1583.) According to
the court, despite plaintiff’s earlier defalcations, until a new order was disobeyed,
only monetary sanctions could be imposed. (Ibid.) “[A]lthough the actions of

[plaintiff] and his counsel may demonstrate a history of discovery abuses, without
a disobeyed court order a terminating sanction was improperly imposed.” (Ibid.)

In the present case, the stipulation covered ETRMC’s third set of
interrogatories and fourth request for production of documents in case
no. BS056525, and its first set of interrogatories and requests for production of
documents in case no. BC233153. Therefore, we look both to section 2030,
governing interrogatories, and section 2031, governing document requests. We
have already quoted the pertinent language from section 2031. Section 2030 is not
substantially different. It provides in pertinent part: “The court shall impose a
monetary sanction under Section 2023 against any party, person, or attorney who
unsuccessfully makes or opposes a motion to compel a further response to
interrogatories, unless it finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the imposition of the
sanction unjust. [¶] If a party then fails to obey an order compelling further
response to interrogatories, the court may make those orders that are just,
including the imposition of an issue sanction, an evidence sanction, or a
terminating sanction under Section 2023.” (§ 2030, subd. (l).)
We have found no appellate authority which disagrees with Ruvalcaba’s

analysis.14 It is true in R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75
Cal.App.4th 486, 497, this court stated that “[s]ection 2023 authorizes terminating

14 We found two cases permitting imposition of an evidence sanction in the first
instance: Vallbona v. Springer (1996) 43 Cal.App.4th 1525 and Do It Urself Moving &
Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27. The courts
there did not disagree with Ruvalcaba that generally a party must have disobeyed a court
order compelling discovery prior to imposition of other than a monetary sanction. Their
holdings were based on the futility of obtaining a court order where responding party,
after willfully refusing to provide documents, claimed that the documents were
nonexistent or missing. (Vallbona, supra, at p. 1548; Do It Urself Moving & Storage,
supra, at p. 36.)

sanctions in the first instance in egregious cases.” However, in R.S. Creative, the
primary issue was the appropriate sanction for intentional destruction of evidence.
(Id. at p. 494 [“This is the first reported California case to consider terminating
sanctions for spoliation of evidence . . . .”].) Moreover, at the time sanctions were
imposed, there was an outstanding order requiring a party to appear at a deposition.
Thus, R.S. Creative does not represent an example of a situation where sanctions
were imposed without evidence of violation of a court order.

Since there is no dispute that the stipulation of January 2002 was never
submitted to the court for signature, we agree that there was no order requiring
Dr. Mileikowsky to respond to the specific interrogatories and requests for
production of documents that were the subject of the dispute. The issue becomes
whether the stipulation can be seen as tantamount to the requisite order. We see no
reason why it cannot.

“A stipulation is ‘[a]n agreement between opposing counsel . . . ordinarily
entered into for the purpose of avoiding delay, trouble, or expense in the conduct
of the action,’ (Ballentine, Law Dict. (1930) p. 1235, col. 2) and serves ‘to obviate
need for proof or to narrow [the] range of litigable issues’ (Black’s Law Dict.
(6th ed. 1990) p. 1415, col. 1).” (County of Sacramento v. Workers’ Comp.
Appeals Bd. (2000) 77 Cal.App.4th 1114, 1118.) “‘A stipulation in proper form is
binding upon the parties if it is within the authority of the attorneys.’” (Bowden v.
Green (1982) 128 Cal.App.3d 65, 72.) “‘The attorney is authorized by virtue of
his employment to bind the client in procedural matters arising during the course
of the action . . . . “In retaining counsel for the prosecution or defense of a suit, the
right to do many acts in respect to the cause is embraced as ancillary, or incidental
to the general authority conferred, and among these is included the authority to
enter into stipulations and agreements in all matters of procedure during the
progress of the trial. Stipulations thus made, so far as they are simply necessary or
incidental to the management of the suit, and which affect only the procedure or

remedy as distinguished from the cause of action itself, and the essential rights of
the client, are binding on the client.”’” (Blanton v. Womancare, Inc. (1985) 38
Cal.3d 396, 403-404.) A stipulation may result in impairment of a party’s rights.
“But a poor outcome is not a principled reason to set aside a stipulation by
counsel.” (County of Sacramento v. Workers’ Comp. Appeals Bd., supra, 77
Cal.App.4th at p. 1121.)

The stipulation signed by counsel for the parties here was designed to avoid
the “trouble and expense” of yet another hearing on Dr. Mileikowsky’s failure to
respond to simple discovery requests. Like the order that would have issued, the
stipulation made clear that respondent “may file a motion for sanctions, including
but not limited to, issue, evidence or terminating sanctions, if they do not receive
[Dr. Mileikowsky’s] supplemental discovery responses by [February 15, 2002].”
By signing the stipulation, counsel essentially waived Dr. Mileikowsky’s right to
insist on a formal order compelling responses as a precursor to an issuance of
evidentiary, issue, or terminating sanctions. That the court and referee did not sign
the stipulation does not negate the fact that this was the parties’ agreement. In
view of the parties’ stipulation, the referee and the court did not err in treating the
stipulation as the order required by sections 2030 and 2031.

A decision to order terminating sanctions should not be made lightly. But
where a violation is willful, preceded by a history of abuse, and the evidence
shows that less severe sanctions would not produce compliance with the discovery
rules, the trial court is justified in imposing the ultimate sanction. (See Security
Pacific Nat. Bank v. Bradley (1992) 4 Cal.App.4th 89, 98.) Here the record is
replete with evidence of Dr. Mileikowsky’s failures to answer discovery requests
despite numerous extensions sought and granted. Time and again, he refused to
respond despite the issuance of court orders and monetary sanctions. Only the
threat of terminating sanctions caused responses to be submitted. The court was

not required to allow this pattern of abuse to continue ad infinitum. It did not
abuse its discretion in ordering terminating sanctions.

Dr. Mileikowsky presents no reason for overturning the order imposing
monetary sanctions other than the invalidity of the order imposing terminating
sanctions. Because we do not agree the underlying order was invalid, we affirm
the monetary sanctions assessed.

DISPOSITION
The order for sanctions is affirmed.

CERTIFIED FOR PUBLICATION

CURRY, J.

We concur:

HASTINGS, Acting P.J.

GRIMES, J.*

* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

Millard v. Corrado

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Opinion

Missouri Court of Appeals Eastern District

Case Style: William Millard and Marjorie Millard, Plaintiffs/Appellants, v. Joseph A. Corrado, M.D., Defendant/Respondent.

Case Number: ED75420

Handdown Date: 12/14/99

Appeal From: Circuit Court of the City of St. Louis, Hon. Robert Dierker

Counsel for Appellant: Stephen Meyerkord, Mark A. Stephens, Evan A. Douthit, Timothy S. Frets, and R. Douglas Gentile

Counsel for Respondent: Robert A. Wulff

Opinion Summary:

Plaintiffs William and Marjorie Millard appeal from the trial court’s summary judgment in favor of defendant Dr. Joseph Corrado in their negligence action. Plaintiffs claim the trial court erred in concluding that they could not maintain a general negligence claim against Dr. Corrado absent a physician-patient relationship.

REVERSED AND REMANDED

Division Two holds:

(1) The Millards pleaded a general negligence claim against Dr. Corrado, even in the absence of a physician-patient relationship. Public policy and the foreseeability of harm to certain patients support the recognition of a duty from Dr. Corrado to Mrs. Millard. Accordingly, "on call" physicians owe a duty to reasonably foreseeable emergency patients to provide reasonable notice to appropriate hospital personnel when they will be unavailable to respond to calls.

(2) Material questions of fact exist as to whether there existed a physician-patient relationship between Mrs. Millard and Dr.
Corrado.

Citation:

Opinion Author: REVERSED AND REMANDED. James R. Dowd, Presiding Judge

Opinion Vote: Teitelman, J., concurs; Crahan, J., concurs in result in separate opinion,

Opinion:

Plaintiffs William and Marjorie Millard appeal from the trial court’s grant of summary judgment in favor of defendant Dr. Joseph Corrado in their negligence action. Plaintiffs claim the trial court erred in concluding that plaintiffs could not maintain a general negligence claim against Dr. Corrado absent a physician-patient relationship. We reverse and remand.FACTS Dr. Joseph Corrado is a general surgeon with active staff privileges at Audrain Medical Center ("AMC") in Mexico, Missouri. On the morning of November 5, 1994, Dr. Corrado was preparing to attend a meeting of the Missouri chapter of the American College of Surgeons in Columbia, Missouri. Several days earlier, Dr. Corrado had filled out the "Surgeon On Call Schedule" for November. Although aware of the upcoming American College of Surgeons meeting, Dr. Corrado scheduled himself as "on call" for that day, presumably because the other two general surgeons on AMC’s staff would be on vacation that day. Before leaving AMC for his meeting, Dr. Corrado asked Dr. Ben Jolly if he would cover for Dr. Corrado’s calls during the four-hour period he would be out of town. Dr. Jolly agreed to "fill in" for Dr. Corrado even though his training was in orthopedic surgery and he did not have privileges to perform general surgery. Dr. Corrado then left the hospital and drove to Columbia. Dr. Corrado notified no one else at AMC that he would be out of town and would therefore be unable to provide hands-on care to emergency room patients requiring a general surgeon.

Later that morning, Marjorie Millard was involved in an automobile accident in Callaway County, Missouri, near the intersection of Highway 54 and Interstate 70. Mrs. Millard suffered serious trauma, including broken ribs, a ruptured diaphragm, and injuries to her renal vein and artery and her adrenal artery. These injuries produced severe internal bleeding, and she quickly developed hypovolemic shock. At the time of the accident, Mrs. Millard was sixty-three years old.

The accident occurred approximately fourteen miles from Audrain Medical Center and twenty-five miles from the University of Missouri Medical Center located in Columbia, Missouri. A Callaway County ambulance arrived at the scene at 10:28 a.m. When the EMTs commenced treatment, Mrs. Millard had no measurable blood pressure or radial pulse. Her skin was pale, cold and moist. At the time of the accident, AMC held itself out as maintaining a twenty-four hour emergency room with an emergency physician "in house" and a general surgeon "on call" and with equipment to handle surgical trauma patients on an emergency basis. The EMTs elected to transport Mrs. Millard to AMC based on its proximity to the accident and on the belief that AMC operated a twenty-four hour emergency department and therefore would have a general surgeon "on call." The ambulance left the accident scene at 10:49 a.m.. The EMTs radioed AMC’s emergency department that they would be arriving with a "Class 1" patient — a patient in a critical or life-threatening condition — who was involved in an automobile accident. AMC did not respond to this message.

The ambulance arrived at AMC at 11:07 a.m. where Mrs. Millard received the following treatment: IV fluids were administered and a chest x-ray was done which indicated a reduced lung volume and an increased density of the left hemithorax. This was apparently caused by layering fluid collection. At 11:45 a.m., EMT Gregory Weaver paged Dr. Corrado because he was the general surgeon listed on the call roster, but the page went unanswered. Nine minutes later, Dr. Steve Taylor, the emergency room physician, examined Mrs. Millard and diagnosed her as having an intra-abdominal bleed. Dr. Corrado was paged a second time at 11:55 a.m. Again, Dr. Corrado did not respond.

At approximately 12:00 p.m., AMC personnel attempted to arrange for air transport of Mrs. Millard to the University of Missouri Medical Center, but it was soon learned that the EMS helicopter was grounded due to inclement weather. At 12:08 p.m., Dr. Thomas Welsh and Dr. Jolly entered the emergency department at AMC after completing their rounds. Dr. Welsh and Dr. Jolly evaluated Mrs. Millard and concurred with Dr. Taylor’s diagnosis that Mrs. Millard was bleeding internally and needed surgery. Dr. Welsh and Dr. Jolly were not qualified as general surgeons and could not perform this type of surgery. In addition, neither Dr. Welsh or Dr. Jolly had hospital privileges which would permit them to perform this type of surgery.

At 12:23 p.m., Dr. Corrado called the emergency department in response to the pages and spoke with Dr. Welsh. The patient history report prepared by Dr. Welsh provides the following relevant account of the conversation:

We did contact Dr. Corrado by phone. The situation was discussed and the options addressed. It was felt that in view of the extent and nature of the patient’s injury, [Mrs. Millard] would be best served by transfer to the University of Missouri Medical Center, where a trauma team was available. It was not felt to be prudent to attempt to care for her at Audrain Medical Center.

Dr. Corrado testified that he was told that AMC had a patient with some intra-abdominal injuries and that the patient was going to be transferred to the University of Missouri Medical Center. After the conversation, Dr. Taylor arranged for Mrs. Millard to be transferred to the University of Missouri Medical Center where a general surgeon would be available to care for her. Her ambulance arrived at the University of Missouri Medical Center at 1:45 p.m. Dr. Roger Huckfeldt, a general surgeon on staff at the University of Missouri Medical Center, performed emergency surgery on Mrs. Millard at 2:15 p.m., some four hours after the accident.

Plaintiffs brought suit against Dr. Corrado alleging negligence and seeking damages for injuries suffered by Mrs. Millard, including the loss of her left kidney, gallbladder, colon and part of her small intestine. Mr. Millard also filed suit for loss of consortium and medical expenses. The Third Amended Petition alleges that as a direct and proximate result of the delay in treatment caused by Dr. Corrado’s absence, Mrs. Millard suffered aggravation of the injuries she sustained in the accident and additional serious injuries. Dr. Corrado filed a Motion for Summary Judgment in which he argued that he was entitled to judgment as a matter of law because plaintiffs failed to establish a physician-patient relationship, a necessary component of a medical negligence claim. The trial court granted the motion and entered judgment in favor of Dr. Corrado. Plaintiffs appeal from the judgment.STANDARD OF REVIEWTo establish a right to summary judgment, a "defending party" must show either: (1) facts that negate any one of the claimant’s elements; (2) that the non-movant, after an adequate period of discovery, has not been able to produce and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant’s elements; or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant’s properly-pleaded affirmative defense. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 381 (Mo. banc 1993). Only if the movant has made a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law as provided in Rule 74.04, does the burden shift to the non-movant. Id. To preclude the entry of summary judgment, the non-movant must set forth specific facts, by affidavits, depositions, or otherwise, showing that there is a genuine issue for trial. Id. A "genuine issue" exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts. Id.

When reviewing a grant of summary judgment, we view the evidence in the light most favorable to the party against whom judgment was entered. Id. at 382. Facts set forth by affidavit or otherwise in support of a party’s motion are taken as true unless contradicted by the non-moving party’s response to the summary judgment motion and the non-movant is accorded the benefit of all reasonable inferences from the record. Id.ANALYSISBefore addressing the points raised in plaintiffs’ brief, we must consider Dr. Corrado’s motion to strike taken with the case. Dr. Corrado moves to strike two footnotes from plaintiffs’ reply brief which reference depositions taken after the trial court’s entry of summary judgment. Plaintiffs concede that these footnotes refer to depositions taken after the entry of summary judgment. Because these depositions were not made part of the summary judgment record and therefore were not before the trial court, consideration of the depositions on appeal would be improper. See Hill v. Air Shields, Inc., 721 S.W.2d 112, 116 (Mo.App. E.D.1986). Accordingly, Dr. Corrado’s motion is granted and we do not consider these materials in deciding the issues in this case..

I. General Negligence

Plaintiffs claim the trial court erred in finding that Dr. Corrado could not be held liable for general negligence because he owed no duty of care to Mrs. Millard absent a physician-patient relationship. The trial court concluded that Mrs. Millard could not submit a claim against Dr. Corrado for general negligence because "the specific acts and omissions alleged by plaintiff on the part of Carrado [sic] all necessarily involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons."

In most cases of medical negligence or malpractice a physician’s duty to a patient is derived from the physician-patient relationship. Richardson v. Rohrbaugh, 857 S.W.2d 415, 417-18 (Mo.App. E.D.1993). However, when the physician’s allegedly negligent acts or omissions do not involve a matter of medical science, a duty may also exist when public policy favors the recognition of a duty or when the harm is particularly foreseeable.

A. Public Policy Considerations

In determining whether public policy supports the recognition of a duty in this case, we are guided by Hoover’s Dairy, Inc. v. Mid-America Dairymen, Inc., 700 S.W.2d 426, 432 (Mo. banc 1985). In Hoover’s Dairy, the Missouri Supreme Court articulated several factors that courts should consider in deciding whether to recognize a legal duty based on public policy. These factors include: (1) the social consensus that the interest is worth protecting, (2) the foreseeability of harm and the degree of certainty that the protected person suffered the injury, (3) the moral blame society attaches to the conduct, (4) the prevention of future harm, (5) the consideration of cost and ability to spread the risk of loss, and (6) the economic burden upon the actor and the community. Id.

In this case we conclude that by application of the Hoover’s Dairy factors, Dr. Corrado owed a duty of care to Mrs. Millard. A regulation adopted by the General Assembly in 1996 requires "on call" emergency room physicians to arrive at the hospital within thirty minutes.(FN1) This regulation evidences a social consensus to ensure that emergency room physicians attend to their patients within a reasonable time, i.e. thirty minutes. That Mrs. Millard’s injuries preceded the adoption of this regulation does not mean that this social consensus did not exist at the time of the accident. Indeed, the legislature is a political body that acts in large part in response to existing public sentiment. In addition, the record shows that at the time of the accident, AMC expected "on call" physicians to respond to calls within thirty minutes. It was also reasonably foreseeable that AMC would be presented with a patient requiring the care of a general surgeon during Dr. Corrado’s absence.

Imposing a duty on "on call" physicians to notify appropriate hospital personnel of their unavailability does not place an unreasonable burden on the medical profession. Here, a mere phone call would have significantly reduced the four-hour period between the accident and Mrs. Millard’s life-saving surgery. Whatever slight inconvenience may be associated with notifying the hospital of the on-call physician’s availability is trivial when compared with the substantial risk to emergency patients absent any notice requirement. Finally, if "on call" physicians have a duty to give notice when they cannot fulfill their "on call" responsibilities, the chances of similar incidents occurring in the future will be reduced.

B. Foreseeability of Harm

If the harm is particularly foreseeable, a duty will be recognized. The touchstone for the creation of a duty is foreseeability. Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59, 62 (Mo. banc 1988). A duty of care arises out of circumstances in which there is a foreseeable likelihood that particular acts or omissions will cause harm or injury. Id. If, under the circumstances, a reasonably prudent person would have anticipated danger and provided against it, courts will recognize a legal duty to prevent harm. Geiger v. Bowersox, 974 S.W.2d 513, 516 (Mo.App. E.D.1998).

The risk of harm to which Mrs. Millard was exposed due to Dr. Corrado’s failure to notify AMC of his unavailability was reasonably foreseeable. When Dr. Corrado decided to attend the American College of Surgeons’ meeting, he knew AMC would have no general surgeon "on call" during his absence. Dr. Corrado’s attempt to delegate his "on call" responsibilities to Dr. Jolly, an orthopedist, was conclusively ineffective because AMC had not granted Dr. Jolly privileges to perform general surgery. According to Dr. Jolly’s testimony, he would have to "send" any patients needing the care of a general surgeon to another hospital. At the very least, Dr. Corrado’s failure to notify the hospital staff of his unavailability created a false security that a general surgeon would be available to treat emergency patients requiring a general surgeon within a reasonable time at AMC. As a result of Dr. Corrado’s failure to notify AMC of his absence, AMC did not radio the ambulance that it did not have a general surgeon available and valuable time was lost attempting to contact Dr. Corrado, all of which significantly delayed Mrs. Millard’s receiving the care of a general surgeon. Under these circumstances, it is apparent a reasonably prudent person should have foreseen that such conduct would create a substantial risk of harm to emergency room patients like Mrs. Millard.

C. Application of These Principles

Applying these principles to the present case, we hold that the public policy of Missouri and the foreseeability of harm to patients in the position of Mrs. Millard support the recognition of a duty flowing from Dr. Corrado to Mrs. Millard. Accordingly, we hold that "on call" physicians owe a duty to reasonably foreseeable emergency patients to provide reasonable notice to appropriate hospital personnel when they will be unavailable to respond to calls. This duty exists independently of any duties flowing from a physician-patient relationship. Physicians who cannot fulfill their "on call" responsibilities must provide notice as soon as practicable once they learn of circumstances that will render them unavailable.

In reaching our conclusion, we are mindful of concerns raised by Dr. Corrado and the amici, in particular the fear that recognizing such a duty will prompt fewer physicians to accept "on call" assignments. This fear, however, is unwarranted. Unless obligated by law or contract, physicians are not required to accept "on call" assignments, and our holding does not alter this principle. While emergency patients may expect that a qualified physician will care for them, this expectation alone does not create a duty on the part of an identifiable physician. The duty is created by the physician who agrees to be available without reservation to treat emergency patients. We are aware of no public interest that is furthered by permitting "on call" physicians to leave town without providing adequate notice that they will be unable to respond to calls. In short, the duty we establish in this case will not have a detrimental impact on the ability of hospitals to attract physicians to accept "on call" assignments.

The concurring opinion provides additional insight and authority for our conclusion that a claim for general negligence should be recognized in Missouri in the context of this case. The opinion cites the Restatement (Second) of Torts, Section 324A in support of plaintiffs’ general negligence claim. While there is no Missouri case law in which Section 324A has been applied in a medical negligence setting, we agree that the Restatement is consistent with our conclusion in this case. Indeed, other jurisdictions have seen fit to apply Section 324A in the context of medical negligence and create the duty as the majority has here–through application of the foundational principles of foreseeability and public policy which apply to all duties rooted in negligence. See Dimarco v. Lynch Homes-Chester County, Inc., 384 Pa.Super. 463, 559 A.2d 530 (1989); Troxel v. A.I. duPont Institute, Pa.Super. 71, 675 A.2d 314 (1996); Ellis v. Peter, 627 N.Y.S.2d 707, 211 A.D.2d 353 (1995); Miller v. Rivard, 585 N.Y.S.2d 523, 180 A.D.2d 331 (1992).

II. Medical Negligence

The trial court also granted defendant’s Motion for Summary Judgment because it found there was no genuine issue of material fact as to whether a physician-patient relationship existed between Mrs. Millard and Dr. Corrado. In support of its conclusion, the trial court made the following recitals in footnote 2 of its Order and Judgment:

Plaintiffs agree with the trial court’s first two statements that Dr. Corrado was not present at AMC and that he was in Columbia. However, plaintiffs contend there are numerous evidentiary facts ignored by the trial court in reaching the conclusions in the third, fourth and fifth statements contained in the footnote. On appeal, plaintiffs contend that the trial court erred because a genuine issue of material fact exists as to whether a physician-patient relationship was created because of Dr. Corrado’s status as the "on call" general surgeon, AMC staff bylaws, and the conversation between Dr. Corrado and Dr. Welsh.

A physician-patient relationship is essential to a claim for medical malpractice. Richardson v. Rohrbaugh, 857 S.W.2d 415, 417-18 (Mo.App. E.D.1993). Absent a physician-patient relationship, no duty exists and a medical malpractice claim must fail. Corbet v. McKinney, 980 S.W.2d 166, 169 (Mo.App. E.D.1998). The law defines a physician-patient relationship as a consensual relationship where the patient or someone acting on the patient’s behalf knowingly employs a physician who consents to treat the patient. Id. Generally, a physician-patient relationship is created only where the physician personally examines the patient. Louisell & Williams, Medical Malpractice sec. 8.03, at 8-19 to — 20 (1998). However, under certain circumstances, courts have recognized a physician-patient relationship in the absence of any personal contact between the physician and patient. See, e.g., McKinney v. Schlatter, 692 N.E.2d 1045, 1050-51 (Ohio 1997) (finding a physician-patient relationship between an emergency room patient and an "on call" physician who had been consulted by the emergency room physician over the telephone and participated in the diagnosis and treatment of the patient); Hand v. Tavera, 864 S.W.2d 678, 680 (Tex.App. 1993) (holding that hospital’s contract with a health care plan and a physician’s contract with the hospital created a physician-patient relationship even though physician had no personal contact with patient); and Fought v. Solce, 821 S.W.2d 218, 220 (Tex.App. 1991) (finding that contractual obligation conditioning staff privileges on duty to be "on call" may give rise to physician-patient relationship).

This court recently discussed the requirements for establishing a physician-patient relationship when the physician has no personal contact with the patient. Corbet v. McKinney, 980 S.W.2d 166 (Mo.App. E.D.1998). In Corbet, the emergency room physician treating the patient consulted a specialist by telephone and presented the patient’s case by relaying her medical condition as set forth on the medical chart. After extensively reviewing the law of other jurisdictions, the court articulated the following test to determine whether a physician-patient relationship exists between a patient and a consultant physician: "[w]here the consultant physician does not physically examine or bill the patient, a physician-patient relationship can still arise where the physician is contractually obligated to provide assistance in the patient’s diagnosis or treatment and does so." Id. at 169. On the specific facts of the case, the Corbet court held that no physician-patient relationship existed because the consulted physician did not diagnose or treat the patient, and did not contract with either the patient, the emergency room physician, or the hospital to provide medical services.

In the present case, neither party contends that Dr. Corrado provided any "hands-on" treatment to Mrs. Millard. Because the trial court granted summary judgment to Dr. Corrado on the medical negligence claim on the ground that no physician-patient relationship existed, we must apply the Corbet test to determine if the evidence presented to the trial court created a genuine issue of material fact.

Dr. Corrado did not address the existence of a contractual obligation to treat Mrs. Millard or other emergency patients in his motion. Therefore, we consider Mrs. Millard’s evidence as uncontested on this issue. In her response, Mrs. Millard presented evidence to support finding a contractual obligation on the part of Dr. Corrado to respond to calls within thirty minutes, as now required by 19 C.S.R. 30-20.021(3)(C)(5). Specifically, the response details AMC staff bylaws relating to on-call physician responsibilities, deposition testimony from AMC’s CEO Richard Jansen and other hospital personnel indicating such a duty. Mr. Jansen testified as follows:

Q. When somebody like Dr. Corrado is listed as the on call general surgeon, what does that mean?

A. It meant we could reasonably expect that Dr. Corrado would be available within a reasonable time to respond to emergencies.

Q. And what do you mean by a reasonable time to respond to an emergency?

A. Oh, I would — I would consider a reasonable time approximately thirty minutes.

In addition, Dr. Jolly testified in his deposition as follows:

Q. What is your understanding as to the requirements of response time for the on-call general surgeon?

A. I believe the response time is twenty minutes. I am not absolutely sure on that; twenty to thirty minutes is what I am lead to believe.

Q. And is it the hospital’s policy now, and was it in November, ’94, that around the clock, twenty-four hours a day, an on-call general surgeon should be within twenty to thirty minutes of the hospital when called?

A. That’s the recommendation, yes.

Mrs. Millard argues that Dr. Corrado’s failure to respond to his pages amounts to a refusal to treat her which is prohibited by AMC’s bylaws. Other jurisdictions have relied on hospital bylaws to impose a duty to treat. Hiser v. Randolph, 617 P.2d 774 (Ariz.App. 1980). After examining the section of the bylaws before the trial court and the testimony of Richard Jansen we conclude that, absent contrary evidence, Mrs. Millard is entitled to the reasonable inference that AMC contracted with Dr. Corrado to treat all general surgery patients who presented to the emergency room.

In his Motion for Summary Judgment, Dr. Corrado argues that no physician-patient relationship existed because of four facts: (1) that Dr. Corrado was attending a meeting in Columbia, Missouri when Mrs. Millard was brought to AMC; (2) that Dr. Jolly was the "on call" physician for Dr. Corrado at the time; (3) that Dr. Corrado did not provide any care or treatment to Mrs. Millard; and (4) that Dr. Corrado did not provide any consultation regarding the care or treatment of Mrs. Millard. In support of the claim that Dr. Corrado provided no care or treatment, the motion cites AMC’s emergency room records, Dr. Jolly’s deposition, and his own deposition. The emergency room records are presumably relevant to show that Dr. Corrado did not render any "hands on" treatment, a point with which plaintiffs agree. The portion of Dr. Jolly’s deposition which Dr. Corrado relies upon indicates that Dr. Jolly did not talk with Dr. Corrado by phone while Mrs. Millard was at AMC. The cited portion of Dr. Corrado’s deposition simply reiterates that Dr. Corrado was attending a surgeons’ meeting in Columbia, Missouri.

Plaintiffs point to contrary evidence, citing Dr. Welsh’s patient history report and his deposition testimony as evidence that Dr. Corrado did participate in the treatment of Mrs. Millard. Mrs. Millard contends that Dr. Corrado consulted with Drs. Welsh and Jolly on the phone while Mrs. Millard was still at AMC. Plaintiffs also assert that Dr. Corrado participated in the diagnosis of Mrs. Millard’s condition and the decision to transfer her to the University of Missouri Medical Center. Dr. Welsh’s report reads as follows:

We did contact Dr. Corrado by phone. The situation was discussed and the options addressed. It was felt that in view of the extent and nature of the patient’s injury, that she would be best served by transfer to the University of Missouri Medical Center, where a trauma team was available. It was not felt to be prudent to attempt to care for her at Audrain Medical Center. With this in mind she was given IV fluids, type specific blood, and as soon as she was stable enough was transferred by ambulance to the University of Missouri Medical Center. . . .

Dr. Welsh’s report is corroborated by his deposition testimony.

In addition, Dr. Corrado testified at his deposition that he recalled such a phone call with either Dr. Jolly or Dr. Welsh in which Mrs. Millard’s status was discussed. Dr. Welsh’s report and the deposition testimony of both Drs. Welsh and Corrado, when viewed in a light most favorable to plaintiffs, raise a material question of fact regarding the extent of Dr. Corrado’s participation in Mrs. Millard’s treatment that day. On this record a jury could find that Dr. Corrado made or participated in making the decision to transfer Mrs. Millard to the University of Missouri Medical Center and that, in coming to such a decision, Dr. Corrado relied on his skill and training as a general surgeon. This evidence indicates that the trial court’s fourth recital–"Corrado did not provide a consultation or offer any advice as to [Mrs.Millard’s] care and treatment while she was at Audrain Hospital" — is subject to dispute.

Furthermore, the trial court’s fifth recital in the footnote — "Corrado was unaware Plaintiff had been taken to Audrain Hospital until she had already been sent to the University of Missouri Hospital for further care and treatment" — is also contradicted by the evidence in the record. Dr. Corrado testified as follows:

Dr. Corrado’s deposition testimony suggests Mrs. Millard was still present at Audrain when Dr. Corrado spoke to the other doctors and that, contrary to the trial court’s recitals, Dr. Corrado’s own testimony was that he was aware of her presence at Audrain before she was transferred. These disputed facts were apparently overlooked by the trial court and make summary judgment in this case an inappropriate remedy.

We find that Plaintiffs adequately pleaded both a general negligence claim and a medical negligence claim. Count V of plaintiffs’ petition states:

This paragraph sufficiently advised Dr. Corrado of Mrs. Millard’s medical negligence claim so that he could prepare a defense. While the heart of both the general negligence claim and the medical negligence claim is Dr. Corrado’s failure to provide hands-on treatment in the form of emergency surgery, the general negligence claim does not make the medical negligence claim irrelevant. Rule 55.10 states that a plaintiff may include more than one claim in a single count. "A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses. . . . A party may also state as many separate claims or defenses as he has regardless of consistency and whether based on legal or equitable grounds."

While plaintiffs’ pleadings in Count V of the petition are subject to criticism, Rule 55.33(a) and (b) affords the parties the right to move to amend the pleadings before trial or amend the pleadings to conform to the evidence presented at the close of all evidence. Because a motion for summary judgment does not attack the pleadings we should not address the pleadings at this early stage on our own motion.

The tortious conduct that forms the essence of both claims was Dr. Corrado’s failure to perform emergency surgery. We are unable to find any case law which indicates that the conduct giving rise to a physician-patient relationship must be the same conduct that causes the plaintiff’s injury. Dr. Corrado’s failure to be present to treat Mrs. Millard was an ongoing tort. His duty to her arose upon her admission into the emergency room and continued until she received the emergency surgery she needed. The recent Missouri Supreme Court case of Weiss v. Rojanasathit makes very clear that the duty to attend the patient continues unless the physician-patient relationship is ended by (1) the mutual consent of the parties, (2) the physician’s withdrawal after reasonable notice, (3) the dismissal of the physician by the patient, or (4) the cessation of the necessity that gave rise to the relationship. Weiss v. Rojanasathit, 975 S.W.2d 113, 119-120 (Mo. banc 1998). Once a physician-patient relationship is established, the physician is bound to fulfill his duty until it terminates pursuant to Weiss. In the present case, the necessity for Mrs. Millard’s emergency surgery ceased when she received that surgery at the University of Missouri Medical Center more than three hours after her arrival at AMC.

Because there are material questions of fact as to the existence of a physician-patient relationship in this case, we hold that the trial court erred in entering summary judgment in favor of Dr. Corrado on this issue.CONCLUSIONFor the reasons stated, the trial court erred in concluding that: 1) plaintiffs failed to state a general negligence claim against Dr. Corrado; and 2) there was insufficient evidence of a physician-patient relationship between Mrs. Millard and Dr. Corrado. The judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.

Footnotes:

FN1. This regulation sets forth a "standard of care" for emergency room personnel and provides in pertinent part: "[t]he surgeon who is on call for emergency surgical cases shall arrive at the hospital within thirty (30) minutes of being summoned." 19 C.S.R. 30-20.021(3)(C)(5).

Separate Opinion:

Opinion Concurring in Result by Lawrence G. Crahan, Judge

I respectfully concur in result.

The sole issue in this appeal is whether the trial court properly rendered summary judgment on a single count of a six count petition. Although the briefs of the parties leave the somewhat confusing impression that Plaintiffs attempted to assert both a general negligence count and a medical malpractice count against Dr. Corrado, only one count of the petition pertains to Dr. Corrado.

In Count V of the petition, Plaintiffs claimed that they were injured as a direct result of the following conduct of Dr. Corrado:

In the trial court, Defendant prevailed on the ground that the undisputed facts established that there was no physician-patient relationship. Plaintiff never alleged there was a physician-patient relationship, that Dr. Corrado ever treated her or that her injuries resulted from Dr. Corrado treating her or failing to treat her. She claims she was injured because Dr. Corrado’s conduct in the particulars set forth above caused her to be transported to a hospital that wasn’t equipped to treat her severe injuries instead of being transported to an almost equidistant hospital that was fully equipped to treat her, thus delaying treatment for several hours and exacerbating her injuries.

Although Plaintiffs urge on appeal that Defendant did not conclusively establish the absence of a physician-patient relationship due to an arguable conflict in the evidence over whether Dr. Corrado spoke to Dr. Jolly or Dr. Welsh before Mrs. Millard was transported to the University of Missouri Medical Center, the point is essentially irrelevant. In their petition, Plaintiffs do not claim that the decision to transport Mrs. Millard to the University of Missouri Medical Center was negligent. Thus, whether Dr. Corrado did or did not participate in that decision is essentially irrelevant because Plaintiffs do not contend that such "treatment," if it occurred, caused her any injury.

Plaintiffs have, however, stated a claim for negligence against Dr. Corrado regardless of whether there was a physician-patient relationship. Specifically, the Restatement (Second) of Torts, section 324A, which has been recognized and applied by Missouri Courts, provides a basis for recovery that is not dependent upon the existence of a physician-patient relationship.

The Restatement (Second) of Torts, section 324A provides in relevant part:

This section has been recognized as a basis for recovery under Missouri law at least since 1983. Brown v. Michigan Millers Ins. Co. Inc., 665 S.W.2d 630, 632-36 (Mo.App. 1983); Bowman v. McDonalds Corp., 916 S.W.2d 270, 286-87 (Mo.App. 1995). It is essentially a restatement of the doctrine, long recognized in Missouri law, that a duty may be assumed or undertaken, and when so assumed, a defendant must exercise reasonable care in carrying out the duty. Wolfmeyer v. Otis Elevator Co., 262 S.W.2d 18, 23 (Mo. 1953).

In this case, Plaintiffs have provided evidence sufficient for a jury to find all of the elements required for recovery. It is undisputed that Dr. Corrado undertook to render service as the on-call surgeon for Audrain Hospital. The purpose of having an on-call surgeon is to protect third persons such as Mrs. Millard who may suffer serious injuries requiring prompt surgical intervention. Dr. Corrado arranged for Dr. Jolly, who was not authorized to perform general surgery, to cover for him, thus creating a foreseeable risk that a seriously injured person such as Mrs. Millard would be transported to a facility that had no one available to treat her injuries and that the resulting delay in obtaining proper treatment would exacerbate those injuries. Although Dr. Corrado claims he notified the emergency department and the switchboard operator that he would be unavailable, the available records do not reflect such notice. Even assuming such notice was given, a jury could still find that such actions were insufficient under the circumstances. According to the Restatement (Second) of Torts, section 324A, comment b, liability may also be predicated on failure to exercise reasonable care to protect third persons upon discontinuing the undertaking. Finally, Plaintiffs produced substantial evidence that Dr. Corrado’s actions resulted in a delay in obtaining treatment for her injuries, thus increasing the risk of harm. Under such circumstances, Dr. Corrado is not entitled to summary judgment and the judgment must be reversed and the cause remanded for a new trial.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Mileikowsky v. West Hills Hosp. and Med. Ctr. (Summary)

MEDICAL STAFF HEARINGS

Mileikowsky v. West Hills Hosp. and Med. Ctr., No. S156986 (Cal. Apr. 6, 2009)

The Supreme Court of California held that a hearing officer in a medical staff hearing lacked the authority, pursuant to California law and the medical staff bylaws, to dismiss a physician’s case in response to the physician’s noncompliance with procedural requirements (in this case, the production of documents during "discovery").

Following the denial of his obstetrical privileges at a hospital, a physician requested a hearing challenging the review committee’s recommendation. Due to the physician’s recalcitrance and refusal to produce documents requested by the hospital, the hearing officer issued an order dismissing the hearing. The hearing officer interpreted the California peer review statute to confer upon him the power to impose sanctions beyond granting or denying continuances by virtue of the hearing officer’s “power to impose safeguards to protect the peer review process.”

The court held that the hearing officer’s dismissal of the proceedings prevented the reviewing panel from considering the evidence and eliminated the reviewing panel’s role in the decision-making process. The court also noted that the provision for imposing safeguards “clearly seems directed to the situation in which the material a physician requests to inspect or copy includes confidential information related to physicians who are not parties to the proceedings.”

Archives

Archives

Miller v. Jacoby

Miller v. Jacoby

Mihailescu v. Sheehan (Full Text)

Mihailescu v. Sheehan (Full Text)

Milford Hosp., Inc. v. Fed. Ins. Co.,

Milford Hosp., Inc. v. Fed. Ins. Co.,

Miguel M. v. Barron (Summary)

Miguel M. v. Barron (Summary)

Mikes v. Straus,

Mikes v. Straus,

Millan v. Hosp. San Pablo

Millan v. Hosp. San Pablo

Mihailescu v. Sheehan (Summary)

Mihailescu v. Sheehan (Summary)

Mileikowsky v. Tenet Healthsystem

Mileikowsky v. Tenet Healthsystem

Millard v. Corrado

Millard v. Corrado

Mileikowsky v. West Hills Hosp. and Med. Ctr. (Summary)

Mileikowsky v. West Hills Hosp. and Med. Ctr. (Summary)