Verdicts

Hospital Bears Burden of Proof When Stripping Doctor of Temporary Privileges

California's Second Appellate District affirmed a lower court judgment that held a hospital bore the burden of proof on its decision to suspend and terminate the temporary-practice privileges of a physician. Bode v. Los Angeles Metropolitan Medical Center, — Cal.Rptr.3d —-, 2009 WL 1624472 (Cal.App. 2 Dist., 6/11/09) (NO. B207183).

Dr. Georgia Bode was granted temporary, but renewable, practice privileges as an anesthesiologist at Los Angeles Metropolitan Medical Center pending her application for membership on the hospital's medical staff. While she was awaiting final action on her application, six incidents of medication mishandling were documented against her, prompting the hospital's surgical chief to send her a warning letter advising her that any further lapses could lead to disciplinary action, including suspension of privileges. A few months later, the hospital's computer-based drug dispensary system, Sure-Med, reported that Dr. Bode had withdrawn several medications for a patient's use but, not using all of them, she returned two of them to the dispensary. However, when hospital staff checked the dispensing machine the following day, they could not find the Demerol that had ostensibly been returned by Dr. Bode. Based on this incident, the doctor was informed that her temporary privileges would not be extended. Dr. Bode demanded a hearing on the matter before a judicial review committee (JRC). There, the doctor testified that she could not explain why the Demerol was missing, and that she was sure one of the hospital's nurses saw her return it. That nurse, in fact, signed off on the return. The nurse in question, however, apparently gave different stories on the incident to different people, and she did not testify at the hearing. The JRC was unsure as to how the burden of proof should be allocated, but concluded that if the burden was on Dr. Bode to refute the charges, she failed to produce sufficient evidence to do so. If the burden was on the hospital, it also did not present sufficient evidence to terminate Dr. Bode's privileges.

Both parties appealed to the hospital's appellate review committee (ARC), which ruled that, as she was only an initial applicant for staff privileges, Dr. Bode bore the burden of proof. As she had failed to “resolve all doubts” about what happened to the missing Demerol ampule, the ARC concluded she also failed to prove she was not responsible for its loss. This, coupled with her earlier difficulties with handling medications, justified her suspension and the non-renewal of her privileges.

On Dr. Bode's administrative mandate petition, the trial court looked to California's Business and Professions Code ' 809.3, which allocates the burden of producing evidence and of proof at medical credentialling hearings in this manner: “Initial applicants” have the burden of proof as to their qualifications, but the peer review body always has the initial duty to present evidence supporting a charge or recommended action by a preponderance of the evidence. The court then ruled, inter alia, that, as she was already a holder of temporary staff privileges at the time of the hearing, Dr. Bode was not an “initial applicant,” and that the ARC had erred in concluding that she bore the burden of proof. The court therefore set aside the hospital's decision to suspend and not renew her temporary privileges.

The hospital appealed, arguing again that Dr. Bode was indeed an “initial applicant” because her temporary privileges were inextricably linked to her pending application for staff membership. The court of appeal affirmed, agreeing that, as Dr. Bode had been granted temporary privileges, she was not an initial applicant with regard to those privileges. As such, the hospital bore the burden of proof in proceedings to strip her of her privileges. (In addition, Dr. Bode had withdrawn her application seeking permanent privileges.)

Resident Evaluations Cannot Be Disclosed in Physician's Divorce Action

Judicial Hearing Officer Stanley Gartenstein of Nassau County, NY, has ruled that hospital resident evaluations of an attending physician are privileged documents that cannot be used by the physician's wife in a divorce action to rebut his stated reduction in income because the evaluations “directly relate to medical instruction of residents at the hospital, in turn profoundly affecting the quality of care provided to patients.” Stern v. Stern, Index No. 07/202572 (Sup. Ct., Nassau Cty. 6/10/09).

In Stern, a wife who was suing her husband for divorce sought discovery of student evaluations of her husband's teaching methods. During the pendency of the divorce proceedings, the husband was stricken from the roster of attending physicians covering nights and weekends by the hospital at which he practiced. This significantly reduced his income. Because the hospital's chairman and the husband had what the wife termed a “cordial relationship,” she suspected that his removal from these duties was prompted by the husband's interest in reducing his income for the purposes of equitable distribution of the marital property in conjunction with the divorce action.

New York's Education Law ' 6527(3) exempts from disclosure documents relating to “medical review and quality assurance functions,” participation in a malpractice prevention program and certain incident reports. The husband's attorneys argued that the teaching evaluations were related to medical quality assurance functions. The hearing officer agreed, finding that resident teaching evaluations are related to hospital decisions concerning the appointment of physicians to teaching roles. In conclusion, stated Gartenstein in his opinion, “We reject any distinction between defendant's other duties and his teaching in view of the patent reality that these responsibilities are intimately and indistinguishably woven into his duties as a member of the obstetrics department and directly impact upon the quality assurance at the hospital, ultimately inuring to the benefit of present and future patients. The evaluations at issue are therefore rules to be privileged.”

GA Supreme Court Allows Evidence of Expert's
Personal Practices

The Supreme Court of Georgia reversed the State's Court of Appeals, ruling that plaintiffs in this medical malpractice case were improperly prohibited from inquiring at trial into the personal practices of defendants' expert witnesses with respect to the medical treatment at issue in the case. Condra v. Atlantic Orthopaedic Group P.C., — S.E.2d —-, 2009 WL 1834217 (Ga. 6/29/09).

The plaintiff sought treatment for back, neck, and arm pain from orthopedist James Chappuis, M.D. He prescribed a 30-day regimen of the anti-convulsive drug Tegretol, followed by another 30-day regimen when her condition had not improved. Shortly after Condra began her second prescription, she started experiencing complications and was eventually diagnosed with aplastic anemia, a rare and serious bone marrow disease. Condra and her husband sued Dr. Chappuis and his orthopedic group for medical malpractice, asserting, inter alia, that Dr. Chappuis had been negligent in failing to conduct blood count monitoring during Condra's Tegretol therapy to detect any potential adverse reactions.

At trial, plaintiffs' expert opined that Condra's development of aplastic anemia could have been avoided had she been tested before she began therapy, and thereafter, to look for changes. Although defense expert Richard Franco, M.D., acknowledged at trial that much of the medical literature recommends blood count monitoring during Tegretol therapy, he said it was not mandatory and that failure to conduct such monitoring did not constitute a breach of the standard of care. He also opined that, even if such monitoring had been conducted, it would have been unlikely to detect development of the aplastic anemia at a point at which its development could have been arrested.

At issue in this appeal was the defense's motion in limine to preclude admission of evidence of the fact that defense expert Dr. Franco's own usual practice was to conduct blood count monitoring when he prescribed Tegretol. The trial court had granted the motion, and the Court of Appeals affirmed, relying on Johnson v. Riverdale Anesthesia Assocs., 275 Ga. 240 (2002), in which a majority of the Georgia Supreme Court held that testimony regarding a medical expert's personal practices was inadmissible both as substantive evidence regarding the applicable standard of care and as impeachment evidence. The Johnson Court reasoned that, because the applicable standard of care in medical malpractice actions refers to those practices employed by the medical profession generally rather than those employed by any individual provider, evidence as to an expert's personal practices was irrelevant in establishing the standard of care. In addition, because a witness may not be impeached with irrelevant facts or evidence, the Johnson court held that such evidence was not admissible for purposes of impeachment.

In finding for the plaintiffs here, Georgia's Supreme Court wrote: “Having considered the matter anew in light of recent statutory developments and the practice of other jurisdictions, we have determined that Johnson is no longer viable. Accordingly, we now overrule Johnson and hold that evidence regarding an expert witness' personal practices, unless subject to exclusion on other evidentiary grounds, is admissible both as substantive evidence and to impeach the expert's opinion regarding the applicable standard of care.” In particular, the court pointed to OCGA ' 24-9-67.1, which, as part of Georgia's tort reform legislation, placed new emphasis on a medical practitioner's personal experiences and practice methods in determining his or her qualifications to testify as an expert. Said the court, “Given the prominence of the expert's personal practice in this threshold inquiry, it would defy logic to find such experience categorically irrelevant in assessing the credibility of the expert's testimony.” Any potential jury confusion as between an expert's personal practices and the accepted standard of care could be dealt with through cross-examination and carefully crafted jury instructions, said the court.

Hospital Bears Burden of Proof When Stripping Doctor of Temporary Privileges

California's Second Appellate District affirmed a lower court judgment that held a hospital bore the burden of proof on its decision to suspend and terminate the temporary-practice privileges of a physician. Bode v. Los Angeles Metropolitan Medical Center, — Cal.Rptr.3d —-, 2009 WL 1624472 (Cal.App. 2 Dist., 6/11/09) (NO. B207183).

Dr. Georgia Bode was granted temporary, but renewable, practice privileges as an anesthesiologist at Los Angeles Metropolitan Medical Center pending her application for membership on the hospital's medical staff. While she was awaiting final action on her application, six incidents of medication mishandling were documented against her, prompting the hospital's surgical chief to send her a warning letter advising her that any further lapses could lead to disciplinary action, including suspension of privileges. A few months later, the hospital's computer-based drug dispensary system, Sure-Med, reported that Dr. Bode had withdrawn several medications for a patient's use but, not using all of them, she returned two of them to the dispensary. However, when hospital staff checked the dispensing machine the following day, they could not find the Demerol that had ostensibly been returned by Dr. Bode. Based on this incident, the doctor was informed that her temporary privileges would not be extended. Dr. Bode demanded a hearing on the matter before a judicial review committee (JRC). There, the doctor testified that she could not explain why the Demerol was missing, and that she was sure one of the hospital's nurses saw her return it. That nurse, in fact, signed off on the return. The nurse in question, however, apparently gave different stories on the incident to different people, and she did not testify at the hearing. The JRC was unsure as to how the burden of proof should be allocated, but concluded that if the burden was on Dr. Bode to refute the charges, she failed to produce sufficient evidence to do so. If the burden was on the hospital, it also did not present sufficient evidence to terminate Dr. Bode's privileges.

Both parties appealed to the hospital's appellate review committee (ARC), which ruled that, as she was only an initial applicant for staff privileges, Dr. Bode bore the burden of proof. As she had failed to “resolve all doubts” about what happened to the missing Demerol ampule, the ARC concluded she also failed to prove she was not responsible for its loss. This, coupled with her earlier difficulties with handling medications, justified her suspension and the non-renewal of her privileges.

On Dr. Bode's administrative mandate petition, the trial court looked to California's Business and Professions Code ' 809.3, which allocates the burden of producing evidence and of proof at medical credentialling hearings in this manner: “Initial applicants” have the burden of proof as to their qualifications, but the peer review body always has the initial duty to present evidence supporting a charge or recommended action by a preponderance of the evidence. The court then ruled, inter alia, that, as she was already a holder of temporary staff privileges at the time of the hearing, Dr. Bode was not an “initial applicant,” and that the ARC had erred in concluding that she bore the burden of proof. The court therefore set aside the hospital's decision to suspend and not renew her temporary privileges.

The hospital appealed, arguing again that Dr. Bode was indeed an “initial applicant” because her temporary privileges were inextricably linked to her pending application for staff membership. The court of appeal affirmed, agreeing that, as Dr. Bode had been granted temporary privileges, she was not an initial applicant with regard to those privileges. As such, the hospital bore the burden of proof in proceedings to strip her of her privileges. (In addition, Dr. Bode had withdrawn her application seeking permanent privileges.)

Resident Evaluations Cannot Be Disclosed in Physician's Divorce Action

Judicial Hearing Officer Stanley Gartenstein of Nassau County, NY, has ruled that hospital resident evaluations of an attending physician are privileged documents that cannot be used by the physician's wife in a divorce action to rebut his stated reduction in income because the evaluations “directly relate to medical instruction of residents at the hospital, in turn profoundly affecting the quality of care provided to patients.” Stern v. Stern, Index No. 07/202572 (Sup. Ct., Nassau Cty. 6/10/09).

In Stern, a wife who was suing her husband for divorce sought discovery of student evaluations of her husband's teaching methods. During the pendency of the divorce proceedings, the husband was stricken from the roster of attending physicians covering nights and weekends by the hospital at which he practiced. This significantly reduced his income. Because the hospital's chairman and the husband had what the wife termed a “cordial relationship,” she suspected that his removal from these duties was prompted by the husband's interest in reducing his income for the purposes of equitable distribution of the marital property in conjunction with the divorce action.

New York's Education Law ' 6527(3) exempts from disclosure documents relating to “medical review and quality assurance functions,” participation in a malpractice prevention program and certain incident reports. The husband's attorneys argued that the teaching evaluations were related to medical quality assurance functions. The hearing officer agreed, finding that resident teaching evaluations are related to hospital decisions concerning the appointment of physicians to teaching roles. In conclusion, stated Gartenstein in his opinion, “We reject any distinction between defendant's other duties and his teaching in view of the patent reality that these responsibilities are intimately and indistinguishably woven into his duties as a member of the obstetrics department and directly impact upon the quality assurance at the hospital, ultimately inuring to the benefit of present and future patients. The evaluations at issue are therefore rules to be privileged.”

GA Supreme Court Allows Evidence of Expert's
Personal Practices

The Supreme Court of Georgia reversed the State's Court of Appeals, ruling that plaintiffs in this medical malpractice case were improperly prohibited from inquiring at trial into the personal practices of defendants' expert witnesses with respect to the medical treatment at issue in the case. Condra v. Atlantic Orthopaedic Group P.C., — S.E.2d —-, 2009 WL 1834217 (Ga. 6/29/09).

The plaintiff sought treatment for back, neck, and arm pain from orthopedist James Chappuis, M.D. He prescribed a 30-day regimen of the anti-convulsive drug Tegretol, followed by another 30-day regimen when her condition had not improved. Shortly after Condra began her second prescription, she started experiencing complications and was eventually diagnosed with aplastic anemia, a rare and serious bone marrow disease. Condra and her husband sued Dr. Chappuis and his orthopedic group for medical malpractice, asserting, inter alia, that Dr. Chappuis had been negligent in failing to conduct blood count monitoring during Condra's Tegretol therapy to detect any potential adverse reactions.

At trial, plaintiffs' expert opined that Condra's development of aplastic anemia could have been avoided had she been tested before she began therapy, and thereafter, to look for changes. Although defense expert Richard Franco, M.D., acknowledged at trial that much of the medical literature recommends blood count monitoring during Tegretol therapy, he said it was not mandatory and that failure to conduct such monitoring did not constitute a breach of the standard of care. He also opined that, even if such monitoring had been conducted, it would have been unlikely to detect development of the aplastic anemia at a point at which its development could have been arrested.

At issue in this appeal was the defense's motion in limine to preclude admission of evidence of the fact that defense expert Dr. Franco's own usual practice was to conduct blood count monitoring when he prescribed Tegretol. The trial court had granted the motion, and the Court of Appeals affirmed, relying on Johnson v. Riverdale Anesthesia Assocs. , 275 Ga. 240 (2002), in which a majority of the Georgia Supreme Court held that testimony regarding a medical expert's personal practices was inadmissible both as substantive evidence regarding the applicable standard of care and as impeachment evidence. The Johnson Court reasoned that, because the applicable standard of care in medical malpractice actions refers to those practices employed by the medical profession generally rather than those employed by any individual provider, evidence as to an expert's personal practices was irrelevant in establishing the standard of care. In addition, because a witness may not be impeached with irrelevant facts or evidence, the Johnson court held that such evidence was not admissible for purposes of impeachment.

In finding for the plaintiffs here, Georgia's Supreme Court wrote: “Having considered the matter anew in light of recent statutory developments and the practice of other jurisdictions, we have determined that Johnson is no longer viable. Accordingly, we now overrule Johnson and hold that evidence regarding an expert witness' personal practices, unless subject to exclusion on other evidentiary grounds, is admissible both as substantive evidence and to impeach the expert's opinion regarding the applicable standard of care.” In particular, the court pointed to OCGA ' 24-9-67.1, which, as part of Georgia's tort reform legislation, placed new emphasis on a medical practitioner's personal experiences and practice methods in determining his or her qualifications to testify as an expert. Said the court, “Given the prominence of the expert's personal practice in this threshold inquiry, it would defy logic to find such experience categorically irrelevant in assessing the credibility of the expert's testimony.” Any potential jury confusion as between an expert's personal practices and the accepted standard of care could be dealt with through cross-examination and carefully crafted jury instructions, said the court.