NKMS: Differential Diagnosis

How far does the privilege of MGL c. 233 sec. 20B extend? The privilege protects communications between a psychiatrist and a psychotherapist from discovery or admission into evidence, except in certain situations enumerated by statute. In the past, the courts of the Commonwealth have held that this privilege must give way in some instances (under a balancing test) to the constitutional right of a criminal defendant to confront his accusers. See Commonwealth v. Stockhammer and progeny. The Board of Registration in Medicine (“Board”) has taken the position that a similar “balancing test” applies when it seeks to obtain patient records in the course of an investigation. The public safety interest in regulating medical practice, the Board argued, should be weighed against the privacy rights of the patients whose records are at issue. The Board has also argued previously for a very narrow definition of “psychotherapist”.

Not so fast, says the SJC. In Board of Registration in Medicine v. John Doe, the SJC held that the statute does not provide for access to psychiatric records by the Board without the consent of the patients involved. Unlike the criminal context, in which countervailing constitutional interests are at stake, the “public safety interest” posited by the Board is insufficient to pierce the privilege. Any further exception, the Court held, is for the legislature.

In future Board investigations, respondent psychiatrists may argue that the Board is barred from accessing psychiatric records without patient authorization and/or an evidentiary hearing. Further, under the existing case law regarding the privilege of MGL sec. 233 sec. 20B, see Commonwealth v. Oliveira, psychiatrists may now have an affirmative obligation to contest Board demands for records on behalf of their patients. Last, the term “psychotherapist” applied in this case to a physician practicing pain management, a recognized subspecialty of psychiatry. However, the SJC stopped short of elevating the right of confidentiality set forth in Alberts v. Devine as a privilege – the Court decided the appeal on the statutory privilege, and did not reach this issue.

The Massachusetts Appeals Court recently ruled a hospital is entitled to charitable immunity in a case involving allegations of sexual abuse by an employee that occurred decades before the suit was filed. The plaintiff brought suit in 2006 against a psychotherapist employed by Children’s Hospital Medical Center where he had been a patient in the late 1960s. The plaintiff alleged the psychoterapist abused him, and tha the hospital was negligent in its hiring, training and supervision of the doctor. The hospital filed a motion to dismiss, arguing the doctrine of charitable immunity, as it existed under the common law at the time of the alleged assaults, barred recovery. The trial court denied this motion. The appeals court vacated the trial court’s judgment. The court concluded that at the time of the alleged abuse the hospital had the benefit of absolute charitable immunity. Doe v. Levine, No. 09-P-466 (Mass. App. Ct. June 24, 2010)

Suspension of Privileges Does Not Result in National Practitioner Data Bank Report
A Montana hospital suspended the privileges of its hospitalist when he ordered outpatient lab tests and studies for his family and children who had been diagnosed with a rare life-threatening condition. The hospital by-laws permit it to investigate any physician who acted contrary to the ethical mission of the medical profession. When his privileges were suspended, the physician successfully enjoined the hospital from notifying the National Practitioner Data Bank and the State Board of Medical Examiners. The Montana Supreme Court upheld the lower court’s injunction, concluding the physician demonstrated a likelihood of irreparable harm to his professional reputation if the reports were sent. There was no evidence the physician was a danger to patients or staff, and the record contained evidence he was an excellent physician.

See Doe v. Med. Ctr., Inc. (Mont. Nov. 2009)

A jury recently found that where a plaintiff alleges a “wrong tooth” extraction, no liability will lie if the tooth was in fact diseased on radiographic examination.

In Randall-Gibson v. Druce, the plaintiff alleged that a general dentist extracted a “perfectly healthy” tooth, because it did not appear diseased on examination. However, the defendant dentist was able to demonstrate the tooth was in fact diseased on radiographic examination, resulting in a defense verdict.

Massachusetts Courts have long held that a plaintiff’s expert, offering an opinion in an Offer of Proof before a medical malpractice tribunal, need not use “magic words” or formulaic terms. An Offer of Proof may be deemed sufficient to survive the low, directed verdict standard if its content is adequate. However, even this leniency will stretch only so far. In a recent medical malpractice tribunal case, the panel found the plaintiff’s Offer of Proof insufficient. The plaintiff’s expert stated it would have been “good medical practice” for the defendant physician to order a CT scan. The tribunal panel ruled that where the plaintiff’s expert had not expressly stated that this was a deviation from the standard of care, the Offer would fail. In Cooper v. Cooper-Ciccarelli, D.O. the appeals court affirmed, noting further that the plaintiff’s expert assumed facts not in the record when reaching this opinion.

The First Circuit Court of Appeals recently handed down a decision in Gorelick v. Costin a claim under 42 USC sec. 1983. The claim was filed by Dr. Gorelick, a licensee of the New Hampshire Board of Medicine (“Board”) against Kevin Costin, PA-C, Board President. In Costin, the plaintiff alleged that the Board improperly labeled an action “disciplinary”, and repeatedly republished this inaccurate information on its web site in violation of her due process rights. The District Court dismissed Dr. Gorelick’s Complaint as untimely, noting that the original mischaracterization of the “action” took place eleven years ago and the Board’s web site was insufficient to constitute “republication” of the statement. The Court also rejected Dr. Gorelick’s alternative argument, concluding there was no evidence of retaliation by the Board that would bring her claims within the statute of limitations. The First Circuit Court of Appeals affirmed.

Since the First Circuit never reached the merits of the claim, the issue of whether a 1983 claim can lie against the President of the Board in his official capacity was not addressed. As noted here on
Differential Diagnosis, , the First Circuit recently held, in reviewing a Massachusetts claim by a licensee against the Board of Registration in Psychology, that no such claim can lie – the Court in that case found the individual Board members protected by “quasi-judicial” immunity.

Many of Massachusetts professional boards look to the Massachusetts Board of Registration in Medicine (“BORM”) for persuasive precedent in adjudicatory cases. These boards also tend to pattern their investigative procedures and their enforcement actions to mirror those of the BORM.

As we have discussed in previous entries here, the BORM has a “zero tolerance” policy for practicing with a lapsed license, and has imposed fines up to $7500 and sanctions including public reprimand for seemingly innocent days of “unlicensed” practice during the time a renewal card was in process, but had not yet been received by the licensee. Will other boards follow suit?

Trends say yes. Of note, the most recent agenda for the Massachusetts Board of Registration in Dentistry lists seven active prosecutions for practicing dentistry with an expired license. A word to the wise, whatever your licensure: don’t see patients without an active license in your pocket.

The Massachusetts Board of Registration in Medicine (“Board”) has posted testimony from recent live hearings on its new licensing regulations as well as public comments posted to date and new comment periods. Once these regulations are promulgated, it is likely the Board will move on to amend its disciplinary regulations – stay tuned!

On Tuesday, April 13, a Los Angeles jury ruled against a man who accused a hospital and two doctors of medical malpractice after a surgical procedure left his infant son with brain damage.

The principal issue in the case, which was filed by Eduardo Rivas, was whether or not he gave consent for the 2007 surgery, after his son Nathan was born prematurely with a double hernia.

Though the California Department of Public Health issued a report saying that the Children’s Hospital of Los Angeles could not provide a record of the Spanish-speaking Rivas giving consent, Superior Court Judge Luis Lavin ruled the statement inadmissible.

The hospital’s attorneys argued that Nathan’s problems were primarily due to being born about four months prematurely.

“We take comfort in the validation from the jury that we obtained Mr. Rivas’ consent to perform surgery on his son and that we did what was medically necessary for Nathan,” Children’s Hospital spokesman Steve Rutledge, told the Los Angeles Times.