Justia Professional Malpractice & Ethics Opinion Summaries

Articles Posted in Civil Rights
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Gaston, an Illinois prisoner, first complained about pain in his left knee in May 2009. Drugs did not help. After some delay, Gaston saw an orthopedic surgeon in September 2010. An MRI exam was approved but not conducted until February 2011. In August 2011, Gaston had arthroscopic surgery. While Gaston’s left knee was healing, Wexford (the corporation that provides prison medical care) delayed approving an MRI of his right knee; one knee had to be sound before treatment of the other. In May 2012 Gaston had an MRI exam on the right knee. It showed serious problems. Another arthroscopic surgery occurred in October 2012. This did not bring relief. Arthroplasty (knee replacement) was delayed while specialists determined whether Gaston’s pulmonary and cardiology systems would handle the strain but took place in February 2015 and was successful. Gaston claimed that the delays while waiting for surgeries reflect deliberate indifference to his pain so that the pain became a form of unauthorized punishment in violation of the Eighth Amendment. Defendants offered evidence that the delays could be chalked up to a preference for conservative treatment before surgery and never to any desire to injure Gaston or indifference to his pain. The district court granted summary judgment to the individual defendants, ruling that none acted (or delayed acting) with the state of mind required for culpability. The Seventh Circuit affirmed and affirmed judgment in favor of Wexford. Private corporations, when deemed to be state actors in suits under 42 U.S.C. 1983, are not subject to vicarious liability. Wexford could be liable for its own unconstitutional policies, but the policies to which Gaston pointed, reflected medical judgment rather than a constitutional problem. View "Gaston v. Ghosh" on Justia Law

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The Supreme Court held that a physician’s due process rights do not attach at the investigative stage of a complaint made to the Nevada State Board of Medical Examiners (Board), thereby extending the holding in Hernandez v. Bennett-Haron, 287 P.3d 305 (Nev. 2012).Appellant, a physician, filed a writ petition and a motion for injunctive relief in the district court, arguing that the Board violated his due process rights by keeping a complaint filed against him and identity of the complainant confidential during its investigation. The district court denied relief. On appeal, Appellant argued that the Board’s investigative procedures violated his due process rights. The Supreme Court affirmed, holding (1) the district court appropriately applied Hernandez to find that the investigation did not require due process protection because it did not also adjudicate the complaint, and therefore, the district court did not abuse its discretion in denying Appellant’s motion for a preliminary injunction; and (2) the Board reasonably interpreted Nev. Rev. Stat. 630.336 to mean that the complaint and complainant may be kept confidential from the licensee. View "Sarfo v. State Board of Medical Examiners" on Justia Law

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Plaintiff, a physician licensed in Texas who worked part time at the Red Bluff Clinic in California, filed suit under 42 U.S.C. 1983, alleging violation of his Fourth Amendment rights when defendants, employees of the Texas Medical Board, executed an administrative subpoena instanter. The Fourth Circuit reversed the district court's dismissal and rendered judgment for defendants. The court held that plaintiff failed to establish a cognizable interest in the subpoenaed records and thus he could not assert a Fourth Amendment claim. View "Barry v. Freshour" on Justia Law

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Plaintiffs filed suit against defendants after he was suspended from his position as a physician at Cedars-Sinai. The suspension stemmed from plaintiff's operation on a young patient, which resulted in complications requiring corrective surgery. The trial court granted the hospital's anti-SLAPP, Code of Civil Procedure 425.16, motion based on its contention that plaintiff's claim arose out of a protected activity—the medical staff's peer review process—and that plaintiff could not show a probability of success on the merits. The court concluded that defendants' acts relating to plaintiff's suspension and peer review process constituted protected activity for purposes of the anti-SLAPP statute and plaintiff's claims arose from that protected activity. Because plaintiffs' claims arose from defendants' protected activity, the burden shifted to plaintiff to submit admissible evidence supporting a prima facie case in his favor. In this case, the court concluded that plaintiff failed to establish a probability of success on the merits of his claims under the Health and Safety Code and he failed to exhaust his administrative remedies. Accordingly, the court affirmed the judgment. View "Melamed v. Cedars-Sinai Medical Center" on Justia Law

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Plaintiff filed suit against the State Bar, alleging a due process claim under 42 U.S.C. 1983. Specifically, plaintiff alleged that the State Bar’s rules applied the same standards and procedures for reinstatement for disbarred attorneys to attorneys suspended for more than 90 days, amounted to “defacto disbarment,” and violated his Fourteenth Amendment due process rights. The district court dismissed the complaint as barred by the Eleventh Amendment and then denied plaintiff's motion to alter or amend the judgment. Determining that the court has jurisdiction to hear plaintiff's appeal, the court agreed with the district court's conclusion that the Alabama State Bar is an arm of the state of Alabama and thus enjoys Eleventh Amendment immunity from plaintiff's section 1983 claim. Further, the court concluded that the district court did not abuse its discretion in denying plaintiff's FRCP 59(e) motion where, to the extent plaintiff contends his due process claim was a “direct action” under the Fourteenth Amendment, his amended complaint did not allege such a claim, and he could not use his Rule 59(e) motion to do so. Accordingly, the court affirmed the judgment. View "Nichols v. Alabama State Bar" on Justia Law

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In 1988, Department of Professional Regulation investigator visited Gekas, a Springfield, Illinois dentist, and expressed concern that Gekas had administered nitrous oxide to a child. He ordered Gekas to provide information on all prescriptions on a continuing basis. Gekas contacted Deputy Governor Riley for assistance. After a meeting, the Department imposed less onerous requirements. In 2002, a Department investigator raided Gekas’ offices, with the assistance of the Federal Drug Enforcement Agency. After failed negotiations, the Department issued a cease and desist order against Gekas for the unlicensed practice of medicine and prescribing controlled substances while not a licensed physician and sought to have his license suspended, on grounds that Gekas had prescribed 4,600 doses of Hydrocodone and Vicoprofen to a patient. Gekas contacted his Senator. In 2008, the cease-and-desist was vacated and the complaint dismissed. Gekas submitted a FOIA request concerning the administrative complaint. The Department responded that no public documents were available. In 2009, Gekas filed suit; it was dismissed by stipulation in 2010. Meanwhile, a Chairman on the Illinois Board of Dentistry issued subpoenas against Gekas, stating that there was reasonable cause to believe that Gekas had violated the Illinois Dental Practice Act. Gekas filed suit, alleging First Amendment retaliation. The district court granted defendants summary judgment, finding no evidence of retaliatory motive. The Seventh Circuit affirmed. View "Gekas v. Vasiliades" on Justia Law

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Kulbicki shot his girlfriend during the weekend before a scheduled hearing about unpaid child support. At Kulbicki’s 1995 trial, an FBI Agent expert on Comparative Bullet Lead Analysis (CBLA) testified that the composition of elements in the molten lead of a bullet fragment found in Kulbicki’s truck matched the composition in a fragment removed from the victim’s brain; a similarity one would “‘expect’” if “‘examining two pieces of the same bullet,’” and that a bullet taken from Kulbicki’s gun was not an “exac[t]” match to those fragments, but was similar enough that the two bullets likely came from the same package. The jury considered additional physical evidence from Kulbicki’s truck and witness testimony and convicted Kulbicki of first-degree murder. Kulbicki sought post-conviction relief. In 2006 Kulbicki added a claim that his attorneys were ineffective for failing to question the legitimacy of CBLA. By then, the Court of Appeals of Maryland had held that CBLA evidence was not generally accepted by the scientific community and was inadmissible. In that court, Kulbicki abandoned his claim of ineffective assistance with respect to the CBLA evidence, but the court vacated Kulbicki’s conviction on that ground alone. The Supreme Court summarily reversed, stating that the lower court indulged in the “natural tendency to speculate as to whether a different trial strategy might have been more successful.” Given the uncontroversial nature of CBLA at the time of trial, the judgment below would demand that lawyers go “looking for a needle in a haystack,” even when they have “reason to doubt there is any needle there.” View "Maryland v. Kulbicki" on Justia Law

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In 1999, Christeson was convicted of three counts of capital murder and sentenced to death. The Missouri Supreme Court affirmed Christeson’s conviction and sentence and denial of his post-conviction motion for relief. Under the one-year limitations period imposed by the Antiterrorism and Effective Death Penalty Act, 28 U. S. C. 244(d)(1), Christeson’s federal habeas petition was due on April 10, 2005. Nine months before that deadline, the court appointed attorneys Horwitz and Butts to represent Christeson, 18 U. S. C. 599(a)(2). The attorneys subsequently acknowledged that they failed to meet with Christeson until six weeks after his petition was due. There is no evidence that they communicated with him at all. They finally filed the petition 117 days late. The district court dismissed; the Eighth Circuit denied a certificate of appealability. Christeson, who has severe cognitive disabilities, relied entirely on his attorneys, and may not have known of the dismissal. About seven years later, the attorneys contacted attorneys Merrigan and Perkovich to discuss Christeson’s case. Christeson’s only hope for merits review was to move under FRCP60(b) to reopen final judgment on the ground that AEDPA’s statute of limitations should have been equitably tolled. Horwitz and Butts would not file that motion, premised on their own malfeasance. In 2014, Merrigan and Perkovich unsuccessfully moved to substitute counsel. The Eighth Circuit dismissed, reasoning that they were not authorized to file on Christeson’s behalf. The Missouri Supreme Court set an October 29, 2014 execution date. The district court denied a second motion as untimely, stating that Horwitz and Butts had not “abandoned” Christeson, and reasoning that allowing the motion would permit “‘abusive’” delays in capital cases. The Eighth Circuit affirmed. The Supreme Court stayed execution and reversed, stating that the denials contravened its 2012 decision, Martel v. Clair, concerning the “interests of justice” standard, and noting the obvious conflict of interest with respect to the original attorneys. View "Christeson v. Roper" on Justia Law

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The Illinois Department of Financial and Professional Regulation (Department) permanently revoked the health care licenses of physicians (plaintiffs) pursuant to the Department of Professional Regulation Law (20 ILCS 2105/2105-165) as a result of plaintiffs’ prior misdemeanor convictions for battery and criminal sexual abuse of their patients. The circuit court of Cook County dismissed their challenges. The appellate court and the Illinois Supreme Court affirmed, rejecting claims that the Act: did not apply to individuals who were convicted of a triggering offense prior to the Act’s effective date; was impermissibly retroactive and impaired certain fundamental rights, in violation of substantive due process; violated procedural due process; was unenforceable based on the res judicata effect of the previous discipline imposed by the Department; violated federal and state constitutional protections against double jeopardy; violated the constitutional prohibition against bills of attainder; violated the federal takings clause; and violated federal and state constitutional prohibitions against ex post facto law. View "Hayashi v. IL Dep't of Fin. & Prof'l Regulation" on Justia Law

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Inmate Santiago, complaining of severe pain and a rash, was seen by Dr.Mosher on January 31. Mosher prescribed Tylenol for pain and antibiotics to treat what she thought might be Methicillin-resistant Staphylococcus aureus (MRSA). The next day Dr. Ringle diagnosed erythema nodosum (EN), an uncomfortable but non-dangerous skin inflammation that typically disappears in about six weeks but may recur. EN has no known cure. Ringle prescribed an anti-inflammatory and an antibiotic. Four days later, Santiago was transferred to OSU Medical Center, where he was diagnosed with EN and arthralgias, a severe joint-pain condition, and prescribed an anti-ulcer agent and a different anti-inflammatory. Santiago was seen on February 20 by an OSU dermatologist, who recommended a topical steroid, compression hose, and SSKI, which may help treat EN but is not standard treatment. Each day, February 22- 25, Santiago asked prison nursing staff about the treatments. Staff denied knowledge until, on the 25th, nurses found Santiago’s unsigned chart on Ringle’s desk. Ringle had been on vacation. Mosher signed the order on February 27. Santiago received the topical steroid on February 29 and compression stockings on March 10. Santiago waited longer for the SSKI, which is a non-formulary drug. The district court rejected Santiago’s suit (42 U.S.C. 1983) based on the delays. The Sixth Circuit affirmed. Santiago did not prove that the delay caused a serious medical need or deliberate indifference.View "Santiago v. Ringle" on Justia Law