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Recent Developments in Health Law

Published online by Cambridge University Press:  01 January 2021

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Journal of Law, Medicine & Ethics , Volume 32 , Issue 2 , Summer 2004 , pp. 369 - 376
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Copyright © American Society of Law, Medicine and Ethics 2004

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References

References

Sadler v. Dimensions Healthcare Corp., 836 A. 2d 655, 658 (Md. 2003).Google Scholar
Judge Raker’s decision held that the court may dismiss a physician’s breach of contract and tort claims arising out of a private hospital’s credentialing decision in a motion for summary judgment only upon a showing that there is no genuine dispute as to any material fact and that the hospital is entitled to judgment as a matter of law. Id; cf. Lester, B., “Physician Privileges: Judicial Treatment of the Discharged Physician,” Notre Dame Law Review 76, no. 5 (2001): 1498–1500 (discussing the emergence of judicial oversight of private hospitals from a standard of non-review to a standard of limited review after state legislatures required hospitals to adopt bylaws).Google Scholar
The Board of Directors at Prince George’s Health Center automatically places all physicians on a provisional status for two years but can extend a physician’s provisional status upon recommendation by the credentials committee of the hospital. See Sadler v. Dimensions Healthcare Corp., 787 A.2d 807, 809 n.4 (Md. Ct. Spec. App. 2001).Google Scholar
Courts are split over how to review hospital credentialing decisions. Some courts only look to the process of the decision for fairness, while others review the decision under an abuse of discretion, substantial evidence, or arbitrary and capricious standard. Sadler, 836 A.2d at 664 (citing Dalton, C. W., “Understanding Judicial Review of Hospital’s Physician Credentialing and Peer Review Decisions,” Temple Law Review 73, (2000): 676–677).Google Scholar
Sadler, 836 A.2d at 658.Google Scholar
Id. at 668 (citing Levin v. Sinai Hosp. of Baltimore, 46 A.2d 298, 301 (1946)) (stating that a private hospital is a private corporation even if it is “operated solely for the benefit of the public and not for profit.”).Google Scholar
Id. at 668.Google Scholar
Judge Raker noted that deferring to the decisions of a private hospital as a “quasi-public agency” would ignore “the image of the hospital as a private business governed solely by its internal procedures and beholden to nothing but its own business judgment.” Id. at 666 n.6.Google Scholar
Id. at 665–666; see also Lester, , supra note 2, at 1491–95 (discussing the emergence of contractual relationships between physicians and hospitals).Google Scholar
Sadler, , 836 A.2d at 665–666.Google Scholar
Id. at 668.Google Scholar
Id.Google Scholar
Id. at 670.Google Scholar
Id.Google Scholar
Id. at 671.Google Scholar
See generally Bralove, A., “Doctor’s Suit Against Hospital Revived,” The Daily Record, 2003 WL 69093867, (December 2, 2003).Google Scholar
Sadler, , 836 A.2d at 673.Google Scholar
HCQLA provides immunity for hospitals that comply with the requirements of the National Practitioner Data Bank by reporting incompetent physicians. Dalton, , supra note 4, at 614–15.Google Scholar
The applicable Maryland statute is the Peer Review Immunity Statute. See Md. Code Ann., Cts. & Jud. Proc. § 5–638 (1974 & 2003 Supp.). Judge Raker noted that federal and state immunity statutes would not apply in this case because the trial court’s grant of summary judgment was not based on immunity. Sadler, 836 A. 2d at 672 n.10 (noting that respondents did not argue immunity at the trial court, but could if the action were reinstated on remand).Google Scholar
Judge Raker noted that breach of contract and tort claims lie within the state and federal immunity statutes. Sadler, 836 A.2d at 672.Google Scholar
Judge Raker stated that this was mere “guidance” for the lower court, but noted that the language of the bylaws at issue did not conclusively establish a binding agreement not to pursue court action. Id., at 670 n.12.Google Scholar
See Bralove, , supra note 16 (noting the view that doctors have been given an extra layer of protection).Google Scholar
See Dalton, supra note 4, at 612–26.Google Scholar
Id. at 613.Google Scholar
See Bralove, , supra note 16.Google Scholar

References

Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003).Google Scholar
21 U.S.C. § 801 et seq. (2000).Google Scholar
Id. § 841(a)(1).Google Scholar
Id. § 844(a).Google Scholar
Cal. Health and Safety Code § 11362.5 (West 2001)Google Scholar
Id. at §11362.5(b)(1)(B).Google Scholar
U.S. Const, art. I, § 8, cl. 3.Google Scholar
See United States v. Bramble, 103 F.3d 1475 (9th Cir. 1996); United States v. Tisor, 96 F.3d 370 (9th Cir. 1996); United States v. Visman, 919 F.2d (9th Cir. 1990); United States v. Rodriquez-Camacho, 468 F.2d 1220 (9th Cir. 1972).Google Scholar
Raich, 352 F.3d at 1228.Google Scholar
See United States v. Morrison, 529 U.S. 598, 610–612 (2000).Google Scholar
Raich, , 352 F.3d at 1229.Google Scholar
Id. at 1231.Google Scholar
Id.Google Scholar
Id. at 1232.Google Scholar
Id.Google Scholar
Id. at 1233.Google Scholar
Id.Google Scholar
Id. at 1234.Google Scholar
Kreit, A., “The Future of Medical Marijuana, Should the States Grow Their Own”, University of Pennsylvania Law Review, 151 (2003): 1788.CrossRefGoogle Scholar
Walters v. Conant, 124 S. Ct. 387 (2003).Google Scholar

References

Frew v. Hawkins, 124 S. Ct. 899 (2004).Google Scholar
Id.Google Scholar
Id. at 902–903.Google Scholar
Id. at 904.Google Scholar
Id.Google Scholar
Id. at 904–05.Google Scholar
Id. at 905.Google Scholar
Id.Google Scholar
Id. at 905–06.Google Scholar
Id. at 906.Google Scholar
National Health Law Program, Decision in Frew v. Hawkins: Supreme Court Holds that Consent Decree in Medicaid Case Can Be Enforced, at <http://www.healthlaw.org/pubs/200401.frew.html> (last visited February 3, 2004).+(last+visited+February+3,+2004).>Google Scholar
Id.Google Scholar
“Legal Issues; Supreme Court Ruling Affects 1.5 Million Texas children,” Health & Medicine Week, February 2, 2004, available at 2004 WL 65361237.Google Scholar
Id.Google Scholar
Id.Google Scholar
Gearan, A., “Justices’ Ruling Holds States to Consent Decrees: Once They Promise to Improve Conditions, the Court Said, They Have to Do So or Be Forced to,”The Philadelphia Inquirer, January 15, 2004, at A10, available at 2004 WL 56295992.Google Scholar

References

Raytheon Co. v. Hernandez, 124 S.Ct. 513, 516 (2003).Google Scholar
Id.Google Scholar
Id.Google Scholar
Id.Google Scholar
Id. at 517. The ADA defines “disability” as: “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2) (2000).Google Scholar
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).Google Scholar
Id. By contrast, in assessing disparate impact claims, “a facially neutral employment practice may be deemed [illegally discriminatory] without evidence of the employer’s subjective intent to discriminate.” Raytheon Co., 124 S.Ct. at 519 (quoting Wards Cove Packing Co. v. Antonio, 490 U.S. 642, 645–646 (1989)).Google Scholar
8.In particular, the Court of Appeals found that “Maintaining a blanket policy against rehire of all former employees who violated company rules not only screens out persons with a record of addiction who have been successfully rehabilitated, but may well result… in the staff member who makes the employment decision remaining unaware of the ‘disability’ and thus of the fact that she is committing an unlawful act.” Hernandez v. Hughes Missile Sys., 298 F.3d 1030, 1036–1037 (9th Cir. 2002).Google Scholar
Raytheon Co., 124 S.Ct. at 519.Google Scholar
Id.Google Scholar
See Johnson Institute, The Fight Against Workplace Discrimination Even More Important In Wake Of Supreme Court Decision In Raytheon v. Hernandez, at <http://www.johnsoninstitute.com/news/index.php?NewsID=11> (last visited February 19, 2004); National Council on Disability, National Council on Disability Says Partial Victory in Supreme Court’s Hernandez v. Raytheon Decision, at <http://www.ncd.gov/newsroom/news/03news.html> (last visited February 19, 2004).+(last+visited+February+19,+2004);+National+Council+on+Disability,+National+Council+on+Disability+Says+Partial+Victory+in+Supreme+Court’s+Hernandez+v.+Raytheon+Decision,+at++(last+visited+February+19,+2004).>Google Scholar
Motley, J. E., Year-End/New Year Roundup of Recent Developments: The Supreme Court Affirms Employer’s No-Rehire Policy in ADA Drug Case, at <http://www.bccb.com/Publications/Publications.aspx> (last visited February 19, 2004).+(last+visited+February+19,+2004).>Google Scholar

References

In re Qawi, 81 P.3d 224, 227–228 (Cal. 2004).CrossRefGoogle Scholar
Id. at 236.Google Scholar
The Mentally Disordered Offender Act (MDO Act) (Cal. Pen. Code, §2960 et seq. (West 2001)) requires that offenders who have been convicted of violent crimes related to their mental disorders, and who continue to pose a danger to society, receive mental health treatment during and after the termination of their parole until their mental disorder can be kept in remission. In re Qawi, 81 P.3d at 227.Google Scholar
In re Qawi, 81 P.3d at 229.Google Scholar
Cal. Welf. & Inst. Code §5000 et seq (West 2001). The LPS Act is the primary statutory scheme for civilly committing mentally ill individuals, and Article 7 grants certain rights (non-exclusively), including the right to refuse medication.Google Scholar
In re Qawi, 81 P.3d at 230.Google Scholar
Id.Google Scholar
Id.Google Scholar
Id. at 236.Google Scholar
Id.Google Scholar
Id. at 230.Google Scholar
In this interest, commonly referred to as parens patriae, the state is regarded as a sovereign and a provider of protection to those unable to care for themselves. Black’s Law Dictionary (2d Pocket ed. 2001): at 511.Google Scholar
In re Qawi, 81 P.3d at 232.Google Scholar
See Cal. Welf. & Inst. Code §5000 et seq.; Cal. Pen. Code, §2960 et seq.; Riese v. St. Mary’s Hosp. and Med. Ctr., 209 Cal. App. 3d 1303 (1987).Google Scholar
Washington v. Harper, 494 U.S. 210, 227 (1990).Google Scholar
Id. at 213–214.Google Scholar
Id. at 217.Google Scholar
Id. at 217.Google Scholar
U.S. v. Williams, No. 02–30209, 2004 WL 112639, at *8 (9th Cir. Jan. 26, 2004).Google Scholar
Id. at *1.Google Scholar
Id. at *2–3Google Scholar
Id. at *6–8.Google Scholar