Medical Services Law Update


Michigan Appellate Court Finds No Ostensible Agency Claim Against Hospital for Radiology Review

Many jurisdictions including New York, Florida, California, Rhode Island, Pennsylvania, Oregon, Illinois, and Connecticut have held hospitals vicariously liable for the malpractice of independent physicians who appear to be acting on the hospitals’ behalf.  InPurcell v. Griffin a Michigan Court of Appeals (Dec. 11, 2008) reached an opposite conclusion. The court found there was no evidence the hospital did anything to contribute to the patient’s purported belief that radiologists who interpreted his studies were hospital agents.  The patient signed consent forms stating the treating physicians were independent contractors.  The court rejected the patient’s reliance on radiology reports containing the hospital’s logo and address.  Since the reports were created after the x-rays were taken, they could not have resulted in a belief of agency at the time services were rendered.

On-line Medical Record

As reported by the Boston Globe on June 19, 2009, physicians at many facilities prepare “shadow notes” about patients that do not become part of the on-line medical record.  Funded by a grant from the Robert Wood Johnson Foundation to study this issue, Beth Israel Deaconess Medical Center is about to begin a project called “Open Notes” in which about 100 physicians at the hospital and two other sites will allow 25-35,000 patients to read their physicians’ notes for a year as part of their on-line medical record.  Detailed surveys will be distributed to determine whether patients read the notes and find them useful, and whether having access to their doctors' notes enables patients to discover errors.  One question for doctors will be whether they continue to keep private notes patients can’t see to avoid conflict.  The ultimate measure of success will be whether doctors and patients want to keep sharing notes at the end of the study.

Requirement that Expert Witnesses in Medical Malpractice Actions Practice or teach in the Defendant's Specialty Passes Constitutional Muster 

The constitutionality of an Arizona State Statute requiring expert witnesses in medical malpractice actions to have practiced or taught in the same specialty as the defendant at the time of the alleged malpractice was sustained in Seisinger v. Siebel (March 2009).  In Seissenger the plaintiff disclosed a retired anesthesiologist as an expert.  The defendant filed a motion to exclude the expert’s testimony on the basis that the expert did not meet the statute's temporal practice or teaching requirement.  The trial court granted the motion.  On appeal the plaintiff argued the statute violated the separation-of-powers doctrine, and was in conflict with judicially adopted rule of evidence 702 that provides an expert qualified by “knowledge, skill, experience, training, or education” may testify if the expert’s testimony will assist the trier of fact.  The Arizona Supreme Court overruled and vacated the trial court’s ruling, holding the statute did not violate the separation of powers doctrine.

Blogs

Online journals concerning specific industries, hosted by one of our attorneys, with regular entries of commentary and descriptions of relevant events.


Our News

First Annual NKMS Puppy Party for All Dog Loving Employees & Friends Of The Firm
[7/29/2010]

Chambers USA 2010 Recognizes Four NKMS Attorneys As Among The Nation's Best
[6/15/2010]

NKMS attorneys edit and author A Practical Guide to Evidence in New Hampshire
[6/8/2010]


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