Love v. Med. Coll. of Wis. — Apr. 2016 (Summary)

EMPLOYMENT AND CLINICAL PRIVILEGE ACTIONS

Love v. Med. Coll. of Wis.
Case No. 15-cv-0650 (E.D. Wis. Apr. 22, 2016)

The United States District Court for the Eastern District of Wisconsin granted in part and denied in part motions for summary judgment on False Claims Act (“FCA”) violation and various state tort law claims made by a surgeon against a hospital as well as the medical college that had employed the surgeon. The surgeon alleged that after complaining about the quality of care at the hospital, he was retaliated against by being removed from the call schedule, negative and false information being spread about him, his hospital privileges being revoked, and prospective employers being provided with negative and false information about him.  However, at the time of the surgeon’s ultimate separation from the defendant medical college, he signed a separation agreement that included a release from liability from certain defined claims that had arisen before the execution date of the agreement, which the medical college argued served as a bar to the surgeon’s claims against that defendant.

The court agreed that the release provision barred the surgeon’s FCA claims against the medical college, with the exception of one alleged act that had occurred after the separation agreement had been executed.  With regard to the claims against the hospital, the court held that the surgeon’s allegations of FCA violations were insufficient because they primarily involved the alleged acts of the medical college and, contrary to the surgeon’s assertions, the court held that the hospital could not be held vicariously liable for released claims.  The court also held that the surgeon could proceed with certain state law claims, including alleged defamatory acts against both parties that occurred after the execution of the separation agreement, as well as claims against the hospital based on vicarious liability involving certain named individuals who the surgeon was able to demonstrate were subject to the control of the hospital despite the fact that they were actually employed by the medical college.

Mikeska v. Las Cruces Reg’l Med. Ctr., LLC — Apr. 2016 (Summary)

EMTALA

Mikeska v. Las Cruces Reg’l Med. Ctr., LLC
No. 33,836 (N.M. Ct. App. Apr. 21, 2016)

The Court of Appeals of New Mexico reversed a lower court ruling in favor of a hospital finding that it had not violated the Emergency Medical Treatment and Active Labor Act (“EMTALA”) with regard to treatment rendered to a patient. The patient had visited the emergency room in question twice on the same day and was discharged on both occasions after being misdiagnosed with a ruptured ovarian cyst. Four days later, she returned to the emergency room, at which point she was accurately diagnosed with a bowel obstruction. The patient filed her initial suit alleging that she was inadequately screened and was inappropriately discharged under EMTALA. The patient argued that the lower court erred in a number of ways concerning jury instructions, the use of an expert witness, and what evidence was considered admissible.

The court held that the lower court erred in allowing an expert witness to testify concerning the scope and intent of EMTALA which are matters of law, rather than limiting his testimony to opinions on matters pertaining to his field of expertise, which was emergency medicine.  The court held that it was also error for the trial court to allow the expert to reference the fact that the patient actually had health insurance coverage, which interjected a false issue into the trial with regard to the elements necessary to establish an EMTALA claim. Finally, the court held that the district court erred in instructing the jury to disregard evidence that the patient was misdiagnosed.

Strong v. Brakeley — Apr. 2016 (Summary)

PEER REVIEW IMMUNITY

Strong v. Brakeley
Docket No. And-15-260 (Me. Apr. 21, 2016)

The Supreme Judicial Court of Maine affirmed a lower court’s ruling that two physicians were subject to statutory immunity when they provided unfavorable peer evaluations to a credentials verification organization (“CVO”) regarding the plaintiff physician who was applying for medical staff appointment at a hospital that contracted with the CVO.  The plaintiff physician was denied staff privileges after receipt of the peer evaluations, and the plaintiff physician sued the responding physicians, alleging defamation and tortious interference with a business relationship.

The physicians who provided the unfavorable evaluations argued that they were immune from liability under the Maine peer review statute. The court agreed after a complete analysis of the statute, rejecting a number of the plaintiff physician’s arguments regarding the scope and extent of the immunity provided, ultimately holding that the responding physicians were subject to immunity because the evaluations they provided were made for the purpose of assisting a board, authority, or committee in carrying out its statutory “professional competence” duties as a matter of law.

Allen v. Harrison — Apr. 2016 (Summary)

INFORMED CONSENT

Allen v. Harrison
No. 111877 (Okla. Apr. 19, 2016)

The Supreme Court of Oklahoma reversed a partial grant of summary judgment to a physician in a medical malpractice action that was based on the doctrine of informed consent. The patient at issue had come to the emergency department after having swallowed a nail.  The defendant emergency room physician recommended that the patient eat a high fiber diet and let the nail pass naturally, and did not provide the patient with any alternative treatment options. Ultimately, after experiencing serious vomiting, the patient went to a different emergency department where she had the nail surgically removed from her intestines and received treatment for a perforated and infected bowel.

The patient sued the emergency room physician, alleging failure to obtain informed consent based on the physician’s failure to disclose potential risks of allowing the nail to pass naturally, as well as the failure to disclose other options, such as surgical removal. The physician argued that he was entitled to judgment as a matter of law, claiming that a valid informed consent claim was only recognized in cases involving the performance of an affirmative treatment, not, as in this case, where he relied on his clinical judgment in not treating the patient and therefore did not affirmatively cause her injuries.  The trial court agreed, granting summary judgment.

On appeal, however, the court disagreed with the physician’s argument and reversed, finding that it falsely advanced the position that a physician must secure a patient’s informed consent only for surgical procedures, not for those that are noninvasive, and that it ignored state law that requires a physician’s communication to be measured by the patient’s ability to make an intelligent choice.  The court also rejected the physician’s argument that he should not have to disclose alternative treatments that are beyond his scope of practice – like a surgical intervention – finding that he had a duty to disclose alternative invasive interventions even to the extent that they may have required a consultation with another physician to facilitate the disclosure.

Ferguson v. United States — Apr. 2016 (Summary)

SEARCH AND SEIZURE

Ferguson v. United States
Civil Action No. 14-6807 (E.D. Pa. Apr. 18, 2016)

The United States District Court for the Eastern District of Pennsylvania refused to dismiss the claims brought against the hospital employees and Custom and Border Protection (“CBP”) agents who allegedly violated a woman’s Fourth and Fifth Amendment rights.  After returning from a visit to the Dominican Republic, the woman was interrogated by CBP agents at the airport.  Suspecting her of drug trafficking, the agents took the woman to a nearby hospital.  The woman repeatedly refused medical treatment while at the hospital and hospital employees noted that she did not display symptoms of “drug packing.”

The CBP agents never obtained a warrant to search the woman.  Instead, they were able to convince a physician at the hospital to involuntarily commit her so that a warrant was no longer needed prior to conducting medical tests/searches.  Following the commitment, the hospital allegedly tied the woman to a bed, forcibly cut her clothing from her body, and performed an invasive visual and physical search of her body.  Hospital employees then allegedly administered two drugs to the woman intravenously, a sedative and an anti-psychotic, and proceeded to conduct numerous tests, including an electrocardiogram, a CT scan, a urine analysis, and an X-ray of the woman’s abdomen.  None of the tests revealed the presence of foreign objects and the woman was released later that day.  CBP agents returned the woman to the airport and set her free.  On her way home from the airport, the woman was involved in a car accident and sustained physical injuries.  She brought suit against a number of individuals, including the hospital and its employees, for injuries relating to the car accident, the invasive search, and unwanted medical procedures.

The district court rejected the hospital employees’ argument that they were private actors and could not be sued in a “Bivens” action (an action for damages, where there has been a violation of constitutional rights by someone acting under the color of federal authority).  The court found dismissal improper because the woman alleged a sufficiently “close nexus” between the CBP agents and the hospital employees.  Specifically, the CBP agents allegedly guarded the woman while she was at the hospital and conferred with the hospital staff with regard to the woman’s treatment and whether she was to be involuntarily committed.  Additionally, the woman alleged the CBP agents conducted a close visual inspection of her body after hospital employees restrained her and forcibly removed her clothing.  Taken together, the court found these alleged facts could support an inference that there was a close nexus between the government and private actors in this case.

Robinson v. St. John Med. Ctr., Inc. — Apr. 2016 (Summary)

EMPLOYMENT DISCRIMINATION

Robinson v. St. John Med. Ctr., Inc.
No. 15-5039 (10th Cir. Apr. 13, 2016)

The United States Court of Appeals for the Tenth Circuit affirmed summary judgment in favor of a medical center on claims of racial discrimination, retaliation, and wrongful termination made by a formerly employed nurse case manager.

The nurse case manager had been terminated for acting outside the scope of her position.  Specifically, after becoming concerned that a patient suffering from sickle cell anemia was not having her pain treated adequately, the nurse case manager proceeded to take several actions regarding the patient’s treatment without first obtaining physician approval, including:  (1) questioning the resident physicians regarding why the patient was not receiving antibiotics, why the patient was not on an IV pain pump, and why a hematologist had not been consulted; (2) contacting a sickle cell treatment facility in another state and obtaining information about a physician at that facility, for the purpose of arranging a consult for the patient; (3) consulting with a local infectious disease specialist regarding whether the patient should be on IV antibiotics; (4) asking the patient whether she was willing to have a pain pump; and (5) trying to obtain a hematologist for the patient and asking a social worker to determine whether transportation to another city (where the hematologist was located) could be arranged.  The actions of the case manager resulted in the patient refusing to take her medication and questioning why she was not receiving IV medication.  Further, several physicians and one nurse ultimately complained about the nurse case manager’s conduct, stating that it undermined the role of the physicians involved in the patient’s care and drove a wedge between the patient and the medical center.  The nurse was terminated.  She filed suit, alleging race discrimination, retaliation for race discrimination, and violation of public policy.

The lower court granted summary judgment to the medical center because the nurse failed to show a genuine issue of material fact as to whether her employer’s proffered reasons for terminating her employment were pretext for discrimination or retaliation.  The Court of Appeals agreed and stated that what the nurse offered as evidence of pretext was insufficiently supported by fact.  The court also reasoned that the offered evidence did not show weakness, implausibilities, inconsistencies, incoherencies, or contradictions in the medical center’s proffered legitimate reasons for her termination.

Blatchley v. Cunningham — Apr. 2016 (Summary)

PEER REVIEW PRIVILEGE

Blatchley v. Cunningham
Civil Action No. 15-cv-00460-WYD-NYW (D. Colo. Apr. 18, 2016)

The United States District Court for the District of Colorado granted a protective order in favor of a medical center, holding that the state peer review statute protected the records of the medical center’s trauma peer review committee, thus preventing discovery in a personal injury lawsuit.

In this case, the patient requested, during the discovery phase of her lawsuit, “any and all information regarding [her] created by or for any professional review, peer review or quality control or management from the [medical center].”  The medical center objected, claiming peer review privilege for the records of its trauma peer review committee.  The patient argued that even if the records of the committee are peer review records, the facts that are embedded within them – as opposed to the records of deliberations of the Committee – are not privileged since the privilege does not apply to original source documents.

The court disagreed, noting that the peer review statute does not make a distinction between facts and deliberation, nor does the statute specifically state that facts can be discovered from records generated as part of the peer review process.

U.S. ex rel. Polukoff v. St. Mark’s Hosp. — Apr. 2016 (Summary)

FALSE CLAIMS ACT

U.S. ex rel. Polukoff v. St. Mark’s Hosp.
No. 3:12-cv-01277 (M.D. Tenn. Apr. 13, 2016)

The United States District Court for the Middle District of Tennessee dismissed a physician’s False Claims Act suit, brought against a healthcare system and its affiliated corporate body, premised upon fraudulent Medicare/Medicaid billing by a hospital and physician for medically unnecessary patent foramen ovale (“PFO”) closures.  The plaintiff claimed that many PFOs do not require treatment and billing for the closure of a PFO is appropriate only if the closure is medically necessary.  In support of his claim that the defendants billed for medically unnecessary closures, the physician claimed that the physician in question performed 861 closures in 2010 while, during the same time period, all of the doctors at the Cleveland Clinic combined performed 37 such procedures.  The physician claimed that the hospital and health care system turned a blind eye to the volume of procedures being performed by the surgeon.

The district court held that the affiliated corporate body could not be held liable for a violation of the False Claims Act by the affiliated healthcare system/hospitals since the physician alleged no facts regarding the corporate body’s knowledge of or participation in any scheme to bill for medically unnecessary services.

Additionally, the district court held that the physician failed to allege sufficient facts necessary to overcome the heightened pleading standard for fraud.  Specifically, the district court found the physician failed to allege how the corporation would have known the medically unnecessary procedures were being performed, what actions the corporation could have taken to stop the alleged procedures, or reimbursement or reports sought by the corporation from the government for the procedures in question.  Additionally, although the physician alleged the corporation conspired with the hospital and the physician performing the procedures to defraud the government, the district court found the physician failed to identify any communication between the corporation and the other parties to the case.

Am. Civil Liberties Union v. Trinity Health Corp. — Apr. 2016 (Summary)

EMTALA STABILIZATION AND CATHOLIC RELIGIOUS DIRECTIVES

Am. Civil Liberties Union v. Trinity Health Corp.
Case No. 15-cv-12611 (E.D. Mich. Apr. 11, 2016)

The United States District Court for the Eastern District of Michigan dismissed a request by the American Civil Liberties Union (“ACLU”) for a declaratory judgment that a corporation that owns and operates Catholic hospitals violates EMTALA and the Rehabilitation Act when its member hospitals adhere to the Ethical and Religious Directives for Health published by the United States Conference of Catholic Bishops, because such adherence prevents patients from receiving termination of pregnancy services that are necessary to stabilize their health conditions.  The ACLU specifically challenged the corporations’ adherence to Directive 45, which states:  “Abortion (that is, the directly intended termination of pregnancy before viability or the directly intended destruction of a viable fetus) is never permitted.”

The district court did not make a decision regarding the substance of the ACLU’s claim.  Instead, it found the ACLU lacked standing to bring the lawsuit, noting the ACLU’s allegation that one of its members was previously denied treatment because of the directive was insufficient to establish standing.  Furthermore, the district court found the ACLU failed to establish that any of its current members would inevitably be at risk of injury, even if pregnant, stating the ACLU had presented no facts as to why this member faced a substantial risk of pregnancy complications requiring early termination of her pregnancy.  Additionally, the district court found the ACLU’s claim was not ripe for review because the civil rights group did not explain specific medical conditions that placed its members at risk of being harmed by Directive 45.

Langston v. Milton S. Hershey Med. Ctr. — Apr. 2016 (Summary)

EMTALA STABILIZATION

Langston v. Milton S. Hershey Med. Ctr.
Civil No. 1:15-CV-02027 (M.D. Pa. Apr. 11, 2016)

The United States District Court for the Middle District of Pennsylvania denied in part and granted in part motions to dismiss brought by a medical center, hospital, surgeon, and treating physician with regard to a former patient’s §1983, ADA, Rehabilitation Act, and EMTALA claims.

This case arose after a surgeon performed an ileostomy on the patient to treat a perianal fistula.  After the procedure, which had ended up being a more extensive surgery than she had hoped for, the patient said she experienced persistent complications.  Though she was experiencing leg cramps, she said that her doctor discharged her from the hospital, leaving her to take a 90-minute taxi ride to an empty house.  Within a day or so, the patient presented to another hospital’s Emergency Department, where she was treated for dehydration and then allegedly began to suffer renal failure.  As a result, she was transferred back to the medical center where her surgery had been performed.  When the medical center tried to discharge her, the patient arranged to be transferred to a nursing home for two weeks.  She continued to suffer complications, including problems with the ostomy-bag seal, dehydration, and renal failure.  These complications resulted in the patient seeking care from and being transferred numerous times between the medical center that performed the surgery, another hospital, a nursing home, and a rehabilitation facility.

The patient sued claiming, among other things, that the medical center violated EMTALA when it discharged her to a rehabilitation facility despite the fact that she was suffering from leg cramps.  She further alleged that the hospital violated EMTALA when it transferred her back to the medical center twice, the first time while she was experiencing renal failure and the second time while she was experiencing severe “vice-like” pain.

With regard to the patient’s transfer from the medical center to the rehabilitation facility, with alleged leg cramps, the court dismissed the patient’s EMTALA claim against the medical center, stating:  “…we agree with [the medical center] that ‘to stabilize’ or ‘stabilized’ does not require all ailments to be cured, only that no material deterioration of a condition is likely to result from or occur during the transfer.  Moreover, we remain unconvinced that the alleged leg cramps qualify as an independent, emergency medical condition.”

The court also dismissed one of the patient’s EMTALA claims against the hospital (the claim related to the patient’s transfer while in renal failure), because although the patient alleged that she suffered from renal failure while at the hospital, she alleged no facts concerning her condition at the time of the transfer or regarding the medical treatment she received at the hospital, if any.

The court allowed one of the patient’s EMTALA claims to proceed against the hospital – the claim related to her transfer to the medical center while suffering “vice-like” pain.  The court noted that the patient alleged her ostomy-bag seal failed multiple times, resulting in severe pain, and that her physician at the hospital ignored her requests for pain management and instead transferred her back to the medical center.  Based on these facts, the district court found the patient had adequately alleged she presented at the hospital with an emergency medical condition that was not stabilized prior to her transfer to the medical center.