Verdicts

Doctor's Alleged False Accusations Negate Immunity

Two suits against a New York doctor charged with wrongfully accusing parents of abusing their infants have been allowed to go forward because the court found that the immunity generally afforded to medical personnel who report child abuse did not prevent suit, as the plaintiffs offered plausible evidence of the doctor's bad faith. V.S. v. Muhammad, 07-cv-213; Denes Q. v. Caesar, 07-cv-1281 (E.D.N.Y., 9/30/08).

The suits were brought on behalf of two infants removed from their homes after Dr. Debra Esernio-Jenssen, the medical director of Long Island Jewish Medical Center's Child Protection Center, opined their injuries were caused by parental abuse. The facts of the two cases are similar. In V.S. v. Muhammad, a new mother left her two-month-old son with his grandmother while she ran some errands. The child was then injured when his grandmother fell while holding him. When the mother returned, she saw that the baby's leg was swollen and took him to the medical center. While they were there, Dr. Esernio-Jenssen allegedly wrongfully reported to the Administration for Children's Services that the mother had inflicted a head injury on the baby. The child was removed from his mother's care that same day and was not returned for a year. During that period, the doctor allegedly repeated her claims that the mother abused the baby, including during a child abuse trial. Following that trial, the court returned the baby to his parents after the judge found the child had suffered only a broken leg, due to the grandmother's fall, and no head injury.

In the second case, Denes Q. v. Caesar, an infant was removed from her parents' care after she suffered a burn while with a babysitter, again on the basis of Dr. Esernio-Jenssen's opinion that the parents caused the injury by abusing the child. The baby was not returned to her parents for two months.

Both sets of parents brought suit against the doctor, the hospital and the City of New York, alleging unlawful imprisonment, gross negligence, medical malpractice, malicious prosecution, interference with parental custody of children and violations of 42 U.S.C. ' 1983 for infringing on their First, Fourth and Fourteenth amendment rights. The doctor moved to dismiss, citing to laws that give mandated child abuse reporters, such as medical personnel, immunity from tort claims if they make their accusations in good faith. In support of their opposition to the motion to dismiss, the parents cited to two other cases in which Dr. Esernio-Jenssen was found to have wrongfully accused parents of abusing their children. Eastern District Judge Dora L. Irizarry decided the motions, dismissing only the malicious prosecution claims and one claim against the City for abuse of process. Stated the judge, “It is not clear what kind of ulterior motive [Dr. Esernio-Jenssen] had, but this allegation when viewed in the light most favorable to the nonmoving party and combined with other instances of misdiagnosis by Dr. Esernio-Jenssen, creates an inference of plausible bad faith that would preclude immunity.” Because of this, the court found that “both complaints have made a sufficiently plausible showing of bad faith on the part of Dr. Esernio-Jenssen to overcome the good faith presumption accorded to the medical defendants by statute.”

Jonathan B. Bruno of Kaufman, Borgeest & Ryan represented Dr. Esernio-Jenssen and the Long Island Jewish Health System. Following the ruling, Bruno said, “I think lawsuits of this nature, seeking monetary damages against mandated reporters, are dangerous because what you may have is a chilling effect on [people] who are trying to keep the best interest of the child in mind.”

Peer-Review Privilege Not Limited to Documents in Files

A Georgia appellate court has ruled a plaintiff in a medical malpractice case is not entitled to discovery of peer-review documents just because they are not contained in the peer review file. Hospital Authority of Valdosta v. Meeks, — S.E.2d —-, 2008 WL 4694582 (Ga.App., 10/27/08).

Plaintiff Thurman Meeks's wife Jeannette died after a cardiac catheterization and stent placement procedure performed by Dr. Terry Tri at South Georgia Medical Center. (SGMC). Meeks sued Dr. Tri and SGMC for medical malpractice and for damages arising from SGMC's credentialing and peer review processes. SGMC filed a motion to strike portions of the complaint, claiming that it violated OCGA ” 31-7-133 and 31-7-143, relating to confidentiality of medical and hospital peer review information. SGMC also filed a protective order relating to certain interrogatories and requests for production of documents plaintiff sought, alleging that the information he wanted was absolutely privileged and nondiscoverable under the Georgia medical review and peer review statutes cited above.

After a hearing, the trial court ruled that “the contents of SGMC's peer review and medical review files, including SGMC's credentialing files regarding Dr. Tri, are not subject to discovery.” This ruling left open for discovery documents not within the peer review and medical review files that were used by those reviewing panels.

The appellate court reversed on this issue, finding that “medical review and peer review statutes protect all proceedings and information of a review organization, not just what is included in physical files.” See Patton v. St. Francis Hospital, 246 Ga.App. 4, 6 (2000) (“the Supreme Court has held that both peer review and medical review proceedings are absolutely privileged.”). Although some limited exceptions apply ' such as when documents are used by a reviewing panel but are also available from other sources, such as patient care files ' no such exception applied in this case. Therefore, to the extent that the trial court added exceptions to the statutory and case law protecting peer review and medical review proceedings from discovery by exempting documents that were used by reviewing panels but that were not stored in their files, that order was reversed.

Key Is in Attorney's Reaction to Jurors' Withholding of Information

A Florida trial judge erred when, after it was disclosed that two jurors withheld facts about themselves during voir dire, he focused his inquiry into the prejudicial effects of such withholding rather than on whether counsel might have exercised a peremptory challenge had the true facts been disclosed. Fine v. Shands Teaching Hospital and Clinics Inc., — So.2d —-, 2008 WL 4722510 (Fla.App. 1 Dist., 10/29/08).

Following a jury verdict for the health care providers in this medical malpractice action, the plaintiff discovered that during voir dire, two of the jurors had withheld information about their previous litigation history. Plaintiff therefore moved the court for judgment notwithstanding the verdict or for a new trial. The court denied the motion, stating, “If I had any indication that there was any connection between their past experiences and their carrying out their responsibilities in this case, I would gladly grant the plaintiff an opportunity to retry the case.”

On appeal, the plaintiff argued that the trial court erred in focusing on whether the jurors were actually biased. The appellate court agreed, noting that, under De La Rosa v. Zequeira, 659 So.2d 239 (Fla. 1995), the test of whether a new trial is warranted because of a juror's nondisclosure of information involves a three-question inquiry: 1) whether the information is relevant and material to jury service in the case; 2) whether the juror concealed the information during questioning; and 3) whether the failure to disclose the information was not attributable to the complaining party's lack of diligence. The proper inquiry for the lower court should have focused on what the appellant's counsel would have done during voir dire had the litigation history been disclosed, rather on whether the court could detect evidence of actual bias. Thus, the order was reversed and the case remanded for reconsideration under the De La Rosa three-part test.

Doctor's Alleged False Accusations Negate Immunity

Two suits against a New York doctor charged with wrongfully accusing parents of abusing their infants have been allowed to go forward because the court found that the immunity generally afforded to medical personnel who report child abuse did not prevent suit, as the plaintiffs offered plausible evidence of the doctor's bad faith. V.S. v. Muhammad, 07-cv-213; Denes Q. v. Caesar, 07-cv-1281 (E.D.N.Y., 9/30/08).

The suits were brought on behalf of two infants removed from their homes after Dr. Debra Esernio-Jenssen, the medical director of Long Island Jewish Medical Center's Child Protection Center, opined their injuries were caused by parental abuse. The facts of the two cases are similar. In V.S. v. Muhammad, a new mother left her two-month-old son with his grandmother while she ran some errands. The child was then injured when his grandmother fell while holding him. When the mother returned, she saw that the baby's leg was swollen and took him to the medical center. While they were there, Dr. Esernio-Jenssen allegedly wrongfully reported to the Administration for Children's Services that the mother had inflicted a head injury on the baby. The child was removed from his mother's care that same day and was not returned for a year. During that period, the doctor allegedly repeated her claims that the mother abused the baby, including during a child abuse trial. Following that trial, the court returned the baby to his parents after the judge found the child had suffered only a broken leg, due to the grandmother's fall, and no head injury.

In the second case, Denes Q. v. Caesar, an infant was removed from her parents' care after she suffered a burn while with a babysitter, again on the basis of Dr. Esernio-Jenssen's opinion that the parents caused the injury by abusing the child. The baby was not returned to her parents for two months.

Both sets of parents brought suit against the doctor, the hospital and the City of New York, alleging unlawful imprisonment, gross negligence, medical malpractice, malicious prosecution, interference with parental custody of children and violations of 42 U.S.C. ' 1983 for infringing on their First, Fourth and Fourteenth amendment rights. The doctor moved to dismiss, citing to laws that give mandated child abuse reporters, such as medical personnel, immunity from tort claims if they make their accusations in good faith. In support of their opposition to the motion to dismiss, the parents cited to two other cases in which Dr. Esernio-Jenssen was found to have wrongfully accused parents of abusing their children. Eastern District Judge Dora L. Irizarry decided the motions, dismissing only the malicious prosecution claims and one claim against the City for abuse of process. Stated the judge, “It is not clear what kind of ulterior motive [Dr. Esernio-Jenssen] had, but this allegation when viewed in the light most favorable to the nonmoving party and combined with other instances of misdiagnosis by Dr. Esernio-Jenssen, creates an inference of plausible bad faith that would preclude immunity.” Because of this, the court found that “both complaints have made a sufficiently plausible showing of bad faith on the part of Dr. Esernio-Jenssen to overcome the good faith presumption accorded to the medical defendants by statute.”

Jonathan B. Bruno of Kaufman, Borgeest & Ryan represented Dr. Esernio-Jenssen and the Long Island Jewish Health System. Following the ruling, Bruno said, “I think lawsuits of this nature, seeking monetary damages against mandated reporters, are dangerous because what you may have is a chilling effect on [people] who are trying to keep the best interest of the child in mind.”

Peer-Review Privilege Not Limited to Documents in Files

A Georgia appellate court has ruled a plaintiff in a medical malpractice case is not entitled to discovery of peer-review documents just because they are not contained in the peer review file. Hospital Authority of Valdosta v. Meeks, — S.E.2d —-, 2008 WL 4694582 (Ga.App., 10/27/08).

Plaintiff Thurman Meeks's wife Jeannette died after a cardiac catheterization and stent placement procedure performed by Dr. Terry Tri at South Georgia Medical Center. (SGMC). Meeks sued Dr. Tri and SGMC for medical malpractice and for damages arising from SGMC's credentialing and peer review processes. SGMC filed a motion to strike portions of the complaint, claiming that it violated OCGA ” 31-7-133 and 31-7-143, relating to confidentiality of medical and hospital peer review information. SGMC also filed a protective order relating to certain interrogatories and requests for production of documents plaintiff sought, alleging that the information he wanted was absolutely privileged and nondiscoverable under the Georgia medical review and peer review statutes cited above.

After a hearing, the trial court ruled that “the contents of SGMC's peer review and medical review files, including SGMC's credentialing files regarding Dr. Tri, are not subject to discovery.” This ruling left open for discovery documents not within the peer review and medical review files that were used by those reviewing panels.

The appellate court reversed on this issue, finding that “medical review and peer review statutes protect all proceedings and information of a review organization, not just what is included in physical files.” See Patton v. St. Francis Hospital , 246 Ga.App. 4, 6 (2000) (“the Supreme Court has held that both peer review and medical review proceedings are absolutely privileged.”). Although some limited exceptions apply ' such as when documents are used by a reviewing panel but are also available from other sources, such as patient care files ' no such exception applied in this case. Therefore, to the extent that the trial court added exceptions to the statutory and case law protecting peer review and medical review proceedings from discovery by exempting documents that were used by reviewing panels but that were not stored in their files, that order was reversed.

Key Is in Attorney's Reaction to Jurors' Withholding of Information

A Florida trial judge erred when, after it was disclosed that two jurors withheld facts about themselves during voir dire, he focused his inquiry into the prejudicial effects of such withholding rather than on whether counsel might have exercised a peremptory challenge had the true facts been disclosed. Fine v. Shands Teaching Hospital and Clinics Inc., — So.2d —-, 2008 WL 4722510 (Fla.App. 1 Dist., 10/29/08).

Following a jury verdict for the health care providers in this medical malpractice action, the plaintiff discovered that during voir dire, two of the jurors had withheld information about their previous litigation history. Plaintiff therefore moved the court for judgment notwithstanding the verdict or for a new trial. The court denied the motion, stating, “If I had any indication that there was any connection between their past experiences and their carrying out their responsibilities in this case, I would gladly grant the plaintiff an opportunity to retry the case.”

On appeal, the plaintiff argued that the trial court erred in focusing on whether the jurors were actually biased. The appellate court agreed, noting that, under De La Rosa v. Zequeira , 659 So.2d 239 (Fla. 1995), the test of whether a new trial is warranted because of a juror's nondisclosure of information involves a three-question inquiry: 1) whether the information is relevant and material to jury service in the case; 2) whether the juror concealed the information during questioning; and 3) whether the failure to disclose the information was not attributable to the complaining party's lack of diligence. The proper inquiry for the lower court should have focused on what the appellant's counsel would have done during voir dire had the litigation history been disclosed, rather on whether the court could detect evidence of actual bias. Thus, the order was reversed and the case remanded for reconsideration under the De La Rosa three-part test.