Larson v. Wasemiller

MALPRACTICE – CORPORATE NEGLIGENCE

Larson v. Wasemiller, No. C6-03-293
(Minn. Dist. Ct. June 29, 2005)

A patient
asserted a negligent credentialing claim, which the hospital sought to dismiss,
arguing that Minnesota had never recognized a common law cause of action
based on negligent credentialing or privileging. The District Court of Minnesota
denied the hospital’s motion, recognizing a new cause of action for a professional
tort against a hospital for negligent privileging and credentialing. The court
found that a hospital had a duty to exercise reasonable care when making credentialing
decisions, and also recognized that a majority of other jurisdictions have
recognized a similar cause of action. The court went on to find that Minnesota’s
peer review statute did not grant immunity or limit the liability of hospitals
for a claim based on a negligent privileging or credentialing decision.

 

 

Laurino v. Board of Prof’l Discipline of Idaho State Bd. of Med.,

Laurino v. Board of Prof’l Discipline of Idaho State Bd.
of Med.,
No. 27131 (Idaho July 16, 2002)

The
Idaho State Board of Medicine revoked a physician’s license for allegedly substandard
care of nine patients based primarily on the testimony of two physicians who
"were on staff at the local hospital and were directly involved in peer
review proceedings during which they observed and evaluated [the physician’s]
performance and ultimately decided not to grant hospital privileges to [him]."
The physician successfully challenged the revocation in court. The board appealed
to the Supreme Court of Idaho, which held that the board ignored relevant evidence
refuting the charges against the physician (as well as the board-appointed hearing
officer’s recommendation to dismiss the claims), and offered little evidence
to establish the appropriate standard of care against which the physician was
judged.

For seven of the nine patients, the court found that the standard of care had
not been proven, and that the physician could not be held to be in violation
of a standard that was not defined. The court found that the board could not
use its expertise as a substitute for evidence in the record, "as substantial
evidence and reasoned findings would become meaningless." The court agreed
with the board on substandard care violations on two of the patients and remanded
the case back to the board for appropriate sanctions to be determined.

Lane v. Anderson

No. 3–03–0030
______________________________________________________________
___

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

MATTHEW LANE,

v.

Plaintiff-Appellant,

) Appeal from the Circuit Court
) of the 10th Judicial Circuit
) Peoria County, Illinois
)

) No. 01–L–306

)
)
RICHARD ANDERSON, M.D.,

PEORIA SURGICAL GROUP, OSF )

)
HEALTHCARE SYSTEMS,

d/b/a ST. FRANCIS MEDICAL
)
CENTER, and J.B. Joo, M.D., ) Honorable
) Joseph R. Vespa,
) Judge Presiding.
Defendants-Appellees.
______________________________________________________________
___

JUSTICE SLATER delivered the opinion of the court:
______________________________________________________________
___

This is an action for medical malpractice, medical

battery and fraud. The plaintiff appeals from the orders of

the trial court which denied his motion for summary judgment

and granted the defendants = motions to dismiss and motion for

summary judgment.

I. FACTS

A. Procedural Background

The plaintiff, Matthew Lane, brought this action after he

sustained a leak in his small bowel following a laparoscopic

appendectomy. Plaintiff originally filed a four-count

complaint against the following defendants: Dr. Anderson, the

attending physician; Peoria Surgical Group, Dr. Anderson =s

employer; Dr. Joo, the chief resident who performed the

surgery with Dr. Anderson; and OSF Healthcare Systems,

(“OSF”), Dr. Joo =s employer. Counts I and II are for medical

malpractice against Dr. Anderson and Peoria Surgical Group and

are not at issue in this appeal. Counts III and IV allege

medical battery against Dr. Joo and OSF, respectively.

On February 25, 2002, the plaintiff moved to amend his

complaint to add count V, a claim for medical battery against

Dr. Anderson. On April 24, 2002, the trial court denied the

plaintiff =s motion to amend and held that the facts as alleged

by the plaintiff did not support a claim for medical battery.

On May 23, 2002, the trial court granted the plaintiff leave

to amend his complaint to add counts VI, VII and VIII, which

alleged fraud by Dr. Anderson, Dr. Joo and OSF, respectively.

The plaintiff and the defendants filed various motions on the

pleadings.

On October 25, 2002, the trial court denied the

plaintiff =s motion for summary judgment on count III of the

complaint which alleged medical battery against Dr. Joo. It

granted summary judgment in favor of Dr. Joo and OSF

2

Healthcare Systems on counts III and IV, the medical battery

counts. It also granted Dr. Anderson, Dr. Joo and OSF =s

motions to dismiss counts VI, VII and VIII which alleged fraud

against each of them, respectively. The plaintiff appeals

from the trial court =s orders entered on April 24, 2002 and

October 25, 2002.

B. FACTUAL BACKGROUND

On August 25, 2000, the plaintiff went to see defendant

Anderson for recurrent abdominal pain. Dr. Anderson

recommended that the plaintiff be hospitalized for a period of

observation and possible surgery. After the plaintiff was

admitted to the hospital he signed a “Consent to

Surgery/Procedure” form. The relevant language of the consent

form is as follows:

“I, Matthew Lane, hereby authorize Dr.

Rossi, Marshall, DeBord and Anderson and

such assistants and associates as may be

selected by him/her and OSF St. Francis

Medical Center to perform the following

procedure(s)/ treatment(s)upon myself/the

patient: diagnostic laparoscopy, possible

3

laparoscopic appendectomy, possible open

appendectomy.”

Dr. Anderson testified that on the evening of August 25,

2000, he contacted his chief resident at the hospital, Dr.

Joo, and asked him to assist with the plaintiff =s surgery. The

next morning, Dr. Joo and Dr. Anderson met with the plaintiff

and Dr. Anderson recommended that the plaintiff have the

surgery.

Dr. Anderson explained that the procedure performed on

the plaintiff, a laparoscopic appendectomy, requires three

hands. Two surgeons are needed to elevate the abdominal wall

in order to insert a needle into the abdomen. Additionally, a

second surgeon is needed to run the camera while one surgeon

works the instruments.

Dr. Anderson was scrubbed, present and involved during

the plaintiff =s surgery. He both supervised and directed the

entire procedure. Throughout the surgery, Dr. Anderson was

the primary surgeon and Dr. Joo was his assistant. The

primary surgeon is responsible for the patient before and

after the operation and for any mistakes that occur during

surgery.

Dr. Anderson testified that it is not known what portion

of the operation a resident will perform at the beginning of a

4

procedure. In this case, Dr. Joo performed a significant part

of the laparoscopic appendectomy.

Dr. Anderson =s dictated report of the operation, as well

as his handwritten operative report, listed him as the surgeon

and Dr. Joo as the assistant. The perioperative record for

surgical services listed Dr. Anderson as the primary surgeon

and Dr. Joo as the resident. The pathology report contained

only Dr. Anderson =s name as the physician who performed the

surgery.

In his deposition testimony, Dr. Joo stated that in

August 2000 he was a fifth year resident in the surgery

residency program at St. Francis Medical Center. On

August 26, 2000, he examined the plaintiff. Dr. Joo said it

was his habit to introduce himself to a patient as the chief

resident and as Dr. Anderson =s assistant. Shortly before the

operation, he and Dr. Anderson met with the plaintiff and

recommended that he have the surgery. Dr. Joo said that it

was probably after this meeting that he told Dr. Anderson that

he would like to assist him in the surgery.

Dr. Joo testified that it was his habit to be waiting for

the patient when he was brought into the operating room. He

would have then spoken to the plaintiff to reassure him.

Immediately before the operation, Dr. Joo signed the bottom of

5

the plaintiff =s consent form which identified the plaintiff as

the patient and confirmed the procedure to be performed.

Dr. Joo testified that the laparoscopic appendectomy

procedure which the plaintiff underwent required the use of

three hands during the procedure. It is not possible for a

single surgeon to perform the procedure. Typically, both the

supervising surgeon and the resident participate in almost all

aspects of the surgery.

II. ANALYSIS

A. Counts III and IV of the Complaint

1. Plaintiff =s Motion for Summary Judgment

On appeal, the plaintiff argues that the trial court

erred in denying his motion for summary judgment on count III

of his complaint which alleged medical battery against Dr.

Joo. The denial of a motion for summary judgment is not a

final and appealable order. Blott v. Hanson, 283 Ill. App. 3d

656, 670 N.E.2d 345 (1996). The denial of the plaintiff =s

motion for summary judgment as to count III is not appealable

as a matter of law.

2. Defendants Joo and OSF =s Motions
for Summary Judgment

Next, the plaintiff argues that the trial court erred in

granting summary judgment in favor of Dr. Joo and OSF on

counts III and IV of the complaint which alleged medical

6

battery against each of them. The plaintiff argues that Dr.

Joo committed medical battery when the treatment plaintiff

received varied substantially with the consent that he gave

when he signed the “Consent to Surgery/Procedure” form.

Specifically, he argues that Dr. Joo performed a majority of

the surgery and he did not consent to that degree of

participation by a doctor not specifically listed on the

consent form. As support for his contention, he cites to

Guebard v. Jabbay, 117 Ill. App. 3d 1, 452 N.E.2d 751 (1983).

Finally, he claims that OSF, as Dr. Joo =s employer, is

vicariously liable.

A motion for summary judgment will be granted when the

pleadings, depositions and admissions on file, together with

the affidavits, if any, show that there is no genuine issue of

material fact and that the movant is entitled to judgment as a

matter of law. 735 ILCS 5/2–1005(c)(West 2000); Purtill v.

Hess, 111 Ill. 2d 229, 489 N.E.2d 867 (1986). An appellate

court will review the grant of a motion for summary judgment

on a de novo basis. Kellner v. Bartman, 250 Ill. App. 3d

1030, 620 N.E.2d 607 (1993).

In a medical battery case, a plaintiff may recover by

establishing the following: (1) a total lack of consent to the

procedure performed; (2) the treatment was contrary to the

7

patient =s will; or (3) the treatment was at substantial

variance with the consent granted. Curtis v. Jaskey, 326 Ill.

App. 3d 90, 759 N.E.2d 962 (2001).

Here, the facts do not show that the treatment the

plaintiff received was at substantial variance with the

consent the plaintiff granted. The “Consent to

Surgery/Procedure” form that the plaintiff executed stated

that he authorized “Dr. Rossi, Marshall, DeBord, and Anderson

and such assistants and associates as may be selected by

him/her and OSF St. Francis Medical Center” (emphasis added)

to perform upon him a laparoscopic appendectomy. It is

undisputed that more than one surgeon is needed to perform

this procedure. It is typical for both the supervising

surgeon and the resident to participate in virtually all

aspects of the procedure. Dr. Anderson was scrubbed, present

and involved during the entire procedure. He was the primary

surgeon, and Dr. Joo was his assistant. As the primary

surgeon, Dr. Anderson was responsible for the plaintiff during

the entire operation, including being responsible for any

mistakes that occurred during the procedure. Dr. Anderson

guided Dr. Joo throughout the entire procedure and made all of

the decisions and necessary judgments. Everything Dr. Joo did

was subject to Dr. Anderson =s approval. Further, all pertinent

8

operative reports, including Dr. Anderson =s dictated report of

operation, his handwritten operative report and the

perioperative record for surgical services listed Dr. Anderson

as the surgeon and Dr. Joo as the assistant. The pathology

report was sent to Dr. Anderson as the physician who performed

the surgery and contained only his name. Dr. Anderson was the

operating surgeon in this case, regardless of the degree to

which Dr. Joo participated. The plaintiff consented to Dr.

Anderson and his assistant to perform the surgery, and that is

what was done.

The plaintiff cites to the Second District’s opinion in

Guebard v. Jabbay, 117 Ill. App. 3d 1, 452 N.E.2d 751 (1983),

as authority for the proposition that a medical battery

occurred in this case. Specifically, the plaintiff alleges:

(1) the facts in the Guebard case are nearly identical to the

instant case; and (2) Guebard held, as a matter of law, that

the resident in that case had committed medical battery. See

Guebard, 117 Ill. App. 3d 1, 452 N.E.2d 751. We disagree with

both of the plaintiff’s allegations.

In Guebard, the plaintiff sued her surgeon, Dr. Jabbay,

after two failed knee surgeries. She alleged that Dr. Jabbay

violated the doctrine of informed consent when he failed to

inform her that a resident would perform the first surgery.

9

She also filed a battery claim, but withdrew it before the

case went to the jury. Guebard, 117 Ill. App. 3d 1, 2, 452

N.E.2d 751, 754. The jury returned a verdict for Dr. Jabbay.

On appeal, the Second District held that the doctrine of

informed consent did not apply in this case. Guebard, 117

Ill. App. 3d 1, 7, 452 N.E.2d 751, 756. However, in dicta,

the court noted that the plaintiff may have had a cause of

action for battery. Guebard, 117 Ill. App. 3d 1, 8, 452

N.E.2d 756. However, the plaintiff had no recourse since she

had withdrawn her battery claim.

Although the facts in Guebard are similar to the instant

case, they contain some important distinctions. In Guebard,

the handwritten report of the operation indicated that the

surgery was performed by the resident. Further, other

typewritten notes indicated that Dr. Jabbay was the assistant.

Conversely, in the instant case, all pertinent operative

reports listed Dr. Anderson as the surgeon and Dr. Joo as the

assistant.

Further, Guebard did not hold, as a matter of law, that

the resident in that case had committed medical battery. See

Guebard v. Jabbay, 117 Ill. App. 3d 1, 452 N.E.2d 751 (1983).

Battery was not an issue in Guebard. The only issue before

the court was whether the plaintiff could recover on her

10

informed consent count. The parties did not brief the medical

battery issue, nor did the court decide the issue in ruling

for Dr. Jabbay on the informed consent count. Therefore, the

ruling in the Guebard case does not affect the disposition of

the instant case. See Guebard v. Jabbay, 117 Ill. App. 3d 1,

452 N.E.2d 751 (1983). The trial court properly granted

summary judgment in favor of defendants Joo and OSF on counts

III and IV of the complaint.

B. Count V of the Complaint

The plaintiff next argues that the facts he alleged in

count V of his complaint were sufficient to state a cause of

action for medical battery against Dr. Anderson. In essence,

the plaintiff is arguing that the trial court erred in denying

his motion for leave to amend his complaint to add count V.

The plaintiff acknowledges that if this court finds summary

judgment in favor of Dr. Joo was proper, then we need not

reach this issue because count V is predicated on Dr.

Anderson =s vicarious liability for the alleged medical battery

committed by Dr. Joo.

Since the trial court properly granted summary judgment

for Dr. Joo and OSF on the medical battery counts, we find

that the facts alleged in count V of the complaint do not

11

sufficiently support a claim for medical battery against Dr.

Anderson.

C. Count VI of the Complaint

The plaintiff contends that the trial court erred in

granting Dr. Anderson =s motion to dismiss count VI of the

complaint. In count VI, the plaintiff alleges that Dr.

Anderson committed fraud when he: (1) represented to the

plaintiff that he would be performing the surgery when he knew

that Dr. Joo had the option to be the operating surgeon; and

(2) later concealed the fact that Dr. Joo had chosen to do the

surgery and Dr. Anderson instead assisted Dr. Joo. In the

alternative, the plaintiff argues that the trial court erred

in dismissing count VI of the complaint because it contained

genuine issues of material fact.

In ruling upon a motion

to dismiss, a trial court accepts as true all well-pled facts,

as well as all reasonable inferences favorable to the party

opposing the motion which may be drawn from the facts.

Richardson v. Dunbar, 95 Ill. App. 3d 254, 419 N.E.2d 1205

(1981). The court does not, however, accept as true mere

conclusions of law or fact. Payne v. Mill Race Inn, 152 Ill.

App. 3d 269, 504 N.E.2d 193 (1987). The grant of a motion to

dismiss will be reviewed on a de novo basis. Ramos v. City of

Peru, 333 Ill. App. 3d 75, 775 N.E.2d 184 (2002).

12

To prove that a concealment constituted a fraudulent

misrepresentation, a plaintiff must prove: (1) the concealment

was of a material fact; (2) the concealment was intended to

induce a false belief; (3) the innocent party could not have

discovered the truth through a reasonable inquiry or

inspection and relied upon the silence as a representation

that the fact did not exist; (4) the concealed information was

such that the injured party would have acted differently if he

had been aware of it; and (5) the reliance by the person from

whom the fact was concealed led to his injury. Williams v.

Chicago Osteopathic Health Systems, 274 Ill. App. 3d 1039, 654

N.E.2d 613 (1995).

Here, the plaintiff argues that Dr. Anderson fraudulently

concealed that Dr. Joo would be the operating surgeon. The

deposition testimony is clear, however, that Dr. Anderson, not

Dr. Joo, was the operating surgeon in this case. Dr. Anderson

was present for and participated in all aspects of the

surgery. He directed all of Dr. Joo =s movements, and he alone

was responsible for the plaintiff throughout the surgery. The

degree of Dr. Joo =s participation did not change his role from

assisting physician to operating surgeon.

In the alternative, the plaintiff contends that count VI

should not have been dismissed because genuine issues of

13

material fact exist regarding which physician acted as the

operating surgeon and which physician acted as the assistant

during the plaintiff =s procedure. We have reviewed the

pleadings and find no genuine issue of material fact that

would preclude the dismissal of count VI. The undisputed

facts show that the plaintiff executed a broad consent form

which authorized four surgeons and “such associates and

assistants” as they selected to “perform” the procedure.

There was no limitation on the consent given. Dr. Anderson

was the operating surgeon regardless of the degree to which

Dr. Joo participated. The allegations raised by the plaintiff

are simply contrary to those facts. See Burton v. County of

Jackson, 246 Ill. App. 3d 677, 616 N.E.2d 662 (1993)

(allegations in a complaint are insufficient to raise a

genuine issue of material fact where the affidavits and

depositions which support a motion for summary judgment set

forth facts to the contrary). Therefore, the trial court

properly dismissed count VI of the complaint.

D. Counts VII and VIII of the Complaint

The plaintiff next argues that Dr. Joo and OSF are liable

for the fraud allegedly committed by Dr. Anderson. Since we

have found that Dr. Anderson was not liable for fraud under

count VI, we likewise find that the trial court properly

14

dismissed counts VII and VIII of the complaint alleging fraud

against Dr. Joo and OSF, respectively.

E. Punitive Damages

Finally, the plaintiff argues that if the pleadings in

counts VI, VII and VIII state a cause of action for fraud,

then he is entitled to recover punitive damages. Counts VI,

VII and VIII do not state a cause of action for fraud.

Therefore, we need not determine whether the plaintiff is

entitled to punitive damages on those counts.

The judgment of the circuit court of Peoria County is

affirmed.

Affirmed.

BARRY and LYTTON, J.J., concurs.

15

Las Palmas Med. Ctr. v. Moore (Summary)

PHYSICIAN RECRUITMENT/ARBITRATION

Las Palmas Med. Ctr. v. Moore, No. 08-09-00226-CV (Tex. App. Oct. 6, 2010)

The Court of Appeals of Texas reversed the decision of the trial court and rendered judgment confirming an arbitration award between two physicians and a medical center.

Two urologists signed a recruitment agreement with a medical center which required them to arbitrate any disputes arising out of or relating to the recruitment agreement. The physicians did not provide accounting information as required by the recruitment agreement and the medical center initiated an arbitration proceeding. The physicians challenged the arbitration award, arguing that the arbitrator was biased and that the award was obtained by fraud because the arbitrator failed to disclose her relationship with the medical center’s attorneys.

The court found no evidence that the arbitrator was partial to the medical center, nor was there evidence that the arbitrator acted immorally, illegally, or in bad faith. Additionally, the arbitrator had disclosed her relationship with the medical center’s attorneys. The physicians did not ask additional questions about the relationship before accepting her and they also did not object to her appointment when they were given the opportunity to do so.

 

Larson v. Wasemiller

MALPRACTICE – CORPORATE NEGLIGENCE

Larson v. Wasemiller,
No. A05-1701 (Minn. Ct. App. July 25, 2006)

The Court of Appeals of Minnesota,
in answering two certified questions from the state trial court, held that
Minnesota common law does not recognize a cause of action for negligent credentialing
or privileging of a physician against a hospital. The certified questions arose
from a malpractice suit against a surgeon, in which a patient alleged injury
resulting from a gastric bypass procedure. The patient also sought to extend
liability to the hospital for negligent credentialing of the surgeon, arguing
that the granting of privileges to the physician was unreasonable due to a
history of malpractice and educational deficiencies. Initially, the trial court
decided to recognize a cause of action for negligent credentialing despite
the lack of appellate precedent on the issue, but then opted for interlocutory
review of the issue due to its "important and doubtful" nature.
The appellate court acknowledged its authority to recognize a new cause of
action, but chose not to exercise its discretion in this case. The court identified
several unanswered issues surrounding a cause of action for negligent credentialing,
including whether the cause of action is dependent on a prior determination
of liability of the physician or whether suits for negligent credentialing
and malpractice should be tried together. The court also pointed out the difficulties
hospitals would face in defending claims of negligent credentialing, because
state law limits disclosure or discovery of peer review information. For these
reasons, the court of appeals ruled that the state supreme court or legislature
is better suited to weigh these policy concerns and establish a cause of action
for negligent credentialing.

 

 

Law v. Greenwich Hospital

Law v. Greenwich Hospital,
Nos. Civ.3:96CV2147AHN, Civ.3:96CV2148AHN (D. Conn. July 26, 2000)

The son of a patient brought
a fraud and medical malpractice action against a hospital and several physicians
after his mother was removed from a mechanical ventilator and shortly thereafter
died. The son asserted that his mother was not determined to be brain dead,
that the hospital had a set protocol for determining brain death, that there
is a common law duty that prevents removal of life support from a patient not
determined to be brain dead, and that the hospital breached the duty by removing
his mother from life support without making a determination as set forth in
the hospital protocol. The United States District Court for Connecticut denied
the son’s motion for summary judgment, reasoning that there was no expert testimony
establishing that removal of life support was the proximate cause of the patient’s
death, and experts for both the son and the defendants established that she
would not have survived an initial cardiorespiratory arrest had she not been
placed on the mechanical ventilator. In addition, the court granted summary
judgment to the physicians and the hospital, reasoning that there was no evidence
to support a malpractice claim, there was no evidence to show misrepresentation
or that actions or inactions by the physicians were the proximate cause of the
patient’s death, and, even though the hospital had a policy, the hospital was
not legally obligated to guarantee the policy was followed.

Lane v. Anderson

MEDICAL
MALPRACTICE – BATTERY

Lane v. Anderson,
No. 03-03-0030 (Ill. App. Ct. Jan. 9, 2004)

The Appellate Court of Illinois affirmed summary judgment
in favor of a surgeon and a fifth-year resident on multiple claims brought by
a patient in a medical malpractice action. The court dismissed the patient’s
medical battery claim, finding that the patient consented to the physician and
resident performing the surgery. The court looked to the operative and pathology
reports and the fact that the surgical actions of the resident were subject
to the approval of the surgeon as evidence that the surgeon, not the resident,
served as the operating surgeon in compliance with the consent form. In doing
so, the court rejected the patient’s argument that the resident’s level of participation
in the surgery was greater than the patient had consented to on the hospital’s
consent form. The court also dismissed the patient’s claim that the surgeon
fraudulently concealed that the resident acted as the operating surgeon.

Lawnwood Med. Ctr. v. Sadow (Summary)

EXCLUSIVE CONTRACT

Lawnwood Med. Ctr. v. Sadow, No. 4D08-1968 (Fla. Dist. Ct. App. Mar. 24, 2010)

The Florida District Court of Appeal affirmed a trial court’s decision that a physician’s breach of contract claims were not barred by the state statutory immunity provisions and that the jury-awarded punitive damages of $5 million were not excessive.

A cardiovascular surgeon brought a breach of contract claim against a hospital because its Board of Trustees (Board) repeatedly rejected his application for cardiovascular surgery (CVS) privileges after having received a favorable recommendation from the Credentials Committee and the Medical Executive Committee (MEC). The Board also adopted a resolution, decidedly against the surgeon, which barred further applications from current staff members. Subsequently, the then CEO attended an MEC meeting to persuade the committee to reject the surgeon’s application in accordance with the Board’s resolution.

The hospital asserted a claim of immunity pursuant to § 395.0191, which lays down the general rules for hospitals in setting up procedures and standards for staff membership and clinical privileges. The court affirmed the trial judge’s ruling that the surgeon’s contract claim was not barred by the statutory immunity provision on the basis that "the physician did not rely on a violation of the statute, but instead alleged and proved that, contrary to its own Medical Staff Bylaws, the hospital invalidly granted an outside surgeon exclusive cardiovascular surgical privileges, and used it to stop him from performing cardiovascular surgery." Specifically, the surgeon proved that "the Medical Staff Bylaws, which had been approved by the Board, did not authorize exclusivity in CVS." The surgeon also proved that the hospital’s refusal to accept the MEC’s recommendation was not supported by "a valid reason under the circumstances" and that this ultimately culminated in a breach of contract.

In conjunction with the breach of contract claim, the surgeon also successfully brought a slander per se claim in which a jury awarded him $5 million in punitive damages. The court ruled that "the amount of punitive damages assessed conformed to applicable law and were neither excessive nor arbitrary, and thus did not exceed federal Constitutional norms."

 

Larson v. Wasemiller

Negligent Credentialing

Larson v. Wasemiller, Nos. A05-1698, A05-1701 (Minn. Aug. 16, 2007)

The Supreme Court of Minnesota reversed a court of appeals decision and held that a claim of negligent credentialing does exist in Minnesota.

A patient claimed that a hospital was negligent in credentialing a physician who performed a gastric bypass surgery on her which resulted in complications and a second surgery. In ruling that a claim of negligent credentialing does exist in Minnesota, the court first determined that Minnesota’s peer review statute does not negate or abrogate such a cause of action. Even though the confidentiality provision of the peer review statute makes the proof of negligent credentialing claim more complicated, it does not preclude such a claim. The court also indicated that the liability provisions of the peer review statute do not materially alter the common law standard of care. The court then concluded that the tort of negligent credentialing is inherent in and the natural extension of well-established common law rights, as well as recognized as a common law tort by a substantial majority of other common law states. Lastly, the court found that the policy considerations of the tort of negligent credentialing outweigh the policy considerations reflected in the peer review statute because the latter policy considerations are adequately addressed by the preclusion of access to the confidential peer review materials. Accordingly, the decision of the court of appeals was reversed and remanded.

 

Law v. Zuckerman

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division

Plaintiff,

v.

ROSALYNN LAW,

)
)
)
)
) Civil Action No. CBD-01-1429
)
)
)
)
)
)
.
_______________________________________)

DAVID J. ZUCKERMAN, M.D.,

Defendant.

MEMORANDUM OPINION DENYING PLAINTIFF’S ORAL
MOTION TO PRECLUDE DEFENSE COUNSEL FROM CONDUCTING EX PARTE
INTERVIEWS WITH PLAINTIFF’S TREATING PHYSICIAN

The Court is faced with an apparent issue of first impression in the Fourth Circuit in this medical

malpractice action. The question presented is whether adverse counsel’s ex parte discussions with a

treating physician regarding the scope of the physician’s care violates the Health Insurance and

Portability Accountability Act of 1996, 42 U.S.C. 1320d et seq. (“HIPAA”). The Court finds that in

the absence of strict compliance with HIPAA such discussions are prohibited.

Plaintiff Rosalynn Law (“Plaintiff”), brought this medical malpractice action against Defendant

David J. Zuckerman, M.D., (“Defendant”). Jurisdiction is based on diversity of citizenship, and

therefore Maryland substantive law must be applied where it does not conflict with controlling federal

law. This Court heard arguments on January 7, 2004 and January 8, 2004 pursuant to Plaintiff’s oral

motion to prohibit defense counsel from conducting ex parte interviews with Plaintiff’s treating

physician. (“Plaintiff’s Motion”). After review of the relevant statutes and case law, the Court denied

Plaintiff’s Motion. The Court now supplements and further articulates its opinion.

There are two questions before the Court raised by Plaintiff’s Motion. The first was whether

Defendant’s ex parte pre-trial contacts with Plaintiff’s treating physician, Dr. Thomas Pinckert, were a

violation of HIPAA. Second, if those contacts were a violation of HIPAA, whether the remedy was to

preclude Defendant from having other ex parte communications with Dr. Pinckert. This Court finds

that a violation of HIPAA did occur but the remedy requested is not appropriate.

A jury trial commenced in this case on January 6, 2004. Plaintiff alleged that the surgical

treatment she received from Defendant rendered her cervix incompetent. Defendant performed a laser

ablation procedure to remove dysplasia, or abnormal cells, from Plaintiff’s cervix. Plaintiff’s claim of

malpractice is that during the procedure Defendant used laser power settings which caused collateral

damage to her cervical tissue. Thereafter, Plaintiff became pregnant and increasingly concerned about

her ability to carry a child. Plaintiff sought medical advice as to how best to carry the child to term.

One treatment alternative available to Plaintiff was the placement of a cervical cerclage. Simply stated,

the cerclage is a method of placing sutures on the cervical tissue so as to minimize the dilation of the

cervical opening during the course of pregnancy. Among Plaintiff’s alleged damages were the costs and

injuries associated with the placement of a permanent cerclage by Dr. Pinckert.

At the end of the second day of trial, Plaintiff raised an objection to ex parte communications

that may have occurred between Dr. Thomas Pinckert and Defendant’s counsel. Dr. Pinckert had long

before been identified as one of Defendant’s fact witnesses in the Pre-trial Statement prepared by the

parties and approved by the Court. Dr. Pinckert was called to testify as Defendant’s first fact witness

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and to explain that Plaintiff’s alleged damages due to the placement of the cerclage were the result of an

elective surgical procedure and not a procedure compelled by the alleged negligent care of Defendant.

Defendant’s counsel met with Dr. Pinckert after Plaintiff provided her medical records to Defendant as

part of discovery. Plaintiff was never notified in advance that Defendant’s counsel would pursue ex

parte communications with her treating physician. Plaintiff asserts that any attempt by the defense to

have such communications is a violation of HIPAA.

Plaintiff’s sole request is for the issuance of an order precluding Dr. Pinckert from discussing

Plaintiff’s treatment and care with defense counsel or, in the alternative, to order Defendant to disclose

all communications held with Dr. Pinckert and the details of Dr. Pinckert’s expected testimony at trial.

Transcript of Motions Hearing (“Trancript”) January 7, 2004, at 4-5. Defendant’s counsel stated that

ex parte communications outside the four corners of Dr. Pinckert’s medical records regarding Plaintiff

had not taken place, and that it was not the intention of the defense to do so at any time. Transcript,

January 7, 2004, at 4-5; Transcript, January 8, 2004, at 6-7.

The Court initially disagreed with Plaintiff as to the application of HIPAA. The Court then

issued an order permitting both sides to have ex parte communications with Dr. Pinckert regarding his

care and treatment for purposes of the present case before he testified as a fact witness. Upon further

reflection, the Court believes Plaintiff correctly discerned the applicability of HIPAA, but the remedy

remains unchanged.

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Discussion

A. The ex parte contacts between Defendant and Dr. Pinckert are governed by
HIPAA not Maryland law.

Maryland law does not prohibit ex parte communications “between a lawyer and the treating

physician of an adverse party who has placed her medical condition at issue.” Butler-Tulio v.

Scroggins, 139 Md. App. 122, 150 (2001). Nor does HIPAA prohibit all ex parte communications

with a treating physician for an adverse party. Mere contact between Plaintiff’s physician and

Defendant’s counsel is not regulated by HIPAA. Such contact could include discussion of many benign

topics, including but not limited to, the best methods for service of a subpoena, determining convenient

dates to provide trial testimony, or the most convenient location for the anticipated deposition of the

physician. However, HIPAA clearly regulates the methods by which a physician may release a

patient’s health information, including “oral” medical records. “The HIPAA regulations permit

discovery of protected health information so long as a court order or agreement of the parties prohibits

disclosure of the information outside the litigation and requires the return of the information once the

proceedings are concluded.” Helping Hand, LLC v. Baltimore County, 2003 WL 22966126 (D.

Md. 2003).

HIPAA and the standards promulgated by the Secretary of Health and Human Services

(“Secretary”) in the Code of Federal Regulations set forth the baseline for the release of health

information. A patient’s health information may be disclosed pursuant to 45 C.F.R. § 164.512(e)(1)(i),

which states that disclosure is permitted “in response to an order of a court . . . provided that the

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covered entity discloses only the protected health information expressly authorized by such order.”

Health information includes

any information, whether oral or recorded in any form or medium, that:
(1) is created or received by a health care provider . . . ; and (2) relates
to the past, present or future physical or mental health or condition of
an individual; the provision of health care to an individual; or the past,
present or future payment for the provision of health care to an
individual.

45 C.F.R. § 160.103. A trial or deposition subpoena is appropriately treated differently from an order

of the Court. When medical information is to be released in response to a subpoena or discovery

request, the health care provider must receive satisfactory assurance that: (1) there have been good

faith attempts to notify the subject of the protected health information in writing of the request and that

subject has been given the opportunity to object; or (2) reasonable efforts have been made by the

requesting party to obtain a qualified protective order. 45 C.F.R. § 164.512(e)(1)(ii)(A) and (B).

HIPAA and the related provisions established in the Code of Federal Regulations expressly

supercede any contrary provisions of state law except as provided in 42 U.S.C. § 1320d-7(a)(2).

Under the relevant exception, HIPAA and its standards do not preempt state law if the state law relates

to the privacy of individually identifiable health information and is “more stringent” than HIPAA’s

requirements. 42 U.S.C. § 1320d-7(a)(2)(B)(referring back to the Historical and Statutory notes to 42

U.S.C § 1320d-2); 45 C.F.R. § 160.203.

Defendant’s counsel has argued that the Maryland Confidentiality of Medical Records Act,

MD. CODE ANN. HEALTH-GEN. I § 4-306(b)(3), (“MCMRA”), governs this case and not HIPAA

because MCMRA’s rule governing disclosure is mandatory and therefore more restrictive than

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HIPAA’s permissive rule governing disclosure. Transcript, January 7, 2004, at 2-3. Section 4-

306(b)(3) states

(b) Permitted disclosures. – A health care provider shall disclose a
medical record without the authorization of a person in interest:
. . .
(3) To a health care provider or the provider’s insurer or legal counsel,
all information in a medical record relating to a patient or recipient’s
health, health care, or treatment which forms the basis for the issues of
a claim in a civil action initiated by the patient, recipient, or person in
interest.

MCMRA is applicable to cases where the patient has sued her health care provider alleging medical

malpractice. MCMRA states that in such an instance, a health care provider shall disclose patient

records without authorization from the patient. Conversely, HIPAA states that a health care provider

may disclose patient records after using certain procedures. For the reasons set forth below, the Court

does not agree that MCMRA is “more stringent” than HIPAA’s requirements. Accordingly, HIPAA

preempts MCMRA and is controlling on the issue of ex parte communications. This Court expressly

refrains from opining upon the validity of MCMRA as it relates to the initial disclosure of medical

records under § 4-306(b)(3).

Under 45 C.F.R. § 160.203, a state law that is contrary to “a standard, requirement, or

implementation specification adopted under this subchapter” is preempted unless it meets one of a small

list of exceptions. The only exception relevant here is found in 45 C.F.R. § 160.203(b) which states

that a state law is not preempted if it is “more stringent” than a standard, requirement or implementation

specification adopted under HIPAA. “More stringent,” as defined in 45 C.F.R. § 160.202, means, that

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the state law meets any one of six criteria. The criteria applicable to this case are the fourth and the

sixth listed under the “more stringent” definition.

(4) With respect to the form, substance, or the need for express legal
permission from an individual, who is the subject of the individually
identifiable health information, provides requirements that narrow the
scope of duration, increase the privacy protections afforded (such as by
expanding the criteria for), or reduce the coercive effect of the
circumstances surrounding the express legal permission, as applicable.

. . .

(6) With respect to any other matter, provides greater privacy
protection for the individual who is the subject of the individually
identifiable health information.

Id. In light of the criteria listed above, the Court views “more stringent” to mean laws that afford

patients more control over their medical records. This Court’s analysis is confirmed by a review of the

case law from other jurisdictions.

Most recently, this issue was addressed in National Abortion Fed’n v. Northwestern Mem’l

Hosp., 2004 WL 292079 (N.D. Ill. 2004), in the context of a motion to quash a subpoena brought by

Northwestern Memorial Hospital (the “Hospital”). In granting the Hospital’s motion to quash, the

Court addressed the question of whether the Illinois medical information privacy laws are more stringent

than HIPAA’s requirements. Id. at *2. The Illinois law prohibits the disclosure by a health care

provider of “any information he or she may have acquired in attending any patient in a professional

character, necessary to enable him or her professionally to serve the patient,” without patient consent,

even in response to a subpoena. The Illinois courts have held that the protections of this law apply even

if the patients’ names and identification numbers are deleted or redacted from their medical records.

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Id. at *3. Conversely, HIPAA would allow such disclosures with the suggested redactions.

Juxtaposing the two statutes, the Court found that “Illinois law concerning when nonparty patient

medical records may be disclosed by hospitals” without patient consent is “more stringent” than HIPAA

and thus, state law was not preempted. Id.

In United States v. Louisiana Clinic, 2002 WL 31819130 (E.D. La. 2002), defendants

argued that Louisiana law concerning unauthorized disclosure of confidential medical information should

apply because it was “more stringent” than HIPAA. Louisiana law requires either that a patient give his

or her consent to the disclosure, or in the absence of consent, that “a court shall issue an order for the

production and disclosure of a patient’s records . . . only: after a contradictory hearing with the patient .

. . and after a finding by the court that the release of the requested information is proper.” Id. at *5

(citing LA . REV. STAT. ANN. § 13:3715.1(B)(5)). However, the Court noted that the Louisiana law

did not address “the form, substance or the need for express legal permission from an individual,” which

is “required by 45 C.F.R. § 160.202 for the exception to apply.” The Court stated that instead of

increasing the restrictions on express legal permission “the Louisiana statute provides a way of negating

the need for such permission.” Id. The Court found that the Louisiana law was not “more stringent”

than the HIPAA regulations and it was therefore preempted by federal law.

Finally, the New Jersey Superior Court addressed this issue in an unpublished opinion decided

September 23, 2003. In re PPA Litigation, 2003 WL 22203734 (N.J. Super. L. 2003). Under

New Jersey case law, ex parte interviews are a legitimate means of informal discovery. Id. at *13.

However, because the New Jersey safeguards for disclosure fall below the HIPAA standards for

disclosure, HIPAA preempts New Jersey law in that regard. Id. The New Jersey safeguards provide

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Plaintiff’s counsel with notice of the proposed interview, provide the physician with a description of the

anticipated scope of the interview, and communicate that the physician’s participation in the interview is

voluntary. Id. at *2. Under state law, the patient can not prevent disclosure of the medical information.

The New Jersey Superior Court found these safeguards to be insufficient under HIPAA and found that

a reasonable notice provision and an opportunity for the patient to object would bring New Jersey into

compliance.

Congress enacted HIPAA, in part, to protect the security and privacy of individually identifiable

health information. 45 C.F.R. § 164.501 et seq; United States v. Sutherland, 143 F. Supp. 2d. 609,

612 (W.D. Va. 2001). The rules promulgated by the Secretary define and restrict the ability of health

care providers to divulge patient medical records without express consent of the patient or pursuant to

a court order. Id. It is clear there is strong federal policy in favor of protecting the privacy of patient

medical records.

The key component in analyzing HIPAA’s “more stringent” requirement is the ability of the

patient to withhold permission and to effectively block disclosure. HIPAA’s permissive disclosure

requirements give each patient more control over the dissemination of their medical records than

MCMRA, while MCMRA sacrifices the patient’s control of their private health information in order to

expedite malpractice litigation. If state law can force disclosure without a court order, or the patient’s

consent, it is not “more stringent” than the HIPAA regulations. MCMRA is designed to give adverse

counsel access to a patient’s medical records without consent.1 Since Maryland law fails to satisfy the

1 Under MCMRA, it can be plausibly argued that patient consent is inferred by the filing of suit by
Plaintiffs. This Court does not believe inferred consent satisfies the intended purpose of HIPAA.

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“more stringent” standard, federal law is controlling and all ex parte communications must be

conducted in accordance with the procedures set forth in HIPAA.

B. Informal discovery of protected health information is now prohibited unless the
patient consents.

The recently enacted HIPAA statute has radically changed the landscape of how litigators can

conduct informal discovery in cases involving medical treatment. In times past, given Maryland’s

reluctance to embrace the physician-patient privilege, ex parte contacts with an adversary’s treating

physician may have been a valuable tool in the arsenal of savvy counsel. The element of surprise could

lead to case altering, if not case dispositive results. Ngo v. Standard Tools & Equipment, Co., Inc.,

197 F.R.D. 263 (D. Md. 2000)(defendant was free to converse with and use Plaintiff’s treating

physician as a witness contrary to Plaintiff’s wishes). Counsel should now be far more cautious in their

contacts with medical fact witnesses when compared to other fact witnesses to ensure that they do not

run afoul of HIPAA’s regulatory scheme. Wise counsel must now treat medical witnesses similar to the

high ranking corporate employee of an adverse party. See Camden v. Maryland, 910 F. Supp. 1115

(D. Md. 1996)(holding that counsel may not have ex parte contact with the former employee of an

adverse party when the lawyer knows or should know that the former employee has been extensively

exposed to confidential client information); Accord Zachair, Ltd. v. Driggs, 965 F. Supp. 741 (D.

Md. 1997); But see Davidson Supply Co., Inc. v. P.P.E., Inc., 986 F. Supp. 956 (D. Md. 1997).

HIPAA outlines the steps to follow in order to obtain protected health information during a

judicial proceeding in 45 C.F.R. § 164.512(e). There are three ways. First, counsel may obtain a

court order which allows the health care provider to disclose “only the protected health information

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expressly authorized by such order.” 45 C.F.R. § 164.512(e)(1)(i). In the absence of a court order,

§§164.512(e)(1)(ii)(A) and (B) provide two additional methods available when used in conjunction

with more traditional means of discovery.

C. The imposition of sanctions is not appropriate.

To the extent there was a disclosure of individually identifiable health information, Defendant’s

pretrial contacts with Dr. Pinckert were in violation of HIPAA. However, the remedy sought by

Plaintiff precluding Defendant’s counsel from speaking further with Dr. Pinckert about Plaintiff’s

treatment is not appropriate here.

The civil remedies for failure to comply with the requirements and standards of HIPAA are

found under 42 U.S.C. § 1320d-5. The Secretary shall fine any person who violates a provision of

HIPAA “not more than $100 for each such violation.” 42 U.S.C. § 1320d-5(a)(1). However, this

penalty may not be imposed if either (1) “the person liable for the penalty did not know, and by

exercising reasonable diligence would not have known, that such person violated the provision;” or (2)

“the failure to comply was due to reasonable cause and not willful neglect” and “the failure to comply is

corrected during the 30-day period beginning on the first date the person is liable for the penalty knew,

or by exercising reasonable care would have known, that the failure to comply occurred.” 42 U.S.C. §

1320d-5(b)(2) and (3). Since HIPAA does not include any reference to how a court should treat such

a violation during discovery or at trial, the type of remedy to be applied is within the discretion of the

Court under FED. R. CIV. P. 37.

In this case, this Court’s discretion is guided by the fact that the penalty that could be levied by

the Secretary as described above is mild and that in all likelihood the defense would be able to afford

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itself of the aforementioned statutory defenses. All counsel were knowledgeable and extremely skilled

in addressing the issues presented in this less than clear area of the law.2

Defendant’s counsel believed in good faith that MCMRA fell into the “required by law”3

exception to HIPAA. Transcript January 7, 2004, 2-3. It does not. The exception is found under 45

C.F.R. § 164.512 and sets forth additional requirements that must be satisfied before the Maryland

statute can be accepted under the rubric of “required by law.”

Under 45 C.F.R. § 164.512(a)(1), a doctor or other covered entity “may use or disclose

protected health information to the extent that such use or disclosure is required by law and the use or

disclosure complies with and is limited to the relevant requirements of such law.” Defendant reasoned

that because MCMRA mandates that patient records are discoverable without authorization or notice

to the patient, its ex parte communications with Dr. Pinckert fell into this exception. However, a closer

reading of the statute reveals that a doctor or other covered entity “must meet the requirements

described in paragraph (c)(e), or (f)” of § 164.512 when they are “required by law” to disclose

protected health information. 45 C.F.R § 164.512(a)(2).

2 Parenthetically, counsel for both parties repeatedly demonstrated the high ideal of civility in their
dealings with the Court and each other throughout these proceedings. All counsel aggressively
represented their clients, while being courteous litigants. See THE CODE OF CIVILITY OF THE BAR
ASS’N OF MONTGOMERY COUNTY, MARYLAND (2003); MARYLAND STATE BAR ASS’N CODE OF
CIVILITY (1997).

3 “Required by law means a mandate contained in law that compels an entity to make a use or
disclosure of protected health information and that is enforceable in a court of law. Required by law
includes, but is not limited to, . . . statutes or regulations that require such information[.]” 45 C.F.R. §
164.103.

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Paragraph (e) of § 164.512, “disclosures for judicial and administrative proceedings,” applies

to medical information disclosed during discovery. This section anticipates that a patient’s records can

only be disclosed in response to a court order, or, if in the case of a subpoena or discovery request,

when accompanied by satisfactory assurance that (1) written notice has been given to the patient

allowing an opportunity to object; or (2) a qualified protective order has been sought by the requesting

party. 45 C.F.R. § 164.512(e) et seq. It therefore follows that while a physician may disclose a

patient’s records in accordance with MCMRA’s mandate, he or she must do so using the procedures

set forth in HIPAA.

Notwithstanding the Court’s disagreement with Defendant’s counsel’s analysis, it is clear that

he exercised more than reasonable diligence when determining that his contacts with Dr. Pinckert did

not violate HIPAA. On January 8, 2004, the Court did not find at the time that HIPAA applied in the

instant case. Transcript, January 8, 2004 at 5-6. However, in the event that Defendant’s contact with

Dr. Pinckert triggered a HIPAA violation, the Court ordered that either party could speak with Dr.

Pinckert before he testified about the issues set forth in Plaintiff’s medical records. The Court also

stated that if Dr. Pinckert strayed in his testimony from the medical records and offered any opinions

beyond his experience as Plaintiff’s treating physician such testimony would be prohibited. While the

Court finds upon further review that HIPAA was applicable to any pre-trial disclosure of Plaintiff’s

medical information, it is also apparent that the Court’s Order effectively remedied any potential

violation.

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IV. Conclusion

Therefore, for the reasons stated above, Plaintiff’s Motion to preclude Dr. Pinckert from

discussing the Plaintiff’s treatment with defense counsel is denied.

/s/
Charles B. Day
United States Magistrate Judge
February 27, 2004

CBD:akl

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