Thursday, November 24, 2011

HICKS v ARKANSAS MEDICAL BOARD - Administrative Agency Power - Uses and Abuses

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1.  Rule Making by Administrative Agencies
2.  Limits of power of agencies
3.  Hicks case - REQUIRED READING
4.  Texas Podiatrists vs. Orthopedists

Administrative agencies are created by the legislature to take care of specific governmental duties.  At the state level, the Board of Medicine is an agency that licenses, regulates and disciplines physicians.  On the other hand, the Food and Drug Administration (FDA) is one of many federal administrative agencies.

Although the legislative power [the power to create laws] rests with the state legislature at the state level and the federal legislature (Congress) at the federal level, when a legislature creates an administrative agency it will often give that agency limited rule making authority.  Administrative regulations adopted by and administrative agency generally have the force of law.
However, it is not uncommon for an agency to adopt a regulation that goes beyond the authority granted to it by the legislature.  In that event, the regulation can be challenged in court.

In the Hicks case, the Arkansas Board of Medicine adopted a regulation describing cosmetic ear piercing as 'surgery' and bringing all persons who did ear piercing under the control of the Board of Medicine and subject to their control and discipline.  Edna Hicks, doing business as The Beauty Box, challenged the Board of Medicine in court.  She lost in the lower courts, but won on appeal.   The Arkansas Board of medicine had exceeded its authority.

The Hicks case follows below.  When reading it, take note of the line of reasoning adopted by the court, but also take notice of the fact that the court draws on dictionary definitions of 'surgery' and also uses a prior case of its own for the definition of 'surgery'.  Note, as well, that the court looks to cases in other states (persuasive precedents) to help guide it to its final decision.

Following the Hicks case there is a link to a Texas case in which a rule adopted by one state agency, the Board of Podiatry, is challenged by other agencies.  The dispute in that case centered on the Podiatrists' attempt to claim that the ankle is a part of the foot and therefore something that can be treated by podiatrists.  Physicians disagreed, claiming they owned the ankle for treatment purposes.  The physicians prevailed. 


260 Ark. 31, 537 S.W.2d 794 (Ark. 06/21/1976)
 Supreme Court of Arkansas
June 21, 1976




 The opinion of the court was delivered by: Elsijane T. Roy, Justice.

Appellant Edna Hicks, a licensed cosmetician, desired to offer ear piercing as a service to her customers. She filed a petition with the Arkansas State Medical Board (hereafter Board) requesting a declaratory ruling that the piercing of ears was not within the definition of the practice of medicine or surgery. On June 12, 1975, the Board after a hearing decided that ear piercing was encompassed in the phrase "the practice of medicine" as defined in Ark. Stat. Ann. 72-604 (Repl. 1964). The circuit court affirmed the decision of the Board and from that affirmation comes this appeal.
Appellant first urges that "the findings, conclusions and decision of the Board,
affirmed by the circuit court, are based upon an error of law." Ark. Stat. Ann. 72-604(1) provides:
(1) The term "practice of medicine" shall mean:

(a) holding out one's self to the public within this state as being able to diagnose, treat, prescribe for, palliate or prevent any human disease, ailment, injury, deformity, or physical or mental condition, whether by the use of drugs, surgery, manipulation, electricity, or any physical, mechanical or other means whatsoever;
(b) suggesting, recommending, prescribing or administering any form of treatment, operation or healing for the intended palliation, relief, or cure of any physical or mental disease, ailment, injury, condition or defect of any person with the intention of receiving therefor, either directly or indirectly, any fee, gift, or compensation whatsoever;
(c) the maintenance of an office, or other place to meet persons, for the purpose of examining or treating persons afflicted with disease, injury or defect of body or mind;
(d) using the title M.D., M.B., Physician, Surgeon, or any word or abbreviation to indicate or induce others to believe that one is engaged in the diagnosis or treatment of persons afflicted with disease, injury or defect of body or mind, except as otherwise expressly permitted by the laws of this state now or hereafter enacted relating to the practice of any limited field of the healing arts; or
(e) performing any kind of surgical operation upon a human being. If any person who does not possess a valid license to practice medicine within this state and who shall not be exempted from the licensing requirements hereunder, shall do any of the acts hereinabove mentioned as constituting the practice of medicine, shall be deemed to be practicing medicine without complying with the provisions of this Act
and in violation thereof.

      We consider the issue raised in this case to be primarily a question of interpretation of the definitional aspects of the statute rather than a question of fact. The testimony of the two doctors at the Board hearing dealt mainly with possible adverse effects from the ear piercing procedure if not properly carried out. However, the Board after its hearing noted that it had ". . . consistently interpreted the practice of surgery as contained in the Arkansas Medical Practices Act as being the penetration of the epidermis by mechanical instruments or appliances. . . ," and would include the procedure of ear piercing.
At the Board hearing a copy of an advisory opinion issued by the attorney general was introduced. The opinion, relying upon Subsection (e) of 72-604(1), supra, determined that ear piercing was a surgical procedure within the intendment of this subsection and thus could be performed only by a licensed physician or other qualified person acting under physician supervision. The Board premised its determination of the issue to a large extent on the attorney general's opinion.

The opinions of executive agencies are not, of course, binding upon the court, but are held to some extent persuasive. In Shivers, et al v. Moon Distributors, Inc., et al, 223 Ark. 371, 265 S.W.2d 947 (1954), we said:
* * * Inasmuch as the interpretation of statutes is a judicial function, naturally the construction placed upon a statute by an executive or administrative official will not be binding upon the court.
We cannot agree with the interpretation placed on the statute by the attorney general and the Board. In interpreting statutes ". . . we give words their ordinary and usually accepted meaning in common language [citations omitted]," Phillips Petroleum Co. v. Heath, 254 Ark. 847, 497 S.W.2d 30 (1973); Kaiser v. Price-Fewell, Inc., 235 Ark. 295, 359 S.W.2d 449 (1962), and avoid resort to ". . . subtle and forced construction for the purpose of limiting or extending the meaning [citation omitted]," Black v. Cockrill, Judge, 239 Ark. 367, 389 S.W.2d 881 (1965).

      "Surgery" is a word which, commonly defined, embraces a more complex procedure than the relatively simple technique used in piercing ears.

Webster's New International Dictionary, 2nd Ed., defines surgery as:  That branch of medical science, art, and practice, which is concerned with the correction of deformities and defects, the repair of injuries, the diagnosis and cure of diseases, the relief of suffering, and the prolongation of life, by manual and instrumental operations.
 Black's Law Dictionary, Revised 4th Ed., 1968, defines surgery as: The art or practice of healing by manual operation; that branch of medical science which treats of mechanical or operative measures for healing diseases, deformities or injuries.

     To the same effect see Random House Dictionary of the English Language, 1966 Ed., and Maloy's Medical Dictionary for Lawyers. It follows that when we accord the word "surgery" its most commonly accepted definition such definition excludes the process here under review.
We noted in Aetna Life Ins. Co. & Pacific Mutual Life Ins. Co. v. Orr, 205 Ark. 566, 169 S.W.2d 651 (1943), that: …[S]urgery is defined as: "That branch of medical science which treats of mechanical or operative measures for healing diseases, deformities or injuries."
The statutory language at issue herein denominates as the practice of medicine the representation to the public by an individual of those skills which can aid in the palliation or prevention of ". . . any human disease, ailment, injury, deformity, or physical or mental condition . . ." by various methods including surgery.
The case of People v. Lehrman, 251 App. Div. 451, 296 N.Y.S. 580 (N.Y. App. Div. 1937), construed the statutory words "practice of medicine" as related to electrolysis for hair removal. This process involved the penetration of the skin with an electrically charged needle. The court held that the definition in the statute in Lehrman (basically analogous to our own) was never meant to include the process questioned, and the court stated:  Practices such as this have always been held to be matters of personal taste and adornment and not connected with the practice of medicine.
Ear piercing is a simple physical change effected solely to facilitate the wearing of ear ornamentation. It is an uncomplicated penetration of the skin and tissue of the ear lobe by a sharp instrument. The procedure is not as serious as the normal anatomical change customarily wrought by surgery. It is not a corrective undertaking, nor one intended to accomplish a palliative objective. No transformation other than an opening in the ear lobe is created, and it is thus distinguishable from the more conspicuous alteration normal cosmetic surgery is intended to provide.
Although not controlling, we note that in Texas the attorney general, in interpreting a statute similar to our own, ruled that ear piercing did not constitute the practice of medicine. Other states, including Arizona, Virginia, Kansas, New Jersey, Georgia and California, have, through opinions rendered by their respective attorneys general or state medical boards, excluded the piercing of ears as a procedure to be found within the term "the practice of medicine." Appellee has not cited and our research has not disclosed any decisions to the contrary except the decision involved in this
We are not unmindful nor unconcerned about possible adverse effects from "uncontrolled ear piercing." However, we are not at liberty to declare, by judicial interpretation, a procedure "surgery" which is not encompassed by the legislative enactment under consideration.        Reversed.

[Note re 'Reversed':  The lower court's decision in favor of the Board of Medicine was reversed.]

The following case [linked] is suggested reading.  In it the Texas Board of Medicine (and others) sued the Texas Board of Podiatric Medical Examiners claiming that the legislature had not given the board of podiatry the authority to adopt an administrative regulation that included the ankle with the foot, broadening the scope of practice for podiatrists.  Physicians won on their claim that they got ankles and podiatrists needed to treat only feet under existing law.


TEXAS ORTHOPAEDIC ASSOCIATION, Texas Medical Association and Andrew M. Kant, M.D., Appellants 


TEXAS STATE BOARD OF PODIATRIC MEDICAL EXAMINERS;  Texas Podiatric Medical Association;  and Bruce A. Scudday, D.P.M., Appellees.

No. 03-05-00620-CV.

-- May 23, 2008

Before Justices B.A. SMITH, PURYEAR and WALDROP.

Susan Henricks, Hull, Henricks & MacRae, LLP, Donald P. Wilcox, Office of General Counsel, Texas Medical Association, Austin, for appellants.John F. Morehead, Robert E. Henneke, Assistant Attorneys General, General Litigation Division, Jennifer S. Riggs, Riggs & Aleshire, PC, Austin, for appellees.

Our opinion and judgment issued on March 14, 2008, are withdrawn, and the following opinion is substituted.
Various statutes over the years have described the practice of podiatry as the treatment of the foot, but the term “foot” has never been statutorily defined. [Emphasis added].  See, e.g., Tex. Occ.Code Ann. § 202.001(a)(4) (West 2004).   In 2001, the Texas State Board of Podiatric Medical Examiners (the “Board”) promulgated a rule defining the word “foot.”   See Tex. Occ.Code Ann. § 202.151 (West 2004) (authorizing Board to adopt rules governing practice of podiatry);  22 Tex. Admin. Code § 375.1(2) (2007) (defining foot) (the “Rule”).   The Rule included in its definition, among other things, portions of what in layman's terms is called the ankle.   In response, the Texas Orthopaedic Association, the Texas Medical Association, and Andrew M. Kant, M.D. (“appellants”) sought a declaration that the Rule impermissibly expanded the scope of podiatry.   The district court concluded that the Rule was valid and did not exceed the Board's authority.   The appellants appeal the judgment of the district court.   We will reverse the district court's judgment.

In general, the statutory provisions governing the medical treatment and diagnosis of diseases and disorders of the human body and the individuals authorized to engage in those practices are found in the Medical Practice Act. See Tex. Occ.Code Ann. §§ 151.001-165.160 (West 2004 & Supp.2007).   Although the Act requires compliance with its provisions to practice medicine, see id. § 155.001 (West 2004), the Act exempts certain individuals from compliance, id. § 151.052 (West 2004).   The exemption relevant in this case is found in subsection 151.052(a)(5) and exempts “a licensed podiatrist engaged strictly in the practice of podiatry as defined by law.”   Id. § 151.052(a)(5) (emphasis added).   By providing the exemption, the legislature acknowledged that there is some degree of overlap between podiatrists' and physicians' scopes of practice.
The practice of podiatry in Texas has been governed by statute since 1923.   At that time, podiatrists were referred to as chiropodists, and chiropody was defined as “the diagnosis, medical and surgical treatment of ailments of the human foot.”   Act of March 6, 1923, 38th Leg., R.S., ch. 169, § 1, 1923 Tex. Gen. Laws 357, 357-60.   In 1951, the statute was amended and defined chiropody, in relevant part, as the treatment of “any disease or disorder, physical injury or deformity, or ailment of the human foot, by any system or method.”   See Act of April 18, 1951, 52nd Leg., R.S., ch. 132, § 1, 1951 Tex. Gen. Laws 219, 219.   In 1967, the legislature renamed chiropodists as podiatrists.   See Act of April 12, 1967, 60th Leg., R.S., ch. 96, §§ 1, 2, 1967 Tex. Gen. Laws 181, 181-82.   The current statute provides, in relevant part, that podiatry “means the treatment of or offer to treat any disease, disorder, physical injury, deformity, or ailment of the human foot by any system or method.   The term includes podiatric medicine.”  Tex. Occ.Code Ann. § 202.001(a)(4);  see Senate Comm. on Health & Human Services, Bill Analysis, Tex. S.B. 673, 74th Leg., R.S. (1995) (stating that changes were made to statute governing podiatry because former statutes contained “antiquated and limiting language”).
Pursuant to statutory authority, the Board announced in 2000 that it intended to adopt an administrative rule defining the term “foot.”   See Tex. Occ.Code Ann. § 202.151(2) (“The board shall adopt reasonable or necessary rules and bylaws consistent with the law regulating the practice of podiatry, the law of this state, and the law of the United States to govern:  ․ (2) the regulation of the practice of podiatry”);  see also id. § 202.051 (West Supp.2007) (detailing requirements for Board membership).   In describing the need for the definition, the Board stated that there was “uncertainty among various groups resulting from the lack of a definition” and that, without a definition, podiatrists, insurance companies, and hospitals were uncertain as to the limit of the practice of podiatry.   See 26 Tex. Reg. 2385, 2385 (March 23, 2001).   After receiving comments regarding the proposed definition, including objections from the Texas Orthopaedic Association and the Texas Medical Association, the Board adopted the Rule in 2001.   See 22 Tex. Admin. Code § 375.1(2);  26 Tex. Reg. at 2390.   The Rule provides as follows:
The foot is the tibia and fibula in their articulation with the talus, and all bones to the toes, inclusive of all soft tissues (muscles, nerves, vascular structures, tendons, ligaments and any other anatomical structures) that insert into the tibia and fibula in their articulation with the talus and all bones to the toes.
The tibia is “the shin bone” or “the inner and larger bone of the leg below the knee.”   Dorland's Illustrated Medical Dictionary 1911 (30th ed.2003).   The fibula is “the outer and smaller of the two bones of the leg.”  Id. at 698.   The talus is “the highest of the tarsal bones and the one that articulates with the tibia and fibula to form the ankle joint” and is also called the ankle.   Id. at 1853;  see also id. at 1855 (explaining that tarsus is “the region of the articulation between the foot and the leg”).
In response to concerns regarding the validity of the Rule, the attorney general issued an opinion stating that the Rule was invalid because it impermissibly expanded the practice of podiatry to the extent that it allowed podiatrists to treat the tibia and fibula.  [Emphasis added].  See Tex. Att'y Gen. Op. No. JC-441 (2001).   The attorney general reasoned that the tibia and fibula are leg bones, not bones of the foot, and, therefore, outside the scope of podiatry.   See id.   Shortly after the attorney general opinion was released, the appellants filed a declaratory judgment action, asking the district court to determine the validity of the Rule. See Tex. Gov't Code Ann. § 2001.038 (West 2000) (allowing plaintiff to seek declaration regarding validity of rule);  Tex. Civ. Prac. & Rem.Code Ann. § 37.001-.011 (West 1997 & Supp.2007) (Uniform Declaratory Judgment Act).   The Texas Podiatric Medical Association and Bruce A. Scudday (cumulatively “the Association”) intervened.
The district court declared that the Rule was valid and did not exceed the Board's statutory authority.   The appellants appeal the judgment of the district court.1

 On appeal, the appellants argue that the Board's promulgation of the Rule exceeded its rule-making authority.2  As an agency, the Board is a creation of the legislature and, therefore, “has no inherent authority.”   See Public Util. Comm'n v. City Pub. Serv. Bd., 53 S.W.3d 310, 316 (Tex.2001).   For this reason, the Board possesses only those powers “expressly conferred upon it.”   See id.   However, when conferring a power upon an agency, the legislature also “impliedly intends that the agency have whatever powers are reasonably necessary to fulfill its express functions or duties,” see id., and the legislature is not required to include every specific detail or anticipate all unforeseen circumstances when enacting an agency's authorizing statute, State v. Public Util. Comm'n, 131 S.W.3d 314, 321 (Tex.App.-Austin 2004, pet. denied).
 An agency's construction of a statute that it is charged with enforcing is entitled “to serious consideration by reviewing courts, so long as that construction is reasonable and does not contradict the plain language of the statute.”  Employees Ret. Sys. v. Jones, 58 S.W.3d 148, 151 (Tex.App.-Austin 2001, no pet.). In other words, when determining whether an agency's rule is valid, we must ascertain whether the rule is contrary to the relevant governing statutes, Public Util. Comm'n, 131 S.W.3d at 321, or whether the rule is in harmony with the general objectives of the statutes involved, see Liberty Mut. Ins. Co. v. Griesing, 150 S.W.3d 640, 648 (Tex.App.-Austin 2004, pet. dism'd w.o.j.).   If a promulgated rule has no supporting statutory authority, the rule is void.  Office of Pub. Util. Counsel. v. Public Util. Comm'n, 104 S.W.3d 225, 232 (Tex.App.-Austin 2003, no pet.).
 To properly perform this function, we must ascertain the legislature's intent in enacting the relevant governing statutes.   See Texas Workers' Comp. Comm'n v. Patient Advocates of Tex., 136 S.W.3d 643, 652 (Tex.2004).   Although the legislature has specified other tools to guide us when determining their intent, see Tex. Gov't Code Ann. § 311.023 (West 2005), our determination begins with the plain language of the statutes involved, Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729, 734 (Tex.2002).   See Fireman's Fund County Mut. Ins. Co. v. Hidi, 13 S.W.3d 767, 768-69 (Tex.2000) (providing that to determine legislative intent, courts should look to plain meaning of words used in relevant statutory provisions).   In performing our analysis, we review the entire statute, not isolated portions, Continental Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393, 398 (Tex.2000), and we must presume that every word was deliberately chosen and that excluded words were left out purposely, USA Waste Servs. of Houston, Inc. v. Strayhorn, 150 S.W.3d 491, 494 (Tex.App.-Austin 2004, pet. denied).   We should not adopt a construction of a statute that will render the statute meaningless or lead to absurd results.  Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex.1999);  Watts v. City of Houston, 126 S.W.3d 97, 100 (Tex.App.-Houston [1st Dist.] 2003, no pet.).

  On appeal, the appellants contend that the district court erred when it concluded that the Board's enactment of the Rule was a valid exercise of the agency's rule-making authority.   On the contrary, appellants assert that the Rule impermissibly expands the practice of podiatry beyond the treatment of the foot.
In response, the Association contends that in making their claims, the appellants improperly focus on the phrase “foot” found in the statutory definition of podiatry rather than reading and giving meaning to every word found in the definition.   See Tex. Occ.Code Ann. § 202.001(a)(4).   In particular, the Association contends that the definition does not state that podiatrists may only treat the foot;  on the contrary, it emphasizes that the provision allows podiatrists to treat the foot “by any system or method” and that “podiatry” includes everything constituting “podiatric medicine.”  Id. The Board makes similar arguments.   In particular, it asserts that by including the term “podiatric medicine” in its definition, the legislature incorporated into the definition of podiatry all of the procedures podiatrists were actually performing at the time the statute was enacted.
In support of this interpretation of the statutory structure, the Board introduced during trial evidence demonstrating that for several decades, podiatrists have been treating the ankle.   For example, several podiatrists testified that they were trained to perform both surgical and nonsurgical procedures on the ankle during their residencies, and the Board presented evidence that various podiatry books written over the past 80 years have included sections on treating the ankle.   In addition, several podiatrists testified that they have been granted privileges by various hospitals to perform ankle surgeries and that when they performed ankle procedures, they were reimbursed by insurance companies, Medicare, and Medicaid.   Further, several podiatrists testified that the practice of podiatry has always included treatment of the ankle and that the Board's definition is consistent with that practice and did not increase or decrease the scope of the practice.
In addition, the Association contends that the Rule is consistent with the medical definition of the term “foot,” which it asserts includes the ankle.3  See Tex. Gov't Code Ann. § 311.011 (West 2005) (requiring courts to construe “[w]ords and phrases that have acquired a technical or particular meaning” in accordance with that meaning);  Lloyd A. Fry Roofing Co. v. State, 541 S.W.2d 639, 642-43 (Tex.Civ.App.-Dallas 1976, writ ref'd n.r.e.) (explaining that when statutory term has technical meaning, court will look to particular art, science, or trade from which it was taken to ascertain its meaning).   Furthermore, the Association argues that by promulgating the Rule, the Board was following the statutory directive to utilize its expertise and promulgate reasonable and necessary rules to govern the practice of podiatry.   See Tex. Occ.Code Ann. § 202.151(2).   In addition, it insists that an interpretation limiting the scope of practice of podiatry to the area below the ankle bones and joint would lead to absurd results, including prohibiting podiatrists from treating a sprained ankle.
We disagree with the Board and the Association.   All of their arguments are couched on the premise that the Rule merely authorizes podiatrists to treat the foot and the ankle and that the Rule is, therefore, consistent with the scope of podiatric medicine.   However, there is no language in the Rule limiting the foot to that portion of the body that is at or below the ankle.   On the contrary, the terms of the Rule authorize podiatrists to treat parts of the body that are well above the ankle.
The Rule states that the “foot” includes “all soft tissues (muscles, nerves, vascular structures, tendons, ligaments and any other anatomical structures) that insert into the tibia and fibula in their articulation with the talus.”   22 Tex. Admin. Code § 375.1(2).   However, many of the soft tissues included in this definition are not part of the foot or even the ankle.   For example, various nerves ending in the foot-including the tibial nerve, the peroneal nerve, and the sural nerve-run along significant portions of the leg before reaching a termination point in the foot.   See Frank H. Netter, N.D., Atlas of Human Anatomy 482, 483, 485, 504 (2nd ed.1997).   Similarly, several veins and arteries-including the saphenous vein and the tibial artery and vein-also end in the foot after having traversed significant portions of the leg.  Id. at 477, 482, 483, 508.   In fact, one of the nerves and one of the veins previously mentioned run along the entire length of the leg.
Because there is no language limiting the permissible area of treatment for these soft tissues, the Rule authorizes podiatrists to treat these anatomical features wherever they may be located in the body and to treat “any disease, disorder, physical injury, deformity, or ailment” of these features because they have been defined as being part of the foot.   See Tex. Occ.Code Ann. § 202.001(a)(4).   Moreover, because the occupations code allows podiatrists to treat the foot “by any system or method,” the Rule effectively authorizes podiatrists to treat these body parts by utilizing procedures that are outside the scope of their training.4  See id. § 202.001(a)(4);  see also id. § 202.254 (specifying that to obtain license to practice podiatry, applicant must pass examination covering ailments of the foot ) (emphasis added).   As a result, the Rule authorizes podiatrists to treat parts of the body outside the traditional scope of podiatry without satisfying the requirements of the Medical Practice Act. See id. §§ 155.001-.152 (detailing requirements for obtaining license to practice medicine).   This authorization exceeds the limited exemption given to podiatrists and would constitute the unauthorized practice of medicine.   See id. §§ 151.052(a)(5), 155.001.5
For all these reasons, we conclude that the Rule is not in harmony with the general objectives of the various statutes involved and that the Board exceeded its authority by promulgating the Rule.6
  As an alternative basis to support the district court's judgment, the Association contends that the judgment should be affirmed because the appellants “failed to meet their burden of proof” regarding the Rule's alleged invalidity.   In making this assertion, it notes that agency rules are presumed to be valid and that the challenging party has the burden of proving that the rule is invalid. TXU Generation Co. v. Public Util. Comm'n, 165 S.W.3d 821, 829 (Tex.App.-Austin 2005, no pet.).   In light of this proposition, the Association contends that the appellants failed to meet this burden because they failed to dispute the basis for the Rule set out in the Board's reasoned justification.   See Tex. Gov't Code Ann. §§ 2001.033 (West 2000) (mandating that agency order adopting rule must contain “a reasoned justification for the rule as adopted”), .035(b) (detailing two-year deadline for attacking rule);  see also id. § 2001.035(a) (West 2000) (stating that agency rule is voidable if agency adopts rule without substantially complying with various statutory requirements including need for reasoned justification).   Stated differently, the Association argues that by detailing a reasoned justification for a rule, an agency establishes a presumption that the rule is valid and in harmony with the relevant statutory requirements and that a party dissatisfied with the rule has the burden of attacking the justification and rebutting the presumption within two years of the rule's promulgation.   Further, the Association contends that the presumption of validity extends to the factual basis found in an agency's reasoned justification and that this presumption must be rebutted for any challenge to a rule to be successful.   Moreover, it argues that the validity of the reasoned justification may only be overcome if the challenging party shows and convinces a court that the justification is “illogical, arbitrary or demonstrates an improper interpretation of the scope of [the agency's] statutory authority.”
We disagree with these contentions.   It is true that the government code does specify certain requirements that an agency must comply with when promulgating a rule, including the requirement that an order contain a reasoned justification for the rule.   See Tex. Gov't Code Ann. §§ 2001.023-.034 (West 2000).   It is also true that the government code allows a person to contest a rule on the ground that the agency promulgating the rule did not comply with those procedural requirements.  Id. § 2001.035.
 However, the government code also authorizes a party to contest either the validity or applicability of a rule by filing a declaratory judgment action.  Id. § 2001.038. This provision allows a party to contest the rule if the party alleges that the rule “impairs, or threatens to interfere with or impair, a legal right or privilege” of the party.  Id. The provision imposes no requirement that a party must contest the factual basis of an agency's reasoned justification as a condition to disputing the validity of the rule, and we see no reason to impose this type of requirement on our own.   Although consideration of the reasoned justification may be relevant in certain declaratory actions, a determination of whether the factual basis supporting the justification is proper will not necessarily address whether the agency's rule is consistent with relevant statutory language or whether the agency had the authority to issue the rule.
 Finally, the Board and the Association contend that the legislature has ratified or adopted the Board's definition of the term foot through subsequent actions.   First, the Board and the Association contend that the legislature has adopted the Board's definition and that, therefore, the Rule is consistent with the occupations code.   The doctrine of legislative acceptance provides that if “an ambiguous statute that has been ․ given a longstanding construction by a proper administrative officer is re-enacted without substantial change, the Legislature is presumed to have been familiar with that interpretation and to have adopted it.”  Texas Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 176 (Tex.2004).   In making their claim that the legislative acceptance doctrine applies, the Board and the Association note that although two different amendments to the relevant provisions of the occupations code were proposed in the legislature, neither of these proposals left the committee, and therefore, the legislature has acquiesced to the Board's interpretation.
Second, although acknowledging that their argument differs from a typical ratification argument, the Board notes that after the Rule was promulgated and after appellants first expressed dissatisfaction with the Rule, the legislature continued to compensate podiatrists through Medicaid payments for procedures performed on the ankle.
 We disagree.   First, we do not believe that the legislative acceptance doctrine applies under the circumstances of this case.   The legislature did not reenact section 202.001 after the Rule was promulgated-a prerequisite to proper utilization of the doctrine.   Moreover, what little evidence there is regarding the legislature's belief about the scope of podiatry undermines the Board and the Association's suggestion that the legislature has adopted the construction found in the Rule or that the limits of the scope are well settled.   After the Rule was promulgated, two contradictory amendments to the statutory definition of podiatry were proposed.   The first proposed amendment was made in 2003 and was directly contrary to the Rule because it would have limited the term “foot” to the part of the body found below the ankle.   Tex. S.B. 1395, 78th Leg., R.S. (2003).  However, the second proposal, which was made in 2005, would have included treatment of the ankle within the definition of podiatry.   Tex. S.B. 460, 79th Leg., R.S. (2005).  Furthermore, the legislative acceptance doctrine cannot be utilized as support for the construction of a statute that is contrary to the language of the governing statutes, see Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 282 (Tex.1999), and we have already concluded that the Rule is inconsistent with the occupations code in that it allows podiatrists to perform treatment outside their scope of practice-it allows podiatrists to treat areas of the body other than the foot.7
Second, whether the legislature continued to compensate podiatrists through the Medicaid program for treatments performed on the ankle after the Rule was promulgated seems to have no bearing on our ultimate conclusion.   As discussed previously, the Rule authorizes treatment of body parts that are above the ankle.
For all the reasons given, we conclude that the Board exceeded its authority when it promulgated the Rule and that the Rule is invalid.   Therefore, we sustain the appellants' issue on appeal.

Having sustained appellants' sole issue on appeal, we reverse the judgment of the district court and render judgment that the Rule is invalid.

Wednesday, November 23, 2011


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Legislature                    Executive                           Courts                                                                                                 
                                      State Governor                Supreme Court (State)      
                                          Administrative Agencies               Courts of Appeal
                                              Board of Medicine                       Superior Court
                                       Physician Licensing/Regulation                (Trial Court)

Handout 2
(California-Similar to Other States)

Supreme Court of California

The Supreme Court of California is the highest appellate court in the State.  It does not try cases or hear witnesses.  The role of the court is to review cases brought in lower courts for error.  The Supreme Court of California is the final legal authority on issues of state law.  A decision of this court cannot be appealed to the United States Supreme Court unless there is an issue of federal law involved.

California Courts of Appeal

California has six Courts of Appeal.  An appeal from a case heard in a trial court will first be decided in one of the Courts of Appeal.  Often, one of the Courts of Appeal will be the end of the line for someone seeking appellate review because the Supreme Court of California is not likely to accept an appeal from one of the Courts of Appeal unless the issue is of great importance or, more frequently, there is a conflict between the decisions in the various Courts of Appeal.  As is true in the Supreme Court, the Court of Appeal only reviews the record of the lower court for errors of law.  It is very seldom that any appellate court will set aside the factual determinations of a trial court.

California Superior Court

Every County in the State of California has a Superior Court where trials are conducted, evidence introduced, and witnesses heard.  Most medical malpractice cases are based on state law and are heard in the trial court of the state where the case is filed.  In California, a medical malpractice case will be heard in Superior Court.  In other states, a medical malpractice case will be heard in that state’s court of general jurisdiction (the equivalent of Superior Court), although the name may be different.  In Florida, for example, the court is called the Circuit Court.  In New York State, the trial court is confusingly named the Supreme Court.  In Canada the various provincial courts of general jurisdiction are known as Superior Court, Court of Queen’s Bench, or, as in New York, even Supreme Court.  In England, the trial court of general jurisdiction is the High Court, Queen’s Bench Division.  To be a court of general jurisdiction means that if an issue is justiciable at all, it can be heard in a court of general jurisdiction.  A court of limited jurisdiction can decide only those cases assigned to it by law.  A traffic court, for example, is a court of limited jurisdiction, and you cannot be sued for medical malpractice in traffic court or tried and sentenced to death for murder in traffic court.

Handout 3

The Court System of the United States Government

United States Supreme Court

The United States Supreme Court is the highest court in the nation, and its decisions become law throughout the United States.  However, its jurisdiction is limited to federal issues arising under the Constitution and the laws of the United States. 
If a state supreme court has ruled on an issue its decision is final and cannot be appealed to the U.S. Supreme Court unless a federal issue is involved.

Courts of Appeal

The United States has eleven circuit Courts of Appeal together with the appellate court for the District of Columbia and also the Court of Appeals for the Federal Circuit.  The eleven circuit Courts of Appeal primarily review cases decided in the United States District Courts which are the principal trial courts in the federal system.  Like the courts of appeals in the states, the federal Courts of Appeal serve as a buffer between the trial courts and the U.S. Supreme Court.  After a case is decided in one of the federal appellate courts it is unlikely that the U.S. Supreme Court will accept it for review unless the issue is very important (Obamacare) or different Courts of Appeal have reached different conclusions on the same issue (Obamacare) and the contradictory cases need to be reconciled.  As with the state courts of appeal, the federal Courts of Appeal do not hold trials.  They review the record established in the trial court.

United States District Court

There are 94 judicial districts.  Every state has at least one United States District Court and many have more than one.  Federal trials are, for the most part, held in the United States District Courts.  It is in these courts that cases are filed, juries empanelled, evidence introduced, and witnesses heard.  United States Courts are courts of limited jurisdiction, meaning that they can hear only those cases allowed to them by law.  Usually a Complaint filed in District Court to begin a legal action leading to a trial will include a clause explaining why the court has the jurisdiction (authority) to hear the issue.  For the most part, United States District Courts are the trial courts on issues of federal law.  Since medical malpractice cases are based on state law, a District Court will not normally have the authority to try it.  One exception is based on diversity jurisdiction.  If the plaintiff (the party bringing the suit) and the defendant (the person being sued) live in two different states, then the U.S. District Court can provide a forum for the lawsuit (the trial can be held there) but the law of the case will still be the law of the state where the issue arose.

Handout 4

The laws of the United States and the States

Federal Law is the supreme law of the land and the United States Constitution is at the peak of federal law.

The United States Constitution is supreme.  Next in priority are the Acts (laws) passed by Congress.  Lower in priority are regulations adopted by federal agencies such as the FDA or HHS.  For example, the Health Insurance Portability and Accountability Act (HIPAA) is an act passed by Congress.  The HIPAA Privacy Rule is an administrative regulation adopted by a federal agency the United States Department of Health and Human Services, HHS, under the rule-making authority granted HHS in HIPAA.  If an administrative regulation contradicts or is not supported by an Act of Congress, it is unenforceable.
Strictly speaking, the federal government [United States Government] is a limited government with only those powers allowed to it by the United States Constitution.  The federal government does not have a general police power permitting it to legislate on purely local matters.

State Law is supreme within the state if there is no federal law to the contrary.
Unlike the federal government, state governments are general governments and can exercise the police and regulatory power on all matters within the state.  Sometimes, the state and federal government have police power over the same matter.  Bank robbery is a federal crime because banks are insured by the federal government, but it is also is also a state crime. However, robbery of a liquor store is a state crime but not a federal crime because no federal interest is involved in liquor store robberies.  Physicians are licensed and regulated and disciplined under state law.  Physician discipline is not a federal matter.

THE CONFLICT--  As might be expected, there are many situations in which it is not entirely clear whether an issue is a matter of state jurisdiction or federal jurisdiction.  The federal government has been extending its reach in the last few decades and come into conflict with state governments.  Some of the areas of conflict include firearm ammunition (Montana), public lands (Western states), incandescent light bulbs (Texas and South Carolina), medical marijuana (16 states), physician-assisted suicide (Oregon), and Obamacare (multiple states).

Handout 5

The laws of the United States and the States

I.  LEGISLATURES.  Both the federal legislature (United States Congress) and the State legislatures (50 of them) pass laws [Bills, Acts or Statutes] that are law.  The laws passed by Congress apply throughout the entire United States.  The laws passed by a state legislature apply within the state itself.  Laws created in this way can most easily be found in collected codes such as the United States Code (for federal law) or similar codes for each state.

2.  ADMINISTRATIVE REGULATIONS.  Agencies created by legislatures are often given a limited authority to pass regulations that have the force of law.  For example, the federal Food and Drug Administration [FDA] adopts regulations controlling the manufacture and sale of drugs, etc.  The state Department of Motor Vehicles [DMV] adopts regulations for motor vehicles within each state.  Administrative regulations are found in collections such as the federal Code of Federal Regulations [CFR] and California’s Administrative Code.

3.  COURT DECISIONS.  The decisions of courts, particularly the published decisions of courts of appeal such as the Supreme Court, become a part of the law.  For example, in the famous case of Canterbury v. Spence a Court of Appeals upset traditional standards of care in medicine that favored allowing a doctor to withhold frightening information from a patient so that the patient would not foolishly [in the opinion of the doctor] refuse needed surgery.  Instead, the court decision established the rule—and standard of care—that a physician must disclose the information material to the patient’s ability to make a decision as to his own care.  Cantebury is required reading for the course.  Much of existing medical law has evolved in court decisions rather than coming from legislatures or administrative agencies.

Handout 6
Duty to Render Care
Physician/Patient Relationship 

The principal obligation assumed by a physician who accepts a patient is the duty to render medical treatment within the standard of care. 

The standard of care requires the physician to render medical care with the degree of care, skill and learning that would be expected of a reasonably prudent physician.

The physician/patient relationship is a therapeutic relationship intended primarily to deliver medical care to the patient.

The physician/patient relationship is essentially contractual, and the contract is created, and the contractual duties begin, at the moment the physician accepts the patient for treatment.

The physician/patient relationship is a fiduciary relationship (see Glossary), meaning that it is primarily for the benefit of the patient and that the patient is entitled as a matter of law to place his trust in the physician with the confidence that the physician will not take personal advantage of the relationship.

By contrast, a physician conducting an employment or insurance physical examination has not accepted the examinee as a patient for medical care and has not entered a contractual physician/patient relationship.  Therefore, he is not held to the same set of duties that are imposed on the physician in a true physician/patient relationship.

Handout 6a

Standard of Care

The standard of care requires the physician to render medical care with the degree of care, skill and learning that would be expected of a reasonably prudent physician.

The standard of care is based primarily on standards recognized and accepted within the medical community. The opinion of the medical community is expressed as evidence in courts through the testimony of expert witnesses.

The expert witness in a medical malpractice case will normally be a physician.  Both the  defendant (physician being sued) and the plaintiff (patient who is suing) will call expert witnesses to testify as to the standard of care and whether it has been met in the case being heard.

Generally the standard of care will be based on prevailing medical practice in the strict locality rule, or the similar locality community, or by the national standard rule. 

The required case reading on standards of care is Shilkret v. Annapolis Emergency Hospital Assn.  The case may be found on the Island Court blogsite here:
            As can be seen from the above, usually the standards of care are established by physicians whose expertise is given in court testimony.

Complications and risks from the Affordable Care Act (ACA), (Obamacare).

            ACA includes complex rules for federal quality of care metrics for establishing ‘quality of care’ payments to physicians.  Although presumably intended only to provide monetary incentives and disincentives to physicians, there is a genuine concern that these regulatory standards can create a new avenue of medical liability attack against physicians.  In effect, the regulations could shift some of the mechanism for establishing standards of care from physicians to bureaucrats.  One state, Georgia, has worked with the American Medical Association to pass a law to protect physicians from malpractice lawsuits based on bureaucratic payment standards rather than on medicine as it is actually practiced by physicians.

Handout 7  


           Note re Jury Instructions:  When a jury deliberates on a medical malpractice case it does not get the law from books filled with statutes, cases, or rules.  The law is given to the jury by the judge in the form of jury instructions.  Many jury instructions have become relatively standardized and printed as off-the-shelf forms.  Some jury instructions have been reproduced in these Handouts because they state the law simply, clearly and as the jury sees it.  The jury instructions become the law of the case.  

Plaintiff claims that defendant physician was at fault for medical negligence.

Medical negligence is the failure to comply with the applicable standard of care.
To comply with the applicable standard of care, a physician must exercise that degree of care, skill and learning that would be expected under similar circumstances of a reasonably prudent physician within this state.

Fault is medical negligence that was a cause of injury to the plaintiff.  Before you can find defendant at fault, you must first find that defendant’s negligence was a cause of injury to the plaintiff.  Negligence causes an injury if it helps produce the injury, and if the injury would not have happened without the negligence.
On the claim of fault for negligence, plaintiff has the burden of proving:

            (1)  Defendant [name] was negligent; 

            (2)  Defendant’s negligence was a cause of injury to plaintiff; and

            (3) Plaintiff’s damages.

California Jury Instruction
Success Not Required

A physician is not necessarily negligent just because [his/her] efforts are unsuccessful or [he/she] makes an error that was reasonable under the circumstances.  A physician is negligent only if [he/she] was not so skillful, knowledgeable, or careful as other reasonable physician would have been in similar circumstances.


  Handout 8

Expert Witnesses

The essence of the physician/patient contract is that it is therapeutic, requiring the physician to render medical care exercising the degree of care, skill and learning that would be expected of a reasonably prudent physician.

That standard of care is established in court with the testimony of expert witnesses.  

Typically, the expert witness is a physician who has some specialized (expert) knowledge of the type of medicine and standard of care at issue.  A qualified expert witness may testify as to his expert opinion.  

An ordinary lay (non-expert) witness may testify only to facts of which he has personal knowledge and he may not testify as to his opinion.  For example, a patient could testify from his personal experience that he lost much of his hearing following surgery, but only an expert could testify that in his expert opinion the loss of hearing was because the surgery was performed below the standard of care.

            The physician expert witness is paid for his research and testimony, but his payment cannot be contingent upon a successful outcome in the suit.  A physician expert witness who intentionally misstates the standard of care or falsifies his testimony may be subject to professional discipline and suspension or loss of medical license.

            Note: AMA Code of Medical Ethics, Opinion 9.07 Medical Testimony *** Medical experts should have recent and substantive experience in the area in which they testify and should limit testimony to their sphere of medial expertise.  Medical witnesses should be adequately prepared and should testify honestly and truthfully to the best of their medical knowledge.    The medical witness must not become an advocate or a partisan in the legal proceeding. ***It is unethical for a physician to accept compensation that is contingent upon the outcome of litigation.

            Note:   Federal Rules of Evidence, Rule 702.  Testimony by Experts.  If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

            Note:  California Jury Instruction:  “When you are deciding whether (name of doctor) was negligent, you must base your decision only on the testimony of the expert witnesses including (name of doctor) who have testified in this case.”

Handout 9
Expert Witness Punished
Discipline by California Board of Medicine

Handout 10


res ipsa loquitur
The Thing Speaks for Itself

The doctrine of res ipsa loquitur may be used when there is no direct evidence of negligence on the part of someone, but the injury itself could not have happened unless the party in control of the mechanism that caused the injury had been negligent.  In such an instance, the fact that the injury occurred in the way it did may serve as evidence of negligence, the injury speaks for itself .

1.  Evidence of the actual cause of the injury is not obtainable;

2.  The injury is not the kind that ordinarily occurs in the absence of negligence by someone;

3.  The plaintiff was not responsible for his or her own injury;

4.  The defendant, or its employees or agents, had exclusive control of the instrumentality that caused the injury; and

5.  The injury could not have been caused by any instrumentality other than that over which the defendant had control. 

Handout 11 a


Failure to terminate the physician patient relationship properly is abandonment.
Abandonment is a tort (see Glossary) for which the physician can be held liable.

            See:  AMA Code of Medical Ethics, Opinion 8.115 Termination of the Physician-Patient Relationship.  Physicians have an obligation to support continuity of care for their patients.  While physicians have the option of withdrawing from a case, they cannot do so without giving notice to the patient, the relatives, or responsible friends sufficiently long in advance of withdrawal to permit another medical attendant to be secured.


            Certain situations create the risk of committing abandonment of a patient.

            1.  CALL.  If you are on call and fail to answer that call you might be held liable for abandonment if harm results.

            2.  VACATION:  Make sure you make arrangements for patients to be covered by another physician when you go on vacation.

            3.  RETIREMENT:  Arrange for orderly notice and transfer of care on retirement.

            4.  ER.  If you are an ER physician should assume that every person coming through the door is entitled to care.  Be careful handling transfers of care even within the ER.

California Jury Instruction on Abandonment:

[Name of plaintiff] claims [name of defendant] was negligent because [he/she] did not give [name of patient] enough notice before withdrawing from the case.  To succeed, [name of plaintiff] must prove both of the following:

1. That [name of defendant] withdrew from [name of patient]’s care and treatment; and

2.  That [name of defendant] did not provide sufficient notice for [name of patient] to obtain another medical practitioner.

However, [name of defendant] was not negligent if [he/she] proves that [name of patient] consented to the withdrawal or declined further medical care.

Handout 11

Duration of Physician/Patient Relationship
            Having once accepted the patient for treatment, the contract continues, and the physician must continue to provide care, until the physician/patient relationship is properly ended.  

The physician/patient relationship ends when:
  • The patient no longer requires treatment;
  • When the patient unilaterally terminates the relationship;
  • When the physician and patient mutually agree that the relationship has ended;
  • When the physician unilaterally terminates the relationship by giving the patient notice that he will no longer serve as physician after a reasonable period of time during which the patient will have the opportunity to seek treatment from another physician.

Handout 12

Proper Termination of the Physician/Patient Relationship

Failure to terminate the physician/patient relationship properly is abandonment, a tort, meaning that abandonment is a wrongful act for which one can be sued.

            Steps for proper, unilateral dismissal of the patient, and avoiding the tort of abandonment, include:

1.  Notify the patient in writing, by return receipt mail and/or personal delivery, of your intention to withdraw as his physician and terminate the physician/patient relationship.

2.  Provide the patient with a reason for the termination.

3. Offer to continue to provide care for a reasonable period of time while the patient obtains alternate medical care.

4.  Provide the patient with the date when the termination will be effective.

5.  Provide information about resources for finding alternate medical care.

6. Offer to transfer records to the patient’s new physician upon receipt of an authorization to do so signed by the patient.

7. Offer to see the patient in an emergency within a stated period of time after termination.

8. Provide the patient with information about risks and consequences faced if medical treatment is not continued after the relationship is terminated.

9.  Chart the preceding steps.

Handout 13

Confidentiality, Privacy & Privilege

Even though they are sometimes used interchangeably, confidentiality, privacy, and privilege relate to different concepts.  

The Right to Confidentiality typically arises in a physician/patient relationship and is sometimes said to apply to information one has disclosed to a person in a position of trust with the expectation that the information will not be released without consent.  When a physician obtains information from a patient, or prospective patient, he is immediately under a duty of confidentiality with respect to the information disclosed to him.  A physician has a clear legal duty to protect patient information and keep it confidential.  A breach of that duty is a tort for which a physician may be sued.

The Right to Privacy is a right that every person has and that right, accordingly, imposes a duty on others to respect an individual’s privacy.  The right exists on its own and does not require a physician/patient relationship to exist.  The right to privacy is complex and has several seemingly unrelated elements within it, but it derives from a general right for a person to be left alone.  An invasion of privacy is a tort for which one can be sued.  

Privilege is an evidentiary protection accorded to certain types of communication or information.  A court cannot compel the disclosure of privileged information.  For example, communications between an attorney and his client are privileged and a court cannot order their disclosure.  Communications between a psychotherapist and his patient are protected by privilege and normally cannot be compelled to be disclosed by a court.  In some jurisdictions communications between a physician and his patient are also privileged.

These distinctions are important.  A claim for an invasion of privacy may have a different statute of limitations than a legal claim for a physician’s wrongful disclosure of confidential information.  Also, an insurer may pay for one claim but not the other.  In addition, a court might compel the disclosure of private or even confidential information but not information that is privileged.
Privilege relates to evidentiary protection.  Legal right to avoid disclosure.

Handout 14


Duty to Safeguard Confidences

AMA Principles of Medical Ethics (III):  A physician shall…safeguard patient confidences within the limits of the law.

There are common exceptions to the laws protecting privacy, confidentiality and privilege.

Exceptions to the rule:

·        Child/Elderly Abuse

·        Gunshot and Knife Wounds

·        Communicable and Other Diseases

·        Imminent Danger to Others
Tarasoff [California Supreme Court]
Brenda Tedrick v. Community Resource Ctr {Illinois Sup. Court]
Privilege.  Privileged communications are given a higher degree of protection than are confidential or private communications.  Normally, a court cannot compel a witness to reveal a privileged communication.  Attorney/Client communications are privileged as usually are psychiatrist/patient communications and sometimes physician-patient communications.  Notice that in Tarasoff the court ruled that even privileged communications may have to be revealed in some circumstances.

            For whose benefit.  Whether we speak of confidential communications or of privileged communications, the protection given is for the benefit of the patient, not for the benefit of the physician. 

            Minors and Confidentiality.  A difficult situation may arise when a mature minor needs medical care for a sexually transmitted disease or for birth control.  Absent a State law to the contrary, the minor’s right to preserve the confidentiality of medical records should be respected even when a physician receives a request for them from the minor’s parents.




Handout 16

Duty to Respect Privacy

            Example: Berthiaume’s Estate v. Pratt, M.D.  REQUIRED READING

            The obligation to respect an individual’s right to privacy is a duty that exists for all of us and is not limited exclusively to physicians acting in a physician/patient relationship.

            For example, a physician conducting a pre-employment physical examination is not providing medical treatment to a patient and is not in a physician/patient relationship with the person being examined.  If that physician were improperly to reveal purely private information about the individual he examined, that act probably would not be a breach of physician patient confidentiality because the obligation to “safeguard patient confidences” generally exists in a therapeutic relationship in which the physician is actually treating the patient.  Someone receiving a pre-employment examination is not a patient receiving medical treatment.  However, the improper disclosure of that individual’s private information could be treated as a violation of his right to privacy for which the physician could be held liable.  Notice that in Berthiaume’s Estate [this case is in the Law and Medicine manual] the alleged violation of the right to privacy took place after the offending surgeon had ceased to provide care for the victim and after he was no longer the victim’s doctor.

            Whether a physician’s act is a breach of confidentiality or a violation of privacy can be important.  For example, the statute of limitations (the time within which suit must be filed) may be longer for lawsuits based on an invasion of privacy.   Also, a physician’s malpractice policy may not cover a suite based on an invasion of privacy.

            The right to privacy is a complex right, and the judge in Berthiaume’s Estate cites four types of invasion of that right:

(1)  Intrusion upon the plaintiff’s physical and mental solitude and seclusion,

(2)  Public disclosure of private facts,

(3)  Publicity which places the plaintiff in a false light in the public eye,

(4) Appropriation for the defendant’s benefit or advantage of the plaintiff’s name or      likeness.
The most common cause of invasion of privacy suits against physicians arises from the unauthorized use of patient photographs.

Handout 17

Duty to Respect Privacy

            The right to privacy has evolved primarily in State legal systems, but the federal (national) government has added to the architecture of privacy law.

The United States Supreme Court has identified some types of governmental interference in an individual’s life as being a prohibited and unconstitutional invasion of privacy.  In a famous case, Griswold v. Connecticut, the Court held that the right to privacy was one of the rights protected by the United States Constitution and that governmental interference in private life can be so intrusive that it amounts to a violation of that right.  The Griswold case invalidated a Connecticut state law that restricted access to contraceptives because that State law infringed on a right to privacy protected by the United States Constitution.  The constitutional right to privacy was asserted again in Roe v. Wade, where the Court limited the power of individual state to interfere with a woman’s right to obtain an abortion.

            The United States Congress has also had an impact on privacy through legislation.  The Health Insurance Portability and Accountability Act (HIPAA) includes privacy standards that apply to ‘covered entities’.

            However much HIPAA may (or may not) have added to patient privacy, it has undeniably created a complex and often confusing bureaucratic tangle.  For example, a covered entity must have Reasonable Safeguards that are ‘appropriate administrative, technical, and physical safeguards that protect against uses and disclosures not permitted by the Privacy Rule.’   This requirement has led to some confusion.  And, some physicians have mistakenly thought that HIPAA regulations prohibit sending patient information to another doctor’s office without an express consent signed by the patient.  In fact, the regulations permit a physician (or ‘covered entity’) to use or release patient information to other professionals for treatment without prior patient consent.  E-mail can be sent to the patient provided appropriate safeguards are in place “to ensure confidentiality, integrity, and availability.”  And one may “disclose to a family member, other relative, or close personal friend of an individual, or any other person identified by the individual,” medical information directly relevant to that person’s involvement with the patient’s care or payment related to the patient’s care.”

Handout 18


HIPAA Privacy Rule

            U.S. Department of Health and Human Services (HHS) issued the Privacy Rule pursuant to implement the requirements of the Health Insurance Portability and Privacy Act of 1996, Public Law 104-191, (HIPAA).

            The Office of Civil Rights (OCR) within HHS is responsible for administering and enforcing the Privacy Rule.

            The Privacy Rule does not create a cause of action (a right to sue) for a patient whose medical information has been released by a physician in violation of the Rule.  Instead of filing a civil action against a physician under the HIPAA Privacy Rule, the patient may file a complaint with the OCR which may then assess a penalty against the physician.  The penalty, if assessed, is paid to the government rather than to the patient.

The patient may still have a right to sue under state confidentiality or privacy laws.
45 CFR Part  160 and Part 164, Subparts A and E on the OCR website:


Criminal Penalties. A person who knowingly obtains or discloses individually
identifiable health information in violation of HIPAA faces a fine of $50,000 and up
to one-year imprisonment.89 The criminal penalties increase to $100,000 and up to
five years imprisonment if the wrongful conduct involves false pretenses, and to
$250,000 and up to ten years imprisonment if the wrongful conduct involves the
intent to sell, transfer, or use individually identifiable health information for
commercial advantage, personal gain, or malicious harm. Criminal sanctions will be
enforced by the Department of Justice.
Civil Money Penalties. HHS may impose civil money penalties on a covered entity
of $100 per failure to comply with a Privacy Rule requirement.88 That penalty may
not exceed $25,000 per year for multiple violations of the identical Privacy Rule
requirement in a calendar year. HHS may not impose a civil money penalty under
specific circumstances, such as when a violation is due to reasonable cause and did
not involve willful neglect and the covered entity corrected the violation within 30
days of when it knew or should have known of the violation.




Handout 19



Handout 20

Duty to Obtain Informed Consent

AMA Code of Medical Ethics, Opinion 8.08 Informed Consent The patient’s right of self-decision can be effectively exercised only if the patient possesses enough information to enable an intelligent choice. *** et. seq.

Case Studies [Required Reading]:
Bang v. Charles T. Miller Hospital and Canterbury v. Spence 

If a patient consents to a course of treatment without properly understanding the nature of that treatment then the consent may not be valid and the physician may be held liable for failing to practice within the standard of care as in Canterbury or liable for battery (see Glossary) as in Bang.

            Depending on the nature of the illness or proposed procedure, the patient ought to be told in terms that he understands:

  • Diagnosis 
  • Procedure or Treatment
  • Risks and Consequences
  • Feasible Treatment Alternative
  • No Treatment Outcome

  • Emergencies
  • Unconscious or Incapacitated Patient
  • Patient Waiver
  • Therapeutic Privilege (largely ended by Canterbury case)

Handout 21

Duty to Obtain Informed Consent
Jury Instruction

Although the rules for informed consent have been established by case law (see Glossary), the rules may also be set forth in state statutes.  

            When a jury is deciding a case it does not read cases or statute to find the applicable law.  Instead, the jury receives the law in the form of ‘jury instructions’ given by the judge.  In California, a jury hearing a case in which informed consent is an issue would probably be given an instruction with the following definition of informed consent:

California Jury Instruction, Definition of Informed Consent:

A patient’s consent to a medical procedure must be “informed.”  A patient gives an “informed consent” only after the Physician has fully explained the proposed treatment or procedure.
A Physician must explain the likelihood of success and the risks of agreeing to a medical procedure in language the patient can understand and give the patient as much information as [he/she] needs to make an informed decision, including any risk that a reasonable person would consider important in deciding to have the proposed treatment or procedure.  The patient must be told about any risk of death or serious injury or significant potential complications that may occur if the procedure is performed.  A Physician is not required to explain minor risks that are not likely to occur.

Handout 22


As a general rule minors [usually those under eighteen-years-old] are legally incompetent, meaning that they do not have the legal standing to make their own legal decisions.   Thus, for example, a contract signed by a minor usually will not be enforceable, and a minor’s consent to medical treatment may not be valid.
A minor’s medical decisions are generally made by a guardian.  Usually the parents of a minor, the minor’s ‘natural guardians’, are those who give consent to medical procedures.  In the absence of the parents, another adult acting in loco parentis (in place of the parents) may give consent.  If the parents expect to be away for a period of time a minor may be placed in the care of a relative who is in loco parentis and can give consent to necessary medical care.  Others charged with the responsibility for a child, such as a teacher may also be in loco parentis. In a more extreme case a court may appoint a permanent guardian for a child and that guardian must give consent to medical procedures.  In special circumstances, a temporary guardian appointed by the court for an express purpose—a guardian ad litem—may give consent to a medical procedure.  A guardian ad litem may, for example, be appointed when parents refuse consent to needed medical care.   

Emancipated Minors.  Minors who are ‘emancipated’ or freed from parental control because they are married, in the military, or living independently are not required to get parental or guardian consent to a medical procedure.  They are legally competent.

Mature Minors.  In some instances a minor [usually 14 or older] may be assessed to be sufficiently mature and competent to make medical decisions without parental involvement.  Typically this situation could arise in situations involving requests for treatment for sexually transmitted diseases, requests for birth control, and similar personal issues.

Statutory Exceptions.  Some states have adopted express statutes that allow minors seeking birth control, abortion, or STD treatment may consent to it without parental knowledge of consent.
Emergencies.  The consent of the parents may not be required in emergency circumstances where immediate care is required to protect the minor and neither of the parents can be reached.

Handout 23

Duty to Warn

There is a duty to warn a patient, or a former patient, or even a non-patient receiving an employment physical of medically dangerous conditions.  If, for example, a physician receives notice that a type of IUD he implanted in a number of his patients was discovered to cause injury, the physician has an obligation to notify current and former patients of the danger.  If a patient has moved or changed a phone number, it is important to document (chart) reasonable efforts to find the patient and warn of the peril.  If a physician discovers a possible melanoma during an employment physical of a non-patient, the physician must warn the individual of the condition and recommend that he bring it to the attention of his own physician.

Duty to Disclose

Code of Medical Ethics, Opinion 8.12 Patient Information It is a fundamental requirement that a physician should at all times deal honestly and openly with patients.  Patients have a right to know their past and present medical status and to be free of any mistaken beliefs concerning their conditions.  Situations occur in which a patient suffers significant medical complications that may have resulted from the physician’s mistake or judgment.  In these situations, the physician is ethically required to inform the patient of all the facts necessary to ensure understanding of what has occurred.  Only through full disclosure is a patient able to make informed decisions regarding future medical care.

            Opinion 8.12 points to an ethical obligation on physicians to disclose “significant medical complications” resulting from the physician’s errors.  Because the physician/patient relationship is a fiduciary relationship, one of trust intended to benefit the patient, there is also a legal obligation to make disclosure of errors causing significant medical complications.

Duty to Prevent Loss of Chance

There is a duty to prevent loss of chance for a successful outcome.  Failure to meet this duty could arise, for example, when a managed care organization unreasonably delays approval of needed medical treatment until the opportunity for cure or recovery has been lost.  It could also arise if a physician neglects to order a standard diagnostic test or fails to report test results to a patient and schedule a follow-up appointment and a treatable disease progresses to the point that is untreatable.  A failure may also occur if a physician elects to use alternative medicine in lieu of allopathic medicine and the delay costs the patient his opportunity to receive an effective treatment in time.

Handout 24

Duty to Control Pain

            The current standard of care in most jurisdictions requires that physicians adequately treat pain.

            In California, and many other States, inadequate pain management of elderly patients may be regarded as “elder abuse” and may expose a physician to liabilities that do not arise in a normal medical malpractice suit.

Duty to Refer

            The current standard of care in most jurisdictions requires that physicians refer cases that require the intervention of a specialist or that are otherwise outside the knowledge and skills that the physician possesses.

            However, consider this:

California Jury Instruction

If a reasonably careful physician in the same situation would have referred [name of patient] to a medical specialist, then the physician was negligent if [he/she] did not do so.

However, if the physician treated [name of patient] with as much skill and care as a reasonable [insert type of medical specialist] would have, the physician was not negligent.

Handout 25

Failure to Diagnose

            If a physician fails to diagnose a condition because his treatment has fallen below the recognized standard of care, then he may be liable in a suit for medical malpractice.

            Typically a failure to diagnose may arise when a physician neglects to order a diagnostic test that is indicated by the patient’s condition, or when the physician fails to interpret the results correctly, or when the physician neglects to inform the patient that additional tests may be required if the original exams are ambiguous.  A failure to diagnose suit may also arise if the physician simply misinterprets signs and symptoms that a physician acting within the standard of care would have correctly interpreted.

“The most common way in which doctors are negligent by failing to treat a medical condition is when they "dismiss" the presenting symptoms as temporary, minor, or otherwise not worthy of treatment. This situation may result in an exacerbation of the underlying condition or injury, causing further harm or injury. For example only, an undiagnosed splinter or chip in a broken bone may result in the lodging of a piece of bone in soft tissue or internal bleeding caused by the sharp edge of the splintered bone.”

Actual Cases:

1.   Verdict $2.1 million. California.  The 33-year-old patient suffered an ischemic, left-sided stroke that caused unclear difficulties with speech, walking together with a severe headache and other stroke symptoms.  Physician diagnosed food poisoning and failed to do a neurologic workup.

2.  Verdict $2.4 million. Ohio.  A 5-year-old boy suffered a hematoma when he hit his head falling against a table.  He vomited and complained of jaw pain and was taken to the Emergency Room.  The ER physicians stitched the boy’s left ear and discharged him even though he vomited again in the ER.  At home, the boy vomited again at 5:00 am and began gasping for air.  He was airlifted to the trauma center where a CT scan revealed a massive hematoma with the brain herniated and protruding from the bottom of the skull.  After surgery and weeks in the hospital he still suffered cognitive losses, emotional problems, and left-sided weakness.  Plaintiff’s lawyer argued that the ER physician should have ordered the CT scan so surgery to relieve pressure could have been done sooner and also claimed that the ER doctor failed to tell the parents how to observe the child for a head injury.

            Both cases discussed in The Journal of Family Practice, Vol. 60 #3, March 2011.

Handout 26

Duty to Supervise

            A physician has a duty to supervise adequately those working under his direction.  Harm caused by an individual supervised by a physician may lead to ‘vicarious liability’ on the part of the physician.  That is, the physician will be legally liable as if he had committed the wrong himself.

            Besides giving rise to tort liability, a failure to supervise may lead to disciplinary action against the physician’s license.  

Principal Categories of Vicarious Liability:

1.  Respondeat Superior.  Literally, ‘let the master answer’.  This relates to acts committed by an employee of the physician.

2.  Borrowed Servant.  This doctrine relates to situations in which a physician temporarily supervises someone else’s employee.  For example, if a surgeon temporarily supervises a hospital employee during surgery.

3.  Captain of the Ship.   In some jurisdictions a surgeon may be legally regarded as being in charge of everything and everyone in a surgical arena and, hence, liable for any errors or omissions that take place there.  Discussed at greater length at Island Court

4.  Ostensible Agency.   One may be liable for the acts of another if that other is permitted to operate with the appearance of an agent even if no agency exists.  Thus a hospitable may be vicariously liable for the errors of a team of ER physicians working on contract if the public is given the impression that they are actually employees of the hospital.

5.  Ostensible Partnership.  Physicians sharing office space or staff, but not in partnership, may be liable for wrongs as if they were actual partners if their patients are given the impression that they are partners.

Class Note:  The following jury instruction clearly relates to ‘Borrowed Servant’ rather than ‘Captain of the Ship’ vicarious liability.

California Jury Instruction:

A surgeon is held responsible for the negligence of other medical practitioners or nurses who are assisting him during an operation if the surgeon has direct control over how they perform their duties.

This California jury instruction establishes a Borrowed Servant doctrine in that state.



Handout 27


Duty to Maintain Proper Records

            The standard of care requires that a physician maintain adequate records of the treatment given to a patient.  In some jurisdictions the duty to maintain proper records has been required by statute and made a cause for disciplinary proceedings.  


  • Records are your property but are accessible to your patient and his attorneys.
  • Document and justify your treatment plan and changes to the plan.
  • Chart!  If it was not charted the assumption is that it did not happen.
  • Legibility. Treatment errors can occur when you or others cannot read your notes.
  • Do not erase.  Make corrections by lining through the error so that it can still be read and enter the correction with the date the correction was made.  Proper corrections can be made in electronic records following the protocol for corrections in the medical record program.
  • Chart informed consent, missed appointments, non-compliance and the like.
  • Document communication with other health care professionals caring for the patient.
  • Document discharge fully.  This can be a high-risk event.  The record should reflect the patient’s status at discharge, his readiness to be discharged, and the patient’s understanding of his condition and his continuing responsibilities after discharge.
  • Avoid inflammatory and potentially incorrect expressions
Patient fell vs. Patient found at foot of bed
Hemorrhage vs. Bleeding

  • Avoid self-congratulatory remarks.
  • Avoid criticism of other professionals



Handout 28



Duty to Maintain Proper Records
More hints

            Protect yourself from denials of coverage by managed care organizations.  Note, for example, HMO refusals to provide services or care and that you discussed the refusals with the patient and that you disagreed with the refusal.

            Even if you only considered ordering a medical test but ruled it out, explain why you ruled it out.

            Chart negative findings.  For example, chart “patient in apparent good health” or “patient denies any complaints.”

            Chart your rationale for a diagnosis.  Honest mistakes are less harmful so long as you demonstrate that you were alert and attentive.

DO NOT tamper with records to make them “look better” for pending litigation.  Few things can turn a winnable malpractice case to a dead loser faster than evidence that a physician has altered or tampered with records.

            Electronic Records are subject to the same basic rules that apply to hard copy records. But, in addition to HIPAA requirements, their very nature pose new legal risks for the practitioner.

1.  Take care to avoid inadvertent release or disclosure of confidential or privileged information.  Encrypt files and protect passwords.

2.  Be prepared to notify the patient when privileged information is released inadvertently.

3.  Prevent destruction of electronic information and electronic records when litigation has begun.

4.  Remember that email communications can be part of a patient’s record or a business record.

5.  Make sure that patient health records are fully segregated from business records.

6.  Remember that electronic records may be searched electronically for metadata.

7.  E-mails to patients may be part of the medical chart



Handout 29
Duty to Maintain Proper Records
Yes!  They Mean it!

Handout 31

How to Avoid Being Sued

Communicate with Patients.  A number of studies have shown that physicians in practices that communicate with patients and treat patients with dignity are less likely to be sued than are physicians in other practices.  This tends to be true even when the level of care is equally good in different practices.

Maintain Standard of Care.  Remain current in your area of practice and be aware of both medical and legal trends that may change the standard of care.  Continuing medical education courses and publications from medical associations can be of immense help in staying current.

            Risk Management.  Although nobody can expect to be error free, risk management studies help to identify areas of your practice that frequently lead to malpractice suits.  Identifying areas of particular risk give you the opportunity to take active steps to avoid those errors.  Accurate documentation, including informed consent, previous medical history and treatments, and a treatment plan also help to reduce exposure.

Handout 32

What To Do When You Are Sued

Notify your insurance carrier.  Malpractice insurance policies typically have a requirement that the insurer be notified in the event of a malpractice suit.  Failure to notify the insurer promptly may create a policy defense that will allow the insurer to avoid liability.  Also, the sooner that the problem is addressed the easier it will be to control.

            Protect records.   Litigation can take more than a year to complete.  By the time of trial records important to your case may have been misplaced, lost, or filed in difficult to access locations.  It is important to you to protect the record.
            Prepare memorandum.  During the course of lengthy litigation memory fades and important details may be lost or distorted.  As soon as it becomes apparent that a suit has been filed against you, prepare a memorandum of events to preserve your recollection of what happened.  Important, the memorandum should be addressed “To my Attorney for use in Litigation—Privileged Memorandum,” or addressed in some similar language.  Client communications to one’s attorney are privileged and cannot be obtained by opposing counsel using discovery.


            Do not destroy or alter records.  Even minor alterations or corrections compromise your integrity.  Few things can turn a winning case for the physician into a losing case faster than indications that the physician has made post-suit “corrections” or alterations to the medical record.  

Do not assume that alteration of electronic records cannot be detected.

      Do not attempt to influence co-worker’s opinions.   Conversations with co-workers are discoverable and any appearance that you were attempting to influence their impressions can be used against you.


Handout 33

The Malpractice Lawsuit

            (1)  A lawsuit is commenced when the Plaintiff files a Complaint with the court.  The Complaint and a Summons will be served on the Defendant, the person being sued.

            (2)  The Defendant usually has about 20 days to file an Answer responding to the Complaint.  Failure to file the Answer can result in a ‘default judgment’ against the Defendant.

(3)  The Plaintiff and Defendant enter a Discovery period during which each is obligated to provide relevant—but not privileged—information to the other.

(4)  Once a jury is accepted, the Plaintiff has the ‘Burden of Proof’ or obligation to go first and prove his case by a Preponderance of the Evidence, or that his allegation is more likely true than not.   Usually, the Plaintiff’s lawyer will begin with an Opening Statement in which he tells the jury what evidence he is going to introduce to prove the Plaintiff’s case.  The lawyer for the Defendant may make his Opening Statement immediately after the Plaintiff’s Opening Statement or he may wait until he puts on the defense portion of the case.

(5)  The Plaintiff’s lawyer then calls witnesses for their testimony and introduces exhibits in support of his case.  After each Plaintiff’s witness testifies, the attorney for the Defendant is entitled to ask questions on Cross Examination.

(6)  When the Plaintiff’s lawyer has presented his full case, he ‘rests’ and is finished.  If he has failed to make a basically adequate case on the face of it, a prima facie, case, the judge might grant the Defendant’s request to dismiss the case.  If the request to dismiss is not granted, the Defendant then puts on his case.

(7)  The attorney for the Defendant calls witnesses and introduces the exhibits he needs to present his case.  After a witness for the Defendant testifies, the attorney for the Plaintiff may question him on Cross Examination.  When the Defendant has put on his entire case, the Defense ‘rests’ and the testimonial part of the trial is over.

(8)  Attorney for the Plaintiff makes a Final Argument in which he argues how the evidence he has presented proves the Defendant is liable.  Next the attorney for the Defendant makes his Final Argument in which he argues that the evidence shows that the Defendant is not liable.  Finally, the attorney for the Plaintiff makes a rebuttal argument.

(9)  Jury instructions are prepared and given to the jury, and the jury retires to confer and reach a verdict.

(10)  The jury verdict is given to the judge and the judge enters a Judgment.  The trial is over.


Handout 34


          Before a case comes to trial, both the plaintiff and the defendant have the opportunity to engage in discovery.  

            The means of discovery are extensive and intrusive.
State court rules are often similar to those used in federal court.

            Federal Rules of Civil Procedure, Rule 26(a)(5).  Parties may obtain discovery by one or more of the following methods:

1.  Depositions upon oral examination;
2.  Written interrogatories;

3.  Production of documents or things;

4.  Entry upon land or other property…for inspection and other purposes;

5.  Physical and mental examinations; and

6.  Requests for admission.

            The scope of discovery is broad:

            Federal Rules of Civil Procedure, Rule 26(b).   Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party….

NOTE:  With the rapidly expanding use of electronic medical records, discovery can include forensic analysis of electronic documents by experts searching for meta-data among other things.   This can lead to much higher discovery costs.

Handout 35


The statute of limitations requires that a suit be filed within a given period of time or it cannot be pursued, no matter how meritorious the claim.  

For example, if you surgically remove a patient’s right leg when you were supposed to remove his left leg it would seem to be a fairly clear case of negligence on your part.  However, if the statute of limitations is one year and the patient does not file suit against you until one year and one day after the removal of the leg, then he has lost his right to sue and cannot proceed against you.  

However, the term of the statute of limitations might be extended beyond the actual term set by the statute under certain circumstances. If the patient is receiving ongoing treatment for the same condition for which the malpractice occurred, the statutory time may not begin to run until the last day for which treatment was given.  If a foreign object is left in the patient’s body, the clock may not begin to run until it is discovered.  If the patient is a minor, the clock on the statute of limitations may not begin to run until the patient becomes an adult—at the age of 18 in most jurisdictions.

In general, a statute of limitations will place a limit on the length of time that may pass before someone can sue for a particular wrong.  However, many things may intervene to alter or extend the statute of limitations.  Whether or not the statue applies to your case is something that your attorney will determine at the very outset of the litigation process.

Be aware that the statute of limitations may vary depending on the nature of the injury and the identities of the parties.  For example, in some jurisdictions the statute of limitations for invasion of privacy may be longer than the statute of limitations for a medical malpractice action based on failure to protect a patient’s confidences.

Handout 36


A motion is a formal request made to the court by one or more of the parties in a lawsuit.  

Some motions may offer the possibility of stopping a lawsuit before it even gets to trial.
            For example, when the pleadings fail to state a legitimate claim or are otherwise flawed, one can make a Motion to Dismiss on the Pleadings or a Motion to Dismiss for Failure to State a Claim.

            Also, as discovery progresses and issues are clarified, one may make a Motion for Summary Judgment.  If it is shown that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law, then judgment will be granted and a full trial avoided.
Motions During or After Trial

If the plaintiff presents his case, calling witnesses and introducing evidence, and it appears that he has not presented a prima facie case (see Glossary;
It may also be the case that the court will hear the entire presentation of both the plaintiff and the defendant and will decide the case without permitting it to go to the jury.  In rare instances, when the court has decided that the trial or jury’s verdict is fundamentally flawed and erroneous, the court may order a new trial.

Handout 37
Judgment, Damages and Insurance



            The judgment is the “final decision of the court resolving the dispute and determining the rights and obligations of the parties,” (from Black’s Law Dictionary).

            The jury gives its decision as a verdict, but the judgment is given by the judge. The judgment may adopt the jury’s verdict, set the verdict aside, or modify the verdict.  Once judgment is given, a party to the trial may appeal to an appellate court.

            A money judgment can be collected by judicially enforced levy (seizure) and sale of the physician’s property.  However it is preferable that a judgment be paid by the physician’s malpractice insurer.


            The term damages used in a judgment awarded in a tort action refers to the amount of money for which the judgment can be enforced.     A distinction can be made between compensatory damages and non-compensatory damages.

            Compensatory damages are intended to compensate a plaintiff for the loss that he has suffered as a consequence of the wrongful acts of the defendant.  Compensatory damages may be either economic damages or non-economic damages.  Economic damages generally can be related to a calculable financial loss.  For example, medical bills and lost wages are quantifiable economic damages.  On the other hand, non-economic damages may be awarded for ‘losses’ such as pain and suffering that cannot easily be assigned a definite monetary value.  Sometimes juries tend to award excessive verdicts for non-economic injuries such as pain and suffering in medical malpractice cases, and it is these damages that are sometimes the focus for tort reform legislation.  California’s Medical Injury Compensation Reform Act of 1975 (MICRA), for example, limits non-economic damage awards to $250,000 in medical negligence cases.

            Non-Compensatory damages are awards that are not intended to compensate for a recognized loss.   Punitive damages are non-compensatory damages that may be awarded to the plaintiff to penalize the defendant for more or less outrageous conduct, such as conduct that has been intentional, reckless or malicious.  Punitive damages might be appropriate, for example, if a physician willfully and maliciously revealed private information learned in the course of treating a patient.  Punitive (non-compensatory) damages may be awarded in addition to compensatory damages (both economic and non-economic).  It is worth remembering that medical malpractice policies generally insure for compensatory damages but not for punitive damages.

Handout 38 

Malpractice Insurance

            Occurrence Based policies protect the insured physician from claims made for acts of malpractice occurring during the time the policy was in effect even if the claim has been made after the policy has expired.  

Claims-Made policies protect the insured for acts of malpractice occurring during the time the policy is in effect but only if the claim is made while the policy is in effect for the individual against whom the claim of malpractice has been made.  An act of malpractice occurring while the policy is in effect will not be covered by a claims based policy if the claim is filed after the policy has expired or after the individual has ceased to be insured by that policy because of a change of job, failure to pay premiums, or other reason.

Tail Coverage, is intended to protect the insured for a period of time after a claims based policy has expired.  Usually, after a claims-based policy has expired, tail coverage will be offered for a limited period of time by the insurer.  Tail coverage is expensive, but if not purchased within the time offered, it may not be available again.  Tail coverage is also referred to as an ‘extended reporting endorsement.’

Nose Coverage can be available to insure a physician for alleged acts of malpractice that occurred before a new malpractice policy takes effect.


Handout 40
Sources of Law

            Constitutional Law.  The Constitution of the United States is the basic and paramount law of the land.  It has priority over every other law that may conflict with it.  When the United States Supreme Court held that a constitutional right to privacy negated a state law that prohibited abortion, it was the state law that became unenforceable, Roe v. Wade.  Each state has a constitution establishing state government and guaranteeing fundamental rights within the boundaries of that state.  Any state statute or regulation is subordinate to the state constitution.

            Statutory Law.  Statutory law is what most of us think of when we think of laws.  Statutes (or Acts) are the laws enacted by the legislative authority.  In the United States government the legislative authority (according to the U.S. Constitution) rests with the United States Congress.  At the state level, the legislative authority rests almost entirely with the state legislature.  However, a state may also draw upon the people’s inherent pool of governmental authority and the voting population of a state may pass an initiative enacting specific legislation.  The state law allowing medical use of marijuana was adopted in California by the initiative process.

            Case Law and Common Law.  Case and/or common law is a type of law that layman usually find most baffling.  Essentially, court decisions, precedents, particularly appellate court decisions, become a part of the law.  That is why lawyers (and increasingly physicians) are alert to changes in the law brought about by court decisions.  The Canterbury case linked on Island Court blog site is a good example of how law may change through a court decision.  The Tarasoff case (linked on Island Court) is another example of a court decision that changed both law and medical ethics.

            Administrative Law.  Rules and regulations adopted by administrative agencies have the force of law.


Handout 41

Administrative Law

            Administrative law comes from executive agencies that have been created to oversee and regulate important, and often complex, elements of society.  One has only to look at the extensive regulations set down by the Food and Drug Administration (FDA) or the Centers for Medicare & Medicaid Services (CMS) to get an idea of the nature of administrative law.  It is massive, highly specialized, frequently opaque, and often dangerous.  At least some of the physicians prosecuted for Medicare fraud have been befuddled and ensnared by the complex regulations governing Medicare payment without intending to commit actual fraud.

            Quasi-judicial trials or hearings are an important element of administrative law.  Frequently these proceedings will be held before an administrative law judge, or a hearing examiner, or perhaps before a panel convened for the purpose.  These proceedings are generally described as being “quasi-judicial” rather than truly judicial for several reasons.  The “judge” is not actually a statutory or constitutional and independent judge and he generally is an employee of the agency that is a party to the action.  Moreover, the rules of evidence tend to be less formal than are permitted in a true courtroom.  Disciplinary proceedings brought against a physician by the state medical board have the character of an administrative hearing.  The case will be heard and decided by one or more individuals who are actually members of the board of medicine rather than an independent judiciary.  Evidence that would be inadmissible in a true judicial setting may be readily admitted against the physician in a disciplinary proceeding.  Perhaps the most important thing to remember for a physician facing a disciplinary proceeding before the board of medicine is that these proceedings may end in serious consequences for the physician and it is recommended that he retain counsel experienced in medical board hearings as soon as possible.

Handout 42

Sources of Liability

TORT.  Liability for tort arises when one causes injury either accidentally (as in an auto accident) or deliberately (as in a physical assault and battery), and is the area of law that involves lawsuits for medical malpractice for physician errors.  

CONTRACT.  Liability arises in contract law when one of the parties to a contract—a legally enforceable agreement—breaches or violates the terms of that agreement.  For example, a physician may be found liable for violating a non-competition agreement in his employment contract.

STATUTORY LIABILITY.  Liability may arise when one violates the terms of a statute.  For example, a physician who fails adequately to treat pain in an elderly person may be found liable for violating the statute prohibiting elder abuse.  

FIDUCIARY LIABILITY.  The physician/patient relationship is a fiduciary relationship, meaning that it is primarily for the benefit of the patient and the patient is entitled to trust the physician.  For example, if a physician sells overpriced vitamins to his patients (thus taking unfair advantage of the relationship) then he may be liable for breach of his fiduciary duty.  Breach of this duty may also occur if the physician withholds information from the patient.


Handout 43

            Tort.   A private or civil wrong or injury, other than a breach of contract, for which the court will provide a remedy in the form of an action for damages.  BLACK’S LAW DICTIONARY 1335 (5th ed.1979).
            1.  Duty.  There must be a duty to act in a particular fashion.  A physician has a duty to practice at not less than the standard of care.

            2  Dereliction.  There must be a dereliction of that duty.  Leaving surgical instruments in your patient’s abdomen might, arguably, be practicing at below the standard of care and therefore a dereliction of that duty.  SEE, res ipsa loquitur in the Glossary.

            3.  Damage.   There must be damage.  Dereliction of duty does not create liability in tort law unless it causes damage.  If surgical instruments left in an abdomen cause pain, temporary loss of work, and require a medical procedure to recover them, then some may be inclined to argue that those are damages.

            4.  Direct Cause.  To be liable for tort, the dereliction of duty must have caused the damage.  It must be apparent that the damage would not have occurred, as it occurred, but for the physician’s dereliction of duty.


            Damage awards, in actions for medical malpractice, a type of tort, are typically for compensatory damages.  Compensatory damages may be divided into special damages and general damages.  Special damages are damages for which a dollar amount can easily be calculated, such as hospital and doctors bills.  General damages are damages which generally have to be estimated, such as the dollar value of and pain and suffering.  Damages may also distinguished, on the one hand, as economic damages such as medical bills and loss of wages, and, on the other hand, non-economic damages, such as pain, suffering and emotional distress.  Non-economic damages are thought to be the principal reason for the exorbitantly high malpractice judgments that juries sometimes award.  Less often, a jury may also award punitive damages, that are not based on any proven loss suffered by the plaintiff.  Punitive damages are intended to punish outrageous conduct on the part of the defendant.  ALL damages are awarded in dollars payable to the plaintiff.  Do not confuse ‘punitive damages’ which are sums of money awarded to the plaintiff to chastise the defendant with the truly punitive penalties (fines, imprisonment, execution) that are part of a sentence in a criminal case.  Criminal fines are paid to the State and not to the victim.  


            A Good Samaritan Law protects someone gratuitously rendering emergency aid away from regular medical facilities from suits based on ordinary negligence.


Handout 44

A contract is an agreement between two or more parties that will be enforced by a court.

            For an agreement to be enforceable,

The parties must have legal capacity.  Thus minors and adult incompetents cannot execute (enter into) enforceable contracts.

The agreement must be for a legal purpose.  A court will not, for example, enforce the terms of an agreement to dump medical waste on a public beach.

The contract must not violate public policy.  A contract in which the patient agrees not to sue the doctor as a condition of treatment is not enforceable because of public policy.  Read Exculpatory Contracts, Olson v. Molsen at Island Court blog site.  But, an Assumption of Risk type of exculpatory contract when Alternative Medicine is demanded by the patient probably will be enforceable.  See Assumption of Risk and Alternative Medicine on Island Court blog site.

There must be consideration.  That is to say, there must be an exchange of value.  If I promise to give you $200, that is a “bare promise” and not an enforceable contract.  If I promise to give you $200 if you paint my kitchen, then the agreement includes consideration (a painted kitchen in exchange for $200) and is enforceable.

Physician employment contracts often include a non-competition clause by which the physician agrees that when his employment ends he will not compete within a specified distance for a given period of time.  In most states these agreements will be enforced so long as they are reasonable.  Some states, California and Tennessee, for example, do not.  However, in states where these agreements are enforceable, a distance of 5 or 10 miles for one year probably would be reasonable and enforceable.  A distance of 100 miles or a term of 15 years would probably be unreasonable and not enforceable.  A non-competition clause will often provide two or more remedies.  Typically, one remedy will be an injunction, or court order, prohibiting the physician from violating the agreement on pain of being held in contempt of court.  Contempt of court pain takes the form of fines and imprisonment.  Another remedy frequently agreed to in non-competition agreements is a provision for payment of liquidated damages.   Liquidated damages are in a stated amount agreed upon in the original contract and are enforceable.  For example, a non-competition clause prohibiting competition within 5 miles for one year and allowing for the remedy of injunctive relief together with liquidated damages in the amount of $1,000 per day probably would be enforced by the court. 



Handout 45

Statutory Liability
State Law

            Sometimes a legislature will pass a statue or Act (law) to create a legal remedy (a right to sue) to correct a perceived problem.

            For example, California passed a law protecting elderly and dependent adults from abuse, and included the right to sue among the remedies available to abuse victims.


 ‘Abuse’ was defined broadly:

“Abuse of an elder or a dependent adult" means (among other things) the following: 

Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.

And the new law provided that:

Where it is proven by clear and convincing evidence that a
defendant is liable for physical abuse:  (a) The court shall award to the plaintiff reasonable attorney's fees and costs.

            Physicians are not exempt from the provisions of this law, and there have been cases in which physicians have been sued both for ordinary medical malpractice and for “elder abuse.”  Among the dangers to a physician, a suit for “elder abuse” may not be covered by a physician’s malpractice insurance policy, and some of the protections of ‘tort reform’ legislation may be negated.  The allowance for “reasonable attorney’s fees and costs” provides an additional incentive for litigation.  In normal malpractice cases each party bears his own share of the attorney’s fees; in “elder abuse” litigation the defendant physician may be liable for both his attorney’s fees and the fees of the plaintiff’s attorney.

Handout 46


Statutory Liability
Federal Law

            At the present, most law relating to physicians comes from the state government of the state in which the physician practices medicine.  For example, Florida physicians are governed primarily by Florida law.

            However, the federal, or national, government is becoming more involved with medical practice and subjecting physicians to new areas of potential liability.

            HIPAA regulations provide one example of federal regulation that increases a physician’s exposure to liability.

            False Claims Act.  The False Claims Act imposes great risk of loss to those participating in federally funded programs such as Medicare or Medicaid.  Any physician who ‘knowingly’ submits a false claim for payment through Medicare or Medicaid faces a fine of $5,000 to $11,000 per claim, plus treble damages and attorney’s fees.  Thus, if you submit a false claim in the amount of $1,000, you face fines ranging from $5,000 to $11,000 plus three times the amount of the bill, or $3,000 in this case, plus any attorney’s fees associated with pursuing the claim.  It is not necessary for the government to prove an ‘intent to defraud’ to collect under False Claims Act.  It is sufficient to show that the physician was deliberately ignorant of the falsity of a submitted claim or acted with reckless disregard of the truth.

            Federal Enforcement Recovery Act (FERA).  FERA imposes an obligation upon physicians to report overpayments received under Medicare or Medicaid or any other federally funded program.  Of course, if you do report the overpayments you may face fines and treble damages under FTC, but if you do not report the overpayments, you face additional penalties under FERA.

            Qui Tam suits.  A private individual can sue you on behalf of the federal government for FTC violations and share in part of the damages recovered from you.  For example, if the billing clerk you fired for misconduct is aware that your billing program sometimes sends out erroneous bills without your knowledge, she may engage a private attorney to sue you in a qui tam suit to collect treble damages plus attorney’s fees for every erroneous bill that was submitted.  The government takes most of the award, but the billing clerk would share in the collection.  Even if the errors in your billing program result in 50% of the erroneous bills being for less than they should have been, there is no allowance for offset against the bills for more than they should have been.

Handout 47


It’s Not Just Malpractice Anymore

            Medical negligence is the failure to practice medicine with that degree of care, skill and learning that would be expected under similar circumstances of a reasonably prudent physician.  When medical negligence causes harm the physician may be sued for medical malpractice.

            However, there are torts other than medical malpractice.  Basically, when a physician is acting outside the scope of established medical treatment, he may be exposed to liability that is not related to actual medical malpractice.  In such cases, the physician may not be covered by his medical malpractice insurance policy.  For example, elder abuse may be alleged for failure to treat an elderly patient within the standard of care, and elder abuse is not generally covered in medical malpractice insurance policies. Indeed, a claim of elder abuse may be alleged along with elements of traditional medical malpractice in an effort to intimidate a physician to settle rather than defend against the suit. Battery (see Glossary) is a tort that may result in a suit against a physician that may not be insured as medical malpractice.  And, if a physician intermingles complementary or alternative medicine with his allopathic treatment of a patient, then to the extent that a suit against the physician can be linked with his use of alternative medicine he may not be covered by his medical malpractice insurance policy.
            Dangers of suits against physicians that are based on legal theories other than medical malpractice include:

  • The statute of limitations may be longer.
  • Malpractice insurance may not cover the judgment.
  • Judgments may not be limited by medical malpractice tort reform.
  • Some damages may differ.  Normally pain and suffering damages do not survive the death of the plaintiff.  However, in elder abuse cases awards for pain and suffering survive the death of the plaintiff.
  • A judgment against the defendant may include an award for attorney’s fees.



Handout 48


Suing For Something Other Than Damages
Declaratory Judgment

            A declaratory judgment is usually sought to have the court declare the law on a specific issue rather than to seek monetary damages.  For example, if your insurer states prior to trial that they are going to deny any claim because of a policy defense, you may sue for a declaratory judgment to get the court to declare as a matter of law that the insurer’s policy defense is not valid.

TRO and Injunction
            A Temporary Restraining Order (TRO) is an emergency, short-lived injunction that orders a party to stop a particular action until the issue can be heard more fully and the court can decide whether or not to issue an injunction, barring action indefinitely.  If, for example, your mother’s physician is going to order your mother’s ventilator turned off because it is “futile care,” you may ask for an emergency TRO to stop him until the court can hear the matter in full and issue a permanent injunction preventing him from turning it off.  Ignoring a TRO or Injunction can be perilous.  It amounts to ignoring a court order and the violator can be punished for contempt of court.

Habeas Corpus
            Habeas Corpus is a remedy for challenging the legality of the involuntary confinement of an individual.  If you think you are being wrongly held in a mental institution, your means of challenging your detention is to bring a habeas corpus action.

            Guardianship proceedings are for the purpose of appointing a competent guardian to look after the affairs of one who is deemed legally incompetent, such as an infant without parents or an elderly person whose senility has rendered him incapable of looking after his own affairs.

Civil Commitment
            Civil Commitment proceedings usually are for the purpose of legally detaining someone against his will in a non-criminal action.  For example, a person who has become a danger to himself or others may be committed to a mental institution against his will.


Handout 49


Complementary and Alternative Medicine

            There may be no precise definition of complementary and alternative medicine (CAM), but the definition of the National Center for Complementary and Alternative Medicine describes it “as those treatments and health care practices not taught widely in medical schools, not generally used in hospitals, and not usually reimbursed by medical insurance companies.”

            For the purposes of a Law and Medicine course it should be added that damages for injuries, damages for failure to diagnose, and damages for loss of chance (to name a few possibilities) may not be covered by a physician’s medical malpractice carrier.  Put simply, if a patient sues an allopathic physician for damages arising from CAM therapy in which the physician played a role, the physician’s medical malpractice carrier may see this as an opportunity to assert a policy defense and leave the physician ‘bare’ and unprotected.  If the plaintiff is awarded a judgment, the judgment may have to be paid by the physician’s personal assets rather than by his insurance carrier.

            Another risk arises when the physician is unaware of a patient’s use of CAM and harm results because of the interaction of incompatible therapies.  However, an error of this nature is less egregious than that of actually participating in CAM in that it is an error within the scope of allopathic medical practice and is likely to by covered by a medical malpractice insurance policy.

            A physician may reduce his risks by communicating with his patients and inquiring whether the patient is using any alternative therapies.  Those questions are likely to be more productive if they are non-judgmental and if the physician avoids making disparaging remarks about CAM.  However, one should be careful not to drift into an actual endorsement of CAM so to avoid a situation in which the patient/plaintiff is able to allege that you encouraged CAM as a part of your treatment plan.

            If the physician is aware of actual risks that the patient faces when he chooses a particular form of CAM, then there is a duty to warn the patient of those risks.  If the patient is electing a form of CAM that the physician reasonably believes does not pose significant risks while the patient is also continuing to receive medical treatment, the preferred approach is to document the patient’s assumption of risk in continuing the CAM.  READ:  Assumption of Risk and Alternative Medicine on Island Court.

            Assumption of risk is likely a better approach for the physician than informed consent because assumption of risk includes the recognition that some of the risks and consequences of CAM may not yet be known and that the patient is willing to assume both the known and unknown risks and is going ahead with the treatment without the recommendation of the physician.  Informed consent, on the other hand, implies that the physician is aware of the risks and consequences, has informed the patient in a way he understands, and that the patient is consenting to a recommended treatment.

Handout 50

Criminal Law

Criminal law cases are brought against an individual when he has been charged with violating a criminal statute.  A criminal statute is a statute that prohibits certain conduct, e.g. murder, rape, bank robbery, and the like.  A criminal case is pursued by a prosecuting attorney who is the agent of the government, and the object of a criminal case is to punish individuals who have engaged in the prohibited activity and to discourage others who may be tempted to follow their examples.  The punishments range from fines paid to the state, to imprisonment, to the death penalty.  Because of the seriousness of a criminal case, it must be proven beyond a reasonable doubt, that is to say, the case must be consistent with guilt and inconsistent with any reasonable hypothesis of innocence. 

Medical malpractice cases, by contrast, are civil law matters.  They are brought by private individuals who have retained private attorneys and they seek money to compensate for damages the injured party claims to have suffered.  If won, the final judgment in a civil suit is for the payment of money to the injured private individual.  The standard of proof in most civil cases is the preponderance of the evidence standard, meaning only that it is more likely than not that the allegations of the plaintiff are true.

            Doctors are sometimes charged with crimes:

  • Reckless Behavior.  Although ordinary negligence causing injury to a patient may result in a malpractice suit against the physician, if his negligence is so grave that it amounts to recklessness, then the criminal law may also become involved.  For example, an anesthesiologist was charged with a crime when he fell asleep during minor surgery on a young boy and failed to observe that the boy was dying for lack of oxygen.
  • Medicare Fraud.  Some physicians have defrauded the Medicare system and been prosecuted and jailed for that crime.
  • Insurance Fraud.  Submitting fraudulent insurance claims is a crime.
  • Narcotics Abuse.  Physicians have been prosecuted both for the personal misuse of narcotics and for unlawful use of their prescribing authority to distribute narcotics.

Handout 51

Mental Health Law

Civil Commitment refers to the incarceration of a person who has not committed a crime but whose mental state is such that he is a danger to others or a danger to himself.
The state may compel the involuntary detention of an individual for civil rather than criminal (punitive) purposes under two distinct governmental powers:

            1.  Parens Patriae (used when person is a danger to himself).  Under the parens patriae power (see Glossary) the state may detain a person whose mental condition has reached the point of decisional incompetence and he has become a danger to himself.  The parens patriae power is exercised by the state in the best interests of the individual endangered by his decisional incompetence.

2.  Police Power (used when person is a danger to others).  The police power is the government’s authority to restrain personal freedom for the protection of the public safety, health and morals.  It could be used, for example, to quarantine individuals infected with a dangerous and infectious disease.  In the mental health setting the police power is used to detain individuals whose mental condition makes them a danger to others.

Due Process.  An individual with mental illness or developmental problems warranting confinement under parens patriae or the police power is entitled to due process.  This means that there will generally be a commitment hearing (like a trial) before an impartial tribunal, most often with notice and representation by counsel.

            Expert Opinion.  Psychologists or psychiatrists may testify at commitment hearings as to their opinion of the mental status of the person facing civil commitment, and the trier of fact may rely upon the testimony of experts in reaching a final judgment, but the ultimate legal issue is decided by the tribunal, not by the experts.

            Standard of Proof.   A civil commitment hearing is not a criminal proceeding.  Instead, the question is not whether the individual is guilty or innocent but whether he is a danger to himself or others.  Although civil commitment is a civil rather than criminal proceeding, the usual standard of proof used in civil cases [the ‘preponderance of the evidence standard] is too low a bar when someone’s liberty is at stake.  Therefore, the Supreme Court has held that the standard of proof in civil commitment proceedings may not be lower than the clear and convincing evidence standard.  This standard is more exacting than the civil ‘preponderance of evidence’ standard used in medical malpractice cases, but less exacting than the ‘beyond a reasonable doubt’ standard used in criminal cases.

Handout 52

Mental Health Law
Civil Commitment
Sexual Predators

            When a person is incarcerated after being convicted of a crime, his imprisonment is a part of his punishment.  

            On the other hand, when a person is committed against his will because of mental problems, his confinement is not punishment.  Instead, he is being confined by a civil (not a criminal) court for treatment, and his confinement is for his protection or for the protection of others.  

            In this system, sexual predators pose an unusual problem.  Often they have no detectable mental illness or developmental problems.  They are not burdened with decisional incompetence.  They may even be highly intelligent and rational beyond the norm.  But they prey sexually upon others relentlessly.  Their acts are criminal and when they are caught they are punished, but they have an extraordinarily high recidivism rate.

            To deal with the problem of sexual predators, Kansas adopted a law for the civil commitment of sexual predators until such time as treatment or circumstance renders them safe for release.  Even though civil commitment normally requires that the clear and convincing standard of evidence be met, Kansas adopted the beyond a reasonable doubt standard for the civil commitment of sexual predators.  The high standard was adopted because there is no treatment for sexual predators and confinement under the new law could be indefinite.

            One of the first individuals to be ensnared by the new law was a man named Hendricks.  He had molested nearly every child of both sexes with whom he had come in contact over a period of many years.  When released from prison, he returned to his practices without remorse or hesitation.  However, when he finished his last prison term for his criminal sentence in Kansas, he was immediately given a civil commitment hearing for being a sexual predator.  Upon a finding he was a sexual predator, he was confined in a mental facility.

            Hendricks appealed to the United States Supreme Court claiming he had served his criminal sentence and the civil commitment was nothing more than a disguised additional punishment.  He had no mental illness meeting the normal standards warranting civil commitment.  But the Supreme Court held that Kansas’ civil commitment procedure for sexual predators did not offend the Constitution.  Hendricks remained civilly locked up under the police power for the protection of others.    Kansas v. Leroy Hendricks, 521 U.S. 346, 117 S. Ct. 2072 (1997)

Handout 53


Mental Health Law

            Both insanity and incompetency are legal standards, not psychiatric standards, and their provenance is the courtroom, not the couch.  In making a legal determination of insanity or incompetency a court may use psychiatric testimony, but the ultimate issue rests with the court.

            To be insane means that you will not be held morally or criminally responsible for your acts.  One of the oldest tests for insanity is the M’Naghten Rule.  Under this rule a person may be found insane if at the time of the act the party was laboring under such a defect of reason he could not know the nature and quality of the act he was doing; or if he did know it he did not know that it was wrong.

            If a person is found to have been insane at the time that he commits what would normally be a criminal act then he cannot be found guilty of a crime.  

            Some states have adopted a guilty but mentally ill, or guilty but insane, finding as an alternative to the finding of guilty or insane.  A guilty but mentally ill verdict might be particularly appropriate when an individual who has committed a crime is clearly suffering from some mental illness but it is doubtful whether the illness is so severe that it would rise to the M’Naghten Rule.  In such a case, the convicted individual may be sentenced to both punishment and mental health treatment.


Handout 54

Mental Health Law

            To be incompetent means that the law will not give validity to certain of your legal acts.  Its most profound expression can be seen when a severely senile uncle is declared incompetent and a guardian is appointed for him.  At that point, the guardian makes his legal decisions for him.  If an incompetent signs a contract to sell his home, it is invalid.  If the property is to be sold, it is the guardian who must act as the agent for the incompetent.  On the other hand, a mature minor (see Glossary) may be legally competent to make personal medical decisions but legally incompetent to sign a real estate sales agreement.

            Guardians and Wards.  A person who is incompetent generally needs a guardian to make many decisions for him.  A minor is incompetent and his guardians are his parents.  If a minor’s parents are not immediately available, another person (often a relative) may be in loco parentis, that is, in a position to act as if he were the child’s parent.  In medical practice this may come up when a close, adult relative acting in loco parentis brings a child in for treatment.  Often in these cases the adult relative will have a note or form signed by the child’s parents authorizing the individual to act in their stead.

            Foster parents chosen by the state are also guardians in loco parentis and authorized to make medical decisions for a minor child.  

            A person who has a guardian to care for him is a ward.  The ultimate guardian for a child placed with foster parents is the state, or the court, and that child may be referred to as a ward of the state, or a ward of the court.

            An adult whose mental facilities have declined to the point that he needs the assistance of a guardian to manage some or all of his affairs may receive a court hearing similar to a civil commitment hearing in which evidence is presented to prove he is incompetent.  If the case is proven, the court will appoint a guardian, usually a close relative, to act for him.  The guardian has to act according to the requirements of the court and may need court permission for some acts, such as selling personal property.  An elderly person who has had a guardian appointed by a court to manage some or all of his affairs may be known as a ward of the court.  A physician treating a person who has been found incompetent by a court probably will look to the patient’s appointed guardian for consent for treatment.

            IMPORTANT:  An incompetent person is not insane.  Even though he may not have the ability to manage his financial or health concerns, he may understand the difference between right and wrong and act accordingly.

Handout 55

Sources of Psychiatric Liability

            Liability Imposed in Psychiatric Practice:
  • Sex with patient.  By case law liability may be imposed on a psychiatrist who breaches his fiduciary duty by having sex with his patient.  Some jurisdictions prohibit sexual conduct with patients by statute.  In the AMA Code of Medical Ethics, Opinion 8.14 Sexual Misconduct in the Practice of Medicine, it states flatly that “Sexual contact that occurs concurrent with the physician-patient relationship constitutes sexual misconduct.”
  • Wrongful Discharge.  Liability has been imposed on psychiatrists who have negligently released mental patients who posed a danger to others.
  • Suicide.  Liability has been imposed on psychiatrists whose patient committed suicide because the psychiatric therapy was deemed to be below the standard of care.
  • Medication.  Liability may be imposed because of inappropriate medication.
  • Failure to Warn.  Liability may be imposed because of a therapist’s failure to warn or protect a person from an imminent threat posed by a patient.  See:  Tarasoff in the Glossary.
  • Third Party Liability.  Recently the Supreme Court of Georgia held that a psychiatrist could be found liable for medication negligence when his patient murdered his mother. Brien v. Bruscatto [O’Brien v. Bruscatto] Supreme Court of Georgia, September 12, 2011.   The Utah Supreme Court is considering a similar case.

Handout 56

Right to Refuse Treatment

            The right to self-determination includes the right for every competent adult to determine what shall be done with his own body.  The court in Canterbury gave this as the root premise underlying a patient’s right to be informed of the material facts he may need to make an intelligent decision in choosing to undergo or refuse a medical procedure.  The corollary to this is that a competent adult patient also has the right to refuse medical treatment even including the refusal of artificial nutrition and hydration.  

            Minors present a special problem.  Refusal of treatment by a minor’s parents usually will not pose a problem if the treatment is discretionary.  However, if the minor is in some medical danger a court may appoint a guardian ad litem (see Glossary) who will have the authority to make medical decisions for the minor in lieu of the parents.  

            Incompetent or Incapacitated Adults are incapable of making personal medical decisions.  If a guardian has been appointed for an incompetent adult, that person will normally have the authority to accept or reject medical care.  If an incapacitated adult has appointed a Health Care Proxy or chosen a Durable Power of Attorney then that appointee will make the medical decisions.  If the incapacitated patient has a Living Will, that document may set firm guidelines for what treatment may be done. There are two standards to guide a health care proxy—or physician in some circumstances—when treating an incapacitated patient. On the one hand, he may elect to act in what he determines to be the best interests of the patient when the patient’s preferences are unknown.  On the other hand, if he knows something about the patient’s preferences he may use a substituted judgment course of decision making in which he makes the decision he believes the patient would have made if his mental abilities were intact.  In actual practice, there is often blurring of the two standards with the assumption that the patient’s known preferences would be that someone act in his best interests.

Handout 57

Right to Die

Physician-Assisted Suicide:  Only the States of Oregon and Washington permit physician-assisted suicide by a statute passed by the legislature. In a December 31, 2009 case, Baxter et al v. Montana, the Supreme Court of Montana held that physician-assisted suicide is not prohibited under Montana law. It is a crime for a physician to assist a suicide in all other States.
In most jurisdictions it is permissible to treat the pain of a dying patient aggressively, even if the medications used to treat the pain suppress consciousness and repress respiration to the point that the patient’s death occurs as a side effect of the pain treatment.  In such a case, the stated goal is to relieve pain and it should be managed and charted as pain relief and not spoken of or charted as a physician assisted suicide.   It would be unwise to treat pain this aggressively with illnesses that are not terminal.
In the United States, deliberately killing a patient without the patient’s consent and participation is murder.
In Canada the criminal code prohibits physician-assisted suicide, but a British Columbia woman suffering with Lou Gherig’s disease is one of five patients now challenging the constitutionality of that law in the courts and it remains to be seen how the courts will decide the issue.
In the Netherlands the law has progressed beyond ‘assisted suicide’ to ‘assisted death’ or euthanasia in which the physician kills the patient.    Generally the euphemism ‘assisted death’ is more comfortably used than ‘killing’ the patient, but one is left to wonder if execution by lethal injection could also be described as an ‘assisted death’.  The means are the same and the results are the same.
In general:

Assisted Suicide means giving the patient the means to end his own life.

Active Euthanasia means killing the patient.

Passive Euthanasia means ending the life of the patient by withholding medical care.

Doctor-Assisted Death may mean physician-assisted suicide or euthanasia.