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Behar v. Pennsylvania Department of Transportation, 791 F.Supp.2d 383 (M.D. Pa. 2011)

Also under Patient privacy

Outcome:    Very unfavorable


The issue in this case was whether Pennsylvania laws that require physicians to report impaired patients to the Department of Transportation (DOT) conflict with various provisions of the United States and Pennsylvania Constitutions and with federal laws and are therefore invalid.

AMA interest

The AMA believes that the reporting of impaired patients to departments of transportation should be a matter of professional judgment, undertaken after discussion between physicians and their patients.

Case summary

The statutes and regulations of the Pennsylvania Department of Transportation require physicians to report certain physical and mental impairments of their patients to the DOT.  This obligation extends to patients over the age of 16 (and even some patients under the age of 16), even if they do not have and have no intention of applying for a driver's license.  In this lawsuit, David Behar, MD contended that those laws conflict with various provisions of the United States and Pennsylvania Constitutions and with federal statutes and are therefore invalid.

Pursuant to a DOT motion, the trial court dismissed most of the counts in Dr. Behar's complaint.  It held that several claims are barred under the Eleventh Amendment to the United States Constitution (which prohibits lawsuits being brought in federal court against a state by citizens of another state or citizens of a foreign country), as well as various other considerations, some substantive and some technical. One of the counts survived the DOT motion, but the court ultimately entered summary judgment against Dr. Behar on that count.

Litigation Center involvement

The Litigation Center and the Pennsylvania Medical Society (PMS) filed an amicus brief to support Dr. Behar. 

District Court brief.

City of Charleston v. Ferguson, 532 U.S. 67 (2001)

Also under Ethics and  Patient privacy

Outcome:     Very favorable


The issue in this case was whether mandatory drug testing of pregnant women seeking obstetrical care at a state funded hospital was permissible on constitutional and statutory grounds.

AMA interest
The AMA supports protection of patient privacy.

Case summary
This case challenged a policy fashioned largely by Charleston, South Carolina law enforcement officials whereby pregnant women who sought obstetrical care at the Medical University of South Carolina ("MUSC) were subjected to warrantless and non-consensual drug testing designed and used to facilitate arrest and prosecution of mothers who tested positive for cocaine. MUSC was a state-funded hospital and the only medical facility in the Charleston area to treat indigent and Medicaid patients, a majority of whom were African-American. When the policy was implemented drug treatment was unavailable for pregnant women. Mothers and expectant mothers who tested positive at the hospital were simply jailed. The drug testing policy was not used in any of the other Charleston area hospitals.

Ten women, including nine women who had been arrested for testing positive for illegal substances, challenged the policy on various constitutional and statutory grounds. In upholding the policy, a divided panel of the Fourth Circuit Court of Appeals held that, because urine drug screens may serve a medical purpose, there was no need for a warrant or consent, even though the testing had been done to further law enforcement objectives.

The Supreme Court reversed and remanded, holding that the Fourth Amendment to the U.S. Constitution’s general prohibition against nonconsensual, warrantless and suspicionless searches necessarily applied to the policy.

Litigation Center involvement
The AMA filed an amicus brief in the U.S. Supreme Court, arguing that the policy mandating drug testing of pregnant women violated the patients’ expectations of privacy when they consulted with their physicians, discouraged drug-abusing women from seeking prenatal care, and was generally ineffective in preventing drug abuse.

United States Supreme Court brief.

Medical Mutual of Ohio v. Schlotterer, 909 N.E.2d 1327 (Ohio 2009)

Also under Patient privacy

Outcome:     Very unfavorable

The issue in this case was whether a physician could be required to disclose confidential patient-physician communications in response to a health insurance company’s discovery requests in litigation.

AMA interest
The AMA believes that, absent patient consent, patient-physician communications should be kept confidential.

Case summary

Medical Mutual of Ohio (Med Mutual), a managed care organization, sued William Schlotterer, DO for fraud and breach of contract, alleging that he persistently upcoded his claims to Med Mutual for medical services to patients.  Med Mutual asked Dr. Schlotterer to produce his patients' medical records so that it could substantiate its claims.  Dr. Schlotterer refused, and Med Mutual moved to compel production.  Med Mutual proferred a protective order, under which Dr. Schlotterer would have to waive his patients' right to confidentiality. The trial court granted the motion, and Dr. Schlotterer appealed to the Ohio Court of Appeals.

The Court of Appeals found that Ohio law prohibits physicians from testifying about their communications with patients absent exceptional circumstances (none of which were present in the case), that Med Mutual's pecuniary interests did not outweigh the patients' privacy interests and that the requested discovery was overly broad. Additionally, the appellate court found that Med Mutual was required at least to attempt to obtain releases of the information sought directly from the patients. Consequently, the Court of Appeals reversed the trial court order requiring production of the patient records. Med Mutual appealed to the Ohio Supreme Court.

The Ohio Supreme Court, in a split decision, reversed the Court of Appeals and ordered the discovery.  It noted that the patients had consented to the release of otherwise privileged information when they signed an application for insurance, enrolled in a plan, or presented the insurance company's identification card to a physician at the time of service.  This consent was broad enough to cover the present fraud investigation.

Litigation Center involvement
The Litigation Center has joined the Ohio State Medical Association in an amicus curiae brief in the Ohio Supreme Court supporting the need for patient-physician confidentiality.

Ohio Supreme Court brief

Owatonna Health Clinic Mayo Health System v. Medical Protective Company of Fort Wayne, Indiana

639 F.3d 806 (8th Cir. 2011)

Also under Insurance (Liability) Coverage

Outcome:    Very favorable


The issue in this case was whether a notice of claim under a “claims made” medical liability insurance policy had to comply strictly with the policy’s notice requirements or whether substantial compliance would be sufficient.

AMA interest

The AMA believes that, absent patient consent, information between a physician and a patient should be kept confidential.

Case summary

Owatonna Clinic, a division of May Health System, owned a “claims made” medical malpractice insurance policy, issued by The Medical Protective Company of Fort Wayne, Indiana.  The policy defined a “claim filed” as

"the receipt, by [the insurer] during the term of the policy, of written notice of a medical incident from which [the insured] reasonably believes allegations of liability may result.  In order to be deemed a claim, notice of a medical incident shall include all reasonably obtainable information with respect to the time, place, and circumstances of the professional services from which liability may result and the nature and extent of the injury, including the names and addresses of the injured and of available witnesses."

The policy coveredthe clinic and its physician employees.

The Minnesota Board of Medical Practice notified Owatonna Clinic that one of its employees may have provided substandard care to a woman immediately prior to and then during childbirth.  Owatonna Clinic promptly forwarded the notice to the insurer and advised the insurer that a malpractice claim might arise.  The insurer retained an attorney to represent the employee physician before the medical board.

Several years later, the infant child sued the employee physician and Owatonna Clinic in Minnesota state court, alleging medical malpractice claims arising from the incidents surrounding the child’s birth.  Owatonna Clinic notified the insurer, which accepted coverage for the employee physician but not for Owatonna Clinic.  Following pretrial discovery, the employee physician and Owatonna Clinic settled the lawsuit for $4.25 million.  Of this sum, Owatonna Clinic paid $3.25 million, and the insurer, on behalf of the physician employee, paid the remaining $1 million.

Owatonna Clinic then sued the insurer in the United States District Court for the District of Minnesota, claiming that the insurer had breached its policy by denying coverage to Owatonna Clinic in the lawsuit.  The insurer asserted that the notice of claim given in connection with the medical board action, although timely, had had not met all of the policy requirements.  The notice had identified the time, place and circumstances of the employee physician’s services, and it had identified the likelihood that the employee physician had deviated from the standard of care and that the infant had been born with persistent respiratory distress and a diaphragmatic hernia.  However, the notice had not specifically identified the child or the mother, the potential witnesses, or the full nature and extent of the child’s injuries.

Following a jury trial, the lower court found that the notice of claim had been substantially adequate, although it had not strictly followed all of the policy requirements.  The insurer could have asked for the additional information when it received the notice, but it had not.  The court entered judgment in favor of Owatonna Clinic and ordered the insurer to pay the full amount of the policy, $2 million, plus interest and attorneys fees for both the medical malpractice lawsuit and the breach of insurance policy lawsuit.  The insurer appealed to the United States Court of Appeals for the Eighth Circuit.

On May 11, 2011, the Eighth Circuit affirmed the trial court, thus ruling in favor of Owatonna Clinic and against the insurer.

Litigation Center involvement

The Litigation Center, along with the Minnesota Medical Association, filed an amicus curiae brief in the Eighth Circuit in support of Owatonna Clinic.

Eighth Circuit brief

Volk v. DeMeerleer (Wash. S.Ct.)

Also under Abusive litigation against physicians


The issue in this case is whether a psychiatrist can be found liable for his patient’s murder of the patient’s former girlfriend and her family when the patient expressed homicidal thoughts to the psychiatrist but did not identify the former girlfriend as a target.

AMA interest

The AMA supports state medical societies in combating lawsuit abuse.  Also, with only narrow exceptions, communications between patients and physicians should be confidential.

Case summary

Jan DeMeerleer first met with Howard Ashby, MD, a psychiatrist in 2001.  Mr. DeMeerleer tried to commit suicide and he expressed suicidal thoughts during his initial meeting with Dr. Ashby.  Dr. Ashby diagnosed Mr. DeMeerleer as being bipolar and prescribed Depakote, a mood stabilizing drug.

For the next several years, Mr. DeMeerleer would meet with Dr. Ashby on an intermittent basis.  Dr. Ashby continued to prescribe Depakote, as well as other psychotropic medicines.  When Mr. DeMeerleer was compliant with his medicine regimens, he was able to form social relationships and secure employment.  However, when Mr. DeMeerleer would refuse to take his medications, which was frequent, he would lose his job and express suicidal and homicidal thoughts.  Mr. DeMeerleer told Dr. Ashby that he was thinking of killing his ex-wife and her boyfriend.  He also told Dr. Ashby that his girlfriend had ended their relationship in part because he had slapped the girlfriend’s autistic son.  This made Mr. DeMeerleer despondent.  He never told Dr. Ashby that he intended to harm his now ex-girlfriend.

In 2010, DeMeerleer entered the home of his ex-girlfriend and one of her sons.  He unsuccessfully tried to kill his ex-girlfriend’s two other sons.  He then killed himself.  Post-mortem toxicology reports on Mr. DeMeerleer showed that he had not been taking his medications at the time of the incident.

Beverly Volk, guardian of the surviving sons and the representative of the estates of the ex-girlfriend and deceased son sued DeMeerleer’s estate for wrongful death and related actions.  Ms. Volk also sued Dr. Ashby and the medical clinic where he worked for professional malpractice.  Dr. Ashby moved for summary judgment arguing that he had no professional duty to the ex-girlfriend or her children.

In opposition to the motion for summary judgment, Ms. Volk filed a declaration from a board certified psychiatrist and professor at the State University of New York.  The expert opined that Dr. Ashby was negligent because he “failed to conduct a systematic and focused assessment of Mr. DeMeerleer’s condition or prepare a treatment plan with periodic follow-up care.”

The trial court entered summary judgment on behalf of Dr. Ashby and the medical clinic concluding that Dr. Ashby did not owe a professional duty to the ex-girlfriend or her children.  Volk appealed to the Washington State Court of Appeals.

The Washington State Court of Appeals reversed by a split decision.  The court interpreted the rulings of the Washington Supreme Court Dr. Ashby did owe a duty to the ex-girlfriend and her children.  It reversed, in part, the summary judgement that had been entered in favor of Dr. Ashby and the medical clinic.

Dr. Ashby and the medical clinic appealed to the Washington Supreme Court.  Oral argument is scheduled for November 17, 2015.

Litigation Center involvement

The Litigation Center, along with the Washington State Medical Association filed an amicus brief in support of the psychiatrist and to oppose creation of a professional duty of care to persons other than the physician’s patients.

Washington Supreme Court brief