Health Care Lawyer Blog

Michigan physicians may not refuse to enter into a doctor-patient relationship with individuals based on discriminatory reasons, according to a recent opinion by the Michigan Court of Appeals. Importantly, the opinion overrules long-standing Michigan common law, which generally held that a doctor-patient relationship is consensual and a physician cannot be required to render services to anyone.

In Moon v. Michigan Reproductive & IVF Center, et al., (Case No. 299623), plaintiff Allison Moon contacted the defendants, two southwest Michigan fertility centers, and specifically asked if the clinics would provide in vitro fertilization (IVF) services to a single woman. Both clinics responded that they would not. Moon filed suit against both, alleging discrimination based on marital status under Michigan’s Elliott-Larsen Civil Rights Act.

The Elliott-Larsen Act provides generally that: “The opportunity to obtain employment, housing and other real estate, and the full and equal utilization of public accommodations, public service, and educational facilities without discrimination because of religion, race, color, national origin, age, sex, height, weight, familial status, or marital status as prohibited by this act, is recognized and declared to be a civil right.” MCL 37.2102(1)(emphasis added).

The circuit court granted defendants’ motion for summary disposition, reasoning that under Michigan common law: "a physician-patient relationship is voluntary and consensual, and a physician may refuse to enter into such a relationship for any reason or no reason at all. This Court does not believe the ELCRA was intended to function so as to force professionals to enter into relationships with clients. That is likely one reason why MCL 37.2302 begins with the phrase “[e]xcept where permitted by law.”

After the jump - what this case means to medical professionals

Continue reading "MI Court Holds that Medical Professionals May Not Deny Services For Discriminatory Reasons" »

*Today's post was authored by FHW attorney Michelle D. Bayer

When the Michigan legislature enacted the Michigan Medical Marihuana Act, MCL §333.26421 et seq, effective December 4, 2008, it joined about 12 other states which at that time had legalized the medical use of marihuana. However, recent developments indicate that even individuals who are legally authorized to use medical marihuana may still come under fire for a variety of related offenses.

There has always been a conflict between federal law, which classifies marihuana as a Schedule I controlled substance which is prohibited under the Federal Controlled Substances Act, and these state statutes legalizing medical marihuana use. A 2009 memo from Deputy Attorney General David Ogden directed U.S. Attorneys not to target medical marihuana businesses in areas where they're legal, as long as they're following state law, was seen as a green light for the state legislation.

Despite this pronouncement by the Obama administration and the Deputy Attorney General, medical marihuana statutes across the country and in Michigan have come under attack.

Recently, the Federal DEA has sought to obtain state medical marihuana program members’ information as part of its investigations. In Michigan, legislation has been proposed which would require the Michigan Department of Licensing and Regulatory Affairs, the governmental body which processes medical marihuana program applications, to give the Michigan State Police the names and addresses of registered patients and caregivers. Right now, law enforcement authorities can only check registrations by obtaining a patient or caregiver’s personal identification number.

Significantly, in Michigan, and other states, card carrying program members have been prosecuted for a variety of actions including, driving under the influence, violations of zoning ordinances, probation violations, excessive plant growing, and other technical violations of the state statute, even though they are properly enrolled in the medical marihuana program. The discharge of an employee for off-duty marihuana use, who was in compliance with the state medical marihuana statute, was affirmed.

Continue reading "Has Freedom to Use Medical Marihuana Burned Out? " »

The Michigan Supreme Court released an opinion this week that will dramatically change the legal landscape for anyone filing a personal injury claim as a result of automobile negligence or drunk drivers. This entry contains both an overview of the Court’s decision, and an analysis on how it may impact litigation in Michigan.

Background

In McCormick v. Carrier, et al., the Supreme Court overturned a previous 2004 decision holding that Michigan law limited claims for “non-economic damages” to those whose lives were permanently impacted as a result of the accident.

In McCormick, plaintiff Rodney McCormick filed suit after a fellow trucker backed over him and crushed his ankle while he was on duty at a General Motors Plant, where he worked as a medium truck loader. After missing 19 months of work due to the injury, he filed suit and sought recovery for his injuries under MCL 500.3135, which had previously been interpreted to bar any relief for injuries that did not amount to the “serious impairment of body function.”

At trial, the court granted defendant’s motion for summary disposition on the basis that plaintiff had recovered “relatively well” from the injury (although he continued to experience ankle pain and was limited in some of his daily functions) and therefore could not meet the serious impairment threshold provided in MCL 500.3135. This interpretation of MCL 500.3135 was previously set out in Kreiner v Fischer, 471 Mich 109 (2004).

After the jump - Court's reasoning, and analysis of the McCormick decision

Continue reading "Michigan Supreme Court Re-Interprets Standard for Personal Injury Lawsuits" »

A nursing home’s lawsuit against a long-term care pharmacy provider for failure to provide prescriptions as promised was dismissed by the Michigan Court of Appeals on the grounds that plaintiff’s claims against defendant were grounded in tort law, and not contract law. In Woodward Nursing Home, Inc. v. Medical Arts, Inc., (unpublished opinion issued June 25, 2009), Plaintiff entered into a written contract with Defendant whereby Defendant agreed to provide prescription medications and supplies for Plaintiff’s nursing home residents. Plaintiff alleged that it sent Defendant a prescription order on August 11, 2004, but that Defendant failed to process or deliver the prescription for more than twelve days and then lied about their reasons for nonperformance.

Plaintiff then filed suit in Wayne County Circuit Court, claiming that Defendant’s delay in filling the prescriptions caused it to lose a valuable Medicaid program certification. As a result, Plaintiff was forced to cease operating as a nursing home, was charged with regulatory sanctions, and had its provider agreement with the Michigan Medicaid program terminated.

Plaintiff’s original complaint against Defendant alleged breach of contract, negligence, malpractice and fraud. After Defendant’s Motion for Summary Disposition was denied, Defendants appealed the case to the Michigan Court of Appeals, which held that Plaintiff’s contract claim warranted dismissal because Plaintiff had failed to provide copies of the pertinent contracts pursuant to MCR 2.113(F). The COA further held that Plaintiff should have filed a notice of intent and affidavit of merit with respect to its medical malpractice claims.

Continue reading "Nursing Home's Claim Against Pharmacy for Non-Performance Dismissed; Michigan COA Holds Damages Stemmed From Tort, Not Breach of Contract" »

In May, I commented upon the oral arguments presented to the Michigan Supreme Court in the appeal from the Michigan Court of Appeals decision in the case of Miller v Allstate.

This case raised the issue of whether a physical therapy clinic, incorporated under the Michigan Business Corporation Act, was lawfully rendering services entitling it to reimbursement from its auto-accident injured patient's No-fault insurance carrier.

Allstate Insurance Company argued that a physical therapy clinic-a medical service provider-needed to incorporate under Michigan's Professional Service Corporation Act in order to lawfully render services under Michigan's No-Fault auto-insurance act, even though the physical therapist actually performing the services was a lawfully licensed physical therapist.

The lower courts permitted the claim and the Supreme Court issued its opinion affirming those decisions on July 2, 2008, although not for the same reason the lower courts did.

Essentially, the Supreme Court held that once a corporation, of any sort, files its Articles of Incorporation with the State, it is conclusively determined that the incorporation is lawful--unless the state Attorney General successfully challenges that incorporation in a court proceeding. this conclusion was based on statutory language and the Supreme Court's interpretation of long-standing Michigan law.

I believe the result in this case is correct (although one of the two concurring Justices, Elizabeth Weaver, believes that the Court's tortured logic in reaching the decision was incorrect because of a long-standing battle she has on the Court's Standing decisional process (a topic for some law professor's blog some day))because, as the Court stated, allowing challenges to every corporation in every suit brought by a corporation would affect the very stability of the economy. Every patient would have to verify compliance by every provider with every corporate statute before accepting treatment and whether payment would be made would depend on the creativity of every insurance lawyer in every case when payment decisions were made.

For once, the Supreme Court majority seems to have gotten it right.

Let's see if the Michigan Legislature and the Department of Labor and Economic Growth follow suit and picks up on this decision and clarifies the incorporation requirements as Michael Hamblin of our firm has described on his blog, Michigan Business Lawyer, for peripheral medical and other licensed providers.

Until they do, however, every licensed practitioner and other individuals in Michigan must immediately consult competent health care business lawyers such as my firm, to review their corporate status and to consider re-incorporation as Professional Corporations if permitted and advisable.

HAVE A HAPPY AND SAFE 4TH OF JULY HOLIDAY---AND GOD BLESS AND KEEP OUR TROOPS AND THEIR FAMILIES. LET'S BRING THEM HOME SOON!!!

The Michigan Supreme Court recently heard oral arguments in an important case involving the proper incorporation of health care corporations that provide licensed services to the public. The case is Miller v. Allstate. The major issue Miller is whether those providing a service requiring a license must incorporate under the Michigan Professional Services Corporation Act (PSCA) instead of under the Michigan Business Corporation Act (BCA). The Michigan Supreme Court is reviewing the decision of the Michigan Court of Appeals ruled, which ruled that under the language of the PSCA, any licensed professional (including a health care professional) who incorporates must do so under the PSCA and not the BCA.

The Miller decision by the Michigan Court of Appeals has caused quite a stir in the Michigan legal and business communities. It has caught everyone off guard, including the State of Michigan. The State of Michigan has taken the formal position that the Miller decision goes contrary to the plain language and purposes of the business incorporation acts in Michigan, as well as the accepted interpretation of those acts by everyone, including the Michigan Attorney General and the State agency that administers corporate filings.

To understand why the Miller decision has caused such an uproar, it is necessary to understand the history of incorporating professional service corporations in Michigan. Traditionally, only members of the “learned professions” such as doctors and lawyers have been required to incorporate under the PSCA. In the past, any other kind of business that provided professional or personal services had the choice of incorporating under the PSCA or the BCA. This was true even if a license was required to provide the services in question. The Miller decision has changed all of this.

The Miller case concerns a patient who was referred to a physical therapy clinic for treatments. Licensed physical therapists administered the treatments pursuant to medical prescriptions that the patient’s doctor’s properly issued. The physical therapy company was incorporated under the BCA. When Allstate was billed for the patient’s treatments, it refused to pay, because the physical therapy company was supposedly improperly incorporated under the BCA instead of the PSCA.

Allstate claimed that the physical therapy company should have incorporated under the PSCA since its business involves providing professional services that require a license. Allstate took the position that that the physical therapy company’s incorporation was defective because it was incorporated under the BCA instead of the PSCA. Allstate claimed that this alleged technical deficiency gave it the legal right to refuse the charges from the physical Therapy company.

There are a number of interesting and important legal issues involved in the Miller case. But, the issue of which statute professionals should incorporate their businesses under has received the most press. This issue also probably has the most potential to disrupt the businesses that have been incorporated under the BCA and not the PSCA. It appears that a ruling by the Michigan Supreme Court in favor of Allstate point could cause Michigan businesses that incorporated under the BCA and provide licensed services significant difficulties. Some of these difficulties might include difficulty collecting receivables and possible personal shareholder liability for company obligations.