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.

Martinez v. Hosp. Menonita De Cayey

Martinez v. Hosp. Menonita De Cayey,
No. 01-2257 (1st Cir. Mar. 26, 2002)

A patient sued a hospital for violations of EMTALA based on the emergency room
staff’s conclusion that the patient was not suffering from an emergency condition
after he swallowed part of a pork chop. The United States Court of Appeals,
First Circuit, ruled that EMTALA only applies to cases alleging differential
treatment or refusing to screen at all. The court concluded that negligence
cases such as faulty screening and other "garden variety malpractice"
claims are not actionable under EMTALA.

Mason v. Central Suffolk Hosp.

MEDICAL STAFF BYLAWS

Mason v. Central Suffolk Hosp., 2004 WL 2607611 (N.Y. Nov. 18, 2004)

The
Court of Appeals of New York held that no liability to a physician aggrieved
by a credentialing or privileging decision may be based on a violation
of medical staff bylaws, unless clear language in the bylaws creates a right
to that relief. After a physician’s privileges were suspended, the physician
sued the hospital, claiming the bylaws were a contract and the hospital
breached the contract by failing to follow the procedures in the bylaws.
The court found that the decision to suspend or deny the privileges of a
physician is a difficult one, and should not be made more difficult by the
fear of subjecting the hospital to monetary liability. A hospital may choose
to expose itself to such liability, but only if it is clearly written into
the bylaws.

 

Marte v. Brooklyn Hosp. Ctr.

Marte v Brooklyn Hosp. Ctr.

2004 NYSlipOp 05212

Decided on June 14, 2004

Appellate Division, Second Department

Santucci, J.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 14, 2004

APPELLATE DIVISION : SECOND JUDICIAL DEPARMENT

FRED T. SANTUCCI, J.P.

GABRIEL M. KRAUSMAN

ROBERT W. SCHMIDT

REINALDO E. RIVERA, JJ.

2003-05653

APPEAL by the plaintiff in an action to recover damages for personal
injuries, from so much of an order of the Supreme Court (Randolf
Jackson, J.), dated April 30, 2003, and entered in Kings County, as
granted the defendant’s motion for a protective order with respect to
certain discovery demands.

Madeline Lee Bryer, P.C., New York, N.Y. (Jonathan I.
Edelstein of counsel), for appellant.

Wilson Elser Moskowitz Edelman & Dicker, LLP, White
Plains, N.Y. (Deborah J. Denenberg
of counsel), for respondent.

SANTUCCI, J.P.This appeal arises out of a dispute concerning the
extent of disclosure required by a hospital in a civil lawsuit which
stems from a physical attack upon one of its patients by an intruder.
To determine this issue we are called upon to examine the scope of the
disclosure exemption created by the interplay of two statutes: Public
Heath Law ? 2805-l and Education Law ? 6527(3). The former requires
hospitals to report to the Department of Health the death of or injury
to a patient other than that related to his or her illness, while the
latter provides that neither any “quality assurance review” record nor
any reports which are required to be filed under Public Health Law ?
2805-l shall be subject to disclosure under CPLR article 31. The
defendant Brooklyn Hospital Center (hereinafter the Hospital) moved for
a protective order contending that the interplay of these statutes
prohibits it from disclosing the material demanded by the plaintiff. In
opposition, the plaintiff argues that the material sought relates only
to the Hospital’s security function and, therefore, is not exempt from
disclosure. Based upon its interpretation of the above statutes, the
Supreme Court, inter alia, granted the Hospital’s motion for a
protective order.

[*2]

On
January 10, 2002, the plaintiff, Catiuska Marte (hereinafter the
plaintiff) was a patient in a room in a ward on the fourth floor of the
Caledonia Campus of the Hospital when the third-party defendant,
Ferdinand Santiago, entered the room through an open door and attempted
to sexually assault her. The plaintiff, alleging that Santiago was an
intruder upon the Hospital’s premises and that the Hospital provided
negligent security by allowing him to remain in a patient ward after
visiting hours had concluded, commenced this action against the
Hospital which, in turn, filed a third-party complaint against
Santiago.

Following commencement of the action, the plaintiff served a
notice for discovery and inspection listing various demands. In
response, the Hospital objected to the following demands, asserting,
inter alia, that the items were protected by a statutory privilege
“pursuant to Education Law ? 6527(3) and Public Health Law ? 2805-1 for
quality assurance by hospitals”:

3. . . . copies of any and all reports or memoranda made of the aforementioned occurrence, in the normal course of business.

5.
Names, addresses, captions and index numbers, of . . . legal
proceedings concerning and/or alleging the negligence of the defendants
regarding security of the premises . . . for a period of three years
prior to January 10, 2002.

6. Incident reports
and records of rape, attempted rape, sexual assault . . . and other
crimes which took place at [the premises] for a period of three years
prior to January 10, 2002.

7. Records of
complaints received by visitors concerning security of the premises for
a period of 3 years prior to January 10, 2002.

8.
Internal directives, memoranda, orders and the like concerning security
measures for the premises . . . for a period of three years prior to
January 10, 2002.

9. Copies of the Brooklyn
Hospital Center’s internal investigation, including but not limited to
incident reports, photos, interviews, and other records of the incident
and assault made in the regular course of business involving Catiuska
Marte which took place on January 10, 2002.

10. Statements, tapes, recordings, and records of any type of Catiuska Marte.

12.
Names and addresses of witnesses to the incident including but not
limited to patients at the ward, visitors, volunteers and/or employees.
For employees no longer employed, copies of their last known addresses.

15.
Records and logs of visitors to the Caledonian campus of BROOKLYN
HOSPITAL CENTER including but not limited to such relating to visitors
to the wards and to the fourth floor of the [*3]Caledonian campus of BROOKLYN HOSPITAL CENTER designated as 4C on the date in question.”

To
the extent that these demands sought disclosure of medical records of
“other patients and visitors,” the Hospital argued that under Public
Health Law ? 18 and CPLR 4504, it was prohibited from revealing such
information absent authorization from the individuals involved.

By order to show cause dated November 14, 2002, the Hospital moved
for a protective order with respect to the demands numbered 3, 5-10,
12, and 15. By order dated April 30, 2002, the Supreme Court granted
the Hospital’s motion, reasoning in part as follows:

“It is apparent that the Education Law ? 6527(3)
exempts three categories of documents from disclosure: records relating
to medical review and quality assurance functions; records reflecting
participation in a medical and dental malpractice prevention program;
and reports required by the Department of Health pursuant to Public
Health Law ? 2805-1, including incident reports prepared pursuant to
Mental Hygiene Law ? 29.29. See Katherine F. v State of New York, 94 NY2d 200.

“The Court of Appeals defined incident reports as ‘reports of accidents and injuries affecting patient health and welfare’. See Katherine F. supra. . . . [T]he reports of the attempted assault herein and the related material fall within the above category.”

The court did not address the Hospital’s claims of privilege under Public Health Law ? 18(6) and CPLR 4505.

On appeal, the plaintiff argues that the Education Law privilege
against disclosure is limited only to material generated for a peer
review or quality assurance purpose aimed at reducing incidents of
malpractice, and that the court improperly expanded the scope of the
privilege to include material which deals solely with a hospital’s
security functions.

Education Law ? 6527(3)
pertains to the practice of medicine. The statute covers the liability
of individuals who serve on medical review committees, such as
committees formed for the prevention of medical malpractice under
Public Health Law ? 2805-j, and persons who participate in the
preparation of incident reports required by the Department of Health
under Public Health Law ? 2805-l (see Education Law ? 6527[3][d] and [e]). The section states:

“[n]either the proceedings nor the records relating to
performance of a medical or quality assurance review function or
participation in a medical and dental malpractice prevention program
nor any report required by the department of health pursuant to [Public
Health Law ? 2805-l] . . . including the investigation of an incident
reported pursuant to [Mental Hygiene Law ? 29.29], shall be subject to
disclosure under [CPLR Article 31] except as hereinafter provided or as
provided by any other provision of law.”

Public Health
Law ? 2805 pertains to hospitals. Section 2805-l requires hospitals to
report certain incidents to the Department of Health. Among the
“reportable” incidents set forth are the following:

“2(a) patients’ deaths or impairments of bodily functions in circumstances [*4]other than those related to the natural course of illness, disease or proper treatment . . . ;

(b) fires in the hospital which disrupt the provision of patient care services or cause harm to patient or staff;

(c)
equipment malfunction during treatment or diagnosis of a patient which
did or could have adversely affected a patient or hospital personnel;

(d) poisoning occurring within the hospital;

(e) strikes by hospital staff;

(f) disasters or other emergency situations external to the hospital environment which affect hospital operations.

In
our opinion, the language of Public Health Law ? 2805-l, when examined
as a whole, including the expansive list of “reportable” incidents set
forth therein, leads to the conclusion that the Hospital would be
required to report the assault of the plaintiff “as an impairment to
the patient’s bodily functions in circumstances other than those
related to the natural course of [her] illness.” In this regard, we
note that in the Department of Health Notice of Adoption found in the
New York State Register (Vol. VII, Issue 39, p. 17 [Sept. 25, 1985]),
the stated legislative objective behind the Public Health Law
requirement that hospitals report incidents affecting patient welfare
was “to assure quality care to all patients in hospitals” by requiring
the “timely reporting of emergencies and other incidents that threaten
the safety of the patients or staff in a hospital.” It was further
noted that such legislation was necessary since “[o]n numerous
occasions, [the Department of Health’s Office of Health Systems
Management] ha[d] learned of emergencies or other situations that
threaten the safety and well-being of the patients or the staff in
hospitals, well after the emergency or incident occurred, or through
the news media.” Certainly, an alleged assault upon a patient is one of
these “other situations” which threatens the safety of patients and
staff, and would therefore be required to be reported.

In the case of Katherine F. v State of New York, 94 NY2d
200, 205, the Court of Appeals recognized that the Education Law ?
6527(3), by incorporating Public Health Law ? 2805-l, “require[s]
hospitals to report incidents that extend well beyond medical care and
treatment.” Therefore, the Hospital was required to investigate and
report the assault of the plaintiff to the Department of Health under
Public Health Law ? 2805-l.

However, the fact that the Hospital was required to report the
incident does not necessarily mean that it did so, or that all the
documents sought by the plaintiff are exempt from disclosure. It is the
burden of the entity seeking to invoke the privilege to establish that
the documents sought were prepared in accordance with the relevant
statutes (see Orner v Mount Sinai Hosp., 305 AD2d 307; Crawford v Lahiri, 250 AD2d 722; Van Caloen v Poglinco, 214
AD2d 555). A review of the affirmation in support of the Hospital’s
motion for a protective order and the attached documents does not
reveal any statement by the Hospital that it actually prepared any
committee review incident reports for the Department of Health as
required under Public Health Law ? 2805-l. The Hospital thus failed to
establish its burden that any documents were prepared under Public
Health Law ? 2805-l and/or Education Law ? 6527(3). Moreover, some of
the documents demanded are not the type that would be subject to the
privilege, such as records of complaints made [*5]by
visitors, and the production of visitor logs. Accordingly, the Hospital
is not entitled to a blanket protective order with respect to the
demands set forth above.

On the other hand, the plaintiff was not entitled to all the
documents requested in her discovery demands. Many of the demands are
overbroad and seek records pertaining to a campus of the Hospital which
is not the subject of this litigation. In addition, in her brief on
appeal, the plaintiff has significantly circumscribed the scope of
numerous demands. In particular, the plaintiff limits demand number 8
to rules, regulations, and procedures concerning security measures that
were in place at the time of the incident, rather than the original
broad request for internal directives, memoranda, and orders for both
campuses of the Hospital for a three-year period preceding the
incident. Furthermore, the plaintiff now asserts that demand number 10
for “statements, tapes, recordings, and records of any type of [the
plaintiff]” merely seeks her own statement under CPLR 3101(e). This is
duplicative of demand number 1, which has not been challenged by the
Hospital. In addition, in demand number 15, the plaintiff originally
sought records and logs of visitors to the Hospital’s Caledonia campus
on the date of the incident, including the fourth floor ward, but now
asserts that the purpose of this demand is to establish the movements
of the assailant. Clearly, the document demand can be limited to
fulfill that purpose.

Furthermore, some of the demanded documents may, in fact, be
subject to privileges under Public Health Law ? 2805-l and Education
Law ? 6527(3) and/or under Public Health Law ? 18(6), which prevents
disclosure of third-party health records without authorization, and/or
CPLR 4505, the physician/patient privilege, and/or the Federal Health
Insurance Portability and Accountability Act of 1996 (hereinafter
HIPAA), colloquially known as the Patient Privacy Act. For example, if
the revelation of a patient’s location in a hospital would, by simple
deduction, also reveal that patient’s medical status, such discovery
would run afoul of CPLR 4505 and the intent behind HIPAA (see Gunn v Sound Shore Med. Ctr. of Westchester,5 AD3d 435).

Therefore, upon remand, the Supreme Court, in the exercise of
its discretion, should limit the scope of discovery as it deems proper.
If the Hospital can establish that it conducted a review process in
accordance with Public Health Law ? 2805-l, then the Supreme Court
should conduct an in camera review of the documents for which the
Hospital asserts a privilege under Education Law ? 6527(3) and Public
Health Law ? 2805-l, as well as CPLR 4505 and Public Health Law ?
18(6).

A recent decision by the Court of Appeals entitled Matter of Subpoena Duces Tecum to Doe, 99
NY2d 434, provides guidance regarding which records utilized by a
hospital quality assurance committee would be privileged and which
would be subject to disclosure. Records generated at the behest of a
quality assurance committee for quality assurance purposes, including
compilations, studies or comparisons derived from multiple records,
should be privileged, whereas records simply duplicated by the
committee are not necessarily privileged. The Court of Appeals also
stated:

“We recommend that a party seeking to protect
documents from disclosure compile a privilege log in order to aid the
court in its assessment of a privilege claim and enable it to undertake
in camera review. The log should specify the nature of the contents of
the documents, who prepared the records and the basis for the claimed
privilege.”

(Matter of Subpoena Duces Tecum to Doe, supra at 442).

Accordingly, we reverse the order insofar as appealed from, on
the law and in the exercise of discretion, deny the defendant’s motion,
and remit the matter to the Supreme Court, [*6]Kings County, for further proceedings consistent herewith.

KRAUSMAN, J.P., SCHMIDT and RIVERA, JJ., concur.

ORDERED that the order is reversed insofar as appealed from, on
the law and as a matter of discretion, with costs, the motion is
denied, and the matter is remitted to the Supreme Court, Kings County,
for further proceedings consistent herewith.

ENTER:

James Edward Pelzer

Clerk of the Court

Martinez v. New England Med. Ctr. Hosp.

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

TERESA MARTINEZ,
Plaintiff,

v.

NEW ENGLAND MEDICAL CENTER
HOSPITALS, INC.,

Defendant.

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MEMORANDUM

March 3, 2004

Civil Action No. 01-12349-JLT

TAURO, J.

Plaintiff Teresa Martinez (“Martinez”) initiated this action against Defendant New

England Medical Center Hospitals, Inc. (“NEMCH”), alleging violations of federal and state law

for retaliatory discharge, termination in violation of public policy, invasion of privacy,

intentional interference, and defamation.

Defendant’s motion for summary judgment is now before this court.

Background

NEMCH established an International Patient Center (“IPC”) in or around 1996.1 The IPC

was designed to attract “international patients capable of paying full price for medical care.”2

Martinez began working as an employee in the IPC in or around August, 1997.3 Her job

1 Def.’s Local Rule 56.1 Statement (“Def.’s Statement of Undisputed Facts”) ¶ 1.

2 Id.

3 Id. ¶ 2.

responsibilities included “financial and registration coordination . . . for international patients.”4

Part of Martinez’s job was “making sure the patients she [was] coordinating . . . [were]

financially able to pay.”5

According to NEMCH’s written policies, the regular order of ensuring payment is to first

provide an initial estimate to the patient, which the patient must pay for up front.6 The actual

charges are then delineated on an invoice after the services have been provided. IPC

coordinators are authorized to provide up to a twenty-percent discount “from the total gross

charges without specific approval from [NEMCH’s Chief Financial Officer (‘CFO’)].”7

Martinez understood NEMCH’s policy required the IPC “to obtain 50% or 100% of the

estimated cost on a case-by-case basis.”8 And, she knew that “if there were ‘less than 80% in the

door prior to the procedure[,]’ she would have to go see the CFO of the Hospital.”9 Martinez

also recognized that any discount in excess of twenty percent had to be approved by the CFO.10

NEMCH claims that Martinez was terminated as a result of her failure to abide by these

regulations.

4 Id. ¶ 3. Martinez was given the job title of “International Patient Liaison” in or around
early 2000. Pl.’s Local Rule 56.1 Concise Statement of Material Facts Precluding the Entry of
Summ. J. for Def. (“Pl.’s Statement of Material Facts”) ¶ 3.

5 Def.’s Statement of Undisputed Facts ¶ 12.

6 Id. ¶ 14.

7 Id.

8 Id. ¶ 15.

9 Id. ¶ 16 (quoting NEMCH’s Deps. Transcripts and Affs. in support of Summ. J., Ex. A
(“Martinez Dep.”) 258:14-19).

10 Id. ¶ 17.

2

In the spring of 2001, Martinez was acting as the patient liaison for an Ecuadoran patient

in need of a bone-marrow transplant.11 The procedure was estimated to cost $330,000.12

Martinez faxed that estimate to either the patient or the patient’s cousin.13

The patient was scheduled to start chemotherapy on April 23, 2001, but by April 11,

2001, Martinez had received only a $5,000 deposit for the treatment14. When asked by the bone

marrow transplant coordinator if the patient was “all set” for the procedure, Martinez answered,

“[i]f the question is if she is all set with the cost of the estimate[, the answer] is no.”15 Martinez,

however, did not notify her supervisor, Wendy Leong-Lum (“Leong-Lum”), or NEMCH’s CFO

about the situation.16

A week before the patient was to undergo treatment, her family threatened to go to the

press and say that she was denied care because she was unable to pay.17 NEMCH’s Chief

Operating Officer (“COO”), Dr. Miller (the physician who was to perform the transplant) and the

hospital’s public affairs person went to see Martinez to find out the facts surrounding this

patient. Martinez relayed to them the following: The patient, or her cousin, told Martinez that

she had collected $25,000, “had somebody who was going to give $50,000” and “had undertaken

11 Id. ¶ 11; Pl.’s Statement of Material Facts ¶ 23.

12 Def.’s Statement of Undisputed Facts ¶ 11.

13 Id.

14 Id. ¶ 20.

15 NEMCH’s Exhibits in support of Summ. J. Ex. 2.

16 Def.’s Statement of Undisputed Facts ¶ 21.

17 Id. ¶ 22. Neither party has submitted facts that indicate whether NEMCH had actually
told the patient that she would not receive treatment unless she could pay the full $330,000.
3

fundraising initiatives.”18 Martinez responded that the patient “would have to provide [her] with

the $75,000, a letter of intent of fundraising and that Martinez would take it from there.”19 The

patient, or the cousin, then inquired about the possibility of a greater discount, to which Martinez

answered that “only if the doctor offers something in addition to [the] 20%[,] will the Hospital

consider [it,] . . . and . . . it[’]s up to you if you want to speak to the physician.”20 Martinez then

met with the patient, or her family, and discussed the possibility of her “approaching the

physician directly about waiving his fees.”21 At some point during these discussions, the

patient’s cousin said to Martinez, “I mean, who has $330,000 to give.”22

After Dr. Miller learned what had happened, he was “outraged” because the hospital

could not “stop treatment now.”23 Leong-Lum later told Martinez that NEMCH’s management

was extremely upset about the situation.24 On April 23, 2001, Leong-Lum made written notes

about her communications concerning the incident for her file.25 In addition, NEMCH’s Vice

President of General Services, James Carmody (“Carmody”), sent an email to the Chief

18 Id. ¶ 24.

19 Id. ¶ 25.

20 Id. ¶ 26 (internal quotations omitted).

21 Id.

22 Id. ¶ 28 (internal quotations omitted). Despite this comment, Martinez claims that she
did not believe that the patient was unable to pay for the procedure. Id. Aside from the $75,000
already promised, however, Martinez had no other information to indicate that the patient could
“handle the financial aspect of the [bone marrow transplant].” Id. ¶ 29.

23 Id. ¶ 30.

24 Id.

25 See NEMCH’s Exhibits in support of Summ. J. Ex. 3.
4

Executive Officer and the COO explaining that:

Theresa was not authorized to advise the patient as she did. The fact that she did
this is very concerning. This is not the first time she has acted outside of her authority
and she (in the past) has been at least verbally reprimanded. I think this is particularly
egregious and may require HR intervention including the consideration of termination.26

In addition to Martinez’s failure to abide by company policy, NEMCH also asserts that

Martinez was fired for repeated tardiness. On June 29, 2000, Martinez had been placed on a

Corrective Action Plan (“CAP”) to address her tardiness issues.27 She was placed on another

CAP on August 7, 2000. The August CAP noted that since the June CAP, Martinez had “come

in at least 10 minutes late on several occasions,”28 and that Martinez’s attendance would be

carefully monitored for the next six months.29 To help Martinez make it to work on time,

NEMCH also adjusted her daily start time from 8:30 a.m. to 9:00 a.m.30

Martinez’s attendance did not improve, despite the adjustment in her start time. On

January 24, 2001, Martinez was suspended without pay for one day as a result of her continued

tardiness.31 Two days later she was given a final CAP, which listed all of the times since her

August CAP that she had been late to work and included a Performance Improvement Plan that

stated, “[a]ny further tardiness in excess of 3 occurrences within the Performance Improvement

26 Id. Ex. 4.

27 Id. Ex. 7.

28 Id. Ex. 6.

29 Id.

30 Def.’s Statement of Undisputed Facts ¶ 35.

31 NEMCH’s Exhibits in support of Summ. J. Ex. 9.
5

time frame of 3 months will result in immediate termination.”32

Leong-Lum sent an email to Susan Perl on April 24, 2001, which noted that Martinez’s

anniversary from her last CAP would be on April 25, 2001 and that Martinez had been tardy on

four separate occasions during that probationary period.33 Leong-Lum also mentioned that she

would be meeting with Carmody that afternoon and would discuss the situation with him.34

Martinez was fired from her position at NEMCH on April 26, 2001.35 The written notice

of her termination cites both her violation of IPC policy and her excessive tardiness as reasons

for her dismissal.36

Martinez claims that those reasons are merely pretextual. Both in her complaint and in a

subsequent affidavit, Martinez alleges that she made “numerous complaints to NEMCH

management concerning discrimination against international patients at NEMCH.”37 She also

alleges that she made “numerous complaints to NEMC[H] supervisory/managerial employees . . .

that [she] was being subject to unequal treatment . . . because [she] was a single woman with [a]

child.”38 Neither document recites specific details about any of these alleged complaints. In her

32 Id. Ex. 5.

33 Id. Ex. 12.

34 Id.; see also id. Ex. 10 (containing Leong-Lum’s dated notes of the days that Martinez
was tardy).

35 Id. Ex. 13.

36 Id.

37 Compl. ¶ 10; Aff. of Teresa Martinez, submitted in support of Pl.’s Opp’n to Def.’s
Mot. for Summ. J., Ex. A (“Martinez Aff.”) ¶ 6. Specifically, Martinez has complained about
discrimination against non-Middle Eastern patients.

38 Compl. ¶ 16; Martinez Aff. ¶ 12. Martinez has submitted no evidence of any written
complaints concerning discrimination against international patients or against her as a single
6

deposition, moreover, Martinez admits that the most recent conversation she remembers having

in which she complained about discrimination against certain international patients was in

2000.39 And, Martinez cannot recall the last time she complained to a supervisor that she was

being treated unequally due to being a single mother, though she thinks it was sometime in

2001.40

A wholly separate incident is the basis for several of Martinez’s claims. A few months

after her termination, Martinez and two of her friends initiated a phone call to Leong-Lum.41

One of Martinez’s friends posed as a representative of fictitious technology company interested

in hiring Martinez, while Martinez and her other friend secretly listened to the call.42 Leong-

Lum expressed surprise that Martinez was applying for a new job because she thought that

Martinez was moving out of state.43

When asked why Martinez had been terminated, Leong-Lum answered that Martinez had

given an unauthorized discount to a patient.44 She also noted that Martinez was frequently

absent because she had a daughter who was constantly sick.45 Additionally, Leong-Lum

mother.

39 Martinez Dep. at 263:15-265:18.

40 Id. at 358:10-359:3.

41 Def.’s Statement of Material Fact ¶ 92.

42 Id.

43 Id. ¶ 96.

44 Id. ¶ 95.

45 Id. ¶ 97.

7

volunteered that Martinez did a great job, was very creative, and was a great person and friend.46

Discussion

NEMCH has filed a motion for summary judgment. Under Federal Rule of Civil

Procedure 56, summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law.”47 Rule 56 mandates summary judgment “after adequate time for discovery and

upon motion, against a party who fails to make a showing sufficient to establish the existence of

an element essential to that party’s case, and on which that party will bear the burden of proof at

trial.”48

The “party seeking summary judgment [must] make a preliminary showing that no

genuine issue of material fact exists. Once the movant has made this showing, the nonmovant

must contradict the showing by pointing to specific facts demonstrating that there is, indeed, a

trialworthy issue.”49 The party opposing summary judgment must produce specific evidence of

a material factual dispute. The First Circuit has noted that “[a] genuine issue of material fact

does not spring into being simply because a litigant claims that one exists. Neither wishful

thinking nor ‘mere promise[s] to produce admissible evidence at trial’ . . . nor conclusory

responses unsupported by evidence . . . will serve to defeat a properly focused Rule 56 motion.”50

46 Id. ¶¶ 94, 97.

47Fed. R. Civ. P. 56(c).

48Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

49Blackie v. Maine, 75 F.3d 716, 721 (1st Cir. 1996) (quotations omitted).

50Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990) (citations omitted).
88

A.

Retaliatory Discharge

Martinez alleges claims of retaliatory discharge under both 42 U.S.C. § 2000e-3(a)51

(“Title VII”) and Mass. Gen. Laws ch. 151B § 4(4) (“chapter 151B, § 4(4)”).52 She alleges that

NEMCH terminated her employment in retaliation for the complaints she made about NEMCH’s

discrimination against non-Middle Eastern patients and against her as a single mother.

In cases where there is “no direct evidence of retaliatory animus,” both federal and state

law require “the plaintiff [to] establish a prima facie case and prove that the defendant[’]s[]

stated reasons for the employment action were pretextual.”53 In such actions, the burden of

persuasion always remains with the plaintiff, but the “shifting burden of production . . . follows

the tripartite formula of McDonnell Douglas Corporation v. Green.”54

Under the McDonnell Douglas framework, a plaintiff must first make out a prima facie

case of retaliatory discharge.55 Next, the defendant must “articulate some legitimate,

nondiscriminatory reason” for the employment action.56 If the defendant is able to meet this

51 42 U.S.C. § 2000e-3(a) provides, in relevant part, that: “It shall be unlawful
employment practice for an employer to discriminate against any of his employees . . . because
[the employee] has opposed any practice made an unlawful employment practice by this
subchapter.”

52 Mass. Gen. Laws ch. 151B, § 4(4) provides that it is unlawful “[f]or any person,
employer, labor organization or employment agency to discharge, expel or otherwise
discriminate against any person because he has opposed any practices forbidden under this
chapter or because he has filed a complaint, testified or assisted in any proceeding under section
five.”

53 Mole v. Univ. of Mass., 787 N.E.2d 1098, 1107 (Mass. App. Ct. 2003) (internal
quotations omitted).

54 Id.; 411 U.S. 792, 802-805 (1973).

55 Mole, 787 N.E.2d at 1107.

56 Id. (quoting McDonnell Douglas Corp., 411 U.S. at 802).
99

burden, then “the plaintiff must prove that the articulated reason is a pretext.”57 To state a prima

facie case of retaliatory discharge under Title VII, a plaintiff must show that: “(1) [she] engaged

in a protected activity as an employee, (2) [she] was subsequently discharged from employment,

and (3) there was a causal connection between the protected activity and the discharge.”58

Similarly, to succeed on a claim under chapter 151B § 4(4), “a plaintiff must establish the basic

fact that [s]he was subjected to an adverse employment action because of [her] protected

activity.”59

Martinez has produced no evidence to suggest “direct retaliatory animus,” so her claim

must be analyzed under the McDonnell Douglas framework. Martinez is unable to satisfy the

first prong of McDonnell Douglas because she does not present a prima facie case of retaliation.

Martinez’s alleged “protected activities” were the complaints she made concerning NEMCH’s

alleged discrimination against non-Middle Eastern patients and against her as a single mother.

Neither of these actions constitutes a protected activity under Title VII or chapter 151B § 4(4).

Martinez admits that her discrimination complaints concerned “discrimination based on ability to

pay.”60 Discrimination based on one’s ability to pay is not an “unlawful practice” under these

sections.61 Similarly, discrimination based on one’s status as a single mother is not protected

57 Id.

58 Wyatt v. City of Boston, 35 F.3d 13, 15 (1st Cir. 1994).

59 Blockel v. J.C. Penney, Co., Inc., 337 F.3d 17, 26 (1st Cir. 2003) (internal quotations
omitted).

60 Def’s Statement of Undisputed Facts ¶ 66.

61 42 U.S.C. § 2000e(3) only protects an employee from retaliation because he “has
opposed any practice made an unlawful employment practice by this subchapter . . . .” That
subchapter does not include discrimination based on one’s ability to pay for medical services.
1010

under either provision.62

Martinez also asserts that she is protected under Title VII because she had “a reasonable

belief that the practice[s she] . . . oppos[ed] violate[] Title VII.”63 Assuming, without deciding,

that a reasonable belief is sufficient, she has still failed to make out a prima facie case of

retaliation because she has not shown any causal connection between her complaints and her

subsequent termination. Martinez cannot recall the last time prior to her termination that she

complained about her treatment as a single mother.64 Similarly, the last complaint she could

recall making about discrimination against non-Middle Eastern patients was in 2000, months

before she was terminated in April, 2001.65

Even if Martinez had established a prima facie case, her claim still fails. NEMCH has

provided ample evidence of non-discriminatory reasons for Martinez’s discharge. Martinez had

a documented tardiness problem, for which she was placed on a corrective action plan and had

been warned that further violations would result in her termination.66 And, her termination was

See 42 U.S.C. §§ 2000e to 2000e-17. Likewise, Mass. Gen. Laws ch. 151B, § 4 does not list
discrimination based on one’s ability to pay for medical services as an unlawful employment
practice.

62 See 42 U.S.C. §§ 2000e to 2000e-17. Discrimination based on status as a single parent
is not an lawful employment practice under this section. See Gunther v. The GAP, Inc., 1 F.
Supp. 2d 73, 77 (D. Mass. 1998) (noting that parenthood is not a protected class under chapter
151B, § 4); cf Upton v. JWP Businessland, 682 N.E.2d 1357, 1358 (Mass. 1997) (holding that it
was not a violation of public policy for an employer to discharge a single mother who refused to
work newly imposed longer hours).

63 Wyatt v. City of Boston, 35 F.3d 13, 15 (1st Cir. 1994).

64 Martinez Dep. 358:10-359:3.

65 Id. 263:15-265:18.

66 NEMCH’s Exhibits in support of Summ. J. Ex. 5.
1111

within a few days to a week of her violation of company policy.67 Furthermore, NEMCH has

offered evidence to show that not only did it not discriminate against Martinez for being a single

mother, but it actually altered her work hours to accommodate her needs.68

Because NEMCH satisfied its burden of production, in order for her claim to succeed,

Martinez must provide evidence that NEMCH’s reasons for her termination were merely

pretextual. Martinez cannot met this burden. As noted above, Martinez has not produced

evidence that demonstrates any causal connection between Martinez’s complaints and her

termination. Thus, Martinez’s claims of retaliatory discharge must fail.

B.

Termination in Violation of Public Policy

In addition to her claim against NEMCH for retaliatory discharge, Martinez also asserts a

claim for termination in violation of public policy, which is an exception to the at-will

employment doctrine.69 To succeed on such a claim, Martinez must show that she was

terminated “for asserting a legally guaranteed right (e.g., filing workers’ compensation claim) ,

for doing what the law requires (e.g., serving on a jury), or for refusing to do that which the law

forbids (e.g., committing perjury).”70 Martinez’s claim is based on her assertion that she was

terminated for asserting a legally guaranteed right, that is, “for reporting violations of NEMCH

policies concerning patient rights, patient care, and billing and privacy issues.”71 Martinez,

67 Id. Ex. 13.

68 Id. Ex. 6; Def.’s Statement of Undisputed Facts ¶ 35.

69 Smith-Pfeffer v. Superintendent of the Walter E. Fernald State School, 533 N.E.2d
1368, 1369 (Mass. 1989).

70 Id. at 1371.

71 Compl. ¶ 36.

1212

however, did not report these alleged violations to any regulatory body. She reported them only

to NEMCH staff members and to friends.72 The public-policy exception is not broad enough to

encompass such complaints.73 Solely internal issues cannot be the basis of a public-policy

exception to the at-will doctrine.74

Plaintiff argues that internal complaints may be a sufficient basis for the public policy

exception and cites Shea v. Emmanuel College75 and Upton v. JWP Businessland76 for that

proposition. Plaintiff, however, fails to note that those cases concern internal complaints about

criminal wrongdoing and explicitly distinguish themselves from non-criminal complaints.77

Moreover, and perhaps most significantly, Martinez presents no evidence that her termination

was in any way related to her complaints. Any such assertion is merely speculative, and such

speculation is not enough to survive a motion for summary judgment. Thus, her claim must fail.

72 Def.’s Statement of Undisputed Facts ¶¶ 88-91.

73 See Mistishen v. Falcone Piano Co., Inc., 630 N.E.2d 294, 295 (Mass. App. Ct. 1994)
(holding that internal complaints about deceptive trade practices were an insufficient basis for
public policy exception).

74 Smith-Pfeffer, 533 N.E.2d at 1371-72.

75 682 N.E.2d 1348 (Mass. 1997).

76 682 N.E.2d 1357 (Mass. 1997).

77 Shea, 682 N.E.2d at 1350 (“The distinction of importance is between a discharge for an
employee’s internal complaint about company policies or the violation of company rules, for
which liability may not be imposed, and an internal complaint made about the alleged violation
of the criminal law for which we now decide that liability may be imposed.”) The Upton court
went to great lengths to distinguish between employee actions that are covered by the public-
policy exception and those that are not. Compare Wright v. Shriners’ Hosp. for Crippled
Children, 589 N.E.2d 1241 (Mass. 1992) (“nurse made internal reports of problems to high-
ranking officials within hospital organization”) (quoting Upton, 682 N.E.2d at 1359) with
DeRose v. Putnam Mgt. Co., 496 N.E.2d. 428 (Mass. 1986) (“at-will employee refused to give
false testimony against coworker in criminal trial”) (quoting Upton, 682 N.E.2d at 1359).
1313

C.

Invasion of Privacy

Martinez contends that Leong-Lum’s statements to Martinez’s friend concerning the

reasons for Martinez’s termination violated her right to privacy.78 Mass. Gen. Laws ch. 214, §

1B (“chapter 214, § 1B”) provides, in relevant part, that: “A person shall have a right against

unreasonable, substantial or serious interference with his privacy.” In order for a plaintiff to

succeed on an invasion of privacy claim, he must prove not only that the defendant

unreasonably, substantially and seriously interfered with his privacy by disclosing facts of highly

personal or intimate nature, but also that it had no legitimate reason for doing so.79

To determine whether there has been a violation of chapter 214, § 1B in an employment

setting, a court must “balance the employer’s legitimate business interest in obtaining and

publishing the information against the substantiality of the intrusion on the employee’s privacy

resulting from the disclosure.”80 Statements that are “limited to issues regarding the plaintiff’s

fitness [as a potential employee do] not constitute an unreasonable interference with plaintiff’s

privacy.”81

Leong-Lum’s statements were made to someone that she reasonably believed to be a

prospective employer. Her statements related only to issues of Martinez’s job performance and

78 Leong-Lum’s statements that Martinez had violated company policy, that Martinez was
planning to move out of state, and that Martinez had a daughter who was sick constantly causing
her to miss work are the basis for Martinez’s invasion of privacy claim. Pl.’s Opp’n to Def.’s M.
for Summ. J. at 11.

79 Schlesinger v. Merrill Lynch., 567 N.E.2d 912, 913-916 (Mass. 1991).

80 Bratt v. IBM, 467 N.E.2d 126, 135-36 (Mass. 1984).

81 Mulgrew v. City of Taunton, 574 N.E.2d 389, 393 (Mass. 1991).
1414

did not include facts “of highly personal or intimate nature.” Such communication falls outside

of the scope of chapter 214, § 1B.82 Martinez’s claim, thus, fails as a matter of law.

D.

Intentional Interference

Martinez also bases her intentional interference claim on the statements Leong-Lum

made to Martinez’s friend concerning the reasons for Martinez’s termination. To prevail on a

claim for intentional interference, a plaintiff must prove the following: “(1) the existence of a

contract or a business relationship which contemplated economic benefit; (2) the defendant[’]s[]

knowledge of the contract or business relationship; (3) the defendant[’]s[] intentional

interference with the contract or business relationship for an improper purpose or by improper

means; and (4) damages.”83

Martinez’s claim fails to satisfy several of these requirements. First, because Martinez’s

friend only posed as a prospective employer, Martinez cannot prove that there was an actual

“contract or business relationship which contemplated economic benefit.”84 Second, Martinez

has not offered any evidence that Leong-Lum acted with improper purpose or by improper

means. Additionally, “[i]n response to an inquiry about a former employee, [a former employer

has] a privilege, if not a duty, to speak the truth even if the disclosure of the facts might

negatively affect the subject’s job prospects.”85 Third, Martinez cannot claim any damages from

82 Schlesinger, 567 N.E.2d at 913-916.

83 Swanset Dev. Corp. v. City of Taunton, 668 N.E.2d 333, 338 (Mass. 1996).

84 Id.

85 Conway v. Smerling, 635 N.E.2d 268, 273 (Mass. App. Ct. 1994). This privilege is
lost only if the employer abuses it or acts with actual malice. Burns v. Barry, 228 N.E.2d 728,
731 (Mass. 1967) (“Whether the statements to the assumed employer were true or false is
1515

Leong-Lum’s statements because, as noted above, there was no real business relationship with

which Leong-Lum could have interfered. For all of the above reasons, Martinez’s claim for

intentional interference fails.

E.

Defamation

Defamation is “the publication of material by one without a privilege to do so which

ridicules or treats the plaintiff with contempt.”86 To establish a claim of defamation, a plaintiff

must satisfy the following elements:

First, the defamatory statement must hold the plaintiff up to contempt, hatred, scorn, or
ridicule or tend to impair his standing in the community, at least to his discredit in the
minds of a considerable and respectable class in the community. Second, the statement
must have been to at least one other individual other than the one defamed. Third, where
the speech is a matter of public concern, a defamation plaintiff must prove not only that
the statements were defamatory, but also that they were false. Finally, the plaintiff must
show that he suffered special damages and must set forth these damages specifically.87

Massachusetts, however, recognizes both absolute and conditional privileges to a

defamation claim.88 One such privilege applies to employers: “An employer has a conditional

privilege to disclose defamatory information concerning an employee when the publication is

reasonably necessary to serve the employer’s legitimate interest in the fitness of an employee to

perform his or her job.”89 And, “[o]nce an employer’s conditional privilege is recognized, the

immaterial if there was no abuse of the privilege and there was no showing of actual malice.”).
There is no evidence to indicate that Leong-Lum either abused her privilege or acted with
malice.

86 Correllas v. Viveiros, 572 N.E.2d 7, 10 (Mass. 1991).

87 Yohe v. Nugent, 321 F.3d 35, 40 (1st Cir. 2003) (internal citations omitted). Because
Leong-Lum’s statements were not a matter of public concern, the third element does not apply to
this case.

88 See, e.g., Mulgrew v. City of Taunton, 574 N.E.2d 389, 391 (Mass. 1991).

89 Bratt v. IBM, 467 N.E.2d 126, 129 (Mass. 1984).
1616

burden shifts to the employee to prove that the privilege was abused.”90 To show such abuse, a

plaintiff must “establish[] that the defendant knowingly or recklessly published the defamatory

statement.”91

Martinez argues that NEMCH made defamatory statements about her on at least two

occasions, once when she was told of the reasons for her termination and once when Leong-Lum

spoke to the apparent prospective employer.92 Martinez’s claim fails as both episodes are

protected by the conditional privilege.93

As stated above, an employer enjoys a conditional privilege when it makes “defamatory

statements concerning an employee when the publication is reasonably necessary to serve the

employer’s legitimate interest in the fitness of an employee to perform his or her job.”94 And, a

termination letter “is a reasonably necessary communication to serve [the defendant’s] legitimate

interest in providing its employee with the reasons for his termination.”95 Martinez has

submitted no evidence that NEMCH abused this privilege.

What is more, NEMCH is shielded from the defamation claim because an employer who

90 Elicier v. Toys “R” Us, Inc., 130 F. Supp. 2d 307, 311 (D. Mass. 2001).

91 Mulgrew, 574 N.E.2d at 392.

92 Pl’s Opp’n to Def.’s M. for Summ. J. at 13.

93 Martinez argues that NEMCH lost its right to a conditional privilege because the
reasons for Martinez’s termination “were a pretext for unlawful retaliation.” Pl’s Opposition to
Def.’s M. for Summ. J. at 13. This court, however, has found no unlawful retaliation, so
NEMCH’s conditional privilege remains intact.

94 Bratt, 467 N.E.2d at 129.

95 Axton-Cross Co., Inc. v. Blanchette, No. 942764H, 1994 WL 879570, at *2 (Mass.
Super. Ct. Oct. 17, 1994).

1717

provides a reference to a potential employer is also protected by the conditional privilege.96

And, Martinez has offered no evidence to suggest that NEMCH abused this privilege either. In

fact, Martinez admitted that Leong-Lum made several complimentary remarks about her during

the telephone call.97 Such remarks are patently inconsistent with any malice.

Martinez’s defamation claim also fails because she invited Leong-Lum’s statements. In

Burns v. Barry,98 the plaintiff similarly had a friend pose as a prospective employer seeking

references. In affirming the lower court’s decision, the Massachusetts Supreme Judicial Court

held: “[T]he oral statements made by [the defendant] to the plaintiff’s associate were made in

response to telephone inquiries initiated at the behest of the plaintiff, . . . and were conversations

to which he listened . . . . Such statements as [the defendant] made to one purporting to be a

‘prospective employer’ were privileged.”99

Finally, Martinez’s defamation claims fail because she has not submitted evidence of any

damages suffered by her. Damages are an essential element in a defamation claim, and a

plaintiff must demonstrate the he “suffered special damages and must set forth these damages

specifically.”100 Martinez has not met this burden. No real employment prospect was lost, and

96 Mulgrew, 574 N.E.2d at 391-92 (holding that statements made by plaintiff’s supervisor
to hiring committee regarding plaintiff’s past job performance were protected by a qualified
privilege).

97 Leong-Lum had volunteered that Martinez did a great job, was very creative, and was a
great person and friend. Def.’s Statement of Undisputed Facts ¶¶ 94, 97.

98 228 N.E.2d 728 (Mass. 1967).

99 Id. at 731.

100 Yohe v. Nugent, 321 F.3d 35, 40 (1st Cir. 2003).
1818

Martinez’s feelings upon listening to Leong-Lum’s statements are inadmissible.101

CONCLUSION

For the foregoing reasons, Defendant’s motion for summary judgment is ALLOWED.

AN ORDER WILL ISSUE.

/s/ Joseph L. Tauro
United States District Judge

101 Burns, 228 N.E.2d at 732.

1919

Publisher Information
Note* This page is not part of the opinion as entered by the court.
The docket information provided on this page is for the benefit
of publishers of these opinions.

Ronald M. Jacobs
Poppel & Associates
223 Lewis Wharf
Boston, MA 02109
617-725-0008
Assigned: 02/22/2002
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing New England Medical Center, Inc.
(Defendant) Matthew P. Poppel
Poppel & Associates
223 Lewis Wharf
Boston, MA 02109
617-725-0008
Assigned: 02/22/2002
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing New England Medical Center, Inc.
(Defendant) Paul F. Wood
Law Office of Paul F. Wood PC
101 Tremont Street
Boston, MA 02108
617-482-9300
617-451-1991 (fax)
pfwatty@rcn.com
Assigned: 12/28/2001
LEAD ATTORNEY
ATTORNEY TO BE NOTICED representing Teresa Martinez
(Plaintiff)

2020

Masood v. Ky. Bd. of Med. Licensure

PHYSICIAN LICENSURE

Masood v. Ky. Bd. of Med. Licensure, No. 2003-CA-002407-MR (Ky. Ct. App. Jan. 14, 2005)

The Court of Appeals of Kentucky refused to require the Board of Medical Licensure to afford a doctor a hearing on the denial of an application for a license. The doctor had made false statements on his application and was then given the opportunity to appear before the board and did so, and was therefore provided due process.

 

Marte v. Brooklyn Hosp. Ctr.

PRIVILEGE OF INTERNAL SECURITY DOCUMENTATION

Marte v. Brooklyn Hosp. Ctr., No. 4577/02 (N.Y. App. Div. Nov. 21, 2003)

A
woman sued a hospital for negligence after a man entered her hospital room
and attempted to sexually assault her. She argued that the hospital’s security
was negligent in allowing the man to remain in the patient ward after visiting
hours had ended. In preparation for trial, the woman requested several
documents related to the hospital’s security, including: incident reports involving
the attempted assault, incident reports and records of rape and sexual
assault and other crimes for the three years prior, security complaints received
from visitors, internal memoranda regarding security measures, copies of
internal investigation documents, and visitor logs for the date in question.
The hospital claimed that these materials were privileged under the state
Education Law and Public Health Law. The New York Supreme Court, Appellate
Division, found that the documents were not entitled to a blanket privilege
since there was no evidence that any of that information had been generated
as part of a report to the Department of Health, as required by the Public
Health Law.