Verdicts

Once a Doctor Is on the List, He Stays on the List

California's Second Appellate District affirmed a lower court holding that said the state medical board's Internet publication of disciplinary actions taken against a licensed physician must be maintained even after the physician is no longer licensed in California. Fulton v. Medical Board of California, — Cal.Rptr.3d —-, 2010 WL 1633533 (Cal. App. 2 Dist., 4/23/10).

James Fulton was licensed to practice medicine in California and in several other states. However, in 1997, each of these states brought disciplinary actions against him, resulting in his loss of the right to practice medicine anywhere in the United States. The Medical Board of California then posted information on its Web site about the disciplinary actions, where it remains to this day. The disclosures included information about enforcement actions taken against Fulton in California, Florida, New York, and Louisiana.

Following his loss of the right to practice medicine, Fulton turned his energies to the development and sale of skin-care products, which he marketed under his own name, both domestically and internationally. In these promotional materials, he referred to himself as either “Dr.” or “M.D.” and described himself as a “leading researcher, cosmetic surgeon and dermatologist.” Some potential customers and promoters of Fulton's cosmetics products discovered the disciplinary action information on the California Medical Board's Web site. Therefore, Fulton, claiming his business had been adversely impacted by the posting, sued the Board to have the information removed.

Fulton argued that Bus. & Prof. Code ” 803.1 and 2027, which require the Board to publicly disclose pending and completed disciplinary actions against “licensees,” does not apply to those no longer licensed to practice medicine in California. The trial court denied relief, leading to this appeal.

The court of appeals affirmed, holding that the trial court properly construed ” 803.1 and 2027 as applying to individuals both currently and formerly licensed to practice medicine in California. The court found that although neither statute explicitly states that the Board must make disclosures about those who no longer hold a license, several provisions of the statutes demonstrate that this was the legislature's intent. Section 803.1(a) requires the board to disclose “any enforcement actions taken against a licensee by [the board] or by another state ' .” Pursuant to ' 803.1(a)(3), and that such enforcement actions include
“[r]evocations, suspensions, probations, or limitations on practice ordered by the board, including those made part of a ' stipulated agreement.” By definition, “revocations” include licenses that have been revoked and hence are no longer valid. It was thus reasonable to interpret this provision to apply to former license holders. In addition, ' 2027(a)(1) requires the Board to post on the Internet enforcement actions set forth in ' 803.1. Section 2027(b)(1) further requires that the board post such information on its Web site for a period of 10 years after the information comes into the board's possession, with no provision for removal of the information from the Web site once the individual is no longer licensed in California. Limiting required disclosures to current licensees would render this provision ineffectual.

Arbitration Agreement Unfair and Unenforceable

A nursing home's arbitration agreement with a patient was ruled unenforceable because it was a contract of adhesion that contained terms unfairly favorable to the nursing home. McGregor v. Christian care Center of Springfield, LLC, Slip Copy, 2010 WL 1730131 (Tenn.Ct.App.).

Hours after the plaintiff, a 61-year-old woman, signed a nursing home admission agreement, she fell and broke her ankle. She sued for negligence, and the defendant nursing home moved the court to compel her to bring her claim to arbitration in accordance with a separate agreement she had signed as a part of the admissions process. The plaintiff argued, however, that she had signed the agreement while under stress that rendered her unable to fight for herself. She had been brought to the nursing home by ambulance following spinal surgery, and she was in a great deal of pain at the time she was asked to sign the admission forms. The plaintiff, who was not accompanied by any family members, claimed that she asked for pain medication but was informed that none could be given until the admissions process had been completed. The rest of the admissions process took about an hour. The admissions packet included informational sheets, a 16-page admissions agreement and the six-page arbitration agreement that was the source of the dispute in this case.

The arbitration agreement stated, in capital letters: “THIS AGREEMENT WAIVES RESIDENT'S RIGHT TO A TRIAL IN COURT AND A TRIAL BY JURY FOR ANY FUTURE LEGAL CLAIMS RESIDENT MAY HAVE AGAINST FACILITY.” The agreement allowed the nursing home to sue patients in court, however, if a fee dispute arose. It also provided that the nursing home resident had the right to rescind it within 30 days of signing.

After she broke her ankle, McGregor was taken to the hospital for surgery, where she remained hospitalized for more than 30 days. As a consequence of her injuries, she remains incapacitated. Thinking that McGregor would eventually return to the nursing home, the staff left her admissions paperwork in her room with her other personal effects. McGregor testified that she never received a copy of the admissions documents or of the arbitration agreement.

McGregor brought suit for medical malpractice in Tennessee's Robertson County Circuit Court. Christian Care filed a motion to compel arbitration and stay litigation on the basis of the arbitration agreement. McGregor countered that the arbitration agreement was a contract of adhesion that could not be enforced because, inter alia, there were no alternative institutions in which she could have receive her needed rehabilitation under Medicaid, she was in pain at the time she signed the agreement, and the defendant failed to give her a copy of the agreement, which would have informed her that she had the right to rescind it. The trial court agreed with McGregor and refused to enforce the agreement, leading to this appeal.

The Court of Appeals of Tennessee held that the agreement was a contact of adhesion (a “take-it-or-leave-it” proposition) because McGregor had no other facilities to go to and had no alternative but to sign it if she wanted to receive the care she needed. As a contract of adhesion, the court had a duty to scrutinize it closely to look for anything unfair. It found such unfairness in the fact that the agreement favored the nursing home by giving it a judicial forum for some disputes while denying that forum to the patient. The appellate court therefore agreed with the lower court that the arbitration agreement was unconscionable and unenforceable.

Once a Doctor Is on the List, He Stays on the List

California's Second Appellate District affirmed a lower court holding that said the state medical board's Internet publication of disciplinary actions taken against a licensed physician must be maintained even after the physician is no longer licensed in California. Fulton v. Medical Board of California, — Cal.Rptr.3d —-, 2010 WL 1633533 (Cal. App. 2 Dist., 4/23/10).

James Fulton was licensed to practice medicine in California and in several other states. However, in 1997, each of these states brought disciplinary actions against him, resulting in his loss of the right to practice medicine anywhere in the United States. The Medical Board of California then posted information on its Web site about the disciplinary actions, where it remains to this day. The disclosures included information about enforcement actions taken against Fulton in California, Florida, New York, and Louisiana.

Following his loss of the right to practice medicine, Fulton turned his energies to the development and sale of skin-care products, which he marketed under his own name, both domestically and internationally. In these promotional materials, he referred to himself as either “Dr.” or “M.D.” and described himself as a “leading researcher, cosmetic surgeon and dermatologist.” Some potential customers and promoters of Fulton's cosmetics products discovered the disciplinary action information on the California Medical Board's Web site. Therefore, Fulton, claiming his business had been adversely impacted by the posting, sued the Board to have the information removed.

Fulton argued that Bus. & Prof. Code ” 803.1 and 2027, which require the Board to publicly disclose pending and completed disciplinary actions against “licensees,” does not apply to those no longer licensed to practice medicine in California. The trial court denied relief, leading to this appeal.

The court of appeals affirmed, holding that the trial court properly construed ” 803.1 and 2027 as applying to individuals both currently and formerly licensed to practice medicine in California. The court found that although neither statute explicitly states that the Board must make disclosures about those who no longer hold a license, several provisions of the statutes demonstrate that this was the legislature's intent. Section 803.1(a) requires the board to disclose “any enforcement actions taken against a licensee by [the board] or by another state ' .” Pursuant to ' 803.1(a)(3), and that such enforcement actions include
“[r]evocations, suspensions, probations, or limitations on practice ordered by the board, including those made part of a ' stipulated agreement.” By definition, “revocations” include licenses that have been revoked and hence are no longer valid. It was thus reasonable to interpret this provision to apply to former license holders. In addition, ' 2027(a)(1) requires the Board to post on the Internet enforcement actions set forth in ' 803.1. Section 2027(b)(1) further requires that the board post such information on its Web site for a period of 10 years after the information comes into the board's possession, with no provision for removal of the information from the Web site once the individual is no longer licensed in California. Limiting required disclosures to current licensees would render this provision ineffectual.

Arbitration Agreement Unfair and Unenforceable

A nursing home's arbitration agreement with a patient was ruled unenforceable because it was a contract of adhesion that contained terms unfairly favorable to the nursing home. McGregor v. Christian care Center of Springfield, LLC, Slip Copy, 2010 WL 1730131 (Tenn.Ct.App.).

Hours after the plaintiff, a 61-year-old woman, signed a nursing home admission agreement, she fell and broke her ankle. She sued for negligence, and the defendant nursing home moved the court to compel her to bring her claim to arbitration in accordance with a separate agreement she had signed as a part of the admissions process. The plaintiff argued, however, that she had signed the agreement while under stress that rendered her unable to fight for herself. She had been brought to the nursing home by ambulance following spinal surgery, and she was in a great deal of pain at the time she was asked to sign the admission forms. The plaintiff, who was not accompanied by any family members, claimed that she asked for pain medication but was informed that none could be given until the admissions process had been completed. The rest of the admissions process took about an hour. The admissions packet included informational sheets, a 16-page admissions agreement and the six-page arbitration agreement that was the source of the dispute in this case.

The arbitration agreement stated, in capital letters: “THIS AGREEMENT WAIVES RESIDENT'S RIGHT TO A TRIAL IN COURT AND A TRIAL BY JURY FOR ANY FUTURE LEGAL CLAIMS RESIDENT MAY HAVE AGAINST FACILITY.” The agreement allowed the nursing home to sue patients in court, however, if a fee dispute arose. It also provided that the nursing home resident had the right to rescind it within 30 days of signing.

After she broke her ankle, McGregor was taken to the hospital for surgery, where she remained hospitalized for more than 30 days. As a consequence of her injuries, she remains incapacitated. Thinking that McGregor would eventually return to the nursing home, the staff left her admissions paperwork in her room with her other personal effects. McGregor testified that she never received a copy of the admissions documents or of the arbitration agreement.

McGregor brought suit for medical malpractice in Tennessee's Robertson County Circuit Court. Christian Care filed a motion to compel arbitration and stay litigation on the basis of the arbitration agreement. McGregor countered that the arbitration agreement was a contract of adhesion that could not be enforced because, inter alia, there were no alternative institutions in which she could have receive her needed rehabilitation under Medicaid, she was in pain at the time she signed the agreement, and the defendant failed to give her a copy of the agreement, which would have informed her that she had the right to rescind it. The trial court agreed with McGregor and refused to enforce the agreement, leading to this appeal.

The Court of Appeals of Tennessee held that the agreement was a contact of adhesion (a “take-it-or-leave-it” proposition) because McGregor had no other facilities to go to and had no alternative but to sign it if she wanted to receive the care she needed. As a contract of adhesion, the court had a duty to scrutinize it closely to look for anything unfair. It found such unfairness in the fact that the agreement favored the nursing home by giving it a judicial forum for some disputes while denying that forum to the patient. The appellate court therefore agreed with the lower court that the arbitration agreement was unconscionable and unenforceable.