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May 2016

Practitioners Beware: Loose Lips Should Be Zipped!

FBMJ-Healthcare-Alert

A split panel of the Michigan Court of Appeals held that improper disclosure of a diagnosis to the patient’s wife constituted ordinary negligence. (William Brandon v. Denise L. Handelsman, D.O. 2/23/16-Unpublished) While unpublished decisions are only binding on the case in which it was decided and have no precedential value in other cases, the majority opinion is noteworthy as it provides some insight into how at least one panel has viewed the distinction between ordinary and professional negligence in the medical field.

As with most cases, the factual twists weigh heavily in the commencement of the suit and the court’s decision. Here, plaintiff William Brandon was a patient of defendant psychiatrist, Denise Handelsman, D.O. for several years, seeking treatment for depression and anxiety. Defendant also treated the plaintiff’s then-wife, but only to manage her medications. When Brandon’s wife asked for a book recommendation to better understand her husband, Dr. Handelsman recommended a book about persons with Borderline Personality Disorder (BPD). Brandon’s wife later testified Dr. Handelsman told her that her husband suffered from BPD. In addition, Brandon himself first learned of the BPD diagnosis from his wife, something Dr. Handelsman had chosen not to share with him at the time.

Consequently, Brandon brought suit and alleged Dr. Handelsman had improperly disclosed the BPD diagnosis to his wife, in an ordinary negligence action as well as claiming intentional torts. The trial court held that all of Brandon’s claims sounded in medical malpractice and were thus barred by the shorter, two-year statute of limitations applicable to medical malpractice actions. Brandon appealed, arguing that he was not alleging medical malpractice but rather ordinary negligence.

The Court of Appeals began by noting the analysis from Bryant v. Oakpointe Villa Nursing Ctr, Inc., which identified medical malpractice claims as being those that arise in the course of a professional relationship and raise questions involving medical judgment. Applying this law, the Court of Appeals held that none of Brandon’s claims sounded in medical malpractice. First, Dr. Handelsman admitted that her disclosure of Brandon’s diagnosis was not part of his treatment, meaning no medical judgment was exercised in his care and was therefore not involved in her discussion with Brandon’s wife. Second, the disclosure was a violation of state law and as such is “conduct within the realm of common knowledge and experience” of a lay jury. Thus, the claims sounded in ordinary negligence and potentially an intentional tort, if Dr. Handelsman did “openly disclose” the diagnosis to the patient’s wife.

In the dissenting opinion, Judge O’Connell believed the case raised questions of “medical judgment beyond the realm of common knowledge and experience.” In particular, an expert witness was needed to determine whether Dr. Handelsman’s decision to recommend a book to Brandon’s wife constituted an exercise of such judgment, and whether Dr. Handelsman handled it appropriately. Expert testimony would also be needed to make a determination as to Brandon’s repeated claims that Dr. Handelsman’s conduct was “unprofessional.” Judge O’Connell noted that whether a doctor’s conduct was professionally reasonable was not within the realm of common experience for any juror and therefore expert support would be needed.

The Court of Appeals also evaluated Dr. Handelsman’s anticipated argument that Brandon waived confidentiality by listing his wife on a waiver form indicating that the doctor could share his medical information with her. However, plaintiff never signed the form, “making it (the waiver) invalid for that reason alone.” Nor had Dr. Handelsman disclosed the diagnosis to the plaintiff’s wife because he was unavailable, which was the situation contemplated by the waiver form.

This decision, while unpublished, allowed plaintiff more time to sue his doctor as ordinary negligence claims are subject to a 3-year statute of limitations as opposed to the 2-year statute. Moreover, the plaintiff would not need expert testimony from a licensed professional to support the claim, or to comply with other statutory requirements to bring a medical malpractice lawsuit. Further, Dr. Handelsman would not have the benefit of the statutory cap limiting non-economic damage available to her at trial.

Michigan practitioners should be reminded that simply because a decision or action arises in the context of a relationship with a patient, it does not make it subject to the statutory protections allowed for medical professionals. There is scrutiny by the courts concerning the exercise of medical judgment in the care and treatment at issue.

Lastly, if you choose to have waiver forms offered to patients, you should have a practice in place to be certain they are routinely reviewed and executed, so that you can rely upon them.

Please contact Carole Empey or Dan Cortez at 734-742-1800 for additional information or for assistance in complying with confidentiality requirements.