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SPECIALTY LAW - August, 2005 Health Care

Cases summarized in the August, 2005 issue of
Specialty Law Digest: Health Care.

GENERAL INDEX


ad valorem taxes -- Section 11-58-14 required that all property owned by medical clinic board be exempt from assessment of ad valorem taxes. Underwood v. Medical Clinic Bd. for City of Montgomery (Ala. 2004), No. 1031160

affidavits of merit -- expert report required for claims that medical defendant had denied appropriate custodial or palliative care to premature newborn infant. Smalling v. Gardner (Tex.App. 2005), No.14-03-01079-CV

-- malpractice plaintiff's writ for petition of mandamus would be granted, since trial court manifestly abused its discretion in granting defendant's motion to dismiss. Borger v. Eighth Judicial Dist. Court of State of Nevada (Nev. 2004), No. No. 42128

-- trial court improperly dismissed claims arising from patient's suicide because expert misstated whether he had ever been disqualified as presuit expert. DeCristo v. Columbia Hosp. Palm Beaches, Ltd. (Fla.App. 2005), 896 So.2d 909

anesthesiologists -- anesthesiologist was not qualified as expert with respect to care and treatment of psychiatric patient who hung herself. Dodd v. Sparks Regional Med. Ctr. (Ark.App. 2005), No. CA 04-729

appeals -- appellate court improperly extend deadline for filing notice of appeal. Wilkins v. Methodist Health Care System (Tex. 2005), No.03-0750

arbitration -- arbitration agreement was not applicable to treatment occurring two years after agreement was signed where there was no ongoing doctor-patient relationship. Reigelsperger v. Siller (Cal.App. 2005), 23 Cal.Rptr.3d 249

-- arbitration was not required by consulting contract with respect to claims asserted by former nursing home resident's estate where resident never signed contract. Extendicare Health Svcs., Inc. v. Estate of Patterson (Fla.App. 2005), 898 So.2d 989

assault -- claims arising from sexual assault during medical examination were not subject to medical malpractice statute. Burke v. Snyder (Fla.App. 2005), No. 4D02-2838

causation -- expert's theory of causation of infant's cerebral artery infarct was not generally accepted in medical community. Del Maestro v. Grecco (N.Y.App.Div. 2005), No.2003-06807

-- neurologist's testimony on cause of infant's brain damage constituted "pure opinion testimony based upon clinical experience," which was not subject to Frye analysis. Gelsthorpe v. Weinstein (Fla.App. 2005), 897 So.2d 504

child abuse -- physician who performed medical examination of child at request of department of children and families to determine whether reasonable cause exists to suspect child abuse, was entitled to immunity. Manifold v. Ragaglia (Conn. 2004), No. SC 17150

chiropractors -- arbitration agreement was not applicable to treatment occurring two years after agreement was signed where there was no ongoing doctor-patient relationship. Reigelsperger v. Siller (Cal.App. 2005), 23 Cal.Rptr.3d 249

civil rights -- physician's civil rights claims were not barred by peer review statute or doctrine that staffing decisions of private hospitals were not subject to judicial review. Feyz v. Mercy Mem. Hosp. (Mich.App. 2005), 264 Mich.App. 699

collateral source rule -- plaintiff was entitled to special damages award for medical expenses that were "contractually adjusted" or "written-off" by hospital, pursuant to Medicare. Cook v. Jefferson Parish Hosp. Svc. Dist. No. 2 (La.App. 2005), No. 04-CA-17

consortium -- loss of consortium claims by patient's children were improperly dismissal where medical defendants never objected. Garcia v. O'Rourke (Ohio App. 2005), No. 2005 -Ohio- 1034

corporations -- parent corporation was not liable death of resident which allegedly occurred because of under staffing of nursing home. Sunbridge Healthcare Corp. v. Penny (Tex.App. 2005), No.06-03-00124-CV

crimes -- bail condition prohibiting physician from practicing medicine violated physician's due process rights. Gray v. Superior Court of Napa County (Cal.App. 2005), No. A107367

damages -- even when attorney fees were taken into account, insureds were $71,670 short of threshold for federal jurisdiction for their punitive damages claim against health insurer. Munro v. Golden Rule Ins. Co. (C.A. 7, Wis. 2004), No. 04-1396

-- hospital was not required to pay first $250,000 to meet bankrupt physician's minimum financial responsibility requirement for enjoying staff privileges. North Miami Medical Center, Ltd. v. Miller (Fla.App. 2005), 896 So.2d 886

-- plaintiff was entitled to special damages award for medical expenses that were "contractually adjusted" or "written-off" by hospital, pursuant to Medicare. Cook v. Jefferson Parish Hosp. Svc. Dist. No. 2 (La.App. 2005), No. 04-CA-17

dentists -- doctrine of res ipsa loquitur was not applicable to claim by dental patient whose jaw had been fractured during extraction of wisdom tooth. Howie v. Walsh (N.C.App. 2005), 609 S.E.2d 249

discipline -- consent agreement was not binding until signed -- mandamus was not available to compel OPMC to sign draft consent agreement. Anonymous v. Commissioner of Health (N.Y.Tr.T. 2005), No.101238/05

-- physician violated legislatively mandated confidentiality of peer-review records by attaching them to his complaint. Ex parte Gadsden Reg. Med. Ctr. (Ala. 2004), No. 1030911

-- preponderance of evidence standard adequately protected nursing assistant's due process rights after his license was suspended for abusing patient. Ongom v. State, Dept. of Health, Office of Prof. Standards (Wash.App. 2005), No. 52688-0-I

-- Tennessee Board of Examiners in Psychology properly placed psychologist's license on probation for two years. Wright v. Tennessee Bd. of Exam'rs in Psychology (Tenn.App. 2004), No. M2003-01654-COA-R3-CV

discovery -- trial court improvidently exercised its discretion in striking medical malpractice complaint for failure to comply with discovery requests. Lombardo v. St. Francis Hosp. Rehab. Svcs. (N.Y.App.Div. 2005), No.2004-03851

experts -- anesthesiologist was not qualified as expert with respect to care and treatment of psychiatric patient who hung herself. Dodd v. Sparks Regional Med. Ctr. (Ark.App. 2005), No. CA 04-729

-- expert not permitted to testify that facial injections of liquid silicone over long period of time, administered to plaintiff as acne treatment, could have been cause systemic disease that expert called "silicon toxicity." Pauling v. Orentreich Med. Group (N.Y.App.Div. 2005), No. 5057

-- expert report required for claims that medical defendant had denied appropriate custodial or palliative care to premature newborn infant. Smalling v. Gardner (Tex.App. 2005), No.14-03-01079-CV

-- malpractice plaintiff's writ for petition of mandamus would be granted, since trial court manifestly abused its discretion in granting defendant's motion to dismiss. Borger v. Eighth Judicial Dist. Court of State of Nevada (Nev. 2004), No. No. 42128

-- neurologist's testimony on cause of infant's brain damages constituted "pure opinion testimony based upon clinical experience," which was not subject to Frye analysis. Gelsthorpe v. Weinstein (Fla.App. 2005), 897 So.2d 504

-- trial court improperly dismissed claims arising from patient's suicide because expert misstated whether he had ever been disqualified as presuit expert. DeCristo v. Columbia Hosp. Palm Beaches, Ltd. (Fla.App. 2005), 896 So.2d 909

guardianship -- probate court exceeded its statutory authority when it appointed guardian with power to authorize withdrawal of all life-sustaining support and treatment for infant. In re Guardianship of Stein (Ohio 2004), 105 Ohio St.3d 30

hospital liens -- hospital's recovery was not limited to amount paid to injured party/patient by insurer but hospital was entitled to recover reasonable cost of its care, treatment, and maintenance of injured party/patient. University of South Alabama v. Progressive Ins. Co. (Ala. 2004), No. 1030955

hospitals -- action was untimely where it accrued on December 1, 2000, when defendants physician and hospital allegedly failed to diagnose stroke. Tobiassen v. Sawyer (Ala. 2004), No. 1030044

-- anesthesiologist was not qualified as expert with respect to care and treatment of psychiatric patient who hung herself. Dodd v. Sparks Regional Med. Ctr. (Ark.App. 2005), No. CA 04-729

-- Anti-SLAPP statute was applicable to physician's claim that his staff privileges had been improperly suspended. Kibler v. Northern Inyo County Local Hosp. Dist. (Cal.App. 2005), No. E035085

-- expert report required for claims that medical defendant had denied appropriate custodial or palliative care to premature newborn infant. Smalling v. Gardner (Tex.App. 2005), No.14-03-01079-CV

-- hospital could be liable for it's on-call surgeon's refusal to treat HIV patient. Fiske v. U.S. Health Corp. of Southern Ohio (Ohio App. 2005), No. 2005 -Ohio- 1295

-- hospital properly established integrated and unified cancer-care center -- board did not breach medical-staff bylaws. Radiation Therapy Oncology, P. C. v. Providence (Ala. 2005), No. 1022099

-- hospital was not required to pay first $250,000 to meet bankrupt physician's minimum financial responsibility requirement for enjoying staff privileges. North Miami Medical Center, Ltd. v. Miller (Fla.App. 2005), 896 So.2d 886

-- hospitals failed to exhaust administrative remedies before bringing breach of contract claim against Medicare insurer -- claim dismissed for lack of subject matter jurisdiction. Christus Health Gulf Coast v. Aetna, Inc. (Tex.App. 2004), No. 14-03-01281-CV

-- physician violated legislatively mandated confidentiality of peer-review records by attaching them to his complaint. Ex parte Gadsden Reg. Med. Ctr. (Ala. 2004), No. 1030911

-- physician's civil rights claims were not barred by peer review statute or doctrine that staffing decisions of private hospitals were not subject to judicial review. Feyz v. Mercy Mem. Hosp. (Mich.App. 2005), 264 Mich.App. 699

-- record contained ample evidence of existence of standing order that required nursing staff to administer preoperative antibiotics to patients being treated by operating group. Lloyd Noland Hosp. v. Durham (Ala. 2005), No. 1030422

-- sufficient evidence supported finding that medical center had departed from accepted medical and nursing practice in administration of intra-muscular injection. Crockett v. Long Beach Med. Ctr. (N.Y.App.Div. 2005), No. 2003-04715

-- worker's compensation law did not bar nurse's action against hospital for malpractice in treating her viral infection. Manswell v. St. Luke's Hosp. (N.Y.App.Div. 2005), 792 N.Y.S.2d 389

immunity -- physician who performed medical examination of child at request of department of children and families to determine whether reasonable cause exists to suspect child abuse, was entitled to immunity. Manifold v. Ragaglia (Conn. 2004), No. SC 17150

insanity acquittees -- court properly found that insanity acquittee should not be discharged where there was no mechanism to insure that he would continue to take his medication. State v. Corr (Conn.App. 2005), 867 A.2d 124

insurance -- even when attorney fees were taken into account, insureds were $71,670 short of threshold for federal jurisdiction for their punitive damages claim against health insurer. Munro v. Golden Rule Ins. Co. (C.A. 7, Wis. 2004), No. 04-1396

-- FEHBA did not contain affirmative grant of authority to federal courts to make federal common law -- federal court properly dismissed insurer's claim for lack of jurisdiction. Empire HealthChoice Assur., Inc. v. McVeigh (C.A. 2, N.Y. 2005), No. 03-9098

internists -- failure to internist to show that he had subjective "good faith" belief that he was responding to emergency did not preclude application of "Good Samaritan" statutes. Reynoso v. Newman (Cal.App. 2005), No. D043271

judges -- in action for injunctive relief requesting continuation of life-sustaining treatment, judge failed to follow proper procedure with respect to motion for recusal. Hudson v. Texas Children's Hosp. (Tex.App. 2005), No. 01-05-00143-CV

juries -- trial court did not err by precluding medical malpractice plaintiffs from referencing liability insurance in their voir dire of jury. Cenal v. Ragunton (Haw.App. 2004), No. 25761

-- trial court properly refused to strike for cause veniremember who was insurance adjuster. Cortez ex rel Estate of Puentes v. HCCI-Sanantonio, Inc. (Tex. 2005), 159 S.W.3d 87

licensure -- consent agreement was not binding until signed -- mandamus was not available to compel OPMC to sign draft consent agreement. Anonymous v. Commissioner of Health (N.Y.Tr.T. 2005), No.101238/05

-- denial of paramedic license to petitioner who had six felony convictions was not arbitrary. In re Application of Benton (S.D. 2005), No. 23232

-- preponderance of evidence standard adequately protected nursing assistant's due process rights after his license was suspended for abusing patient. Ongom v. State, Dept. of Health, Office of Prof. Standards (Wash.App. 2005), No. 52688-0-I

-- Tennessee Board of Examiners in Psychology properly placed psychologist's license on probation for two years. Wright v. Tennessee Bd. of Exam'rs in Psychology (Tenn.App. 2004), No. M2003-01654-COA-R3-CV

liens -- hospital's recovery was not limited to amount paid to injured party/patient by insurer but hospital was entitled to recover reasonable cost of its care, treatment, and maintenance of injured party/patient. University of South Alabama v. Progressive Ins. Co. (Ala. 2004), No. 1030955

limitations -- action was untimely where it accrued on December 1, 2000, when defendants physician and hospital allegedly failed to diagnose stroke. Tobiassen v. Sawyer (Ala. 2004), No. 1030044

-- claims that medical defendants had misdiagnosed patient with breast cancer and had performed unnecessary bilateral mastectomy were untimely. Kermen v. Brower (N.Y.App.Div. 2005), 93 N.Y.S.2d 3

-- evidence that injured party appeared to have lost confidence in his physician, without more, was insufficient to trigger running of statute of limitations. Caro v. Glah (Pa.Super. 2004), 2004 Pa.Super. 490

-- malpractice statute of repose applicable to child's wrongful death claims. Childers v. Cape Canaveral Hosp., Inc. (Fla.App. 2005), 898 So.2d 973

-- notice of malpractice suit by correct but untimely sued defendant resulted in equitable tolling of limitations. Felan v. Humana, Inc. (Tex.App. 2004), No. 04-03-00929-CV

malpractice actions -- trial court improvidently exercised its discretion in striking complaint for failure to comply with discovery requests. Lombardo v. St. Francis Hosp. Rehab. Svcs. (N.Y.App.Div. 2005), No.2004-03851

-- trial court properly found that affidavit of plaintiff's expert was inadmissible because it was filed after deadline for identifying experts. Williams v. Baptist Mem. Hosp. (Tenn.App. 2004), No. W2003-02872-COA-R3-CV

malpractice insurance -- trial court did not err by precluding medical malpractice plaintiffs from referencing liability insurance in their voir dire of jury. Cenal v. Ragunton (Haw.App. 2004), No. 25761

Medicaid -- couple could effectively convert countable resources into income of community spouse which was not countable in determining Medicaid eligibility for institutionalized spouse by purchasing irrevocable actuarially sound commercial annuity for sole benefit of community spouse. Estate of F.K. v. Division of Med. Assistance & Health Svcs. (N.J.App. 2005), 863 A.2d 1065

-- Medicaid applicant properly found ineligible for Medicaid benefits. Campbell v. Commissioner of Internal Revenue (N.Y.App.Div. 2005), No. 96148

-- nursing home resident was not entitled to benefits where she failed to show that satisfaction of mortgage was with sufficient consideration. Roberts v. North Dakota Dep't of Human Svcs. (N.D. 2005), 692 N.W.2d 922

Medicare -- hospitals failed to exhaust administrative remedies before bringing breach of contract claim against Medicare insurer -- claim dismissed for lack of subject matter jurisdiction. Christus Health Gulf Coast v. Aetna, Inc. (Tex.App. 2004), No. 14-03-01281-CV

-- plaintiff was entitled to special damages award for medical expenses that were "contractually adjusted" or "written-off" by hospital, pursuant to Medicare. Cook v. Jefferson Parish Hosp. Svc. Dist. No. 2 (La.App. 2005), No. 04-CA-17

mental health -- court properly found that insanity acquittee should not be discharged where there was no mechanism to insure that he would continue to take his medication. State v. Corr (Conn.App. 2005), 867 A.2d 124

-- doctor was not liable for acts of voluntary psychiatric patient. Engelhart v. County of Orange (N.Y.App.Div. 2005), No.2003-10328

-- expert testimony necessary to support claim that mental patient died from asphyxiation after administration of Navane because he was not properly monitored. Hyman v. East Jefferson Gen. Hosp. (La.App. 2005), No. 04-CA-1222

-- in-patient care was least-restrictive alternative for patient suffering from early-stage dementia. In re R.F. (N.D. 2005), 692 N.W.2d 905

-- mental patient properly ordered discharge where his mental illness did not cause him to pose substantial threat of physical harm to himself or others. Julio R. v. Seltzer (N.Y.App.Div. 2005), No. 2004-08159

-- patient who was stabilized on his medication was improperly committed to inpatient treatment. In re Butler (La.App. 2005), 895 So.2d 759

-- state failed to show future dangerousness -- involuntary commitment improper. In re Miller (Ore.App. 2005), No. A122328

-- T.C.A. Section 36-6-402 required that physician who committed patient to mental institution must first personally examine patient, rather than relying exclusively on medical records or someone else's examination of patient. Vickroy v. Pathways, Inc. (Tenn.App. 2004), No. W2003-02620-COA-R3-CV

-- trial court erred in finding that, because of her mental disorder, involuntary committee presented imminent threat of injury to herself or others. In re Mental Health of C.R.C. (Mont. 2004), 2004 MT 389

notice of claim -- order granting motion to file late notice of claim against county nursing home was not appealable as of right. Moon v. Warren Haven Nursing Home (N.J. 2005), 867 A.2d 1174

nurses -- worker's compensation law did not bar nurse's action against hospital for malpractice in treating her viral infection. Manswell v. St. Luke's Hosp. (N.Y.App.Div. 2005), 792 N.Y.S.2d 389

nursing assistants -- nursing assistant's threatening conduct toward registered nurse consisted misconduct for unemployment compensation purposes. Perkins v. Commissioner of Labor (N.Y.App.Div. 2005), 790 N.Y.S.2d 313

-- preponderance of evidence standard adequately protected nursing assistant's due process rights after his license was suspended for abusing patient. Ongom v. State, Dept. of Health, Office of Prof. Standards (Wash.App. 2005), No. 52688-0-I

nursing homes -- action did not sound in malpractice where building maintenance had not been shown to be within scope of activities that nursing home must be licensed to perform in exercise of its care-giving function. Wild v. NS'NG, Inc. (La.App. 2004), No. 2004 CW 0933

-- arbitration was not required by consulting contract with respect to claims asserted by former resident's estate where resident never signed contract. Extendicare Health Svcs., Inc. v. Estate of Patterson (Fla.App. 2005), 898 So.2d 989

-- claims arising from failure to change nursing home resident's diapers fell under Nursing Home Resident's Bill of Rights. Henry v. West Monroe Guest House, Inc. (La.App. 2005), 895 So.2d 680

-- order granting motion to file late notice of claim against county nursing home was not appealable as of right. Moon v. Warren Haven Nursing Home (N.J. 2005), 867 A.2d 1174

-- parent corporation was not liable death of resident which allegedly occurred because of under staffing of nursing home. Sunbridge Healthcare Corp. v. Penny (Tex.App. 2005), No.06-03-00124-CV

paramedics -- denial of paramedic license to petitioner who had six felony convictions was not arbitrary. In re Application of Benton (S.D. 2005), No. 23232

peer review -- physician violated legislatively mandated confidentiality of peer-review records by attaching them to his complaint. Ex parte Gadsden Reg. Med. Ctr. (Ala. 2004), No. 1030911

pharmacies -- state regulations did not establish generalized duty on part of pharmacists to warn of every potentially adverse reaction to drug. Chamblin v. K-Mart Corp. (Ga.App. 2005), No. A04A2203

pleadings -- expert report required for claims that medical defendant had denied appropriate custodial or palliative care to premature newborn infant. Smalling v. Gardner (Tex.App. 2005), No.14-03-01079-CV

-- malpractice plaintiff's writ for petition of mandamus would be granted, since trial court manifestly abused its discretion in granting defendant's motion to dismiss. Borger v. Eighth Judicial Dist. Court of State of Nevada (Nev. 2004), No. No. 42128

-- physician violated legislatively mandated confidentiality of peer-review records by attaching them to his complaint. Ex parte Gadsden Reg. Med. Ctr. (Ala. 2004), No. 1030911

-- trial court improvidently exercised its discretion in striking medical malpractice complaint for failure to comply with discovery requests. Lombardo v. St. Francis Hosp. Rehab. Svcs. (N.Y.App.Div. 2005), No.2004-03851

psychiatric hospitals -- anesthesiologist was not qualified as expert with respect to care and treatment of psychiatric patient who hung herself. Dodd v. Sparks Regional Med. Ctr. (Ark.App. 2005), No. CA 04-729

psychologists -- Tennessee Board of Examiners in Psychology properly placed psychologist's license on probation for two years. Wright v. Tennessee Bd. of Exam'rs in Psychology (Tenn.App. 2004), No. M2003-01654-COA-R3-CV

punitive damages -- even when attorney fees were taken into account, insureds were $71,670 short of threshold for federal jurisdiction for their punitive damages claim against health insurer. Munro v. Golden Rule Ins. Co. (C.A. 7, Wis. 2004), No. 04-1396

records -- physician violated legislatively mandated confidentiality of peer-review records by attaching them to his complaint. Ex parte Gadsden Reg. Med. Ctr. (Ala. 2004), No. 1030911

recusal -- in action for injunctive relief requesting continuation of life-sustaining treatment, judge failed to follow proper procedure with respect to motion for recusal. Hudson v. Texas Children's Hosp. (Tex.App. 2005), No. 01-05-00143-CV

res ipsa loquitur -- doctrine of res ipsa loquitur was not applicable to claim by dental patient whose jaw had been fractured during extraction of wisdom tooth. Howie v. Walsh (N.C.App. 2005), 609 S.E.2d 249

sexual improprieties -- claims arising from sexual assault during medical examination were not subject to medical malpractice statute. Burke v. Snyder (Fla.App. 2005), No. 4D02-2838

staff privileges -- Anti-SLAPP statute was applicable to physician's claim that his staff privileges had been improperly suspended. Kibler v. Northern Inyo County Local Hosp. Dist. (Cal.App. 2005), No. E035085

-- hospital was not required to pay first $250,000 to meet bankrupt physician's minimum financial responsibility requirement for enjoying staff privileges. North Miami Medical Center, Ltd. v. Miller (Fla.App. 2005), 896 So.2d 886

-- physician's civil rights claims were not barred by peer review statute or doctrine that staffing decisions of private hospitals were not subject to judicial review. Feyz v. Mercy Mem. Hosp. (Mich.App. 2005), 264 Mich.App. 699

surgeons -- hospital could be liable for it's on-call surgeon's refusal to treat HIV patient. Fiske v. U.S. Health Corp. of Southern Ohio (Ohio App. 2005), No. 2005 -Ohio- 1295

taxation -- Section 11-58-14 required that all property owned by medical clinic board be exempt from assessment of ad valorem taxes. Underwood v. Medical Clinic Bd. for City of Montgomery (Ala. 2004), No. 1031160

unemployment compensation -- nursing assistant's threatening conduct toward registered nurse consisted misconduct. Perkins v. Commissioner of Labor (N.Y.App.Div. 2005), 790 N.Y.S.2d 313

voir dire -- trial court did not err by precluding medical malpractice plaintiffs from referencing liability insurance in their voir dire of jury. Cenal v. Ragunton (Haw.App. 2004), No. 25761

worker's compensation -- worker's compensation law did not bar nurse's action against hospital for malpractice in treating her viral infection. Manswell v. St. Luke's Hosp. (N.Y.App.Div. 2005), 792 N.Y.S.2d 389

wrongful death -- malpractice statute of repose applicable to child's wrongful death claims. Childers v. Cape Canaveral Hosp., Inc. (Fla.App. 2005), 898 So.2d 973



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