In re Christus Santa Rosa Health Sys. — May 2016 (Summary)

PEER REVIEW

In re Christus Santa Rosa Health Sys.
No. 14-1077 (Tex. May 27, 2016)

The Supreme Court of Texas held that a trial court abused its discretion when it ordered that medical peer review documents be disclosed without adequately reviewing those documents before compelling production.

A health system convened a peer review committee to review a surgery after the surgeon removed thymus gland tissue instead of the thyroid tissue in a patient, but, ultimately, the committee did not recommend any disciplinary action regarding the physician.  The patient brought suit against the surgeon, and the surgeon brought the health system into the suit.  The surgeon made a request for production of the peer review file, the health system objected by stating that the documents were privileged, the surgeon filed a motion to compel production and the documents were sent to the trial court for in camera inspection.  The trial court ordered the health system to produce the documents under a protective order, and the health system appealed to the Texas Supreme Court.

The state peer review law provides that documents will be disclosed if a peer review committee takes action that could result in disciplinary action against a physician.  The surgeon’s interpretation of the law was that a committee would take action when it convened to review the quality of medical care because it has the ability to recommend disciplinary action.  The Texas Supreme Court disagreed with that interpretation, and found that the trial court did not review the documents to determine whether the committee took any action that could result in disciplinary action against the surgeon.  Thus, the Texas Supreme Court determined that the trial court must review the documents to determine whether the committee took such action, which would authorize disclosure of the report to the physician.

Pickett v. Olympia Med. Ctr. — May 2016 (Summary)

BREACH OF DUTY OF CARE

Pickett v. Olympia Med. Ctr.
B260878 (Cal. Ct. App. May 25, 2016)

The Court of Appeals of California reversed a trial court’s order that dismissed a plaintiff-patient’s negligence action against defendant-medical center, which allowed the action to continue.

The patient sustained a neck injury and underwent cervical spine surgery, with the surgeon using a product that the FDA had not approved for such spine surgery, and about which it had issued a notification to health care practitioners about complications related to its use.  After the surgery, the patient experienced severe nerve pain, which required revision surgery.

The patient filed a negligence action against the medical center, which the trial court dismissed, and the patient appealed.  The appeals court relied on the principle that a hospital has a duty of care toward its patients and that it must provide procedures, policies, facilities, supplies, and qualified personnel reasonably necessary for the treatment of its patients.  The court held that the patient had sufficiently stated allegations to show a breach of the duty of care by the medical center when it failed to implement any guidelines or procedures regarding the use of the product in spine surgery, and failed to inform the patient of the FDA warning.

Munoz v. Watsonville Cmty. Hosp. — June 2016 (Summary)

EMTALA

Munoz v. Watsonville Cmty. Hosp.
Case No. 15-cv-00932-BLF (N.D. Cal. June 2, 2016)

The United States District Court for the Northern District of California granted with leave to amend a defendant-hospital’s motion to dismiss Emergency Medical Treatment and Active Labor Act (“EMTALA”) claims brought by a plaintiff-patient for failure to stabilize and disparate treatment.

The patient alleged that after being identified as having an emergency medical condition, the hospital failed to stabilize the condition because she received treatment for a mental condition instead of treatment for abdominal pain.  The court noted that if a hospital detects an emergency medical condition, it has a duty to stabilize, but EMTALA does not impose liability on a hospital that misdiagnoses the condition.  The court found that, in this case, plaintiff’s allegations appear to rest on a misdiagnosis and, if so, that would not be actionable under EMTALA.

The patient also claimed she received disparate treatment.  The court noted that the plaintiff’s claim appears to be based on her not being given an appropriate medical screening examination required by the appropriate standard of care.  However, the court found that the “measuring stick” for disparate treatment is not the standard of care, but what treatment other patients that had the same condition would have received at the hospital.  Since the patient did not allege that she received different treatment than others presenting with the same condition, she did not state a claim under EMTALA.

Fischer v. Nyack Hosp. — June 2016 (Summary)

Peer Review Actions

Fischer v. Nyack Hosp.
No. 521817, 521668 (N.Y. App. Div. June 2, 2016)

The Supreme Court of New York, Appellate Division, granted summary judgment to a hospital in a lawsuit brought by a surgeon asserting the hospital terminated her privileges improperly and violated the Medical Staff Bylaws.

The appellate court corrected some procedural mistakes made by the lower court and then considered the physician’s claim for injunctive relief (seeking reinstatement of her privileges at the hospital).

The court noted that, under the state statute that gives physicians access to judicial review of privileging actions, the court’s review was limited to whether the grounds set forth by the hospital were reasonably related to institutional concerns, whether they were based on the apparent facts perceived by the hospital, and whether they were assigned in good faith.  The court found all of these requirements met in this case.

It noted that the physician received a fair hearing, at which she was represented by counsel, conducted cross-examination, and presented evidence in support of her position.

Further, the grounds for termination of privileges were “reasonably related to institutional concerns and amply supported by proof.”  Specifically, the termination of privileges was recommended due to the following findings:  “a pattern of inaccessibility to staff when on call, she repeatedly did not respond promptly to the emergency department when on call, she failed to obtain coverage when unavailable because of illness, she left the operating room and could not be located while her patients were in surgery and she failed to properly disclose her suspension at the other hospital as required by [the hospital’s] bylaws.”

Shibley v. King Cty. Pub. Hosp. Dist. No. 4 — May 2016 (Summary)

HCQIA Immunity – NPDB Reporting

Shibley v. King Cty. Pub. Hosp. Dist. No. 4
No. 72855-5-I (Wash. Ct. App. May 23, 2016)

The Court of Appeals of Washington affirmed summary judgment in favor of a hospital that was sued by a physician whose employment had been terminated, holding that the hospital was entitled to immunity and that the employee released the hospital from all claims in a severance agreement.  Additionally, the court affirmed the lower court’s denial of attorney’s fees to the hospital.

This case arose after the physician admitted to dictating a history and physical examination for a patient who he had never seen and, as a result, his employment was terminated. The physician signed a severance agreement that unconditionally released the hospital from any and all claims stemming from his employment and termination. After the physician was terminated from employment, the Medical Executive Committee (“MEC”) voted to also terminate his clinical privileges.  On this same day, the hospital submitted an adverse action report to the National Practitioner Data Bank (“NPDB”), which it later corrected to state the action taken was a summary suspension instead of a revocation of privileges and termination of employment.  The physician exercised his hearing and appeal rights and the governing board of the hospital ultimately upheld the termination of privileges based on the physician’s false documentation of an H&P that he did not perform.

Despite repeatedly admitting that he did not perform the H&P that he documented, the physician sued.  The Court of Appeals of Washington held that the hospital was entitled to immunity because it met the appropriate requirements of the Health Care Quality Improvement Act (“HCQIA”).  The court noted that even if a hospital does not follow the HCQIA’s specified notice and hearing procedures, those are merely a safe harbor.  The hospital can still be entitled to immunity if it satisfies the standards of the HCQIA.

Further, with respect to the NPDB report, the court noted that the hospital corrected its mistaken report to the NPDB and there was no evidence that it had any ill motives in filing the first report that incorrectly stated the MEC’s recommendation with respect to the physician as a “termination.”

Additionally, the court found that the physician’s signing of the severance agreement barred him from making employment and termination-related claims, such as his claims for breach of the employment agreement and free speech retaliation.

While summary judgment was upheld against the physician, the court rejected the hospital’s assertion that it was entitled to attorney’s fees, reasoning that the claims were not entirely frivolous.

Elkharwily v. Mayo Holding Co. — May 2016 (Summary)

EMPLOYMENT DISCRIMINATION

Elkharwily v. Mayo Holding Co.
No. 15-1492 (8th Cir. May 20, 2016)

The United States Court of Appeals for the Eighth Circuit affirmed a district court’s grant of summary judgment against a hospitalist’s claims of retaliatory discharge in violation of the False Claims Act, the Minnesota Whistleblower Act, and EMTALA.   Due to concerns regarding patient safety, interactions with hospital staff, and the hospitalist’s truthfulness, the clinic had decided to terminate the hospitalist’s employment contract at the tail end of his 90-day probationary period.  Ultimately, it offered him the opportunity to resign, which he took, but he then sued the clinic shortly thereafter, claiming retaliatory discharge.  The trial court granted summary judgment to the clinic, finding that the hospitalist had failed to show that his termination had been a pretext.  On appeal, the appellate court concurred with the trial court that the hospitalist failed not only to prove that his employment termination was a pretext for retaliation but also failed to show that his termination was motivated exclusively by his reporting of the clinic’s alleged violations of the Minnesota Whistleblower Act, EMTALA, and the False Claims Act. The court reasoned that nothing in the record supported the hospitalist’s retaliatory discharge claim, and that the clinic had articulated a legitimate, non-discriminatory reason for the termination, namely, the hospitalist’s poor job performance evaluations that were confidential, based on feedback from numerous staff interviews, and performed independently of each other. Therefore, the lower court had properly granted the hospital’s motion for summary judgment against the hospitalist.

Rasor v. Nw. Hosp., LLC — May 2016 (Summary)

PATIENT SAFETY ORGANIZATIONS — PRIVILEGE

Rasor v. Nw. Hosp., LLC
No. 2 CA-CV 2015-0065 (Ariz. Ct. App. May 17, 2016)

The Court of Appeals of Arizona affirmed a trial court’s decision in a malpractice action to allow discovery regarding other patients who suffered similar injuries to the plaintiff patient in order to establish a habitual hospital practice and procedure. The court held that the information regarding other patients with similar injuries was not privileged under the Patient Safety and Quality Improvement Act even though the hospital may have to access patient safety work product to identify the requested information because the information that was actually being sought – patient medical records – was exempt from protection under the Act.

The patient sued the hospital after she developed a significant pressure ulcer following a prolonged hospital stay for open heart surgery, claiming that her ICU nurses had breached the standard of care by failing to reposition her during her stay.  In discovery, among other things, the patient had requested records of all patients who had developed pressure ulcers in the ICU, a request that the hospital claimed was overbroad, would violate HIPAA, and was privileged under statutes. While the trial court did narrow the discovery requests, it ordered the hospital to provide the requested records for a four-year period prior to the patient’s hospital admission.  On appeal, the hospital claimed that the request for patient records was barred by the Patient Safety Act.  The appellate court disagreed, holding that the requested patient records were not protected by the Patient Safety Act as they were not specifically created for safety or quality control purposes but, rather, were created to diagnose and treat medical conditions, and that even if identifying the relevant records required accessing patient safety work product through the PSO, it wouldn’t violate the act, because the information sought was exempt from protection.

Valfer v. Evanston Nw. Healthcare — May 2016 (Summary)

PEER REVIEW IMMUNITY

Valfer v. Evanston Nw. Healthcare
No. 119220 (Ill. May 19, 2016)

The Supreme Court of Illinois affirmed the Appellate Court of Illinois’ dismissal of a breach of contract claim brought by a physician against a hospital, holding that the hospital was immune from liability pursuant to the state peer review statute in the absence of willful and wanton misconduct. After a medical staff peer review committee at the hospital determined that at least 50% of the surgeon’s surgical cases lacked necessary indications for intervention, the surgeon’s operating privileges were suspended and, ultimately, the hospital denied the surgeon’s reappointment, citing patient safety concerns. Following a three-day medical staff hearing and an appellate review process, the hospital board adopted the recommendation to deny, after which the surgeon sued.  Finding that the hospital did not violate the bylaws, the lower courts determined that the hospital had immunity conferred by the state’s peer review statute.  The lower courts also determined that the case did not fall within the “willful and wanton misconduct” exception to peer review immunity, finding that the plain text of the statute required a showing of physical harm by an affected practitioner. The physician was unable to show physical harm when he alleged that the hospital did not follow its bylaws relating to suspension of privileges. The court reasoned that if the exception to immunity included any and all types of intentional harm, including harm to one’s reputation or economic well-being, it would negate any immunity provided by the peer review statute. Also, the court clarified that this case should not be interpreted as condoning sham peer review, explaining that hospitals do not have absolute immunity from all legal challenges to all decisions made by peer review committees. As examples, it offered the possibility of injunctive relief for decisions about compliance with hospital bylaws and tort actions for physical harm brought by willful and wanton misconduct, neither of which the court found in this case.

Doctor v. LifePoint Hosps., Inc. — May 2016 (Summary)

REVOCATION OF PRIVILEGES — TRO

Doctor v. LifePoint Hosps., Inc.
No. 2015 CA 0979 (La. Ct. App. May 12, 2016)

After being reinstated from a summary suspension, an OB/GYN’s privileges were revoked when new concerns arose which violated the probationary conditions that were put on his practice.

After receiving a hearing and appeal, the OB/GYN filed for a temporary restraining order (“TRO”) enjoining the hospital from revoking his clinical privileges and making an adverse report to a third party or agency, which was initially granted and later reversed by the trial court.

The hospital then suspended the OB/GYN’s clinical privileges and medical staff membership and the OB/GYN appealed. The court of appeals denied the hospital’s motion to dismiss the OB/GYN’s appeal as moot, holding that the reporting to third parties and agencies was not a “one-time event” and the suspension was for “no less than one year,” presenting a justiciable controversy.

The court of appeals went on to affirm the judgment of the trial court, finding that the trial court did not error when it refused to allow the physician to present evidence from three other physicians, noting that two of those physicians’ testimony was in the Hearing Committee Report provided to the trial court judge and the other physician was not affiliated with the hospital in any way.  The court of appeals also agreed with the trial court that evidence that other physicians violated the same rule was irrelevant and inadmissible. The court of appeals rejected the physician’s argument that he should have been granted a fair hearing when the conditions for reinstatement were imposed, noting he agreed to the conditions. Additionally, the OB/GYN was not able to show the trial court he would have likely succeeded on the merits, as the MEC decision was “made after a reasonable effort to obtain the facts and after affording [the physician] adequate notice and hearing procedures.”

Winger v. Meade Dist. Hosp. — May 2016 (Summary)

Employment Termination – Liberty Interest vs. Property Interest

Winger v. Meade Dist. Hosp.
No. 15-3075 (10th Cir. May 12, 2016)

The Tenth Circuit of the United States Court of Appeals found that a physician who’s employment had been terminated by a hospital did have a valid liberty interest claim, but not a property interest claim. The physician sued the hospital, claiming he was fired without due process and that the hospital infringed upon his liberty interest in his professional reputation by reporting his termination to the state board.

According to the physician’s contract, he was hired for an initial term of one year and could be terminated without cause on 60 days’ notice or immediately for “good cause.” Not long after he started, the hospital’s risk management committee conducted an investigation after receiving complaints about the physician. Based upon the findings of the investigation, the hospital revoked the physician’s temporary privileges for failing to practice within the expected standard of care. The hospital’s bylaws provided that temporary privileges could be terminated at any time without a right to appeal. The physician’s contract was then terminated “with cause” for failing to meet the “standards of care required of physicians in the community.” Reports were filed with the state board, which reported the termination to the National Practitioner Data Bank.

While a district court granted summary judgment to the hospital, the circuit court reversed the lower court’s findings, finding that under Kansas law, the physician had a property interest in his continued employment because his contract provided that he could only be terminated immediately if there was “good cause” and that it was a question for the jury as to whether he had received adequate due process. However, the circuit court did affirm the district court’s finding of summary judgment for the hospital with regard to the physician’s liberty interest claim, holding that the hospital was required to report the termination of the physician’s clinical privileges by statute.