This issue’s “Perspectives” is a news article that was first published in the October 23, 2008, issue of the WSMA Bulletin. It is reproduced here in its entirety.
The Washington State Supreme Court has accepted review of two cases that the WSMA is engaged in on behalf of our members. The Court is expected to hear both sometime in early 2009.
Columbia Physical Therapy, Inc., P.S. v. Benton Franklin Orthopedic Associates, P.L.L.C. — Benton Franklin Orthopedics (the defendant) is a physician-owned professional limited liability company in Kennewick, which, in addition to its orthopedic practice, employs several physical therapists. Columbia (the plaintiff) is a professional services corporation owned by physical therapists that also employs physical therapists through several offices, including one in Kennewick.
Columbia alleges in its complaint against Benton Franklin that:
1. Receipt by Benton Franklin and its physicians of any form of profit flowing from the referral of patients for physical therapy violates Chapter 19.68 RCW;
2. Benton Franklin’s receipt of profits from physical therapy services violates Washington’s Consumer Protection Act; and
3. Benton Franklin’s practice of employing physical therapists violates the professional Services Corporation Act and the corporate practice of medicine doctrine.WSMA’s Concern: The case impacts more than just orthopedic practices as the statutes (and case law) being interpreted apply to all health professions. A Supreme Court ruling in favor of the plaintiff could (it will depend on the court’s ruling – narrow or broad) not only prohibit orthopedic practices from employing physical therapists (a significant concern by itself), but also physicians from employing other non-physician health care providers (“unlike licensees”).
The WSMA, the AMA Litigation Center, the Benton-Franklin County Medical Society, WSOA, AAOS, and Proliance Surgeons have all provided financial, legal and other assistance to Benton Franklin Orthopedic.
One or more amicus briefs will be filed with the Supreme Court on behalf of the WSMA, AMA, WSOA, AAOS and Proliance Surgeons. The WSMA is in the process of reaching out to county medical societies and state specialty societies to seek their participation in these briefs as well.Putman v. Wenatchee Valley Medical Center, et al. — The Plaintiff/appellant was diagnosed with ovarian cancer. She then brought a medical malpractice suit against the Wenatchee Valley Medical Center (WVMC) and three of its doctors (two radiologists and an OB-GYN). The plaintiff claimed the defendant doctors failed to timely diagnose her disease.WVMC’s alleged liability was based on corporate negligence and respondeat superior (employer vicarious liability).
Under Washington law a medical malpractice plaintiff must file with their complaint (or within up to 135 days afterwards) a certificate of merit for each defendant. In this case, the plaintiff filed a certificate for the two radiologists but not for the OB-GYN or WVMC. WVMC and the OB-GYN moved to dismiss. The plaintiff voluntarily dropped the OB-GYN from the suit, but the trial court reserved ruling on the corporate negligence claims.
The plaintiff is seeking to have the state’s certificate of merit requirement, enacted as part of the legislative compromise that followed the I-330 and I-336 initiative campaigns, declared unconstitutional.
WSMA’s concern: Should the plaintiff (her law firm has brought in another firm that works with the national trial lawyers’ association to fight tort reform issues) succeed in convincing the court to render the certificate of merit provision unconstitutional, the court’s decision will likely place in jeopardy other liability reform provisions that were included in SSHB 2292, and set the stage for the courts to more readily declare other liability reform measures unconstitutional.