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Arizona District Court Strikes Defense Expert in Prisoner’s 8th Amendment Case

Arizona District Court Strikes Defense Expert in Prisoner’s 8th Amendment Case

 

by Derek Gilna

 

Plaintiff Shannon Michael Clark alleged in his federal complaint that the Arizona Department of Corrections (ADOC), had violated his 8th Amendment rights against cruel and unusual punishment by failing to timely and properly treat his hepatitis C while imprisoned. Defendants were seeking to call Dr. Richard A. Manch as a defense expert despite the fact that Clark had consulted with the same doctor, via “telemedicine,” a simultaneous audio-video communications format where the parties can see and speak to each other.

 

Clark had asserted that this communication, wherein Dr. Manch was able to question him about the circumstances and characteristics of his illness, established a doctor-patient relationship between them, rendering Dr. Manch unavailable to testify as to what was said during those conversations. The state had sought to use Dr. Manch as a defense witness.

 

The court agreed with Clark, holding that “In light of the direct contact between Dr. Manch and Plaintiff via the “telemedicine meeting, and both Dr. Manch’s and Plaintiff’s position that they indeed had a doctor-patient relationship, the court finds that Dr. Manch and Plaintiff had a doctor-patient relationship such that ex parte communication with Dr. Manch was prohibited unless a valid medical release was obtained from Plaintiff.” Duquette v. Superior Court In and For County of Maricopa, 161 Ariz. 269, 270 (Ct. App. 1989); A.R.S. Section 12-2235.

 

The court further found that the medical release signed by Plaintiff was not valid, “as it does not contain language informing Plaintiff that he had the right to revoke his medical release as required by the Health Insurance Portability and Accountability Act (HIPAA);   failure to include this right to revoke language in a medical release form makes the release invalid pursuant to HIPAA.”

 

The court then permitted the ADOC 45 additional days to find a substitute medical expert, so that the case could continue. See: Clark v. Schriro, et al., USDC (D. Az.), No. CV 06-0085-TUC-FRZ (2007).

    

  

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Related legal case

Clark v. Schriro