New York CPLR §3121 allows for an opposing party to require plaintiff to submit to an examination by a designated physician. This examination, also referred to as an independent Medical Examination (IME), serves an important function in our legal system. The courts have noted that “[p]hysical examinations [narrow], if possible, areas of medical dispute through the assistance of the medical profession, and [eliminate] most of the medical controversy in a personal injury case,” Jakubowski v. Lengen, 86 A.D.2d 398, 400 (4th Dep’t 1982). Many attorneys will disagree that these physical examinations narrow any dispute.
Due to the examination’s potential impact, New York has traditionally allowed attorneys to accompany their clients to examinations. While attorneys have the right to prevent overreaching by a doctor, such as an interrogation of the plaintiff as to liability, barring highly unusual circumstances, counsel may not interfere with the conduct of the examination itself. Plaintiff attorneys have recently resorted to hiring an outside person to sit in on the examinations. Either called “patient advocates” or “watchdogs,” these groups have caused the courts to re-address the rules governing these exams.
The courts apply the same rules which govern an attorney’s role at an examination to the role of patient advocate. When patient advocates attend examinations, the courts have set basic guidelines regarding their behavior during the examinations: advocates “must identify themselves upon entrance, observe the examination without any interference whatsoever and refrain from bringing surveillance materials into the exam room.” IME Watchdog v. Baker, McEvoy, Morrissey & Moskovits, 145 A.D.3d 46 (1st Dep’t 2016). The patient advocate is allowed to sit silently and take handwritten notes based upon their observations, which may be used for litigation purposes. Interference with the IME will most likely cause the patient advocates presence to rise to a level of “unusual circumstance” that necessitates a second examination.
An example of such interference is demonstrated in Katz v. 260 Park Ave. South Condominium Associates, 2016 WL 1597770 (N.Y. Sup.), in which a patient advocate improperly interrupted the examination in order o prevent the doctor from taking additional X-rays of the patient. Thereafter, the opposing party demanded that the patient return to the doctor to undergo the requested X-rays. While the court did not specifically admonish the advocate for their interruption, it did order that the patient return to the doctor for the X-rays.
Courts have limited the role of patient advocates to note takers recording observations. This has resulted in the opposing party requesting those notes in order to avoid being surprised at trial by the advocate’s testimony. When this request has been refused and subsequently litigated, the notes have been deemed subject to the attorney work produce privilege. Zuleika Pair v. Caprice Thompson, Juanita Pair, Anna L. Brown, 2014 WL 10186593 (N.Y. Sup.). In support of this stance, courts have placed the burden upon the defendants to show that they have a “substantial need” to obtain the notes. See Katz, 2016 WL 159770 (N.Y. Sup.). The logic governing this rule is that essentially the same information can be obtained by reading through the examining doctor’s report. See Pair, 2014 WL 10186593 (N.Y. Sup.).
However, in Grange v. Sweet, 4 Misc. 3d 470 (N.Y. Sup. 2004), the court applied a different line of logic to determine that a recording of an IME should be given to the party employing the doctor. Specifically, the court rejected the plaintiff’s argument that the tape was considered material prepared for litigation, and found that the “defendant is entitled to a copy since she has substantial need for the tape and cannot obtain its substantial equivalent by other means . . . [The doctor], as defendant’s paid expert, could be considered an employee or agent of defendant, thus requiring disclosure of the audiotape . . . “. Due to the similarities in usage between an audiotape and handwritten notes, it is submitted that the same evidentiary principles should apply to both and these notes should be discoverable.
Ponce v. Health Ins. Plan, 100 A.D.2d 963, 964 (2d Dep’t 1984), established that a plaintiff undergoing an IME is entitled to the presence of a legal representative hired by their attorney. This concept was reinforced by a ruling that “[f]or a court to deny plaintiff accompaniment of his choice, an attorney or a representative sent by the attorney is an infringement upon plaintiff’s right to be assisted by counsel.” Cioffi v. S.M. Foods, 2013 NY Slip Op 32579(U), (N.Y. Sup. Aug 6, 2013). However, the requirement that representatives refrain from interference has been consistently enforced.
However, in Kattaria v. Rosado, 146 A.D.3d 457 (1st Dep’t 2017), the trial court directed plaintiff to resubmit to a medical examination and issued a protective order to exclude non-attorneys from the exam. In resolving the case, the First Department applied a two-factor test to determine whether an advocate should be allowed at an IME. The court stated that a non-legal representation may b barred from an IME if (1) plaintiff does not timely object to defendant’s notice of physical examination pursuant to CPLR 3121 and 3122; and (2) fails to demonstrate any special and unusual circumstances. When plaintiff failed to meet these criteria, the court ordered a new IME with defendant’s designated physician and prohibited non-attorneys from attending. Obviously, defense attorneys must include this prohibitive language in their initial discovery demands to plaintiff’s counsel.
Conversely, in Henderson v. Ross, 147 A.D.3d 915 (2d Dep’t 2017), the Second Department disagreed with the First Department and held that the burden to show special and unusual circumstances should lie with the defendant and not the plaintiff. In this case, the lower court granted defendant’s motion for a protective order precluding any non-attorney from accompanying the plaintiff at his physical examination.
However, the Second Department reversed, holding that the defendant failed to meet his burden establishing that the advocate would improperly interfere with plaintiff’s examination and allowing the presence of the patient advocate.
These two Appellate Division departments differ on what party bears the burden of proof on whether an IME watchdog should be present at an examination. The First Department requires the plaintiff to prove why a non-attorney should attend an IME, while the Second Department places the burden on the defendant to show that the preclusion of plaintiff’s representative is necessary.
This difference is meaningful. Either department offers a difficult standard to reach. In the First Department, a plaintiff will not be able to show a necessity for a non-attorney witness without direct evidence that the doctor performing the IME has a history of improper behavior at his exams. This ruling will act as an almost outright ban on watchdogs in the First Department. On the other hand, in the Second Department, without direct evidence of a watchdog’s impropriety, it will be impossible to show that the circumstances are “special” or “unusual” enough to warrant preclusion of an advocate. Based on this disagreement between the departments, it will only be a matter of time before the Court of Appeals steps in to address this issue.
Attorneys should be mindful of the role that a patient advocate has in the examination room and ensure that these representatives do not engage in improper conduct while attending an IME. Attorneys should also be aware of the difference between the First and Second Departments. In the First Department, for now at least, a patient advocate should be barred from attending the IME unless the plaintiff’s attorney can demonstrate special circumstances. In the Second Department, defendants will not be able to exclude an advocate. Within the next year, the Court of Appeals will address this issue and their decision will spawn a new column.
Andrea M. Alonso and Kevin G. Faley are partners in the firm of Morris Duffy Alonso & Faley. Patrick Prager, an associate, assisted in the preparation of this article.
Reprinted with permission from the October 27, 2017 edition of the New York Law Journal © 2017 ALM Media Properties, LLC. All rights reserved.


Full Statute Name: Wests Annotated Mississippi Code. Title 75. Regulation of Trade, Commerce and Investments. Chapter 35. Meat Inspection.
Chapter 35. Meat Inspection. Article 1. Inspection Requirements; Adulteration and Misbranding.
Laws 1968, Ch. 245, § 33, eff. July 1, 1968.
(a) The term “commissioner” means the “commissioner of agriculture and commerce of the State of Mississippi”, or his duly authorized deputies.
(b) The term “firm” means any partnership, association, or other unincorporated business organization.
(c) The term “meat broker” means any person, firm, or corporation engaged in the business of buying or selling carcasses, parts of carcasses, meat, or meat food products of cattle, sheep, swine, goats, horses, mules, or other equines on commission, or otherwise negotiating purchases or sales of such item or products other than for his own account or as an employee of another person, firm, or corporation.
(d) The term “renderer” means any person, firm, or corporation engaged in the business of rendering carcasses, or parts or products of the carcasses, of cattle, sheep, swine, goats, horses, mules, or other equines, except rendering conducted under inspection under Article 1 of this chapter.
(e) The term “animal food manufacturer” means any person, firm, or corporation engaged in the business of manufacturing or processing animal food derived wholly or in part from carcasses or parts or products of the carcasses, of cattle, sheep, swine, goats, horses, mules, or other equines.
(f) The term “unfit for human food” means as defined in the “Meat, Meat-Food and Poultry Regulation and Inspection Law of 1960”, appearing in subsection (c) of section 75-33-3, Mississippi Code of 1972.
(g) The term “meat food product” means any product capable of use as human food which is made wholly or in part from any meat or other portion of the carcass of any cattle, sheep, swine, or goats, excepting products which contain meat or other portions of such carcasses only in a relatively small proportion or historically have not been considered by consumers as products of the meat food industry, and which are exempted from definition as a meat food product by the commissioner under such conditions as he may prescribe to assure that the meat or other portions of such carcasses contained in such product are not adulterated and that such products are not represented as meat food products. This term as applied to food products of equines shall have a meaning comparable to that provided in this paragraph with respect to cattle, sheep, swine, and goats.
(h) The term “capable of use as human food” shall apply to any carcass, or part or product of a carcass, of any animal, unless it is denatured or otherwise identified as required by regulations prescribed by the commissioner to deter its use as human food, or it is naturally inedible by humans.
(i) The term “prepare” means slaughtered, canned, salted, rendered, boned, cut up, or otherwise manufactured or processed.
(5) if in a package or other container unless it bears a label showing (A) the name and place of business of the manufacturer, packer, or distributor; and (B) an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count; provided, that under clause (B) of this subparagraph (5), reasonable variations may be permitted, and exemptions as to small packages may be established, by regulations prescribed by the commissioner.
(12) if it fails to bear, directly thereon or on its container, as the commissioner may by regulations prescribe, the inspection legend and, unrestricted by any of the foregoing, such other information as the commissioner may require in such regulations to assure that it will not have false or misleading labeling and that the public will be informed of the manner of handling required to maintain the item or product in a wholesome condition.
(l) The term “label” means a display of written, printed, or graphic matter upon the immediate container (not including package liners) of any item or product.
(m) The term “labeling” means all labels and other written, printed, or graphic matter (1) upon any item or product or any of its containers or wrappers, or (2) accompanying such item or product.
(n) The term “Federal Meat Inspection Act” means the act so entitled approved March 4, 1907 (34 Stat 1260), as amended by the Wholesome Meat Act (8 Stat 584).
(o) The term “Federal Food, Drug, and Cosmetic Act” means the act so entitled, approved June 25, 1938 (52 Stat 1040), and acts amendatory thereof or supplementary thereto.
(p) The term “pesticide chemical”, “food additive”, “color additive”, and “raw agricultural commodity” shall have the same meanings for purposes of this chapter as under the Federal Food, Drug, and Cosmetic Act.
(q) The term “official mark” means the official inspection legend or any other symbol prescribed by regulations of the commissioner to identify the status of any product or animal under this chapter.
(r) The term “official inspection legend” means any symbol prescribed by regulations of the commissioner showing that an item or product was inspected and passed in accordance with this chapter.
(s) The term “official certificate” means any certificate prescribed by regulations of the commissioner for issuance by an inspector or other person performing official functions under this chapter.
(t) The term “official device” means any device prescribed or authorized by the commissioner for use in applying any official mark.
Laws 1968, Ch. 245, § 1, eff. July 1, 1968.
Meat and meat food products are an important source of the nation's total supply of food. It is essential in the public interest that the health and welfare of consumers be protected by assuring that meat and meat food products distributed to them are wholesome, not adulterated, and properly marked, labeled, and packaged. Unwholesome, adulterated, or misbranded meat or meat food products are injurious to the public welfare, destroy markets for wholesome, not adulterated, and properly labeled and packaged meat and meat food products, and result in sundry losses to livestock producers and processors of meat and meat food products, as well as injury to consumers. The unwholesome, adulterated, mislabeled, or deceptively packaged products can be sold at lower prices and compete unfairly with the wholesome, not adulterated, and properly labeled and packaged products, to the detriment of consumers and the public generally. It is hereby found that regulation by the commissioner and cooperation by this state and the United States as contemplated by this chapter are appropriate to protect the health and welfare of consumers and otherwise effectuate the purposes of this chapter.
Laws 1968, Ch. 245, § 2, eff. July 1, 1968.
(a) For the purpose of preventing the use in intrastate-commerce, as hereinafter provided, of meat and meat food products which are adulterated, the commissioner shall cause to be made, by inspectors appointed for that purpose, an examination and inspection of all cattle, sheep, swine, goats, horses, mules, and other equine before they shall be allowed to enter into any slaughtering, packing, meat canning, rendering, or similar establishment in this state in which slaughtering and preparation of meat and meat food products of such animals are conducted; and all cattle, sheep, swine, goats, horses, mules, and other equine found on such inspection to show symptoms of disease shall be set apart and slaughtered separately from all other cattle, sheep, swine, goats, horses, mules, or other equine, and when so slaughtered, the carcasses of said cattle, sheep, swine, goats, horses, mules, or other equine shall be subject to a careful examination and inspection, all as provided by the rules and regulations to be prescribed by the commissioner as herein provided for.
(b) For the purpose of preventing the inhumane slaughtering of livestock, the commissioner shall cause to be made, by inspectors appointed for that purpose, an examination and inspection of the method by which cattle, sheep, swine, ratites, nontraditional livestock, rabbits, goats, horses, mules and other equine are slaughtered and handled in connection with slaughter in the slaughtering establishments inspected under this article. The commissioner may refuse to provide inspection to a new slaughtering establishment or may cause inspection to be suspended temporarily at a slaughtering establishment if the commissioner finds that any cattle, sheep, swine, ratites, nontraditional livestock, rabbits, goats, horses, mules or other equine have been slaughtered or handled in connection with slaughter at such establishment by any method not in accordance with Sections 75-35-21(d) and 75-35-8 until the establishment furnishes assurances satisfactory to the commissioner that all slaughtering and handling in connection with slaughter of livestock shall be in accordance with such a method.
Laws 1968, Ch. 245, § 3, eff. July 1, 1968. Amended by Laws 2006, Ch. 345, § 2, eff. July 1, 2006.
(b) By slaughtering and handling in connection with such slaughtering in accordance with the ritual requirements of the Jewish faith or any other religious faith that prescribes a method of slaughter whereby the animal suffers loss of consciousness by anemia of the brain caused by the simultaneous and instantaneous severance of the carotid arteries with a sharp instrument.
(2) In addition to the methods prescribed in subsection (1) of this section, the commissioner may designate as humane any methods of slaughtering and handling which have been so designated by the United States Secretary of Agriculture on or before April 7, 1981, pursuant to United States Code Section 7-1904. The commissioner is further authorized to designate as humane other methods of slaughtering and handling which have been demonstrated by research, investigation and experimentation to be humane with reference to the speed and scope of slaughtering operations and with reference to other existing methods and then current scientific knowledge.
Added by Laws 2006, Ch. 345, § 1, eff. July 1, 2006.
For the purposes hereinbefore set forth, the commissioner shall cause to be made by inspectors appointed for that purpose, as hereinafter provided, a post-mortem examination and inspection of the carcasses and parts thereof of all cattle, sheep, swine, goats, horses, mules, and other equines, capable of use as human food, to be prepared at any slaughtering, meat-canning, salting, packing, rendering, or similar establishment in this state in which such products are prepared. The carcasses and parts thereof of all such animals found to be not adulterated shall be marked, stamped, tagged, or labeled, as “Inspected and Passed”, or appropriate stamp or markings. Said inspectors shall label, mark, stamp, or tag as “Inspected and Condemned”, or appropriate stamp or markings, all carcasses and parts thereof of animals found to be adulterated; and all carcasses and parts thereof thus inspected and condemned shall be destroyed for food purposes by the said establishment in the presence of an inspector. The commissioner may remove inspectors from any such establishment which fails to so destroy any such condemned carcass or part thereof. Said inspectors, after said first inspection shall, when they deem it necessary, reinspect said carcasses or parts thereof to determine whether since the first inspection the same have become adulterated, and if any carcass or any part thereof shall, upon examination and inspection subsequent to the first examination and inspection, be found to be adulterated, it shall be destroyed for food purposes by the said establishment in the presence of an inspector; and the commissioner may remove inspectors from any establishment which fails to so destroy any such condemned carcass or part thereof.
Laws 1968, Ch. 245, § 4, eff. July 1, 1968.
The foregoing provisions shall apply to all carcasses or parts of carcasses of cattle, sheep, swine, goats, horses, mules, and other equines or the meat or meat products thereof, capable of use as human food, which may be brought into any slaughtering, meat-canning, salting, packing, rendering, or similar establishment, where inspection under this article is maintained, and such examination and inspection shall be had before the said carcasses or parts thereof shall be allowed to enter into any department wherein the same are to be treated and prepared for meat food products. The foregoing provisions shall also apply to all such products which, after having been issued from any such slaughtering, meat-canning, salting, packing, rendering, or similar establishment, shall be returned to the same or to any similar establishment where such inspection is maintained. The commissioner may limit the entry of carcasses, part of carcasses, meat and meat food products, and other materials into any establishment at which inspection under this article is maintained, under such conditions as he may prescribe to assure that allowing the entry of such items or products into such inspected establishments will be consistent with the purposes of this chapter.
Laws 1968, Ch. 245, § 5, eff. July 1, 1968.
For the purposes hereinbefore set forth, the commissioner shall cause to be made by inspectors appointed for that purpose an examination and inspection of all meat food products prepared in any slaughtering, meat-canning, salting, packing, rendering, or similar establishment, where such products are prepared, and for the purposes of an examination and inspection said inspectors shall have access at all times, by day or night, whether the establishment be operated or not, to every part of said establishment. Said inspectors shall mark, stamp, tag, or label as “Mississippi inspected and passed” or appropriately mark all such products found to be not adulterated; and said inspectors shall label, mark, stamp, or tag as “Mississippi inspected and condemned” or appropriately mark all such products found adulterated. All such condemned meat food products shall be destroyed for food purposes, as hereinbefore provided, and the commissioner may remove inspectors from any establishment which fails to so destroy such condemned meat food products.
Laws 1968, Ch. 245, § 6, eff. July 1, 1968.
(1) When any meat or meat food product has been inspected as hereinbefore provided and marked “Mississippi inspected and passed” or appropriate marking shall be placed or packed in any can, pot, tin, canvas, or other receptacle or covering in any establishment where inspection under the provisions of this chapter is maintained, the person, firm, or corporation preparing said product shall cause a label to be attached to said can, pot, tin, canvas, or other receptacle or covering, under supervision of an inspector, which label shall state that the contents thereof have been “Mississippi inspected and passed” or appropriate marking under the provisions of this chapter, and no inspection and examination of meat or meat food products deposited or enclosed in cans, tins, pots, canvas, or other receptacle or covering in any establishment where inspection under the provisions of this chapter is maintained shall be deemed to be complete until such meat or meat food products have been sealed or enclosed in said can, tin, pot, canvas, or other receptacle or covering under the supervision of an inspector.
(2) All carcasses, parts of carcasses, meat and meat food products inspected at any establishment under the authority of this chapter and found to be not adulterated, shall at the time they leave the establishment bear, in distinctly legible form, directly thereon or on their containers, as the commissioner may require, the information required under paragraph (k) of section 75-35-3 of this chapter.
(3) The commissioner, whenever he determines such action is necessary for the protection of the public, may prescribe: (1) the styles and sizes of type to be used with respect to material required to be incorporated in labeling to avoid false or misleading labeling of any products or animals subject to this article or Article 3 of this chapter; (2) definitions and standards of identity or composition for items subject to this article and standards of fill of container for such products not inconsistent with any such standards established under the Federal Food, Drug, and Cosmetic Act, or under the Federal Meat Inspection Act, and there shall be consultation between the commissioner and the secretary of agriculture of the United States prior to the issuance of such standards to avoid inconsistency between such standards and the federal standards.
(4) No item or product subject to this article shall be sold or offered for sale by any person, firm, or corporation, under any name or other marking or labeling which is false or misleading, or in any container of a misleading form or size, but established trade names and other marking and labeling and containers which are not false or misleading and which are approved by the commissioner, are permitted.
(5) If the commissioner has reason to believe that any marking or labeling or the size or form of any container in use or proposed for use with respect to any item subject to this article is false or misleading in any particular, he may direct that such use be withheld unless the marking, labeling, or container is modified in such manner as he may prescribe so that it will not be false or misleading. If the person, firm, or corporation using or proposing to use the marking, labeling or container does not accept the determination of the commissioner, such person, firm, or corporation may request a hearing, but the use of the marking, labeling, or container shall, if the commissioner so directs, be withheld pending hearing and final determination by the commissioner. Any party aggrieved by such final determination may, within thirty (30) days after receipt of notice of such final determination, effect an appeal therefrom to the chancery court of the county in which such party resides or in which the principal place of his business is domiciled; and, on appeal, such chancery court shall affirm, modify, or set aside the commissioner's final determination.
Laws 1968, Ch. 245, § 7, eff. July 1, 1968.
The commissioner shall cause to be made, by experts in sanitation, or by other competent inspectors, such inspection of all slaughtering, meat-canning, salting, packing, rendering, or similar establishments in which cattle, sheep, swine, goats, horses, mules, and other equines are slaughtered and the meat and meat food products thereof are prepared as may be necessary to inform himself concerning the sanitary conditions of the same, and to prescribe the rules and regulations of sanitation under which such establishments shall be maintained. Where the sanitary conditions of any such establishment are such that the meat or meat food products are rendered adulterated, he shall refuse to allow said meat or meat food products to be labeled, marked, stamped, or tagged as “Mississippi inspected and passed” or appropriately marked.
Laws 1968, Ch. 245, § 8, eff. July 1, 1968.
The commissioner shall cause an examination and inspection of all cattle, sheep, swine, goats, horses, mules, and other equines, and the food products thereof, slaughtered and prepared in the establishments hereinbefore described to be made during the nighttime as well as during the daytime when the slaughtering of said cattle, sheep, swine, goats, horses, mules, and other equines, or the preparation of said food products is conducted during the nighttime.
Laws 1968, Ch. 245, § 9, eff. July 1, 1968.
(d) Slaughter or handle in connection with such slaughter any such animals in any manner not declared to be humane under Section 75-35-8.
Laws 1968, Ch. 245, § 10, eff. July 1, 1968. Amended by Laws 2006, Ch. 345, § 3, eff. July 1, 2006.
(1) No brand manufacturer, printer, or other person, firm, or corporation shall cast, print, lithograph, or otherwise make any device containing any official mark or simulation thereof, or any label bearing any such mark or simulation, or any form of official certificate or simulation thereof, except as authorized by the commissioner.
(f) knowingly represent that any item or product has been inspected and passed, or exempted, under this chapter when, in fact, it has, respectively, not been so inspected and passed, or exempted.
Laws 1968, Ch. 245, § 11, eff. July 1, 1968.
No person, firm, or corporation shall sell, transport, offer for sale or transportation, or receive for transportation, any carcasses of horses, mules, or other equines or parts of such carcasses, or the meat or meat food products thereof, unless they are plainly and conspicuously marked or labeled or otherwise identified as required by regulations prescribed by the commissioner to show the kinds of animals from which they were derived. When required by the commissioner with respect to establishments at which inspection is maintained under this article, such animals and their carcasses, parts thereof, meat and meat food products shall be prepared in establishments separate from those in which cattle, sheep, swine, or goats are slaughtered or their carcasses, parts thereof, meats or meat food products are prepared.
Laws 1968, Ch. 245, § 12, eff. July 1, 1968.
The commissioner shall appoint from time to time inspectors to make examination and inspection of all cattle, sheep, swine, goats, horses, mules, and other equines the inspection of which is hereby provided for, and of all carcasses and parts thereof, and of all meats and meat food products thereof, and of the sanitary conditions of all establishments in which such meat and meat food products hereinbefore described are prepared. Said inspectors shall refuse to stamp, mark, tag or label any carcass or any part thereof, or meat food product therefrom, prepared in any establishment hereinbefore mentioned, until the same shall have actually been inspected and found to be not adulterated; and shall perform such other duties as are provided by this chapter and by the rules and regulations to be prescribed by said commissioner. Said commissioner shall, from time to time, make such rules and regulations as are necessary for the efficient execution of the provisions of this chapter, and all inspections and examinations made under this chapter shall be such and made in such manner as described in the rules and regulations prescribed by said commissioner not inconsistent with the provisions of this chapter.
Laws 1968, Ch. 245, § 13, eff. July 1, 1968.
Any person, firm, or corporation, or any agent or employee of any person, firm, or corporation, who shall give, pay, or offer, directly or indirectly, to any inspector, deputy inspector, chief inspector, or any other officer or employee of this state authorized to perform any of the duties prescribed by this chapter or by the rules and regulations of the commissioner, any money or other thing of value, with intent to influence said inspector, deputy inspector, chief inspector, or other officer or employee of this state in the discharge of any duty herein provided for, shall be deemed guilty of a felony and, upon conviction thereof, shall be punished by a fine not less than Five Thousand Dollars ($5,000.00), nor more than Ten Thousand Dollars ($10,000.00) and by imprisonment not less than one (1) year nor more than three (3) years. Any inspector, deputy inspector, chief inspector, or other officer or employee of this state authorized to perform any of the duties prescribed by this chapter who shall accept any money, gift, or other thing of value from any person, firm, or corporation, or officers, agents, or employees thereof, given with intent to influence his official action, or who shall receive or accept from any person, firm, or corporation engaged in intrastate commerce any gift, money, or other thing of value given with any purpose or intent whatsoever, shall be deemed guilty of a felony and shall, upon conviction thereof, be summarily discharged from office and shall be punished by a fine not less than One Thousand Dollars ($1,000.00) nor more than Ten Thousand Dollars ($10,000.00) and by imprisonment not less than one (1) year nor more than three (3) years.
Laws 1968, Ch. 245, § 14, eff. July 1, 1968. Amended by Laws 2002, Ch. 394, § 1, eff. July 1, 2002.
(1) The provisions of this article requiring inspection of the slaughter of animals and the preparation of the carcasses, parts thereof, meat and meat food products at establishments conducting such operations shall not (a) apply to the slaughtering by any person of animals of his own raising, and the preparation by him and transportation in intrastate commerce of the carcasses, parts thereof, meat and meat food products of such animals exclusively for use by him and members of his household and his nonpaying guests and employees; nor (b) to the custom slaughter by any person, firm, or corporation of cattle, sheep, swine, or goats, delivered by the owner thereof for such slaughter, and the preparation by such slaughterer and transportation in intrastate commerce of the carcasses, parts thereof, meat and meat food products of such animals, exclusively for use, in the household of such owner, by him, and members of his household and his nonpaying guests and employees: provided, that such custom slaughterer does not engage in the business of buying or selling any carcasses, parts of carcasses, meat or meat food products of any cattle, sheep, swine, goats, or equines, capable of use as human food.
(2) The provisions of this chapter requiring inspection of the slaughter of animals and the preparation of carcasses, parts thereof, meat and meat food products shall not apply to operations of types traditionally and usually conducted at retail stores and restaurants, when conducted at any retail store or restaurant or similar retail-type establishment for sale in normal retail quantities or service of such items or products to consumers at such establishments.
(3) The slaughter of animals and preparation of items or products referred to in subsections (1)(b) and (2) of this section shall be conducted in accordance with such sanitary conditions as the commissioner may by regulations prescribe. Violation of any such regulation is prohibited.
(4) The adulteration and misbranding provisions of this article, other than the requirement of the inspection legend, shall apply to items or products which are not required to be inspected under this section.
Laws 1968, Ch. 245, § 15, eff. July 1, 1968.
The commissioner may by regulations prescribe conditions under which carcasses, parts of carcasses, meat, and meat food products of cattle, sheep, swine, goats, horses, mules, or other equines, capable of use as human food, shall be stored or otherwise handled by any person, firm, or corporation engaged in the business of buying, selling, freezing, storing, or transporting, in or for intrastate commerce, such articles, whenever the commissioner deems such action necessary to assure that such items or products will not be adulterated or misbranded when delivered to the consumer. Violation of any such regulation is prohibited.
Laws 1968, Ch. 245, § 16, eff. July 1, 1968.
Inspection shall not be provided under Article 1 of this chapter at any establishment for the slaughter of cattle, sheep, swine, goats, horses, mules, or other equines, or the preparation of any carcasses or parts or products of such animals, which are not intended for use as human food, but such products shall, prior to their offer for sale or transportation in intrastate commerce, unless naturally inedible by humans, be denatured or otherwise identified as prescribed by regulations of the commissioner to deter their use for human food. No person, firm, or corporation shall buy, sell, transport, or offer for sale or transportation, or receive for transportation, in commerce, any carcasses, parts thereof, meat or meat food products of any such animals, which are not intended for use as human food unless they are denatured or otherwise identified as required by the regulations of the commissioner or are naturally inedible by humans.
Laws 1968, Ch. 245, § 17, eff. July 1, 1968.
(c) Any persons, firms, or corporations that engage in business, as renderers, or engage in the business of buying, selling, or transporting, any dead, dying, disabled, or diseased cattle, sheep, swine, goats, horses, mules, or other equines, or parts of the carcasses of any such animals that died otherwise than by slaughter.
(2) Any record required to be maintained by this section shall be maintained for such period of time as the commissioner may by regulations prescribe.
Laws 1968, Ch. 245, § 18, eff. July 1, 1968.
No person, firm, or corporation shall engage in business, as a meat broker, renderer, or animal food manufacturer, or engage in business as a wholesaler of any carcasses, or parts or products of the carcasses, of any cattle, sheep, swine, goats, horses, mules, or other equines, whether intended for human food or other purposes, or engage in business as a public warehouseman storing any such items or products, or engage in the business of buying, selling, or transporting, any dead, dying, disabled, or diseased animals of the specified kinds, or parts of the carcasses of any such animals that died otherwise than by slaughter, unless, when required by regulations of the commissioner, he has registered with the commissioner his name, and the address of each place of business at which, and all trade names under which, he conducts such business.
Laws 1968, Ch. 245, § 19, eff. July 1, 1968.
No person, firm, or corporation engaged in the business of buying, selling, or transporting, dead, dying, disabled, or diseased animals, or any parts of the carcasses of any animals that died otherwise than by slaughter, shall buy, sell, transport, offer for sale or transportation, or receive for transportation, any dead, dying, disabled, or diseased cattle, sheep, swine, goats, horses, mules or other equines, or parts of the carcasses of any such animals that died otherwise than by slaughter, unless such transaction or transportation is made in accordance with such regulations as the commissioner may prescribe to assure that such animals, or the unwholesome parts or products thereof, will be prevented from being used for human food purposes.
Laws 1968, Ch. 245, § 20, eff. July 1, 1968.
(1) The department of agriculture and commerce is hereby designated as the state agency which shall be responsible for cooperating with the secretary of agriculture of the United States under the provisions of Section 301 of the Federal Meat Inspection Act and such agency is directed to cooperate with the secretary of agriculture of the United States in developing and administering the meat inspection program of this state under this chapter to assure that not later than November 15, 1969, its requirements will be at least equal to those imposed under Titles I and IV of the Federal Meat Inspection Act and in developing and administering the program of this state under Article 3 of this chapter in such a manner as will effectuate the purposes of this chapter and said federal act.
(2) In such cooperative efforts, the department of agriculture and commerce is authorized to accept from said secretary advisory assistance in planning and otherwise developing the state program, technical and laboratory assistance and training (including necessary curricular and instructional materials and equipment), and financial and other aid for administration of such a program. The department of agriculture and commerce is further authorized to spend public funds of this state appropriated for administration of this chapter to pay fifty per centum (50%) of the estimated total cost of the cooperative program.
(3) The department of agriculture and commerce is further authorized to recommend to the said secretary of agriculture such officials or employees of this state as the department of agriculture and commerce shall designate, for appointment to the advisory committees provided for in Section 301 of the Federal Meat Inspection Act; and the department of agriculture and commerce shall serve as the representative of the governor for consultation with said secretary under paragraph (c) of this section of said act unless the governor shall select another representative.
Laws 1968, Ch. 245, § 21, eff. July 1, 1968.
The commissioner may (for such period, or indefinitely, as he deems necessary to effectuate the purposes of this chapter) refuse to provide, or withdraw, inspection service under Article 1 of this chapter with respect to any establishment if he determines, after opportunity for a hearing is accorded to the applicant for, or recipient of, such service, that such applicant or recipient is unfit to engage in any business requiring inspection under Article 1 because the applicant or recipient, or anyone responsibly connected with the applicant or recipient, has been convicted, in any federal or state court, of (1) any felony, or (2) more than one violation of any law, other than a felony, based upon the acquiring, handling, or distributing of unwholesome, mislabeled, or deceptively packaged food or upon fraud in connection with transactions in food. This section shall not affect in any way other provisions of this chapter for withdrawal of inspection services under Article 1 from establishments failing to maintain sanitary conditions or to destroy condemned carcasses, parts, meat or meat food products.
For the purpose of this section, a person shall be deemed to be responsibly connected with the business if he was a partner, officer, director, holder, or owner of ten per centum (10%) or more of its voting stock or employee in a managerial or executive capacity. The determination and order of the commissioner with respect thereto under this section shall be final and conclusive unless the affected applicant for, or recipient of, inspection service files application for judicial review within thirty (30) days after the effective date of such order in the appropriate court as provided in section 75-35-15 of this chapter. Judicial review of any such order shall be upon the record made before the commissioner upon which the determination and order are based.
Laws 1968, Ch. 245, § 22, eff. July 1, 1968.
Whenever any carcass, part of a carcass, meat or meat food product of cattle, sheep, swine, goats, horses, mules, or other equines, or any product exempted from the definition of a meat food product, or any dead, dying, disabled, or diseased cattle, sheep, swine, goat, or equine is found by any authorized representative of the commissioner upon any premises where it is held for purposes of, or during or after distribution, and there is reason to believe that any such item or product is adulterated or misbranded and is capable of use as human food, or that it has not been inspected, in violation of the provisions of Article 1 of this chapter or of the Federal Meat Inspection Act or the Federal Food, Drug and Cosmetic Act, or that such products or animal has been or is intended to be, distributed in violation of any such provisions, it may be detained by such representative for a period not to exceed twenty (20) days, pending action under section 75-35-305 of this chapter or notification of any Federal authorities having jurisdiction over such article or animal, and shall not be moved by any person, firm or corporation from the place at which it is located when so detained, until released by such representative. All official marks may be required by such representative to be removed from such products or animal before it is released unless it appears to the satisfaction of the commissioner that the products or animal is eligible to retain such marks.
Laws 1968, Ch. 245, § 23, eff. July 1, 1968.
(1) Any carcass, part of a carcass, meat or meat food product of cattle, sheep, swine, goats, horses, mules or other equines, or any dead, dying, disabled, or diseased cattle, sheep, swine, goat, or equine, that is being transported in intrastate commerce, or is held for sale in this state after such transportation, and that (a) is or has been prepared, sold, transported, or otherwise distributed or offered or received for distribution in violation of this chapter, or (b) is capable of use as human food and is adulterated or misbranded, or (c) in any other way is in violation of this chapter, shall be liable to be proceeded against and seized and condemned, at any time, on a bill of complaint in the chancery court as provided in section 75-35-307 of this chapter within the jurisdiction of which the products or animal is found. If the products or animal is condemned it shall, after entry of the decree, be disposed of by destruction or sale as the court may direct and the proceeds, if sold, less the court costs and fees, and storage and other proper expenses, shall be paid into the general fund of the treasury of this state, but the products or animals shall not be sold contrary to the provisions of this chapter, or the Federal Meat Inspection Act or the Federal Food, Drug, and Cosmetic Act: provided, that upon the execution and delivery of a good and sufficient bond conditioned that the products or animal shall not be sold or otherwise disposed of contrary to the provisions of this chapter, or the laws of the United States, the court may direct that such products or animal be delivered to the owner thereof subject to such supervision by authorized representatives of the commissioner as is necessary to insure compliance with the applicable laws. When a decree of condemnation is entered against the products or animal and it is released under bond, or destroyed, court costs and fees, and storage and other proper expenses shall be awarded against the person, if any, intervening as claimant of the product or animal. The proceedings in such chancery court cases shall conform, as nearly as may be, to the usual proceedings in chancery, except that either party may demand trial by jury of any issue of fact joined in any case, and all such proceedings shall be removed at the suit of and in the name of this state in the circuit court.
(2) The provisions of this section shall in no way derogate from authority for condemnation or seizure conferred by other provisions of this chapter, or other laws.
Laws 1968, Ch. 245, § 24, eff. July 1, 1968.
Except as otherwise specifically provided for in this chapter, the chancery courts are vested with jurisdiction specifically to enforce, and to prevent and restrain violations of this chapter, and shall have jurisdiction in all other kinds of cases arising under this chapter.
Laws 1968, Ch. 245, § 25; Laws 1997, Ch. 521, § 2, eff. July 1, 1997.
Any person who forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person while engaged in or on account of the performance of his official duties under this chapter shall be fined not more than five thousand dollars ($5,000.00) or imprisoned not more than three (3) years, or both. Whoever, in the commission of any such acts, uses a deadly or dangerous weapon, shall be fined not more than ten thousand dollars ($10,000.00) or imprisoned not more than ten (10) years, or both. Whoever kills any person while engaged in or on account of the performance of his official duties under this chapter shall be punished as provided under general laws of this state.
Laws 1968, Ch. 245, § 26, eff. July 1, 1968.
(1) Any person, firm, or corporation who violates any provision of this chapter for which no other criminal penalty is provided by this chapter shall upon conviction be subject to imprisonment for not more than one (1) year, or a fine of not more than one thousand dollars ($1,000.00), or both such imprisonment and fine; but if such violation involves intent to defraud, or any distribution or attempted distribution of an item or product that is adulterated (except as defined in section 75-35-3(j)(8) of this chapter), such person, firm, or corporation shall be subject to imprisonment for not more than three (3) years or a fine of not more than ten thousand dollars ($10,000.00) or both: provided, that no person, firm, or corporation shall be subject to penalties under this section for receiving for transportation any product or animal in violation of this chapter if such receipt was made in good faith, unless such person, firm, or corporation refuses to furnish on request of a representative of the commissioner the name and address of the person from whom he received such products or animal, and copies of all documents, if any there be, pertaining to the delivery of the products or animal to him.
(2) Nothing in this chapter shall be construed as requiring the commissioner to report for prosecution or for the institution of a bill of complaint or injunction proceedings, minor violations of this chapter whenever he believes that the public interest will be adequately served by a suitable written notice of warning.
Laws 1968, Ch. 245, § 27, eff. July 1, 1968.
(b) To require, by general or special orders, persons, firms, and corporations engaged in intrastate commerce, or any class of them, or any of them to file with the commissioner, in such form as the commissioner may prescribe, annual or special, or both annual and special, reports or answers in writing to specific questions, furnishing to the commissioner such information as he may require as to the organization, business, conduct, practices, management, and relation to other persons, firms, and corporations, of the person, firm, or corporation filing such reports or answers in writing. Such reports and answers shall be made under oath, or otherwise, as the commissioner may prescribe, and shall be filed with the commissioner within such reasonable period as the commissioner may prescribe, unless additional time be granted in any case by the commissioner.
Laws 1968, Ch. 245, § 28(a), eff. July 1, 1968.
(2) Such attendance of witnesses, and the production of such documentary evidence, may be required at any designated place of hearing. In case of disobedience to a subpoena, the commissioner may invoke the aid of any court designated in section 75-35-307 of this chapter in requiring the attendance and testimony of witnesses and the production of documentary evidence.
(3) Any of the courts designated in section 75-35-307 of this chapter within the jurisdiction of which such inquiry is carried on may, in case of contumacy or refusal to obey a subpoena issued to any person, firm, or corporation, issue an order requiring such person, firm, or corporation to appear before the commissioner, or to produce documentary evidence if so ordered, or to give evidence touching the matter in question; and any failure to obey such order of the court may be punished by such court as a contempt thereof.
(4) Upon the application of the attorney general of this state at the request of the commissioner, the circuit court shall have jurisdiction to issue writs of mandamus commanding any person, firm, or corporation to comply with the provisions of this chapter or any order of the commissioner made in pursuance thereof.
(5) The commissioner may order testimony to be taken by deposition in any proceeding or investigation pending under this chapter at any stage of such proceeding or investigation. Such depositions may be taken before any person designated by the commissioner and having power to administer oaths. Such testimony shall be reduced to writing by the person taking the deposition, or under his direction and shall then be subscribed by the deponent. Any person may be compelled to appear and depose and to produce documentary evidence in the same manner as witnesses may be compelled to appear and testify and produce documentary evidence before the commissioner as hereinbefore provided.
(6) Witnesses summoned before the commissioner shall be paid the same fees and mileage that are paid witnesses in the courts of this state, and witnesses whose depositions are taken and the persons taking the same shall severally be entitled to the same fees as are paid for like services in such courts.
Laws 1968, Ch. 245, § 28(b), eff. July 1, 1968.
(1) Any person, firm, or corporation that shall neglect or refuse to attend and testify or to answer any lawful inquiry, or to produce documentary evidence, if in his or its power to do so, in obedience to the subpoena or lawful requirement of the commissioner, shall be guilty of an offense and upon conviction thereof by a court of competent jurisdiction shall be punished by a fine of not less than one hundred dollars ($100.00) nor more than five thousand dollars ($5,000.00), or by imprisonment for not more than one (1) year, or by both such fine and imprisonment.
(2) Any person, firm, or corporation that shall willfully make, or cause to be made any false entry or statement of fact in any report required to be made under this chapter, or that shall willfully make, or cause to be made, any false entry in any account, record, or memorandum kept by any person, firm, or corporation subject to this chapter or that shall willfully neglect or fail to make, or to cause to be made, full, true, and correct entries in such accounts, records, or memoranda, of all facts and transactions appertaining to the business of such person, firm, or corporation, or that shall willfully remove out of the jurisdiction of this state, or willfully mutilate, alter, or by any other means falsify any documentary evidence of any such person, firm, or corporation or that shall willfully refuse to submit to the commissioner or to any of his authorized agents, for the purpose of inspection and taking copies, any documentary evidence of any such person, firm, or corporation in his possession or within his control, shall be deemed guilty of an offense and shall be subject, upon conviction in any court of competent jurisdiction to a fine of not less than one thousand dollars ($1,000.00) nor more than five thousand dollars ($5,000.00), or to imprisonment for a term of not more than three (3) years, or to both such fine and imprisonment.
(3) If any person, firm, or corporation required by this chapter to file any annual or special report shall fail so to do within the time fixed by the commissioner for filing the same, and such failure shall continue for thirty (30) days after notice of such default, unless for good cause shown on extension for filing same shall be granted by the commissioner, such person, firm, or corporation shall forfeit to this state the sum of one hundred dollars ($100.00) for each and every day of the continuance of such failure, which forfeiture shall be payable into the general fund of the treasury of this state, and shall be recoverable in a civil suit in the name of the state brought in the county where the person, firm, or corporation has his or its principal office or in any county in which he or it shall do business. It shall be the duty of the attorney general of this state, the county attorney and the district attorney, under the direction of the attorney general of this state, to prosecute for the recovery of such forfeitures in the name of the State of Mississippi. The costs and expenses of such prosecution shall be paid out of the appropriation for the expenses of the courts of this state.
(4) Any officer or employee of this state who shall make public any information obtained by the commissioner without his authority, unless directed by a court, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine not exceeding five hundred dollars ($500.00), or by imprisonment, not exceeding one (1) year, or by both such fine and imprisonment, in the discretion of the court. This provision does not apply to the governor, members of the legislature, the attorney general, district attorney, county attorney or sheriff.
Laws 1968, Ch. 245, § 28(c), eff. July 1, 1968.
The requirements of this chapter shall apply to persons, firms, corporation establishments, animals, and products regulated under the Federal Meat Inspection Act only to the extent provided for in Section 408 of said federal act.
Laws 1968, Ch. 245, § 29, eff. July 1, 1968.
Laws 1968, Ch. 245, § 30, eff. July 1, 1968.
Nothing in this chapter, except for the purpose of providing for cooperation with the United States Department of Agriculture for the inspection of meat and related purposes, shall repeal or supersede any existing statutes regulating the same matters and subject.
Laws 1968, Ch. 245, § 32, eff. July 1, 1968.
(1) When a written complaint is made against a person for violation of any provision of this chapter or of Section 75-33-1 et seq., or any of the rules or regulations promulgated there under, the Commissioner of Agriculture, or his designee, shall conduct a full evidentiary hearing relative to the charges. The complaint shall be in writing and shall be filed in the office of the Mississippi Department of Agriculture and Commerce. The commissioner shall cause to be delivered to the accused in the manner described herein a copy of the complaint and a summons requiring the accused to file a written answer to the complaint within thirty (30) days after service of the summons and complaint upon the accused. The accused may be notified by serving a copy of the summons and complaint on the accused or any of his officers, agents or employees by personal service or by certified mail. The accused shall file with the department a written response to the complaint within the thirty-day period. If the accused fails to file an answer within such time, the commissioner or his designee may enter an order by default against the accused. If the accused has filed an answer, the matter shall be set for hearing before the commissioner or his designee.
(e) Take any other action authorized by law or regulation. The commissioner's decision shall be in writing, and it shall be delivered to the accused by any of the methods described herein for service of the summons and complaint on the accused.
(2) Either the accused or the department may appeal the decision of the commissioner to the circuit court of the county of residence of the accused or, if the accused is a nonresident of the State of Mississippi, to the Circuit Court of the First Judicial District of Hinds County, Mississippi. The appellant shall have the obligation of having the record transcribed and filed with the circuit court. The appeal shall otherwise be governed by all applicable laws and rules affecting appeals to circuit court. If no appeal is perfected within the required time, the decision of the commissioner, or his designee, shall then become final.
(3) The decision of the circuit court may then be appealed by either party to the Mississippi Supreme Court in accordance with the existing laws and rules affecting such appeals.
Laws 1997, Ch. 521, § 1, eff. July 1, 1997. Amended by Laws 2003, Ch. 491, § 1, eff. July 1, 2003.


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GEORGE H. FITZSIMONDS & another [Note 1] vs. BOARD OF APPEALS OF CHATHAM.
Present: GRANT, KAPLAN, & DREBEN, JJ.
CIVIL ACTION commenced in the Superior Court Department on March 31, 1981.
The case was heard by John J. Irwin, Jr., J.
Frank J. Shealey, Town Counsel (Craig S. Johnson with him) for the defendant.
appeal from a judgment of the Superior Court which affirms a decision of the defendant board of appeals of Chatham (board) refusing them a special permit to make certain alterations of the house. We vacate the judgment so that the matter may be reconsidered by the board.
approval of the sewage disposal system by the board of health. Although the present record lacks detail, we are to assume that there is nonconformity with respect to some of these requirements if only because of the nature of the plaintiffs' ownership.
In August, 1980, the plaintiffs applied to the local building inspector for a permit to add (in effect) a livable second story to their house. More particularly, they proposed to raise a dormer -- to swing it up as if hinged, as counsel put it -- and enlarge what was probably an attic crawl space to encompass a living area of 320 square feet, with, in addition, a deck of 78 square feet. These additions compare with a living area of 789 square feet on the floor below. Starting with three bedrooms, bath, living room, and kitchen, on the one floor, the proposed rearrangement would yield two bedrooms, bath, living room, dining room, and kitchen on the first floor, and one bedroom, bath, den, and deck on the second.
The building inspector granted the permit on August 25, 1980. However, a neighbor protested, and when the alterations were perhaps 80 to 90 percent complete at a cost of $6,105.30, the building inspector issued a stop-work order, and by letter of October 26, 1980, informed the plaintiffs that in his opinion they must apply to the board for a special permit. Similar stop-work orders and letters were sent to two other house owners in the condominium.
The plaintiffs applied to the board, which, at an open meeting on February 25, 1981, following a public hearing, unanimously denied the request for a special permit. By letter of March 11, 1981, the board set out its reasons. Upon the plaintiffs' "appeal" under G. L. c. 40A, Section 17, a judge of the Superior Court upon findings and rulings held the board's action to be not arbitrary or capricious or in excess of its authority.
language of the act recently reviewed, [Note 6] but we think it is possible to say the following. An alteration, reconstruction, extension, or structural change of a nonconforming single-family or two-family residential structure is legitimated under the second "except" clause of the first sentence if it "does not increase the nonconforming nature of said structure"; otherwise (as occurs in certain events in regard to changes of other structures referred to in the language preceding the "except" clause), it must be submitted to the special permit procedure of the second sentence for a determination by the board of the question whether it is "substantially more detrimental than the existing nonconforming use to the neighborhood."
There can be argument that the present case does not fit the "except" clause at all because, for purposes of that text, the structure is still a cottage, or at least not a single-family structure, which ordinarily assumes ownership of some verge of land, with definite bounds, beyond the footprint, and also assumes (though more doubtfully) a right to occupancy year-round. From another angle there can be argument that, if the plaintiffs intended to insist that their alteration was within the "except" clause, they must refrain from applying for a special permit, and await or undertake independent litigation. However, we think it right to proceed on the basis that the plaintiffs' house is a single-family structure in relation to the "except" clause, and that the plaintiffs' application to the board may (and as a matter of procedural economy should) combine a contention that the alteration is validated by the "except" clause with a request (failing that contention) that the board grant a special permit after considering "detrimental" effect.
3. Inadequate treatment by the board. In this view (to repeat), the board should first have considered whether the alteration fit the "except" clause and, if the answer was no, gone on to the question of "detriment." But, judging by the board's letter of March 11, 1981, it did not address itself to the first question, and made a dubious approach to the second.
(a) The plaintiffs urge as matter of law that the "except" clause applies; that the "nonconforming nature" of their structure relates to density, as expressed in the minimum lot size requirement of by-law 1.46, and that this "nature" cannot be considered "increased" when the alteration reaches upward rather than laterally, with the structure remaining single-family, although much enlarged. We think it would be unwise for the court to decide this question of the application of the "except" clause as if it presented a nice legal point upon a motion to dismiss an action for failure to state a claim. A local board of appeals brings to the matter an intimate understanding of the immediate circumstances, of local conditions, and of the background and purposes of the entire by-law; and so, at least in the first instance, the board's administrative view is valuable and is wanted. Cf. Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483 , 486-488 (1979); Geryk v. Zoning Appeals Board of Easthampton, 8 Mass. App. Ct. 683 , 684-685 (1979).
The foregoing discussion also serves as an answer to the findings and rulings of the judge below.
The judgment of the Superior Court is vacated with directions to that court to remand the matter to the board for reconsideration.
authority or by the special permit granting authority designated by ordinance or by-law that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood."
[Note 1] Delores Fitzsimonds, his wife.
[Note 2] The condominium is called "Standish Village" and the plaintiffs' house "John Alden."
[Note 3] The units are also subject to the provisions of the master deed and the condominium trust (including the trust by-laws), but neither instrument was offered in evidence.
[Note 4] Nonconformity is evident even if 80,000 is arbitrarily divided by ten, without regard to any distinction between fee ownership and partial undivided ownership.
[Note 5] By-laws 1.41 and 1.42 regarding nonconformity appear to be glosses on the statute and need not be separately considered.
[Note 6] See O'Kane v. Board of Appeals of Hingham, 20 Mass. App. Ct. 162 (1985).
[Note 7] For decisions on the application of the second sentence of Section 6 to other facts, see Cape Resort Hotels, Inc. v. Alcoholic Licensing Bd. of Falmouth, 385 Mass. 205 (1982); Building Inspector of Groton v. Vlahos, 10 Mass. App. Ct. 890 (1980); Sullivan v. Board of Appeals of Harwich, 15 Mass. App. Ct. 286 (1983); Lomelis v. Board of Appeals of Marblehead, 17 Mass. App. Ct. 962 (1983). Compare Building Inspector of Seekonk v. Amaral, 9 Mass. App. Ct. 869 (1980).
[Note 8] The plaintiffs have not disputed the board's apparent assumption that permission would be required.
[Note 9] The plaintiffs contend that they are entitled in any event to the special permit because of their expenditure in reliance on the building permit, with the prospect of further expenses if they must restore the structure. They cite Marblehead v. Deery, 356 Mass. 532 (1969), but that case is a special and singular example of circumstances warranting a limitation, reflecting equitable considerations, of the principle that forbids estopping a municipality because of the act of one of its officials.

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I hope that you are all doing well! It’s the summer season now here and New York has been bustling. It’s nice to just eat outside and enjoy the sunny weather.
For this handout, we go into more detail regarding medical malpractice from both the eyes of the plaintiff and of the defendant. It’s very interesting especially seeing the evolution of liability and medical care in the United States from a legal viewpoint. The condensed summary of the cases put the concepts in action. I’ve also attached articles to accompany the handout. I highly recommend reading Dr. Bal’s article “An Introduction to Medical Malpractice in the United States.” I’ve included the link from the US National Library of Medicine as well as the PDF version of it.
I finished typing this on Friday night, but will set it to publish on Saturday morning (June 11) so that it will be fresh reading for a new day. 🙂 However, if you follow the main site, the PDF and links will be posted by Friday night if you want to read it in advance.
Now that we have a solid foundation of the duties and professional requirements for healthcare professionals, we will now examine the legal aspects of negligence and medical malpractice as a result of a healthcare professional failing to perform his or her duties at a standard level of care.
It is commonly known that procedures may not always go as planned and that the medical field itself is not immune to errors.
We discussed negligence and malpractice in Handout 1.3 on the section on unintentional torts. In this handout, we will go into more detail regarding the facets of negligence and malpractice as well as discuss preventative measures to avoid medical errors from occurring. Other issues that affect healthcare professionals are insurance fraud (false claims) and altering medical records.
We will examine the issues concerning both the plaintiff and defendant’s sides.
Malpractice is defined as professional misconduct or performing one’s duties with a disregard of skill and standard level of care resulting in injury, loss, or damage to the patient. Physicians and other healthcare professionals (licensed or certified) such as nurses, technicians, mental health professionals, and pharmacists are also held to the same professional standards as physicians. The standards set by licensing and certifying bodies form the foundation of the professional level of care that is expected from healthcare professionals and their peers as they practice.
What constitutes as negligence or malpractice may not always be easy to determine. Cases such as a surgeon operating on the wrong area are clear, but if a medical treatment or procedure does not have the planned outcome or result (e.g. when chemotherapy is not as effective as expected), patients may take the issue to court as a result.
As we will see, medical malpractice is more complex than a patient not receiving their expected outcome. Recall from Handout 2.0 (pp. 9-10) that physicians should be clear and thorough during informed consent. One of the key points we discussed was the reasonable physician standard in which the physician should explain the details of the procedure to the best of his or her ability since it is impossible to determine any unforeseen results. So when a procedure is unsuccessful or has an unplanned result, it does not necessarily mean that malpractice has occurred.
With medication errors, issues such as improper labeling and distribution, incorrect administration of medications, or miscommunication (e.g. misreading a prescription or lack of communication between the prescriber and the health professional administering the medication) are frequently seen in these adverse events.
The United States Food and Drug Administration (FDA) encourages individuals, healthcare professionals, and institutions to report any problems related to medical products through MedWatch, an online program to report adverse events.
Adverse events should be reported as soon as possible to ensure the patient’s safety and minimize any further risks as a result of the adverse event.
Actions considered negligent can fall under two categories: (1) committing an act that a reasonable person would not do or (2) failing to act (inaction/omissions).
Malfeasance is defined as performing an act which is wrong and illegal. For example, when a healthcare professional who is not licensed to practice medicine (e.g. prescribe medications) or does not have the ability to request procedures to be authorized (e.g. neurological testing) does so anyway, it is considered malfeasance. This also includes giving medical advice to patients when you are not licensed to do so.
Misfeasance is defined as the improper performance of an act which is normally legal. Usually injury and damages are the result of poor techniques by the healthcare professional. Examples include if a physician unintentionally writes the incorrect dosage of a drug on a prescription (which ends up harming the patient) or when a phlebotomist injures a patient by incorrectly inserting the needle to have blood drawn. In these two cases, it’s normally legal for a physician to write prescriptions and it’s normally legal for a phlebotomist to draw blood. However, the healthcare professionals did not perform these normally legal acts properly which resulted in the injuries.
Nonfeasance is defined as failing to perform a necessary or required action. For example, if a patient is choking in a hospital and the healthcare professional present in the area does not perform the Heimlich maneuver (abdominal thrusts) to assist the patient, it is considered nonfeasance.
These are all related to the term “feasance” which means performing an act or duty.
In order for a court to render a judgment on a case for negligence against the defendant (the physician or other healthcare professional), the plaintiff (the patient, his or her family, guardian, or a chosen legal representative) must provide evidence that the components of the four Ds of negligence were present.
Duty is an obligation or responsibility that each party has to each other in the physician-patient relationship. As we had discussed previously, physicians have a duty (obligation) to treat patients once a relationship has been established. Likewise, patients have a duty (obligation) to attend their scheduled appointments and follow their doctor’s instructions during treatment. If there are any issues or concerns, both parties (the physician and the patient) have a duty to notify each other. For example, during informed consent, physicians have a duty to notify patients of any adverse effects or risks that could result from medication or treatment.
In the context of mental health, mental health professionals have a duty to warn another person who may be harmed when the client/patient divulges information in private to the professional about a possibility of harming that person. If you remember from Handout 1.9 (p. 8), we discussed the case of Tarasoff v. Regents of the University of California, 17 Cal. 3d 342, 1976 in which the psychologist, Dr. Moore, failed to warn Tatiana Tarasoff when his patient Mr. Poddar discussed his threat to kill her during a private session. Mr. Poddar proceeded with the act. As a result of this case, the court decided that the safety of individuals comes before confidentiality. Thus, healthcare professionals have a duty to warn to ensure the safety and protection of individuals.
The duty of care applies the reasonable person standard. Recall that we discussed how the standard of care is expected for healthcare professionals when treating patients (i.e. when healthcare professionals use the same skill and care that a professional with the same background uses when caring for patients). The duty of care states that individuals have an obligation (duty) to act reasonably and prudently as those in similar circumstances. For example, a physician in one state is held to the same standards as a prudent and reasonable physician practicing in another state. The same applies for other healthcare professionals such as nurses, pharmacists, physical therapists, and mental health professionals.
There is also a duty of care for facilities once a patient is admitted. For example hospitals, clinics, and nursing homes have a legal duty to treat and care for a patient who has been formally admitted into the facility.
In the court setting, the judge determines duty. When the judge determines the duty of the healthcare professional, the patient has to provide evidence that he or she established a professional relationship with the physician.
Dereliction (also known as neglect) of duty is when a physician or other healthcare professional does not exercise an action accordingly that a reasonable, prudent, and ordinary peer would perform under similar circumstances. In the previous section on duty, the duty of care is founded on the reasonable person standard.
In the court setting, the patient must provide evidence that the way the physician or healthcare professional conducted procedures or treatment failed to comply with the expected standard level of care. For example, if the physician does not inform the patient that a procedure may have side effects or risks, he or she had breached the contract formed as a result of the physician-patient relationship. If the patient receives outcomes that were not discussed prior to the procedure, the physician may be charged with a dereliction of duty.
Also note that this is not the same as the patient receiving outcomes that were unanticipated or unsuccessful. As we had discussed earlier, the physician may fully inform the patient prior to the procedure that there is a chance that the results may not be successful. In this case, the physician has performed his or her duty to provide the patient with the necessary information to make an informed decision on whether to follow through with the procedure knowing that the results may not be as effective.
Direct cause is the continuous sequence of events leading to an injury whereas the injury would not have occurred. This means that there is a cause and effect relationship–the healthcare professional’s negligence results in the patient’s injury.
Preponderance of the evidence refers to evidence presented by a party which carries greater weight (i.e. evidence that is convincing and more probable in regards to truth and accuracy) than evidence presented by the other side. The evidence shows that more likely than not the incident occurred. If the defendant presents evidence that is more convincing to the court than the plaintiff, the court will find in favor of the defendant. When both the plaintiff and the defendant present evidence that is equally convincing, the case moves in favor of the defendant. Remember from Handout 1.4 (p. 6), we discussed that the burden of proof remains on the plaintiff.
For example, if a surgeon operates on the wrong body part or leaves an instrument inside the patient, the evidence “speaks for itself” when the plaintiff’s attorney presents the facts in court. In normal surgical circumstances, instruments cannot be left inside the patient unless the surgeon leaves it there. Since the evidence clearly points to the surgeon and the defendant had a duty to care for the patient (i.e. reasonably and prudently perform the surgical procedure to treat the patient), res ipsa loquitur can be inferred.
The defendant (the surgeon in our example) can then have a chance to disprove the presented evidence of the elements of res ipsa above.
Damages describe any financial compensation awarded to the plaintiff (the patient) due to injuries or loss caused by the defendant.
Patients can receive damage compensation for injuries related to permanent physical or mental disability, loss of earnings, costs of medical and hospital expenses, loss of enjoyment of life, and pain and suffering. When the plaintiff (the patient) receives any type of injury as a result of the defendant’s negligence, the court may award the plaintiff with compensatory damages to cover any losses or injuries from the defendant’s negligent actions.
Compensatory damages refer to the amount of money awarded by the court for the loss of income, pain and suffering, or injury suffered as a result of unlawful actions committed by another. In certain states in America, there is a cap (limit) on the amount of money awarded for negligence cases. Special (compensatory) damages are monetary awards compensating an individual who acquired financial losses as a result of an injury. For example, if the individual missed work due to the injury, he or she can be compensated for the lost earnings (if he or she had not been paid for the missed time already) or if he or she incurred additional medical expenses (such as for physical therapy or nursing care), he or she may be awarded special damages. Although the expenses were not directly caused by the defendant’s negligent actions, the individual acquired these costs because of the original negligence.
Punitive damages (also referred to as exemplary damages) are monetary awards by a court to an individual who had been harmed in a malicious and willful way. Punitive damages serve to punish the defendant committing the offense and also deter others from engaging in similar malicious conduct. For example, if an individual knowingly practices medicine without a license and severely injures a patient (e.g. an unlicensed assistant performs a procedure that paralyzes a patient), the patient can collect punitive damages. The individual deceived the patient that he or she is allowed to practice medicine and knowingly performs the procedure which could potentially harm the patient (which it did in our example). Since the actions were malicious and harmful, compensatory damages may be judged as inadequate in this case.
Nominal damages refer to small or token payments awarded to an individual by the court in which the individual had not suffered from any significant loss or injury. The amount awarded is usually small like $1 or just a few dollars to acknowledge that a patient’s legal rights were violated, but no major loss or injury had occurred.
Wrongful-death statutes are statutes established by individual states to allow the deceased’s dependents (e.g. spouse or children) or any individual responsible for handling the deceased’s assets (a court appointed administrator or named executor) to sue for wrongful death if a patient’s death was due to a physician (or other healthcare professional’s) negligence.
As we had discussed earlier, the plaintiff must provide evidence to the court to prove that the negligent actions directly caused the death of the patient (proximate cause). The plaintiff does not have to show that they were completely dependent on the deceased individual for support, but prove that there was monetary loss or injury due to the death of the individual.
When we looked at negligence, we examined that the injuries are caused by unintentional actions. Fraud, on the other hand, is the deliberate concealment of the facts or deception by an individual for unlawful or unfair gain.
The Office of the Inspector General (OIG) was established under the Department of Health and Human Services (HHS) to combat fraudulent activities (e.g. fraud related to false medical coding for procedures) and protect the programs under HHS such as Medicaid and Medicare.
In the case of People v. Gandotra (11 Cal. App. 4th 1355 (1992), 14 Cal. Rptr. 2d 896.), Dr. Suresh Gandotra had medical assistants perform medical care in his clinic. One medical assistant prescribed and gave controlled substances to the patients and the others provided medical services. Gandotra billed the state for the unauthorized services using his provider number. The actions were caught by undercover Medi-Cal agents who posed as patients. (Medi-Cal provides affordable health coverage for eligible low income residents in the state of California) His wife Rita Gandotra was also charged for processing some of the fraudulent Medi-Cal claims. He had to pay a total of around $31000.
Healthcare professionals who violate the FCA can face civil or criminal penalties.
Major areas examined by federal statutes to combat waste, fraud, and abuse include any extra costs related to federal healthcare program (e.g. Medicaid and Medicare), quality of patient care, access to affordable and professional care, freedom for individuals to manage their care (e.g. choosing a provider and healthcare plan), competition for services, and any fraud or abuse by healthcare professionals.
We have already looked at some of these statutes such as the Stark Law and the False Claims Act. As we saw closely from these statutes, the main focus was on the financial aspects related to combatting improper referrals or illegal receipt of funds. A significant amount of money is lost every year as a result of the improper receipt of federal or state funds.
We examined in cases such as People v. Gandotra how falsifying information on claims for payments resulted in Dr. Gandotra and his wife being charged and convicted of felonies as a result of these fraudulent claims. A key thing to keep in mind is that those who are responsible for submitting these claims (such as nurses, accountants, or other office staff) should verify the accuracy of the information on the claims. Knowingly submitting fraudulent claims can result in the courts bringing civil or criminal penalties in which the defendant may be imprisoned or may have to pay large fines.
Under common law charitable and religious organizations had immunity from civil liability. Tort immunity was given to charitable and religious organizations in the past based on the reasoning that they worked for the common good of the public.
However, this is no longer the case in modern American society. In 1942, the Appeals Court for the District of Columbia abolished charitable immunity in the case of President and Dir. of Georgetown College v. Hughes 130 F.2d 810 (D.C. Cir. 1942). From this case the court acknowledged the services that charitable organizations provide to the community and how it benefits those who do require this assistance. However, with the changing climate of charities gaining the financial resources to prevent and cover liability (i.e. be able to afford insurance), charities should be held to the same standards as private entities (e.g. individual practitioners or business corporations).
Another case reexamining charitable immunity is Abernathy v. Sisters of St. Mary’s 446 S.W.2d 599, 1969 MO in which the Supreme Court of Missouri ruled that the common law rule of charitable immunity was no longer applicable after Edward Abernathy (the plaintiff) was injured when the employee from the hospital run by the Sisters of St. Mary’s (the defendant, St. Mary’s Hospital) did not assist him when he went to use the bathroom. The employee, Marie Taylor, left him unattended in the bathroom and Mr. Abernathy sustained injuries after falling due to his current weakened condition. The court held the defendant responsible for its negligent actions.
As the 20th Century progressed, society’s views changed regarding charitable organizations in which these organizations were becoming large-scale business operations with the acceptance of donations, and should be held liable for negligence if an individual gets injured as a result of that negligence. Thus, they should be able to afford and carry liability insurance to cover torts (as we had mentioned above).
Although many states (such as Missouri) and the District of Columbia abolished charitable immunity as seen from the cases above, some state jurisdictions have acknowledged forms of charitable immunity to a certain extent.
So far we have seen things from the plaintiff’s (e.g. patient, family, or agent) side. In this section, we will take a look at the defendant’s (e.g. physician, other healthcare professional, or facility) side where they can proceed with an affirmative defense. An affirmative defense is the set of facts introduced by the defendant to counter the claims presented by the plaintiff. In the case of medical law, the set of facts presented by the defendant aim to show evidence that the patient’s condition was the result of external factors other than the defendant’s negligence (i.e. the defendant provided a professional standard of care, but the plaintiff did not follow the aftercare instructions which resulted in the adverse event/injury). If the defendant can provide facts (to counter the prosecution’s claims) which are then proven in court, the defendant can defeat the prosecutor’s claims regarding the case.
As we had examined, the burden of proof falls on the plaintiff to prove to the court that the defendant was responsible for the negligent or wrongful action. The defendant may deny the allegations and state that they are not true. This is referred to as denial. For example, if a patient sues a physician because the results of a procedure left side effects (e.g. scarring, loss of hair) or did not have a major result as anticipated, the physician can deny that he or she made any promises that the treatment would proceed perfectly. This can be documented through the informed consent forms signed by the patient in which the doctor documented that he or she stated the side effects of the procedure or that there may be a chance that the procedure may not provide the desired results/effects.
Assumption of risk is a legal defense which prevents the plaintiff from recovering damages (either limiting or defeating his or her rights to recovery) when initiating a lawsuit since the plaintiff has full knowledge and understanding of a risk, but voluntarily decides to accept the risks of the treatment, procedure, or activity.
Smoking is a well-known example of an activity. For example, smoking is known to contribute to lung cancer in the population. If an individual continues to smoke despite the advice of healthcare professionals or other public health literature, the individual assumes the risks involved with smoking.
An example of a medical procedure with risks of complications is a craniotomy. In a craniotomy, part of the bone is removed from the skull in order to access the brain. Since the brain controls many of the body’s functions, (depending on the individual) complications from the procedure can result in infections or impairment of cognitive functions. If the physician explains these risks to the patient and the patient acknowledges their consent to treatment by signing the form, the patient assumes the risks of the complications of the procedure (on the basis that the physician maintains the expected standard level of care during the procedure).
Contributory negligence refers to conduct on the part of the plaintiff which “contributes” to the cause of an injury. If the behavior of the plaintiff is a result of his or her negligence, he or she may receive a reduced award or even be barred from recovering financial damages from the defendant. For example, if a patient was instructed to ask for assistance if he or she needed to take a walk. If the patient decided to ignore the instructions which resulted in him or her getting injured from slipping or falling, the court can rule that the patient contributed to his or her injury since he or she did not inform the nurse or aide.
Comparative negligence retains similar elements to contributory negligence, but examines the extent to which the plaintiff’s negligent conduct contributed to the injury. The plaintiff can recover any damages caused by the defendant’s negligence. For example, if the plaintiff was injured and the damages totaled to $20000, and the defendant was 70% responsible with the remaining 30% being the plaintiff’s fault, the plaintiff can recover $14000.
The borrowed servant doctrine is a legal principle where an employer “borrows” an employee to temporarily work for them. The borrowed employee remains as an employee of the main employer. Under the borrowed servant doctrine, the main employer is not held accountable (not responsible) for the actions of the employee when he or she is performing services under the temporary employer.
Recall when we discussed respondeat superior in Handout 1.6 (p. 4) which discussed how the employer is responsible for the employees’ actions in the workplace setting. However, the temporary employer assumes responsibility for the borrowed employee’s actions under the borrowed servant doctrine. A well-known form of the borrowed servant doctrine is the “captain of the ship doctrine” in which a surgeon at a hospital (where the hospital is the main employer) is legally responsible for the healthcare professionals assisting in the operating room/OR (i.e. the OR nurse). Since the surgeon provides the instructions to the staff in the OR, he or she is responsible for the staff’s actions instead of the hospital. The staff is temporarily under the surgeon during the surgical procedure. In addition, the staff is also responsible for each of their individual actions during the surgery.
The statute of limitations which we discussed in Handout 1.6 (p.3) refers to the period of time that an individual has to file a lawsuit. As we had discussed in 1.6, the individual states set the laws regarding the time limit (usually one to three years). This can protect healthcare professionals and facilities from being taken to court after a certain length of time has passed (e.g. several years after the incident had occurred). This ensures that witnesses can still be reached and allow them to recall the facts more accurately.
In addition, the statute of limitations does not take effect (“run”) until the injury is discovered. The discovery rule refers to the legal theory in which the statute of limitations begins to run when the injury is discovered. However, when fraud is involved, the statute of limitations will not begin to run until the injury is discovered.
In the case of Buchanan v. Kull (Buchanan v. Kull, 35 N.W.2d 321, Mich. 1949), the plaintiff Olive Buchanan had a thyroidectomy performed by the defendants Dr. Albert Kull and Dr. Albert Johnson. The defendants failed to exercise a professional standard of care and injured the plaintiff’s laryngeal nerves during the procedure. This paralyzed her vocal cords and she was unable to communicate with her voice. The defendants told her that her inability to vocalize was due to a lack of calcium, asthma, and a heart condition.
The plaintiff had an examination at another hospital (Ford Hospital) because she was displeased with the advice and post-operative treatment and care she had been receiving from the defendants. The examination at Ford Hospital verified the injury to the vocal cords and laryngeal nerves and this was when the injury was first discovered. As a result, the fraud exhibited by the defendants throughout her post-operative treatment (i.e. concealing the truth of the injury, giving her a fraudulent diagnosis and its associated treatment), led to the statute of limitations running when she had discovered the injury. Otherwise, the statute of limitations would have expired (the operation was performed 2 years and 2 months before she had discovered the true cause of the injury).
As we had seen from the case, the defendants had full knowledge that their negligent actions caused the injury and attempted to conceal it from the plaintiff. Although time had passed, fraud had occurred in the concealment of the true nature of the injury. This allowed the plaintiff to pursue litigation upon the discovery of the injury from the examination at Ford Hospital.
We discussed the Good Samaritan Laws in greater depth in Handout 1.6 (p. 4). Good Samaritan laws protect off-duty healthcare professionals and lay citizens who are assisting individuals during emergencies.
Remember that healthcare professionals are not protected by Good Samaritan laws if they are performing actions and services in their place of employment.
Res judicata which is Latin for “the thing has been decided,” refers to cases in which (1) a final judgment has been issued between the plaintiff and the defendant and (2) the appeals process is over, and thus, the plaintiff may not be able to carry out a new lawsuit on the same matter against the same defendant.
For example, a patient sues a physician and hospital as a result of a severe allergic reaction after being administered penicillin when it was established that he or she was allergic to it. After both sides presented their cases in court, the judge ruled in favor of the patient. The patient cannot initiate a new lawsuit against the same hospital and physician for the same set of facts (i.e. the penicillin error) from the incident.

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