Verdicts

A complaint brought by the North Dakota State Board of Medical Examiners alleged 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 didn't do it, be believed over the other witnesses? Here, the doctor lost and the court upheld the Board's suspension.

New York Retroactively Applies Newly Created Emotional Distress Cause of Action

A motion for an order permitting a plaintiff child in a birth injury action to amend the complaint by adding the mother as an individual plaintiff claiming she suffered emotional distress as a result of the birth of her son in an impaired state was granted because a change in case law that allowed for such claims could properly be applied to the present action retroactively. Stuart v. New York City Health & Hospitals Corp., N.Y.L.J. 1/14/05, DOI; Pg. 19; Case No. 9767/03 (Sup. Ct., Queens Cty.).

The plaintiff child's suit claimed that substandard care of the mother during delivery caused the child to suffer various impairments including brain damage and cerebral palsy. The action on behalf of the child was commenced March 15, 2000. The complaint had one cause of action seeking recovery for the pain and suffering of the infant plaintiff and the other based upon a lack of informed consent.

On April 1, 2004, while the present action was still pending, the New York Court of Appeals decided the case of Broadnax v. Gonzalez, 2 NY3d 148, holding that, “even in the absence of an independent injury, medical malpractice resulting in miscarriage or stillbirth should be construed as a violation of a duty of care to the expectant mother, entitling her to damages for emotional distress.” Following this decision, plaintiff moved to add the new plaintiff mother and her cause of action for infliction of emotional distress. Defendant opposed the motion, claiming the cause of action was time barred and that the holding in Broadnax and a subsequent case should not be applied retroactively.

Initially, the court found the new cause of actions are not barred since the state rule allowing relation back to the date of service or filing of the original complaint was applicable. CPLR 203(b) or (c). Moreover, since plaintiff's new cause of action was only recently created, serving a timely notice of claim would have been impossible. As such, it would be a disingenuous tautology to find that plaintiff could not proceed with this new cause of action, due to failure to serve a notice, when plaintiff had no reason to believe such action existed until after the time to file a notice had expired.

Next, the court explained that, generally, a change in case law will be applied retrospectively to all cases still in litigation unless it is such a sharp break in existing law that such application would lead to instability. It identified three factors to be considered in making the determination: whether the new law overruled clear, relied-upon precedent; whether retroactive application would advance the rule's purpose; and whether inequities would arise by retroactive application. The court answered the first question in the affirmative. As to the second factor, the Broadnax court's extension of protection to a mother — even where she herself has suffered no physical harm — evidenced its clear intention to do away with the old “zone of danger” requirement. Such purpose would be advanced by retroactive application since there was no jurisprudential justification for the old policy, which failed to fully protect the expectant mother's emotional condition and understand the extent her well-being depended upon the health of the child. Regarding the third factor, the court found here that retroactive application would not create inequities to the medical profession because representatives of the medical professional had made no effort to argue that unfairness would result from retroactive application. “Given the general willingness of the medical profession to express an opinion on legal matters that impact upon it, such lack of concern indicates no inequity will burden the profession” if the holding of Broadnax were applied retroactively, the court stated. Therefore, retroactive application was held appropriate and plaintiff's motion to amend was granted.

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. 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 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 didn't do it, be believed over the other witnesses? Here, the doctor lost and the court upheld the Board's suspension.

New York Retroactively Applies Newly Created Emotional Distress Cause of Action

A motion for an order permitting a plaintiff child in a birth injury action to amend the complaint by adding the mother as an individual plaintiff claiming she suffered emotional distress as a result of the birth of her son in an impaired state was granted because a change in case law that allowed for such claims could properly be applied to the present action retroactively. Stuart v. New York City Health & Hospitals Corp., N.Y.L.J. 1/14/05, DOI; Pg. 19; Case No. 9767/03 (Sup. Ct., Queens Cty.).

The plaintiff child's suit claimed that substandard care of the mother during delivery caused the child to suffer various impairments including brain damage and cerebral palsy. The action on behalf of the child was commenced March 15, 2000. The complaint had one cause of action seeking recovery for the pain and suffering of the infant plaintiff and the other based upon a lack of informed consent.

On April 1, 2004, while the present action was still pending, the New York Court of Appeals decided the case of Broadnax v. Gonzalez , 2 NY3d 148, holding that, “even in the absence of an independent injury, medical malpractice resulting in miscarriage or stillbirth should be construed as a violation of a duty of care to the expectant mother, entitling her to damages for emotional distress.” Following this decision, plaintiff moved to add the new plaintiff mother and her cause of action for infliction of emotional distress. Defendant opposed the motion, claiming the cause of action was time barred and that the holding in Broadnax and a subsequent case should not be applied retroactively.

Initially, the court found the new cause of actions are not barred since the state rule allowing relation back to the date of service or filing of the original complaint was applicable. CPLR 203(b) or (c). Moreover, since plaintiff's new cause of action was only recently created, serving a timely notice of claim would have been impossible. As such, it would be a disingenuous tautology to find that plaintiff could not proceed with this new cause of action, due to failure to serve a notice, when plaintiff had no reason to believe such action existed until after the time to file a notice had expired.

Next, the court explained that, generally, a change in case law will be applied retrospectively to all cases still in litigation unless it is such a sharp break in existing law that such application would lead to instability. It identified three factors to be considered in making the determination: whether the new law overruled clear, relied-upon precedent; whether retroactive application would advance the rule's purpose; and whether inequities would arise by retroactive application. The court answered the first question in the affirmative. As to the second factor, the Broadnax court's extension of protection to a mother — even where she herself has suffered no physical harm — evidenced its clear intention to do away with the old “zone of danger” requirement. Such purpose would be advanced by retroactive application since there was no jurisprudential justification for the old policy, which failed to fully protect the expectant mother's emotional condition and understand the extent her well-being depended upon the health of the child. Regarding the third factor, the court found here that retroactive application would not create inequities to the medical profession because representatives of the medical professional had made no effort to argue that unfairness would result from retroactive application. “Given the general willingness of the medical profession to express an opinion on legal matters that impact upon it, such lack of concern indicates no inequity will burden the profession” if the holding of Broadnax were applied retroactively, the court stated. Therefore, retroactive application was held appropriate and plaintiff's motion to amend was granted.