Legal News for the Medical Community · Summer 2005 Legal News for the Medical Community Vol. 1,...

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Summer 2005

Legal News for the Medical Community

Vol. 1, No. 2

Circuit Court reportBY TODD C. BERG, ESQ.

[email protected]

A defense pathologist whoclaimed he detected coxsackievirus in placental tissue using “di-rect RT in situ PCR” was barredfrom testifying that a viral infec-tion — rather than a lack of oxy-gen during the birthing process —caused a newborn’s brain dam-age, a Van Buren County CircuitCourt judge has ruled.

The newborn’s mother arguedfor exclusion of the defense ex-pert’s proposed testimony, con-tending the evidence was unreli-able and, therefore, inadmissibleunder MRE 702, MCL 600.2955and the Michigan SupremeCourt’s decisions in Gilbert v.DaimlerChrysler Corp. and Craigv. Oakwood Hospital.

Judge William C. Buhl agreed,drawing on the standards setforth in MRE 702(2) and (3) togrant the mother and newborn’smotion to exclude.

“The court finds the defendanthas failed to meet its burden ofproof in that the methods and prin-ciples employed by [the defendant’spathology expert], or the use of RTin situ PCR for the detection of …the coxsackie virus … in the pla-centa, are not reliable,” Buhl wrote.“[The] defendant failed to demon-strate that the testing methods andprinciples used here meet any ofthe factors of MCL 600.2955(1)(a)through (g).”

As such, the judge also ruledthe defendant had failed to meet

her burden of showing that herpathology expert had reliably ap-plied his principles and methodsto the facts of the case.

The 10-page decision is Cornejo v.Kile, Lawyers Weekly No. 10-55238.

Junk scienceSouthfield attorney Norman D.

Tucker, who, along with DanielleC. Schoeny, Anne M. Schoepfle,and James Lee Tilson, represents

the plaintiffs, said he’s optimisticthe ripple effect from this casewill extend to the rest of Michiganand beyond.

“My hope is that the defen-dant’s pathologist will see this or-der again in other states, and itwill be used to prevent his testi-mony from being offered into evi-dence,” he stated. “It’s not reliableand, thus, it shouldn’t be admit-

Legislative preview

Conscientiousobjector billsback foranother roundSimilar measures diedin the Senate last year

BY DENISE G. CALLAHAN

While supporters say the latestbatch of medical conscientious ob-jector bills fix what doomed simi-lar legislation in the Senate lastsession, doctors, hospitals andlawyers say the measure is mean-ingless and won’t pass constitu-tional muster.

For the better part of the lastdecade, the House has attemptedto put in place guidelines that givephysicians and others in the med-ical community the legal right toobject to performing medical pro-cedures — such as partial birthabortions and stem cell research— or dispensing of prescriptionmedications that some religionseither strenuously object to or banoutright.

The bills’ primary sponsor, Rep.Brian Palmer, R-Romeo, said thatwhile the hospital and physicianassociations decry the bills as auseless nuisance, there are a goodmany constituents who haveasked for the legislation.

“Right to Life believes this is avery important watershed issue,particularly as it relates to abor-tion, which is a front-line issue,”Palmer told Lawyers Weekly. “Asfor partial birth abortion, I don’tthink Saddam Hussein could havecome up with any worse torture toa person. As they are coming intotheir first day of life, their brainsare sucked out as they are beingdelivered. It is disgusting, and toforce somebody to perform a pro-cedure like that when they knowit is cold-blooded murder is some-thing that had to be addressed.”

However, the American Bar As-sociation, the American MedicalAssociation and many hospitalsdon’t favor such restrictions in thelaw, save for Catholic hospitals,which must follow church teach-ings that don’t allow key proce-dures such as sterilization andabortion, and prohibit the dis-pensing of what’s commonly re-ferred to as the morning-after pill.

Dave Maluchnik, spokesman forthe Michigan Catholic Conferencesaid these laws are necessary and,despite what detractors say, pa-tients do and will have access toneeded medical care — it’s simplya matter of choice.

“We’re talking about primarilynon-emergency procedures where

Decision stands, but getsprospective application

A medical-malpractice plaintiffwho filed her complaint and affi-davit of merit on time, but failedto provide certification for her out-of-state affidavit of merit until af-ter the limitations period had ex-pired, was nevertheless entitledto proceed with her lawsuitagainst her doctors, the MichiganCourt of Appeals has ruled in a 2-1 reconsideration opinion.

The plaintiff argued she wasnot obligated to provide certifica-tion for the authority of the out-of-state notary who executed her af-fidavit of merit, but — in the

event the court decided she was —she urged the court to make itsdecision prospective so that itwould not apply to her.

Even though the Court of Ap-peals disagreed with the plaintiffon the certification issue, it didgrant her request for prospectiveapplication.

“The special certification is anecessary part of an affidavit sub-mitted to the court to meet the re-quirement of [the affidavit of mer-it statute],” Judge KathleenJansen wrote.

However, the judge explainedthat, because the plaintiff ini-tially filed an affidavit of meritand ultimately — albeit untime-ly — did provide the required

COA compromises on controversial‘Apsey’ reconsideration

Continued on page 23


MICHAEL W. STEPHENSONProspective application setsbad precedent

Defense expert is barred fromtestifying in birth-injury case

Continued on page 8

Inside MedLawMedical News:A recent study shows that phar-macists should be required to fillprescriptions for the “morning af-ter pill,” even if they are personal-ly opposed to it. The study wasconducted as part of a continuinginvestigation of the social, politi-cal, and economic issues con-fronting the U.S. health care sys-tem. Among the findings: “Amajority of responders — 74 per-cent — representing all major re-ligions agreed that state lawsshould require pharmacists to fillprescriptions despite any reli-gious objections that pharmacistsmight have.”..............See page 5

Viewpoint:Charles D. Brown discusses anew vision of malpractice reform,saying that any cross-examina-tion of previous testimony can be

tailored tothe higheststandards ofprofessionalexperience. Ifthe peer-re-view settingfinds the ex-pert’s testi-

mony to be wanting in terms ofmedical or scientific accuracy, orif any past testimony is found tobe unethical according to the so-ciety’s standards, that findingshould be admissible the nexttime that the expert is profferedbefore a jury. ..............See page 7

Business & Technology:Mark Wilson talks about theemergence of “medical malls” —physician-owned complexes thatcan create a solid incomeproducing investment with astream of revenue which remainsresponsive to patients’ needs.Are you ready?........See page 18

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BY TODD C. BERG, [email protected]

Can the estate of a nursing home pa-tient who died of renal failure sue herdoctors for wrongful death arising frommedical malpractice even though herchoice to refuse food and water may havebeen a contributing factorin her death?

A verdict in favor of thedoctors in Wayne CountyCircuit Court indicatesthe answer is “no.”

Detroit attorney Jane P.Garrett, who representsthe defendant doctors,said the key to winningwas showing that, despiteeverything the doctors didto provide the patientwith the necessary nutri-tion and hydration, the ul-timate decision of whetherto eat or drink was exclu-sively within the patient’scontrol.

“She is entitled to makechoices,” the defenselawyer stated. “She wasstill in her right mind. Shewas an adult who had theright to direct her ownmedical care and if shedidn’t want to eat ordrink, then there was noway the doctors couldhave forced her to do so.”

Garrett told LawyersWeekly the primary chal-lenge she faced in pre-senting the doctors’ de-fense was making the jury appreciatethe full complexities of the case.

“The estate painted a picture of thislady as having just slight medical diffi-culties and some situational depression,implying that, with just a little care,the doctors could have snapped her outof it and she would have gone home,”she recounted.

But Garrett said the truth was that,when the patient came into the doctors’

care, she had had a long history of psy-chiatric and medical problems, includinga neurological disease, multiple sclerosis,depression, and loss of bladder and bowelcontrol. Moreover, Garrett noted the pa-tient had been in constant pain for years.

“The idea that the doctors were goingto reverse all of that in two weeks in a

nursing home is not credible,” she as-serted. “Many measures were taken toaddress her condition, but it was not like-ly that they were going to overcome theselong-term, very deeply rooted problems.”

Garrett observed that one of the mostdifficult obstacles to overcome in caseslike this is the societal prejudice againstnursing homes and the healthcare pro-fessionals associated with them.

“I have heard plaintiffs’ attorneys say

that, from their perspective, a case arisingin a nursing home is viewed as practicallya lay-down win because there is this pre-sumption that the caregivers are not ashigh quality as those in acute care hospitalsand private office practice,” she related.

Garrett said she’s found only one ef-fective way to handle stereotypes such as

this: tackle them head-onby showing the jurors whothe defendants really are.

“I put on my doctors andtheir physician’s assistantsand I had them explainwho they are, why they dothe work they do, and whyit is important to them,”she stated. “I wouldn’t hes-itate for a moment to putan elderly loved one ofmine in their hands.”

According to Garrett,attorneys can win similarcases if they:• counter the plaintiff ’s

oversimplified versionof events;

• focus on the patient’s competency to refusetreatment;

• challenge the plaintiff ’sexpert’s assertions; and

• tackle jurors’predisposed stereotypesfrom the beginning.

Nursing homePlaintiff ’s decedent Pat-

sy Turner had shownsymptoms of mental ill-ness for more than 30years. For nearly a decade,

she had also endured severe arthriticpain in her legs from a car accident manyyears before. Moreover, for approximate-ly two years, she had struggled withmuscle spasms and been unable to moveabout her home with using furniture tosupport her.

When her mother died in 1999, Turnerbecame increasingly depressed to thepoint that she lost nearly 25 pounds over

Nursing home doctors win ‘nocause’ in refusal-of-care casePatient clearly declined available nutrition, hydration

Hospital cannot be sued foralleged ‘bad’ physician referral

BY LYNN PATRICK INGRAM, [email protected]

A hospital could not be sued under theMichigan Consumer Protection Act(MCPA) even though its referral and in-formation service recommended a physi-cian who had been involved in five priormedical malpractice lawsuits, the Michi-gan Court of Appeals has decided.

The woman seeking the referral arguedthe hospital’s failure to provide this in-formation made it subject to suit underthe MCPA.

But the Court of Appeals disagreed, af-firming the trial court’s grant of summa-ry disposition for the hospital.

“When a plaintiff ’s claim, read as awhole, encompasses a professional rela-tionship and raises questions involvingmedical judgment, the gravamen of thecase is medical malpractice and it cannotbe brought under the MCPA,” wrote JudgeKirsten Frank Kelly.

“Reading [this] plaintiff ’s complaint as awhole, we conclude that [her] claims con-tain the distinguishing characteristics of amedical malpractice case,” Kelly concluded.

The 7-page decision is Tipton v. WilliamBeaumont Hospital, et al., Lawyers Week-ly No. 07-55383.

‘Bad Check’Plaintiff Janet Tipton contacted defen-

dant William Beaumont Hospital seeking

the name of a reliable physician to provideher with prenatal care and delivery serv-ices. According to the plaintiff, the defen-dant had advertised that “there is no bet-ter place to find a doctor” than through itsreferral and information service.

A representative sent the plaintiff a let-ter with the names of several doctors. Theletter also stated: “I hope the doctor I’ve rec-ommended will live up to your expectations— both professionally and personally.”

Enclosed was a brief curriculum vitae oneach doctor, indicating that the doctor wason staff at the hospital and providing thedoctor’s board certification, education, res-idency, and other membership information.

There was no information regarding thedoctors’ prior involvement in medical mal-

Michigan Supreme Court preview

Can osteopathsue for denial of privileges?Does private cause of actionfor discrimination exist?

BY AMANDA L. [email protected]

The Michigan Supreme Court will soondecide whether a doctor who was alleged-ly denied hospital staff privileges becausehe was an osteopathic surgeon can bring aprivate cause of action for discriminationunder the Public Health Code.

According to MCL 333.21513(e) of thecode, a hospital is prohibited from discrimi-nating “in the selection and appointment ofindividuals to the physician staff of the hos-pital or its training programs on the basis oflicensure or registration or professional ed-ucation as doctors of medicine, osteopathicmedicine and surgery, or podiatry.”

In Fisher v. W.A. Foote Memorial Hospi-tal, the Michigan Court of Appeals con-cluded the osteopathic surgeon had nocause of action because none was createdby the code and because the code providedadequate means of enforcing § 21513(e),such as suspending or revoking the hospi-tal’s license, initiating internal or criminalinvestigations, and imposing fines.

Ann Arbor attorney Philip Green, whorepresents the osteopathic surgeon, as-serted in his brief to the high court thatthis should not have been a difficult case.

“The statute unequivocally requireshospitals to accord osteopaths and podia-trists equality with medical doctors in thegrant and denial of staff privileges,” hewrote. “The defendant’s surgery depart-ment maintained an express policy of pre-ferring the credentials of medical doctors

Defective affidavitof merit begetsmed-mal dismissalwith prejudice

A medical-malpractice plaintiff ’s law-suit was properly dismissed with preju-dice because the expert who signed theplaintiff ’s timely-filed affidavit of meritwas not board-certified in the same spe-cialty as the defendants, the MichiganCourt of Appeals has ruled.

Initially, thetrial court dis-missed the casewithout prejudiceand the Court ofAppeals agreed.

But when thedefendants askedthe MichiganSupreme Court toreview the case,the high courtsent the matterback to the Courtof Appeals to de-termine whether the plaintiff ’s defectiveaffidavit of merit had failed to toll thestatute of limitations under Geralds v.Munson Healthcare and whether dis-missal with prejudice was warranted.

On remand, the Court of Appeals con-cluded that caselaw — which had comedown since its original opinion — com-pelled dismissal with prejudice of theplaintiff ’s lawsuit.

“We reverse on remand in this medicalmalpractice action on the basis of Scarsel-la v. Pollak … (2000), and its progeny Ger-alds v. Munson Healthcare ... (2003), andMouradian v. Goldberg … (2003),” JudgeWilliam B. Murphy wrote. “In sum,whether or not the defective affidavit hereconstituted a grossly nonconforming affi-davit of merit, Geralds and Mouradian,with their underlying reliance on Scarsel-la, dictate dismissal with prejudice.”

Contents

Health News Briefly . . . . . . . . . . . . 4

Practice Profile . . . . . . . . . . . . . . . . 6

Pending Legislation. . . . . . . . . . . . 12

Verdicts & Settlements . . . . . . . . . 16

GUEST FEATURES

Compliance Corner: Cost-effective tips

for compliance measures . . . . . . . . 5

Viewpoint . . . . . . . . . . . . . . . . . . . . 7

Employment Law . . . . . . . . . . . . . . 9

Business & Technology . . . . . . . . . 18

Patient Advocacy. . . . . . . . . . . . . . 18

Business & Technology . . . . . . . . . 19

WILLIAM B. MURPHY

Inside The Michigan Medical Law Report



Continued on page 20Continued on page 21

Study challenges 12-hourwindow for heart attack

A provocative new study by a Michiganresearcher challenges the notion that heartattack victims have only 12 hours in whichto undergo an artery-clearing angioplasty.

The study found that patients who hadthe procedure as much as two days afterbeing stricken still benefited.

Although the study was too small to beconclusive, the findings “are a noteworthychallenge to existing dogma and an im-portant contribution to current knowl-edge,” Drs. Cindy Grines of BeaumontHospital in Royal Oak and Raymond Gib-bons of the Mayo Clinic said in an accom-panying editorial.

Cardiologists generally believe they havea 12-hour window after a heart attackstarts to reopen clogged arteries and saveheart muscle from damage caused by inter-rupted blood flow. Current guidelines dis-courage angioplasties beyond that window.

But in the study of 365 European pa-tients hospitalized between 12 and 48hours after symptoms began, patientswho got immediate angioplasties had sub-stantially less heart-muscle damage thanthose treated initially with drugs alone.

Tests several days after treatmentshowed that 8 percent of the heart musclewas damaged in angioplasty patients ver-sus 13 percent in the others.

Less heart muscle damage usuallymeans better outcomes, and there werefewer deaths, recurrent heart attacks andstrokes among the angioplasty patientswithin 30 days of treatment. But the studywas too small to determine whether thatwas due to anything more than chance.

The study was published in a recentJournal of the American Medical Associa-tion and led by Dr. Albert Schomig of Tech-nische University in Munich, Germany.

Up to about 40 percent of heart attackpatients seek treatment beyond the 12-hour window, the researchers said. In theUnited States alone, that is more than300,000 of the nearly 900,000 people whowill have heart attacks this year.

In an angioplasty, a catheter with a bal-loon tip is threaded into an artery to clearaway a blockage. Tiny mesh cylinderscalled stents often are then inserted tokeep the cleared artery propped open.

The study involved patients treated inGermany, Austria and Italy. All receivedthe anti-clotting drugs Plavix or ticlopidine,plus aspirin and the blood-thinner heparin.

About half also got immediate invasivetreatment — mostly angioplasty withstents. This group also got a newer drugcalled ReoPro that helps prevent clotsthat can cause a heart attack.

There were eight deaths, recurrentheart attacks or strokes in the angioplas-ty group versus 12 in the others.

The study was partly funded by themakers of ReoPro and heart stents.

Cleveland Clinic cardiologist Dr. StevenNissen said the angioplasty group’s use ofReoPro might explain the differing results.

Dr. Sidney Smith, an American HeartAssociation spokesman, said an unusual-ly large number of patients in the studyhad relatively little tissue damage andcontinued blood flow to the damaged areabefore treatment, so the results might notapply to a broader population.

Bill restricting coldmedicine sales passed

The House has approved a bill aimedat reducing the number of illegalmethamphetamine labs sprouting upacross the state.

The bill would require customers toshow identification before buying somecold and flu medications. And the billwould bar anyone under 18 from buyingthose products.

The key material to make meth —ephedrine or pseudoephedrine — can be ex-tracted from some cold and flu medications.

The bill was to be returned to the Senate,which passed a similar measure in May.

If stores do not keep drugs withephedrine or pseudoephedrine behind thecounter or in a locked case, they would berequired to keep a log of buyers. The billshave been opposed by retailers.

Law enforcement officials found sixmethamphetamine labs in Michigan in 1996.That number rose to 209 in 2004. Many are

concentrated in southwest Michigan.Several other states have restricted ac-

cess to cold medicines, either by allowingonly pharmacies to sell drugs with pseu-doephedrine or making retailers lock upthe products or sell them from staffedcounters.

The cold medication bills are SB 189and HB 4322

[Editor’s Note: More legislation impact-ing doctors and healthcare professionalscan be found on page 12.]

Hospitals cut patientcomplications, care costs

In busy intensive care units around thecountry, one patient on a breathing ma-chine gets pneumonia every week on av-erage, and up to 40 percent die from it.

But for 13 straight months at NewarkBeth Israel Medical Center in New Jersey,not one patient on a ventilator has devel-oped pneumonia. The hospital also boastsfive straight months without any ICU pa-tients getting life-threatening blood infec-tions from neck or groin catheters.

Hundreds of other U.S. hospitals like-wise are reducing some of the most com-mon, serious and costly complications byhaving doctors and nurses make specificchanges in care. Organizations includingcare quality groups, hospital associationsand insurers are working with the facili-ties to prevent infections and improve re-sponse time to patients.

One of the biggest efforts, the Institutefor Healthcare Improvement’s six-month-old 100,000 Lives Campaign, already hassigned up about 20 percent of the coun-try’s 5,500 hospitals, including 77 inMichigan. It aims to save patients by fo-cusing on six problem areas, includingmedication errors.

“There are people walking around theircommunities that wouldn’t have seentheir daughter’s graduation, that wouldn’thave seen their next birthday” but forthese efforts, said Dr. Thomas G. Rainey,chairman of the Boston institute’s ICUcare project.

Besides saving lives, preventing compli-cations gets patients home faster and savesmoney for hospitals. Ventilators make iteasier for bacteria or vomit to get intolungs, for example, and patients dependingon them spend nearly an extra week in thehospital if they get pneumonia.

“The cost of your care increases by$40,000,” Rainey said.

He and Dr. Peter Pronovost, medical di-rector of the Center for Innovations inQuality Patient Care at Johns HopkinsUniversity, have been helping New Jerseyand Michigan hospital associations im-plement steps to prevent pneumonia andblood infections in ICU patients, improvestaff communication and teamwork, andmeasure progress. Pronovost is negotiat-ing similar projects in nine other states.

Already, he said, about 80 hospitals inMichigan and New Jersey have virtuallyeliminated ventilator-associated pneumo-nia and blood infections from neck andgroin catheters, which take very potentdrugs straight to the heart.

“Morale seems to be way up at hospitalsdoing this,” he said. “Now we’re expandingit out to the OR, to the ER, to the otherfloors” at some hospitals.

In Michigan, 77 hospitals — 95 percent ofthose with ICUs — slashed catheter-relatedblood infections more than 70 percent andventilator-associated pneumonia by 25 per-cent between March and December 2004.

“It is amazing,” said Chris Goeschel ofthe state hospital association.

She estimates they prevented 73 deathsfrom pneumonia and four from blood in-fections over those 10 months.

Researchers are targeting complica-tions such as sepsis, a blood infection thatusually strikes feeble patients, killing 42percent on average. At Hopkins, the sepsisdeath rate is down to 13 percent.

In New Jersey, 25 hospitals workingwith their hospital association reducedventilator-pneumonia cases and catheter-related infections by a third between lastJune and January, and cut the averagepatient’s ICU stay from 4.3 days to 3.6days. They followed simple steps such aselevating the head of the bed for ventilatorpatients and weaning them off the venti-lator quicker, and using a stronger skindisinfectant when inserting catheters, saidthe association’s Aline Holmes.

The goal is “trying to make things as id-iot proof as possible,” she said.

Newark Beth Israel and seven otherNew Jersey hospitals in the Saint Barn-abas Healthcare System got their compli-cations well below the state average andalso reduced infections from urinarycatheters by a third, said Dr. John Bren-nan, the system’s senior vice president forclinical and emergency services.

“We saved $2 million in direct costs” formedicines and supplies compared with2003, he said.

The Saint Barnabas hospitals also havebeen working on preventing heart pa-tients from going into cardiac arrest by in-tervening as soon as their breathing orheart rate hits a dangerous level.

The project focuses on six areas for im-provement: ventilator-associated pneu-monia, catheter-related and surgical siteinfections, preventing medication errors,ensuring heart attack patients get all rec-ommended medicines and starting “rapidresponse teams” to rescue patients at thefirst sign of decline.

“It’s gotten off to about as ideal a startas we could have imagined,” director JoeMcCannon said.

Dr. Don Nielsen, the American HospitalAssociation’s senior vice president forquality, said improvement efforts, particu-larly in the ICU, are now getting traction.

“There’s a lot of effort and time beingspent by physicians and hospitals tryingto make these improvements,” he said.

Great Lakes probed formedical treatments

A biologist from the University of Wis-consin-Milwaukee is scouring the bottomof Lake Michigan, looking not for clams,but for bacteria and fungi that developanti-bacterial chemicals that could be de-veloped into lifesaving drugs for humans.

Biologist Yi-Qiang Cheng and a gradu-ate student, Melissa Barman, say the soilsof the Great Lakes might harbor an un-tapped pharmacy — a trove of new drugagents that could be developed into an-tibiotics, cancer drugs and fungus fighters.

They have identified novel strains ofbacteria and fungi that appear to holdmedical promise. But they add it is too ear-ly to say how lucrative the lakes might be.

“People have been looking in every con-ceivable exotic environment” for biologicalagents, Cheng said. “I figured that sincewe were here, just a few blocks from LakeMichigan, we should look there.”

Cheng and Barman’s proximity to thelake could help with creating a naturalenvironment for microbes, which often failto produce their unique chemicals in lab-oratory settings.

The team is also employing a process

‘Saving patients’ at a glanceSeveral simple steps have helpedhospitals around the country cut down ontwo of the most common complicationsamong patients in intensive care units.Those measures include:Preventing pneumonia in patients onbreathing machines:• Elevating the head of the bed to 30

degrees to prevent bacteria, vomit orsecretions from getting into the lungs.

• Reducing the sedatives used to prevent apatient from pulling out the breathing tubeso they can be woken up daily, assessedmore thoroughly and weaned off theventilator quicker. The longer patients areon a ventilator, the greater the chance ofdeveloping pneumonia.

• Giving medication to prevent dangerousblood clots in the legs, which can formbecause of inactivity and cause a strokeor heart attack if they break free.

Preventing blood infections wheninserting neck and groin catheters:• Cleaning the skin at the insertion site with

chlorhexidine, which kills more bacteriathan the standard surgical scrub.

• Having the doctor wear a face mask,surgical gloves and full gown wheninserting the catheter.

• Putting a full drape over the patient,instead of just laying sterile cloths aroundwhere the catheter is being inserted.

• Assembling a crash cart that haseverything needed to insert suchcatheters, called central lines, so nothingwill be overlooked.

• Having a nurse observe the procedure toensure everything touching the patientremains sterile.

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Health News Briefly

called metagenomics, which allows the re-searchers to identify every snippet of DNAin a sample — enabling the team to seemicrobes that would ordinarily die, or re-main invisible, in a regular lab.

There are limitations to the technique, hesaid. For instance, what his computer tellshim is a novel species actually might be aloose strand of DNA from another microbe,thereby overestimating their diversity.

The team has tough slogging in the areaof new antibiotics. The researchers mustprove the agents they identify are newand get pharmaceutical companies inter-ested in developing them.

According to Steven Projan, assistantvice president for protein technologies atglobal pharmaceutical producer WyethCo., only seven new anti-bacterial drugshave been approved since 1998.

In 2004, of 290 drugs that major phar-maceutical companies were developing,only four were antibiotics.

Cost is a major factor, said Projan. Butthere also is concern that despite nearly twodecades of intensive screening for new an-tibiotics, few novel agents have been found.

While some say this problem is insur-mountable — that the millions of bacteriaand microbes on the planet share just afew dozen chemical weapons, and no morewill be found — others say the dearth ofnew agents is because of the outdated wayresearchers have been looking for them.

Study: Drug companiesinfluence research

Many U.S. medical schools are willing togive companies that sponsor studies of newdrugs and treatments considerable controlover the results, according to survey re-sults that some doctors found troubling.

Half of the schools said they would letpharmaceutical companies and makers ofmedical devices draft articles that appearin medical journals, and a quarter wouldallow them to supply the actual results.But academics draw the line at gag ordersthat keep researchers from publishingnegative findings.

“This is totally beyond reasonable prac-tice. What you’re seeing here is a willing-ness by some institutions to give moreleeway than they should,” said Dr. HarlanKrumholz, a Yale University cardiologistand epidemiologist who was not involvedin the survey.

Private industry funds more than two-thirds of medical research at U.S. univer-sities, a situation that has led increasing-ly to conflict-of-interest suspicions. Twodecades ago, the federal government wasthe main benefactor.

The study, led by Michelle Mello of theHarvard School of Public Health, appearsa recent issue of the New England Journalof Medicine.

Harvard researchers sent surveys tothe nation’s 122 accredited medicalschools to gauge what kinds of standardsexist between researchers and sponsors.All but 15 responded.

The researchers did not directly estab-lish exactly how much control universitiesactually give to companies.

But the medical schools overwhelminglyagreed that they would not enter into con-tracts that would allow companies to editresearch articles or suppress negative re-sults. The schools were split on other is-sues. Fifty percent would allow companiesto draft research papers, while nearly 25percent would let them provide the data.

Three-fourths had disputes over pay-ment after a contract was signed, and 17percent argued over access to data.

“These results are really bothersome,”said Dr. Jerome Kassirer, former editor inchief of the journal and author of a recentbook about conflict of interest in research.“Some investigators may be willing to ac-cept constraints just to maintain good re-lations with the company,” said Kassirer,who had no role in the survey.

The Pharmaceutical Research andManufacturers of America, a trade group,insists that corporate sponsors do not in-terfere with researchers’ independence.

The group publishes voluntary researchguidelines stating that companies will some-times help analyze and interpret results andhave the right to review articles before pub-lication. The guidelines also note that spon-sors own the data and have sole discretionover who has access to the information.

Recent controversies involving compa-nies accused of suppressing unfavorableresults have led to demands for more pub-

lic disclosure of industry-sponsored re-search. Drug manufacturers Glaxo-SmithKline and Merck were recently suedfor allegedly hiding information about theantidepressant Paxil and the painkillerVioxx, respectively.

An accompanying editorial noted sever-al efforts under way to change the situa-tion, among them:• The American Medical Association is

working with the industry to eliminategag clauses in research contracts.

• The Association of American MedicalColleges is developing a set of principlesfor researchers and sponsors of studies.

• A bill is pending in Congress that wouldrequire public and private sponsors toregister their studies in a governmentdatabase.

• Eleven members of the InternationalCommittee of Medical Journal Editorslast year promised not to publish anystudies not registered in the database.

Pharmacists should fill‘morning after pill’

Results of a national survey of 1,200Americans revealed that a clear majority— 73 percent — believe that pharmacistsshould be required to fill prescriptions ofthe “morning after pill” even if they arepersonally opposed to it.

The study was conducted by the LouisFinkelstein Institute for Social and Reli-gious Research at The Jewish TheologicalSeminary and HCD Research in Fleming-ton, New Jersey, from May 10-11, in re-sponse to recent reports of pharmacistswho refused to fill prescriptions of themorning after pill for religious reasons.

The study was conducted as part of acontinuing investigation of the social, po-litical, and economic issues confrontingthe U.S. health care system. The margin oferror for the study was plus or minus 3percent at a 95 percent level of confidence.

The responses were analyzed based onthe religious affiliation and the partici-pants’ self described affiliation. Amongthe findings:• A majority of responders — 74 percent

— representing all major religionsagreed that state laws should requirepharmacists to fill prescriptions despiteany religious objections that pharma-cists might have.

• Majorities of both Catholics (70 percent)and Protestants (68 percent) side withthe right of patients to receive legal drugsover pharmacists’ right to refuse dis-pensing them for reasons of conscience.

• By political affiliation, more than half ofconservatives — 59 percent — believethat pharmacists should not be forced toviolate their consciences. A clear major-ity of moderates (81 percent) and liberals

(87 percent) side with patients’ rights, asdid respondents who were unsure oftheir political standing (76 percent).“These findings are not encouraging

from the point of view of religious liberty,”said Dr. Alan Mittleman, Director of theFinkelstein Institute. “Conservativesmore than other groups have the highestsensitivity to the religious liberty dimen-sion of this scenario.”

Glenn Kessler, co-founder and managingpartner, HCD Research, commented: “Theseresults are similar to national polls relatedto the Terry Schaivo case. It seems that oncontroversial medical and ethical issues thegeneral public’s views are supportive of car-rying out physician directives.”

The policy of the more than 50,000-member American Pharmacists Associa-tion states that druggists can refuse to fillprescriptions if they object on moralgrounds, but must make arrangements sothat patients can get the medicine. How-ever, some pharmacists still refuse to handthe prescription to another druggist to fill.

Recent media reports indicate that somepharmacists have refused to fill prescrip-tions for contraceptives on moral grounds.

On the basis of this survey, however, it ap-pears that the public may not have sympa-thy for such conscience-based exemptions.

To view results and data conducted for thispoll, please go to: www.hcdi.net/polls/J5775.

Michigan Medical Law Report • 5Summer 2005Cite this page 1 M.L.R. 021

Health News BrieflyContinued

BY ANDREW B. WACHLERAND ABBY PENDLETON

Compliance is a necessary part of run-ning a medical practice, and physiciansare well advised to budget compliancecosts into their annual budgets.

Conducting annual compliance audits,as well as consulting with healthcare at-torneys on compliance matters involvingbilling issues and referral and other re-lationships that should be evaluatedfrom a Stark and fraud and abuse stand-point are all activities that should be incovered in your budget.

But did you know that many compli-ance efforts can be accomplished withlittle or no expense on the part of yourpractice?

Following are the top three compliancetips that will assist physicians in imple-menting certain cost-effective compli-ance measures.

Tip one: Obtain billing &documentation policies

A vital component of any effective com-pliance program is to ensure that thephysician practice is apprised of all ma-jor third-party payor billing, coding, anddocumentation policies and guidelinesapplicable to the services provided bythe practice. This would includeMedicare, Medicaid, Blue Cross BlueShield of Michigan and others.

The practice should be mindful thatdifferent payors often have different poli-cies and, thus, compliance with one pay-or’s policy does not necessarily equate tocompliance with another’s.

For example, although Medicare hasspecific rules regarding the billing of an-cillary personnel under a physician’s PIN— “incident-to” services — other payorsdo not necessarily have the same rules.In addition to being aware of all applica-ble policies, the practice must also un-derstand these policies.

To make sure the practice is obtainingnecessary billing and documentation rulesand guidelines, the practice should desig-nate an individual who is responsible for:• determining which third-party payors

have published policies and guidelines(this can be accomplished by making tele-phone calls and researching websites);

• creating a list of the payors (with ap-plicable websites) that have policiesand guidelines and keeping the list up-dated; and

• obtaining the available information.The website for the Michigan Medicare

carrier is www.wpsmedicare.com. Prac-tices can access Michigan Medicare poli-cies through this website.

Moreover, practices can sign-up forWPS’ e-mail news service.

Tip two: Create a distribution system

Once the practice is obtaining neces-sary billing and documentation informa-tion, the information must be appropri-ately disseminated to physicians andothers involved in the billing process. Asthe policies may contain requirements re-garding documentation and frequencylimitations in addition to coding issues,the physicians and providers in the prac-tice should be included in the distribution.

Many physicians believe that they donot need to review the materials as longas their billing staff is aware of the poli-cies. However, physicians must under-stand that they are personally responsiblefor services billed under their numbers.

Moreover, payor policies often containinformation necessary for the physician,such as specific documentation elementsthat must be contained in the record tosupport billing of a service. In addition tothe potential audit and overpayment ex-posure that exists for failing to complywith payor policies and guidelines, physi-cians should be aware that certain pat-terns can lead to the physician being de-participated from a payor program.

If a physician receives notice from apayor such as the BCBSM Trust Pro-gram regarding problematic utilizationand medically necessary patterns, thephysician should address the issue early,including consulting with a healthcarelawyer to assist in the matter. Physiciansare far better off addressing issues inthe early stages rather than waiting un-til the de-participation process has al-ready begun.

Therefore, in order to make sure thatthe practice has an effective distributionprocess in place, the practice should des-ignate an individual responsible for (1)creating a distribution process and (2)ensuring that the process is carried out.

The distribution process can be handledin a number of ways, including having aperson responsible for initially reviewingall materials and copying or highlightingpertinent portions to be distributed via e-mail, mailboxes or in another manner.

The person responsible may also con-sider creating a distribution spreadsheetthat is marked off when materials aredistributed. This will serve as a double-check to ensure that all individuals whoneed the information were provided theinformation.

Tip three: Include education inregularly scheduled meetings As a complement to tips one and two

above, the practice should make compli-ance education a component in regularlyscheduled staff meetings. For example,when a new policy is published byMedicare that impacts the practice, thepolicy should be discussed at the meetingto ensure that everyone has received theinformation and understands the infor-mation.

If there are no new policies to discuss,the allotted time for education can beused to provide refresher education onother payor policies and guidelines. Forexample, the BCBSM documentationguidelines for physician services couldbe discussed.

The practice should also documentthese educational efforts. This can be ac-complished by drafting simple meetingminutes that reflect that compliance ed-ucation on a particular topic took place.It is important to document that the ed-ucation occurred, but the documentationdoes not have to include all of the sub-stance of the discussions.

Andrew Wachler and Abby Pendletonare partners with the healthcare law firmof Wachler & Associates, P.C. The firmrepresents physicians, ambulatory sur-gery centers and other healthcare entitiesand providers with respect to theirhealthcare legal needs.

Wachler and Pendleton specialize in anumber of areas, including: compliance;fraud and abuse analysis; audit defense;reimbursement and contracting matters;licensure, staff privilege and third-partypayor de-participation matters; health-care fraud defense; transactional and cor-porate matters; and HIPAA privacy andsecurity compliance.

They can be reached at (248) 544-0888or [email protected] or [email protected].

Three cost-effective tips to jump-start your compliance efforts

Compliance

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BY AMANDA L. ARANOWSKI

Saying Dr. E. James Potchen’s careerhas been on the fast track from the be-ginning would be the epitome of under-statement.

Although he got his start in generalpractice — making house calls and de-livering babies — it wasn’t long beforehis talent and ambition took him well be-yond the Grand Rapids city limits tohold such prestigious positions as deanof management resources at Johns Hop-kins University, chief of nuclear medi-cine at Harvard Medical School, chief ofneurology at Washington University inSt. Louis-School of Medicine, and, mostrecently, chair of the Radiology Depart-ment at Michigan State University’s Col-lege of Osteopathic Medicine.

Among his many accomplishments,this nationally recognized radiology ex-pert has advanced the field of magneticresonance imaging with the creation of anew field called Magnetic Resonance An-giography, which has become the stan-dard for noninvasive imaging of vessels.

Moreover, the depth of his dedication tothe advancement of the field of radiologywas on full display when he purchased —with his own money — Michigan StateUniversity’s first X-ray machines.

“They may not have had an X-ray ma-chine, but they had tremendous oppor-tunity to make a difference,” he recalled.“The major difference was that MichiganState said, ‘Let’s teach doctors to dowhatever doctors do better.’”

However, not one to shy away from achallenge or an opportunity to broadenhis perspective, Potchen also managed toextract from his otherwise hectic sched-ule just enough time to get a law degreeand pass the bar.

Of course, it all makes when sense oneconsiders that his main supporter and au-thor of his letter of recommendation wasthe Arizona judge we now call U.S. SupremeCourt Justice Sandra Day O’Connor.

Based on his experience and trainingand the fact that he has tirelessly workedto bring the concepts of law, economics,business and philosophy into the practiceof medicine, one could fairly say Potchenis a life-long student of human choice.

In his many roles — as doctor, lawyer,professor and father — he has dedicated hislife to making the lives of those around himmore fulfilled, thereby fulfilling his own.

“If any other human being does better,I will do better for it,” he explained.

Q.What originally sparked your in-terest in the field of medicine?

A.When I was a child, I wanted to bea doctor. But when I got into high

school, my father built a greenhouse andI started getting involved with flowergrowing. I even had a little entrepre-neurial business as a florist. As such, Iwent to college to study horticulture —ornamental plant management — be-cause I was going to be a florist. But Iended up switching to zoology when I de-cided to go to pre-med.

After I got out of Wayne State Univer-sity School of Medicine, I helped start upa practice in Grand Rapids. I madehouse calls every day. I delivered about ababy a night. I occasionally did a littlesurgery. I did a lot of internal medicineand I loved the practice of medicine. Itwas fun, but I was really busy. I havethree children. I would rarely get hometo see them.

Even though I really liked what I wasdoing and felt that it was worthwhile,when I was 29 years old, I asked myself,“What is the rest of my life going to yield?”

Q.Tell me about your work at Har-vard Medical School, and later at

Washington University in St. Louis-School of Medicine.

A.I had a chance to get into Harvardand I went there to study radiology.

I did that for three years, and while Iwas a resident at Harvard I won theJohn J. Larken Award for Basic MedicalResearch. Cardinal Cushing gave me theaward, it was really neat. I was quiteimpressed.

At Harvard, I was doing work withtracers and radioactivity. I was chief ofnuclear medicine there. They didn’t haveany nuclear medicine at Harvard at thetime, there was no such thing and I wasthe only one doing it, so I had the job.

Then I was asked to go out to Washing-ton University in St. Louis by Juan

Taveras, the father of neuroradiology. Ibecame their first chief of nuclear medi-cine. The Mallinckrodt Institute is thebiggest radiology enterprise in the nation.

During my five years there, I trained alot of people who later became chiefs ofnuclear medicine around the country.For example, the current chairman atColumbia Presbyterian was a residentfellow. Ron Evans was a fellow. BarrySiegel was a fellow. Lenny Holman whobecame the professor and chairman ofHarvard was in training at WashingtonUniversity when I was there. MikePhelps was also there at the time. Mikewent on to invent PET scanning. He’sbeen up for the Nobel Prize and is nowout at UCLA.

It really was a wonderful opportunity.We built a very nice program there.

Q.How did you end up at the Massa-chusetts Institute of Technology(MIT)?

A.I was elected to the United StatesPharmacopeia (USP) — that’s the

group in charge of working with the Foodand Drug Administration to set qualitystandards for prescription and over-the-counter medicines. The Kefauver-Harrislaw — which was passed in 1966 — saiddrugs not only had to be safe, but theyhad to be effective.

I was asked by the Food and Drug Ad-ministration to help look into the issue ofhow and whether diagnostic agents’ effi-cacy could be measured. I learned thatfinding the answer would not be easyand the best people to turn to for an-swers were those in “decision analysis.”

Because the number one quantitativebusiness school at that time was MITSloan School of Management, I appliedand became one of the school’s firstphysician Sloan fellows. I studied eco-nomics. It was wonderful. I wrote threetheses while I was at MIT. One was onthe use of information and diagnosticmedicine in decision analysis. I wroteanother thesis on the strategic planningin academic health centers, and I wrotea third thesis on dynamic systems analy-sis of defensive medicine. We studiedmanagement in Russia, China, Ger-many, England, and the London Schoolof Economics. We went down and metwith the Supreme Court Justices. It wasa marvelous experience for a typicalcountry doc. I developed a much greaterappreciation for the tremendous wealthof information that could be brought tomedicine — to help make medicine bet-ter, I had not appreciated that before.

I stuck around there a little bit, andended up spending seven summersteaching a course at MIT.

Q.What made you decide to return toyour “roots” at Michigan State Uni-

versity where you received your bachelor’sdegree in science?

A.When I was at Hopkins, I met somepeople from MSU at a program on

management for medical schools. I wasreally thrilled they were going to have amedical school here. The problem wasthey didn’t have any money. They didn’thave a hospital and, among other things,they didn’t have an X-ray machine. Plus,they couldn’t find anyone who wanted tobe the chairman of radiology at a medicalschool that didn’t have an X-ray machine.

They may not have had an X-ray ma-chine, but they had tremendous oppor-tunity to make a difference. The majordifference was that Michigan State said,“Let’s teach doctors to do whatever doc-tors do better.” So, let’s first go out anddevelop an office of medical education re-search and go out and see how doctorsspend time. What do they do with theirtime? Maybe we can teach people to dowhatever doctors do better.

My agreement with the university atthat time essentially was: “You furnishthe land, I’ll furnish the building, theequipment and the people, but pleaseleave me alone.” The first four people I ap-pointed into the department got theirMaster’s of Business Administration fromMIT. They had been Sloan Fellows withme. The four of us got this started withthe help of some people who are still here,particularly Arlene Sierra, and with theassistance of the dean. We started fromscratch. For the first X-ray equipment, Ihad to go borrow money from the bank.

Q.How did your work with the Liai-son Committee for Medical Educa-tion lead you to law school?

A.I got elected to the Council of Med-ical Education of the American

Medical Association and in that role I gotelected to be chairman of the LiaisonCommittee for Medical Education, whichis the committee responsible for accred-iting the American and Canadian med-ical schools.

In visiting the medical schools, I wasgetting very angry with lawyers. Whenwe tried to close schools, we were threat-ened with lawsuits. In fact, my namewas on a suit as chairman of the com-mittee and it offended me because Ithought what we were doing was theright thing.

On that committee was an attorney, ajudge from Arizona. I would complain agreat deal about why lawyers would sueus for doing the right thing on behalf ofsociety. We were legitimately physicians.I did not understand law at all then. Shekept telling me that you ought to under-stand law and you should go to lawschool. Eventually, she talked me into it.

Q.Who was this influential Arizonajudge?

A.Her name was Sandra Day O’Con-nor. She wrote my letter to law

school. She really was a first-class per-son and I admired her intellect, her calmdemeanor, and her ability to solve prob-lems. It really was delightful, with theother experiences I’ve had, to be able toget know her and a lot of other people inthe judiciary.

Once I was admitted to the Universityof Michigan Law School, my routine wasto spend my mornings here — readingmy X-ray films and things — run downto the law school for most of the day, andthen come back late in the afternoon torun my department.

I worked full-time while going to lawschool full-time, but it was no worse thangoing out and delivering babies everynight when I was in general practice.

Q.That still sounds like a lot of work.

A.I didn’t work any more hours, I justcontinued to work. I still do. I have

a wonderful time. The first 30 books arethe hardest, you know. I write a lot ofbooks. I do a lot of research. I do a lot ofthings now. Within the past five weeks, I

have given six lectures in India, two inThailand, one in Korea, and two inJapan. I came home and spent a weekhere and then I went back to Florence,Italy for a week. I am fully engaged.

I also teach philosophy, such as Aris-totle’s Ethics and Plato’s Republic. It’sreally fun. I teach in the law school a lit-tle bit, and I still see patients every day.

Q.What has been your contribution tothe advancement of the field ofmagnetic resonance imaging?

A.I have developed a field calledMagnetic Resonance Angiography.

We had molecular imaging. Right now,the major thing, for example, functionalbrain imaging, FMRI, came from whatanother man did, but I got the recogni-tion. The Swedish Academy of Medicinegave me the Forssell medal, which isnamed after Gosta Forssell, who is thefather of the Radiumhemmet in Sweden.They gave that to me for Magnetic Res-onance Angiography, which has becomethe standard of imaging vessels, non-in-vasively in many instances.

Q.Can you explain for our readerswhat MSU’s Professional Assess-ment Services program is?

A.PAS is the study of various physi-cians’ decision-making around the

world. We give a standard set of chest X-rays with a known disease — for exam-ple 60 X-rays, 30 have cancer — to peo-ple all over the world. We shuffle themup. We give them to different people, dif-ferent radiologists, or other physicians,and we have them put them in the orderwhere the cancer is. That gives us achance to measure the Receding Operat-ing Characteristic (ROC) curve. Fromthat, we can tell the difference in howmuch value was added to that pile of X-rays by the knowledge of the physicianwho observed them. Then we measurethis and we feed them back whether theyhad a habit of false positive, false nega-tive or uncertainty — all of which arevarious ways people can deal with mak-ing that decision about whether an X-rayis normal or not.

Q.How does this benefit the field ofradiology?

A.By providing feedback, we let peopleknow how many standard devia-

tions they differ from the normal in termsof the way they interpret films. For ex-ample, do you miss twice as many lesionsas other people? Do you call twice asmany positives? Do you have difficultymaking up your mind compared to otherpeople? When you know how well you doagainst the benchmark of other peopledoing the same task, you can improve.

Q.How do you bring the practice oflaw into the practice of medicine?

A.Law is the study of the process ofrespect for other people’s opinions.

The ability to realize that there are mul-tiple ways to look at the same issue. Ithink a good lawyer will define the is-sues appropriately to their needs. In law,you better pay attention to what some-one else can think of the same subject oryou’re never going to win in court. Thatgave me a much broader perspective andappreciation for the diversity of thoughtabout similar topics. That was very use-ful to me.

Q.Does it make you a better doctor?

A.To say that would infer that I wasn’ta very good doctor beforehand. But

I did learn more about respect for otherpeople’s opinions. I guess that does helpmake me a better doctor.

Q.A health care lawyer once told methat doctors must be lawyers, then

accountants, then business people andthen, in their spare time, they can prac-tice medicine. In other words, becausethere is so much to keep up with — interms of regulations and compliance re-quirements — many doctors complain


Radiologist committed to strengthening the power to healMaking others’ lives better through medicine and the law


Practice profile

DR. E. JAMES POTCHENEverybody teaches me something

BY CHARLES D. BROWN

This year we are all likely to see an un-precedented amount of national attentionfocused on the issue of malpractice reform.

One reason for increased attention willbe the powerful influence of the WhiteHouse on the national debate. PresidentBush, with a solid record of tort reform ac-complishment on his resume, going backto his days as governor of Texas, has madeit a clear priority for his second term.

Indeed, the 2004 election may be seen asone of the first great national referenda onthe issue of malpractice liability reforms,pitting a noted “reformer” — Bush — ver-sus a noted member of the plaintiffs’ per-sonal injury trial bar — Democratic nom-inee for vice president, Sen. John Edwards.

America appears to be fundamentallyready to consider more reform of the civillitigation system’s handling of medical-malpractice claims. Even the Kerry-Ed-wards campaign, enjoying an unprece-dented level of financial support frompersonal injury attorneys across the coun-try, felt compelled to come up with its own“plan” for malpractice reform in thecourse of the campaign.

Interestingly, the “Kerry-Edwards plan”was billed as a plan to “reduce medical-malpractice premiums.” However, theplan did not specifically address any par-ticular reductions in the size or the num-ber of malpractice awards, nor did it de-scribe how it might achieve any reductionin malpractice insurance premiums.

The “plan” was briefly described onwww.johnkerry.com as follows: “Reducemedical malpractice premiums — JohnKerry and John Edwards oppose punitivedamages — unless intentional miscon-duct, gross negligence, or reckless indif-ference to life can be established. Kerryand Edwards also support a series of re-forms to get rid of the frivolous lawsuitsclogging the healthcare system by: (1) re-quiring a qualified specialist to certifythat a case has merit before it can moveforward; (2) working with states to insurethe availability of non-binding mediationin all malpractice claims before cases pro-ceed to trial; and (3) preventing and pun-ishing frivolous lawsuits by putting inplace tough, mandatory sanctions, includ-ing a ‘three strikes and you’re out’ provi-sion that forbids lawyers who file threefrivolous cases from bringing another suitfor the next ten years.”

Anyone familiar with current medical-malpractice law in Michigan will realizeinstantly that the plan proposed by can-didates Kerry and Edwards is about 10 or20 years behind the times, and almost en-tirely irrelevant. Michigan has had astatutory requirement that a certified spe-cialist sign an “affidavit of meritoriousclaim,” signed by a professional in thesame specialty, since 1994. Non-bindingmediation was pioneered in Michigan, anddates back to the 1970s. It was in 1985that the Michigan Supreme Court prom-ulgated a court rule that was intended toimpose sanctions on litigants and attor-neys who present “frivolous claims orpleadings.” And “punitive damages” havenever been available in the typical mal-practice case in Michigan courts.

Indeed, Michigan has come farther inits tort reform journey than most states,and farther than most Democrats mightprefer. Michigan has imposed caps on non-economic damages in medical-malpracticeclaims. Michigan has also required a pre-litigation “notice of intent to file suit” fromplaintiffs who propose to sue their doctorsand hospitals for malpractice.

It is safe to say that very little thatPresident Bush will propose in the way ofmedical-malpractice liability reform dur-ing his second term will be any more “rad-ical” than what has been settled law in theState of Michigan for the better part of thelast decade. Ironically, we can all expectthat Michigan Sen. Debbie Stabenow andSen. Carl Levin will probably both vote,along with their Democratic senate col-leagues, against the expected Republicanproposals that would set forth the samekinds of reforms, at the federal level, thatalready exist in their home state.

All of this raises a potentially depress-ing question for Michigan health care pro-fessionals. The question might be asked,“Is there no hope of improving the systemwe now see, in which the best efforts ofsome of the most advanced tort reform tobe found anywhere in the nation, havelargely failed to stop a continuing litany of

meritless lawsuits?”Refreshingly, this author believes that

there is a realistic answer to this questionand, moreover, that it need not involveDraconian damage limits, white-coatmarches on the state capitol, medical cen-ter walkouts, or millions of dollars pouredinto lobbing expenses.

A watershed case — ‘Austin v. AANS’

The answer lies in a decision comingout of the Seventh Circuit Court of Ap-peals in Chicago — Austin v. American As-sociation of Neurological Surgeons.

The plaintiff, Dr. Austin, had appearedas an expert witness in a medical-mal-practice trial. The trial involved a claimagainst Dr. Ditmore, a board-certified neu-rosurgeon. Austin, also a board-certifiedneurosurgeon, testified that, in his opin-ion, Ditmore’s negligence — in the courseof performing an anterior cervical fusion— had caused an intraoperative nerve in-jury to the patient.

After a jury trial, the jury returned averdict in favor of Ditmore, finding thatnegligence had not been proven on thepart of Ditmore.

After the jury verdict, Ditmore filed acharge of unprofessional conduct againstAustin with the American Association ofNeurological Surgeons (AANS), of whichboth neurosurgeons were members. In hiscomplaint, Ditmore alleged that Austin’strial testimony had violated the AANS’ Ex-pert Witness Guidelines and Code of Ethics.

The AANS held a hearing before astanding committee of three other board-certified neurosurgeons. Austin and Dit-more were each represented by counsel inthe hearing, and each had an opportunityto question each other directly. The pan-elists were also permitted to ask theirown questions, and all of the proceedingswere transcribed by a court reporter.

At the conclusion of the hearing and afterdeliberation, the panel unanimously foundthat Austin had violated the AANS’ Code ofEthics and Expert Witness Guidelines in an“egregious manner” and recommended thatAustin be suspended from AANS member-ship for a period of six months.

In accordance with its procedural guide-lines, the panel forwarded its report tothe AANS board of directors, which inturn notified Austin that the full boardwould consider the matter at its nextscheduled meeting. The board, all neuro-surgeons, reviewed a written response onbehalf of Austin to the panel recommen-dation and, by a secret ballot vote of morethan two-thirds of the voting directors,approved the panel’s recommendation of asix-month suspension for Austin.

The AANS bylaws provided for a right ofappeal on the part of Austin to the AANSgeneral membership at its next annualbusiness meeting. Austin exercised thatright. By mutual agreement of the AANSand Austin, his appeal was conductedanonymously. The general membership, af-ter considering his appeal, ultimately sus-tained the suspension by a vote of 190 – 5.

Some weeks later, Austin filed suit infederal court in Chicago, claiming mone-tary damages and requesting injunctiverelief to require the AANS to “removefrom its records any mention of any disci-plinary action taken against him by theassociation.”

In the federal district court, the AANSmoved for a dismissal, and won. The dis-trict court judge found that Austin hadfailed to establish a violation by the AANSof its internal rules, or any bad faith onthe part of the AANS. The district courtalso found that Austin had not been de-prived of his rights to due process of lawin the AANS proceedings.

Austin appealed the ruling of the dis-trict court to the Seventh Circuit Court ofAppeals, resulting ultimately in the ren-dering of the June 12, 2001, decision.

The opinion, authored by one of the na-

tion’s great scholar-judges, the Hon.Richard Posner, is a kind of Brown v.Board of Education of Topeka for health-care professionals.

Posner wrote:“Judges need the help of professional

associations in screening experts. TheAmerican Association of NeurologicalSurgeons knows a great deal moreabout anterior cervical fusion than anyjudge, and if the association finds in aproceeding that comports with the basicrequirements of due process of law thata member gave irresponsible expert tes-timony, that is a datum that judges, ju-

rors, and lawyers are entitled to weighheavily. One has only to read the tran-script of the disciplinary hearing, andparticularly the questions that themembers of the hearing panel, all neu-rosurgeons of course, directed to Dr.Austin, to realize how far the ordinaryvoir dire of an expert can fall short.

“There is a great deal of skepticismabout expert evidence. It is well knownthat expert witnesses are often paidvery handsome fees, and common sensesuggests that a financial stake can in-fluence an expert’s testimony, especial-ly when the testimony is technical andesoteric and hence difficult to refute interms intelligible to judges and jurors.More policing of expert witnesses is re-quired, not less.

Posner’s opinion in the Austin case isshocking only insofar as there are so few

other published opinions that clearly setforth such good sense on the subject ofmedical malpractice experts.

‘Experts’ and ‘frivolous suits’Remember that a supportive expert wit-

ness is the sine qua non of any malprac-tice claim. There simply is no malpracticeclaim to be made without the support of aqualified expert in all but the most excep-tional cases.

Much of the energy expended in furythat is nowadays hurled at the personalinjury trial bar by the medical professionand its defenders would be much betterdirected toward the self-policing of expertwitness testimony by the various medicalassociations, societies and boards.

Under Michigan and federal case lawinterpreting the court rule definitions of“frivolous” claims, it is largely impossibleto find a single case in which a claim thathad the testimonial support of a board-certified expert was judicially ruled to be“frivolous.” Sen. John Edwards mighthave been quite happy to have a “threestrikes” rule against attorneys “who filethree frivolous cases,” since American ju-risprudence seems to have so far failed tofind a single example of a “frivolous” claimwhen an expert — any expert — backedup the attorney’s theory of liability.

Despite the fact that President Bushhas made much use of the “frivolous law-suit” terminology, that moniker for junklawsuits is perhaps an unfortunate one.This author prefers “meritless” lawsuits asa better description for the target of futurereform, since that term could better be ap-plied to cases in which a proffered expertwitness, who apparently possesses the req-uisite credentials, has nevertheless offeredtestimony which defies accepted princi-ples of the organizations that have provid-ed the witness with those credentials.

Such cases would be clearly “meritless”in the considered view of the medical spe-cialty in question. But in current litigationpractice, as long as one expert will supplysupportive testimony, those meritless cas-


Toward a new vision of malpractice reform

Peer review of expert testimony is long overdue. It is time to employ the peer-review standards already in place,to improve them wherever necessary, and to end thewidespread abuses of unscientific and unethical experttestimony in the courtroom.

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certification, “reversing the trial court’sorder granting defendants’ motion forsummary disposition and allowing plain-tiffs’ claims to proceed [would] best servejustice and equity.”

Moreover, Jansen announced thatprospective application of the decisionwould be extended to other plaintiffs aswell, but not without some limitations.

“With regard to all medical-malpracticecases pending where plaintiffs are not incompliance with [the certification require-ment], on the basis of justice and equity,plaintiffs can come into compliance by fil-ing the proper certification,” the judge ex-plained. “But justice and equity also dic-tate a strict application from the date ofthis opinion. From the date of the issuanceof this opinion, any affidavit of merit ac-knowledged by an out-of-state notary filedwithout the proper certification will nottoll the statute of limitations because thelegal community is now on notice.”

In dissent, Judge Mark J. Cavanaghcontended the plaintiff ’s original affidavitof merit was sufficient because the statuterequiring certification was only one of twostatutes that governed the authenticationof out-of-state notaries.

The 12-page decision is Apsey v. Memo-rial Hospital (On Reconsideration),Lawyers Weekly No. 07-55864.

Reconsideration gone awryRoyal Oak attorney Mark R. Granzotto,

who represents the plaintiff and her hus-band, said he filed for reconsideration tohave the court right the wrongs in its orig-inal decision, not to give it an opportunityto contain the damage it caused.

“What I was looking for was that theCourt of Appeals would, on reconsidera-tion, decide this case correctly accordingto the law — but they didn’t,” he stated.“The two-person majority completelyfailed to address the fact that the URAAwas expressly meant to be an additionalbasis for admitting into a Michigan courtan affidavit signed outside of the state.”

Berkley attorney Phyllis A. Figiel, whorepresents amicus curiae Citizens for Bet-ter Care, said she couldn’t agree more.

“The revised opinion is illogical, wrong,and nothing more than an attempt to saveface,” she insisted. “While an improve-ment over the original in terms of its im-pact, it’s bad law.”

However, East Lansing attorneyMichael W. Stephenson, who representsdefendant Dr. James H. Deering, took is-sue with the way the court “split the baby”— vindicating the defendant’s argumentwhile, at the same time, allowing theplaintiff to pursue her lawsuit.

“The court noted that the statute [MCL600.2102] has been ‘overlooked by practi-tioners,’” he recounted. “Is it proper to ig-nore laws simply because some practi-tioners have overlooked them?”

Meanwhile, Granzotto faulted theCourt of Appeals for failing to grasp thesignificance of the “additional method”language in MCL 565.268.

“The URAA was, by design, an addi-tional method for using out-of-state affi-

davits in Michigan,” he explained. “Boththe URAA and MCL 600.2102 remain ineffect and either of these two statutes maybe used to validate an affidavit comingfrom outside the state of Michigan.”

Southfield attorney Mark H. Fink, whoauthored the amicus curiae reconsidera-tion brief on behalf of Michigan DefenseTrial Counsel, agreed.

“The majority opinion still fails to ac-knowledge the crystal clear meaning of theplain language of the statute,” he stated.

But Stephenson said the majority wasright on the money with its assessment ofthe URAA’s “additional method” language.

“It’s relegated to a footnote because itssignificance had been overstated by theplaintiff,” he asserted.

Moreover, Stephenson urged the courtgot it right with the way it harmonized §2102 with the URAA.

“The court must interpret the statutesto be in harmony,” he explained. “The dis-sent’s interpretation does not harmonizethe statute, but renders § 2102 useless.”

However, Granzotto disagreed, sayingthe court was trying to have it both waysand it wasn’t working.

“The Court of Appeals suggests that if itdoes not arrive at the conclusion that itreached, then it would render MCL600.2102 ‘nugatory,’” he recalled. “Butwhat the majority so obviously ignores isthat in arriving at the conclusion thatonly § 2102 applies to this case, it hasrendered nugatory the explicit languagein MCL 565.263(1) which states that, if anout-of-state affidavit is signed by a no-tary, ‘further proof of his authority is notrequired.’ You cannot reject the plaintiff ’sarguments because they would renderlanguage in one statute ‘nugatory,’ whileadopting a conclusion which so obviouslyrenders language in the URAA complete-ly nugatory.”

Far from overEven though the decision’s prospective

application will aid his clients and otherplaintiffs who have pending cases,Granzotto said this is hardly the last wordon out-of-state notary certification.

“This issue will not be going away as aresult of the majority opinion becausethere may be jurisdictions where you can-not get literal compliance with the certifi-cation requirement of § 2102,” he predict-ed. “Because of the majority’s erroneousdecision, there will be appeals to followwhich will test again the question ofwhether § 2102 or the URAA controls inthis situation. I can only hope that in thenext appeal, the court gets it right.”

Detroit attorney Daniel J. Schulte, whorepresents amicus curiae Michigan StateMedical Society, concurred.

“There is still the question as to whetherthe URAA or the language in the RevisedJudicature Act that imposes the certifica-tion requirement are meant to co-exist orwhether the URAA was meant to providean additional, less strenuous requirementfor using an affidavit in court that was no-tarized out of state,” he explained.

Moreover, Detroit attorney David R.Parker, who authored amicus curiae re-consideration briefs for the Negligenceand Elder Law Sections of the State Bar,as well as the United Auto Workers, elab-orated on the problem situations that willcontinue to elude resolution despite thecourt’s reconsideration opinion.

“There will still be cases out there — be-

cause of the state that an affiant hailsfrom or because of particular circum-stances with a given notary or countyclerk — for which the ‘after-the-fact’ cer-tification will not be available,” he stated.“For the same reasons that litigants couldnot have, and did not, anticipate the deci-sion to give MCL 600.2102 supremacy, thelitigants with these particular problemscould not have known to avoid a particu-lar state, or notary, or county.”

On the topic of prospective application,

Fink got right to the point.“Given the majority’s refusal to enforce

the statutory language, prospective appli-cation was necessary to avoid the catas-trophe that would have been caused bythe original opinion,” he stated.

But Stephenson advised that limitedprospective application may have beenthe more appropriate course for the courtto take.

“The use of prospective application ofdecisions that do not overturn law or in-terpret new legislation is bad precedent,”he declared.

Reconsideration grantedPlaintiff Sue H. Apsey had an ovarian

cyst removed by defendants Dr. RussellTobe and Dr. James Deering at defendantMemorial Hospital. When she later be-came “septic,” follow-up surgeries wereperformed.

In November 2001, the plaintiff andher husband sued the defendants formedical malpractice, alleging their mis-diagnoses and errant reporting hadcaused her condition.

Along with her complaint, she filed an af-fidavit of merit that was notarized in Penn-sylvania by a Pennsylvania notary public.

Because she did not file certification asto the authenticity of the Pennsylvanianotary public until after the limitationsperiod had expired, the defendants suc-cessfully moved for summary disposition,arguing that the affidavit of merit filedwith the complaint was invalid — becauseit lacked the certification required underMCL 600.2102 — and, therefore, failed totoll the statute of limitations.

On April 19, 2005, the Court of Appealsaffirmed in a per curiam published deci-sion, holding the “plaintiffs in the instantcase should not be permitted to use theirbelatedly filed certification of their Penn-sylvania notary publish to cure that defectin their otherwise timely complaint andaffidavit.”

The plaintiffs, along with the State Bar ofMichigan, the Negligence and Elder LawSections of the State Bar, the Michigan Tri-al Lawyers Association, Michigan DefenseTrial Counsel, Citizens for Better, theMichigan State Medical Society, the UnitedAuto Workers, and the State of MichiganDepartment of Community Health —asked the court to reconsider its ruling.

On June 2, 2005, the Court of Appealsgranted the request for reconsiderationand vacated its opinion, indicating that anew opinion would be forthcoming.

Finally, on June 9, 2005, the court pub-lished its opinion on reconsideration.

Is certification required? Jansen began her analysis by clarifying

that the issue was whether out-of-state af-fidavits of merit must comply with the re-quirements of MCL 565.262 or MCL600.2102.

According to MCL 600.2912d, the judge

noted, in order to initiate a medical-mal-practice action, a plaintiff must file — inaddition to her complaint — an affidavitsigned by a healthcare professional whohas sworn under oath before an author-ized notary public that the plaintiff has ameritorious claim.

Moreover, she explained that, inScarsella v. Pollak, the Supreme Courtheld that not only was a valid affidavit ofmerit needed to commence a medical-mal-practice action, but it was critical for thetolling of the limitations period.

As for the issue of whether an out-of-state notary’s authority must be certifiedbefore an out-of-state affidavit can be ac-cepted in a Michigan court, Jansen ex-plained this has been the law for as farback as the Supreme Court’s 1924 deci-sion in In re Alston’s Estate and as recentas 1963, when the Legislature passedMCL 600.2102(4), which required certifi-cation by “the clerk of any court of recordin the county where such affidavit shall betaken, under the seal of said court.”

Nevertheless, Jansen recognized that, in1970, the Legislature adopted the UniformRecognition of Acknowledgements Act,which provided that an out-of-state nota-rization would carry the same weight as anotarization performed within the State ofMichigan so long as the out-of-state notarypublic signed her name and title.

As such, the judge concluded that if thecase were decided on the basis of theURAA, alone, then the plaintiff ’s affidavitof merit would be valid.

However, because the plaintiff ’s affi-davit of merit did not comply with the re-quirements of § 2102, there was still thequestion of whether § 262 affected § 2102,she noted.

MCL 600.2102 controlsNext, Jansen took up the defendants’

argument that § 2102 was the controllingauthority because it specifically men-tioned affidavits while § 262 only men-tioned them in a general sense.

She rejected both the defendants’ con-tention that the URAA applied only tothe conveyance of real property and theplaintiff ’s argument that § 2102 appliedonly when an out-of-state affidavit was go-ing to be read into evidence.

In concluding the statutes’ placementamong laws directed at real property con-veyances or the admissibility of evidencedid not trump the statutes’ common pur-pose of verifying the authenticity of out-of-state affidavits, the judge deemed thestatutes to be pari materia, which meantthey “must be read together as one law,”“because statutes that have a commonpurpose should be read to harmonize witheach other in furtherance of that purpose.”

As such, Jansen determined the “twostatutes” could be harmonized.

Relying on MCL 565.268 of the URAA— which provides that “[n]othing in thisact diminishes or invalidates the recogni-tion accorded to notarial acts by otherlaws of this state” — she asserted that §262 left § 2102’s special certification re-quirement intact.

“The URAA, enacted after MCL600.2102, does not diminish or invalidatethe more specific and more formal re-quirements of MCL 600.2102,” the judgedeclared. “Furthermore, this harmoniousapplication of the URAA and MCL600.2102 avoids conflict.”

Prospective applicationFinally, Jansen had to decide what was

to become of the plaintiff ’s case.Whereas the caselaw suggested the plain-

tiff ’s belated affidavit could not cure the de-fect in the original, the judge decided to fo-cus on whether the court’s decision shouldbe applied retroactively or prospectively.

She found it significant that not onlyhad there “been confusion in the legalcommunity as to whether the more re-laxed standards of the URAA applied,”but predicted that that confusion wouldtranslate into large numbers of dismissalsif the court’s decision were appliedretroactively, given the heavy reliance ofmedical-malpractice plaintiffs on out-of-state affidavits.

“Fairness and public policy both supporta prospective application because a seri-ous injustice could result from a retroac-tive application, and prospective applica-tion of the ramifications for the failure toprovide the MCL 600.2102(d) certificationaccomplishes a ‘maximum of justice’ un-der the presented circumstances,” Jansen

COA compromises on controversial ‘Apsey’ reconsiderationContinued from page 1

Decision in a nutshell The Issue: Was a medical-malpracticeplaintiff who filed a timely complaint andaffidavit of merit, but failed to providecertification for her out-of-state affidavit ofmerit until after the limitations period hadexpired, nevertheless entitled to proceedwith her lawsuit?

The Ruling: Yes. Even though MCL600.2102 — not MCL 565.262 — governsthe recognition of out-of-state affidavits inmedical-malpractice cases and eventhough the plaintiff failed to comply withthe certification requirements under MCL600.2102, the Court of Appeals elected toapply its decision prospectively.

The Impact: Medical-malpractice plaintiffsfiling affidavits of merit on or after June 9,2005 — the issuance date of the opinionon reconsideration — must comply with thecertification requirements of MCL 600.2102or risk having their cases dismissed for nothaving filed within the limitations period.

The Case: Apsey v. Memorial Hospital (On Reconsideration), Lawyers WeeklyNo. 07-55864.

“The two-person majority completely failed toaddress the fact that the URAA was expresslymeant to be an additional basis for admittinginto a Michigan court an affidavit signed outside of the state.”

— Royal Oak attorney Mark R. Granzotto

“The revised opinion is illogical, wrong, and nothing more than an attempt to save face. While an improvement over the original in terms of its impact, it’s bad law.”

— Berkley attorney Phyllis A. Figiel

Continued on next page

announced.Moreover, the judge concluded that

prospective application of the decision wasalso justified on equity grounds.

“A sound affidavit of merit exists, theonly problem being the failure to certify asrequired by MCL 600.2102(4) prior to theexpiration of the statute of limitations,”Jansen stated. “The statutory purpose formedical-malpractice affidavits of merit[which] is to detour frivolous medical-mal-practice claims…was served in the pres-ent case as defendants were put on time-ly notice of the claims with an affidavit ofmerit that met every requirement, exceptthe out-of-state notarial act had not beenproperly certified.”

‘Additional method’In dissent, Cavanagh asserted the

plaintiff ’s affidavit of merit satisfied therequirements of MCL 600.2912d.

According to the judge, because the affi-davit was sworn to, under oath, by the af-fiant and was notarized by a duly author-ized — albeit out-of-state — notary public,it was sufficiently valid under the URAA.

While he agreed with the majority that§ 2102 and the URAA should be read to-gether, Cavanagh insisted that the way toharmonize them was to recognize that theLegislature intended neither statute tobe the sole method of verifying the au-thenticity of out-of-state affidavits.

“MCL 600.2102 has been in its presentform since 1879 and, until the URAA wasenacted in 1969, appears to have been theonly means of proving notarial acts,” heobserved. “The URAA, however, explicitly

states that it is ‘an additional method ofproving notarial acts.’ MCL 565.268.”

Moreover, the judge stressed the URAAbroadens, rather than constricts, therecognition of notarial acts.

Finally, as for the claim that such areading of the URAA would diminish thecertification requirements of § 2102, Ca-vanagh observed that while “the simplemethod of authentication permitted by theURAA likely makes obsolete the certifica-tion method provided by MCL 600.2102, itis still an alternative method of verifyingthe authenticity of notarial acts.”

Majority’s last wordIn footnote 2 of the majority opinion,

Jansen asserted the dissent’s way of har-monizing § 2102 and the URAA was torender parts of § 2102(d) “nugatory.”

She explained that “by interpreting theURAA as an additional method that canbe used instead of using the MCL600.2102, the certificate provision is nolonger required.”

Moreover, the judge criticized the dis-sent’s reliance on the “additional method”language § 268 of the URAA, to the exclu-sion of the “diminishes or invalidates” lan-guage of the same section.

“To accept our dissenting colleague’sharmonizing of the statutes would clearlydiminish the requirements of MCL600.2102,” Jansen concluded. “When read-ing the statutes together the only way toavoid conflict is to read MCL 600.2102 asrequiring additional requirements for af-fidavits to be read by the court.”

BY TODD C. BERG, [email protected]

BY ROBERT S. IWREY

In the Jan. 13, 2005, majority decisionof Feyz v. Mercy Memorial Hospital, et al.,264 Mich. App. 699 (2005), the MichiganCourt of Appeals significantly changedmore than 20 years of prior case law byempowering physicians with the ability tochallenge private hospital staffing deci-sions in ways which were previouslybarred.

In a 1982 decision, Hoffman v. GardenCity Hospital-Osteopathic, the Court ofAppeals concluded that staff privilege “de-cisions of the governing bodies of private

hospitals are not subject to judicial re-view” and that private hospitals have “thepower to appoint and remove members atwill without judicial intervention.”

Following this ruling, numerous caseshave upheld private hospitals’ rights to:• refuse to appoint physicians to its med-

ical staff;• decline to renew a physician’s appoint-

ment to its medical staff; and• terminate a physician’s appointment to

its medical staff in the hospital’s solediscretion.Moreover, Hoffman held that the affect-

ed physician had no judicial recourse.The effect of these decisions over the

years was to provide private hospitals

with a strong sense of security that theirstaffing decisions were immune from ju-dicial intervention.

However, recent cases have recognizedthat the Hoffman judicial nonreviewabil-ity doctrine is not without exception.

In the 1989 decision of Sarin v. Samar-itan Health Center, the Court of Appealsobserved that “there may be some situa-tions where a court should be able to con-sider a hospital’s action without violatingthe principle of nonreviewability.”

Moreover, in the 1996 decision of Longv. Chelsea Community Hospital, the Courtof Appeals further stated that “privatehospitals do not have carte blanche to vi-olate the public policy of our state as con-tained in its laws. Had plaintiff in thiscase asserted that defendants violatedstate or federal law, we may have chosento review his claim.”

Judicial nonreviewabilityimproperly expanded

This recognition of the limited applica-tion of the judicial nonreviewability doc-trine was further expounded upon by theCourt of Appeals in Feyz, which analyzedthe basis for the Hoffman decision and itsprogeny, concluding that the judicial non-reviewability doctrine has been improper-ly expanded over the years beyond whatwas originally intended.

According to Feyz, “a private hospital issubject only to the legal obligations of aprivate entity, not to the greater scrutinyof a public institution.”

As such, “like any other legal entity,hospitals are capable of breaching con-tracts, committing torts, or violating oth-ers’ constitutional or statutory rights.When they do, they are no less subject tothe courts’ jurisdiction than anyone else.”

Thus, Feyz has empowered physicianswho have been the victims of adverse ac-tions against their medical staff privilegesto seek and pursue against the hospitalcertain causes of action such as:• breach of contract;• tortious interference with business re-

lations;• tortious interference with contracts;• invasion of privacy; and • civil rights violations in challenging

such adverse actions.It should also be noted that, while Feyz

stopped short of finding that a hospital’sbreach of the medical staff bylaws wasactionable under a breach of contractclaim under Michigan law, it did not ad-dress the matter simply because that is-

sue was not technically before it.Furthermore, Feyz expressly held that a

breach of medical staff bylaws does not vi-olate the judicial nonreviewability doc-trine and instructs trial courts, upon re-mand, if presented with such claim, todetermine whether a breach of contractclaim may be based upon a breach of themedical staff bylaws.

In addition to limiting the application ofthe Hoffman judicial nonreviewabilitydoctrine to causes of action such as breachof public and/or fiduciary duties, Feyz alsoheld that the statutory immunity of a peerreview committee of a health facility onlyextends to a duly appointed peer reviewcommittee — e.g., an ad hoc committeeconvened for the purpose of investigatingthe hospital’s allegations against the sub-ject physician — and does not extend to ahospital’s executive committee that wasnot designated as a review entity in ac-cordance with the peer review immunitystatute.

Such decision will likely result in pri-vate hospitals amending their corporateand medical staff bylaws to clearly indi-cate that their medical executive commit-tees function, at least in part, as peer re-view entities.

Cases pendingWhether the majority opinion in Feyz

will be followed by other courts remains tobe seen.

In February 2005, an application forleave to the Michigan Supreme Court wasfiled by the attorneys for the hospital ap-pealing the Feyz decision.

In the meanwhile, until there is a deci-sion by the Michigan Supreme Court, oneargument that is likely to be proffered byhospital attorneys defending a staff priv-ileging matter is that the majority in Feyzregarding judicial nonreviewabilityshould not be afforded precedential effectbased upon an argument that the Feyzpanel did not adhere to court rules whenissuing its opinion.

This court rule essentially provides

that an appel-late court pan-el must followthe rule of law established by a priorpublished appellate court decision is-sued on or after Nov. 1, 1990, unless re-versed or modified by the MichiganSupreme Court or a special panel of theappellate court.

In the Hoffman progeny of publishedcases, only the Long case was decided af-ter Nov. 1, 1990, and it was never reversedor modified.

Therefore, hospital attorneys will likelyargue that the Long decision expresslyheld that the judicial nonreviewabilitydoctrine applied to “disputes that are con-tractual in nature.” Thus, since the Feyzcourt was bound to follow Long and pre-vent any judicial review of breach of con-tract and promissory estoppel claims andfailed to do so, its decision should not bebinding.

On the other hand, attorneys repre-senting adversely affected physicians willlikely argue that the Long decision wassilent with regard to tort liability of pri-vate hospitals. Therefore, since the Feyzcourt is the first decision after Nov. 1,1990, to address the issue, it should bebinding.

Currently, however, physicians are nowempowered to challenge adverse medicalstaff decisions by private hospitalsthrough the courts via means previouslyunavailable.

Robert S. Iwrey is apartner with Wachler& Associates, P.C.,where he focuses hispractice on litigation,licensure and staffprivileges, Medicare,Medicaid and BlueCross/Blue Shieldaudits and appeals,

civil and criminal defense of health carefraud matters, and contractual matters.


Continued from page 8

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The decision in Feyz hasempowered physicians who have been the victims of adverse actions against their medical staff privileges to seek and pursue against the hospital certain causes of action such as breach of contract, tortiousinterference with businessrelations, tortious interference with contracts, invasion of privacy, and civil rightsviolations in challenging such adverse actions.

COA compromises on controversial‘Apsey’ reconsideration

Physicians can challenge private hospital staffing decisions EmploymentLaw


Nevertheless, Murphy took the oppor-tunity to send a message to the high court.

“[W]e respectfully voice our belief thatScarsella is inconsistent with the clearand unambiguous language of MCL600.5856(a), to encourage the SupremeCourt to reexamine its holding or consid-er how its holding is being applied, andthat Geralds, if not contrary to Scarsella,goes far beyond the realm contemplatedin Scarsella,” he stated.

With regard to §5856(a) — which pro-vides that statutes of limitations aretolled upon the filing of the complaint andserving of the summons — Murphy urged

there is “no language providing that alimitation period is tolled only when acomplaint and an affidavit of merit arefiled.”

Finally, of Geralds, the judge declaredthat “[a]ny wall between nonconformingaffidavits and grossly nonconforming affi-davits that may have existed before Ger-alds was thus effectively razed.”

The 7-page decision is Kirkaldy v. Rim,et al., Lawyers Weekly No. 07-55841.

MCL 600.5856(a) provides tollingRoyal Oak attorney Mark R. Granzotto,

who represents the plaintiff and her hus-band, said Scarsella’s to blame for this de-cision.

He explained it was “because of the er-roneous decision in the Scarsella case”that now every little quirk or imperfection— as it applies to an affidavit of merit —has taken on potentially fatal statute oflimitations implications.

“It has created a tremendous injusticein the sense that a defendant with a badaffidavit of merit just sits on the fence anddoesn’t do anything about it. He lets thestatute of limitations run, only to raise theissue at a later point in time where theplaintiff — if it’s a purely statute of limi-tations issue — can do nothing about it,”the plaintiff ’s attorney observed.

According to Granzotto, MCL600.5856(a) made very clear what theScarsella court should have done on theissue of tolling.

“MCL 600.5856(a) was designed to pro-vide tolling in these situations,” he as-serted. “The key word in § 5856 is the

word ‘complaint.’ You get tolling when acomplaint is filed and service is effectuat-ed. It does not say a complaint with an af-fidavit of merit. It does not say a com-plaint with a defective or inadequateaffidavit of merit.”

That Scarsella was actually decided inthe first place seemed difficult to compre-hend, Granzotto explained.

“What’s truly remarkable about theScarsella case is that a court majority,which has so vehemently represented it-self to be purely textualist in its interpre-tation and application of statutes, can beso active in rewriting a Michigan statuteto prohibit the tolling which the Legisla-

ture unquestionably provided,” he stated,noting that none of Scarsella’s “grosslynonconforming” or “inadequate or defec-tive affidavits” language can be foundanywhere in § 5856.

Finally, Granzotto — who will be seek-ing leave to appeal to the MichiganSupreme Court — faulted the Court of Ap-peals for the extremes to which it hasstretched the Scarsella holding.

“They have basically said that if there’sanything wrong with your affidavit, if it’sdefective in any way, then that affidavit isgoing to be labeled as grossly noncon-forming,” he emphasized. “They have pilederror upon error in what they’re doing inthis area. It has hurt a ton of people.”

Counsel for the defendants could notbe reached for comment.

Wrong specialtyPlaintiff Mary Kirkaldy went to the doc-

tor because she was experiencing weak-ness in her right side, lack of motor coor-dination, clumsiness, and beingoff-balance.

Defendant Dr. Choon Soo Rim — aboard-certified neurologist — examinedthe plaintiff on June 17, 1996 and diag-nosed her with myasthenia gravis. Simi-larly, when Dr. Raina M. Ernstoff — also aboard-certified neurologist — examinedthe plaintiff in October 1996, she arrivedat the same diagnosis.

Although Dr. Ernstoff treated the plain-tiff through February 1997, it was theplaintiff ’s gynecologist who ordered amagnetic resonance imaging (MRI) of theplaintiff ’s brain in May 1997.

After the MRI revealed a brain tumorand excessive accumulation of fluid in thebrain, the plaintiff and her husband, inDecember 1998, sued both defendants formedical-malpractice, alleging they hadbeen negligent in failing to diagnose andtreat the plaintiff ’s brain tumor.

In support of her lawsuit, the plaintifffiled an affidavit of merit signed by aboard-certified neurosurgeon.

Defendant Ernstoff responded by suc-cessfully moving for summary dispositionon the grounds that the affidavit of merit— which was signed by a board-certifiedneurosurgeon — was defective becauseMCL 600.2169 required that it be signedby an expert with the same qualificationsas the defendants, i.e., a board-certifiedneurologist.

As such, the trial court dismissed thecase with prejudice, concluding that be-cause the affidavit of merit had failed tocomply with MCL 600.2912d, it was the“‘same thing as having no affidavit,’” and,thus, the statute of limitations had notbeen tolled by its filing.

On reconsideration, the trial court stoodby its previous dismissal order but modi-fied it to provide that the dismissal bewithout prejudice.

The Michigan Court of Appeals agreedin a 2002 published opinion, finding “thetrial court correctly determined that theproper sanction for plaintiffs’ noncon-forming affidavit of merit was dismissalwithout prejudice.”

In response to the defendant’s applica-tion for leave to appeal, the MichiganSupreme Court remanded the case to theCourt of Appeals in November 2004 withdirections to consider whether, in light ofGeralds v. Munson Healthcare, “the statuteof limitations was not tolled by the filing ofthe plaintiff ’s defective affidavit of meritand that, as a result, [the defendants] areentitled to dismissal with prejudice.”

Considering ‘Scarsella’Murphy began his analysis by noting

that MCL 600.2912d requires that affi-davits of merit be signed by experts whom“the plaintiff ’s attorney reasonably be-lieves meets the requirements for an ex-pert witness under [MCL 600.2169],”namely, that the plaintiff ’s expert isboard-certified in the same specialty asthe defendant.

Even though Scarsella establishes thatthe appropriate remedy for failure to com-ply with § 2912d is dismissal withoutprejudice, the judge explained, the plain-tiff must still contend with the statute oflimitations which — as provided in MCL600.5856(a) — are tolled only after a com-plaint has been filed and a copy, alongwith a summons, has been served on thedefendant.

Murphy then focused specifically on theSupreme Court’s holding in Scarsella,where the plaintiff had failed to file anyaffidavit of merit before the expiration ofthe limitations period.

“Our Supreme Court adopted, in its en-tirety, the [initial] opinion of this court inthe case, which included the finding‘“‘that, for statute of limitations purposesin a medical malpractice case, the meretendering of a complaint without the re-quired affidavit of merit is insufficient tocommence a lawsuit,’”’” the judge pro-nounced. “Relying on the mandatory lan-guage of MCL 600.2912d and taking intoconsideration MCL 600.5856, theSupreme Court, again quoting this court’sopinion, held that, because the filing of thecomplaint without the required affidavitwas insufficient to initiate the plaintiff ’smalpractice action, there was no tolling ofthe limitation period.”

However, Murphy pointed out that theSupreme Court did qualify its holding inScarsella — to some extent — by statingthat it “‘does not extend to a situation inwhich a court subsequently determinesthat a timely filed affidavit is inadequateor defective,’” adding that “‘[w]hether atimely filed affidavit that is grossly non-conforming to the statute tolls the statuteis a question we save for later decisionaldevelopment.’”

The judge suggested that one interpre-tation of the high court’s observationsmight be that if an affidavit of merit ismerely nonconforming, as opposed togrossly nonconforming, then it may bedeemed sufficient to toll the statute oflimitations.

On the other hand, he noted, all thecourt may have been saying was that, forthe time being, it was choosing to refrainfrom taking any position at all on thetolling effects of defective affidavits.

Taking issueNext, Murphy turned his attention to the

impact of the Scarsella decision, noting thatnot only has it resulted in the anticipateddismissal of “failure to file” cases, but it hasalso been used — unexpectedly — to justifythe dismissal of timely filed, yet statutorily-noncompliant, affidavits of merit, as wasthe case in Geralds v. Munson Healthcare.

“We believe that the Supreme Courtshould reexamine the holding in Scarsellawhen given the opportunity, if not for thereason to question whether the decisionwas consistent with well-established prin-ciples of statutory construction, then to de-termine whether it was proper for [theCourt of Appeals] to extend the holding tocases where an affidavit of merit, ulti-mately found to be nonconforming, was ac-tually filed with the complaint,” he urged.

While noting that the Supreme Court hasrepeatedly held that courts “may read noth-ing into an unambiguous statute,” the judgeobserved that MCL 600.5856 — the tollingstatute — says nothing about a limitationperiod being tolled “only when a complaintand an affidavit of merit are filed.”

Murphy pointed out that — whileScarsella rejected this interpretation be-cause the court believed it would have anullifying effect on § 2912d — there was adifference between dismissal for failure tocomply with the statute and dismissal forfailure to toll the statute of limitations.

He asserted this was demonstrated bythe Legislature’s having left §5856(a) in-tact, despite amendments to §2912d in1993, but having added §5856(d), whichspecifically incorporated the notice of in-tent requirement in §2912b.

“The application of statutory construc-tion principles would appear to call for aholding contrary to that issued in Scarsel-la,” the judge asserted.

Beyond ‘Scarsella’Next, Murphy addressed two Court of

Appeals decisions — Mouradian v. Gold-berg and Geralds v. Munson Healthcare —which addressed whether a grossly non-conforming affidavit of merit could stilltoll the statute of limitations — an issueexpressly left open by Scarsella.

He noted that in Mouradian, the courtruled that an affidavit of merit whichfailed to set out the allegations againstthe defendants as required by § 2912dwas grossly nonconforming and did nottoll the limitations period.

According to Murphy, the Mouradiancourt reasoned that, because the affidavitdid not comply with the statute, it did not“fulfill the goal of MCL 600.2912d to pre-vent frivolous medical-malpractice actions.”

Moreover, he explained that, in Geralds,the court held the plaintiff ’s affidavit ofmerit — which had been signed by an ex-pert in a different specialty than the de-fendant — carried no more legal signifi-cance than if the plaintiff had filednothing at all.

Additionally, Murphy insisted that Ger-alds had obliterated the distinctionScarsella had drawn between noncon-forming affidavits and grossly noncon-forming affidavits, as well as their respec-tive effects.

“Under the analysis in Scarsella, it iscertainly arguable that the filing of even agrossly nonconforming affidavit of merittolls the statute of limitations because thefocus of the ruling was on the mandatorynature of § 2912d that calls for an affi-davit to be filed with the complaint,” thejudge emphasized. “An affidavit of meritfiled with a complaint, albeit a grosslynonconforming affidavit, nonetheless re-mains an affidavit filed with the com-plaint. This proposition is of course just astrue relative to defective affidavits thatare not deemed grossly nonconforming; acomplaint and affidavit were filed.”

As such, Murphy concluded that notonly were Mouradian and Geralds un-supported by Scarsella, but that no statu-tory authority existed to prevent a timely-filed, but defective, affidavit of merit fromtolling the statute of limitations.

Further than intendedFinally, the judge explained that by tak-

ing Scarsella further than it was intendedto reach, Mouradian and Geralds havecreated the unworkable situation wherebyif a plaintiff ’s timely filed affidavit of mer-it is successfully challenged on nonconfor-mity grounds, then she may be preventedfrom refilling because the limitations pe-riod may have expired by the time shelearns of her affidavit’s defective status.

“The more sound approach would bethat, where there is a dispute regardingwhether the timely-filed affidavit is incompliance with the statute, the limita-tion period is tolled until such time that acourt renders a ruling that the affidavit isdefective or nonconforming, which wouldresult in a dismissal without prejudice,”Murphy suggested. “This approach wouldbe, although not directly spelled out by §5856(a), consistent with § 5856(a)…”

— TODD C. BERG, [email protected]

Plaintiff ’s med-mal lawsuit dismissed with prejudiceContinued from page 3

“What’s truly remarkable about the Scarsella case is that acourt majority, which has so vehemently represented itself to be purely textualist in its interpretation and application ofstatutes, can be so active in rewriting a Michigan statute[MCL 600.5856(a)] to prohibit the tolling which theLegislature unquestionably provided.”

— Royal Oak attorney Mark R. Granzotto

Decision in a nutshell The Issue: Must a medical-malpractice plain-tiff’s lawsuit be dismissed with prejudice be-cause the expert who signed her timely-filed affidavit of merit was not board-certifiedin the same specialty as the defendants?

The Ruling: Yes.The Court of Appeals deter-mined that under Scarsella v. Pollak, Ger-alds v. Munson Healthcare, and Mouradianv. Goldberg, dismissal with prejudice is theproper sanction.

The Impact: The immediate impact will bedismissal with prejudice of lawsuits involvingaffidavits of merit signed by experts who arenot board-certified in the same specialty asthe defendant. Practitioners will have to waitand see what will become of the court’s re-quest that the Supreme Court re-examineScarsella and/or whether Scarsella is beingcorrectly applied.

The Case: Kirkaldy v. Rim, et al., LawyersWeekly No. 07-55841.

Visit our website — www.mimedicallaw.com

the next three months.Although she had never sought medical

treatment for any of her conditions, sheand her family thought it was time inFebruary 2000.

They admitted her to two different hos-pitals where, over the next three weeks,she was diagnosed with symptoms of pro-gressing multiple sclerosis and en-cephalopathy. Her loss of bladder andbowel control was also attributed to hercondition. Doctors believed she was suf-fering from an undetermined neurologicaldisease.

After being prescribed anti-spasmodicmedication, Tylenol, Vicodin, and Prozac,Turner was discharged on March 16,2000, to return home with her husband,plaintiff Bernard Turner.

Nevertheless, the plaintiff rushed hiswife back to the hospital the followingmorning, explaining he was unable to carefor her at home.

That same day, Turner was transferredto defendant Rivergate Health Care Cen-ter where defendants Dr. David Millerand Dr. Paul Jackson provided medicalservices through their group practice.

In light of Turner’s recent history ofweight loss, the defendants ordered a di-etary consultation, had her examined by anutritionist, changed her diet to “mechan-ical soft,” and offered her milkshake-likenutritional supplements.

To treat Turner’s pain, the defendantscontinued to give her Tylenol while addingMotrin. Vicodin had been discontinued af-ter Turner told hospital staff that it wasnot alleviating her pain. Additionally, de-fendant Miller prescribed medication toaddress Turner’s leg-muscle spasms.

In spite of the medications, Turner con-tinued to experience pain, so much so thatshe refused to participate in physical ther-apy sessions.

As for Turner’s depression, the defen-dants arranged for her to be seen by a con-sulting psychiatrist, who discontinued herProzac because it was ineffectual andswitched to her both Zoloft and Xanax.

However, by March 31, 2000, Turner’scondition had deteriorated drastically tothe point that she was refusing all intakeof food or water. Consequently, she wastransferred back to the hospital whereher family instructed that she be desig-nated a “no code.”

Moreover, she had been declared a hos-pice patient and was refusing to eat ordrink, which meant she was receiving nofeeding tube and the intravenous lines sup-plying her with fluid had been removed.

On April 3, 2000, Turner died of renalfailure.

The plaintiff — on behalf of Turner’s es-tate — sued defendants Rivergate HealthCare Center and Drs. David Miller andPaul Jackson for wrongful death arisingout of medical malpractice, alleging theyhad failed to properly treat Turner’s painand provide her with necessary nutritionand hydration.

On Aug. 2, 2004, a Wayne County juryreturned a “no cause of action” verdict.

Refusal of treatmentGarrett agreed that a lack of food and

water contributed to Turner’s renal fail-ure, but contended the reasons for her re-fusal of nutrition and hydration had lessto do with her inability to escape the phys-ical pain she was suffering and more to dowith her own choice as to how she wishedto live the rest of her life.

“In addition to her deep-seated psychi-atric problems, she was also confrontedwith a rapidly deteriorating physical con-dition,” she noted. “There was no treat-ment that anybody could have offered herthat would have allowed her to walk againor help her to regain the bowel and blad-der control she had lost.”

According to Garrett, Turner’s actionsand statements showed that her refusal oftreatment was made not in haste, but onlyafter careful thought and deliberation.

“There was a discussion between thepatient and a social worker that if shedidn’t continue to maintain sufficient oralintake, then a feeding tube would be im-planted,” she observed. “The patient stat-ed clearly — and this was recorded in thesocial worker’s notes — that she did notwant a feeding tube.”

As for the insinuation by the plaintiffthat Turner — because of the pain shewas suffering — may not have been wellenough to choose to refuse treatment,

Garrett urged that the plaintiff ’s wordsshould be compared with his actions.

“If the family had felt that she was notin her right mind, the plaintiff certainlycould have had her declared incompetentand had himself appointed as herguardian,” she noted. “That way, he couldhave directed doctors to implant a feedingtube and take all heroic measures.”

Challenging plaintiff’s expertGarrett stressed it was critically impor-

tant that she had been able to successful-ly challenge the plaintiff ’s expert’s opinionpoint for point.

She explained that nearly every timethe plaintiff ’s expert said the defendantsfailed to do what they were supposed todo, she was able to show that the expertwas wrong.

For example, where the plaintiff ’s ex-pert faulted the defendants for not order-ing a dietary supplement, the records es-tablished that they had, Garrett stated.

Also, when the plaintiff ’s expert insist-ed that Turner’s kidney problems couldnot have been caused by a urinary tractinfection because she didn’t have one, hewas obligated to correct himself when con-fronted with the records confirming Turn-er’s condition, Garrett added.

As for his dismissal of Turner’s state-ment to the social worker that she did notwant a feeding tube, the plaintiff ’s expertreasoned that it was only a conversationwith the social worker, not the doctors,Garrett noted.

“[The social worker] probably didn’t ex-plain it very well,” Garrett quoted theplaintiff ’s expert as testifying.

The final straw, Garrett said, camewhen the plaintiff ’s expert tried tobackpedal on his claim the defendantsneglected to order a psychiatric consultby claiming that the handwriting on thepurported psychiatric consult was sobad that he could neither identify nordecipher it.

“Then I pulled it out,” Garrett re-counted. “It was fully type-written and,in bold letters at the top, it said ‘psychi-atric consult.’”

Nursing home doctors get ‘no cause’ in refusal-of-care caseContinued from page 3

“She is entitled to make choices. She was still in her right mind. She was an adult who had the right to direct her own medical care and if she didn’t want to eat or drink, then there was no way the doctors could have forced her to do so.”

— Detroit attorney Jane P. Garrett


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Legislative Committee Members Contact information for state senators canbe found at http://senate.michigan.gov.

Contact information for state houserepresentatives can be found athttp://house.michigan.gov.

COMMITTEE ON HEALTH POLICY Senate

• Beverly Hammerstrom (R) Chair, 17th District

• Bruce Patterson (R) Vice-Chair, 7th District

• Thomas George (R ), 20th District• Virg Bernero (D)

Minority Vice-Chair, 23rd District • Gilda Jacobs (D)

14th District

House• Edward Gaffney (R)

Committee Chair, 1st District• Gary Newell (R)

Majority Vice-Chair, 87th District• David Robertson (R)

51st District• Barb Vander Veen (R)

89th District• Joe Hune (R)

47th District• Chris Ward (R)

66th District• Mike Nofs (R)

62nd District• Richard Ball (R)

85th District• Kevin Green (R)

77th District• Roger Kahn (R)

94th District• Leslie Mortimer (R)

65th District• Stephen Adamini (D)

Minority Vice-Chair, 109th District• Lisa Wojno (D)

28th District• Gary McDowell (D)

107th District• Michael Murphy (D)

68th District• John Gleason (D)

48th District• Kathy Angerer (D)

55th District

COMMITTEE ON SENIOR HEALTH,SECURITY, AND RETIREMENT

• Barb Vander Veen (R) Committee Chair,89th District

• Kevin Green (R) Majority Vice-Chair, 77th District

• William VanRegenmorter (R) 74th District

• John Stahl (R) 82nd District

• John M. Proos (R) 79th District

• Paula Zelenko (D) Minority Vice-Chair,50th District

• Gino Polidori (D) 15th District

• Brenda Clack (D) 34th District

• Aldo Vagnozzi (D) 37th District

COMMITTEE ON INSURANCEHouse

• Joe Hune (R) Committee Chair, 47th District

• David Robertson (R) Majority Vice-Chair, 51st District

• Judy Emmons (R) 70th District

• Edward Gaffney (R) 1st District

• Fulton Sheen (R) 88th District

• Richard Ball (R) 85th District

• Dave Hildenbrand (R) 86th District

• David Law (R) 39th District

• Jim Marleau (R) 46th District

Michigan MedicalLegislation Report Following is a list of bills pending in the MichiganLegislature related to health care and health careprofessionals. Detailed information and analysis onthis and other pending legislation can be found at www.michiganlegislature.org.

SENATE BILLS• SB 352 — Eliminate prohibition against mail or-der pharmaceuticals and centralized prescriptionprocessing.“A pharmacy may perform centralized prescriptionprocessing services or outsource those services toanother pharmacy if each of the following condi-tions are satisfied:“(a) The pharmacies have the same owner or have

A written contract outlining the services to beprovided and the responsibilities and account-abilities of each pharmacy in fulfilling the termsof the contract in compliance with federal andstate laws and regulations.

“(b) The pharmacies share a common electronicfile or have appropriate technology to allow ac-cess to sufficient information necessary or re-quired to prepare a prescription drug order.

“(2) A pharmacy that performs, or contracts for, cen-tralized prescription processing services shall main-tain a policy and procedures manual, along withdocumentation that implementation is occurring,and each shall be made available to the board for in-spection and review upon request and the manual…“(3) In addition …, each prescription drug dis-pensed to a patient utilizing a centralized pre-scription processing system shall bear a label con-taining an identifiable code that provides acomplete audit trail of the preparation and dis-pensing of the drug and patient care activities.“(4) ‘Centralized prescription processing’ meansthe processing by a pharmacy of a request from an-other pharmacy to prepare a prescription drug orderor to perform processing functions such as dis-pensing, performing drug utilization review, com-pleting claims adjudication, obtaining refill authori-zations, and initiating therapeutic interventions.”Sponsored by: Bill Hardiman (primary)Status: Referred to Committee on Health Policy

• SB 388 — Require disclosure of results of cer-tain clinical trials to public and registration withfederal data bank.“A person shall not conduct a clinical trial unlessthat research is conducted in compliance with thispart and in accordance with federal rules and reg-ulations on the protection of human subjects.“An institutional review board shall not approve aclinical trial funded in whole or in part with statefunds unless the person agrees to make the resultsof the research available to the public and to reg-ister the clinical trial with the clinical trials databank maintained by the United States departmentof health and human services …”Sponsored by: Dennis Olshove (primary)Status: Referred to Committee on Health Policy

• SB 431 — Expand prescription coverage to in-clude certain contraceptives.“An expense-incurred hospital, medical, or surgicalpolicy or certificate delivered, issued for delivery, orrenewed in this state that provides prescription cov-erage and a health maintenance organization groupor individual contract that provides prescription cov-erage shall include coverage for any prescribed drugor device approved by the United States food anddrug administration for use as a contraceptive.“Coverage … shall not be subject to any dollarlimit, copayment, deductible, or coinsurance pro-vision that does not apply to prescription coveragegenerally.”Sponsored by: Martha Scott Status: Referred to Committee on Health Policy

• SB 432 — Expand prescription coverage to in-clude certain contraceptives.“A health care corporation group or nongroup cer-tificate that provides prescription coverage shallinclude coverage for any prescribed drug or deviceapproved by the United States food and drug ad-ministration for use as a contraceptive.“Coverage … shall not be subject to any dollarlimit, copayment, deductible, or coinsurance pro-vision that does not apply to prescription coveragegenerally.”Sponsored by: Beverly S. Hammerstrom Status: Referred to Committee on Health Policy

• SB 446 — Implement quality assurance assess-ment tax on Medicaid managed care organizations.

“The department of community health shall as-sess a quality assurance assessment fee as follows:...“(b) On each Medicaid managed care organization

that is a specialty prepaid health plan undersection 109f of the social welfare act, and thathas a Medicaid managed care contract award-ed by the state and administered by the depart-ment of community health, a quality assuranceassessment fee that equals 6% of non-Medicare capitation payments collected by thatMedicaid managed care organization.

…”Sponsored by: Gilda Jacobs (primary)Status: Placed on order of third reading

• SB 447 — Designate specialty prepaid healthplans as Medicaid managed care organizations.“Specialty prepaid health plans shall be consideredMedicaid managed care organizations … and shallbe responsible for providing defined inpatient serv-ices, outpatient hospital services, physician serv-ices, other specified Medicaid state plan services,and additional services approved by the centers forMedicare and Medicaid services …. As Medicaidmanaged care organizations, specialty prepaidhealth plans are subject to the quality assistanceassessment fee….”Sponsored by: Gilda Jacobs (primary)Status: Placed on order of third reading

• SB 465 — Implement provision for the protection,retention, and maintenance of medical records.“An individual registered or licensed under this ar-ticle shall keep and maintain a record for each pa-tient for whom he or she has provided profession-al services, including a full and complete record oftests and examinations performed, observationsmade, and treatments provided. The records shallbe kept and maintained for a minimum of 10 yearsfrom the last date of service provided to the patientor longer if otherwise required under any other fed-eral or state law or regulation. The records shall bemaintained in such a manner as to protect their in-tegrity, to ensure their confidentiality and properuse, and to ensure their accessibility and avail-ability to each patient or his or her authorized rep-resentative as required by law.“…“If a licensee or registrant sells or closes his or herpractice, retires from practice, or otherwise ceasesto practice under this article, the licensee or regis-trant or the personal representative of the licenseeor registrant, if the licensee or registrant is de-ceased, shall not abandon the records required un-der this section and shall do both of the following:“(a) Send a written notice to the last known ad-

dress of each patient for whom he or she hasprovided professional services. The notice shallprovide the patient with the opportunity to des-ignate where he or she would like his or herrecords transferred and shall specify who willretain custody of his or her records and how heor she may request access to the same if he orshe does not designate otherwise.

“(b) Transfer the records … to any of the following:“(i) A successor licensee or registrant.“(ii) If requested by the patient or his or her au-thorized representative, a specific health facil-ity or agency or other health care provider ….

“(iii) A health care provider, a health facility oragency, or a medical records company withwhich the licensee or registrant had contract-ed to protect, maintain, and provide access tothose records….

“…“A person who fails to comply … is subject to anadministrative fine of $10,000.00.”Sponsored by: Gilda JacobsStatus: Referred to Committee on Health Policy

• SB 466 — Establish a requirement to protect,maintain, retain, and dispose of patient medicalrecords and other individually identifying information.“A provider shall protect, maintain, retain, and dis-pose of patient medical records and other individ-ually identifying information in accordance with …any other applicable state or federal law, and themost recent provider agreement.“At a minimum, if a provider is authorized to disposeof patient records or other patient identifying infor-mation …, the provider shall ensure that medicalrecords that identify a patient and other individuallyidentifying information are sufficiently deleted, shred-ded, incinerated, or disposed of in a fashion that willprotect the confidentiality of the patient’s health careinformation and personal information. …”Sponsored by: Bruce Patterson (primary)Status: Referred to Committee on Health Policy

• SB 467 — Require written authorization for dis-

closure of genetic information.“A person shall not disclose that a test has been or-dered or conducted or the results of that test withoutfirst obtaining written authorization from the test sub-ject or his or her legally authorized representative ….“Written authorization shall be on a form that isseparate from any other written, informed consentform required … shall identify to whom the infor-mation is to be disclosed, and shall include the fol-lowing notice:

NOTICE OF RIGHTS WITH REGARD TO GENETICTESTING AND INFORMATIONMichigan law restricts requests by health insur-ers, nonprofit health care corporations, healthmaintenance organizations, and employers forindividuals to submit to genetic testing, to disclosegenetic information, or to disclose whether ge-netic testing has been conducted or the results ofthat genetic testing. Individuals who have ques-tions about their rights may seek legal advice.

“A general consent or authorization given for therelease of medical records or other informationdoes not constitute written authorization for dis-closure …. A separate written authorization shallbe obtained for each person to whom the informa-tion is to be disclosed. If the test subject or his orher legally authorized representative provides writ-ten authorization under this section, the personshall do each of the following:“(a) Provide the test subject with a copy of thesigned written authorization.“(b) Maintain the original signed written authoriza-tion in the test subject’s medical record.“(c) Provide the test subject and the person towhom the information is being disclosed with thefollowing notice:

RESTRICTIONS ON FURTHER DISCLOSURE OFGENETIC TESTING AND INFORMATIONThis information is privileged and confidential.This information is being provided to you in ac-cordance with Michigan law and shall not be fur-ther disclosed without a separate written author-ization from the test subject or his or her legallyauthorized representative. A general consent orauthorization for the release of medical records orother information is not sufficient to authorize thedisclosure of genetic testing and information.

“If a test subject consents to the performance of agenetic test for the sole purpose of assisting in therecovery or identification of human remains from adisaster or assisting in the identification of living ordeceased missing persons by matching forensicDNA profiles in the event of an emergency or dis-aster, those results as well as the DNA profiles shallonly be disclosed and used for those identificationpurposes, are not public records, are not subject tocourt subpoena, and are not discoverable in a legalproceeding. Consent provided for testing and DNAprofiling under this subsection is not consent forsecondary research utilizing those results or DNAprofiles or any other use except for the identificationof living or deceased missing persons.”Sponsored by: Tom George (primary)Status: Referred to Committee on Health Policy

HOUSE BILLS • HB 4446 — Require provision allowing patientsthe opportunity to view the active ultrasound imageof, and to have a picture of the ultrasound imageof, the fetus to performing an abortion.“Before obtaining the patient’s signature on the ac-knowledgment and consent form as required underthis subsection, a physician or a qualified personassisting the physician shall perform an ultrasoundon the patient, provide the patient with an opportu-nity to view the active ultrasound image of the fe-tus, and offer to provide the patient with a physicalpicture of the ultrasound image of the fetus.”Sponsored by: David Robertson (primary)Status: Referred to Committee on Health Policy; re-ferred to Senate

• HB 4455 — Create minority health disparitiesresearch and education act.“Develop and implement a state structure moreconducive to addressing the health disparities ofthe minority population in this state.“Monitor minority health progress.“Establish minority health policy.“Fund minority health programs, research, andother initiatives.“Establish a state health data center for minorityhealth research and resource information ad-dressing all of the following:

(i) Research within minority populations.(ii) A resource database that can be distributed tolocal organizations interested in minority health.

(iii) Racial and ethnic specific databases in-cluding, but not limited to, morbidity, diagnos-tic groups, social and economic groups, edu-

Pending Legislation


• Leslie Mortimer (R) 65th District

• Morris Hood III (D) Minority Vice-Chair, 11th District

• Stephen Adamini (D) 109th District

• Gabe Leland (D) 10th District

• Glenn Anderson (D) 18th District

• Lisa Wojno (D) 28th District

• Paul Condino (D) 35th District

• Barbara Farrah (D) 13th District

COMMITTEE ON JUDICIARYSenate

• Alan L. Cropsey (R) Chair, 33rd District

• Michael Bishop (R) Vice-Chair, 12th District

• Alan Sanborn (R) 11th District

• Bruce Patterson (R) 7th District

• Mark Schauer (D) Minority Vice-Chair, 19th District

• Virg Bernero (D) 23rd District

• Liz Brater (D) 18th District

House• William VanRegenmorter (R)

Committee Chair, 74th District• Tonya Schuitmaker (R)

Majority Vice-Chair, 80th District• Gary Newell (R)

87th District• Mike Nofs (R)

62nd District• John Stakoe (R)

44th District• Kevin Elsenheimer (R)

105th District• Rick Jones (R)

71st District• David Law (R)

39th District• Tory Rocca (R)

30th District• Alexander Lipsey (D)

Minority Vice-Chair, 60th District• Paul Condino (D)

35th District• Stephen Adamini (D)

109th District• Bill McConico (D)

5th District• Steve Bieda (D)

25th District• Virgil Smith (D)

7th District

COMMITTEE ON TAX POLICY• Fulton Sheen (R)

Committee Chair, 88th District• Tom Meyer (R)

Majority Vice-Chair, 84th District• Robert Gosselin (R)

41st District• Gary Newell (R)

87th District• Leon Drolet (R)

33rd District• Brian Palmer (R)

36th District• Jacob Hoogendyk (R)

61st District• John Stakoe (R)

44th District• Rick Jones (R)

71st District• Jim Marleau (R)

46th District• Paul Condino (D)

Minority Vice-Chair, 35th District• Steve Bieda (D)

25th District• Barbara Farrah (D)

13th District• Paula Zelenko (D)

50th District• Fred Miller (D)

31st District• Andy Meisner (D)

27th District• Doug Bennett (D)

92nd District

cation, and population.(iv) Attitude, knowledge, and belief information.

“Staff a minority health hotline that establisheslinkages with other health and social service hot-lines and local coalitions.“Develop and implement an aggressive recruit-ment and retention program to increase the num-ber of minorities in the health and social servicesprofessions.“Develop and implement an awareness programthat will increase the knowledge of health and socialservice providers to the special needs of minorities.“Develop and implement culturally and linguisti-cally appropriate health promotion and diseaseprevention programs that would emphasize avoid-ing the health risk factors for conditions affectingminorities and incorporate an accessible, afford-able, and acceptable early detection and interven-tion component.“Provide the state support necessary to ensure thecontinued development of the existing minorityhealth coalitions and to develop coalitions in otherareas targeted for minority health intervention.…”Sponsored by: Michael C Murphy (primary)Status: Referred to Committee on Health Policy

• HB 4496 — Allow for hospice residences returnand redispensing of certain dispensed prescriptiondrugs under certain circumstances.“A pharmacy may accept for the purpose of resaleor redispensing a prescription drug that has beendispensed and has left the control of the pharma-cist if the prescription drug is being returned by ahospice residence licensed under article 17 thathas a registered professional nurse or a licensedpractical nurse who is responsible for the security,handling, and administration of prescription drugswithin that hospice facility …“A pharmacy shall not accept for return prescriptiondrugs as provided under this section until the phar-macist in charge develops a written set of protocolsfor accepting, returning to stock, repackaging, la-beling, and redispensing prescription drugs. Thewritten protocols shall be maintained on the prem-ises and shall be readily accessible to each phar-macist on duty. …“This section does not apply to any of the following:“(a) A controlled substance.“(b) A prescription drug that is dispensed as part of

a customized patient medication package.“(c) A prescription drug that is not dispensed as a

unit dose package or a unit of issue package.“(d) A prescription drug that is not properly labeled

with the identity, strength, lot number, and expi-ration date. …”

Sponsored by: Steve Bieda (primary)Status: Referred to Committee on Senior Health,Security, and Retirement

• HB 4504 — Require hospitals to disclosure ofhospital-acquired infection rates.“Before February 1 of each year, each hospital shallsubmit a report to the department summarizing thenumber of hospital-acquired infections contractedby patients in the immediately preceding calendaryear. … The department may require any informa-tion considered necessary for the surveillance, con-trol, and prevention of hospital-acquired infections.“The reporting form shall break down the number ofhospital-acquired infections contracted by patientswithin each unit or department within the hospital.The reporting form shall not contain the name of thepatients, common identifiers such as social securi-ty or driver license numbers, or other informationidentifiers that would make it possible to identify inany manner or in any circumstances the patient.…“‘Hospital-acquired infection’ means a nosocomialinfection that is a localized or systemic conditionresulting from an adverse reaction to the presenceof an infectious agent or its toxin and that was notpresent or incubating at the time a patient was ad-mitted to the hospital for medical treatment.”Sponsored by: Lisa Wojno (primary)Status: Referred to Committee on Health Policy

• HB 4557 — Create commission on hospital-ac-quired infections.“To examine means to improve patient safety andreduce hospital-acquired infections in this state, thegovernor shall create and appoint a commission onhospital-acquired infections within the departmentof community health or designate an existing or-ganization to act as the state commission on hos-pital-acquired infections. …“The commission shall consist of 7 members, 3 ofwhom are appointed jointly by the Speaker of theHouse of Representatives and the Senate MajorityLeader and 4 of whom are appointed by the gover-nor as follows:“(a) One individual from the general public who has

experience in hospital operations and infectioncontrol.

“(b) Four individuals representing hospitals whoseprimary profession is focusing on the control andelimination of hospital-acquired infections.

“(c) Two epidemiologists who specialize in hospital-acquired infections.

“The commission shall develop recommendations

and issue a written report of those recommenda-tions for the hospital industry on the best practicesfor minimizing and eliminating hospital-acquiredinfections that are consistent with the centers fordisease control and prevention guidelines.…”Sponsored by: Lorence Wenke (primary)Status: Referred to Committee on Health Policy

• HB 4559 — Provide prescription drug website.“The department of attorney general, in cooperationwith the department, shall create and operate a pre-scription drug website to educate consumers aboutthe price of prescription drugs and to provide links toother helpful websites that may assist and educateconsumers on how to find safe, effective, and cost-efficient prescription drugs, including, but not limit-ed to, links to public and private programs that offerdiscounted or free prescription drugs and informa-tion about the proper use of prescription drugs.“At least once a month, the department shall obtainfrom the person that the department has contractedto serve as its pharmacy benefits manager for itsvarious health care programs the usual and cus-tomary drug pricing information that it receives fromeach pharmacy or dispensing prescriber that fills orrefills a prescription under those various health careprograms and shall provide the department of attor-ney general with a copy of this information for in-corporation into the prescription drug website ….”Sponsored by: Roger Kahn (primary) Status: Referred to Committee on Health Policy

• HB 4585 — Require Department of CommunityHealth to establish advisory committee to reviewtoxicological studies as they relate to mold in theindoor environment.“The department, in cooperation with the depart-ment of environmental quality, shall establish anadvisory committee to review toxicological studiesand any other scientific evidence as it relates tomold and advise each department and the Legisla-ture on the issues and topics related to toxic moldand the adverse health effects of exposure to suchmolds on the general population.…”“The advisory committee shall complete and pres-ent to the department of community health, the de-partment of environmental quality, and the legisla-ture a report, along with its recommendations, of itsstudy of toxic mold. The report shall include, at aminimum, recommendations on all of the following:“(a) If determinable, permissible exposure limits to

mold for indoor environments that avoid adverseeffects on health and avoid any significant risk topublic health. If exposure limits are indeter-minable, a written explanation about the barriersor obstacles that impede the ability to establishexposure limits as they relate to mold in the in-door environment.

“(b) Practical standards to assess the health threatposed by the presence of mold, both visible andinvisible or hidden, in an indoor environment.

“(c) Mold identification guidelines for the recogni-tion of mold, water damage, or microbial volatileorganic compounds in indoor environments.

“(d) Remediation guidelines for the removal of moldand the abatement of the underlying cause ofmold and associated water intrusion and waterdamage in indoor environments.

“(e) Education and outreach strategies to inform thepublic of the threat posed by the presence ofmold in indoor environments.”

Sponsored by: Chris Kolb (primary)Status: Referred to Committee on Health Policy

• HB 4605 — Require release of certain personalhealth information related to serious communica-ble diseases, HIV, or AIDS to comply with HIPAAregulations.“A person shall release reports, records, data, andinformation described in this subsection only … asotherwise permitted or required under [HIPAA] …or regulations promulgated under that act …“A person who discloses information … shall notinclude in the disclosure information that identifiesthe individual to whom the information pertains, un-less the identifying information is determined by theperson making the disclosure to be reasonably nec-essary to prevent a foreseeable risk of transmissionof HIV or the identifying information is required, orotherwise permitted, to be disclosed under [HIPAA]… or regulations promulgated under that act….Sponsored by: Stephen Adamini (primary)Status: Referred to Committee on Health Policy

• HB 4606 — Require health facilities’ release ofcertain personal health information to comply withHIPAA regulations.“Except as otherwise permitted under [HIPAA] orregulations promulgated under that act … a thirdparty shall not be given a copy of the patient’s orresident’s medical record without prior authoriza-tion of the patient or resident.“A patient or resident is entitled to confidentialtreatment of personal and medical records, andmay refuse their release to a person outside thehealth facility or agency except as required becauseof a transfer to another health care facility, or as re-quired by law or third party payment contract, or aspermitted under [HIPAA] or regulations promulgat-ed under that act….”

Sponsored by: Stephen Adamini (primary)Status: Referred to Committee on Health Policy

• HB 4741 — Create Conscientious Objector Ac-commodation Act.“A health care provider may object as a matter ofconscience to providing or participating in a healthcare service on ethical, moral, or religious grounds.“A health care provider shall notify his or her em-ployer in writing of a conscientious objection ….The written notice shall be given directly to his orher supervisor and shall include a statement ex-plaining his or her conscientious objection and thehealth care service or services to which he or shespecifically objects to providing or participating inunder this act.“A health care provider may assert his or herconscientious objection under any of the followingconditions:“(A) Upon being offered employment.“(B) At the time the health care provider adopts an

ethical, moral, or religious belief system that con-flicts with participation in a health care service.

“(C) Within 24 hours after he or she is asked or hasreceived notice that he or she is scheduled toparticipate in a health care service to which heor she conscientiously objects.

“An employer shall retain a health care provider’swritten objection … for the duration of the healthcare provider’s employment. The written objectionis valid for the duration of the health care provider’semployment or until rescinded by the health careprovider in writing.“Within 7 days after receiving a written objection…, an employer shall develop an accommodationplan with the health care provider to ensure that thehealth care provider will not be scheduled or re-quested to participate in a health care service towhich he or she specifically objects.“An employer shall not refuse employment or staffprivileges to a health care provider who has exer-cised his or her right to assert an objection to pro-viding or participating in a health care service …,unless participation in that health care service is in-dicated as a regular or substantial portion of the nor-mal course of duties in the posting of the availabil-ity of the position for employment or staff privileges.“The protections afforded to a health care provider un-der this act do not apply to a health care provider whohas asserted to his or her supervisor a written objec-tion to providing or participating in a certain health careservice under any of the following circumstances:“(A) A patient’s condition, in the reasonable medical

judgment of an attending physician or medicaldirector, requires immediate action and no oth-er qualified health care provider is available toprovide that health care service.

“(B) In the event of a public health emergency.“(C) If a health care provider first asserts an objec-

tion contemporaneously to a patient’s requiringor requesting the objectionable health care serv-ice and no other health care provider is availableto provide the health care service.

“(D) If the objection is based on the status of thepatient, including, but not limited to, the pa-tient’s religion, race, color, national origin, age,gender, height, weight, familial status, maritalstatus, participation in high-risk activities, pastor present medical disease or condition, sexualorientation, employment status, insurance cov-erage, ability to pay, or method of payment.

“This act does not relieve a health care provider froma duty that exists under any other law pertaining tocurrent standards of acceptable health care practiceand procedure to inform a patient of the patient’s con-dition, prognosis, risk of receiving or forgoing relevanthealth care services for the condition, including theavailability of a health care service to which the healthcare provider conscientiously objects. …”Sponsored by: Brian Palmer (primary)Status: Referred to Committee on Health Policy

• HB 4743 — Prohibit withholding or withdrawal ofnutrition or hydration under certain circumstances.“If a patient is diagnosed as being in a persistentvegetative state and the patient has not designat-ed a patient advocate, has designated a patient ad-vocate but the designation does not specifically au-thorize the patient advocate to withhold orwithdraw nutrition or hydration in the event that thepatient is diagnosed as being in a persistent vege-tative state, or the patient’s immediate family dis-agrees on the issue of withholding or withdrawingnutrition or hydration, a physician shall not withholdor withdraw nutrition or hydration from that patientunless any of the following conditions apply:“(A) In the physician’s reasonable medical judgment

and in compliance with the applicable standard ofpractice and care, any of the following apply:“(i) The provision of nutrition or hydration is notmedically possible.

“(ii) The provision of nutrition or hydration wouldhasten death.

“(iii) The patient’s condition is such that the pro-vision of nutrition or hydration would not con-tribute to sustaining the patient’s life or providecomfort to the patient.

“The patient has executed a written advanced di-rective or a living will in accordance with the pro-

Pending LegislationContinued



the individual does not have to come to aCatholic hospital. They could have it doneat a normal hospital, if you’re talking abouta hysterectomy or a procedure like that,”Maluchnik said. “There are hospitals otherthan Catholic hospitals that will performhysterectomies. It’s not an emergency serv-ice and, if it was, there are exemptions inthe legislation to insure the individualsare provided for.”

Not so fastRep. Chris Kolb, an Ann Arbor Democrat,

said the proponent’s “choice” argumentdoesn’t hold water in rural parts of the statewhere there might not be “normal” healthfacilities within a reasonable distance.

“If you’re denied a certain procedure orprescription, and if you are in a rural partof Michigan, you can’t just go down thestreet,” he asserted. “It could be hundredsof miles to the next health care providerand that is particularly distressing.”

Moreover, Dr. Howard Brody, chair ofthe Michigan State Medical Society Com-mittee on Bioethics, testified before theSenate Health Policy Committee lastyear. Brody believes the Senate committeelistened to the concerns the MSMS hadwith the proposed legislation.

“This legislation got bottled up in theSenate because Sen. Tom George — aphysician who is in many ways very con-servative politically — was alert to thedangers of this issue, and he and some oth-ers blocked it,” Brody observed. “It’s hardto say what will happen. The politicalforces poised here are clearly in the ma-jority. Other things being equal in the Leg-islature, it’s kind of a strange coincidenceof the planets being in a certain alignmentthat that particular Senate committee wasstacked against it. Who knows what could

happen next year or the year after.”Meanwhile, Kathy Kudner, past chair of

the Health Care Law Section of the StateBar of Michigan, told Lawyers Weeklythat, while a recent e-mail asked mem-bers to poll their clients on this issue, thesection generally doesn’t take positionson legislation such as this because theyhave clients on both sides of the fence.

Constitutional qualmsThere are four bills in the package:

• HB 4741 — provides standards for per-sonnel policies to handle health careworkers who conscientiously object toparticipating in certain medical services.

• HBs 4745-46 — allow HMOs, health in-surance companies and nonprofit healthcare corporations to withhold coveragefor procedures that offend their ethical,moral or religious leanings, based ontheir articles of incorporation.

• HB 4775 — gives health facilities, suchas Catholic hospitals, immunity if theyrefuse to provide health services that vi-olate religious, moral or ethical tenets.The current legislation is quite similar

to a package of bills — HB 5006 was thelead bill — that passed the House duringthe last legislative session. Those billsdied after a single hearing in the Senate’sHealth Policy Committee.

The chair of that committee, Sen. Bev-erly Hammerstrom, a Republican whohails from Temperance, could not bereached for comment.

Palmer, however, said he believes thesticking points that may have stalled themeasure in the last session have been ad-dressed in the latest legislation.

For example, the gay community cameout strong last time because HB 5006 onlymade reference to the Elliott-Larsen Civil

Rights Act when it prohibited health careproviders from refusing to serve classes ofpeople. Gays and lesbians currently don’tenjoy protection under that act.

Palmer noted his current bill clearlyspells out that services cannot be withheld

because of a patient’s “religion, race, color,national origin, age, gender, height, weight,familial status, marital status, participa-tion in high-risk activities, past or presentmedical disease or condition, sexual orien-tation, employment status, insurance cov-erage, ability to pay or method of payment.”

Brody added that while some were con-cerned about the sexual orientation omis-sion in the last bill, he wasn’t, and heagrees that the new language should easethose worries.

Another major objection to the last setof bills was the fear that patients would beleft in the lurch, without medical counsel

about where they could seek a service thata given provider wouldn’t provide.

Again, Palmer said he believes that con-cern is addressed in his bill.

“A doctor can’t just say, ‘I can’t do this. Ican’t provide this abortion.’ He has to saywho in the area does the procedure,”Palmer noted. “A doctor can’t just say, ‘Idon’t know.’ This is a new twist, I think.”

Conscientious employeesMeanwhile, Palmer said it just doesn’t

make sense to antagonize healthcareworkers and risk them leaving, given thesevere shortage of nurses, pharmacistsand others in the healthcare field.

But others have said that, as a whole,these bills aren’t necessary because noone can cite a single case where a consci-entious objector has run up against aproblem with his or her employer. Evenmore, healthcare employers already havemade accommodations in the event thatsuch a situation does occur.

Right to Life of Michigan, the organiza-tion most influential in this legislationaccording to Palmer, said that argumentmay hold for responsible hospitals, butnot for all entities that care for the sick.

“I don’t care about the hospital’s drone,‘It is not in the statute and it doesn’t cov-er other facilities besides the hospitals.’We’re not going to exclude hospitals,” saidRight to Life Legislative Director Ed Riv-et. “Yes, they have it in policy and, yes,Beaumont Hospital, for example, may begood. But it is not a nursing home thatmight starve a patient or a research facil-ity that might ask an employee to takeapart an embryo.”

Moreover, Rivet added, if the hospitalalready does a good job, this legislation isnot going to affect it — or any other hos-pital that has a good policy — one bit.

“The hospital’s objection that, ‘We al-ready do this and we do it good,’ well, thenyou’ll have no problems,” Rivet said. “Butlet us make sure we cover everybody else,maybe a hospital that isn’t a good actor. Un-fortunately, laws are made for the lawless.”

However, hospital representatives saidthis package of bills will affect them —and their patients — adversely.

The proposed new practices involve ad-ditional paperwork and, Sherry Mirasola,spokesperson for the Michigan Health &Hospital Association, said the laws couldopen a whole new can of worms.

“More paperwork means, by definition,more time taken away from direct patientcare to comply with bureaucracy. Theamount of time caregivers currently spendon paperwork is pretty untoward in thefirst place,” Mirasola observed. “It addsmore time, it adds more compliance meas-ures, and it could actually impose addi-tional costs to providers.”

Additional costs, she noted, could comein the form of a whole new field of em-ployment litigation, if perhaps a poorlyperforming employee exercised a consci-entious objection and used that to accusehis employer of wrongful termination.

Under the radarThe American Bar Association’s Section

of Individual Rights and ResponsibilitiesHealth Law Section has recommendedthat the Bar formally oppose broad re-fusal laws such as that in the 2004 ver-sion, and even mentioned HB 5006 specif-ically in its writing.

However, it seems Palmer’s fix mighthave taken Michigan off the ABA’s radarscreen, perhaps for the specific item thatallows healthcare providers to opt out oftelling patients about objectionable proce-dures and referring them to someone whowould perform the services needed.

Meanwhile, supporters of the legislationadmit there haven’t been any specific in-stances where a healthcare provider wasdealt a raw deal for refusing to perform acertain procedure or fill a given prescription.

Even Rep. Rick Shaffer, R-Three Rivers— who is also a nurse — once refused todisconnect life support from a patient. Hesaid he and the doctor amicably workedthe situation out. But he does supportwhat everyone admits is a pre-emptivestrike regardless.

“There needs to be a protective deviceavailable,” he said. “Certainly, people should-n’t use it as a brick on their shoulder so tospeak, or ammunition in their gun. Youshould always try to work it out on a per-sonal and professional level. But recognizingthat there is this legislation, should it pass,protection should be in place for them.”

Conscientious objector bills back for another round

“Right to Life believes this isa very important watershedissue, particularly as it relatesto abortion, which is a front-line issue. It is disgusting, andto force somebody to performa procedure like that whenthey know it is cold-bloodedmurder is something that had to be addressed.”

— Rep. Brian Palmer, R-Romeo

visions of another state that specifically authorizesthe withholding or withdrawal of nutrition or hydra-tion if he or she is diagnosed as being in a persist-ent vegetative state.“The patient has expressed in a clear and convinc-ing manner that if diagnosed as being in a persist-ent vegetative state he or she would consent to thewithholding or withdrawal of nutrition or hydrationthat would allow him or her to die….”“A life insurer, a health insurer, or a health care pay-ment or benefits plan shall not do any of the fol-lowing because a patient is diagnosed as being ina persistent vegetative state and the patient, thepatient’s patient surrogate, or the patient advocatehas authorized the withholding or withdrawal of nu-trition or hydration:“(A) Refuse to provide or continue coverage or ben-

efits to the patient within the scope and level ofcoverage or benefits of an existing policy, cer-tificate, or contract.

“(B) Limit the amount of coverage or benefits avail-able to the patient within the scope and level ofcoverage or benefits of an existing policy, cer-tificate, or contract.

“(C) Charge the patient a different rate for coverageor benefits under an existing policy, certificate, orcontract.

“(D) Consider the terms of an existing policy, cer-tificate, or contract to have been breached ormodified.

“(E) Invoke a suicide or intentional death exemptionor exclusion in a policy, certificate, or contractcovering the patient....”

“This part does not do the following:“(A) Impair or supersede a legal right a parent, pa-

tient, patient advocate, legal guardian, or otherindividual may have to authorize or deny thewithholding or withdrawing of nutrition or hy-dration on behalf of a patient who is diagnosedas being in a Persistent vegetative state.

“(B) Create a presumption about the desire of a pa-tient who is diagnosed as being in a persistentvegetative state to withhold or withdraw nutritionor hydration.

“(C) Limit the ability of a court making a determinationabout a decision of a patient who is diagnosed asbeing in a persistent vegetative state to take intoconsideration all of the following state interests:(i) The preservation of life.(ii) The prevention of suicide.(iii) The protection of innocent third parties.(iv) The preservation of the integrity of the med-ical Profession.

“(D) Condone, authorize, or approve suicide, as-sisted suicide, mercy killing, or euthanasia.”

Sponsored by: John Stahl (primary)Status: Referred to Committee on Judiciary

• HB 4775 — Allow conscientious objection to pro-viding or participating in certain health care servic-es by health facilities under certain circumstances“A health facility may withdraw or withhold fromproviding a health care service, or may refuse toprovide or participate in a health care service, onethical, moral, or religious grounds as reflected inits organizational documents, charter, bylaws, or anadopted mission statement.“A health facility shall not assert an objection …under any of the following circumstances:“(a) The objection is to a health care service the

health facility routinely provides or participates inand is based on a disagreement with a memberof a health profession employed by, under con-tract to, or granted privileges by the health facil-ity regarding the medical appropriateness of ahealth care service for a specific patient if thepatient has consented to the provision of thehealth care service.

“(b) In the event of a public health emergency.“(c) In the event of an emergency where a patient’s

condition, in the reasonable medical judgment ofan attending physician or medical director, re-quires immediate action to avert serious injury,harm, impairment, or death or is such that a de-lay would create a serious risk of substantial andirreversible impairment of a major bodily func-tion to that patient.

“This act does not relieve a health care facility froma duty that exists under another statute or other lawpertaining to medical standards of acceptablehealth care practices and procedures. …”Sponsored by: John Gleason (primary)Status: Referred to Committee on Health Policy

• HB 4900 — Clarify and amend prohibition onembryonic research and human cloning“A person shall not use a live fetus or neonate fornontherapeutic research if, in the best judgment ofthe person conducting the research, based uponthe available knowledge or information at the ap-proximate time of the research, the research sub-stantially jeopardizes the life or health of fetus orneonate. Nontherapeutic research shall not in anycase be performed on a fetus known by the personconducting the research to be the subject ofa planned abortion being performed for any pur-pose other than to protect the life of the mother.”As used in this section:“(a) ‘Fetus’ means the product of conception from

implantation until delivery.“(b) ‘Neonate’ means a newborn.“(c) ‘Nontherapeutic research’ means scientific or

laboratory research, or other kind of experimen-tation or investigation not designed to improvethe health of the research subject.”

…As used in this section:“a) ‘Human cloning’ means creating or attempting to

create a human being by using the somatic cell nu-clear transfer procedure for the purpose of, or to im-

plant, the resulting product to initiate a pregnancythat could result in the birth of a human being.”

Sponsored by: Andy Meisner (primary)Status: Referred to Committee on Health Policy

BILLS PASSED / GIVENIMMEDIATE EFFECTNeedle electromyography• HB 4325 — Clarify performance of needle elec-tromyography and the performance and interpreta-tion of nerve conduction studies and who is au-thorized to perform.(Leslie Mortimer-R)PASSED 80-23

Mail-order pharmacies and pharmaceuticals• HB 4405 — Eliminate prohibition against mail-order pharmacies.(Gretchen Whitmer-D)PASSED 105-0

• HB 4434 —Eliminate prohibition against mail-or-der pharmacies and provide for centralized pre-scription processing.(Scott Hummel-R)PASSED 104-0

• SB 0352 —Eliminate prohibition against mail-or-der pharmaceuticals and provide for centralizedprescription processing.(Bill Hardiman-R)PASSED 108-0

Pre-abortion ultrasound• HB 4446 — Require provision allowing patientsthe opportunity to view the active ultrasound imageof, and to have a picture of the ultrasound image of,the fetus to performing an abortion.(David Robertson -R)PASSED 69-37 Status: Referred to Senate Committee on Health Pol-icy (passed and given immediate effect in House)

Over-the-counter drugs• HB 4322 — Require sale of certain over-the-counter products containing pseudophedrine orephredine to be maintained behind counter and re-quire photo identification for purchase.(Rick Jones-R)PASSED (104-5)Status: Referred to Senate Committee on Health Pol-icy (passed and given immediate effect in House)

• SB 0189 — Require sale of certain over-the-counter products containing pseudophedrine orephredine to be maintained behind counter and re-quire photo identification.(Patricia Birkholz-R)PASSED (107-2)Status: Returned to Senate for enrolled bill (passedand given immediate effect in House)

Pending LegislationContinued

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Exciting changes going on in your practice?New hospital affiliation or promotion?

Alert your colleagues in the medical community.

Run a professional announcement in the next issue

of the Michigan Medical Law Report!

Contact Mike LuckE-mail: [email protected]: 1-800-678-5297


VERDICTS FOR DOCTORS

Elderly patient’s med-mal claim failsTotal occlusion of iliac artery led to chronic pain, disability

The plaintiff, a 77-year-old woman, hada sudden onset of severe pain in her rightleg and was brought to the emergency de-partment in the late evening. The ERphysician charted a sudden onset, threehours prior, of pain in the plaintiff ’s rightbuttock radiating down the back of theleg, to the top of the foot. The plaintiff alsohad slight foot drop.

The ER doctor contacted the neurosur-geon from the defendant professional cor-poration who recommended an MRI,which confirmed L5 over S1 spondylolis-thesis with narrowed foramen. As such,the MRI was consistent with L5 radicu-lopathy. The neurosurgeon agreed to ac-cept the patient for admission and proba-ble spine surgery.

Nurses in the ER and floor nurses afteradmission noted the plaintiff ’s right legwas cool and pulses were diminished, butthis was never transmitted to the neuro-surgeon. His PA, however, was advised byone of the nurses that the plaintiff’s leg wascool at approximately 5:45 p.m. on Sept. 3.She did not advise the neurosurgeon.

The neurosurgeon saw the plaintiff thatday. With her right leg covered with TEDhose and with no complaints from her, theneurosurgeon remained unaware of thecondition of the plaintiff ’s leg.

Preparations for surgery began, but anoperating room was not available untilSept. 6. On that morning, the TED hosewere removed and the plaintiff ’s leg wasfound to be purple and pulseless. A vascu-lar surgeon was immediately consulted,and he performed a femoro-femoral by-pass graft that restored blood flow to theright lower leg. He also performed fas-ciotomies on either side of the right shin,followed by grafting.

The plaintiff was left with chronic pain,a significantly disfigured right lower ex-tremity, and permanent foot drop that dis-abled her from walking without a cane,walker, or wheelchair.

The defense admitted negligence in fail-ing to call in a vascular surgeon sooner. Attrial, the neurosurgeon testified his PAshould have called him to advise him thatthe nurse indicated the plaintiff ’s leg wascool. Had she done so, he would havecalled in a vascular surgeon. With a stip-ulated admission of negligence, the de-fense focused on proximate cause.

The plaintiff ’s argument was that theplaintiff suffered a total occlusion of theright common iliac artery three hours be-fore her presentation to the emergencyroom. Given the defendant’s admission ofnegligence, the plaintiff did not call herneurosurgery experts at trial. The plain-tiff ’s vascular surgery expert testified thepatient still had viable a leg and pulses(albeit diminished) solely as a result ofcollaterals that must have developed overtime. He felt there was a window of op-portunity within which to restore bloodflow to the lower leg. Further, if the by-pass surgery had been performed by theearly morning hours of Sept. 3, the patientwould have avoided the disfiguring fas-ciotomies and the foot drop that causedher disability.

The defense vascular surgery experttestified that the plaintiff did not have to-tal occlusion of the right common iliac ar-tery upon arrival or the leg would havebeen non-viable within hours. Further, thefact that pulses were present confirms theartery was still open until the pulses dis-appeared on Sept. 6. He opined that theplaintiff developed a total occlusion dur-ing the hospital stay as a result of her im-mobility and, eventually a clot formed atthe narrowest point in the right commoniliac artery leading to total occlusion.

Defense counsel said the plaintiff ’s ex-pert acknowledged various vascular sur-gery texts were authoritative. He was cross-examined with those texts, which tended tosupport the defense theory on the issue ofhow long a leg can remain viable after a to-tal occlusion of the iliac artery.

Moreover, defense counsel said detailedpreparation of the defense expert for trial

resulted in an up-tempo direct examina-tion which the jury liked. The defense ex-pert also drew the anatomy on a white-board that seemed to help the juryunderstand the pathology.

Finally, the defense repeatedly madethe point that the plaintiff did not demon-strate the “5 Ps” that the literature indi-cated would typically occur in a patientwith ischemia: (1) pain; (2) paralysis; (3)paresthesia; (4) pallor; and (5) pulseless-ness. The patient had pain and paresthe-sia, but the records did not confirm theother three.

Type of action: Medical malpractice Type of injuries: Alleged delay of diagnosisof total occlusion of right common iliacartery; need for fasciotomies of the rightleg; scarring; disfigurement; chronic pain;permanent foot drop; disability Name of case: Keck v. Neurosurgery ofKalamazoo, P.C. Court/case no./date: Kalamazoo CountyCircuit Court; #C03-0198-NH; Feb. 22, 2005 Name of judge: Philip D. Schaefer Verdict amount: $0 (no cause for action) Attorney for the plaintiff: Withheld Attorneys for the defendant: Brian W.Whitelaw and John R. La Parl Name/city of most helpful experts: KrishnaJain, M.D., vascular surgeon, Kalamazoo Insurance carrier(s): ProAssuranceCorporation


Med-mal claim resultsin ‘no cause’Key: Educating jury abouthypothyroidism, bradycardia

The plaintiff was diagnosed with brady-cardia (slow hear rate) and hypothy-roidism at the same time. Initially, defen-dant Dr. Larry Sayed deferredrecommendation for a permanent pace-maker until thyroid replacement treat-ment had been completed.

However, the defendant changed hismind when the plaintiff was taken to theemergency department a week later for asevere dizzy spell. A pacemaker implanta-tion was accomplished the following week.

The plaintiff claimed none of his symp-toms were resolved after the pacemakerplacement and instead were related to hislevels of hypothyroidism. The plaintiffthen developed several complications, in-cluding pericarditis and pericardial effu-sions, requiring multiple surgical proce-dures. He also developed a generalized E.Coli septicemia that he claimed was re-lated to the pacemaker procedure (andwhich was disputed by the defendants).

The plaintiff eventually recovered aftermultiple lengthy hospitalizations. He hashad the pacemaker leads replaced twicesince the initial implantation.

The plaintiff argued that the pacemakerwas not necessary and that indications forpacemaker replacement were not present.

The defendants argued, however, thatthe plaintiff ’s bradycardia was severe andsymptomatic, and that symptomaticbradycardia is an accepted indication forpermanent pacemaker implantation.

A 24-hour Holter monitor test admit-tedly did not establish a correlation be-tween lowest heart rates and symptoms,but counsel said the defendants estab-lished through expert testimony that aclearly established correlation is not re-quired and seldom able to be verified.Moreover, the defendants’ standard ofcare experts testified that the defendant,at all times, met the standard of care.

The key to winning, according to coun-sel, was educating the jury about symp-toms of hypothyroidism and symptoms ofbradycardia.

Judgment for costs was entered againstthe plaintiff and on behalf of the defen-dants in the amount of $18,882.

Type of action: Medical malpractice Type of injuries: Extensive complicationsrelating to pacemaker implant Name of case: Green v. Sayed, et al. Court/case no./date: Wexford CountyCircuit Court; #02-17170-NH; Oct. 29, 2004 Name of judge: Charles D. Corwin Verdict amount: $0 (no cause of action) Attorney for the plaintiff: Withheld

Attorneys for the defendant: Eleanor Lynnand Joseph T. Van Horn Name/city of most helpful experts: AlanWoelfel, M.D., cardiologist, Grand Rapids;Ranjan Thakur, M.D., cardiologist, Lansing;Peter Gulick, D.O., infectious disease, EastLansing; Peter Levanovich, subsequenttreating cardiologist, Petoskey; AndrewScrogin, M.D., treating endocrinologist,Traverse City Insurance carrier(s): ProNational


Wrongful death suitends in ‘no cause’Patient’s death result of disease, notlack of care

The plaintiff ’s decedent’s family admit-ted her to a nursing home after her neuro-logical disease progressed to the point thatshe could no longer be cared for at home.

During the next weeks, her conditioncontinued to worsen. Ultimately, she wastransferred to the hospital where she dieda few days later.

The plaintiff — the decedent’s estate —sued the defendants for wrongful deathbased on medical malpractice, alleging thedefendants failed to properly treat thedecedent for pain and failed to adequate-ly provide food and hydration.

The defendants countered by notingthat narcotic and non-narcotic pain re-lievers had been tried with only limitedsuccess, and that the decedent’s exerciseof her right to refuse care and treatmenthad prevented the defendants from pro-viding better nutrition and hydration.

According to defense counsel, the key towinning was the jury’s response to testi-mony that the patient’s neurological dis-ease would only progress and that nothingcould reverse her incontinence, immobili-ty and mental changes.

Moreover, defense counsel stated theplaintiff ’s expert did a sloppy review andthen told a provable lie to cover up inac-curacies.Type of action: Wrongful death arising outof medical malpractice Type of injuries: Death Name of case: Turner v. Jackson, et al. Court/case no./date: Wayne CountyCircuit Court; #02-233715-NM; Aug. 2, 2004 Name of judge: Isidore Torres Verdict amount: $0 (no cause of action) Allocation of fault: N/A Attorney for the plaintiff: Withheld Attorney for the defendant: Jane Garrett Name/city of most helpful experts: N/A Insurance carrier(s): ProNational


Woman’s med-malmatter gets ‘no cause’Defense disproved plaintiff’sargument, expert testimony

On May 19, 2000, plaintiff DeborahSchippers — a 39-year-old single motherwho was employed as a factory worker —came into the emergency room at BorgessMedical Center, complaining that two ofthe fingers on her left hand were blue andpainful. She also complained of numbnessin her forearm.

The ER doctors ordered an arterial andvenous Doppler flow study and contactedthe defendant, on-call vascular surgeon,Dr. Eugene Simoni. Because Simoni wasin the middle of an operation when he re-ceived the call, he agreed to see the plain-tiff when he was done.

Simoni reviewed the arterial and ve-nous Doppler flow study and then evalu-ated the plaintiff. Based on the negativeresults of the flow study, the good pulsesin the plaintiff ’s arm, and the good flowthrough the palmar arch, the defendantconcluded the plaintiff likely had va-sospasm. He instructed her to call his of-fice to schedule an appointment for thefollowing week and prescribed Procardia— a calcium channel blocker that had pro-vided some relief in the ER and is used totreat vasospasm — as well as aspirin.

When the plaintiff left the ER, shestarted vomiting and had multipleepisodes of vomiting over the next day,which she did not report to the defendant

or the ER physicians. The evidence wasambiguous as to whether the patient con-tinued to smoke.

On May 21, 2000, the plaintiff returnedto the hospital with an ischemic arm thatwas essentially dead from the forearmthrough the fingertips. The defendant or-dered a STAT arteriogram, which demon-strated a clot almost completely obstruct-ing the left subclavian artery, the mainartery providing flow to the arm.

The defendant performed an emergencybypass to isolate the clot to prevent em-bolization up the vertebral artery into thebrain and to prevent further embolizationinto the forearm. He removed as much ofthe clot as he could with a ballooncatheter and then infused TPA. Althoughflow was initially restored, the plaintiff re-clotted continuously thereafter. It wassubsequently determined the plaintiff hada previously undiagnosed, underlying hy-percoagulability syndrome.

When the patient awoke from surgery,she was blind as some of the clot had goneup the vertebral artery causing corticalblindness. Moreover, she had undergone anabove-the-elbow amputation of her left arm.

In her lawsuit against the defendant,the plaintiff claimed the cause of her bluefingertips on May 19, was tiny clots in herarteries. She alleged the standard of prac-tice required the defendant to perform anarteriogram, which would have led to thediagnosis. The plaintiff also contendedthat amputation and blindness could havebeen prevented if the defendant had treat-ed her with thrombolytics such as TPA,which would have dissolved her clots.

In support of her theory, the plaintiffpresented the testimony of vascular sur-geon Dr. Richard K. Spence, who assertedthe clots in the plaintiff ’s fingertips hadpropogated backwards up to the elbow be-tween May 19 and May 21.

However, the defense insisted it was va-sospasm the plaintiff was suffering fromin the ER on May 19, and only after shehad left the ER did she develop a clot inher subclavian artery. The defense arguedthe new clot embolized, thereby causingthe ischemic hand and forearm seen whenthe patient returned two days later.

According to defense counsel, va-sospasm results from the contraction ofthe muscles in small blood vessels of thehands or feet and is characterized by mildpain, paresthesia (burning, tingling andnumbness) and persistent distal cyanosis.

In contrast, defense counsel explained,the five cardinal features of arterial in-sufficiency are referred to as the five “P’s”:pain (usually severe), paralysis, paresthe-sia, pallor and pulselessness.

Defense counsel stated that while theevidence established the plaintiff bore allthe signs of vasospasm, it revealed thatshe only demonstrated one or two of thefive P’s associated with acute ischemia.

Moreover, the defense urged that Dr.Spence’s theory was medically and patho-logically impossible. According to defensecounsel, it is a commonly understood tenetof vascular surgery that a clot can onlypropagate backwards to the next openbranch of the artery. Therefore, becausethe plaintiff had full flow through the pal-mar arch, it would have been impossiblefor clot in the fingertips to back upthrough the palmar arch and travel upthe arm.

In terms of challenging the plaintiff ’sexpert’s testimony, defense counsel ex-plained they targeted his qualifications.Spence testified he was board certified ingeneral and vascular surgery and that hehad re-certified in both, adding that hisvascular surgery certification was gooduntil the year 2009. After Spence testified,the defense contacted the American Boardof Surgery and determined that Spence’svascular surgery certification had, in fact,lapsed on July 1, 2004.

In response to the plaintiff ’s openingstatement advising the jury they wouldhear the testimony of one of the most “out-standing, nationally renowned experts inthe world” who is “held in outstanding es-teem,” the defense argued that the plain-tiff had instead provided the jury withthe testimony of a doctor who misrepre-sented his qualifications and would nothave been allowed to maintain his vascu-lar surgery privileges at either the defen-dant’s hospital or that of the defendant’sexpert because both facilities requiredmaintenance of subspecialty certification.

The defense was able to prove Spence’smisrepresentation by obtaining an affi-davit from the executive director of TheAmerican Board of Surgery (completewith Apsey certificate) and also obtainingthe agreement of the executive director to

Verdicts & Settlements


in the event plaintiff ’s counsel would notstipulate to the admissibility of the affi-davit. Plaintiff ’s counsel did stipulate andwas unable to present evidence establish-ing Spence’s board certification status.

Defense counsel told Lawyers Weeklythe jury had indicated it took five minutesto reach a consensus as to “no liability.”Moreover, the jury explained that it wasthe unbelievability of Spence’s testimony,not his misrepresentation regarding hisqualifications, that convinced them.

Prior to trial, the plaintiff rejected a caseevaluation award of $650,000 and settledwith Borgess for $50,000. The defensemade no offers. At trial, the plaintiff askedthe jury for approximately $3 million.

The defense is filing a motion for taxablecosts and attorney fees which should ex-ceed, by a significant amount, the settle-ment plaintiff received from the hospital.The defense is also moving for an order re-quiring the plaintiff to post a surety bond.

Type of action: Medical malpractice Type of injuries: Above elbow amputationof left arm; cortical blindness; permanentdisability Name of case: Schippers v. Simoni, et al. Court/case no./date: Kalamazoo CountyCircuit Court; #D02-0540-NH; May 5, 2005 Name of judge: Philip D. Schaefer Verdict amount: $0 (no cause of action) Allocation of fault: N/A Attorney for the plaintiff: Withheld Attorneys for the defendant: Brian W.Whitelaw and John R. LaParl Name/city of most helpful experts: WalterWhitehouse, M.D., vascular surgery, AnnArbor; O. William Brown, M.D., vascularsurgery, Bingham Farms Insurance carrier(s): ProAssurance


Neurosurgeon wins‘no cause’ verdictDidn’t convince jury on proximate cause issue

The plaintiff patient presented to defen-dant neurosurgeon after failure of C6-7 cer-vical diskectomy fusion (done by anotherneurosurgeon) a year earlier.The defendantperformed a “re-do” of the anterior fusion onJuly 7, 2000. Because of the previous hard-ware and holes, 14 mm screws needed to beangled at a trajectory that ran into the diskat the C7-T1 interspace.

Post-surgically, this was discussed withthe patient, and the remote possibility of adisk problem was explained. Surgery wasnot recommended and the patient agreed.

In November and December 2000, thepatient had episodes of “electrical shocks”going down his arms following a sneeze orcough, and it was noted that one of thelocking screws began to back out. As moreproblems occurred, the defendant re-moved and replaced a locking screw onMarch 2, 2001.

Later, X-rays showed more of the screwswere moving into the disk space and thepatient had additional neck, right armand hand numbness, tingling and pain.The plaintiff was able to work, but notwith his usual overtime. Hobby andleisure activities were curtailed, includinghis interaction with his wife and children.

Subsequent treating neurosurgeon Dr.Syed Enam testified that the screws in thedisk caused deterioration of the disk lead-ing to right neck, shoulder, arm and handproblems. On Aug. 12, 2002, he did a three-level fusion with plate from C5 to T1.

The plaintiff ’s expert, Dr. Karl Man-ders, testified at trial that the screw wasimproperly placed into the disk space. Itshould have been seen on an intra-opera-tive X-ray and placed in a new trajectorynot to go into the disk space.

Additionally, at the time the later sur-gery occurred for removal and replace-ment of locking screw, there was a secondchance to change the trajectory that wasnot followed. As a result of these viola-tions of the standard of practice, the screwcaused the patient’s disk to deterioratenecessitating Enam’s surgery.

The plaintiff claimed some $800,000 inlost wages and the lower cap of $349,700.The case evaluated for $237,500.

Although the plaintiff ’s demands at tri-al ranged from $200,000 to a high-low of$50,000 - $200,000, the jury deliberatedfor only 90 minutes before returning a “nocause” verdict.

According to defense counsel, not onlydid the jury understand both the necessi-

ty and risks associated with placement ofthe screw during the “re-do” operation,but the jury did not believe that the sub-sequent damages or injuries were proxi-mately caused by the alleged malpractice.

Type of action: Medical malpractice Type of injuries: Inability to flex, bend orrotate neck in any direction; limited capacityto work for lifetime; anticipated and actualdegeneration of disk spaces; complete,disrupted interaction with wife, children,activities and social life Name of case: Shaffer v. UniversityNeurosurgical Associates, P.C., et al. Court/case no./date: Wayne County CircuitCourt; #02-220954-NH; June 30, 2004 Name of judge: Cynthia Stephens Verdict amount: $0 (no cause of action) Attorney for the plaintiff: Withheld Attorneys for the defendant:Scott A. Saurbier and Bart P. O’Neill Name/city of most helpful experts:Karol Zakalik, M.D., neurosurgeon, RoyalOak; defendant Andrew Sloan, M.D.,neurosurgeon, Detroit Insurance carrier(s): Octagon


‘No cause’ verdict inhearing loss suitJurors unconvinced by plaintiff’s theory

The 22-year-old plaintiff underwentsurgery to repair a perforated righteardrum. A few weeks later, testingproved she had become totally deaf in thatear. It was claimed that antibiotic drops —known to be ototoxic — were used in theear postoperatively and destroyed the in-ner ear hair cells that are necessary fornormal hearing.

The defense argued that a couple of an-tibiotic drops on a cotton ball in the ex-ternal ear canal could not possibly havetraversed the length of the ear canal,through gelfoam packing and a rayon bas-ket, passed through the eardrum graft,migrated across the open space of themiddle ear and entered the inner ear insufficient concentration to destroy themillions of hair cells necessary to producetotal hearing loss.

According to defense counsel, the jurysaid it found the “traveling ear drop” the-ory unconvincing.

Type of action: Medical malpractice Type of injuries: Total permanent hearingloss in right ear Name of case: Lazette v. Levy, et al. Court/case no./date: Monroe CountyCircuit Court; #02-14137-NH; May 6, 2004 Name of judge: William F. LaVoy Verdict amount: $0 (no cause of action) Allocation of fault: N/A Attorney for the plaintiff: Withheld Attorney for the defendant: Jane Garrett Name/city of most helpful experts: Dr.Charles Kimmelman, New York Insurance carrier(s): ProNational


Chiropractor Wins ‘No Cause’ VerdictFull-Size Photos, VideoCorroborated Account

The plaintiff, a 41-year-old massagetherapist, was offered an adjustment bythe defendant chiropractor. The adjust-ment was to take place on a Zenith Hi-Lotable that hydraulically lowers from ver-tical to horizontal. When approachingsuch a table, the patient’s feet are placedon a platform, hands are to be placed onpads just above shoulder level and theface is cradled between face pads. The chi-ropractor then activates a switch thatcauses the table to rotate from vertical tohorizontal. There is a pinch point betweenbars underneath the table.

The plaintiff alleged she did not placeher hands on the pads and was not in-structed to do so by the chiropractor. Thechiropractor testified the plaintiff initial-ly placed her hands on the pads (as shehad done on three prior adjustments) andthen moved them from the pads to thebars as the table was going down. Whilethe table was being lowered, the defen-dant’s attention was directed toward theplaintiff ’s child, who was also present inthe room. The plaintiff ’s hands werecaught between the bars beneath thetable and the housing for the motor.

After an initial concern about possiblefractures, the subsequent treating hand

surgeon indicated the X-rays did not con-firm fractures.

The incident occurred on Oct. 7, 2002.By Oct. 10, 2002, the hand surgeon con-firmed there was no evidence of acutebony or soft tissue injury and that theplaintiff suffered primarily from contu-sion injuries to the hands. The plaintiffwas returned to light duty work on Oct.10, 2002, and returned to work withoutlimitation on Oct. 31, 2002.

The plaintiff chose not to return to workat that time and never did return to anyfull-time job. Additional complaints led toa referral for a bilateral EMG and nerveconduction study, which returned a nega-tive on Dec. 11, 2002.

A family practitioner noted normal sen-sation, no muscle atrophy, good range ofmotion, good strength, and no objectivesigns of reflex sympathetic dystrophy(RSD) on Jan. 23, 2003, yet concludedthere was an “impression of RSD.” He re-ferred the plaintiff to a pain clinic, but sheelected not to go.

Much of the evidence at trial related tothe question of RSD/CRPS. The defensephysiatry expert examined the plaintifftwice and found no evidence of RSD/CRPS.The plaintiff utilized the treating pain doc-tor to promote the argument that theplaintiff had the ailment and was disabledfrom full-time employment.

As to the negligence issue, the plaintiffargued the defendant was aware the tablehad pinch points that could result in severehand injuries and did not tell the plaintiffor any of his other patients that those dan-gers existed. The defendant acknowledgedthat he never told the plaintiff there wasany safety reason to place her hands on thepads. On the day of the injury, he did nottell the plaintiff to place her hands on thepads or to keep them there.

The defendant admitted he lowered thetable for a full four to five seconds with hisback turned to the table (while watchingthe child) without monitoring the plaintiff.

The plaintiff also argued that the de-fendant admitted reading the owner’smanual with its numerous warnings andinstructions to avoid harm.

Defense counsel argued that several fac-tors favored a finding of no negligence, in-cluding: (1) the defendant had adjustedthe plaintiff on the same table on threeprior occasions without incident (whichthe plaintiff denied); (2) the defendant tes-tified he demonstrated to the plaintiff howto properly position herself at the time ofher first adjustment; (3) the defendant toldthe plaintiff to keep her hands on the padsas the table was being lowered at the timeof her first adjustment; (4) the defendantknew that there was a clearly visiblewarning sign, which also contained a dia-gram of hands being pinched if they werenot kept in the proper position; (5) the de-fendant testified the plaintiff ’s hands were

on the pads when he pressed the button tolower the table and the patient had movedher hands while the plaintiff was beinglowered; and (6) the defendant argued thatthe plaintiff had been adjusted on severalprior occasions, by another chiropractor, onan identical table, before the incident inquestion.

Moreover, defense counsel said that, af-ter the incident occurred, the defendanttestified the plaintiff admitted she couldnot believe she had been so stupid.

Defense counsel told Lawyers Weeklythe key to winning was using several nearfull-size photographs of the table in itsraised and lowered position to support theargument that the warning sign wouldhave been visible to the plaintiff.

In addition, defense counsel explainedthat a videotape of a patient being placedon the table corroborated the defendant’saccount that he had observed the plain-tiff ’s hands as he was activating the hy-draulic mechanism.

Type of action: Ordinary negligenceType of injuries: Crush injury to fingers;claimed reflex sympathetic dystrophy/chronic regional pain syndromeName of case: Salee v. MessamoreCourt/case no./date: Kalamazoo CountyCircuit Court; #D-03-000267-NO; Feb. 14,2005Name of judge: Philip D. Schaefer Verdict amount: $0 (no cause ofaction)(The court ordered costs to thedefendant in the amount of $6,992.)Allocation of fault: N/AAttorney for the plaintiff: Withheld Attorneys for the defendant: Brian R.Whitelaw and Timothy BuchalskiName/city of most helpful experts: N/AInsurance carrier(s): TIG SpecialtyInsurance Solutions

VERDICTS AGAINST DOCTORS

Med-mal resulting indeath nets $1.75MPatient not properly monitoredafter heart surgery

The decedent, a 32-year-old man, pre-sented to defendant hospital’s emergencyroom after having sustained a fracture ofhis tibia/fibula which occurred while hewas assisting a neighbor cut down a tree.

Upon presentation, the decedent ad-vised the emergency room physician thathe had an underlying cardiac condition,hypertrophic cardiomyopathy, and had,approximately one year before, under-gone alcohol septal ablation, for which fa-tal arrhythmias are a well-recognizedcomplication.

The decedent was cleared for surgeryafter undergoing a cardiac work-up. The

Verdicts&&SettlementsContinued



BY MARK WILSON

Years ago, the family physician treated al-most every ailment and every member of thefamily, imparting a sense of trust, continuityand familiarity to the delivery of medicalservices. In an age when medical advancesare made daily, many physicians are findingit just as progressive to return to those roots.

With the advent of specialization and ex-pensive technologies, a trip to your familyphysician can lead you on a journey throughmost of southeastern Michigan at all hoursof the day or night. An exaggeration maybe,but many who have made the journey be-lieve that it certainly seemed like reality.

After the initial referral to a specialist, arequest for blood work or a CT scan or MRIcan send a patient in search of a lab or im-aging center at a hospital many miles away.Making appointments and traveling to thenew location adds uncertainty and anxiety— plus it can take days or weeks to take thetest and receive the results. Once the pre-requisites are accomplished, the processstarts anew with the finding, schedulingand seeing of the specialist.

Finally, weeks or even months later, thespecialist sends the results back to the fam-ily physician for the final consultation.

Anyone who has experienced this medicalservice marathon knows that not only isthe delay frustrating, but the stress of theunknown adds an additional burden. Eachnew location is fraught with uncertainty —from navigating unfamiliar roadways or ar-eas of the city, office personnel and parking,to new insurance forms and patient proto-cols. Add to that the emotional toll thatcomes from the delay of a diagnosis.

In the past, some physicians tried to com-bat this problem by taking up residenceright in the hospital. Large medical officebuildings have risen up in the middle of thetraditional hospital complex. In theory, pa-tients need only find their way to the hospi-tal to have adjunct medical services athand.

Unfortunately, physicians often foundthat they and their patients paid a heavyprice for this “convenience.” The individualneeds of the patient were often lost in themammoth institutions and endless levels ofadministrative bureaucracy.

Offices were lined up like dormitoryrooms in poorly lit hallways. Little attentionwas paid to modern-day design conceptsthat would set the proper environmental oremotional tone for a medical visit. Patientscomplained that parking structures were“miles” from designated health services orthat they got lost following the red line tothe yellow line to the green line — especial-ly the elderly.

Hospitals had begun restricting the pro-cedures that the physicians can do in theiroffices as they perceive them as competitionto the hospital-based procedures.

Consumer-conscious physicians neededto find a way to combine the familiarity ofthe local family doctor’s office with conven-ient access to the diagnostic services re-quired for 21st Century treatment — tech-nologies which small practices generallycould not afford to have on hand at a singlepractice office.

Thus, physicians sought to regain controlover all aspects of their patient’s diagnosisor treatment yet retain the quality of careequal to or better than any large scale hos-pital out-patient facility.

‘Medical malls’In Michigan, the solution has taken the

form of the physician-owned “medicalmall” designed, built, owned and operatedby the practicing physicians.

These complexes combine the comfortand convenience of a local family doctor’soffice, while being large enough to attractthe specialized services necessary for afirst-class medical experience. These en-trepreneurial medical professionals havefound that the old truism “the whole isgreater than the sum of its individualparts” also works in the delivery of med-ical services.

In these “one stop” medical malls, any-where from 12 to 18 different individualmedical practice groups band together tocreate a “hospital without beds.”

Diverse practices — such as internalmedicine, cardiology, physical medicine,neurology, allergy, orthopedics, ENT, hema-tology, podiatry, gastroenterology, generaland vascular surgery, nephrology and ob-stetrics/gynecology — pool their resourcesto create a medical complex that they joint-ly own and operate while continuing to uti-lize the hospitals for the acute care for

which they were originally designed.Often the need to see a specialist means

an elevator ride to the next floor or a walkacross a well-lit atrium rather than hav-ing to travel to a distant location. Thenumber of patients drawn to the site al-lows physician groups to attract servicesto the complex, such as pharmacy, physi-cal therapy, labs, imaging and urgent care.

Sometimes, forward-thinking local hos-pitals will join in and rent space to oper-ate the reference lab or imaging center inan effort to support their physicians andreinforce their role in the delivery of cer-tain services to patients. In other cases,the physicians invest and operate theseservices themselves.

Physician owned and operatedIn a few cases, the concept has even ger-

minated physician-owned-and-operated,multi-specialty, out-patient surgery centersmanaged by national professional consumer-driven surgical management companies.

Designed and operated with their pa-tients’ needs in mind, the three operating-room/two procedure-room center, whichopened in Michigan in 2004, has state-of-the-art surgical equipment, as well as in-dividually segregated pre- and post-oper-ative rooms that do away with the massrecovery room concept.

Oftentimes, this allows patients’ fami-lies to wait for their loved ones in relativecomfort and privacy — while having ac-cess to cable TV, video games, and Internetconnections. Most importantly, the physi-cians control all aspects of the quality ofcare for their patients rather than tryingto influence a member or members of hos-pital administration. When meeting withphysicians in the center, patients are alsomeeting with the “administration.”

As for the economics, the combined sizeof these medical mall projects allows thephysician group to seek competitive bidsfrom Michigan’s best and most qualifiedbuilders and architects. The multimillion-dollar financial needs of the project at-tract the largest and most aggressive“nonrecourse” lenders with unique waysto fairly allocate risk and limit liabilitiesamong the various physician groups.

These projects also attract the attention ofthe most efficient commercial and medicalbuilding management companies, which as-sist the physician groups/owners in operat-ing as a “Class A” complex using the latest incost effective management techniques. Theconsolidation of resources allows physiciangroups to purchase the most accessible andvisible locations for their project.

These physician-owned complexes canbe win-win for doctors and patients alike.From a physician success point of view,physician groups have simply “invested inthemselves” to create a solid income pro-ducing investment with a stream of rev-enue which remains responsive to theneeds of their patients.

From a patient success point of view, ina single visit to a medical mall, often pa-tients can:• see their physician;• receive a referral to a medical specialist

in the complex;• be examined on site by the specialist;• be scanned, X-rayed, or receive other

health support;• have their blood drawn and analyzed on

site;• receive a prescription from the on-site

pharmacy; and• have the prescription waiting when they

check out.Patients love the one-stop complexes

because subse-quent visits arealways to thesame place, while after-hours visits are di-rected to the on-site urgent care facility.

Medical malls create a solid, income-producing investment for doctors greaterthan what an individual practice groupcould accomplish on its own — yet they al-low practice groups to remain individualentities. Many participating physiciansbelieve the synergy and pride of owner-ship enhances both the quality and deliv-ery of care for all involved.

Experienced counsel can help with allaspects of creating a multi-service medicalcomplex — including those areas impact-ed by the fraud and abuse laws.

Mark E. Wilson is sen-ior counsel in the busi-ness and finance prac-tice group at Miller,Canfield, Paddock andStone, P.L.C. He hasconsiderable expertisein real estate, construc-tion, and environmen-tal law, and is recog-

nized in the medical and legalcommunities for facilitating the creation ofthe UnaSource Health “megamedaplex” inTroy, the largest and most diverse physi-cian-owned medical mall in Michigan. Hehas also counseled and negotiated all as-pects of industrial, commercial, and resi-dential real estate transactions, and prac-ticed in the area of corporate and tax law.

Mark Wilson received an LLM in Taxa-tion from Wayne State University, a lawdegree from Boston University School ofLaw, and his undergraduate degree fromthe University of Michigan.

21st Century physicians return to their roots

BY ROBERT J. RHUDY AND JOE SURKIEWICZ

Have you seen the bumper sticker thatsays, “The next time you need a doctor, calla lawyer?”

It’s no joke — if you’re poor, that may beexactly what you need to do to get medicalhelp.

Luckily, there’s an outfit that special-izes in preserving health care for the pooracross the U.S.: The National Health LawProgram or NHeLP.

“NHeLP is simply the single best sourceof good thinking and good information onwhat’s going on with Medicaid in Wash-ington and throughout the country — andwhat the implications of actual or pro-posed developments are for beneficiariesand providers,” said Bruce C. Vladeck,Ph.D., former director of the U.S. HealthCare Financing Administration. “In short,NHeLP’s Medicaid work is indispensableand irreplaceable.”

Larry Lavin, NHeLP’s executive direc-tor since 1989, points out that while thecurrent health care crisis is now affectingthe middle class, low-income people havebeen vulnerable for years.

“Our program seeks to help them betterunderstand their choices in the complexhealth care system, and to preserve publichealth care programs increasingly threat-ened by cost-cutting efforts throughoutthe country that have devastating effectson our children, the elderly and disabledpeople,” Lavin said.

When NHeLP was founded at Universityof California-Los Angeles in 1969, its mis-sion was to provide research, consultationand technical expertise to legal aid attor-neys throughout the U.S. on legal aspects ofhealth services for low-income people.

The program soon began to focus onMedicaid implementation and similarbroad public health issues. Medicaid, thelargest public health insurance program inthe U.S., now insures more than 51 millionlow-income people — primarily children,people with disabilities, and the elderly.

Because the program requires statematching funds, Medicaid’s services arefrequently not provided by the states asfederal law requires.

That’s where NHeLP comes in.With offices in Los Angeles, Chapel Hill,

N.C., and Washington, D.C., and 11lawyers on staff, NHeLP protects the rightof Medicaid recipients to maintain afford-able access to services in the face of in-creasing federal and state efforts to re-duce health care services to the poor.

The organization monitors public policydevelopments on Medicaid, reproductive

health, and various other programs, andreports its findings though its websites,email reports, a quarterly newsletter, le-gal guides, and conferences.

“As a lawyer in the Medicaid field, Irely heavily on NHeLP on complex is-sues,” said Regan Bailey, assistant direc-tor of advocacy for public benefits and eco-nomic stability at the Legal Aid Bureau inBaltimore. “You can always trust whatthey say on emerging issues, they’re al-ways on the side of the client — andthey’ve always looked at the issue.”

Added Laurie Norris, a staff attorney atthe Public Justice Center in Baltimore:“NHeLP is a critical ally to Maryland’shealth care advocates. We call them when-ever we need deep expertise on health careissues. They are always there for us.”

On the political side, NHeLP also serves asa resource to legislators and other policymakers, and acts as an advocate in adminis-trative rulemaking, lobbying, and litigation.

Since its creation, NHeLP has served ascounsel with legal aid and other public in-terest law programs around the countryin a range of cases to protect citizen rightsunder Medicaid and other health care pro-grams. A few recent successes:• In 2003, NHeLP and two other groups

filed suit after Arizona increased the co-payments of Medicaid beneficiaries forprescriptions, office visits and other med-ical services. Newton Nations v. Rodgersalleges that the state’s action denied ap-proximately 100,000 of Arizona’s low-in-come citizens access to health care. Afederal judge granted a preliminary in-junction against the state’s action.

• NHeLP and the Welfare Law Center wona final judgment in a 2003 suit (White v.Martin) requiring Missouri to providetransitional Medicaid to more than17,000 working parents. The court foundthat if Medicaid were abruptly with-drawn, many of the women in the classwould have become so ill they could havelost their jobs. In January, 2004 NHeLPand Nebraska Appleseed accomplishedthe same result in Kai v. Ross for morethan 10,000 working women in that state.

• NHeLP and other organizations repre-sented children against North Carolinafor failure to ensure that dental servic-es were adequately available and acces-sible. In 2003, the parties reached a set-tlement that included an agreement toraise the dental reimbursement rates.Since the settlement, the number ofdentists participating in Medicaid hasincreased substantially.

• NHeLP was co-counsel in Vinson v. Bar-bour (2004), in which the U.S. District

Court re-stored Medic-aid benefits(includingprescription drug coverage) to 50,000elderly and disabled people in Missis-sippi following their elimination by thestate legislature.Recently NHeLP has devoted increas-

ing attention to supporting advocacy ef-forts by health care consumers through arange of services. The organization re-ceived a grant from the W.K. KelloggFoundation in 2004 to support participa-tion by Medicaid beneficiaries in promot-ing and protecting Medicaid services atthe federal and state levels.

NHeLP is working with state MedicaidAdvisory Committees mandated by feder-al law across the country, as well as manyother community and consumer groups, tosupport Medicaid advocacy efforts withadministrative agencies and legislatures.

In Maryland, for example, NHeLPhelped to provide legal counsel to statelegislators on a bill to strengthen Mary-land’s Medicaid Advisory Board and is ad-vising local advocates.

“There’s never any ego with them,” not-ed Legal Aid’s Bailey, who has workedwith NHeLP since 1998. “They make theissues less complex so you can hold yourown with the state on Medicaid issues.NHeLP is always up-to-date and out theresharing with everyone.”

That includes online. NHeLP’s website,www.healthlaw.org, provides timely infor-mation and analysis to advocates,lawyers, and community organizations onhealth law issues concerning low-incomeand other disadvantaged people.

The organization also provides anotherwebsite, HealthCareCoach.com, to helpconsumers select and use insurance to getthe best health care they can.

A nonprofit, NHeLP received most of itsfunding from the U.S. Legal ServicesCorp. until 1995, when Congress elimi-nated funding for it and similar nationalsupport law centers.

Today, NHeLP now relies on grantsfrom private foundations and individualcontributions from lawyers and othersaround the country.

Robert J. Rhudy, the former executive di-rector of the Maryland Legal ServicesCorp., is a consultant and attorney privatepractice in Baltimore. He can be reached [email protected].

Joe Surkiewicz is communications di-rector at the Legal Aid Bureau. He can bereached at [email protected].

NHeLP protects health care for the poor PatientAdvocacy

Business &Technology

Physician investments in specialty hospitals BY JEFFREY B. MILLER

For years, many physicians have expe-rienced the squeeze of decreasing incomesand soaring costs. At the same time, manyhave desired increased control over theirrelationships with hospitals.

One method physicians have employedis hospital ownership and, in particular,ownership in specialty hospitals. Not onlycan physician ownership in specialty hos-pitals add a significant income source,physician and specialty hospital advo-cates also assert that physician-ownedspecialty hospitals can provide higherquality clinical services for patients, withhigher efficiency than their communityhospital counterparts.

Moreover, they contend that physiciansand patients of these hospitals enjoy bet-ter service, greater convenience and in-creased comfort due to more effectivephysician control, such as control overhospital facilities and equipment, nurs-ing and support personnel and patientscheduling.

As many physicians know, since Dec. 8,2003, with the passage of the MedicareModernization Act of 2003 (MMA), Con-gress prohibited physicians from refer-ring patients to specialty hospitals inwhich they have an ownership interest.That prohibition was scheduled to expireon June 7, 2005.

However, with the release of theMedicare Payment Advisory Commis-sion’s (MedPAC) Report to the Congresson physician-owned specialty hospitals,the status of the expiration of that prohi-bition may now be in jeopardy until atleast Jan. 1, 2007.

The current circumstances surround-ing MedPAC’s recommendation that themoratorium on physician ownership inspecialty hospitals be extended arose outof a two-year process of review and analy-sis. As physician ownership in specialtyhospitals has gained popularity over theyears, more than simply physicians andhospitals have taken notice — Congress

has also taken note.Many community hospital advocates

have aggressively lobbied Congress seek-ing to limit or prohibit physician owner-ship in specialty hospitals, citing unfaircompetition between physician-ownedspecialty hospitals and community hospi-tals, and concerns regarding the financialviability of community hospitals in spe-cialty hospital markets.

In 2003, Congress responded to com-munity hospital advocates by issuing theMMA moratorium on physician-specialtyhospital joint ownership. Implementingthis prohibition, the Center for Medicareand Medicaid Services (CMS) defined spe-cialty hospitals to include hospitals thatare primarily or exclusively engaged inthe care and treatment of patients withcardiac conditions, orthopedic conditionsor which are caring for patients receivingsurgical procedures. Psychiatric hospitals,rehabilitation hospitals, children’s hospi-tals, long-term care hospitals, certain can-cer hospitals and existing specialty hospi-tals that were in operation or underdevelopment as of Nov. 18, 2003, were ex-empted from this prohibition.

Following the passage of the MMA,Congress referred the matter to MedPACand to the Department of Health and Hu-man Services for its analysis and adviceon long term solutions. MedPAC is an in-dependent federal body that was estab-lished by the Balanced Budget Act of 1997to advise the Congress on issues affectingthe Medicare program. Among MedPAC’sresponsibilities are making recommenda-tions to Congress on payment issues, an-alyzing patient access to care and review-ing quality of care. MedPAC analyzedhospital Medicare cost reports and inpa-tient claims from 2002 (the most recentyear available), and reviewed the issueswith members of the physician and hospi-tal communities, along with associationsand advocates on both sides.

After more than a year of investigation,debate and analysis MedPAC announcedits findings and recommendations in a

March 8, 2005, Report to Congress onPhysician-Owned Specialty Hospitals.

In 96 pages — with the caveat that itsfindings were not statistically valid, andthat more information and study would benecessary to confirm them — MedPACstated that it appeared that physician-owned specialty hospitals, to date, havenot had significant financial impacts ontheir community hospital counterparts.In general, community hospitals in physi-cian-owned specialty hospital marketshave appeared to perform economicallycomparably to community hospitals inmarkets without physician-owned spe-cialty hospitals. As this finding is consis-tent with long-contended physician andspecialty hospital positions, physician andspecialty hospital advocates generallywelcomed it.

Additional findings were less wel-comed by physician and specialty hospi-tal advocates.

Specifically, MedPAC continued to ex-press its concern that physician-ownedspecialty hospitals, if left unchecked, couldhave a negative financial effect on com-munity hospitals and on the communitiesthat they serve.

Moreover, MedPAC expressed concernsthat physician-owned specialty hospitalscould have incentives to disregard theirrole in effectively serving Medicare andMedicaid beneficiaries in their communi-ties or to compromise clinical judgment inthe pursuit of hospital financial goals.

As an example, MedPAC stated thatphysician-owned specialty hospitals actu-ally appeared to be slightly less efficientthan their community hospital counter-parts, with slightly higher Medicare costsper case. Additionally, physician-ownedspecialty hospitals treated lower shares ofMedicaid beneficiaries and treated gener-ally less acute cases, while concentratingon providing services within more prof-itable Diagnostic Related Groups (DRGs).

Based upon the above findings, Med-PAC issued a series of recommendations,the most immediately significant of which

was that Con-gress extendthe currentmoratorium on physician ownership inspecialty hospitals to Jan. 1, 2007. Ac-cording to MedPAC, extending the mora-torium for an additional 18 months wouldallow for time to gather information on itsconcerns regarding physician-owned spe-cialty hospitals. Specific questions it citedas outstanding included whether and towhat extent physician-owned specialtyhospitals select lower acuity patients overhigher acuity patients, avoid serving low-er reimbursed Medicaid patients, have afinancial incentive to over-utilize patientcare services and have less efficiency thantheir community hospital counterparts.

Additionally, MedPAC remains con-cerned about whether physician-ownedspecialty hospitals would economicallydamage community hospitals. Their con-cern is that physician-owned specialtyhospitals could take higher profit pa-tients and services away from communi-ty hospitals, requiring those hospitals tooperate on low margin patients and serv-ices, and as a result, economically dam-aging those community hospitals, even-tually limiting the care that can beprovided to their communities.

MedPAC’s other recommendations aredesigned to address these economic issuesby limiting physician financial incentivesfor referring their patients to their ownspecialty hospitals. Believing that mostof these incentives are due to problems in-herent in Medicare’s hospital reimburse-ment system, MedPAC recommended spe-cific improvements in the accuracy of theDRG reimbursement system.

First, it recommended that the secre-tary of the Department of Health and Hu-man Services refine the current DRG sys-tem to more fully capture differences inthe severity of illnesses among patients,and to re-base the relative weights ofDRGs in order to more accurately repre-sent the costs of providing patient care,

Business &Technology


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practice lawsuits.The plaintiff eventually settled on An-

drew Check, M.D.However, when things did not work out

as the plaintiff expected, she sued the de-fendant under the MCPA, alleging that itfailed to inform her that Check had beeninvolved in five prior medical malpracticelawsuits. She claimed the defendant knewor should have known this information.

The plaintiff further alleged that thedefendant had common law and statutoryduties:

“a. To comply with MCL 445.903(s) byrevealing material facts to plaintiff re-garding any physician that co-defendantwas referring if the omission of suchfacts would tend to mislead or deceiveplaintiff regarding the referral of aphysician such as co-defendant [Check];“b. To comply with MCL 445.903(cc) byrevealing material facts about the re-ferred physician’s background thatwould be helpful to plaintiff in light ofthe presentation of facts about the re-ferred physician made in a positivemanner;“c. To provide plaintiff … with relevantinformation about any referred physi-cian that would enable plaintiff to makean informed decision in selecting aphysician to treat plaintiff and deliveryplaintiff ’s baby;“d. That it is incumbent upon [the de-fendant] that its agents or employeesnot omit relevant, or material facts,such as the referred physician’s profes-sional negligence claims or medicalmalpractice cases or experiences aboutwhich codefendant knew or should haveknown since that information is veryhelpful and relevant to plaintiff in mak-ing her decision regarding using or notusing the services of the referred physi-cian. That more specifically such infor-mation would enable plaintiff to haveaccurate and relevant background in-formation to then discuss specifics withthe referred physician.”The plaintiff alleged a similar count

against Check. In a subsequent affidavit,she claimed the doctor verbally “present-ed himself and information about hisbackground in a very positive manner in-cluding giving me assurance that he wasvery experienced with potentially highrisk pregnancies.”

The plaintiff alleged that both the de-fendant and Check breached their dutiesand that, “as a proximate result” of thesebreached duties, she “sustained emotionaland mental personal injuries, pain andsuffering.”

She alleged no other damages or losses.The defendant moved for summary dis-

position arguing that: (1) the practice ofmedicine is not subject to the MCPA; (2)failure to disclose prior lawsuits is not aviolation of the MCPA; and (3) prior law-suits that did not result in a verdict or set-

tlement are not “material” to the transac-tion under the MCPA.

The plaintiff responded that the defen-dants failed to reveal the material fact ofCheck’s prior lawsuits before she decidedto employ him as her physician. Sheclaimed the defendant’s advertising andpromotion of physicians and Check’s “par-ticipation and acceptance of new businessreferrals from [Beaumont] along with hisown self-promotion” was a “business as-pect” of the practice of medicine.

She further argued that the informa-tion was material because it would havepermitted her to make an informed deci-sion as a consumer of medical services.

The trial court granted summary dispo-sition for the defendant, finding that theinformation was not material to the trans-action between the plaintiff and the de-fendant and that it could have reasonablybeen known by the plaintiff.

Opening ‘act’Kelly began her analysis by examining

the issue of when a claim is properlybrought under the MCPA.

She first looked at the Court of Appeals’1997 ruling in Nelson v Ho.

In Nelson, the court held “that only alle-gations of unfair, unconscionable, or decep-tive methods, acts, or practices in the con-duct of the entrepreneurial, commercial, orbusiness aspect of a physician’s practicemay be brought under the MCPA.”

However, the court distinguished that

“[a]llegations [concerning] misconduct inthe actual performance of medical servic-es or the actual practice of medicine wouldbe improper.”

Only when physicians are “engaging inthe entrepreneurial, commercial, or busi-ness aspect of the practice of medicine are

they engaged in ‘trade or commerce’ with-in the purview of the MCPA,” the Nelsoncourt concluded.

Kelly also considered the MichiganSupreme Court’s 2004 decision in Bryantv. Oakpointe Villa.

There, the high court set forth a test fordetermining the characteristics of a med-ical malpractice claim.

“First, medical malpractice can occuronly ‘within the course of a professionalrelationship,’” it stated.

Second, “claims of medical malpracticenecessarily ‘raise questions involvingmedical judgment,’” it observed.

“[W]e hold that this test likewise ap-plies in determining whether this MCPAclaim actually sounds in medical mal-practice,” Kelly wrote.

Wrong placeKelly next applied the law to the facts of

this case and determined that it was notproperly brought under the MCPA.

“Plaintiff alleged that she sought a reli-able doctor who ‘would provide plaintiffwith safe prenatal medical care and de-livery services for herself and her baby,’”the judge noted. “She alleged that due todefendants’ omissions of Check’s priormedical malpractice lawsuits, she wasmisled and unable to make and informedchoice, as a result of which, she choseCheck. Once plaintiff chose Check as herdoctor, she entered into a professional re-lationship with Check and his employer

Beaumont. Plaintiff ’s claims encompassthis professional relationship.”

The plaintiff further alleged that, as aresult of choosing Check, she suffered“emotional and mental personal injuries,pain and suffering,” Kelly noted. “Plaintiffdid not allege that she suffered any tan-gible financial loss. Nor does she specifyexactly what about her choice caused herpain and suffering.”

Nonetheless, “reading her complaint asa whole, it is apparent that plaintiff al-leged that Check was unreliable and un-able to render safe prenatal and deliverycare simply because he was involved inprior birth trauma medical malpracticelawsuits,” Kelly explained. “BecauseCheck’s having been sued in the past doesnot necessarily render him unreliable orunable to provide safe medical care,plaintiff claims would involve showingthat Check was unreliable or unable toprovide safe medical care,” Kelly ob-served. “Therefore, her claims raise ‘ques-tions involving medical judgment requir-ing expert testimony’ rather than ‘factswithin the realm of a jury’s commonknowledge and experience.’”

Post hoc ergo propter hocAs further support for her conclusion,

Kelly pointed to the plaintiff ’s assertionthat the death of her “8 pound 12 ouncefull-term baby” two months after his birth“would never had occurred if she had notbeen misled and deceived into choosingDr. Check as her obstetrician.”

In other words, “plaintiff asserts thatdue to defendants’ omissions aboutCheck’s prior lawsuits, she chose Checkand consequently lost her baby,” the judgenoted.

“But this reasoning invokes the fallacyof post hoc ergo propter hoc: merely be-cause one event follows another does notmean that the first event caused the sec-ond,” she observed.

“If we permitted plaintiff to seek dam-ages for her ‘emotional and mental per-sonal injuries and pain and suffering’ thatshe allegedly sustained under these cir-cumstances, we would be permitting herto recover damages from defendants forthe death of her child without requiringher to prove that Check performed negli-gent medical care that caused the death ofher child,” Kelly explained.

Therefore, “even though plaintiff haslabeled her claim as one brought underthe MCPA, we conclude that it is princi-pally an attack on Check’s ability to pro-vide medical care and the results of thatcare and must be addressed in a medicalmalpractice claim,” she concluded.


helping to eliminate the financial advan-tages of providing care for patients of low-er acuity.

Second, MedPAC recommended thatCongress provide the secretary with theauthority to adjust DRB relative weightsso that he may account for differences inhigh-cost outlier cases. Affecting specialtyhospitals and general acute care hospi-tals, this recommendation would be im-plemented over a transitional period sothat hospitals can adjust to the refinedpayment system.

Finally, MedPAC recommended thatCongress amend current law to allow for,and to regulate, gainsharing arrange-ments between physicians and hospitals,while protecting quality of care and mini-mizing physician financial incentives forreferrals. Gainsharing arrangements arecurrently limited in most forms by a vari-ety of federal laws, including the federalCivil Monetary Penalties Law, the Anti-Kickback Statute, the Ethics in PatientReferral Act (a.k.a. Stark), and for not-for-profit hospitals, the Internal RevenueCode. According to MedPAC, permittinggainsharing opportunities could provide aviable alternative for physicians who areconsidering purchasing ownership inter-ests in specialty hospitals.

Should Congress accept MedPAC’s rec-ommendations, physicians would be pro-hibited from referring patients to hospi-tals that are primarily or exclusivelyengaged in the care and treatment of pa-

tients with cardiac conditions, orthopedicconditions or which are caring for patientsreceiving surgical procedures in whichthey have an ownership interest until atleast Jan. 1, 2007.

Psychiatric hospitals, rehabilitationhospitals, children’s hospitals, long-termcare hospitals, certain cancer hospitalsand existing specialty hospitals that werein operation or under development as ofNov. 18, 2003, would not be included inthis prohibition.

Additionally, physicians who currentlyhave ownership interests that are not lim-ited by this prohibition could be affectedby a refined DRG system designed to re-balance the costs of care among patientsof lower and higher acuities.

Physicians who would like more infor-mation about MedPAC, or about its rec-ommendations, can find that informationon MedPAC’s website, at www.medpac.gov.

MedPAC’s “Report to the Congress onPhysician-Owned Specialty Hospitals”can be found at www.medpac.gov/publica-tions/congressional_reports/Mar05_Spe-cHospitals.pdf.

[Editor’s note: This article first ap-peared in Physician’s News Digest and isreprinted here with permission.]

Jeffrey B. Miller, Esq., is associate cor-porate counsel for Mercy Health System ofSoutheastern Pennsylvania. His office islocated in Conshohocken, Pa.

Physician investments inspecialty hospitalsContinued from page 19

“Because [the doctor’s] having been sued in thepast does not necessarily render him unreliableor unable to provide safe medical care, plaintiffclaims would involve showing that [the doctor]was unreliable or unable to provide safe medicalcare. Therefore, her claims raise ‘questionsinvolving medical judgment requiring experttestimony’ rather than ‘facts within the realm ofa jury’s common knowledge and experience.”

— Judge Kirsten Frank Kelly

Hospital cannot be sued for alleged ‘bad’ physician referral

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surgery occurred at approximately 10p.m. The decedent’s cardiac function wasmonitored for approximately one hour af-ter the surgery in a recovery area. Thedecedent was then transferred to a gener-al recovery floor, but no cardiac monitor-ing was initiated.

The next morning, at approximately 8a.m., the decedent began experiencing dif-ficulties including sweating profusely, dis-orientation and an extreme drop in bloodpressure. The attending nurses spent thenext two hours trying to obtain what theythought was a valid blood pressure read-ing. The attending “hospitalist” was pagedtwice, but he did not respond and thenurses did not call a code. At 10 a.m., thedecedent suffered cardiac arrest. A codewas finally called, but it took approxi-mately 17 minutes to revive the decedent.By this time, the decedent sustained mas-sive and irreversible brain damage anddied seven days later.

The plaintiff contended the defendantwas negligent in failing to monitor thedecedent’s cardiac function for at least 12hours after the surgery and that the nurs-es were negligent in failing to resolve thematter via facilitation. Thereafter, a pre-filing settlement was reached in theamount of $1.75 million.

Type of action: Medical malpracticeType of injuries: Death Name of case: Confidential Court/case no./date: N/A; Dec. 6, 2004 Name of judge: N/A Settlement amount: $1.75 million (settledpre-suit) Attorney for the plaintiff: Paul F. Doherty Attorney for the defendant: Withheld

VERDICTS AGAINST DOCTORS

$1.6M verdict forbotched thyroidectomyDamage to larygeal nervesimpaired airway, voice

On Aug. 1, 2000, 38-year-old JacquelinBartolome checked into St. Mary’s MercyMedical Center with the intention of hav-ing a subtotal thyroidectomy to remove abenign goiter (enlarged thyroid gland)from her neck.

Instead, the surgeon, defendant GregoryW. Johnson, M.D., and the resident he en-listed to assist him, performed what ap-peared to have been a total thyroidectomy,which was both unnecessary and excessivefor a benign gland. During the procedure,defendant Johnson also failed to properlyidentify and carefully protect the right and

left recurrent larygeal nerves. As a result,he severely damaged both, paralyzing Bar-tolome’s vocal cords in a nearly completedclosed position and causing significant air-way and voice impairment.

While the width of a normal female air-way is approximately 14 mm, Bartolome’sairway has been reduced to 2-4 mm. Coun-sel said the plaintiff is effectively breathingthrough the width of a straw. She strugglesto intake sufficient air when engaging indaily activities, and even the act of talkingrapidly causes her to gasp for air.

Moreover, plaintiff ’s counsel added thatBartolome’s voice is weak and raspy, andwas described by her ENT physician as a“godfather” voice. Oddly, the plaintiff ’s cho-sen profession is as a telephone customerservice representative. She requires a spe-cial microphone to be heard by customers,and must push her mute button afterlonger sentences in order to gasp for air.

Counsel also noted that the injury tothe plaintiff ’s vocal cord nerves is perma-nent. While she could have surgery to im-prove her airway, she must sacrifice moreof what little voice she has left.

Plaintiff ’s counsel argued that defen-dant Johnson was negligent in failing toproperly identify and protect the recur-rent laryngeal nerves located on the rightand left side of the thyroid gland, particu-larly at two critical areas where the nerveruns extremely lose to the gland and canintersect the vessels being cut in that area.

The key to winning, according to plain-

tiff ’s counsel, was extensive voir dire toaddress the overwhelming, general opin-ion that there are too many frivolous law-suits. At least a half-dozen people were ex-cused for cause due to their inability to beneutral in a claim against a physician.

The case evaluation award was$455,000, which the defendants rejected.The highest offer to settle the case beforetrial was $60,000.

The jury awarded $11,500 for past eco-nomic damages, $200,000 for past noneco-nomic damages, $1 million for future eco-nomic damages, and $400,000 for futurenoneconomic damages for a total of$1,611,500.

Type of action: Medical negligence Type of injuries: Bilateral recurrent laryngealnerve (vocal cord) damage causing significantairway and voice impairment Name of case: Bartolome, et al. v.Johnson, et al. Court/case no./date: Kent County CircuitCourt; #02-12241-NH; April 6, 2005 Name of judge: Donald A. Johnston Verdict amount: $1.6 million Attorney for the plaintiff: Jane M.Beckering Attorney for the defendant: Withheld Name/city of most helpful experts:Arthur Sanford, M.D., general surgeon,San Diego, Calif.; Scott VanderLinde,Ph.D., economist, Grand Rapids Insurance carrier(s): Mutual InsuranceCorporation of America

Verdicts & Settlements

to those from other schools.”Moreover, Green predicted there will be

more victims of discrimination if theSupreme Court does not reverse the Courtof Appeals.

“The result is likely to be a continuationof the professional prejudice which thelaw is aimed to suppress,” he asserted.

Courts or code?Detroit practitioners Robert L. Weyhing

and Paul C. Smith, who co-authored anamicus curiae brief on behalf of the Michi-gan Osteopathic Association, the AmericanCollege of Osteopathic Surgeons, and theAmerican Osteopathic Association, echoedsentiments similar to those of Green.

“[MCL 333.21513(e)] is intended to en-sure osteopathic physicians (“D.O.s”) havea right of access to positions on medicalstaffs of licensed hospitals equal to that ofallopathic physicians (“M.D.s”),” theywrote in their brief. “The Court of Appealsdecision in this case is contrary to years ofprecedent from this court and evisceratesthe right and ability of osteopathic physi-cians to protect their statutory right to befree from discrimination in the granting ofmedical staff privileges.”

Meanwhile, attorneys for the hospital,Susan Healy Zitterman and Karen B.Berkery of Detroit, insisted in their briefthat the way for the Supreme Court to dojustice in this case is to affirm both the tri-al and appellate court judgments below.

“The Court of Appeals correctly con-cluded that the Public Health Code provi-sion prohibiting discrimination on the ba-sis of licensure, registration or educationas a doctor of osteopathic medicine … doesnot create a right to judicial review of, ortort recovery for a violation of the statute,”they wrote. “Where, as here, the Legisla-ture has set forth express and compre-hensive administrative and injunctiveremedies, the general rule of statutoryconstruction — that the remedies provid-ed by statute for violation of a right hav-ing no common law counterpart are ex-clusive — applies.”

Moreover, Zitterman and Berkery in-sisted “the judiciary should not presumeto engraft on legislation a remedy the Leg-islature declined to create.”

Staff privileges deniedIn 1995, plaintiff Lowell R. Fisher, a li-

censed osteopathic surgeon, applied forstaff privileges at defendant W.A. FooteMemorial Hospital’s surgery department.

The surgery department required thatcandidates applying for staff privilegescomplete a residency program — ap-proved by the Accreditation Council forGraduate Medical Education (ACGME)— and be board certified, or be eligible forsuch, by the American Board of Surgery.

Subquently, in a letter from the defen-dant, the plaintiff was informed that hewould have to seek a waiver of the hospi-

tal’s requirements by specifically request-ing that his board certification in osteo-pathic surgery “be accepted in lieu of theAmerican Board requirement.”

He made the request but was rejectedbecause he had not established that his“training was reasonably equivalent to the

ACGME-approved training,” nor had heshown that his experience satisfied “therequisite criteria for receipt of privileges.”

Two years later, the plaintiff filed suitin Jackson County Circuit Court, allegingthe defendant had discriminated againsthim on the basis of his status as an osteo-pathic physician in violation of MCL333.21513(e).

The defendant responded by success-fully moving for summary disposition.

In granting the defendant’s motion, thetrial court ruled that not only was the de-fendant’s decision regarding the grantingof privileges not subject to judicial review,but, even if it was, “the plaintiff failed toestablish that he was subjected to dis-criminatory treatment based on his statusas an osteopath, in light of the evidence tothe contrary that the defendant regularlyawarded staff privileges to osteopathicphysicians.”

While the Court of Appeals affirmedsummary disposition for the defendant, itdid so for a different reason.

According to the court, because the Pub-lic Health Code “does not expressly createa private cause of action” under MCL333.21513(e) and because the code “con-tains adequate means of enforcing theprovisions of MCL 333.21513(e),” theplaintiff ’s claim failed because he had nocause of action.

‘First impression’In an interview with Michigan Lawyers

Weekly, Green said the most significant is-sue of this case of first impression waswhether there is an implied civil cause ofaction under MCL 333.2153(e).

He said that, based on the questions atoral argument, he believes the court sawit this way, too.

“I suspect that the most significant is-

sue is what the court will ultimately dowith the issue of the general rule of con-struction that, where a civil rights statutecreates a prohibition for the benefit of in-dividuals, whether there is an implied civ-il cause of action to redress a violation,”Green said.

Nevertheless, he explained he thought thechoice the court had to make was obvious.

“[The] only rational course is for thiscourt to deal with the statute in questionas it has always dealt with antidiscrimi-nation statutes and imply a private causeof action where the Legislature has neg-lected to do so expressly,” he stated.

However, Zitterman and Berkery toldthe Supreme Court in their brief that thething to do was to stay the course because,not only does the Public Health Code failto provide for a tort recovery for a viola-tion of § 21513(e) — let alone judicial re-view — but “the exception to the rule forcivil rights statutes [was] intended to ben-efit individuals rather than the public andshould not be applied here… because theexpress purpose of the Public Health Codeis to protect the public.”

They asserted that the “right at issue isnot a fundamental personal civil right.”

But Green countered that “if you look atthe legislative history, the entire purposeof [§21513] was to protect osteopaths andpodiatrists who were traditionally beingdenied access to hospitals. It wasn’t to ben-efit the public at all … . It’s clear that [theLegislature] intended it to be a civil right.”

Moreover, Weyhing and Smith took is-sue in their brief with the defense notionthat §21513(e) was intended to protect thepublic, and not the rights of the individual.

“The statute in question, MCL333.21513(e), imposes a duty for the ben-efit of particular individuals or classes ofindividuals [osteopathic physicians] as op-posed to establishing only a public reme-dy,” they contended.

Adequate meansWhen the Court of Appeals concluded the

code provided adequate means of enforcing§ 21513(e) — other than a private cause of

action — Zitterman and Berkery said intheir brief the court was being faithful bothto the language of the statute, and the in-tent of the Legislature.

“The general rule of statutory construc-tion — that the remedies provided bystatute for violation of a right having nocommon-law counterpart are exclusive —applies,” they insisted. As such, “the ex-ception to that rule recognized for civilrights statutes intended to benefit indi-viduals rather than the public should notbe applied here.”

However, Green countered in his briefthat not only are victims of discriminationunable to avail themselves of the coderemedies relied on by the Court of Ap-peals, but even if they were, the remedieswould never succeed in making that vic-tim whole.

“To suggest that the administrative au-thorities might revoke the license of theonly hospital serving a community be-cause one of the hospital’s employees hadpracticed discrimination against a singleindividual is, frankly, absurd,” he wrote.

Anti-osteopath bias?Finally, assuming for the sake of argu-

ment the plaintiff was able to bring a pri-vate cause of action under § 21513(e), de-fense counsel urged in their brief that anyclaim of discrimination was unfounded.

“It is the [defendant’s] position thatplaintiff ’s request for privileges was de-nied for the reason that his training andsubsequent experience did not meet therequisite criteria for receipt of privileges,”they argued. “The denial of privileges wasnot based upon the fact that [the plaintiff]is a doctor of osteopathic medicine; to thecontrary, physicians [accorded privilegesby the defendant] include numerous DOs.”

Moreover, Zitterman and Berkery con-tended that, at the time of the plaintiff ’sapplication, there were already 30 os-teopaths with staff privileges.

“Further, two osteopathic surgeons whoapplied for staff privileges at about thesame time as [the plaintiff] were grantedstaff privileges at the hospital,” they re-lated in their brief.

Meanwhile, Green insisted that all wasnot as it seemed.

“[The two osteopathic surgeons] werenot granted staff privileges until after [theplaintiff] had been denied even eligibilityto apply,” he countered. “At the time he ap-plied there were no osteopathic physiciansin the surgical department that had staffprivileges. None whatsoever. That is themost important fact.”

Moreover, Green suggested the onlyreason the osteopathic surgeons weregranted privileges was because they com-plied with the defendant’s demand thatthey prove their training was equivalentto that of allopathic surgeons.

“So, basically they went ahead and al-lowed [the defendant] to violate theirrights,” he observed.

Can osteopath sue for denial of privileges?Continued from page 3

“The statute unequivocally requires hospitals to accord osteopaths and podiatrists equality with medical doctors in the grant and denial of staff privileges. The defendant’s surgery department maintained an express policy of preferring the credentials of medical doctors to those from other schools.”

— Ann Arbor attorney Philip Green .


es continue to routinely proceed to thejury determination. And the experts tes-tifying well outside the accepted norms oftheir specialty have heretofore done sowith impunity.

Remember also that malpractice trialsare particularly susceptible to expert wit-ness misconduct. The routine malpracticecase simply involves one or two experts oneach side. No one has the opportunity, in atypical malpractice trial, to say to the jury,“The national medical specialty board haslooked at this case and believes, by a voteof 190 – 5, that the other side’s expert istalking complete nonsense.”

The road ahead for reformIt seems clear that advances in the peer

review of expert witness testimony pres-ent an avenue of malpractice liability re-form that is not merely open, but has beenpositively encouraged, under the Austindecision. The medical profession shouldwelcome this opportunity. The kind of ex-pert witness peer review found in theAustin case presents the greatest andmost meaningful opportunity for medicalmalpractice reform in the past decade.

At the same time, the medical professionshould expect some contrary argumentswhen more Austin-type disciplinary hear-ings are undertaken. The plaintiffs’ per-sonal injury bar may graciously accept mycautionary comment that they should notbe blamed for pursuing cases in whichthey represent a party whose claim is sup-ported by a board-certified expert. But theplaintiffs’ personal injury bar can be ex-pected to argue against, and actively fight,the kind of expert witness peer-reviewthat Judge Posner plainly welcomed andthat this author proposes.

Here is a short list of some of the issuesto be expected.• The medical societies will be sued if they

engage in discipline of experts who vio-late rules on providing testimony.Yes, they might, just as the AANS was

sued by Austin. But the AANS won, and

so should others under the same circum-stances.

The AANS prevailed in Austin’s law-suit because it satisfied the court that ithad followed fair procedures, and had sat-isfied Austin’s right to due process underthe law. The court found, quite simply,that Austin had been given a fair hearing.

It is worth noting, incidentally, that inmaking its finding, the court noted thatthe hearing panel having jurisdiction overAustin’s discipline was composed of qual-ified specialists, none of whom had any in-terest in the underlying litigation, and allof whom had, in the past, reviewed med-ical-malpractice claims at the request ofattorneys representing injured patients.Those are all important principles to beconsidered by every medical society andspecialty board that is considering thepeer review of expert witness testimony.• Whether a case is “meritless” is for juries,

not medical societies, to determine.It is true, jury trials remain the bedrock

of our personal injury litigation system.But the peer-review of experts does notprejudice anyone’s case before trial. Peerreview only holds experts to the standardsof the very organizations that they haverelied upon in the first instance to presentthemselves as experts possessing specialknowledge and credentials. Any peer re-view of testimony, by definition, occursonly after the testimony is given, andquite probably after it has been offered toany trier of fact. There is no “prior re-straint,” to borrow some First Amendmentterminology.

At the same time, it would be manifest-ly absurd if the medical societies and spe-cialty boards which provide some of theunderpinning for expert credentials, weresomehow divorced and cut off from theprocess of insuring that expert testimonywas credible and in accordance with ac-cepted standards.• Cross-examination is the “great engine of

truth.”It was the legal scholar John Wigmore

who, almost exactly 100 years ago, said

that cross-examination “is beyond anydoubt the greatest legal engine ever in-vented for the discovery of truth.” A cynicmight say that if Wigmore were alive to-day, he might add, “and expert testimonyis the greatest legal engine ever inventedfor the obfuscation of truth.”

Cynicism aside, Wigmore’s encomiumfor cross-examination was originally in-tended for his discussion of hearsay evi-dence, not expert testimony. Many modernjudges have commented that juries andjudges alike are often ill-equipped toweigh competing expert testimony. Weneed to look no further than Posner’s de-cision in the Austin case to see this: “Onehas only to read the transcript of the dis-ciplinary hearing, and particularly thequestions that the members of the hear-ing panel, all neurosurgeons of course, di-rected to Dr. Austin, to realize how far theordinary voir dire [the legal term forcross-examination on an expert’s qualifi-cations and the bases of any expert opin-ions] of an expert can fall short.”

In a very real sense, the peer review ofexpert testimony promotes more, and bet-ter, cross-examination. In a courtroom set-ting, experts may be cross-examined incourt by trial counsel who will tailor theirquestioning to the understanding of a juryof lay persons. Those jurors may be the ap-propriate judges of ordinary factual dis-putes, but they are not themselves ex-perts, and a trial is a hopelesslyineffective setting in which to attempt tomake them experts. Jurors should be ableto look to trial experts who are assuredlycredible, to explain complex informationin the expedited way that busy court-rooms need to function.

Meanwhile, in the peer-review setting,any cross-examination of previous testi-mony can be tailored to the highest stan-dards of professional experience and un-derstanding. Both kinds of examinations,courtroom and peer review, are to thegood. And if the peer-review setting findsthe expert’s testimony to be wanting interms of medical or scientific accuracy, or

if any past testimony is found to be un-ethical according to the society’s stan-dards, that finding should be admissiblethe next time that the expert is profferedbefore a lay jury. Indeed, nothing thatcame out of the AANS proceedings, northe federal litigation initiated by Austin,ever prevented Austin from continuing toappear as an expert witness. But quite ap-propriately, the disciplinary proceedingsbecame a subject for cross-examinationwhen Austin has subsequently appearedas an expert witness.

ConclusionIn the end, it must seem inexplicable to

anyone outside of the personal injury liti-gation industry that expert witness testi-mony would not be subjected to peer-reviewexamination. It must seem incompre-hensible to the average person that med-ical experts who wished to publish a jour-nal article about “anterior cervical fusionsurgery” in a specialty journal would rou-tinely have their work subjected to peerreview, while the same experts who offerexpert testimony in a trial of a multimil-lion-dollar malpractice claim could some-how avoid any peer review.

As one who is intimately familiar withthat industry, I join the growing chorus ofvoices that have essentially said: Enough.Peer review of expert testimony is longoverdue. It is time to employ the peer-re-view standards already in place, to improvethem wherever necessary, and to end thewidespread abuses of unscientific and un-ethical expert testimony in the courtroom.

Charles Brown is asenior attorney in theDetroit office ofMiller, Canfield, Pad-dock and Stone,P.L.C.

there isn’t enough time left to be doctors.Do you feel that is true?

A.I don’t see it as a problem, to bequite honest with you. You know, I

interview people and I hire a lot of people.We’ve got a pretty big enterprise here now.The number one thing I look for is in-tegrity. And as long as you’ve got that, andyou act responsibly, you don’t have to wor-

ry about the details or the fine edges.Mostly things work out pretty well, if younever try to take advantage of a fellow hu-man being and if you primarily see yourlife as trying to help other people leaduseful lives.

If any other human being does better, Iwill do better for it. My life is dedicated,and that’s what you do when you’re a pro-fessor, I build human capital, right? Theproduct of my life’s work is not buildingautomobiles or anything else. I try to en-hance human capital — the value of hu-man beings to humanity.

Q.What is your advice to other doctorsout there that would be interested intaking the “expert route”?

A.I’d avoid it. It’s not pleasant forphysicians to get into the tradition-

al crucible of debate that is found in law.Most physicians are not well adapted tothat. I would not encourage people to do alot of it, but I do think everybody shoulddo some of it. I think it’s important thathonest people say honestly what theythink. And I think that the best physi-cians should be out there speaking whenit’s appropriate. Therefore, I don’t haveany problem doing it, and I do it more so

than most, I suspect. Quite a bit more,probably. The trouble is most people arejust afraid of it, and I’m not afraid of it.

Q.You once said that doctors, businesspeople, lawyers, judges, etc., are all

variations of the same phenomenon —“human decision makers” — and that yousee the study of medicine and law as thestudy of choice. Can you elaborate on that?

A.My major research has been deci-sion-analysis. How do different peo-

ple make decisions? How are decisionsmade? Law, medicine and business allhave that as their principal value added.Physicians add value by diminishing un-certainty in patients. We are trying to addvalue by diminishing that component ofhuman misery due to disease. The doctorhas to help the patient make decisions,and, to do that, the doctor has to be skilledat decision-making and understand thevariation.

And that’s what law added for me, be-cause I developed an appreciation forwide-ranging points of view. My view isnever going to be right all of the time, noris anyone else’s, but I have a respect forthe need for maximum information tomake the best possible decision. That’swhat I do in medicine.

As an academician, as a professor, mymajor value I add in my life is to enhancethe career and opportunities for other peo-ple. You do that by increasing their humancapital; their value to themselves and toothers. The reason that people go to collegeis that they will become more valuable inthe long term. Value is defined as the po-tential energy between a have and a want.The tension that exists when you don’t

have something and you want it — howmuch are you going to pay for it? — that’sits value.

I define economics as the study of value.I make decisions based on their presentvalue. What are their implications down-stream? You do that in court, you do thatin medicine and you do that in business.

Q.Are there any medical/legal issuesout there that you know about and

think that other doctors would be interest-ed in hearing about, or should considerlooking into?

A.The biggest issue I see is doctors in-timidated by the legal system, which

is inappropriate. They have doctors terri-fied of malpractice litigation who havenegative experiences. Medicine does notindemnify the patient. All doctors makeerrors and that’s not malpractice. All hu-man beings who make decisions make er-rors; every decision under uncertainty hasan error rate. All meaningful decisionsare made under conditions of uncertainty,and therefore everybody is going to makeerrors. Malpractice is when you do some-thing that a reasonably prudent personwould not do under the same or similarcircumstances. Most physicians don’t un-derstand that and they are so intimidatedby the prospect of malpractice litigationthat they may behave irrationally andpractice defensive medicine, not in the in-terest of the patient.

Q.What is defensive medicine?

A.Defensive medicine means orderingexcessive tests because, “if I don’t

order them I’ll get sued.” That increasesthe cost of healthcare without benefitingpatients.

Q.What do you feel you learn from yourstudents?

A.The diversity of humanity. The phe-nomenal differences people can

have. It is really rich. Every studentteaches me something. Everybody teachesme something. I am very interested inhow different people view the same world— that’s what law taught me.



“The doctor has to help the patient make the decision. To do that,the doctor has to be skilled at decision-making and understandthe variations. That’s what law added for me, because Ideveloped an appreciation for wide-ranging points of view.”

—Dr. E. James Potchen

DR. E. JAMES POTCHENExperience: Michigan State University,College of Osteopathic Medicine, Anatomy,chairperson (1999-present); Michigan StateUniversity, College of Osteopathic Medicine,Radiology, chairperson (1975-present); JohnHopkins University, professor of radiology (1973-75); Washington University in St. Louis-School ofMedicine, professor of radiology (1970-73);Harvard Medical School, assistant professor (1965-70); Harvard Medical School, residency (1964);Harvard Medical School, fellowship (1966)

Professional Affiliations: AmericanCollege of Chest Physicians; American College ofLegal Medicine; American College of Physicians;American College of Radiology; American MedicalAssociation; American Physiological Society;American Society for Clinical Investigation;American Society for Neuroradiology; Associationof Program Directors in Radiology; Association ofUniversity Radiologists; Fleischner Society;Medical Group Management Association;Radiological Society of North America; Society ofChairman of Academic Radiology Departments;Society of Medical Decision Making; Society ofNuclear Medicine; Society of Thoracic Radiology;The Royal Society of Medicine Foundation; InghamCounty Medical Society; State Bar of Michigan

Practice Tips• Enhance others’ opportunities to increase

human capital and add value to others’ lives.

• Every person you encounter has somethingto teach you. Seek it.

• Invest every day in what will make the mostof the future.

• The only thing that matters is people.

• If you work hard at what you love, therevenue will follow.

Radiologist committed to strengthening the power to heal


Looking to a new vision of malpractice reform


ted in any state that has admissibility re-quirements similar to ours.”

Tucker explained that the defendant’sexpert was taking the notion that prena-tal infection may cause brain damage inchildren and turning it on its head by as-serting that, through the use of a test onlyhe uses, he could detect infection where noone else could and where there were noother clinical signs of infection, such asswelling or inflammation.

Nevertheless, Tucker noted that thiscase was important not only for the rejec-tion of the pathologist’s proposed testimo-ny, but for the process by which its ad-missibility was determined.

“In Michigan and elsewhere, all litiga-tion is becoming more and more expert de-pendent,” he stated. “As a consequence,there’s been greater focus in the last 10years on making sure that ex-pert testimony is reliable.”

Specifically, Tucker pointedto MRE 702, MCL 600.2955and the decisions in Gilbert v.DaimlerChrysler Corp. andCraig v. Oakwood Hospital asthe culmination of the Michi-gan courts’ growing concernthat expert testimony be reli-able.

To get to the issue of the re-liability, he explained it re-quires working through thefactors set forth in both MRE702 and MCL 600.2955.

“They really overlap,” Tuck-er noted. “If you satisfy all therequirements of § 2955, thenyou’re probably going to sat-isfy all the requirements of702. The best way to describethe relationship between thestatute and the rule is that §2955 is the guide, while 702 isthe test.”

Of all the § 2955 factors, heexplained that subsection (b) — which urgesconsideration of “whether the opinion andits basis have been subjected to peer reviewpublication” — is the one that gives lawyersthe hardest time because they tend to thinkthat if an article appears in a medical jour-nal, then the claims contained in the articlemust be true.

“As we learned here, that’s far from thetruth,” Tucker noted. “One of the reasonsthat articles show up in medical journalsis to alert scientists to new ideas and chal-lenge them to try and duplicate the au-thor’s results.”

Recalling that the significance of thedefense expert’s published articles hadbeen a contentious issue at the motionhearing, Tucker pointed out the evidenceshowed that the pathologist’s publishedideas were, indeed, so new that he was theonly person in the world who held them.

Finally, he advised that, if practitionerstake nothing else away from this case, thething they all must remember is thatsigning on with an expert just because hetells you what you want to hear could costyou not only the expense of a Craig hear-ing, but it could cost you your case as well.

“Go to good, reliable experts,” Tucker ex-claimed. “That’s the whole purpose ofCraig, Gilbert and MRE 702. Get rid of thejunk science and the junk experts.”

Lack of oxygenDuring plaintiff Crista Cornejo’s labor,

it was apparent from the fetal heart ratemonitor tapes that her fetus was not get-ting enough oxygen.

Nevertheless, defendants South HavenCommunity Hospital, Partners inWomen’s Health, P.C., Lori Kennedy,CNM, Kristin Kile, SNM, and ShorelineWomen’s Center failed to perform the cus-tomary procedures for improving the fe-tus’ oxygen intake, such as intrauterineresuscitation or scalp stimulation.

Moreover, rather than have the plaintiffdeliver by cesarean section, which mayhave avoided any further oxygen depriva-tion, the defendants allowed the plaintiffto proceed with a vaginal delivery.

After minor-plaintiff Cheyenne Mejia’sbirth in June 2000, she showed signs of se-vere depression and scored abnormally

low on her Apgar tests. It was later deter-mined that plaintiff Mejia had sufferedbrain damage due to a hypoxic-ischemicbrain injury during labor.

Plaintiff Cornejo sued the defendantsfor medical malpractice. All but defendantKile settled.

In her defense, the defendant proposedto introduce expert testimony from Dr.Gerard Nuovo, a pathologist with the OhioState University Medical Center whoclaimed he had used a test called “reversetranscriptase in situ polymerase chain re-action” or “direct RT in situ PCR” to detectthe presence of coxsackie virus in plaintiffCornejo’s 3-year-old placental tissue andthat it was the effects of the virus, not alack of oxygen during the birthing process,that caused plaintiff Mejia’s brain damage.

According to the defendant, Nuovowould contend the virus resulted in in-flammation that produced chemicalscalled cytokines, which then crossed theplacental and fetal blood-brain barriers,causing both damage to the fetus’ braincells and hypoxia due to constriction of thefetal blood supply.

Subsequently, the plaintiff moved to ex-clude Nuovo’s proposed testimony on relia-bility grounds, citing MRE 702, MCL600.2955 and the recent Michigan SupremeCourt decisions in Gilbert and Craig.

Admissibility challengedDuring the two-day motion hearing, tes-

timony was introduced that, other thanNuovo, no one had:• used the RT in situ PCR test to detect

coxsackie virus in the placenta;• reached the conclusion that coxsackie

virus detected by the test causes braindamage in newborns;

• replicated his test and its results; or • published articles in support of these

propositions.While Nuovo asserted his testing meth-

ods complied with all accreditation stan-dards and enjoyed an error rate near zero,the plaintiffs’ witnesses painted a differ-ent picture.

Dr. Harley Rotbart, a pediatric infectiousdisease expert who has studied and writ-ten about the coxsackie virus for more than20 years and who worked with the Nobel

Prize-winning team that de-veloped a PCR test for cox-sackie in 1987, explained thathigh false-positive rates hadbeen reported for Nuovo’s test.

According to Dr. KaryMullis, inventor of PCR and a1993 Nobel Prize winner, thefalse-positive error rate forNuovo’s test was so high that“the alleged results should notbe allowed in this proceeding.”

Moreover, Dr. RichardMiller, professor of obstetricsand gynecology, environmen-tal medicine, pathology andclinical laboratory medicine atUniversity of RochesterSchool of Medicine and Den-tistry, observed that no lab —including Nuovo’s own OhioState University MedicalCenter — used his test clini-cally or diagnostically.

Meanwhile, on the issue ofaccreditation standards, Dr.Ronald Lepoff, a pathologist

who is board certified in both anatomicand clinical pathology and head of the di-vision of clinical pathology and laboratorymedicine at the University of Colorado,testified that Nuovo was noncompliantwith both the federal government’s Clini-cal Laboratory Improvement Amend-ments and the standards of the College ofAmerican Pathologists.

Although Nuovo had been published in“Human Pathology,” its editor, Dr. FredGorstein, a board certified pathologist inboth anatomic and clinical pathology andchairman of laboratories at Thomas Jeffer-son University, explained that Nuovo’s pub-lication was not a voucher of his theory’s va-lidity but a call to readers to challenge it.

Finally, several of the plaintiffs’ wit-nesses had more detailed criticisms ofNuovo’s conclusions.

For example, Rotbart said the evidencein this case revealed no signs of inflam-mation or infection under which cytokineswould exist, while Miller claimed that hisown research had shown that, contrary toNuovo’s theory, viruses do not easily crossthe placenta.

Dr. Herman Friedman, a viral patholo-gist, professor and chairman of medicalmicrobiology and immunology at Univer-sity of Southern Florida, and author of abook on the coxsackie virus and methods

of detecting it, agreed.Friedman said it was unlikely that cox-

sackie would ever cause brain damage be-cause the placental and blood-brain bar-riers would most likely stop viralinfections that originated in the placentafrom reaching the fetus’ brain.

Unreliable expert testimonyJudge Buhl began his analysis by ex-

plaining the defendant’s compliance ornoncompliance with the factors set forthin MCL 600.2955 and MRE 702 woulddetermine the admissibility of Nuovo’stestimony.

Referring to § 2955(1)(a), the judgestated that neither Nuovo’s testimony northe plaintiffs’ experts’ testimony showedthat Nuovo’s opinions and basis had beenscientifically tested or replicated.

“This isn’t a test that is generally done,”Buhl noted. “None of the experts … testi-fied that they knew of anyone who did thisparticular extensive test.”

Moreover, because the “testimony es-tablished that the only publication on thishas been by the proposed witness him-self,” the judge said that § 2955(1)(b)’speer review factor had not been satisfied.

When addressing § 2955(1)(c)’s instruc-tion to consider the existence and mainte-nance of, as well as compliance with, gen-erally accepted standards governing theapplication and interpretation of the di-rect RT in situ PCR test, Buhl focused onothers’ inability to replicate Nuovo’s test-ing methods due to the large number offalse results.

Consequently, in light of the high errorrate, the judge determined that §2955(1)(d) was similarly unsatisfied, ex-plaining “it was the error rate or frequen-cy of error that caused others not to use it.”

Next, the judge asserted that, based onthe evidence at the hearing, Nuovo’s pro-posed testimony was neither generally ac-cepted within the relevant expert com-munity as required by § 2955(1)(e), norrelied upon by that community to reachthe same result as Nuovo, as required by§ 2955(1)(f).

Additionally, Buhl noted that Nuovo’stest did not satisfy § 2955(1)(g)’s call foropinions and methodology to be reliedupon by experts outside the context of lit-igation.

Finally, the judge addressed the issue ofNuovo’s proposed testimony regardingcausation.

“I do find that there’s a substantial leapbetween finding the presence of the cox-sackie virus and concluding that the pres-ence of that virus is the cause of the in-juries and damage suffered by the minorhere,” Buhl ruled.

Defense expert barred from testifying in birth-injury caseContinued from page 1

(Left to right): DANIELLE C. SCHOENY, NORMAN D. TUCKER,ANNE M. SCHOEPFLE and JAMES LEE TILSONExpert testimony must pass reliability test

“Go to good, reliable experts.That’s the whole purpose of Craig, Gilbert and MRE 702.Get rid of the junk science and the junk experts.”

— Southfield attorney Norman D. Tucker

Do lawyers make you sick? At Parmenter O’Toole, our health law team is centered

on the management of the interface between providers, payers and patients. We help medical professionals deal with the rapid shifts

in the health care market. To learn more, call the attorneys of Parmenter O’Toole. 231.722.5420 or log on to www.Parmenterlaw.com

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