Med Mal News

Staffing Agencies May Be Held Vicariously Liable for Doctors' Mistakes

In New Jersey, companies that provide medical staff to healthcare facilities may find themselves vicariously liable for medical malpractice damages if mistakes occur, even if they consider the medical personnel they have placed to be independent contractors. This is what a New Jersey appeals court said Oct. 11 when it reinstated a claim brought in Monk v. Emergency Physician Assocs., A-489-11, by the widow of a patient who died at Virtua/West Jersey Hospital after allegedly being given an overdose of the painkiller Dilaudid there. The doctor accused of this negligence, Joseph O'Connell, was provided to the hospital through Emergency Physician Associates (EPA), a Woodbury, NJ, company that staffed the hospital's emergency room. The trial court granted summary judgment to EPA after concluding that Dr. O'Connell was merely an independent contractor of the company. The Appellate Division disagreed, finding that the facts that EPA termed O'Connell an “independent contractor” in its contracts and did not withhold income taxes or pay unemployment taxes for him were not dispositive on the issue of agency. Several other things rendered him an “employee” of EPA, the court found, including these: EPA could terminate O'Connell's contract for cause; EPA paid O'Connell an hourly rate and was to give him bonuses for certain things; EPA paid O'Connell's medical malpractice insurance premiums; EPA handled patient billing for O'Connell, using his name and then paying him from the proceeds; and EPA provided the hospital with its chief medical director of emergency medical services, who was authorized to act on EPA's behalf and to manage the E.R's daily operations. The appeals court also found that the nature-of-the-work test for determining employee status was satisfied because O'Connell's income depended on EPA, his work was integral to the company and EPA had an ongoing contractual and business relationship with him and with its other doctors.

Insurance Carrier Accuses Rival Broker

Medical malpractice carrier New Jersey Physicians United Reciprocal Exchange (NJPURE) markets its insurance products directly to doctors rather than through insurance brokers. According to its promotional materials, this allows the insurer to “cut out the middle man” and keep premiums lower. Now, NJPURE has filed suit against a medical mapractice insurance brokerage, claiming that that firm, Boynton & Boynton, and its vice president Kevin Byrne, sent e-mails containing false and denigrating statements about the insurer to doctors, injuring its business. The suit, which seeks injunctive and compensatory relief, claims Byrne's e-mails falsely advised an employee of ObGyn Associates of North Jersey that NJPURE had been fined for disparaging rival carriers and was facing a bad-faith claim stemming from a case involving a multi-million dollar jury verdict against one of its insureds. NJPURE's complaint includes claims for unfair competition under the Lanham Act, trade libel, defamation, tortious interference and unfair or deceptive acts under the state Insurance Trade Practices Act (ITPA).

'Conversion Therapy'

In October 2012, California Governor Jerry Brown signed a new law prohibiting licensed therapists from attempting to change a young person's sexual orientation from homosexual to heterosexual through so-called “conversion” or “reparative” therapy. The law applies to patients under the age of 18. In response, the conservative advocacy group Pacific Justice Institute (PJI), on behalf of three named therapist plaintiffs, filed a petition in the U.S. District Court for the Eastern District of California. According to a PJI release, the suit was brought to “protect the rights of families to seek treatment for sexually confused youth; the rights of mental health professionals to offer their best professional counsel, not a script dictated by the government; and the rights of churches to offer professional counseling consistent with their doctrinal beliefs,” by temporarily enjoining the State from enforcing the law against the named plaintiffs when it was planned to go into effect on Jan. 1. The court complied with that request in early December, temporarily enjoining the application of the law to those plaintiffs after concluding that it likely impinges on their First Amendment rights to express their opinions about homosexuality when providing therapy. Following close on that decision was an additional one from another judge, also sitting in California's Eastern District Court, who went the opposite way, denying a request for temporary injunction because the court deemed the new law to be a regulation of professional conduct rather than a restriction on free speech.

Meanwhile, four New Jersey plaintiffs have brought suit against a conversion therapy program called JONAH (Jews Offering New Alternatives for Healing), asserting that its therapists defrauded them by claiming they could “cure” the plaintiffs of homosexual impulses, when the therapy instead induced depression, anxiety and self-destructive behavior in the plaintiffs.

Staffing Agencies May Be Held Vicariously Liable for Doctors' Mistakes

In New Jersey, companies that provide medical staff to healthcare facilities may find themselves vicariously liable for medical malpractice damages if mistakes occur, even if they consider the medical personnel they have placed to be independent contractors. This is what a New Jersey appeals court said Oct. 11 when it reinstated a claim brought in Monk v. Emergency Physician Assocs., A-489-11, by the widow of a patient who died at Virtua/West Jersey Hospital after allegedly being given an overdose of the painkiller Dilaudid there. The doctor accused of this negligence, Joseph O'Connell, was provided to the hospital through Emergency Physician Associates (EPA), a Woodbury, NJ, company that staffed the hospital's emergency room. The trial court granted summary judgment to EPA after concluding that Dr. O'Connell was merely an independent contractor of the company. The Appellate Division disagreed, finding that the facts that EPA termed O'Connell an “independent contractor” in its contracts and did not withhold income taxes or pay unemployment taxes for him were not dispositive on the issue of agency. Several other things rendered him an “employee” of EPA, the court found, including these: EPA could terminate O'Connell's contract for cause; EPA paid O'Connell an hourly rate and was to give him bonuses for certain things; EPA paid O'Connell's medical malpractice insurance premiums; EPA handled patient billing for O'Connell, using his name and then paying him from the proceeds; and EPA provided the hospital with its chief medical director of emergency medical services, who was authorized to act on EPA's behalf and to manage the E.R's daily operations. The appeals court also found that the nature-of-the-work test for determining employee status was satisfied because O'Connell's income depended on EPA, his work was integral to the company and EPA had an ongoing contractual and business relationship with him and with its other doctors.

Insurance Carrier Accuses Rival Broker

Medical malpractice carrier New Jersey Physicians United Reciprocal Exchange (NJPURE) markets its insurance products directly to doctors rather than through insurance brokers. According to its promotional materials, this allows the insurer to “cut out the middle man” and keep premiums lower. Now, NJPURE has filed suit against a medical mapractice insurance brokerage, claiming that that firm, Boynton & Boynton, and its vice president Kevin Byrne, sent e-mails containing false and denigrating statements about the insurer to doctors, injuring its business. The suit, which seeks injunctive and compensatory relief, claims Byrne's e-mails falsely advised an employee of ObGyn Associates of North Jersey that NJPURE had been fined for disparaging rival carriers and was facing a bad-faith claim stemming from a case involving a multi-million dollar jury verdict against one of its insureds. NJPURE's complaint includes claims for unfair competition under the Lanham Act, trade libel, defamation, tortious interference and unfair or deceptive acts under the state Insurance Trade Practices Act (ITPA).

'Conversion Therapy'

In October 2012, California Governor Jerry Brown signed a new law prohibiting licensed therapists from attempting to change a young person's sexual orientation from homosexual to heterosexual through so-called “conversion” or “reparative” therapy. The law applies to patients under the age of 18. In response, the conservative advocacy group Pacific Justice Institute (PJI), on behalf of three named therapist plaintiffs, filed a petition in the U.S. District Court for the Eastern District of California. According to a PJI release, the suit was brought to “protect the rights of families to seek treatment for sexually confused youth; the rights of mental health professionals to offer their best professional counsel, not a script dictated by the government; and the rights of churches to offer professional counseling consistent with their doctrinal beliefs,” by temporarily enjoining the State from enforcing the law against the named plaintiffs when it was planned to go into effect on Jan. 1. The court complied with that request in early December, temporarily enjoining the application of the law to those plaintiffs after concluding that it likely impinges on their First Amendment rights to express their opinions about homosexuality when providing therapy. Following close on that decision was an additional one from another judge, also sitting in California's Eastern District Court, who went the opposite way, denying a request for temporary injunction because the court deemed the new law to be a regulation of professional conduct rather than a restriction on free speech.

Meanwhile, four New Jersey plaintiffs have brought suit against a conversion therapy program called JONAH (Jews Offering New Alternatives for Healing), asserting that its therapists defrauded them by claiming they could “cure” the plaintiffs of homosexual impulses, when the therapy instead induced depression, anxiety and self-destructive behavior in the plaintiffs.