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I.PROFESSIONAL LIABILITY ISSUES
Licensed Doctors in Their Residencies Held to the Same Standard of Care as Physicians.
In Clark v. University Hospital – UMDNJ, 2006 WL 3299198 (N.J. Super. Nov. 15, 2006), an unpublished opinion, Plaintiff decedent, William Clark, sustained serious injuries in an automobile accident and came under the care of defendants Dr. Raquel Forsythe and Dr. Thomas Chiodo, who were residents at defendant University Hospital-University of Medicine and Dentistry of New Jersey. According to plaintiff's expert, the doctors failed to properly drain the gastric contents from William Clark's stomach causing him to choke to death on his own vomit during a period of at least four minutes. Defendant doctors and the hospital appealed from an adverse jury verdict.
Plaintiffs tried the case on the theory that two residents were negligent and caused William Clark's death. Plaintiffs claimed Dr. Chiodo, an oral and maxillofacial surgical resident, deviated from the applicable standard of care by not replacing the tube in proper position after Mr. Clark had pulled out a previously properly placed tube. Plaintiffs also claimed Dr. Forsythe, a surgical resident, deviated from the standard of care by failing to examine Mr. Clark and by failing to direct Dr. Chiodo to replace the tube after the patient had pulled the tube out once again.
The trial court rejected a charge that would have limited the care expected of defendants to residents in the defendants' respective specialties.
Defendants asserted on appeal that “a resident who is still in training, who must practice under the supervision of an attending physician and who may not even be licensed to practice medicine must be judged by the standard particular to that resident at that particular point in his or her training.”
In this case, Dr. Forsythe was in her fourth year as a resident, and had also completed an additional year of research after her successful completion of medical school. Acting as the chief resident, she referred to herself as a “doctor” and held herself out as “able to diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical condition.” Dr. Chiodo had graduated from dental school, completed a one-year general medical practice residency, completed a one-year surgical internship and was in his second year of his four-year surgical residency. He had also completed five months of general anesthesia training before he treated Mr. Clark, where he “essentially •••function[ed] as [an] anesthesiologist,” at the hospital, where he administered drugs to put patients to sleep and inserted breathing tubes.
Citing, N.J.S.A. 45:9-1 to 19-3 and N.J.A.C. 13:35-1 to - 2.13 (physicians) and 13:35-4.1 to - 4A.18 (surgeons), the Court held “[t]here is no support in New Jersey for defendants' argument [to reduce the standard of care for residents]. Indeed, reducing the standard of care for licensed doctors in their residencies because of the limited nature of their training would set a problematic precedent. . . . . Defendants held themselves out as doctors and should be held to the standard of care they claimed to profess. Anything less would not comport with the care William Clark expected and was entitled to receive.”
II. EMPLOYMENT LAW ISSUES
The Third Circuit Court of Appeals Further Explains Law on Retaliation Claims Under Title VII in Light of Burlington Northern Retaliation Standard.
In Moore v. City of Philadelphia, 461 F.3d 331 (3d Cir. Pa. 09/13/06), Caucasian former police officers claimed that their supervisors violated their right under Title VII to be free from retaliation for opposing racial discrimination in the workplace. The District Court granted summary judgment in favor of their employer and appeal was taken.
The Court of Appeals held, inter alia, that genuine issues of material fact existed as to whether the supervisors retaliated against the police officers for their opposition to discriminatory comments made by the supervisor regarding African-American officers, precluding summary judgment for supervisor in officers' Title VII retaliation claim.
In the decisions, the Court of Appeals analyzed the requirements to establish a prima facie case of retaliation under Title VII. To establish a prima facie case a plaintiff must tender evidence that: “(1) he engaged in activity protected by Title VII; (2) the employer took an adverse employment action against him; and (3) there was a causal connection between his participation in the protected activity and the adverse employment action”.
The Court of Appeals specifically examined the second element of the prima facie case in conjunction with the recent Supreme Court decision in Burlington N. & Santa Fe Ry. Co. v. White, ---U.S. ----, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), which clarified what plaintiffs must show to make out retaliation claims under Title VII:
In Burlington Northern, decided after the District Court's opinion in this case, the Supreme Court found that the discrimination and retaliation provisions of Title VII have different statutory language and different purposes, and accordingly, “that the anti-retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment.” Id. at 2412-13. Because the discrimination and retaliation provisions “are not coterminous,” the Court concluded that “[t]he scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm.” Id. at 2414. Consistent with this view, the Court held that a plaintiff claiming retaliation under Title VII must show that a reasonable employee would have found the alleged retaliatory actions “materially adverse” in that they “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. at 2415.
Based on the Court’s analysis, the Court reversed the District Court's grant of summary judgment concluding that the plaintiffs have raised genuine issues of material fact about whether the defendants have violated Title VII's anti-retaliation provisions. The Court provided:
Contrary to the conclusion of the District Court, under this governing law, the fact that the plaintiffs are white is not a “threshold problem” for their retaliation claims. While white workers may be unable to successfully complain under the antidiscrimination provision of Title VII solely because they are required to work in an environment hostile to blacks, if they became the victims of “materially adverse actions” because they reasonably perceived that environment as violative of Title VII and objected, they have a valid retaliation claim. See 42 U.S.C. § 2000e-3(a) (making it unlawful to discriminate against an employee who “has opposed any practice made an unlawful employment practice by this subchapter” or “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter”). See also Burlington N. & Santa Fe Ry. Co., 126 S.Ct. at 2412. (“The substantive [anti-discrimination] provision seeks to prevent injury to individuals based on who they are, i.e., their status. The anti-retaliation provision seeks to prevent harm to individuals based on what they do, i.e., their conduct.”). That is precisely what these plaintiffs claim here. Title VII's whistle-blower protection is not limited to those who blow the whistle on their own mistreatment or on the mistreatment of their own…. protected class.
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