CLEAR

California: teaching credential necessary for home schooling

Ruling that a teaching credential is necessary in order to home school children, the 2nd District Court of Appeal says that courts have upheld the position that parents do not have a constitutional right to educate their children. An estimated 166,000 children are currently home schooled in California. Governor Arnold Schwarzenegger quickly issued a statement saying "This outrageous ruling must be overturned by the courts and if the courts don't protect parents' rights then, as elected officials, we will." Read more from The Mercury News.

Virginia: no immunity for foundation physicians

Denying pleas for charitable immunity, the Virginia Supreme Court has ruled that malpractice cases against physicians employed by a health services foundation should proceed. The Virginian Pilot reports an appellate lawyer's suggestion that a different ruling could have ended medical malpractice litigation in Virginia, allowing professionals to escape liability by working for nominal non-profit groups.

Texas: recused judge can perform administrative task

A judge who voluntarily recused from a legal malpractice case is not precluded from assigning another judge to the case. Read opinion 06-0055.

New York: medical board has absolute judicial immunity

The plaintiff appealed a case in which she alleged race discrimination and deprivation of property in the form of her medical license without due process. District court had dismissed the case on the grounds of absolute judicial immunity, statute of limitations and failure to state a claim. The Court of Appeals affirmed the district court's finding, writing "Absolute judicial immunity attaches to a state medical review board's disciplinary proceeding where, as here, the individual charged has the right to be represented by counsel, to present evidence and to cross-examine witnesses, and where the board articulates its findings and conclusions in a binding order under a preponderance of the evidence standard." U.S. 2nd Circuit Court of Appeals: Applewhite v. Briber, Case Number: 06-1923-cv

Illinois: medical license necessary for court health report

The plaintiff appealed a trial court's dismisal with prejudice of his malpractice suit. He said that the court erred by ordering him to reveal his health care professional report author's identity. Once identity was disclosed, it was determined that in 1990 the author lost his Illinois license to practice medicine and in 1999 had allowed his New Mexico license to lapse. Fourth District Appellate Court of Illinois affirmed the earlier decision because the health report required under the Code of Civil Procedure was not written by a person licensed to practice medicine.  Read Crull v. Sriratana (Case Number 4060952).

Nevada: state employee not immune from malpractice suit

A physician argued that, as a employee of a state medical school, he could not be sued for malpractice. The Nevada Supreme court said that the physician is not entitled to immunity based on his status as a state employee, but he is entitled to a $50,000 statutory cap on damages. Read more. Read the opinion: Martinez v. Maruszczak.  In an aside, the Nevada Supreme Court now makes available podcasts of oral arguments heard before the court.

California: licensing surgical clinics

The Department of Health Services decided that a doctor-owned surgical clinic in which non-owner doctors operate needed a license from the department. Citing statutory ambiguity, the owner sued for relief from the department's demand. An interpretation by the California 3rd appellate district court is that physician-owned surgical clinics employing general anesthesia are exempt from licensure by the department and are subject to oversight by the medical board. Capen v. Shewry, case number C047172.

Alaska: conduct code challenge dismissed

The Court of Appeals for the 9th Circuit Court found no support for plaintiff's allegation that the Alaska Code of Judicial Conduct has a "chilling effect" on the ability of state court judges to exercise free speech during campaigns. The Alaska Right to Life Political Action Committee (PAC) sued specific members of the Alaska Commission on Judicial Conduct and the Alaska Bar Association, although there was no evidence of intent to discipline candidate judges. The opinion says district court should not have heard the case, especially since the Alaska Supreme Court, which has authority over the state's judicial code, has not commented. On the other hand, the court pointed out that the PAC has time prior to the 2008 judicial election to develop a factual record that merits state or federal review. Read more.    The ninth circuit court: see case numbers case numbers 05-35902; 05-36027

North Carolina: medical board oversteps authority

A superior court judge has ruled that the state medical board cannot discipline doctors who participate in legal executions. The medical board contended that a doctor who participates in an execution violates professional ethics and is subject to discipline. The court says the board does not have the authority to effect discipline for this reason. Read more.

Washington: feeding assistance not nursing care

The US 9th Circuit Court of Appeals has ruled that the use of paid feeding assistants to feed nursing home residents without complicated feeding problems does not violate the intent of the federal Nursing Home Reform Law. Feeding assistants must complete a state-approved training course of at least eight hours and work under the supervision of registered or licensed practical nurses. Read Case Number: 05-36065.