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MONTANA MEDICAL EXAMINERS EXCULPATED

By Greg Piche'

In Nelson v. State of Montana, No. 05-694, the Montana Supreme Court fractured over the liability of the Montana Board of Medical Examiners for negligent licensing of Dr. Thomas Stephenson, but the majority excused the board from culpability. In November of 1999, Dr. Stephenson conducted a routine physical examination of Emil J.(Jack) Nelson. He noted that Jack possibly had an abdominal aneurysm. He stated in the chart that Jack would return the following week for an X-ray. Jack?s aneurysm ruptured several days later and Jack died. Mrs. Nelson brought this claim against the Board of Medical Examiners for negligent licensing of Dr. Stephenson. Dr. Stephenson had some problems. As described in dissent by Justice Nelson (presumably no relation to Jack),

"This doctor?s track record includes license revocation and suspension, practice restrictions, probation, discipline for unprofessional conduct, false advertising, fraudulent insurance claims, repeated negligence in treating patients, gross negligence in treating patients, numerous malpractice suits, dishonesty and corruption in treating patients, conduct warranting the denial of his license, signing medical documents containing false facts, improperly subscribing and maintaining medical records, bankruptcy, alcohol abuse, and Demerol addiction."

The trial court dismissed the Nelson claim on the basis that the Board?s licensing decision was a ?quasi-judicial act? resulting in common law immunity. Several of the judges on the Supreme Court agreed. "In my opinion, the Court has substituted its judgment for that of a specialized board composed of individuals best qualified to decide who should be licensed to practice medicine and under what conditions. The decision to refrain from licensing and then to allow it on a temporary restricted basis was certainly not just a ministerial act, but was an exercise of the Board?s discretion which should entitle it to quasi-judicial immunity."

The prevailing plurality of the court found that the licensing activity was ministerial and not quasi-judicial, but determined liability should not attach anyway because of the State?s public duty doctrine. The public duty doctrine has been ejected in a number of states, but is alive and well in Montana. It essentially holds that statutes that purport to protect the public at large and not special groups do not give rise to liability. Exceptions also include circumstances where a government agent specific action to protect persons or property or governmental action reasonably induces detrimental reliance by a member of the public or when a governmental agency has actual custody of a plaintiff or of a third person who harms the plaintiff. Judge Nelson in his dissent argues that the essence of the argument is that since medical licensing statutes protect everybody, they protect nobody.

"We can tell her (Mrs. Nelson) that there is absolutely no evidence supporting this paranoia. No doubt she will conclude that use of the public duty doctrine is motivated by the government?s self-serving need to exonerate its own negligence and misfeasance. And she will be right. It is."

So it goes.

Full post as published by Healthcare Law Blog on November 18, 2008 (boomark / email).