Justia Professional Malpractice & Ethics Opinion Summaries

In 2021, Hal de Becker contracted COVID-19 and was treated with ivermectin by his personal physician. Hal was later admitted to Desert Springs Hospital Medical Center, where his ivermectin treatment was stopped without consent, and he was administered remdesivir. Hal's condition deteriorated, and he died shortly after being discharged. Hal's family sued the attending doctors and the hospital, alleging negligence, professional negligence, and wrongful death, claiming the doctors and hospital failed to obtain informed consent and made treatment decisions based on media narratives.The Eighth Judicial District Court dismissed the claims against the doctors and the hospital. The court found that the claims against the doctors were barred by the Public Readiness and Emergency Preparedness Act (PREP Act) and that the expert affidavit provided by the plaintiffs did not meet the requirements of NRS 41A.071. The court also dismissed the claims against the hospital, finding them similarly barred by the PREP Act and that the claims were for professional negligence rather than ordinary negligence.The Supreme Court of Nevada reviewed the case and affirmed the lower court's decision. The court held that the plaintiffs' claims were for professional negligence and required an expert affidavit under NRS 41A.071. The court found the expert affidavit insufficient as to the doctors because it did not specify acts of negligence separately for each doctor. However, the affidavit was sufficient as to the hospital. Despite this, the court concluded that the PREP Act barred the claim against the hospital because it related to the administration of remdesivir, a covered countermeasure. Therefore, the dismissal of the complaint was affirmed. View "De Becker v. UHS of Delaware, Inc." on Justia Law

In September 2020, George Fluitt was indicted on three counts of fraud and offering kickbacks related to genetic testing services that his company, Specialty Drug Testing LLC, provided to Medicare beneficiaries. As part of a nationwide investigation into genetic testing fraud, the Government executed search warrants at laboratories referred to as the Hurricane Shoals Entities (“HSE”), allegedly operated by Khalid Satary. The Government copied several terabytes of data from HSE, some of which were later determined to be material to Fluitt’s defense.In the lower courts, the Government established a “Filter Team” to review materials seized in its investigation and identify any that might be privileged. The Filter Team’s review was governed in part by a Protocol Order, which established a multi-step process for notifying a third party that it might have a claim of privilege and then adjudicating that claim. HSE and Satary provided privilege logs to the Filter Team, asserting thousands of claims of privilege. Both Fluitt and the Filter Team found these privilege logs to be facially deficient as they made only threadbare assertions of privilege, without any accompanying explanation.In the United States Court of Appeals Fifth Circuit, the court affirmed the lower court's decision. The court found that the appellants failed to establish their claims of privilege. The court also found that the appellants' argument that they are not bound by the Protocol Order was a red herring, as the magistrate judge evaluated the appellants’ privilege logs under the standards established by federal caselaw. The court also rejected the appellants' argument that Fluitt “has not shown a need for the documents” and has not “demonstrated any kind of relevancy.” The court found that the record suggests that Fluitt “has a need” for the potentially privileged documents, as the Government determined that the potentially privileged materials were material to preparing Fluitt’s defense. View "United States v. Fluitt" on Justia Law

The Supreme Court of the State of Delaware considered an appeal from a decision of the Superior Court regarding the adoption of a Medicare Advantage Plan for State retirees by the State Employee Benefits Committee (SEBC). The Superior Court had found that the SEBC's decision was subject to the requirements of Delaware’s Administrative Procedures Act (APA), granted a motion to stay the implementation of the Medicare Advantage Plan, and required the State to maintain its retirees’ Medicare Supplement Plan. The Superior Court also denied the plaintiffs' application for attorneys’ fees.The Supreme Court of the State of Delaware disagreed with the lower court's ruling. It found that the SEBC's decision to adopt a Medicare Advantage Plan was not a "regulation" as defined by the APA. The court reasoned that the decision did not meet the APA's definition of a regulation because it was not a "rule or standard," nor was it a guide for the decision of future cases. Therefore, the Superior Court did not have jurisdiction to stay the implementation of the plan. The Supreme Court reversed the decision of the Superior Court.On cross-appeal, the plaintiffs argued that the Superior Court erred by refusing to grant their application for attorneys’ fees. However, the Supreme Court found this argument moot because fee shifting is available only against a losing party in favor of a prevailing party. Since the Supreme Court reversed the decision below, fee shifting was foreclosed. View "DeMatteis v. RISE Delaware, Inc." on Justia Law

The case involves Jennifer Garcia, who was charged with multiple counts, including making threats to a public officer, disobeying a court order, possessing a weapon in a courthouse, attempted murder, and assault with a deadly weapon. After her counsel declared doubt as to Garcia's mental competence, the trial court suspended the criminal proceedings for a determination of Garcia's mental competence. Based on the evaluations of a licensed psychiatrist and a licensed psychologist, the court found Garcia mentally incompetent to stand trial and lacking capacity to make decisions regarding the administration of antipsychotic medication. Garcia appealed the court's order authorizing the state hospital to involuntarily administer antipsychotic medication to her, alleging errors with the order and ineffective assistance of her trial counsel. The Court of Appeal, Fourth Appellate District, Division One, State of California, affirmed the trial court's order. The appellate court found that substantial evidence supported the trial court's order, the psychologist did not exceed the scope of her license in her evaluation, and the psychiatrist's opinion did not lack statutorily required information. The appellate court also found that the error in the trial court's form order was harmless and Garcia was not prejudiced by any ineffectiveness of her counsel. View "People v. Garcia" on Justia Law

In the case at hand, the Court of Appeals of the State of Nevada reversed and remanded a district court order that had dismissed a professional negligence action for being time-barred. The case was brought by Gina Engelson, as the special administrator of the estate of Lenore Meyer, against Dignity Health (doing business as St. Rose Dominican Hospital-Siena Campus) and Grape Holdings LLC (doing business as Sage Creek Post-Acute). Lenore Meyer had developed a severe bedsore while being treated at these facilities. Meyer's family alleged that the care provided by the facilities fell below the standard of care in multiple ways, including failing to timely and adequately treat the bedsore. Meyer eventually died, and exactly one year after her death, Engelson filed a professional negligence complaint against the facilities. The district court dismissed the complaint as time-barred, finding that the complaint was filed more than a year after the estate and its special administrator knew or should have known about the relevant legal injury.Upon review, the Court of Appeals found that the district court erred in dismissing the complaint as time-barred. The Court of Appeals clarified that an affidavit of merit, which is required to support a professional negligence-based wrongful death claim, need not opine as to the element of causation. The Court of Appeals concluded that the evidence did not irrefutably demonstrate that the estate or its special administrator discovered or should have discovered the legal injury more than a year before the filing of the complaint. Therefore, the Court of Appeals reversed the district court's order and remanded for further proceedings. View "Engelson v. Dignity Health" on Justia Law

The Supreme Court affirmed the orders entered by the circuit court granting summary judgment to Defendants in the underlying action brought after investigators identified unsafe, non-sterile injection techniques, holding that the circuit court did not err.Plaintiffs, a pain management clinic and its physician, brought the underlying action alleging that the West Virginia Department of Health and Human Resources, West Virginia Bureau for Public Health, and its former Commissioner and State Health Officer (collectively, the DHHR Defendants) breached their duty of confidentiality when they issued a press release announcing that Defendants used unsafe injection practices and encouraging Plaintiffs' patients to be tested for bloodborne illnesses. Plaintiffs also sued the West Virginia Board of Ostseopathic Medicine and its executive director (together, the BOM Defendants), asserting a due process claim for failing to timely provide a hearing after their summary suspension of the physician's medical license. The circuit court concluded that the DHHR defendants were entitled to qualified immunity and that the claim against the BOM defendants was barred by res judicata. The Supreme Court affirmed, holding that there was no error in the circuit court's judgment. View "Chalifoux v. W. Va. Dep't of Health & Human Resources" on Justia Law

At issue before the Colorado Supreme Court in this matter was a trial court’s order denying immunity to Defendant New Century Hospice, Inc. and its subsidiaries, Defendants Legacy Hospice, LLC, d/b/a New Century Hospice of Denver, LLC, and Legacy Hospice of Colorado Springs, LLC (collectively, “New Century”). New Century argued it was entitled to immunity under four different statutes. Tana Edwards filed suit against New Century (her former employer) and Kathleen Johnson, the Director of Operations for New Century Castle Rock (collectively, “Defendants”). As part of her employment with New Century, Edwards provided in-home care to an elderly patient. In December 2019, Johnson began to suspect that Edwards was diverting pain medications from the patient. Defendants reported the suspected drug diversion to the Castle Rock Police Department and the Colorado Department of Public Health and Environment (“CDPHE”). Defendants also lodged a complaint against Edwards’s nursing license with the Colorado Board of Nursing (“the Board”). After investigations, no criminal charges were filed and no formal disciplinary actions were taken against Edwards. Edwards subsequently brought this action against Defendants, alleging claims for negligent supervision and negligent hiring against New Century, as well as claims for defamation and intentional infliction of emotional distress against New Century and Johnson. Defendants moved for summary judgment. The trial court granted the motion as to Edwards’s claims for negligent hiring, defamation, and intentional infliction of emotional distress, finding that the claims were either time-barred or could not be proven. Three of the statutes New Century cited for its immunity claim, 12-20-402(1), C.R.S. (2022) (“the Professions Act”), 12-255-123(2), C.R.S. (2022) (“the Nurse Practice Act”), and 18-6.5-108(3), C.R.S. (2022) (“the Mandatory Reporter statute”), only authorized immunity for a “person.” Relying on the plain meaning of “person,” the Supreme Court held that New Century was not entitled to immunity under these three statutes because it was a corporation, not a person. The fourth statute, 18-8-115, C.R.S. (2022) (“the Duty to Report statute”), explicitly entitled corporations to immunity, but only if certain conditions were met. Applying the plain language of the statute, the Supreme Court held that New Century was not entitled to summary judgment on the issue of immunity under this statute because it did not carry its burden of demonstrating that all such conditions were met. View "In re Edwards v. New Century Hospice" on Justia Law

A patient filed a complaint concerning Dr. Dore, a Board-certified psychiatrist. The Board discovered suspected irregularities in Dore's prescription of controlled substances. Dore declined to answer questions. The Board served her with an investigative subpoena seeking medical records supporting the prescription of the controlled substances to a family member and with investigative interrogatories requesting information about the family member's treatment and employment with Dore. Dore refused to produce the records and objected to the interrogatories. Her family member objected to the subpoena.The Board sought an order compelling compliance and provided reports from the Controlled Substance Utilization Review and Evaluation System (CURES) database. A Board-certified psychiatrist opined it was necessary to obtain the family member’s medical records to evaluate whether Dore complied with the standard of care, noting an AMA ethics opinion counseling physicians against treating family members except in emergencies. Dore's expert, a psychiatrist and licensed California attorney, disagreed with the assertion that prescribing controlled substances to family members presumptively violates the standard of care. The family member explained his reason for seeking treatment from Dore, identifying the medications she prescribed, and describing the treatment she provided.The court of appeal affirmed the trial court, which ordered compliance, impliedly concluding the Board established good cause to justify the production of the family member’s private medical information. The Board had a compelling interest in investigating Dore’s allegedly improper conduct. View "Kirchmeyer v. Helios Psychiatry Inc." on Justia Law

Pro se plaintiff Gary Wisner, M.D. filed a complaint alleging that defendants Dignity Health and the Dignity Health St. Joseph’s Medical Center (collectively, SJMC) falsely reported to the National Practitioner Data Bank (NPDB) that Wisner surrendered his clinical privileges while under criminal investigation for insurance fraud. The trial court granted a special motion to strike the complaint after concluding that Wisner’s claims arose from a protected activity and that Wisner failed to establish a probability of prevailing on the merits. Wisner contested both aspects of the trial court’s order, and he also argued the court erred by denying his motion to conduct limited discovery prior to the hearing on the anti-SLAPP motion. Finding no error, the Court of Appeal affirmed. View "Wisner v. Dignity Health" on Justia Law

On November 4, 2016, Kernan had an External Cephalic Version (ECV) procedure to rotate her healthy 39-week fetus from a breech position. The hospital recorded the ECV as successful. Post-procedure fetal monitoring was “reassuring.” The next day, Kernan could not detect fetal movement and returned to the hospital. After an ultrasound, doctors informed Kernan that she had suffered an intrauterine fetal demise and that they could not determine the cause of death. They noted that nothing in the literature linked ECV with fetal demise. Kernan delivered a stillborn baby on November 7. The delivery doctor, Vargas, told Kernan that he could not see any indicators as to why Kernan’s baby died. Kernan eventually ordered an autopsy. After months of delay due to Dr. Vargas not responding to Kernan’s requests to review the autopsy report with her, Kernan met with Dr. Kerns on July 10, 2017, and learned that doctors had discussed her case during a morbidity and mortality conference. Kernan claims she first became subjectively suspicious of medical negligence during that meeting. On November 6, 2017, Kernan served notice of her intention to file suit. Within 90 days, she filed her negligence complaint.The court rejected the suit as time-barred under Code of Civil Procedure 340.5’s one-year limitations period. The court of appeal reversed. The hospital’s records demonstrate that reasonable minds could differ as to whether Kernan should have suspected negligent performance of the ECV on November 5, 2016. View "Kernan v. Regents of the University of California" on Justia Law