Meyers v. Epstein

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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GARY MEYERS, Individually and Guardian ad
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litem for SAMARA MEYERS (a minor), and
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PATRICIA MEYERS,
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Defendants.
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FRED EPSTEIN, M.D., IRA RICHMOND
ABBOTT, III, M.D., JOHN DOES 1-10, JANE
DOES 1-10, and ABC CORPORATIONS 1-10,

Plaintiffs,

-v.-

OPINION AND ORDER
01 Civ. 1754 (GWG)

GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE

APPEARANCES OF COUNSEL:

Bruce H. Nagel, Esq.
Robert H. Solomon, Esq.
Nagel R ice Dre ifu ss & Mazie, LLP
301 So. Livingston Avenue
Livingston, New Jersey 07039
Attorney for Plaintiffs

Elliot J. Zucker, Esq.
Aaronson Rappapo rt Feinstein & Deutsch , LLP
757 Third Avenue
New York, New York 10017
Attorney for Defendants

FRED EPSTEIN, M.D., IRA RICHMOND
ABBOTT, III, M.D., JOHN DOES 1-10, JANE
DOES 1-10, and ABC CORPORATIONS 1-10,

Plaintiffs,

-v.-

OPINION AND ORDER
01 Civ. 1754 (GWG)

GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE

On November 14, 2002, this Court issued a decision granting in part and denying in part

defendants’ motion for summary judgment. See Meyers v. Epstein, 232 F. Supp. 2d 192

(S.D.N.Y. 2002). The plaintiffs have now moved in limine with respect to certain evidence they

wish to offer in the trial of this matter. The facts underlying this case are fully set forth in the

Court’s prior decision and will not be repeated here except to the extent necessary to resolve the

instant motion.

Background

This case arises out of brain surgery performed on Samara Meyers, who was eleven years

old at the time. Samara suffered from a brain tumor and the surgery was performed in order to

remove that tumor. Samara and her parents (“the Meyers”) allege that fol lowing the surgery

Samara experienced left side paralysis, cognitive impairments and a loss of left side peripheral

vision in both eyes. See Joint Pretrial Order, dated April 9, 2002, at 7. They do not allege,

however, that the surgery was improperly performed. See id. at 16-18. Indeed, the only evidence

on this point is that Samara’s injuries were a known but extremely rare complication of the

procedure. See Deposition of Ira Richmond Abbott, M.D., dated January 16, 2002 (annexed to

Affidavit of Robert H. Solomon, dated May 9, 2003 (“Pl. Aff.”), Ex. F), at 118. Rather, the

Meyers’ complaint is based on their allegation that they gave permission only to Dr. Fred Epstein

to perform this surgery but that the surgery was instead performed by Dr. Ira Richmond Abbott.

See Complaint, filed February 28, 2002, ¶¶ 5-7.

The Meyers brought suit alleging various claims against Dr. Abbott and Dr. Epstein. As

reflected in its prior decision, the Court is permitting two of the Meyers’ claims to go to trial:

their battery claim against Dr. Abbott alleging an unconsented touching and their malpractice

claim against Dr. Epstein alleging he misled them as to who would be performing the surgery.

See Meyers, 232 F. Supp. 2d at 199-200. In the text of its decision, the Court noted that

it is unclear how the Meyers were damaged by the surgery given that there is no
evidence suggesting that it was medically unnecessary or improperly performed.
Nonetheless, nominal damages are available in a battery case, see, e.g., Brooker v.
State, 206 A.D.2d 712 (3d Dep’t 1994), and there may be some damages that
could be shown from the plaintiffs’ discovery, after the fact, that the operation
was performed by a doctor different from the one to whom consent was given.
See Perna [v. Pirozzi], 92 N.J. [446,] 461 [(1983)] (permitting damages for mental
anguish resulting from such belated knowledge).

Id. at 198-99.

In the instant motion, the Meyers set forth their disagreement with this characterization of

the law. They seek a rul ing in limine to permit introduction of evidence relating to the

complications Samara experienced following the surgery in order to argue that she should be

compensated for the suffering she has endured as a result of the complications. The position

advanced by the Meyers is a s traigh tforward one: a pat ient who is batte red by a doc tor th rough

surgery for which a different doctor was given permission may recover for all adverse

consequences resulting from the surgery regardless of whether or not the doctor’s performance of

the surgery was negligent. Thus, the Meyers seek to recover for the effects of the surgery itself:

Samara’s left side paralysis, cognitive impairments and the loss of left side peripheral vision in

both eyes. Defendants counter that because the adverse consequences from the surgery were

foreseeable – albeit rare – the Meyers should be limited to nominal damages and any “mental

anguish” damages suffered as a consequence of the discovery after the fact that Dr. Abbott had

performed the operation.

Discussion

The question of what damages are available in a case of this kind — colloquially referred

to as “ghost surgery” — has not been squarely addressed by the New York Court of Appeals.

Accordingly, our task is to predict how that court would resolve this dispute. See, e.g., Elliott

Assocs., L.P. v. Banco de la Nacion, 194 F.3d 363, 370 (2d Cir. 1999); Travelers Ins. Co. v. 633

Third Assocs., 14 F.3d 114, 119 (2d Cir. 1994). Although “the best indicators of how [the New

York Court of Appeals] would decide are often the decisions of lower [New York] courts,” In re

Brooklyn Navy Yard Asbesto s Litig. , 971 F.2d 831, 850 (2d Ci r. 1992), we are not aware of any

New York case law directly on point.

A requirement of any cause of action in tort, however, “is that there be some reasonable

connection between the act or omission of the defendant and the damage which the plaintiff has

suffered.” W. Page Keeton, Prosser & Keeton on the Law of Torts § 41, at 263 (5th ed. 1984).

Because the purpose of compensatory damages is to compensate the plaintiff for an injury caused

by a defendant, see, e.g., Carey v. Piphus, 435 U.S. 247, 254-55 (1978), one principle of

causation is that the defendant’s conduct be a “but for” cause of plaintiff’s injuries. Stated

otherwise, “[a]n act or omission is not regarded as a cause of an event if the particular event

would have occurred without it.” Keeton, supra, § 41, at 265. In addition to “but for” causation,

the plaintiff must prove his or her losses were proximately caused by defendant’s actions. Baker

v. Drake, 53 N.Y. 211, 211 (1873); Hanley v. St. Charles Hosp. & Rehab. Ctr., 763 N.Y.S.2d

322, 324 (App. Div. 2d Dep’t 2003). These basic rules of causation fit hand-in-glove with the

law of damages. Under New York law, any damages recovered must be the direct result of

defendant’s wrongful actions. See, e.g., Steitz v. Gifford, 280 N.Y. 15, 20 (1939); Roth v.

Hudson Transit Lines, Inc., 72 Misc. 2d 999, 1002 (N.Y. Sup. Ct. 1972).

The causation requ irement may differ fo r negligence and intentional to rts. A lthough

“even an intentional wrongdoer is only responsible for the injuries he has directly caused,”

Cauverien v. De Metz, 20 Misc. 2d 144, 147 (N.Y. Sup. Ct. 1959), “the usual common law rule

seems to be that the strictures of proximate cause are applied more loosely in intentional tort

cases,” United Food & Commercial Workers Unions, Employers Health & Welfare Fund v.

Philip Morris, Inc., 223 F.3d 1271, 1274 (11th Cir. 2000).

The Restatement (Second) of Torts states the principle underlying the special rule for

intentional torts: “responsibility for harmful consequences should be carried further in the case of

one who does an intentionally wrongful act than in the case of one who is merely negligent or is

not at fault.” § 435B cmt. a (1965); see also id. § 501(2). See generally Keeton, supra, § 8, at 37

n.27 (“For an intended injury the law is astute to discover even very remote causation.”) (quoting

Derosier v. New England Tel. & Tel. Co., 130 A. 145, 152 (N.H. 1925)). The more generous

concept of causation accorded plaintiffs in the case of intentional tortfeasors, however, appears to

allow only an expanded concept of proximate cause. The Court is unaware of any case

suggesting that the “but for” causation requirement is obviated where an intentional tort is

involved.

In any event, expansion of causation is inappropriate in the instant case where there is no

evidence that the surgery was performed for the purpose of causing any harm to Samara. While

the Meyers allege a complete lack of consent to Dr. Abbott’s performing the surgery, some of the

same considerations that govern the law of informed consent — that is, situations where the risks

of surgery have not been fully disclosed — should provide guidance here. In an informed consent

case, no recovery is permitted where the surgery would be desired by a reasonably prudent person

in the patient’s position. See N.Y. Pub. Health Law § 2805-d(3). In the case of “ghost surgery,”

the surgery is necessarily desired by the patient inasmuch as the patient has sought to have it

performed by at least one doctor. Both these situations stand in stark contrast to the situation in

which a doctor undertakes a surgical procedure for which no consent of any kind has been given

— for example, an unauthorized surgery performed while a patient is under anaesthetic for

another procedure. Because the patient in a “ghost surgery” case actually desires the surgery to

take place, the consequences of the surgery should be evaluated in the context of what would

have occurred if the surgery had been executed exactly according to the patient’s consent.

In the situation of informed consent, New York does not permit a cause of action unless

the plaintiff establishes “that a reasonably prudent person in the patient’s position would not have

undergone the treatment or diagnosis if he had been fully informed.” N.Y. Pub. Health Law

§ 2805-d(3). Case law suggests that this rule developed in the context of determining whether

there was a causal connection between a doctor’s failure to adequately disclose risks and the

patient’s injuries. E.g., Dries v. Gregor, 72 A.D.2d 231, 236-37 (4th Dep’t 1980) (“[T]he causal

connection between a doctor’s failure to perform his duty to inform and a patient’s right to

recover exists only when it can be shown objectively that a reasonably prudent person would

have decided against the procedures actually performed.”); accord Canterbury v. Spence, 464

F.2d 772, 790 (D.C. Cir. 1972) (“A causal connection exists when, but only when, disclosure of

significant risks incidental to treatment would have resulted in a decision against it.”). Thus, if

the patient could have been expected to undergo the treatment anyway, the doctor’s failure to

inform could not be considered the actual or “but for” cause of the patient’s injuries.

The same principle should operate in the case of “ghost surgery.” Because Samara

planned to have the tumor removal surgery by some doctor (that is, Dr. Epstein), it cannot be said

that Dr. Abbott’s performance of the surgery was the actual cause of her injuries. The

appropriateness of such a rule is highlighted by imagining a “ghost surgery” that was successful.

Suppose a patient sought to have his gall bladder removed. The surgery was completely

successful but it turned out that Dr. A had performed the surgery whereas the patient had granted

only Dr. B permission to perform it. On the Meyers’ theory, the patient could recover for all the

negative consequences of the surgery: the several days of abdominal pain, the after-effects of the

anaesthetic, the incision to the stomach and the resultant scarring, etc. This theory, however,

ignores the fact that the patient would have endured all of these effects had Dr. A not performed

the surgery because the patient would have had Dr. B perform it. To allow the patient to recover

for these effects would thus result in an award of damages completely unrelated to the wrong

committed by Dr. A. Such a rule would treat the surgery as essentially no different from a street-

knifing.

The Meyers appropriately concede that the effects of a successfully performed surgery are

not recoverable. See Brief in Reply to Defendants’ Opposition to Plaintiffs’ Motion to Define

Scope of Damages, dated June 23, 2003, at 3. Nonetheless, they argue that the effects of a

“known complication” are recoverable. Id. But there is no principled distinction between the

injuries that result from a surgery without complications and the injuries that result from a

properly performed surgery that results in some known or foreseeable complication. Unless the

Meyers could show that the same surgery performed by Dr. Epstein would not have resulted in

these complications, it cannot be said that Dr. Abbott’s act was the cause of the complications

endured by Samara. The fact that the complications Samara suffered are rare – while scarring

and a recovery period are certain – does not alter the fact that Dr. Abbott’s performance of the

surgery was no more the cause of the rare complications than it was a cause of the scar and

recovery period. In other words, in the absence of evidence that the procedure was improperly

performed, the potential for complications was the same regardless of who performed the brain

surgery on Samara.

“Ghost surgery” involves the unusual tort where the plaintiff actually wishes to be the

subject of the very conduct that forms the basis of the tort — as long as the conduct is undertaken

by someone else. Informed consent law recognizes this principle through its requirement that the

plaintiff demonstrate that an objectively reasonable patient would not have undergone the surgery

at issue. Such a requirement ensures that there is a reasonable connection between the

defendant’s wrongful conduct and the plaintiff’s injuries. In the case of “ghost surgery,”

however, there is no need to determine whether a “reasonably prudent person” would have

undergone the surgery because by definition the patient in the “ghost surgery” case necessarily

would have had the surgery performed by some other doctor.

As already noted, the Meyers have conceded that they have no evidence that there was

anything improper in the performance of the surgery. Indeed, there will be evidence that Dr.

Abbott had more experience performing this surgery than did Dr. Epstein. See Report of David

Befeler, M.D., dated February 12, 2002 (annexed to Pl. Aff., Ex. C), at 4. Unless the Meyers can

show that the results of the surgery would have been different had it been performed by Dr.

Epstein, there is no basis for connecting Samara’s resulting condition with the alleged wrong

committed by Dr. Abbott.

The same is true for their claim against Dr. Epstein. The Meyers cannot establish a “but

for” connection between Dr. Epstein’s acts and Samara’s post-surgical disabilities. Had Dr.

Epstein appropriately informed the Meyers that Dr. Abbott would be performing the surgery, the

Meyers still would have had the surgery performed by some doctor. See Deposition of Gary

Meyers, dated January 3, 2002 (annexed to Pl. Aff., Ex. D), at 30. Thus, Dr. Epstein’s conduct

cannot be shown to have caused the complications that Samara has endured.

In sum, while the surgery resulted in rare and unfortunate complications, the Meyers

cannot show that these complications were caused by the alleged wrongful acts: Dr. Abbott’s

performance of the surgery without their consent or Dr. Epstein’s alleged misstatements. Rather,

the evidence will be that these complications, while rare, were a foreseeable result of the

performance of the surgery even when done correctly. The Meyers may not recover for damages

that are the foreseeable resul t of an event that would have occurred anyway.

At least one case from another jurisdiction supports this conclusion. In another “ghost

surgery” case, Perna v. Pirozzi, 457 A.2d 431 (N.J. 1983), the court stated:

In an action predicated upon a battery, a patient need not prove initially that the
physician has deviated from a professional standard of care. Under a battery
theory, proof of an unauthorized invasion of the plaintiff’s person, even if
harmless, entitles him to nominal damages. The plaintiff may further recover for
all injuries proximately caused by the mere performance of the operation, whether
the resul t of negligence or not . If an operat ion is properly performed, albeit by a
surgeon operating without the consent of the patient, and the patient suffers no
injuries except those which foreseeably follow from the operation, then a jury
could find that the substitution of surgeons did not cause any compensable injury.
Even there, however, a jury could award damages for mental anguish resulting
from the belated knowledge that the operation was performed by a doctor to
whom the patient had not given consent.

Id. at 438 (citations omitted).

The Meyers focus their argument on the sentence of the passage that states: “[t]he

plaintiff may further recover for all injuries proximately caused by the mere performance of the

operation, whether the result of negligence or not.” Id. They interpret this sentence to mean that

they may recover for all consequences of the surgery, including Samara’s impaired physical

condition. See Plaintiffs’ Memorandum of Law in Support of Motion to Define Scope of

Damages, dated May 9, 2003, at 2. In fact, the quoted sentence can be understood only by

considering the remainder of the paragraph, which makes clear that where an injury “foreseeably

follow[s] from the operation,” no recovery is available for that injury. 457 A.2d at 438. Instead,

the plaintiff would be relegated to “damages for mental anguish resulting from the belated

knowledge that the operation was performed by a doctor to whom the patient had not given

consent.” Id. Here, the only evidence with respect to the effects Samara suffered are that they

were known potential complications of the procedure and thus that they were “foreseeable.”

The Court is aware of two cases holding that all consequences of “ghost surgery” are

recoverable even where there has been no showing of negligence: Vitale v. Henchey, 24 S.W.3d

651, 659-60 (Ky. 2000), and Pugsley v. Privette, 263 S.E.2d 69, 74-75 (Va. 1980). Vitale

provides no discussion of the reasoning underlying its conclusion, other than to state that “[a]

person injured as a result of a battery is entitled to recovery for any damages resulting

therefrom.” 24 S .W .3d at 659 . Yet , the authority Vitale cites for this proposition itself relies on

the “but for” concept by noting that a damages recovery must place the plaintiff in the “position

he would have occupied had it not been for the defendant’s tort.” 22 Am. Jur. 2d Damages §

130. Pugsley too does not discuss the “but for” principle. Instead, it relies on the argument that a

physician must bear the “risk” of operating without consent. 263 S.E.2d at 75. Pugsley does not

discuss, however, why the wrong committed by the physician is the cause of consequences of a

surgery that would have taken place anyway. Neither case discusses the analogous situation of

informed consent, where no recovery is available (at least under New York law) for the

consequences of surgery if a reasonably prudent person in the patient’s position would have

undergone surgery if fully informed. Again, under the rule articulated in Pugsley and Vitale,

even the patient in a successful operation would be able to recover for the scar, the pain of the

surgery, the discomfort from the recovery, and so on. For the reasons already stated, this Court

respectfully disagrees with these courts on this point and believes that the New York Court of

Appeals would reach the opposite result.

Conclusion

For the foregoing reasons, plaintiffs’ motion in limine is denied.

SO ORDERED.

Dated: September 16, 2003,
New York, New York

Copies sent to:

Bruce H. Nagel, Esq.
Robert H. Solomon, Esq.
Nagel R ice Dre ifu ss & Mazie, LLP
301 So. Livingston Avenue
Livingston, New Jersey 07039

Elliot J. Zucker, Esq.
Aaronson Rappapo rt Feinstein & Deutsch , LLP
757 Third Avenue
New York, New York 10017

______________________________
GABRIEL W . GORENSTEIN
United States Magistrate Judge

Meyers v. Columbia/HCA Healthcare Corp.

Meyers v. Columbia/HCA Healthcare Corp., No. 01-6217, 01-6190 (6th Cir. Aug. 20, 2003)

A physician denied reappointment sued, claiming, among other things, that the
committee did not provide appropriate notice, that the committee was not formed
of peers, and that the peers who were on the committee were his competitors.
The hospital responded by claiming that the notice fell within the “safe
harbor” afforded by the HCQIA and that the hospital actions were protected
by the Act. The hospital argued that the committees were properly formed. The
hospital went on to file a counterclaim, stating that the suit was frivolous,
and therefore the hospital was due court costs and attorney fees.

The court held that the hospital was protected by the HCQIA
since its actions were based on a “reasonable belief that the action was
in furtherance of quality health care.” The notice complied with the “safe
harbor” of HCQIA. The court also held that the physician had been given
a fair hearing with ample opportunity to defend his actions. However, since
the physician raised legitimate concerns, the action was not frivolous and therefore
the hospital was not due costs and fees.

Messina v. Matarasso,

Messina v. Matarasso
No. 4030 (N.Y. App. Div. July 12, 2001)

A woman who underwent cosmetic facial surgery brought this suit against her
surgeon when, without her consent, the surgeon told her that he also performed
"closed capsulotomies" on both of her breasts. The New York Supreme
Court, Appellate Division, First Department, heard this case on the issue of
whether the woman’s action, which sought damages for the physician’s negligent
performance of the breast surgery without her consent, was subject to a one-year
statute of limitations based on a "battery" or a two and one half
year statute of limitations based on "medical malpractice." The court
held the surgeon’s action was intentional because "he performed a procedure
on her with no consent at all" and thus the action sounded in battery.
The court applied the one-year statute of limitations and dismissed the suit.

Meyers v. Epstein

Meyers v. Epstein,
No. 01-Civ. 1754 (GWG) (S.D.N.Y. Nov. 14, 2002)

The
United States District Court for the Southern District of New York ruled that
two physicians could be liable when one of the physicians stated that he would
perform brain surgery on an 11-year-old girl and the other physician actually
performed the operation.

Prior to surgery, the parents of the minor patient signed a form consenting
to the operation by Dr. Epstein, "his assistant," or "his designees."
The parents claimed that Dr. Epstein subsequently reassured them that he would
be performing the surgery personally. When the parents learned that Dr. Epstein
had not, in fact, performed the surgery, they sued for malpractice. The court
found that the parents had adequately alleged that Dr. Epstein’s behavior deviated
from the standard of care and that this deviation was the proximate cause of
any "mental anguish" to them. Thus, the court held that the parents’
claim for malpractice could proceed to trial.

The parents also sued the physician who actually performed the operation for
battery. The court noted that "battery" is defined as "intentional
wrongful physical contact with another person without consent." Since the
parents alleged that the terms of the consent form had been subsequently changed
by Dr. Epstein’s verbal reassurance that he would perform the surgery, the court
allowed this claim to proceed to trial so a jury could determine whether or
not the parents had, in fact, consented to anyone other than Dr. Epstein operating
on their daughter.

Meyers v. Logan Memorial Hospital

Meyers v. Logan Memorial Hospital, No. CIV.A.1:97-CV-219-M (W.D. Ken. Jan. 27, 2000)

Plaintiff physician applied for staff privileges at defendant Hospital and in accordance with the Medical Staff Bylaws, was granted provisional clinical privileges for one year. At the
end of the provisional year, the Credentials Committee recommended denial of his appointment and clinical privileges. The Medical Executive Committee accepted the Credentials Committee’s recommendation. Concerned with the way the peer review was being conducted, a committee of the Board took over the review. It, too, concluded that plaintiff should not be appointed to the staff based on his failure to “meet [the hospital]’s standard of care, abide by the ethics of the profession, work cooperatively with others, and timely complete medical
records.” A Fair Hearing Committee (FHC) composed of a retired court of appeals judge, an attorney, a bank president, a licensed dentist, and an industrialist was appointed. The FHC met eleven times; throughout this process plaintiff was represented by counsel and was given the opportunity to present and cross-examine witnesses. The FHC recommended that the hospital deny appointment to plaintiff. The LMH Governing Board adopted the recommendation.

Plaintiff filed suit in state court, seeking an injunction to prevent the hospital from reporting the action to the National Practitioner Data Bank and to reinstate his staff privileges. The trial court granted the injunction in reference to the NPDB, but refused to force the hospital to reinstate his privileges.

Plaintiff also sued in federal court, alleging antitrust violations and including the claims from the state court action. The Federal District Court for the Western District of Kentucky granted summary judgment in favor of the defendants, ruling that they were entitled to the immunity provided by the Health Care Quality Improvement Act. The court rejected plaintiff’s argument that the HCQIA immunity did not apply because no physicians served on the hearing panel. It also ruled that the hospital was not required to wait for a patient to be harmed or a nurse to quit to take a professional review action.

Methodist Healthcare v. American Int’l Specialty Line Ins. Co.

MALPRACTICE – CORPORATE NEGLIGENCE, INSURANCE COVERAGE

Methodist Healthcare v. American Int’l Specialty Line Ins.
Co.,
No. 03-2106 D/V (W.D.Tenn. Mar. 30, 2004)

A mother sued a hospital for negligent credentialing on behalf
of her child who suffered injuries during birth. An insurance company for the
hospital denied coverage, claiming that the policy excluded claims for bodily
injury. The hospital filed a declaratory judgment action against the insurance
company, and the insurance company moved for summary judgment. The trial court
found that, while the policy excluded claims for bodily injury, the policy was
amended to cover negligent credentialing claims.

The insurance company then argued that the negligent credentialing
claim was interrelated with an earlier malpractice claim by the mother and her
child, which was defended by another insurance company for the hospital, and
because of that, the insurance company was the "successor insurer"
and therefore not responsible under the policy to defend and indemnify the hospital
on the negligent credentialing claim. The court held that this was a new complaint,
and that both insurance companies were concurrent insurers and therefore responsible.

Finally, the insurance company argued that the "other
insurer" clause defeated complete coverage because the hospital’s other
insurance company was the primary provider. The court held that the clause was
inconsistent with the rest of the policy, and that this was an issue for later
in the litigation process. The Western District Court of Tennessee denied the
summary judgment.

Meyers v. Epstein

Meyers v. Epstein,
No. 01 Civ. 1754 (GWG) (S.D.N.Y. Sept. 16, 2003)

The
United States District Court for the Southern District of New York denied a
patient’s motion in limine in a lawsuit filed against two physicians. The patient
had given permission for a physician to perform brain surgery but the surgery
was ultimately performed by a second physician. The court found that the patient
could not show that her foreseeable surgical complications were the result of
either the alleged battery claim against the operating physician or the alleged
malpractice claim against the physician who agreed to perform the surgery but
then permitted a second physician to do so. The court looked to the law of informed
consent which does not allow recovery for the consequences of surgery if a reasonably
prudent person would have consented to the surgery if fully informed.

Michigan Avenue National Bank v. County of Cook

Michigan Avenue National Bank v. County of Cook,
No. 88286 (Ill., June 15, 2000)

Administrator filed a medical malpractice claim alleging that the negligent actions of the
public hospital, including its physicians and nurses, was the proximate cause
of the decedent’s death. The appellees’ asserted protection from liability pursuant
to the Illinois’ Tort Immunity Act. In finding for the appellees, the Supreme
Court of Illinois determined that the “clear and unambiguous” language
of the statute barred the appellant’s action.

Methodist Healthcare v. American Int’l Specialty Line Ins. Co.

MALPRACTICE – CORPORATE NEGLIGENCE, INSURANCE COVERAGE

Methodist Healthcare v. American Int’l Specialty Line Ins.
Co.,
No. 03-2106 D/V (W.D.Tenn. Mar. 30, 2004)

Michalowski v. Head (Full Text)

Case 1:10-cv-00278-JAW Document 8 Filed 07/12/10 Page 1 of 20

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

CV-10-278-B-W

ELLEN MICHALOWSKI,

Plaintiff,

ANNE L. HEAD, et al.,

Defendants.

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ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER

Tragically, Ellen Michalowski, M.D. has had a profound prescriptive drug

problem. Because of her addiction, the Maine Board of Licensure in Medicine

(Board) initiated proceedings to determine whether to impose disciplinary action on

her medical license. Concerned that the Board has exhibited bias and will rule

against her, Dr. Michalowski seeks a temporary restraining order (TRO) to enjoin

the Board from proceeding with a pending adjudicatory hearing. Based on Younger

v. Harris, 401 U.S. 37 (1971), the Court concludes it must abstain from interfering

in an ongoing state administrative proceeding and denies Dr. Michalowski’s motion

for a TRO.

STATEMENT OF FACTS

The Motion and Response

On July 7, 2010, Ellen Michalowski, M.D. filed a Complaint against Anne L.

Head, Commissioner of the Department of Professional and Financial Regulation of

the state of Maine, the Board, and Janet Mills, Attorney General of the state of

Case 1:10-cv-00278-JAW Document 8 Filed 07/12/10 Page 2 of 20

Maine. Compl. for Decl. J. and Injunctive Relief (Docket # 1) (Compl.). The same

day Dr. Michalowski filed a motion for TRO. Mot. for Temporary Restraining Order

(Docket # 4) (Mot. for TRO). On July 9, 2010, the state Defendants filed a response.

State Defs.’ Obj. to Mot. for Temporary Restraining Order (Docket # 6) (State Defs.’

Obj.).

The Doctor’s Complaint

Dr. Michalowski, a Board Certified specialist in Obstetrics and Gynecology,

had practiced medicine in Presque Isle, Maine. 1 Her sad story begins with a skiing

accident when she was a teenager in which she tore her medial cartilage. Her

therapeutic course has been marked by increasing, unremitting knee pain, multiple

unsuccessful surgeries, including a failed total knee replacement, and finally a

descent into severe addiction to prescriptive pain killers.

On April 10, 2007, Dr. Michalowski entered into a Consent Agreement with

the Board restricting her ability to obtain prescriptive medication to only one

approved physician and to one pharmacy, and to limit her primary care physician to

one doctor. She also consented to multiple other provisions, including counseling.

Between July 2007 and July 2008, however, Dr. Michalowski violated the Consent

Agreement by improperly obtaining and abusing prescriptive drugs, including self-

prescribing.

Finally, in August, 2008, Dr. Michalowski’s ruinously expensive efforts to

receive drug abuse treatment bore fruit, and after an intensive course of in-patient

therapy at the Sierra Tucson Treatment Center, she became and has remained

1 The Court derived these facts largely from the allegations in Dr. Michalowski’s Complaint.
2

Case 1:10-cv-00278-JAW Document 8 Filed 07/12/10 Page 3 of 20

clean and sober. On August 28, 2008, Dr. Michalowski voluntarily agreed to a

suspension of her medical license and she has not practiced medicine since. Despite

successful completion of the drug abuse therapy program, continued participation in

Alcoholics Anonymous and Caduceus (a support group of recovering medical

providers), and passing multiple random drug tests, the Board presented Dr.

Michalowski with a Second Consent Agreement, which stipulated that she could not

practice medicine for four years and during that interval could not reapply for her

license. When Dr. Michalowski refused to sign the Second Consent Agreement, the

Board prosecuted her for unprofessional conduct between July 2007 and July 2008.

The Board held its first hearing on April 13, 2010 with James E. Smith acting as

the hearing officer. The evidence was not completed and the hearing was continued

to be completed on July 13, 2010.

On July 7, 2010, Dr. Michalowski filed suit, seeking a TRO and preliminary

and permanent injunctions against the Board to enjoin it from further adjudicatory

hearings against her and seeking a declaratory judgment that its prosecution and

enforcement of disciplinary action on her medical license are unlawful and violate

due process. 2

2 The Court first became aware of this controversy on Thursday, July 8 and held a telephone
conference with counsel the afternoon of Friday, July 9, 2010. The Court attended to previously
scheduled matters during the rest of the day on Friday. The administrative hearing is scheduled to
recommence on Tuesday, July 13, 2010. The Court is issuing this Order on Monday, July 12, 2010 in
order to address whether the impending hearing can proceed forward. However, the parties,
particularly Dr. Michalowski, placed severe time constraints on the Court. The Court has done its
level best, but they should appreciate “the temporal constraints under which the district court
labored” in arriving at this decision. Bl(a)ck Tea Soc’y v. City of Boston, 378 F.3d 8, 15 (1st Cir.
2004).

The State has not raised laches as a basis for denial of the motion for TRO, and the Court
does not rest its decision on Dr. Michalowski’s late filing. Here, the Board held the first part of the
3

Case 1:10-cv-00278-JAW Document 8 Filed 07/12/10 Page 4 of 20

The State Administrative Regulatory Process and Dr.
Michalowski

Dr. Michalowski’s case before the Board began on January 11, 2005 when the

Board issued her a letter of guidance. On April 10, 2007, the Board and Dr.

Michalowski entered into the Consent Agreement. However, subsequently the

Board learned from Northern Maine Medical Center that Dr. Michalowski “had

been issuing prescriptions to a pharmacy in New Brunswick, Canada for narcotic

medication for a fictitious patient, and picking up the narcotic medication herself.”

Defs.’ Obj. Attach. 2 Interim Consent Agreement for Discipline and Modification of

Medical Licensure at 2. On August 26, 2008 and September 9, 2008, Dr.

Michalowski and the Board entered into an Interim Consent Agreement in which

Dr. Michalowski agreed to the temporary suspension of her license to practice

medicine “prior to the Board’s ultimate disposition of this new information

regarding Dr. Michalowski’s alleged self-prescribing of narcotic medication.” Id. at

3. On February 5, 2010, the Board placed Dr. Michalowski on formal notice that it

intended to hold the first session of the adjudicatory proceeding on April 13, 2010.

Defs.’ Obj. Attach. 3 Notice of Adjudicatory Hearing regarding the summary

suspension of your Maine medical license and the complaint of the Maine Board of

Licensure in Medicine.

administrative hearing on April 13, 2010, and the controversy between Dr. Michalowski and the
Board has persisted for years. Yet, Dr. Michalowski waited until the Thursday before the scheduled
completion of the hearing to file a motion for TRO. Cases where courts have denied equitable relief
based on a plaintiff’s delay have been more egregious than the facts in this case. Allens
Creek/Corbetts Glen Preservation Group, Inc. v. Caldera, 88 F. Supp. 2d 77, 83-84 (W.D.N.Y. 2000),
aff’d 242 F.3d 364 (2d Cir. 2001). Nevertheless, unwarranted delay in moving for injunctive relief
“undercuts the sense of urgency that ordinarily accompanies a motion for preliminary relief and
suggests that there is, in fact, no irreparable injury.” Citibank, N.A. v. Citytrust, 756 F.2d 273, 277
(2d Cir. 1985) (citation omitted).

Case 1:10-cv-00278-JAW Document 8 Filed 07/12/10 Page 5 of 20

II. DISCUSSION

In assessing whether to grant a request for injunctive relief, a court is

required to weigh a “familiar four-part test”:

(1) the likelihood of success on the merits; (2) the potential for irreparable
harm if the injunction is denied; (3) the balance of relevant impositions, i.e.,
the hardship to the nonmovant if enjoined as contrasted with the hardship to
the movant if no injunction issues; and, (4) the effect (if any) of the court’s
ruling on the public interest.

Iantosca v. Step Plan Servs., 604 F.3d 24, 29 n.5 (1st Cir. 2010) (citations omitted).

To determine whether to issue a TRO, a court applies the same four-factor analysis

used to evaluate a motion for preliminary injunction. Northwest Bypass Group v. U.

S. Army Corps of Eng’rs, 453 F. Supp. 2d 333, 337 (D.N.H. 2006); see Merrill Lynch,

Pierce, Fenner & Smith, Inc. v. Bishop, 839 F. Supp. 68, 70 (D. Me. 1993).

Likelihood of Success on the Merits: Younger Abstention

“The sine qua non of this four-part inquiry is likelihood of success on the

merits: if the moving party cannot demonstrate that he is likely to succeed in his

quest, the remaining factors become matters of idle curiosity.” New Comm Wireless

Servs., v. Sprintcom, Inc., 287 F.3d 1, 9 (1st Cir. 2002); Ross-Simons of Warwick,

Inc. v. Baccarat, Inc., 102 F.3d 12, 16 (1st Cir. 1996) (describing “likelihood of

success” as the “main bearing wall of the four-factor framework”). The State

Defendants persuasively contend that it is unlikely that Dr. Michalowski will be

successful on the merits of her law suit in this Court because her claim is barred by

the Younger abstention doctrine.

Case 1:10-cv-00278-JAW Document 8 Filed 07/12/10 Page 6 of 20

Named after the seminal 1971 case Younger v. Harris, the Younger

abstention doctrine arises “from strong policies counseling against the exercise of . .

. jurisdiction where particular kinds of state proceedings have already been

commenced.” Ohio Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477 U.S.

619, 626 (1986). “In the absence of extraordinary circumstances, interests in comity

and the respect for state processes demand that federal courts should abstain from

interfering with ongoing state judicial proceedings.” Esso Standard Oil Co. v.

Lopez-Freytes, 522 F.3d 136, 143 (1st Cir. 2008) (Esso II). “Although initially

applied to protect state criminal prosecutions against interference, the Younger

doctrine has been extended to ‘coercive’ civil cases involving the state and to

comparable state administrative proceedings that are quasi-judicial in character

and implicate important state interests.” Maymo-Melendez v. Alvarez-Ramirez, 364

F.3d 27, 31 (1st Cir. 2004).

Younger abstention is mandatory, not discretionary, see Rio Grande Cmty.

Health Ctr., Inc. v. Rullan, 397 F.3d 56, 68 (1st Cir. 2005), when the federal lawsuit

would interfere:

(1) with an ongoing state judicial proceeding; (2) that implicates an
(3) that provides an adequate
interest; and
important state
opportunity
for
the
federal plaintiff
to advance his
federal
constitutional challenge.

Rossi v. Gemma, 489 F.3d 26, 34-35 (1st Cir. 2007). Abstention may be

inappropriate only in certain “extraordinary circumstances”:

Extraordinary circumstances include those situations in which ‘core
constitutional valued are threatened during an ongoing state
proceeding and there is a showing of irreparable harm that is both

Case 1:10-cv-00278-JAW Document 8 Filed 07/12/10 Page 7 of 20

great and immediate.’ Maymo-Melendez, 364 F.3d at 37 (internal
quotation marks omitted). Among those extraordinary circumstances
are cases in which extreme bias completely renders a state adjudicator
incompetent and inflicts irreparable harm upon the petitioner.
(citations omitted).

Esso II, 522 F.3d at 143; Christian Action Network v. State of Maine, 679 F. Supp.

2d 140, (D. Me. 2010) (stating that “[e]xtraordinary circumstances include bad faith,

harassment and extreme bias; great and immediate irreparable harm to core

constitutional values”).

Ongoing State Judicial Proceeding

Established by 5 M.R.S.A. § 12004-A(24), the Board “consists of 9 individuals

who are residents of [the] State [of Maine], appointed by the Governor.” 32

M.R.S.A. § 3263. The Board consists of three representatives of the public and six

graduates of a legally chartered medical college or university who have been

actively engaged in the practice of their profession in the state of Maine

continuously for 5 years prior to appointment. Id. As with other occupational and

professional regulatory boards, the “sole purpose” of the Board is “to protect the

public health and welfare” by “ensuring that the public is served by competent and

honest practitioners and . . . by examining, licensing, regulating and disciplining

practitioners of those regulated professions.” 10 M.R.S.A. § 8008.

The Board is statutorily authorized to “suspend or revoke a license” for the

following grounds:

Habitual substance abuse that has resulted or is foreseeably likely to
result in the licensee performing services in a manner that endangers
the health or safety of patients.

Case 1:10-cv-00278-JAW Document 8 Filed 07/12/10 Page 8 of 20

32 M.R.S.A. § 3282-A(2)(B).

Prescribing narcotic . . . drugs listed as controlled substances by the
Drug Enforcement Administration for other than accepted therapeutic
purposes.

32 M.R.S.A. § 3282-A(2)(J). Maine law contemplates a graduating process,

beginning with an informal conference with the licensee and culminating with a

formal hearing. 32 M.R.S.A. § 3282-A(2).

If the Board concludes that “modification or nonrenewal of the license is in

order, the [Board] shall hold an adjudicatory hearing in accordance with Title 5,

chapter 375, subchapter 4.” 32 M.R.S.A. § 3282-A(1)(C); see 5 M.R.S.A. § 10003.

The Board’s hearing is an “adjudicatory proceeding” under Maine’s Administrative

Procedures Act. 5 M.R.S.A. § 8002(1) (defining an “adjudicatory proceeding” as “any

proceeding before an agency in which the legal rights, duties or privileges of specific

persons are required by constitutional law or statute to be determined after an

opportunity for hearing”). Maine law mandates that an adjudicatory hearing

provide for a panoply of procedural and substantive rights. 5 M.R.S.A. § 9056(2)

(right to present evidence and arguments on all issues, to call and cross-examine

witnesses, to make oral cross-examination of any person present and testifying); 5

M.R.S.A. § 9057 (evidence is admitted if it is the kind of evidence upon reasonable

persons are accustomed to rely in the conduct of serious affairs, all witnesses shall

be sworn); 5 M.R.S.A. § 9059 (proceedings must be recorded); 5 M.R.S.A. § 9060

(parties may request the issuance of subpoenas to secure witnesses or documents); 5

M.R.S.A. § 9061 (a decision must be in writing and must contain findings of fact).

Case 1:10-cv-00278-JAW Document 8 Filed 07/12/10 Page 9 of 20

Finally an aggrieved party “shall be entitled to juridical review thereof in the

Superior Court.” 5 M.R.S.A. § 11001(2).

A state medical board’s disciplinary proceeding falls within the meaning of an

ongoing judicial proceeding for purposes of Younger abstention. Gibson v. Berryhill,

411 U.S. 564, 576-77 (1973) (stating that “it is apparent from Geiger [v. Jenkins, 401

U.S. 985 (1971)] that administrative proceedings looking toward the revocation of a

license to practice medicine may in proper circumstances command the respect due

court proceedings”); Doe v. Connecticut Dep’t of Health Servs., 75 F.3d 81, 85 (2d Cir.

1996); Selkin v. State Bd. for Professional Medical Conduct, 63 F. Supp. 2d 397, 402

(S.D.N.Y 1999) (stating that there is “clear precedent to support the conclusion that

the concerns of comity and federalism expressed in Younger warrant abstention

where state disciplinary proceedings contemplating the revocation of a physician’s

medical license are ongoing”). The First Circuit has applied the Younger abstention

doctrine to appeals pending in state courts from decisions of state medical and

psychology registration boards. Bettencourt v. Bd. of Registration in Medicine, 904

F.2d 772, 778 (1st Cir. 1990) (applying Younger to an appeal from the

Massachusetts Board of Registration in Medicine pending in the Supreme Judicial

Court of Massachusetts); Coggeshall v. Mass. Bd. of Registration of Psychologists,

604 F.3d 658 (1st Cir. 2010). As Dr. Michalowski has the right to appeal any

decision of the Board to the state of Maine Superior and Supreme Courts, the

principles would appear to apply with equal force to an earlier state administrative

proceeding. Finally, Younger abstention has been held to apply to similar

Case 1:10-cv-00278-JAW Document 8 Filed 07/12/10 Page 10 of 20

professional disciplinary proceedings. Middlesex County Ethic Comm. v. Garden

State Bar Ass’n, 457 U.S. 423, 437 (1982) (abstention warranted where lawyer

sought to enjoin ongoing state disciplinary proceedings against him and where

lawyer had right to appeal administrative decision to state courts). The Court

concludes that the pending disciplinary proceeding before the Board of Licensure in

Medicine is an ongoing state judicial proceeding for Younger abstention purposes. 3

Important State Interest

In Middlesex, the United States Supreme Court recognized that the state of

New Jersey had an “important state obligation to regulate persons who are

authorized to practice law.” Middlesex, 457 U.S. at 432-33. In Bettencourt, the

First Circuit quickly concluded that the regulation of the practice of medicine is an

important state interest. Bettencourt, 904 F.2d at 778 (stating that “the issues at

stake — involving the enforcement of proper standards of medical licensure —

obviously implicate important state interests”). The Court readily concludes that

the Board of Licensure in Medicine’s disciplinary proceeding against Dr.

Michalowski implicates important state interests under Younger.

Adequate Opportunity

The Maine Administrative Procedures Act allows for judicial review of the

Board’s decision. 5 M.R.S.A. § 11001(2). As such, Dr. Michalowski has an adequate

opportunity to raise federal constitutional challenges in state court judicial review.

Bettencourt, 904 F.2d at 778; see Ohio Civil Rights Comm’n, 477 U.S. at 629 (stating

3 Bradley v. Board of Psychologists , AP-09-2 (Me. Super. Ct., Ken. Cty., May 19, 2009) (Jabar, J.) demonstrates
that state courts are capable of handling the legal arguments Dr. Michalowski has presented this Court.
10

Case 1:10-cv-00278-JAW Document 8 Filed 07/12/10 Page 11 of 20

that “it is sufficient under [Middlesex] that constitutional claims may be raised in

state-court judicial review of the administrative proceeding”). The Court concludes

that Dr. Michalowski has an adequate opportunity in state court to raise the issues

that she is attempting to raise before this Court. Mallinckrodt LLC v. Littell, 616 F.

Supp. 2d 128, 140 (D. Me. 2009).

Bias

As all three Younger abstention elements are satisfied, abstention is

mandatory unless an exception applies. Id. at 140. In Gibson, the Supreme Court

carved out an exception for Younger abstention when the state board was

“incompetent by reason of bias.” Gibson, 411 U.S. at 577. As the First Circuit has

explained, however, the bias exception applies only in “extraordinary circumstances

. . . in which extreme bias completely renders a state adjudicator incompetent and

inflicts irreparable harm upon the petitioner.” Esso II, 522 F.3d at 143. Further,

the burden shifts to Dr. Michalowski to show that “extraordinary circumstances” in

her case should lead the court not to abstain. Christian Action, 679 F. Supp. 2d at

148. In Perez v. Ledesma, the United States Supreme Court offered one example in

the criminal context: “Only in cases of proven harassment or prosecutions

undertaken by state officials in bad faith without hope of obtaining a valid

conviction and perhaps in other extraordinary circumstances where irreparable

injury can be shown is federal injunctive relief against pending state prosecutions

appropriate.” 401 U.S. 82, 85 (1971).

Case 1:10-cv-00278-JAW Document 8 Filed 07/12/10 Page 12 of 20

In an effort to demonstrate such bias, Dr. Michalowski points to the

following: (1) Assistant Attorney General (AAG) Dennis Smith generally provides

legal counsel to the Board, but assumed the role of prosecutor before the Board

against Dr. Michalowski; (2) during the April 13, 2010 hearing, Dr. Dreher, a

member of the Board, requested clarification about at least two legal issues from

AAG Smith, who was prosecuting the case against Dr. Michalowski; (3) during the

same hearing, Cheryl Clukey, another Board member, questioned Dr. Michalowski

about differences between her testimony and the Board’s investigator’s notes,

stating that the investigator was efficient, organized and kept impeccable notes,

and implying that Dr. Michalowski was not credible; (4) when Dr. Michalowski’s

counsel objected to the Board investigator’s testimony that certain prescriptions

were narcotics, Dr. Nyberg, a Board member, called the objection ridiculous; and, (5)

the Board’s Executive Director Randall Manning, although a non-voting member of

the Board, advised the Northern Maine Medical Center before the hearing that it is

unlikely Dr. Michalowski will ever get her medical license back. Mot. for TRO at 8.

The Court concludes that these examples, taken separately or together, do

not amount to the type of extreme structural or actual bias that would justify

federal intervention in a pending state proceeding. Dr. Michalowski alleges

structural bias because AAG Smith generally provides counsel to the same Board

before whom he is now prosecuting Dr. Michalowski. However, as the Office of

Attorney General is required by law to provide legal representation to state

agencies, 5 M.R.S.A. § 191, the Maine Supreme Judicial Court has described the

Case 1:10-cv-00278-JAW Document 8 Filed 07/12/10 Page 13 of 20

role of state attorney general as “unique.” Superintendent of Ins. v. Attorney Gen.,

558 A.2d 1197, 1202 (Me. 1989). Here, as AAG’s role shifted from counsel to

prosecutor, the Board ensured the fairness of the proceeding by hiring a separate

attorney, James E. Smith, and charging him with the duties of a Hearing Officer.

As Attorney James E. Smith informed the Board at the outset, he served “as the

Board’s attorney and legal advisor.” State Defs.’ Obj. Attach. 4 at 4:13-14 (Tr. of

Adjudicatory Hearing). The Court is not convinced that with the introduction of an

independent hearing officer, the continued participation of the Board’s regular

counsel as prosecutor constitutes structural bias or overcomes the presumption that

state administrators are people “of conscience and intellectual discipline.”

Mallinckrodt, 616 F. Supp. 2d at 141-43 (quoting United States v. Morgan, 313 U.S.

409, 421 (1941)); Fisher v. Iowa Bd. of Optometry Exam’rs, 510 N.W.2d 873, 877

(Iowa 1994) (describing a similar situation as “neither unlawful nor uncommon”).

Dr. Michalowski asserts that Dr. Dreher, a Board member, made an inquiry

to AAG Smith about a legal issue and contends that Dr. Dreher’s question is

evidence of actual bias. The Court disagrees. The transcript that Dr. Michalowski

provided does not corroborate her allegations. At the very outset of the hearing, Dr.

Dreher asked for clarification about an issue of law and prefaced his inquiry by

saying that he did not “know if I can ask that of anybody here.” State Defs.’ Obj.

Attach. 4 at 5:7-9 (Tr. of Adjudicatory Hearing). Hearing Officer Smith told him to

ask the question and then “we’ll see.” Id. 5:10-11. Hearing Officer Smith, not AAG

Case 1:10-cv-00278-JAW Document 8 Filed 07/12/10 Page 14 of 20

Smith, was the one who responded. Id. 5:16-17. If it exists, the factual predicate

for Dr. Michalowski’s contention is not before the Court.

Regarding her complaint about Ms. Clukey, Dr. Michalowski attached to her

motion an excerpt of four pages of her testimony before the Board at the April 13,

2010 hearing. Reviewing the transcript, the dialogue is dense, and the Court has

the sense of walking into the middle of a conversation. The relevant portion of the

except appears to begin with Ms. Clukey asking Dr. Michalowski about a Dr. Moore;

Ms. Clukey says that Dr. Moore came to Dr. Michalowski and said “she was very

uncomfortable with what she did and had asked you to self report yourself?” Aff. of

Dr. Ellen Michalowski Attach. 2 at 3:21-25, 4:1 (Tr. of Adjudicatory Hearing)

(Docket # 3) (Michalowski Aff.). Dr. Michalowski responds that she had already

“talked to Dr. Wood at that time, and she had already reported to someone before I

could even get – – before I even got home from South Carolina.” Id. at 4:2-5. Ms.

Clukey responds that “that’s not what I read in here.” Id. at 4:6. She explains:

See this is in direct contradiction to what you have told us. And I
picked – – I mean, my ears just perked right up that you had told her
about the consent agreement, you told her about your history with the
Board, but in reading this, that’s not true. That she found out from
another doctor.

Id. at 4:21-25; 5:1. Ms. Clukey goes on:

My question is that you had stated to us that you – – that Dr. Moore
was clear that you had communicated to her clearly about your history
with us and that you – – the issue with the consent agreement. And I
don’t find it here, and Maria Macdonald who was the investigator
who’s always been very thorough . . . and efficient and organized and
impeccable in her information that she interviews people for, is saying
that Dr. Moore said that this did not happen?

Case 1:10-cv-00278-JAW Document 8 Filed 07/12/10 Page 15 of 20

Id. at 5:25, 6:1-10. Presumably referring to Ms. Macdonald’s notes, Dr. Michalowski

responded that the notes say that Dr. Moore called in a prescription for Percocet,

which Dr. Michalowski explained would have been against the law. Id. at 6:11-17.

Dr. Michalowski then pointed out that Dr. Moore had obtained a medical license in

Maine without revealing that she had an addiction to alcohol, had been treated for

it, and was under a consent agreement in the state of Georgia. Id. at 6:17-22. Dr.

Michalowski explained that it was Dr. Moore’s problems in Georgia that had

initiated their conversation. Id. at 6:20-21. Dr. Michalowski further explained that

the reason Dr. Moore may not have mentioned this fact to Ms. Macdonald, the

Board investigator, was that she “was trying to protect herself.” Id. at 7:4-5.

Maine law provides that the Board’s hearings are not subject to the Maine

Rules of Evidence; instead “evidence is admitted if it is the kind of evidence upon

reasonable persons are accustomed to rely in the conduct of serious affairs.” 5

M.R.S.A. § 9057. If an investigator’s notes appear to be meticulous, it is reasonable

to inquire whether the witness knows why the entry does not appear. As it turns

out, Dr. Michalowski had an explanation for why Dr. Moore might not have told Ms.

Macdonald that Dr. Michalowski had told her that she had made a report to the

Board since the overall context of the Michalowski – Moore conversation included

an allegation that Dr. Moore herself had an addiction problem and had not reported

it to the Maine Board.

It appears that Ms. Macdonald’s investigative notes were before the Board at

the hearing, so Ms. Clukey’s questions gave Dr. Michalowski an opportunity to

Case 1:10-cv-00278-JAW Document 8 Filed 07/12/10 Page 16 of 20

explain why the substance of a conversation that Dr. Michalowski had had with Dr.

Moore did not appear in the investigator’s notes. Dr. Michalowski offered an

explanation. The Court is unsure why asking for and receiving an explanation

displays bias.

Dr. Michalowski’s real complaint is that Ms. Clukey seemed to support Ms.

Macdonald’s credibility as an investigator. It would, however, be strange if a Board

member had not gained an impression of a Board investigator’s credibility and

competence. 4 To express confidence in the professionalism of an investigator is not

to display bias against the witness. It is to put a point to the question to which Dr.

Michalowski offered a rational explanation.

Dr. Michalowski’s complaint about Dr. Nyberg is wholly unconvincing.

During the testimony, a witness offered the opinion that certain medicines were

narcotics. Michalowski Aff. Attach. 3 at 3:1-11 (Tr. of Adjudicatory Hearing). Dr.

Michalowski’s counsel objected on the ground that the witness had not been

qualified to render such an opinion. Id. at 3:15-17. The Hearing Officer asked

whether there was a dispute as to whether the two medications – Endocet and

Percocet – were narcotics. Id. at 3:20-21. The ensuing exchange led Dr. Nyberg to

comment “That’s ridiculous.” Id. at 4:7. As Hearing Officer Smith observed,

“You’ve got a Board of doctors sitting here and I’m getting comments from them

that . . . basically are saying they know Percocet and Endocet are narcotics.” Id. at

4:10-14. Although counsel’s objection on foundational grounds to a lay witness’s

4 Presumably, Ms. Clukey had an opinion of Ms. Macdonald’s competence whether or not she voiced
her impression.

Case 1:10-cv-00278-JAW Document 8 Filed 07/12/10 Page 17 of 20

testimony about the narcotic properties of a prescriptive drug may have been well

taken before a jury, the Board of Licensure in Medicine is not comprised of lay

people. By law, it is comprised of a certain number of physician members, and on

April 13, 2010, the transcript reveals that four physicians were participating as

Board Members. Quibbling about whether a lay witness had sufficient expertise to

identify particular drugs as narcotics when the doctor members of the Board know

from their own training and expertise whether the drugs were in fact narcotics

could well be undiplomatically termed “ridiculous” from the perspectives of the

physician and non-physician members.

The final assertion of bias is that Randall Manning, the Executive Director of

the Board, told the Northern Maine Medical Center that Dr. Michalowski would

probably never get her license back. Michalowski Aff. ¶ 39. Mr. Manning’s

statement sounds much worse that it is. Mr. Manning is a non-voting member of

the Board, and he is not listed as a participating member of the Board at the April

13, 2010 hearing. As Executive Director, Mr. Manning is required to “assist the

board in carrying out its administrative duties and responsibilities. . . .” 32

M.R.S.A. § 3269(16). As earlier noted, the “sole purpose” of the Board is “to protect

the public health and welfare” by “ensuring that the public is served by competent

and honest practitioners and . . . by examining, licensing, regulating and

disciplining practitioners of those regulated professions.” 10 M.R.S.A. § 8008.

It is reasonable to assume that the Northern Maine Medical Center has been

properly concerned about whether Dr. Michalowski, a member of its medical staff,

Case 1:10-cv-00278-JAW Document 8 Filed 07/12/10 Page 18 of 20

was likely to return to practice OB/GYN in northern Maine; if not, the NMMC

would have to address contingencies. Mr. Manning’s statement to the Northern

Maine Medical Center was his frank appraisal of the prospect of Dr. Michalowski’s

return to NMMC as a member of the medical staff. There is no evidence the

Executive Director’s prediction was motivated by bias against Dr. Michalowski and

further there is no suggestion that Mr. Manning has any role in the pending

disciplinary proceeding.

In sum, Dr. Michalowski’s evidence of bias has not nearly risen to the level of

bias that would justify application of an exception to the Younger abstention

doctrine.5

The Court need go no further. It must abstain. Dr. Michalowski has failed to

prove the sine qua non of her claim for a TRO, a likelihood of success on the merits.

This alone is a sufficient ground to deny her motion for TRO. In excess of caution,

however, the Court will briefly touch on the other criteria.

Irreparable Harm

Dr. Michalowski’s main claim of irreparable harm is that she will be denied

due process in violation of the United States Constitution. Mot. for TRO at 15.

However, Dr. Michalowski is free to raise constitutional issues before the Board. 5

M.R.S.A. § 9056(2) (stating that parties to adjudicatory proceedings have “the right

5 The allegations of bias in Dr. Michalowski’s case pale beside Esso II, where the First Circuit
concluded that there was “a strong appearance of bias and, additionally, undisputed evidence of
actual bias in these proceedings.” Esso II, 552 F.3d at 148. In Esso II, the Puerto Rican
Environmental Quality Board (EQB) voted to fine Esso $76 million for 550 gallons of spilled fuel. Id.
at 140. The fine was to fund the EQB’s budget from which the hearing officers were going to be paid.
Id. at 146-47. Further the Puerto Rican Senate had threatened criminal prosecution of EQB officials
for failure to timely respond to the spill. Id. at 147.
18

Case 1:10-cv-00278-JAW Document 8 Filed 07/12/10 Page 19 of 20

to present evidence and arguments on all issues”) (emphasis supplied). If Dr.

Michalowski receives an unfavorable ruling from the Board, she has the right to

appeal the decision to the Superior court and, if necessary, to the Maine Supreme

Judicial Court. 5 M.R.S.A. § 11001(1); 5 M.R.S.A. § 11008. The Superior and

Supreme Courts are empowered to address Dr. Michalowski’s federal claims.

Mallinckrodt, 616 F. Supp. 2d at 140.

It is true that if the Board publicly disciplines Dr. Michalowski, her name

and professional reputation will be severely harmed and perhaps irreparably so.

However, it is also true, as Dr. Michalowski has complained, that the earlier

consented-to actions affected her name and professional reputation, and therefore

the damage, though significant, would be incremental. Further, it is always true

that whenever the Board publicly disciplines a physician, there is a degree of

irreparable damage to the doctor’s name and reputation, but this alone cannot

justify the issuance of an injunction.

This factor slightly favors Dr. Michalowski.

Balance of Harms

Dr. Michalowski argues that there will be no harm to the State Defendants if

the July 13, 2010 hearing is enjoined since she is not now practicing medicine.

Although the State Defendants have said that the July 13, 2010 hearing has been

difficult to schedule, the State Defendants’ main point is that federal interference

with an ongoing state administrative proceeding is itself “the exact sort of harm

Case 1:10-cv-00278-JAW Document 8 Filed 07/12/10 Page 20 of 20

that Younger abstention seeks to avoid.” State Defs.’ Obj. at 12. This factor slightly

favors Dr. Michalowski.

Public Interest

The Board’s effort to protect the public by disciplinary proceedings against a

physician with a history of drug addiction clearly favors the public interest. This

factor strongly favors the State Defendants.

III. CONCLUSION

The Court concludes that the Younger abstention elements have been clearly

satisfied and abstention is mandatory. The Court also concludes that Dr.

Michalowski failed to sustain her burden to establish that the “extraordinary

circumstances” exception applies.

The Court DENIES Ellen Michalowski, M.D.’s Motion for Temporary

Restraining Order (Docket # 4).

SO ORDERED.

Dated this 12th day of July, 2010

/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATES DISTRICT JUDGE

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