Verdicts

The Medical Society of New Jersey didn't intervene in the state action, but on May 6, the doctors' group sued in federal court, asserting that the federal Health Care Quality Improvement Act of 1986, which requires insurers to report medical malpractice payout data but makes the reports confidential, trumped the New Jersey State disclosure law, which, after June 23, allows for public access to such information.

The court denied the request for preliminary injunction and also dismissed the Medical Society's suit under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. The basis of that decision was the court's conclusion that the information collected by the State of New Jersey is compiled independently of the federal information collection system, although the data collected by each may be identical. In addition, the federal statute specifically provides that information a state authorizes for disclosure can be disclosed without violating the federal confidentiality provisions. 42 U.S.C. 11137(b)(1).

The court was also not moved by the Medical Society's argument that past settlement amounts should not be disclosed, due to confidentiality agreements that were made part of those settlements. The court found that the state was not bound by any such agreements because it was not a party to them.

Affection Loss Claim Against Therapist Not Time-Barred

When a therapist who separately counseled both husband and wife ultimately began dating the husband, the wife's claim of alienation of affection was not barred by the limitations period that applies to malpractice, the Utah Supreme Court held on June 22. Dowling v. Bullen, No. 20021008, 2004 UT 50; 502 Utah Adv. Rep. 12; 2004 Utah LEXIS 115 (Utah 6/22/04).

A couple in a faltering marriage began counseling with a licensed clinical social worker, Kathleen Bullen. The couple met with the therapist individually. Unbeknownst to the wife, Bullen initiated an intimate relationship with the husband. Later, the husband filed for divorce. He continued to date Bullen through September 1996, at which time the divorce became final and the wife learned of the affair.

In September 2000, the wife filed suit against Bullen, alleging five causes of action. The wife conceded that all her causes of action were barred by the Utah Health Care Malpractice Act, Utah Code Ann. ' 78-14-1 to -4 (2002), except for the claim of alienation of affection. She alleged that by divulging the wife's confidences, Bullen had used her position to seduce her husband and to motivate him to file for divorce. The trial court granted summary judgment to Bullen, finding that the claims fell within Utah's health care act's bar against malpractice actions brought more than two years after the discovery of the injury. The appellate court reversed.

The Utah Supreme Court affirmed. The claims to which the two-year limitations period apply, the court said, are those arising from treatment provided to “a patient during the patient's medical care.” If the husband had brought suit for malpractice based on these facts, the limitations period would have applied to that action. However, while the secrets divulged by Bullen are ones she had learned when the wife was a patient, the claim really arose from acts Bullen performed when the husband was the patient, and these fell outside of the statute's time bar.

NJ Law Allowing Public Access to Payout Information Not Federally Pre-Empted

The New Jersey Medical Society was denied a request for preliminary injunction that would have prevented the state from allowing public access – through the Internet and a telephone hotline – to records of medical malpractice payouts when the 2003 New Jersey Health Care Consumer Information Act took effect on June 23. Medical Society of New Jersey v. Mottola, Civ. 04-2126. Civ. No. 04-2126 (D.N.J. 6/8/04); DDS No. 29-7-7084.

The federal case stemmed from a New Jersey state court action filed last summer in which a publication — The Record, of Hackensack, NJ — sued to compel disclosure of malpractice payment data after the state denied the publication's Open Public Records Act request. The judge granted The Record's request for common law access to the past five years' worth of malpractice payment data. Her subsequent March 9 order required the state to notify doctors of the impending disclosure and gave doctors until May 10 to dispute any inaccuracies.

The Medical Society of New Jersey didn't intervene in the state action, but on May 6, the doctors' group sued in federal court, asserting that the federal Health Care Quality Improvement Act of 1986, which requires insurers to report medical malpractice payout data but makes the reports confidential, trumped the New Jersey State disclosure law, which, after June 23, allows for public access to such information.

The court denied the request for preliminary injunction and also dismissed the Medical Society's suit under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. The basis of that decision was the court's conclusion that the information collected by the State of New Jersey is compiled independently of the federal information collection system, although the data collected by each may be identical. In addition, the federal statute specifically provides that information a state authorizes for disclosure can be disclosed without violating the federal confidentiality provisions. 42 U.S.C. 11137(b)(1).

The court was also not moved by the Medical Society's argument that past settlement amounts should not be disclosed, due to confidentiality agreements that were made part of those settlements. The court found that the state was not bound by any such agreements because it was not a party to them.

Affection Loss Claim Against Therapist Not Time-Barred

When a therapist who separately counseled both husband and wife ultimately began dating the husband, the wife's claim of alienation of affection was not barred by the limitations period that applies to malpractice, the Utah Supreme Court held on June 22. Dowling v. Bullen, No. 20021008, 2004 UT 50; 502 Utah Adv. Rep. 12; 2004 Utah LEXIS 115 (Utah 6/22/04).

A couple in a faltering marriage began counseling with a licensed clinical social worker, Kathleen Bullen. The couple met with the therapist individually. Unbeknownst to the wife, Bullen initiated an intimate relationship with the husband. Later, the husband filed for divorce. He continued to date Bullen through September 1996, at which time the divorce became final and the wife learned of the affair.

In September 2000, the wife filed suit against Bullen, alleging five causes of action. The wife conceded that all her causes of action were barred by the Utah Health Care Malpractice Act, Utah Code Ann. ' 78-14-1 to -4 (2002), except for the claim of alienation of affection. She alleged that by divulging the wife's confidences, Bullen had used her position to seduce her husband and to motivate him to file for divorce. The trial court granted summary judgment to Bullen, finding that the claims fell within Utah's health care act's bar against malpractice actions brought more than two years after the discovery of the injury. The appellate court reversed.

The Utah Supreme Court affirmed. The claims to which the two-year limitations period apply, the court said, are those arising from treatment provided to “a patient during the patient's medical care.” If the husband had brought suit for malpractice based on these facts, the limitations period would have applied to that action. However, while the secrets divulged by Bullen are ones she had learned when the wife was a patient, the claim really arose from acts Bullen performed when the husband was the patient, and these fell outside of the statute's time bar.