Maryland Gen. Hosp., Inc. v. Thompson,

Maryland Gen. Hosp., Inc. v. Thompson
No. WMN-00-221 (D. Md. June 27, 2001)

Stripping a hospital’s skilled nursing facility of its "new provider"
status, HCFA reversed the decision of the Provider Reimbursement Review Board
and ruled that new provider status exception is appropriate only when a facility
moves to a new patient population. The hospital sued the HHS for reinstatement
of its new provider status. The United States District Court for the District
of Maryland granted a summary judgment in favor of the HHS. According to the
court, because the Secretary of Health and Human Services’ interpretation of
the new provider exemption was not arbitrary, inconsistent or unreasonable,
the District Court of Maryland sided with the Secretary’s determination that
new provider status was not appropriate.

Martinucci v. S. Cal. Permanente Med. Group (Summary)

DEFAMATION

Martinucci v. S. Cal. Permanente Med. Group, B215453 (Cal. Ct. App. Mar. 23, 2011)

A California Appeals Court reversed the lower court’s order which denied the defendant medical group’s motion for judgment notwithstanding the jury verdict on a terminated physician’s defamation claim.

After developing a number of protocols for the radiology department, the physician began to write up technologists who failed to follow the protocols. The technologists, allegedly in retaliation, then accused the physician of sexual harassment and of using racist comments. These complaints were later used to justify the physician’s forced resignation.

The physician sued, for among other things, defamation and was awarded over $10 million at trial. The medical group and its parent corporation sought to have a judgment entered in favor of it, despite the jury’s findings, but its motion was denied as to the defamation claim. On appeal, the court determined that the lower court erred in denying defendant’s motion for judgment notwithstanding the verdict on the defamation claim, finding that while the accusations of racist comments and sexual harassment could be defamatory, the physician failed to show special damages as would be required for him to prevail.

 

Martinelli v. Fusi

INFORMED CONSENT

Martinelli v. Fusi, No. (X10)NNHCV0440169894S(CLD)
(Conn. Super. Ct. Jan. 5, 2006)

The Superior Court of Connecticut held that
a patient’s claim that her physician did not disclose the procedure’s risks
of complication and morbidity should be properly pled as lack of informed
consent and not battery.

 

 

Mason v. Central Suffolk Hosp.

=================================================================
This opinion is uncorrected and subject to revision before
publication in the New York Reports.
—————————————————————–
2 No. 143
Roger Mason, &c.,
Appellant,
v.
Central Suffolk Hospital, et al.,
Respondents.

Robert G. Spevack, for appellant.
Michael S. Cohen, for respondents.
Healthcare Association of New York State, amicus

curiae.

R. S. SMITH, J.:
In Gelbard v Genesee Hosp. (87 NY2d 691, 698 [1996]),
we left open the question “whether a breach of contract action
can be predicated on a violation of medical staff by-laws.” We
now answer that question in part, holding that no action for
– 1 –

- 2 –
No. 143
damages may be based on a violation of medical staff by-laws,
unless clear language in the by-laws creates a right to that
relief.

Facts
Doctor Roger Mason was a member of the medical staff of
Central Suffolk Hospital and a specialist in laparoscopic surgery
(surgery performed by means of a narrow tube called a laparoscope
inserted through the abdominal wall). On February 3, 1998, the
Hospital suspended Dr. Mason’s privileges to perform “advanced”
laparoscopic procedures, and required him to obtain a concurring
second opinion before performing certain other kinds of surgery.
The Hospital based its decision on a review of Dr. Mason’s cases
by another doctor, who reported that in some of those cases Dr.
Mason’s skills and judgment appeared to be flawed, and that his
failings may have caused patients to be injured.
Dr. Mason sought internal review of this decision
pursuant to the Hospital’s by-laws. Lengthy proceedings
followed, with the net result that the Hospital found the initial
suspension to be justified; discontinued the requirement for a
second opinion, but required a period of monitoring of certain
procedures; and provided for reinstatement of Dr. Mason’s
advanced laparoscopic surgery privileges on certain conditions.
Dr. Mason then complained to the Public Health Council of the
Department of Health, pursuant to Public Health Law § 2801-b.
The Public Health Council rejected his complaint.

– 2 –

- 3 –
No. 143
After the Public Health Council’s ruling, Dr. Mason
brought this action against the Hospital and Dr. Jon Zelen, a
former employee of Dr. Mason’s surgical practice group who had
left before February 1998 to form a competing group. Dr. Mason
alleged that Dr. Zelen had stood to gain from restrictions being
placed on Dr. Mason’s privileges, and that he had therefore made
false accusations and stirred up an unwarranted investigation by
the Hospital. Dr. Mason claimed that the Hospital’s by-laws were
a contract between him and the Hospital, and that the Hospital
breached that contract by failing to follow the procedures the
by-laws required and by suspending him “without legitimate
cause.” He sought damages from the Hospital for breach of
contract, and from Dr. Zelen for inducing the breach.
Defendants’ motion to dismiss the complaint for failure
to state a cause of action was denied by Supreme Court. The
Appellate Division reversed and ordered the complaint dismissed.
We now affirm the Appellate Division’s order.
Discussion
A number of our cases reject claims by doctors
complaining of the denial of hospital privileges. One of these
was Leider v Beth Israel Hosp. Assn. (11 NY2d 205, 208 [1962]),
in which we held “that the plaintiff, a surgeon, has no vested
right to the use of the hospital’s facilities for the care and
treatment of his private patients.” In Guibor v Manhattan Eye,
Ear and Throat Hosp., Inc. (46 NY2d 736, 737 [1978]), we cited

– 3 –

- 4 –
No. 143
Leider for the broad proposition that “(a)t common law, absent a
contractual obligation to the contrary, a physician’s continued
professional association with a private hospital was within the
unfettered discretion of the hospital’s administrators.”
We noted in Guibor that “this seemingly harsh common-
rule” had been “tempered” by the enactment of Public Health Law §
2801-b. The statute provides that it “shall be an improper
practice” for a hospital’s governing body to “curtail, terminate
or diminish in any way a physician’s . . . professional
privileges in a hospital, without stating the reasons therefor,
or if the reasons stated are unrelated to standards of patient
care, patient welfare, the objectives of the institution or the
character or competency of the applicant” (§ 2801-b[1]). It
also provides that any person “claiming to be aggrieved by an
improper practice as defined in this section” can make a
complaint to the Public Health Council, which, if it upholds the
complaint, shall direct the hospital’s governing body to review
its actions (§ 2801-b[2],[3]); and that the statute’s provisions
“shall not be deemed to impair or affect any other right or
remedy” (§ 2801-b[4]). Public Health Law § 2801-c provides that
Supreme Court “may enjoin violations or threatened violations of
any provisions of this article.” In Guibor, we held that an
action seeking an injunction under § 2801-c was premature where
the doctor had not first presented his claim to the Public Health
Council.

– 4 –

- 5 –
No. 143
In Gelbard v Genesee Hosp. (87 NY2d 691 [1996]), a
physician sought an order restoring his staff privileges, relying
not on the Public Health Law, but on the hospital’s by-laws. Dr.
Gelbard claimed, as Dr. Mason does here, that the by-laws were a
contract, and he sought an injunctive remedy for their breach.
Without reaching the merits of Dr. Gelbard’s claim we held that
the lawsuit, as in Guibor, was premature; even where a doctor who
is seeking reinstatement sues for breach of contract, his claim
must first be presented to the Public Health Council, for
otherwise the “statutory requirement of threshold PHC review”
might be “circumvented by artful pleading” (Id. at 697).
This case differs from Gelbard in two ways: Dr. Mason
is not seeking reinstatement, but damages, and he has already
presented his claim to the Public Health Council. No argument
can be or is made that Dr. Mason’s suit is premature, and
therefore we must decide in this case, as we did not need to do
in Gelbard, whether the claim is legally sufficient.
While we have never decided whether hospital by-laws
constitute a contract for breach of which a doctor may sue,
several Appellate Division decisions have dealt with that
question, producing mixed and perhaps inconsistent results. Some
cases decline to dismiss complaints alleging breach of medical
staff by-laws, holding them legally sufficient as suits for
injunctive relief (e.g., Chalasani v Neuman, 97 AD2d 806 [2d Dept
1983]) or damages (Giannelli v St. Vincent’s Hospital and Med.

– 5 –

No. 143

– 6 –
Ctr. of New York, 160 AD2d 227 [1st Dept 1990]); Chime v
Sicuranza, 221 AD2d 401 [2d Dept 1995]). Other decisions,
however, appear to limit the effect of these holdings in damages
actions by rejecting complaints for wrongful termination of staff
privileges based on alleged by-law violations (Falk v Anesthesia
Assoc. of Jamaica, 228 AD2d 326 [1st Dept 1996]; Gelbard v
Gennesee Hosp., 255 AD2d 882 [4th Dept 1998]). There appears to
be no appellate case in which a damages award for breach of
medical staff by-laws has been upheld after trial.
The decisions of our Court, and many of those of the
Appellate Division, are consistent with an important, though
generally unexpressed, policy consideration: It is preferable for
hospital administrators who decide whether to grant or deny staff
privileges to make those decisions free from the threat of a
damages action against the hospital. It is not just in a
hospital’s interest, but in the public interest, that no doctor
whose skill and judgment are substandard be allowed to treat or
operate on patients. A decision by those in charge of a hospital
to terminate the privileges of, or deny privileges to, a doctor
who may be their colleague will often be difficult. It should
not be made more difficult by the fear of subjecting the hospital
to monetary liability.
This does not mean, of course, that the hospital may
not expose itself to such liability if it chooses to do so. A
clearly written contract, granting privileges to a doctor for a

– 6 –

No. 143

– 7 –
fixed period of time, and agreeing not to withdraw those
privileges except for specified cause, will be enforced. But the
by-laws in this case are not such a contract.
Not a word in the by-laws that are now before us says
or implies that doctors have a vested right to hospital
privileges. The most relevant provisions of the by-laws are
procedural, not substantive: They are contained in Article V
(Procedures for Appointment and Reappointment) and Article VI
(Hearing and Appeal Procedures). It is most unlikely that these
by-law provisions were intended by anyone to create a monetary
claim in favor of a doctor for wrongful termination or suspension
of privileges. Dr. Mason also relies on Section 7.4 of the by-
laws, which provide that no representative of the Hospital or
staff shall be liable for action taken “in good faith and without
malice.” Dr. Mason claims that the Hospital acted in bad faith
and with malice, and that therefore he may sue. It is far-
fetched, however, to suggest that Section 7.4, entitled “Immunity
from Liability,” was intended to create a liability where one
would otherwise not exist.
Dr. Mason claims that a rule imposing liability for a
breach of institutional by-laws can be traced to our decision in
Tedeschi v Wagner Coll. (49 NY2d 652 [1980]), but Tedeschi
actually supports the rejection of Dr. Mason’s damages claim. We
held in Tedeschi that the plaintiff, a college student, was
entitled to a judgment directing the college that was seeking to

– 7 –

- 8 –
No. 143
suspend her to comply with its own written guidelines; but we
also held that “[s]o much of the complaint as sought money
damages . . . was properly dismissed . . . .” (49 NY2d at 661-
62). In Maas v Cornell Univ. (94 NY2d 87 [1999]), we
distinguished Tedeschi in a case brought by a professor
challenging a university’s disciplinary action. We held that the
professor could not sue for breach of contract based on the
university’s “failure to observe bylaws and procedures” (Id. at
90). We see no reason why the by-laws of the Hospital here
should be read to confer more rights on Dr. Mason than the
institutional documents in Tedeschi and Maas did on the
plaintiffs in those cases.
Accordingly, the order of the Appellate Division
should be affirmed, with costs.
* * * * * * * * * * * * * * * * *
Order affirmed, with costs. Opinion by Judge R.S. Smith. Chief
Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo
and Read concur.

Decided November 18, 2004

– 8 –

Marshall v. Spectrum Medical Group

UNITED STATES OF AMERICA

DISTRICT OF MAINE

PETER G. MARSHALL, M.D.,

Plaintiff

v.

SPECTRUM MEDICAL GROUP,

Defendant

)
)
)
)
) Civil No. 00-155-B-C
)
)
)
)

O R D E R

This matter is before the Court on Eastern Maine Medical Center’s (“EMMC’s”)

objection to a document request served upon it by Plaintiff Peter Marshall, M.D. The case

involves a claim by Marshall against his former employer, Spectrum Medical Group

(“Spectrum”), and certain shareholders and employees of Spectrum. EMMC is not a party to the

underlying action. Based upon my review, I now DENY EMMC’s request for relief and

ORDER that Dr. William Sullivan comply with the witness and document subpoenas served

upon him, subject to certain limitations contained he rein.

Background

The Complaint alleges that Defendants inappropriately terminated Marshall’s

employment and have taken other actions to prevent Marshall from practicing as an

anesthesiologist in Bangor. Marshall asserts eight claims for relief, including a claim under the

ADA and seven state law claims, some of which are based upon the employment contract

between Marshall and Spectrum.

Marshall seeks to discover from EMMC his credentialing file and to elicit testimony

concerning use of the peer review process against him in support of his claims against Spectrum.

Marshall maintains that representatives of Spectrum abused the credentialing process by using it

to cast doubt on Marshall’s mental and emotional stability, thereby impairing his ability to

practice in the Bangor community. Defendant Spectrum joins with Marshall in requesting that

the Court order Sullivan to comply with the subpoenas, but suggests that the court should fashion

an appropriate protective order if disclosure is ordered. William Sullivan, M.D., Vice President

Medical Affairs, has resisted the document and witness subpoenas served upon him and EMMC,

claiming that the matters sought are privileged pursuant to 24 M.R.S.A. § 2510-A, the Maine

Health Security Act; 32 M.R.S.A. § 3296, the Board of Medicine’s authorizing statute; and 42

U.S.C. §§ 11131-11133, the Health Care Quality Improvement Act.

The materials submitted by Marshall suggest that a Dr. Voss discussed the materials in

the disputed file with Dr. Sullivan in June, 1999. Marshall employed Dr. Voss as his consulting

psychiatrist. Marshall engaged Voss to perform a psychiatric evaluation and in the course of that

evaluation Voss apparently spoke at length with Sullivan. After Voss, with Marshall’s

authorization, provided his completed report to EMMC, Sullivan again contacted Voss directly

to ask him certain questions based upon the contents of the credentialing file. According to

Defendants, Marshall “has already viewed the contents of his professional competence records.”

Their submissions do not explain how that occurred or under what circumstances Marshall

became privy to the contents of the file. In the event I do not order disclosure, Defendants

request that I enter an order barring Marshall from discussing the contents of the file with

anyone, including his attorneys and expert witnesses.

Discussion

EMMC claims that its credentialing file relating to Marshall is confidential and privileged

under two state and one federal statute and, therefore, need not be disclosed. The first issue I

2

must address relates to the applicability of state privilege law to this proceeding. Assertions of

privilege in federal question cases in federal court are governed by federal law. See Fed. R.

Evid. 501. However, by its terms, Rule 501 does not prohibit the application of state privilege

law in federal actions. EMMC further asserts federal privilege law is not even applicable to this

case because Rule 501 directs that federal courts should look to state privilege law in civil

actions where state substantive law supplies the rule of decision for the claim or defense.

EMMC recognizes that Plaintiff asserts both state and federal claims in his Complaint, but

argues that the state law issues predominate over the federal issues, presumably based upon the

number of counts.

As a preliminary matter, I am satisfied that the asserted privilege here is relevant to both

the state and federal claims. In that situation federal courts have consistently ruled that

privileges are govern by federal law, not state law. See Green v. Fulton, 157 F.R.D. 136, 139 (D.

Me. 1994) (citation omitted). The merits of Plaintiff’s termination from employment will be at

the heart of his ADA claim just as they will be at the heart of his state law claims. The federal

interest in preventing unlawful employment discrimination under the ADA is a significant

federal interest. State law issues do not necessarily predominate in this case. I therefore

conclude that EMMC’s claim of privilege will be governed by either federal statutory law or

federal common law as it has developed under Rule 501.

A. Federal Statutory Law

EMMC points to the Health Care Quality Improvement Act of 1986 (“HCQIA”), 42

U.S.C. §§ 11101-11145, as providing for the confidentiality of professional peer review

committees. EMMC cites §11137(b)(1) which reads:

3

(b) Confidentiality of information

(1) In general

Information reported under this subchapter is considered confidential and shall
not be disclosed (other than to the physician or practi tioner involved) except with
respect to professional review activity, as necessary to carry out subsections (b)
and (c) of section 11135 of this title (as specified in regulations by the Secretary),
or in accordance with regulations of the Secretary promulgated pursuant to
subsection (a) of this section. Nothing in this subsection shall prevent the
disclosure of such information by a party which is otherwise authorized, under
applicable State law, to make such disclosure. Information reported under this
subchapter that is in a form that does not permit the identification of any
particular health care entity, physician, other health care practitioner, or patient
shall not be considered confidential. The Secretary (or the agency designated
under section 11134(b) of this title), on application by any person, shall prepare
such information in such form and shall disclose such information in such form.

EMMC directs the Court’s attention to the provision in the statute that reads, “[i]nformation

reported under this subchapter is considered confidential and shall not be disclosed” as support

for its position that Congress intended to create a peer review privilege.

While HCQIA finds “an overriding need to provide incentive and protection for

physicians engaging in effective professional peer review,” 42 U.S.C. § 11101(5), HCQIA

extends that protection to only two areas. First, the HCQIA provides qualified immunity to those

who participate in the peer review process. See 42 U.S.C. §11111(a)(1). Second, the HCQIA

requires that various groups including insurance companies, medical examiners and health care

facilities report actions taken against physicians to a national clearinghouse or repository. See 42

U.S.C. §§11131-11133. The information reported to the national clearinghouse or repository,

not the information gathered during the peer review process, is confidential and privileged. See

Syposs v. United States, 179 F.R.D. 406, 410 (W.D. N.Y. 1998) (finding that 11137(b)(1) only

protects from discovery that information reported to the national clearinghouse or repository);

Bennett v. Fieser, No. 93-1004-MLB, 1993 WL 566202, at *3 (D. Kan. Oct. 26, 1993) (“Section

4

11137(b) is not a general peer review privilege, but provides for the confidentiality of only that

information provided to the national repository pursuant to the Act.”); Teasdale v. Marin Gen.

Hosp., 138 F.R.D. 691, 693 (N.D. Cal. 1991) (“Congress spoke loudly with its silence in not

including a privilege against discovery of peer review materials in the HCQIA.”); Susan O.

Scheutzow, State Medical Peer Review: High Cost But No Benefit: Is it Time for a Change?, 25

AM J.L. & MED. 7, 9-10 (1999) (“HCQIA provides immunity for peer review participants, but

does not grant a federal evidentiary privilege to the records and deliberations of the peer review

process.”). Based upon the plain wording of the statute and the authority cited above, I am

satisfied that 42 U.S.C. § 11137(b)(1) protects only that information reported to the national

clearinghouse. Accordingly, EMMC is unable to assert a federal evidentiary privilege regarding

the discovery subpoenas under HCQIA.

B. State Statutory Law and Federal Common Law

When applying Rule 501, this Circuit uses a two-part test to determine whether to

recognize an evidentiary privilege. First, I must determine whether Maine would recognize the

privilege asserted by EMMC. See In re Hampers, 651 F.2d 19, 22 (1s t Cir. 1981). If I determine

that Maine does recognize the privilege, I must then determine whether the privilege is

“intrinsically meritorious.” Id. The first prong is fairly easy to determine, despite Plaintiff’s

protestations to the contrary. Although Plaintiff argues that the privilege recognized by 32

M.R.S.A. § 3296 is not applicable to this case, he does acknowledge that the confidentiality and

privilege provisions found at 24 M.R.S.A. § 2510-A(2) are applicable to the material he seeks

from EMMC.1

1 I have previously recognized the “non-discoverability” portion of this provision when state law supplies the sole
rule of decision in a particular case. See Brandt v. Dep’t. of Veterans Affairs, Civil No. 99-197-B. This case, unlike
Brandt, contains at least one claim that looks to federal substantive law.

5

However, it is Plaintiff’s position that he does not fall within § 2510-A (2) because

EMMC has waived the confidentiality provision through its disclosure to Dr. Voss. I agree with

EMMC that Section 2510-B, which allows the hospital to furnish certain information without

waiving the privilege, “expressly contemplates the situation herein.” The exchange between Dr.

Voss and Dr. Sullivan was part and parcel of the peer review process and does not trigger the

waiver provision. Thus, I conclude that state statutory law would recognize these materials as

confidential and privileged.2 However, the matter does not end there because I must also

determine whether the privilege is “intrinsically meritorious.” There is no question but that there

are significant policy considerations behind the adoption of the Maine statutory provisions and

that this Court should order disclosure only under narrowly tailored circumstances.

When deciding whether the privilege is intrinsically meritorious this Court must consider

“Wigmore’s classic utilitarian formulation” 3:

(i) whether the communications “originate in a confidence that they will not be
disclosed”;

(ii) whether this element of confidentiality is “essential to the full and satisfactory
maintenance of the relations between the parties”;

(iii) whether the relationship is a vital one that “ought to be sedulously fo stered”;
or

(iv) whether “the injury that would inure to the relation by the disclosure of the
communications [would be] greater than the benefit thereby gained for the correct
disposal of litigation.”

See Hampers, 651 F.2d at 22-23 (quoting 8 J. WIGMORE, EVIDENCE § 2285, at 527

(McNaughton rev. 1961)).

2 The Maine Law Court has not addressed the scope of this evidentiary privilege, but the trial courts in Maine have
recognized the broad scope of the “nondiscoverability” provision. State Superior Court Justices Studstrup and
Perkins have held that the type of documents sought by the plaintiff herein are protected from disclosure. See
Ouellette v .Wright, M.D., CV-96-521 (Me. Super. Ct.,York Cty., April 8, 1999)(Perkins, J.); Powell v. Mid-Maine
Medical Center, CV-96-203 (Me. Super. Ct., Kenn. Cty., Sept. 16, 1999) (Studstrup, J.).
3 ACLU v. Finch , 638 F.2d 1336, 1344 (5th Cir. 1981).

6

 These factors need not be applied in order. See Smith v. Alice Peck Day Mem’l Hosp., 148

F.R.D. 51, 56 (D. N.H. 1993). Further, if the Court answers in favor of the party seeking

disclosure on any one of these factors, then the privilege does not apply. See id. Applying the

fourth element above to this matter, I conclude that the information requested is not privileged

from disclosure. The Court in Smith reached the same conclusion when considering the

analogous, though different, New Hampshire statute in the context of a dispute similar to this

one.

When applying this fourth element, courts have basically balanced the interest served by

the state privilege against the federal interest in favor of disclosure. See Hampers, 651 F.2d at

22; Smith, 148 F.R.D. at 56. Federal courts are evenly split over whether a medical peer review

privilege exists under federal common law. Several have found that the federal interest in

disclosure is too strong to recognize such a privilege, while others see the need for such a

privilege to exist. Compare Burrows v. Redbud Community Hosp. Dist., No. C-9604345 SI,

1998 WL 1083876, at *12 (N.D. Cal. Jan 13, 1998) (finding that no federal peer review privilege

applies in EMTALA action); Syposs, 179 F.R.D. at 411-12 (“Medical peer reviews do not enjoy

the historical or statutory support upon which other privileges have been recognized in federal

law, and the Hospitals have failed to provide any reason to believe some physicians would not

provide candid appraisals of their peers absent the asserted privilege.”); Johnson v. Nyack Hosp.,

169 F.R.D. 550, 560-61 (S.D. N.Y. 1996) (finding no federal peer review privilege exists.); with

Weekoty v. United States, 30 F. Supp. 2d 1343, 1346-47 (D. N.M. 1998) (finding that federal law

recognizes medical peer review privilege); Whitman v. United States, 108 F.R.D. 5, 7 (D. N.H.

1985) (finding that “federal law now recognizes a privilege protecting hospital peer review

records from disclosure”).

7

In my mind, there are two decisive reasons to compel disclosure in this case and not

recognize any federal peer review privilege: (1) the nature of the dispute and (2) the fact that

Plaintiff’s consulting psychiatrist and perhaps even Plaintiff himself has already learned about

some or all of the information contained within the file. This case is not directly about the

quality of patient care; it is a suit which alleges abuse of the peer review process.4 The

articulated justification for confidentiality in medical peer review matters is that patient care will

suffer if a physician’s candid comments are subsequently used in malpractice or other cases to

form a basis of liability. Defendants, the apparent authors of some of the allegedly disparaging

comments about Plaintiff found in the file, do not argue that these concerns are applicable.

I also note that, although not the original proponent of the subpoena, Defendants

themselves have a compelling argument in favor of disclosure. Apparently, Plaintiff and/or his

consulting psychiatrist have been privy to the information in the file. In terms of the “correct

disposal” of the pending litigation, Defendants should have access to the same information. As

they suggest, an appropriate protective order can be fashioned to protect the confidentially of

individuals not a party to this lawsuit. However, I am not persuaded that the protective order

need go as far as Defendants suggest in order to protect EMMC’s legitimate policy concerns.

Conclusion

Based upon the foregoing, Third-Party EMMC’s objection to the document and witness

subpoena served upon William Sullivan, M.D., V.P. Medical Affairs, is OVERRULED and the

Third-Party is hereby ORDERED to comply with those subpoenas subject to the following

limitations:

4 Even the Maine Health Security Act seems to suggest that there is an implied exception to the confidentiality
provision (or at least the immunity provision) in connection with claims against any person acting with “malice.”
See 24 M.R.S.A. § 2511.

8

(1) That the identifying information, such as the specific name of any individual,
physician or health care practitioner submitting or discussing such information, be
redacted, except for the names of the Defendants;

(2) That the specific identifying information be replaced with a reference to
whether the party was a physician employed by Spectrum, a non-physician
employed by Spectrum, or a physician or non-physician employed by some other
entity, including EMMC, without revealing the identity of that other entity.
Provided, however, that if one of the named Defendants is the individual so
designated, the name of that party shall be used;

(3) That the information may be disclosed only to the parties, their attorneys, and
their designated expert witnesses; and

(4) That the disclosed information may be used in the prosecution or defense of
this action, but subject to limited confidential treatment. No pleadings, motions,
or memoranda filed with the Court will be sealed by the Court, but prior to filing
any such materials, the parties shall notify EMMC’s attorneys of its intended
filing and shall insure that any document from the credentialing file is identified
as “confidential” and filed under seal.

CERTIFICATE

A. The Clerk shall submit forthwith copies of this Order to counsel in this case.

B. Counsel shall submit any objections to this Order to the Clerk in accordance with
Fed. R. Civ. P. 72.

So Ordered.

_____________________________
Margaret J. Kravchuk
U.S. Magistrate Judge

Dated this 8th day of December, 2000.

U.S. District Court
District of Maine (Bangor)

CIVIL DOCKET FOR CASE #: 00-CV-155

MARSHALL v. SPECTRUM MEDICAL, et al Filed: 08/10/00
Assigned to: JUDGE GENE CARTER Jury demand: Both
Demand: $0,000 Nature of Suit: 360
Lead Docket: None Jurisdiction: Federal Question
Dkt # in PENOBSCOT SUPERIOR : is CV-2000-95

Cause: 42:12101 American Disabilities Act

9

PETER G MARSHALL, MD MICHAEL A. DUDDY, ESQ.
plaintiff [COR LD NTC]
KELLY, REMMEL & ZIMMERMAN
53 EXCHANGE STREET
P.O. BOX 597
PORTLAND, ME 04112
207-775-1020

v.

SPECTRUM MEDICAL GROUP, P.A. RICHARD G. MOON
defendant 775-6110
MELINDA J. CATERINE, ESQ.
MOON, MOSS, MCGILL & BACHELDER,
P.A.
10 FREE STREET
P. O. BOX 7250
PORTLAND, ME 04112-7250
775-6001

JOHN T FRANKLAND RICHARD G. MOON
defendant (See above)
MELINDA J. CATERINE, ESQ.
(See above)

DAVID J KLIEWER, MD PHILIP M. COFFIN, III
defendant 871-7033
THOMAS V. LAPRADE, ESQ.
LAMBERT, COFFIN, RUDMAN &
HOCHMAN
P.O. BOX 15215
477 CONGRESS STREET-14TH FLOOR
PORTLAND, ME 04112-5215
(207) 871-7033

RICHARD G. MOON
(See above)
MELINDA J. CATERINE, ESQ.
(See above)
RICHARD J SMITH RICHARD G. MOON
defendant (See above)
MELINDA J. CATERINE, ESQ.
(See above)

————————

EASTERN MAINE MEDICAL CENTER CHRISTOPHER D. NYHAN, ESQ.
movant [term 12/11/00]
[term 12/11/00] [COR LD NTC]
ROBERT O. NEWTON, ESQ.
[term 12/11/00]
[COR]
PRETI, FLAHERTY, BELIVEAU,

10

 PACHIOS & HALEY, LLC
ONE CITY CENTER
PO BOX 9546
PORTLAND, ME 04112-9546
791-3000

========================

SPECTRUM MEDICAL GROUP, P.A. RICHARD G. MOON
counter-claimant 775-6110
MELINDA J. CATERINE, ESQ.
MOON, MOSS, MCGILL & BACHELDER,
P.A.
10 FREE STREET
P. O. BOX 7250
PORTLAND, ME 04112-7250
775-6001

JOHN T FRANKLAND RICHARD G. MOON
counter-claimant (See above)
MELINDA J. CATERINE, ESQ.
(See above)

DAVID J KLIEWER, MD RICHARD G. MOON
counter-claimant (See above)
MELINDA J. CATERINE, ESQ.
(See above)

RICHARD J SMITH RICHARD G. MOON
counter-claimant (See above)
MELINDA J. CATERINE, ESQ.
(See above)

v.

PETER G MARSHALL, MD MICHAEL A. DUDDY, ESQ.
counter-defendant [COR LD NTC]
KELLY, REMMEL & ZIMMERMAN
53 EXCHANGE STREET
P.O. BOX 597
PORTLAND, ME 04112
207-775-1020

========================

MAINE, STATE OF CHRISTINA HALL, ESQ.
intervenor-plaintiff [COR LD NTC]
ASSISTANT ATTORNEY GENERAL
STATE HOUSE STATION 6
AUGUSTA, ME 04333
626-8800

11

Massey v. Health First, Inc. (Summary)

MEDICARE

Massey v. Health First, Inc., No. 605CV480ORL31DAB (M.D. Fla. May 25, 2005)

A patient sued a Medicare-participating hospital after the hospital filed liens against the patient for his bills rather than submitting the bills to Medicare for reimbursement. The patient claimed he was entitled to payment under Medicare and therefore the liens were unlawful. The court held that the Medicare Act does not create a right of action for Medicare beneficiaries. It then raised the question of whether the patient was alleging a contract claim and, if so, a basis for the court’s jurisdiction over a contract claim and whether federal law governed the contract claim. The court gave a three-week grace period in which the patient could file an amended complaint to properly address these issues.

 

 

Martinez Rosado v. Instituto Medico Del Norte,

Martinez Rosado v. Instituto
Medico Del Norte
No. Civ. 00-1748 JAF (D. Puerto Rico May 21, 2001)

A Puerto Rico hospital being
sued for an alleged Emergency Medical Treatment and Active Labor Act (EMTALA)
violation argued that the Puerto Rico District Court should not exercise supplemental
jurisdiction over the state medical malpractice claims brought in conjunction
with that suit. The suit arose after a woman died as a result of injuries suffered
in a car accident, five hours after being transferred from the hospital. The
district court held that it could exercise its supplemental jurisdiction over
the state medical malpractice claims that were brought in conjunction with the
EMTALA claim because both claims arose from the circumstances leading to the
woman’s death, and thus were part of the same case or controversy.

Mason v. Central Suffolk Hosp.

Mason v. Central Suffolk
Hosp.,
No. 2002-06464 (N.Y. App. Div. May 1, 2003)

The New York Supreme Court Appellate Division reversed an order of the Supreme
Court, and granted the defendant hospital’s motion to dismiss a physician’s
complaint against it. The Appeals Court held that the physician’s causes of
action to recover damages for breach of contract and tortious interference with
contract were based on the medical staff bylaws of the hospital. While medical
staff bylaws qualify as the foundation for such claims, the court held that
the physician was damaged by the revocation of his privilege to perform laparoscopic
procedures, not by the alleged violation of one or more of the hospital’s unspecified
bylaws.

In addition, the court ordered that no claim to recover damages at common
law arises from a hospital’s wrongful denial of staff privileges. To remedy
such a wrong, a physician is limited to an action for an injunction under the
Public Health Law. Accordingly, where the claim of a violation of the bylaws
is secondary and the gravamen of the physician’s complaint is the suspension
of his privileges, the physician’s causes of action alleging breach of contract
and tortious interference with that contract are barred.

 

 

Marsingill v. O’Malley

Marsingill v. O’Malley,
No. S-9859 (Alaska Nov. 22, 2002)

A patient who previously had had gastric surgery sued her physician for malpractice
after she called him one night due to abdominal pain and he told her that she
could go to the emergency room, but did not tell her that she should seek emergency
medical treatment or provide her with examples of what could be causing her
pain. The patient decided not to go to the emergency room and was later found
unconscious and suffered a permanent injury. The patient claimed that the physician
failed to give her sufficient information over the phone for her to make an
intelligent treatment decision. A jury ruled in favor of the physician and the
patient appealed.

One of the primary issues on appeal was whether the patient should have been
permitted to introduce evidence that the physician was not board certified and
that he had repeatedly failed his board certification examination. The Alaska
Supreme Court held that the trial court had not abused its discretion in excluding
that evidence after making a determination that the probative value of that
evidence would have been outweighed by its potential to prejudice or confuse
the jury. However, the court did remand the case for a new trial after finding
that the trial court should have instructed the jury to analyze the patient’s
claims on the basis of a "reasonable patient" standard rather than
on the basis of expert physician testimony of what constituted the appropriate
standard of care.

 

Matheny v. Reid Hosp. & Health Care Servs., Inc. — Mar. 2002 (Summary)

Matheny v. Reid Hosp. & Health Care Servs., Inc.
No. IP 00-1439-CT/K (S.D. Ind. Mar. 12, 2002)

A medical records clerk sued a hospital for sexual harassment. The clerk claimed that she was harassed over a 10-month period by a physician who had privileges at the hospital; the hospital claimed it terminated the clerk after she failed to submit to urinalysis for drug screening. The United States District Court, Southern District of Indiana ruled that in order to make a claim for sexual harassment the clerk had to show that the sexual harassment was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. The court refused to grant summary judgment to the hospital finding that, based on the facts, a reasonable person could conclude that the hospital decided that it was much easier to “get rid of the young file clerk who complained about sexual harassment…rather than to replace the older, medical doctor who was accused of harassing her.”

The court also ruled that an employer can avoid liability for its employees’ sexual harassment if it takes prompt and appropriate corrective action reasonably likely to prevent the harassment from occurring and that it was questionable whether the hospital acted promptly in this case.