EID v. Loyola Univ. Med. Ctr. — Feb. 2017 (Summary)

PEER REVIEW PRIVILEGE

EID v. Loyola Univ. Med. Ctr.
No. 1-14-3967 (Ill. App. Ct. Feb. 24, 2017)

The Appellate Court of Illinois for the First District upheld a lower court’s determination that the Illinois Medical Studies Act privilege applied to documentation generated by a hospital’s risk manager who had been directed by the hospital’s chief medical officer, a member of the hospital’s Medical Care Evaluation and Analysis Committee (“MCEAC”), to investigate a patient care incident on behalf of the MCEAC.

After being sued for medical negligence and reckless infliction of emotional distress stemming from the death of a toddler, the hospital refused to produce 13 pages of documents pertaining to the incident that had been generated by the hospital’s risk manager, arguing that because the documentation had been generated on behalf of the MCEAC, a peer review committee that reviews deaths in the efforts to reduce morbidity and mortality, it was privileged under the Medical Studies Act. The court upheld the lower court’s decision that the Act’s privilege covered the disputed documents because the information gathered was part of a peer review study covered by the Act. The court noted that the hospital’s bylaws authorized the chief medical officer of the hospital to begin a peer review investigation and the hospital provided affidavits which established that the risk manager reported the information resulting from her investigation to the chief medical officer and another member of the MCEAC for presentation to the full MCEAC.

As such, because the information contributed to the MCEAC’s deliberation, was considered prior to the conclusion of the MCEAC’s review, and fell within the scope of the Medical Studies Act, the court held that the 13 pages of documents were privileged under the Medical Studies Act.

Murphy v. Advocate Health and Hosps. Corp. — Dec. 2016 (Summary)

MEDICAL STAFF PRIVILEGES

Murphy v. Advocate Health and Hosps. Corp.
No. 4-16-0863 (Ill. App. Ct. Dec. 8, 2016)

The Appellate Court of Illinois for the Fourth District reversed a lower court’s denial of a physician’s request for a temporary restraining order (“TRO”) against a hospital which medical executive committee voted to terminate his privileges based on findings from an external peer review and the committee’s review of care the physician provided to a specific patient, which care had already resulted in a summary suspension of the physician’s privileges that the physician had previously sued to enjoin and which was already pending before the court.

The physician objected to the committee moving forward with its recommendation to terminate his privileges because the committee was basing its decision, in part, on the earlier summary suspension of his clinical privileges, which was the action that the physician had already sued to enjoin and which was in the interlocutory appeal stage before the court, scheduled to be heard in January 2017.   The lower court denied this second request for a TRO, finding that the hospital, in making the recommendation to terminate his privileges, had acted within its bylaws and that the physician failed to show a likelihood of success on the merits of his claim.

The court reversed the lower court’s ruling, however, reasoning that the physician did not have to show a likelihood of success; rather, that he raised a fair question about the existence of his right and that the court should preserve the status quo until his case was decided on the merits. Consequently, because denying the physician’s request to preserve the status quo would have essentially rendered meaningless the physician’s appeal pertaining to the summary suspension, the court reversed the lower court’s judgment and granted the physician’s request for a TRO.

Bousamra v. Excela Health — Dec. 2016 (Opinion)

Bousamra v. Excela Health
Nos. 1188 WDA 2015 to 1191 WDA 2015 (Pa. Super. Ct. Dec. 19, 2016)

Opinion attached

Equal Emp’t Opportunity Comm’n v. St. Joseph’s Hosp., Inc — Dec. 2016 (Summary)

ADA

Equal Emp’t Opportunity Comm’n v. St. Joseph’s Hosp., Inc.
No. 15-14551 (11th Cir. Dec. 7, 2016)

The United States Court of Appeals for the Eleventh Circuit affirmed the district court’s finding that the Americans with Disabilities Act (“ADA”) did not require job reassignment without competition as a reasonable accommodation.

A nurse was employed in the psychiatric ward of a hospital.  During her employment she began to experience back pain, developed arthritis, and underwent hip replacement surgery.  In order to alleviate the pain of her physical ailments, she began to use a cane.  Without her cane, she could only walk short distances and would need to stop to realign her body.  The director of Behavioral Health Operations at the psychiatric ward was concerned that the cane could be used as a weapon by one of the patients.  In response to the director’s concerns, the nurse produced a doctor’s note recommending use of the cane in the psychiatric ward.  Two years later, the hospital advised the nurse that she could no longer use the cane in the psychiatric ward because it posed a safety risk.  The hospital allowed the nurse 30 days to identify and apply for other positions at the hospital and compete with other internal applicants, even though she did not meet the criteria required to apply for a position internally.  The hospital’s human resources director emphasized that it was not their job to get the nurse a new job.  The nurse did not apply for any new positions until three weeks into her 30-day allotment and of the 700 jobs that were available, the nurse only applied to seven, and of those seven jobs, she was only qualified for three.  The hospital did not interview the nurse for any of the three jobs for which she was qualified.  When the nurse did not obtain another hospital position, the hospital terminated her employment and the Equal Employment Opportunity Commission (“EEOC”) brought a suit against the hospital on her behalf.

Both parties filed motions for summary judgment, with the district court ruling that the nurse established a disability under the ADA, that the hospital was reasonable in not allowing her to use the cane, and that the hospital did not have an obligation to reassign the nurse to a vacant position without competition.  The case went to trial with the jury bringing back a verdict in favor of the hospital.

On appeal, the EEOC argued that the ADA mandates noncompetitive reassignment and that had the jury been instructed as such, there would not have been a finding of good faith on behalf of the hospital.  The Court of Appeals agreed with the district court’s ruling, finding that the ADA only provides that an employer must reasonably accommodate a disabled employee; it does not say how the employer must do it.  The ADA provides that it may be reasonable to reassign a disabled employee to a vacant position, but it does not mandate reassignment.

The appeals court found that the employer had a best-qualified applicant policy, and that requiring reassignment in violation of an employer’s best-qualified hiring or transfer policy is not reasonable and passing over the best-qualified job applicants in favor of less-qualified ones is not a reasonable way to promote efficiency or good performance.  It also found that in the case of hospitals, the well-being and even the lives of patients can depend on having the best-qualified personnel.  Thus, undermining a hospital’s best-qualified hiring or transfer policy would impose substantial costs on the hospital and potentially on patients.  The ADA only requires an employer to allow a disabled person to compete equally with the rest of the world for a vacant position, not to undermine the business structure of a hospital or the need for quality patient care.

Interstate Fire and Cas. Co. v. Dimensions Assurance Ltd — Dec. 2016 (Summary)

INDEPENDENT CONTRACTOR/EMPLOYEE

Interstate Fire and Cas. Co. v. Dimensions Assurance Ltd.
No. 15-1801 (4th Cir. Dec. 6, 2016)

The United States Court of Appeals for the Fourth Circuit reversed a district court’s grant of summary judgment that held that an agency nurse did not qualify as an “employee” of a hospital for the purposes of coverage under the hospital’s professional liability insurance policy.

An employment agency provided health care providers to a hospital under a staffing agreement, which stated that all agency providers would be considered employees of the agency, rather than the hospital.  The agency providers were supervised solely by hospital staff and could also be disciplined or terminated by hospital staff.  Both the agency and the hospital had professional liability insurance for providers.  Following a medical malpractice suit that named one of the agency nurses as a defendant, the hospital’s insurer refused to defend the agency nurse or share in the defense costs.  The agency insurer contended that the agency nurse was a “protected person” under the hospital’s insurance policy and, therefore, was entitled to indemnification from the hospital’s insurer.

The hospital’s insurance policy provided protection to “employees” under a general liability section and under a professional liability section; in the latter, the definition of “employee” did not specifically exclude agency providers, as it did in the former.  The court, applying basic principles of contract construction, interpreted this to mean that the hospital’s professional liability coverage extended to agency employees.  The court justified this interpretation by applying the “right-to-control” test for employees.  This test asks whether the employer had sufficient power to hire and fire the employee, pay the employee’s wages, and generally control the employee’s conduct.

The court rejected the hospital’s insurer’s argument that the court should categorize the agency nurse as an “affiliated provider.”  Under the hospital’s insurance agreement, this would convert all providers, including direct hires, into “affiliated providers.”  The court also rejected the argument that the terms of the staffing agreement, which held that the agency nurse was not a hospital employee, should preclude the applicability of the hospital’s insurance policy to the nurse.  This, the court noted, was a contract between the hospital and the agency and did not involve either the insurance company or the agency nurse.  The terms of this third-party contract could not determine the scope of the hospital’s independent insurance contract.  Thus, the court held, a staffing agreement cannot control the applicability of a separate insurance contract.  The court accordingly dismissed the district court’s summary judgment ruling in favor of the hospital’s insurer and remanded the case.

Newborn v. Christiana Psychiatric Servs., P.A — Nov. 2016 (Summary)

PEER REVIEW PRIVILEGE

Newborn v. Christiana Psychiatric Servs., P.A.
C.A. No. N16C-05-047 VLM (Del. Super. Ct. Nov. 30, 2016)

The Superior Court of Delaware found that the state’s peer review privilege did not apply to the investigative files of a state agency since the agency received the initial complaint regarding a psychiatrist and acted without the involvement of the state medical board.

The psychiatrist began treating a patient, but when he entered into a romantic relationship with her, the physician-patient relationship was ended.  After a few months, the romantic relationship also ended; however, the psychiatrist allegedly continued to prescribe medication to his former patient for over 20 years, and when he provided her with a new medication to replace her Prozac, she suffered emotional side effects and subsequently committed suicide.  The chief medical examiner investigated the circumstances of the patient’s death and filed a report with the state Division of Professional Regulation (“DPR”), which investigated to determine whether there would be further proceedings against the psychiatrist.  After the investigation concluded, the investigative file was sent to the state Department of Justice (“DOJ”), which filed two formal complaints with the state Board of Medical Licensure and Discipline (“Medical Board”).  However, the psychiatrist passed away, and there was no further action.  The patient’s estate filed a medical malpractice action against the psychiatrist, and issued a subpoena to the DPR, as a non-party, among others, requesting the investigative files of the DPR.

The defendants moved to quash the subpoena arguing that since the DPR is a peer review organization, it is protected by the peer review privilege.

The court found that there may be situations when the peer review privilege applies to investigative files of the DPR, such as when the DPR acts as a mandatory investigative arm of the Medical Board.  However, in this case, DPR received the initial complaint from the chief medical examiner, and forwarded the investigative file to the state DOJ, so the matter never went to a peer group or the Medical Board.  Thus, the court found that the investigative file was not subject to the state peer review privilege.  The court ordered part of the investigative file to be disclosed to the patient’s estate, and part withheld on other grounds.

Thomas v. Archer — Dec. 2016 (Summary)

ORAL CONTRACT/PROMISSORY ESTOPPEL

Thomas v. Archer
Supreme Court No. S-15372 (Alaska Dec. 2, 2016)

The Supreme Court of Alaska affirmed in part and reversed in part the superior court’s grant of summary judgment to a physician and a hospital, holding that a patient-physician fiduciary relationship only extends to their medical relationship, an oral contract cannot be established without consideration, and a patient could have reasonably relied on a physician promise under the doctrine of promissory estoppel.

A patient was admitted to a hospital’s emergency department due to pregnancy-related complications.  The physician who examined the patient determined that she was at risk for premature delivery and needed an immediate transfer, by medivac, to another facility that was better equipped to handle her needs.  Before leaving, the patient and her husband notified the physician that they could not leave without preauthorization from their insurance provider.  The physician assured the couple that she would personally contact their insurance provider, and if the services were not covered, the hospital would cover them.  During the process of arranging the transfer, the patient’s husband signed an “Acknowledgement of Financial Responsibility,” agreeing to be personally responsible for any unpaid charges and to “save and hold the hospital harmless therefrom.”

Following the transfer and services, the couple sought payment under their coverage plan, but were denied and ultimately billed over $92,000 for the transfer and services because they failed to request preauthorization within 72 hours of beginning treatment or of admission to the healthcare facility, an in-network facility was available for treatment, and the couple lacked a referral or authorization for the transfer from an in-network physician.  Although the physician did contact the couple’s insurance provider, she did not do so until six months after the incident.  The couple filed suit against both the hospital and the physician alleging breach of fiduciary duty, breach of contract, promissory estoppel, and negligent or intentional infliction of emotional distress.  The Supreme Court of Alaska affirmed the superior court’s decision to grant the hospital and the physician summary judgment in regard to the couple’s breach of fiduciary duty and breach of contract claims, and its decision to dismiss the couple’s negligent or intentional infliction of emotional distress claims.  However, the Alaska Supreme Court disagreed with the lower court’s decision to grant the hospital and the physician summary judgment on the couple’s promissory estoppel claim.

Under the couple’s claim for promissory estoppel, they argued that the physician’s alleged promise to contact their insurance provider induced them to leave the hospital immediately without their insurer’s preauthorization, their reliance on her promise was foreseeable, leaving the hospital without preauthorization caused them to incur substantial medical expenses, and that the interest of justice is served by enforcing the physician’s promise.  The Alaska Supreme Court examined the four elements of promissory estoppel:  the action induced amounts to a substantial change of position; it was either actually foreseen or reasonably foreseeable by the promisor; an actual promise was made and itself induced the action or forbearance in reliance thereon; and enforcement is necessary in the interest of justice.  Upon examination of the elements of promissory estoppel, the Alaska Supreme Court concluded that a reasonable person could conclude that there was a promise on behalf of the physician on which the couple reasonably relied to their detriment, and reversed and remanded for further proceedings.

Herbert J. Thomas Memorial Hosp. Assn v. Nutter — Nov. 2016 (Summary)

RETALIATION CLAIM BY NURSE

Herbert J. Thomas Mem’l Hosp. Ass’n v. Nutter
No. 15-0695 (W. Va. Nov.17, 2016)

The Supreme Court of Appeals of West Virginia reversed a jury verdict of over $1 million in favor of a nurse who claimed she was wrongfully discharged in violation of public policy after she raised concerns about the hospital’s med-psych unit where she was the charge nurse.

The court reasoned that the nurse failed to offer any evidence from which a jury could actually conclude that the hospital violated any public policy principles.  With regard to the nurse’s claim of intentional infliction of emotional distress, the court rejected the nurse’s assertion that the hospital exceeded the bounds of decency when it wrongfully discharged her with the goal of undermining public policy. The hospital claimed that it terminated the nurse because she intentionally and falsely completed documentation in patient files, and at best the record established that the nurse completed the documentation carelessly and improperly. As such, the court concluded that the hospital’s actions were not so extreme and outrageous as to support a cause of action for intentional infliction of emotional distress and dismissed the nurse’s intentional infliction of emotional distress claim. With respect to the nurse’s defamation claim, the court concluded that her claim was barred by a one-year statute of limitation.  It noted, however, that the hospital’s chief nursing officer was compelled by ethics rules to report the nurse’s termination to the West Virginia Board of Examiners for Registered Professional Nurses.

Lastly, the court found that there existed sufficient evidence on the record such that a jury could rule in favor of the nurse on her unpaid wage claim. However, after reviewing the lower court’s abuse of discretion in the admission and refusal to admit evidence favorable to the hospital and asking over 300 questions of witnesses over the objections of the hospital, the court found the jury’s entire verdict inherently unreliable and remanded the nurse’s unpaid wages claim for further proceedings.

Armin v. Riverside Cmty. Hosp. — Nov. 2016 (Summary)

WHISTLEBLOWER

Armin v. Riverside Cmty. Hosp.
G052125 (Cal. Ct. App. Nov. 16, 2016)

In an unpublished opinion, a California superior court found that a hospital’s peer review process did not need to reach completion before a physician could bring a whistleblower claim under a state statute.  The case derived from a lawsuit brought by a physician after his privileges had been summarily suspended, but prior to the initiation of a hearing.  The physician claimed he was being retaliated against for bringing forward complaints about two other physicians in his specialty. While a lower court ruled that the physician must exhaust his administrative remedies before bringing his whistleblower lawsuit, the superior court found the standard of review allowed for the physician to bring forth his claim that the peer review process had been instigated in retaliation for his complaints.

Stafford v. Burns — Nov. 2016 (Summary)

EMTALA/MALPRACTICE CLAIM

Stafford v. Burns
No. 1 CA-CV 15-0476 (Ariz. Ct. App. Nov. 29, 2016)

The Court of Appeal of Arizona affirmed that a heightened burden of proof applied to a patient’s claims for medical malpractice and wrongful death, since services were provided in compliance with the Emergency Medical Treatment and Active Labor Act (“EMTALA”).

The patient arrived at a hospital’s emergency department after ingesting an unknown quantity of methadone. The patient was tested, evaluated, and monitored for possible methadone overdose by a physician. A second physician took over the patient’s care until he was discharged 12 hours later. The following day, the patient was found dead. The patient’s parents brought an action against the second physician, alleging that she negligently caused the patient’s death by discharging him prematurely. The parents’ burden of proof was rooted in a state statute that provides protections for emergency medical providers.

The parents denied the applicability of EMTALA because their complaint did not include an EMTALA claim and that their son was not diagnosed with an emergency medical condition.  However, the court found EMTALA applicable in this case because its mandates apply to all patients presented in emergency departments seeking treatment for what may be an emergency medical condition. The court noted that the fact that the patient was not ultimately diagnosed with an emergency medical condition is not dispositive. Nor was the fact that a different physician had already determined the patient did not have an emergency medical condition. The court found that if the patient was misdiagnosed or discharged prematurely, as the patient’s parents contend, those actions occurred in the course of providing EMTALA-mandated services. Therefore, the heightened burden of proof applied.