Verdicts

The testimony in the case established that the surgeon completed a three-part check before closing the surgical site: a visual inspection, a manual inspection, and a numerical count conducted by the nurse. Because of the delicacy of the operation, however, the doctor's manual inspection had to be conducted in as gentle a manner as possible, or the surgeon's work might be undone. Visual inspection was obstructed by blood and other body fluids.

The pad caused pain and infection, which spread to the plaintiff's intestines, requiring removal of a portion of them. The plaintiff brought suit against several parties and settled with all but the two doctors. The trial court instructed the jury that a foreign object left in the patient's body was prima facie evidence of negligence and that a physician could not relieve herself of the responsibility of accounting for all such objects merely by delegating that task to a nurse. The jury found for the plaintiff. The damages against the two doctors totaled $200,000.

The defendants appealed, asserting the jury instructions misled the jury as to the law. The appellate court, citing to the recent holding in Breaux v. Thurson, [Ms. 1011655, Dec. 30, 2003] __ So. 2d. __, 2004 Ala. LEXIS 278 (Ala. 2003), noted that previous case law had been read to hold that in a retention case proof that the physician had placed a foreign object such as a sponge, pad, or surgical device in a patient's body, coupled with proof that the foreign object had then been left in the patient's body, constituted negligence per se, removing the question of negligence from the province of the jury. However, in Breaux, the standard had been clarified by the court, which held that once a prima facie showing of negligence is made, the burden shifts to defendants, who are entitled to rebut the showing by evidence that the applicable standard of care has been followed. In this case, the surgeon sought to show that the applicable standard of care had in fact been met, despite the fact that a foreign object was left in the patient. Because the jury instructions were deficient in failing to tell the jury that defendants could rebut prima facie evidence of negligence and they probably prejudiced defendants, the judgment was reversed.

Agency Needs No Subpoena to Access New York Doctor's Records

New York's Appellate Division, First Department, has found that the New York State Office of Professional Medical Conduct (OPMC) may by statutory authority conduct reviews of doctors' patient and office records without first obtaining a subpoena. Michaelis v. Graziano, 2004 N.Y. App. Div. LEXIS 15114 (1st Dept. 12/14/04).

Respondent Dennis J. Graziano, Director of the Office of Professional Medical Conduct (OPMC), after receiving a patient complaint of substandard medical care, issued an order directing that a comprehensive medical review (CMR) be conducted of the patient and office records of petitioner, a physician licensed to practice medicine in the State of New York. The petitioner commenced this proceeding seeking to prevent the CMR. At issue on this appeal was the lower court's order dismissing the proceeding and granting respondents' cross motion to require petitioner to cooperate with the CMR.

New York's Public Health Law ' 230(10)(a)(iv) expressly authorizes respondent to conduct a CMR of a licensee's records under specified circumstances. This statute sets forth no requirement that a CMR be accompanied by a subpoena. OPMC's submissions established that it had satisfied all procedural prerequisites to a CMR of petitioner's patient and office records, and that its prior investigation had yielded sufficient factual grounds for conducting such an inquiry. Accordingly, the Appellate Division held the lower court correctly dismissed the petition and ordered petitioner to fulfill his statutory obligation to cooperate with the investigation.

The dissent asserted, however, that although the director of the OPMC, which is the investigative branch of the State Department of Health, has the express authority to conduct a CMR pursuant to Public Health Law ' 230(10)(a)(iv), this section does not expressly indicate the investigative process by which these records are to be made available or the manner in which they are to be obtained. Public Health Law ' 230(10)(k), however, expressly provides for the issuance of subpoenas by the Executive Secretary of the OPMC, but only with the approval of a committee composed of two physicians and one lay member. It is this means of obtaining such records that should have been used, the dissent stated, because an administrative agency is clothed only with the powers expressly conferred on it by its authorizing statute. Absent guidance in Public Health Law ' 230(10)(a)(iv), the method for obtaining records in Public Health Law ' 230(10)(k) should have been employed.

Doctor's Testimony Backfires in Disciplinary Proceeding

The Supreme Court of North Dakota has held that although expert testimony should be obtained in a license suspension proceeding, that testimony can come from the doctor under investigation if he himself admits to the parameters of the applicable standard of care. Huff v. North Dakota State Board of Medical Examiners-Investigative Panel B, 2004 N.D. LEXIS 362 (12/14/04).

A patient being examined for a trucker's license had failed the Ishihara Test for color blindness, which was administered by an LPN. The respondent doctor subsequently re-issued the test but, seeing that the patient was struggling, proceeded to manually assist the patient by tracing out the numbers or symbols with the patient's index finder. The doctor further permitted the patient to keep both eyes open during the exam. Upon conclusion of the test, the doctor crossed out the failed results on the patient's medical chart and deceptively wrote that the patient had passed the test once he had the exam explained to him.

A complaint brought by the North Dakota State Board of Medical Examiners alleged that the respondent's actions violated appropriate protocol for the Ishihara Test. A hearing was conducted at which the administrative law judge (ALJ) made recommended findings of fact to the effect that the respondent doctor had violated the applicable standard of care. The Board so found and suspended respondent's license for a year. The state district court upheld the Board's decision.

The respondent appealed to the Supreme Court of North Dakota, asserting that the Board should not have rendered its decision absent expert testimony as to the applicable standard of care and respondent's deviation from it. The court agreed with the Board that if an act is blatantly illegal or improper, or if a licensee admits to a violation, a disciplinary board need not introduce expert evidence to establish the necessary standard. However, in a physician disciplinary proceeding before a board like this one (having some members who are not medical experts and physician members who are medical professionals but may not be experts in the field of medicine practiced by the physician appearing before them), the court said that requiring expert testimony would best protect the fairness of the proceedings. In this particular case, however, the court found that the respondent, himself a licensed ophthalmologist, served as the Board's own expert when he testified that it would not be within the standard of care for a doctor to hold a patient's finger and guide it during the test. With this standard of care established, the question of its violation became one of credibility: should the doctor, who says he did not do it, be believed over the other witnesses? Here, the doctor lost and the court upheld the Board's suspension.

Negligence Showing Is Rebuttable, Alabama Supreme Court Says

An Alabama trial court erred when it did not tell the jury that even after plaintiff made a prima facie showing of negligence, defendant surgeons could rebut that inference with evidence that they had conformed to the standard of care. Houseman v. Garrett, 2004 Ala. LEXIS 334 (Sup. Ct. Ala. 12/10/04).

The plaintiff underwent surgery to reverse a bilateral tubal ligation that had been performed years earlier. Two defendant doctors conducted the surgery. The defendants did not dispute that they had placed a Kerlix gauze pad under the plaintiff's uterus during surgery to elevate the uterus and that this pad was not removed after the surgery was completed. It was also undisputed that a nurse was responsible for counting the surgical sponges and surgical devices used in this procedure before and after the surgery and that she apparently did not include the Kerlix pad in her pre-surgery count and did not advise the surgeon of it.

The testimony in the case established that the surgeon completed a three-part check before closing the surgical site: a visual inspection, a manual inspection, and a numerical count conducted by the nurse. Because of the delicacy of the operation, however, the doctor's manual inspection had to be conducted in as gentle a manner as possible, or the surgeon's work might be undone. Visual inspection was obstructed by blood and other body fluids.

The pad caused pain and infection, which spread to the plaintiff's intestines, requiring removal of a portion of them. The plaintiff brought suit against several parties and settled with all but the two doctors. The trial court instructed the jury that a foreign object left in the patient's body was prima facie evidence of negligence and that a physician could not relieve herself of the responsibility of accounting for all such objects merely by delegating that task to a nurse. The jury found for the plaintiff. The damages against the two doctors totaled $200,000.

The defendants appealed, asserting the jury instructions misled the jury as to the law. The appellate court, citing to the recent holding in Breaux v. Thurson, [Ms. 1011655, Dec. 30, 2003] __ So. 2d. __, 2004 Ala. LEXIS 278 (Ala. 2003), noted that previous case law had been read to hold that in a retention case proof that the physician had placed a foreign object such as a sponge, pad, or surgical device in a patient's body, coupled with proof that the foreign object had then been left in the patient's body, constituted negligence per se, removing the question of negligence from the province of the jury. However, in Breaux, the standard had been clarified by the court, which held that once a prima facie showing of negligence is made, the burden shifts to defendants, who are entitled to rebut the showing by evidence that the applicable standard of care has been followed. In this case, the surgeon sought to show that the applicable standard of care had in fact been met, despite the fact that a foreign object was left in the patient. Because the jury instructions were deficient in failing to tell the jury that defendants could rebut prima facie evidence of negligence and they probably prejudiced defendants, the judgment was reversed.

Agency Needs No Subpoena to Access New York Doctor's Records

New York's Appellate Division, First Department, has found that the New York State Office of Professional Medical Conduct (OPMC) may by statutory authority conduct reviews of doctors' patient and office records without first obtaining a subpoena. Michaelis v. Graziano , 2004 N.Y. App. Div. LEXIS 15114 (1st Dept. 12/14/04).

Respondent Dennis J. Graziano, Director of the Office of Professional Medical Conduct (OPMC), after receiving a patient complaint of substandard medical care, issued an order directing that a comprehensive medical review (CMR) be conducted of the patient and office records of petitioner, a physician licensed to practice medicine in the State of New York. The petitioner commenced this proceeding seeking to prevent the CMR. At issue on this appeal was the lower court's order dismissing the proceeding and granting respondents' cross motion to require petitioner to cooperate with the CMR.

New York's Public Health Law ' 230(10)(a)(iv) expressly authorizes respondent to conduct a CMR of a licensee's records under specified circumstances. This statute sets forth no requirement that a CMR be accompanied by a subpoena. OPMC's submissions established that it had satisfied all procedural prerequisites to a CMR of petitioner's patient and office records, and that its prior investigation had yielded sufficient factual grounds for conducting such an inquiry. Accordingly, the Appellate Division held the lower court correctly dismissed the petition and ordered petitioner to fulfill his statutory obligation to cooperate with the investigation.

The dissent asserted, however, that although the director of the OPMC, which is the investigative branch of the State Department of Health, has the express authority to conduct a CMR pursuant to Public Health Law ' 230(10)(a)(iv), this section does not expressly indicate the investigative process by which these records are to be made available or the manner in which they are to be obtained. Public Health Law ' 230(10)(k), however, expressly provides for the issuance of subpoenas by the Executive Secretary of the OPMC, but only with the approval of a committee composed of two physicians and one lay member. It is this means of obtaining such records that should have been used, the dissent stated, because an administrative agency is clothed only with the powers expressly conferred on it by its authorizing statute. Absent guidance in Public Health Law ' 230(10)(a)(iv), the method for obtaining records in Public Health Law ' 230(10)(k) should have been employed.

Doctor's Testimony Backfires in Disciplinary Proceeding

The Supreme Court of North Dakota has held that although expert testimony should be obtained in a license suspension proceeding, that testimony can come from the doctor under investigation if he himself admits to the parameters of the applicable standard of care. Huff v. North Dakota State Board of Medical Examiners-Investigative Panel B, 2004 N.D. LEXIS 362 (12/14/04).

A patient being examined for a trucker's license had failed the Ishihara Test for color blindness, which was administered by an LPN. The respondent doctor subsequently re-issued the test but, seeing that the patient was struggling, proceeded to manually assist the patient by tracing out the numbers or symbols with the patient's index finder. The doctor further permitted the patient to keep both eyes open during the exam. Upon conclusion of the test, the doctor crossed out the failed results on the patient's medical chart and deceptively wrote that the patient had passed the test once he had the exam explained to him.

A complaint brought by the North Dakota State Board of Medical Examiners alleged that the respondent's actions violated appropriate protocol for the Ishihara Test. A hearing was conducted at which the administrative law judge (ALJ) made recommended findings of fact to the effect that the respondent doctor had violated the applicable standard of care. The Board so found and suspended respondent's license for a year. The state district court upheld the Board's decision.

The respondent appealed to the Supreme Court of North Dakota, asserting that the Board should not have rendered its decision absent expert testimony as to the applicable standard of care and respondent's deviation from it. The court agreed with the Board that if an act is blatantly illegal or improper, or if a licensee admits to a violation, a disciplinary board need not introduce expert evidence to establish the necessary standard. However, in a physician disciplinary proceeding before a board like this one (having some members who are not medical experts and physician members who are medical professionals but may not be experts in the field of medicine practiced by the physician appearing before them), the court said that requiring expert testimony would best protect the fairness of the proceedings. In this particular case, however, the court found that the respondent, himself a licensed ophthalmologist, served as the Board's own expert when he testified that it would not be within the standard of care for a doctor to hold a patient's finger and guide it during the test. With this standard of care established, the question of its violation became one of credibility: should the doctor, who says he did not do it, be believed over the other witnesses? Here, the doctor lost and the court upheld the Board's suspension.