Michigan Health Law Link : Michigan Health Care Lawyer & Attorney : Smith Haughey Rice & Roegge Law Firm : Ann Arbor, Grand Rapids, Traverse City

In an unpublished opinion on September 29, 2011, the Michigan Court of Appeals found that a physician cannot refuse to enter into a physician-patient relationship with a single woman seeking in vitro fertilization (IVF) treatment because the woman is single.

In Moon v. Michigan Reproductive & IVF Center, P.C., plaintiff Allison Moon contacted two fertility clinics and specifically asked if the clinics would provide IVF services to a single woman. Both clinics responded that they did not provide such services to a single woman. Moon filed a discrimination suit against both clinics, alleging a violation of the Elliot-Larsen Civil Rights Act (ELCRA) based on her marital status. The lower court dismissed the claim, stating that under that under the common law, a physician could refuse to enter into a physician-patient relationship with any individual for any reason or no reason at all. The lower court found that under the language of the ELCRA, discrimination was prohibited "except where permitted by law." Thus, the court found that since common law allowed a physician to choose who he or she wanted to enter into a physician-patient relationship with for any or no reason, the ELCRA was inapplicable to the physician-patient relationship.

The Court of Appeals reversed the lower court, finding that the ELCRA specifically includes the right to receive services at a place of public accommodation, including a health facility, and it would be against the purpose of the ELCRA to allow such a broad reading of the physician-patient relationship. As such, the Court of Appeals held that a physician may only deny his or her consent to enter into a physician-patient relationship with a potential patient based on legally permissible, nondiscriminatory reasons.

Smith Haughey will continue to monitor this issue.

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The Thomas More Law Center filed a federal lawsuit in 2010 against the Patient Protection and Affordable Care Act. The Law Center is challenging the Act's constitutionality in an effort to permanently prohibit enforcement of the Act

On May 27, 2011, the Justice Department requested that the court dismiss the health care lawsuit, Thomas More Law Center v. Obama et al, based upon a lack of standing. Oral arguments were heard Wednesday on this matter by a three-judge panel of the Sixth Circuit Court of Appeals.

The Department submitted its motion when one of the plaintiffs in the suit acknowledged that she receives health insurance from her employer, and therefore has not been affected by the mandate that most people buy insurance. After alleging that the remaining plaintiffs have only shown the new mandate “require[s] them to change their lifestyle,” the Department sought dismissal for lack of standing.

This panel is the second of three US appellate courts that will consider the merits of the dispute over the constitutionality of the health care reform legislation over a five-week span.

Smith Haughey Rice & Roegge will continue to monitor the progress of this lawsuit and the result of the oral arguments.

Summer clerk Peter Afendoulis contributed to this post.

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A new published health law opinion from the Michigan Court of Appeals could have some far reaching effects on HIPAA litigation.

In the case of Isidore Steiner, DPM, PC v Marc Bonanni, Dr. Bonanni was employed by Isadore Steiner, DPM, PC and his contract included a non-competition and non-solicitation provision.  After Dr. Bonanni left his employment with them, Isidore Steiner, DPM, PC sued him for allegedly violating the non-solicitation provision of the contract and stealing their patients.  In order to prove their allegations, Isidore Steiner, DPM, PC sought Dr. Bonanni's patient list during the discovery portion of the case. 

The Michigan Court of Appeals found that the patient list was not discoverable as it was privileged under Michigan law. The Michigan Court of Appeals held on April 7, 2011 that Michigan law protects the very fact of the physician-patient relationship from disclosure, absent patient consent; this means that the name, address, and contact information is protected from disclosure in litigation. The Court found that HIPAA (which would have allowed for disclosure) does not preempt state law on this matter because state law is more stringent.

Generally, HIPAA requires patient consent for the disclosure of protected health information, just as Michigan state law does. In litigation, however, HIPAA has special provisions that allow for the disclosure of protected health information in response to a subpoena or court order if the provider receives adequate assurances that notice was provided to the patient or that reasonable efforts were made to secure a QPO. However, Michigan law does not have such an exception and requires the patient's consent to reveal private patient information. Thus, it would seem that non-solicitation provisions in employment contracts may potentially lose some of their weight unless a violation can be proven without reference to patient information. If an ex-employee violates this contractual provision, the employer does not have access to the ex-employee's patient list to prove its allegations of violation of the employment contract under this latest Michigan Court of Appeals ruling.

Click here to read the entire opinion.

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The Michigan Court of Appeals handed down an unpublished decision yesterday involving a lawsuit filed in the Upper Penninsula between a gastroenterologist and his former professional employer.  The gastroenterologist sued his former employer after the group indicated that it intended to enforce a non-compete clause which had been included in the two year contract.  After the contract expired and the physician turned down an offer to continue working in the practice, the group's attorneys sent a letter to the physician stating that it intended to prevent the physician from working within 150 miles of the City of Marquette for two years.

The physician sued, seeking an injunction from the Court preventing enforcement of the contract clause on the basis that the contract had expired and therefore the contract could not be enforced.  The trial court and the Court of Appeals agreed, holding that

We agree with the circuit court’s conclusion that plaintiff did not separate from his employment; rather, his employment ended when the contract’s term expired on December 31, 2005. This interpretation of the contractual language logically flows from the prefatory words of the covenant, which required plaintiff to perform his duties to benefit the interests of his employer while plaintiff worked for [the group]"

Since the physician's contract had expired naturally rather than by termination of one of the parties, the contract was unenforceable.  Certainly something to keep in mind when drafting contracts or signing them.

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