Verdicts

Doctor May Intervene in Suit Against Medical Center

Because a doctor's interests would not be protected by the named defendant, he must be permitted to intervene in the action. Siemen v. Huron Medical Center, 2012 U.S. Dist. LEXIS 35719 (E.D. Mich. 3/16/12).

The plaintiff is the wife of a man who committed suicide within 24 hours of being sent home from the Huron Medical Center, where the wife had taken him for treatment of his suicidal ideation. Although she asked the medical staff there to give her husband medication (a Proxilin injection) and to transfer him to Bay Medical Center for inpatient psychiatric treatment, they did not do so. Because her husband committed suicide that night, she brought this suit for violation of the Emergency Medical Treatment and Active Labor Act (EMTALA) and for medical malpractice, claiming that the medical center was vicariously liable for the failure of Dr. Nikolai Butki, D.O., and other employees to properly treat and/or stabilize her husband's condition before discharging him. Although Dr. Butki is identified in the body of the complaint, he was not named as a defendant.

Soon after the complaint was filed, Dr. Butki notified plaintiff's counsel of his intent to seek intervention and provide his own defense to the allegations. Dr. Butki asked to intervene as a defendant as of right pursuant under Federal Rules of Civil Procedure 24(a). The plaintiff objected, asserting that she had made a deliberate strategic decision to name only the Huron Medical Center as a defendant, in order to keep discovery as simple as possible and not have to deal with the slew of attorneys the nine other potential defendants might employ.

The court explained that the four elements for intervention as of right are: 1) timeliness of the application to intervene; 2) the applicant's substantial legal interest in the case; 3) impairment of the applicant's ability to protect that interest in the absence of intervention; and 4) inadequate representation of that interest by parties already before the court. Stupak-Thrall v. Glickman, 226 F.3d 467 (6th Cir. 2000). The court found the application was timely and that Dr. Butki had shown a substantial interest in the case in that a finding of medical malpractice could affect his reputation, his license and his employability. It also found that his interests would be impaired if he were not permitted to intervene, as his interests and those of Huron Medical Center were not identical. For example, Huron might settle to keep costs down, admitting to medical malpractice on Dr. Butki's part that he would not wish to admit to if he were the named defendant. In addition, Huron Medical Center had not waived its indemnification rights, so if a judgment or settlement were paid out by the facility, it could then go after Dr. Butki for reimbursement. For these reasons, Dr. Butki's motion to intervene as of right was granted.

Medicaid Exclusion Was Impermissible

The State of New York State erred in barring a disciplined physician from the Medicaid program because he pleaded no contest only to charges involving non-Medicaid patients. Matter of Koch v. Sheehan, 2012 N.Y. App. Div. LEXIS 2220 (3/23/12).

A doctor pleaded no contest to disciplinary charges that he failed to meet the standard of care in treating certain of his patients. In accordance with a consent order effective June 9, 2009, the New York State Department of Health then placed him on probation for 36 months. Based on this, nine months later the Office of the Medicaid Inspector General excluded the doctor from participating in the Medicaid program.

The doctor objected, arguing that he had not agreed to a Medicaid exclusion when settling with New York's Department of Health, and that exclusion from the Medicaid program would impair his practice. A New York trial court agreed with the doctor and ordered him reinstated, although other trial courts in the state had sided with the Inspector General in similar circumstances. The Fourth Appellate Department ' the first New York appeals division to decide the issue ' unanimously agreed with the doctor and the trial court. Writing for the court, Justice Salvatore R. Martoche compared the penalty the doctor agreed to with a “censure or reprimand.” He said the doctor probably would not have consented to the settlement “had he known that he effectively would not be allowed to practice medicine, because the charges to which he pleaded no contest would be used against him factually to exclude him from the Medicaid program.” The court also found that the Office of the Medicaid Inspector General must conduct its own investigations, and cannot simply base a decision to withdraw a doctor's Medicaid program eligibility on another agency's investigation of patient cases that involved no Medicaid beneficiaries.

Doctor May Intervene in Suit Against Medical Center

Because a doctor's interests would not be protected by the named defendant, he must be permitted to intervene in the action. Siemen v. Huron Medical Center, 2012 U.S. Dist. LEXIS 35719 (E.D. Mich. 3/16/12).

The plaintiff is the wife of a man who committed suicide within 24 hours of being sent home from the Huron Medical Center, where the wife had taken him for treatment of his suicidal ideation. Although she asked the medical staff there to give her husband medication (a Proxilin injection) and to transfer him to Bay Medical Center for inpatient psychiatric treatment, they did not do so. Because her husband committed suicide that night, she brought this suit for violation of the Emergency Medical Treatment and Active Labor Act (EMTALA) and for medical malpractice, claiming that the medical center was vicariously liable for the failure of Dr. Nikolai Butki, D.O., and other employees to properly treat and/or stabilize her husband's condition before discharging him. Although Dr. Butki is identified in the body of the complaint, he was not named as a defendant.

Soon after the complaint was filed, Dr. Butki notified plaintiff's counsel of his intent to seek intervention and provide his own defense to the allegations. Dr. Butki asked to intervene as a defendant as of right pursuant under Federal Rules of Civil Procedure 24(a). The plaintiff objected, asserting that she had made a deliberate strategic decision to name only the Huron Medical Center as a defendant, in order to keep discovery as simple as possible and not have to deal with the slew of attorneys the nine other potential defendants might employ.

The court explained that the four elements for intervention as of right are: 1) timeliness of the application to intervene; 2) the applicant's substantial legal interest in the case; 3) impairment of the applicant's ability to protect that interest in the absence of intervention; and 4) inadequate representation of that interest by parties already before the court. Stupak-Thrall v. Glickman , 226 F.3d 467 (6th Cir. 2000). The court found the application was timely and that Dr. Butki had shown a substantial interest in the case in that a finding of medical malpractice could affect his reputation, his license and his employability. It also found that his interests would be impaired if he were not permitted to intervene, as his interests and those of Huron Medical Center were not identical. For example, Huron might settle to keep costs down, admitting to medical malpractice on Dr. Butki's part that he would not wish to admit to if he were the named defendant. In addition, Huron Medical Center had not waived its indemnification rights, so if a judgment or settlement were paid out by the facility, it could then go after Dr. Butki for reimbursement. For these reasons, Dr. Butki's motion to intervene as of right was granted.

Medicaid Exclusion Was Impermissible

The State of New York State erred in barring a disciplined physician from the Medicaid program because he pleaded no contest only to charges involving non-Medicaid patients. Matter of Koch v. Sheehan , 2012 N.Y. App. Div. LEXIS 2220 (3/23/12).

A doctor pleaded no contest to disciplinary charges that he failed to meet the standard of care in treating certain of his patients. In accordance with a consent order effective June 9, 2009, the New York State Department of Health then placed him on probation for 36 months. Based on this, nine months later the Office of the Medicaid Inspector General excluded the doctor from participating in the Medicaid program.

The doctor objected, arguing that he had not agreed to a Medicaid exclusion when settling with New York's Department of Health, and that exclusion from the Medicaid program would impair his practice. A New York trial court agreed with the doctor and ordered him reinstated, although other trial courts in the state had sided with the Inspector General in similar circumstances. The Fourth Appellate Department ' the first New York appeals division to decide the issue ' unanimously agreed with the doctor and the trial court. Writing for the court, Justice Salvatore R. Martoche compared the penalty the doctor agreed to with a “censure or reprimand.” He said the doctor probably would not have consented to the settlement “had he known that he effectively would not be allowed to practice medicine, because the charges to which he pleaded no contest would be used against him factually to exclude him from the Medicaid program.” The court also found that the Office of the Medicaid Inspector General must conduct its own investigations, and cannot simply base a decision to withdraw a doctor's Medicaid program eligibility on another agency's investigation of patient cases that involved no Medicaid beneficiaries.