Fitzsimmons v. Cardiology Assocs. of Fredericksburg, Ltd. – Aug. 2015 (Summary)

FALSE CLAIMS ACT RETALIATION

Fitzsimmons v. Cardiology Assocs. of Fredericksburg, Ltd., Civil Action No. 3:15cv72 (E.D. Va. Aug. 18, 2015)

A cardiologist whose employment contract was terminated after he alleged improper Medicare billing practices sued his former employer (a group practice) and physician shareholders. The federal district court granted the group’s and individual physician shareholders’ motion to dismiss, in part: the quantum meruit claim failed because a claim for quantum meruit is not applicable when an express contract governs the scope of the demand; and his claim for “Dividends, Distributions, and Shareholder Rights” did not state a cause of action. However, the court held that he adequately pleaded a cause of action for retaliation under the False Claims Act because he alleged he engaged in protected activity; defendants had knowledge of his activities; and defendants took retaliatory actions as a result of his activities. The court stated that summary judgment provides a more appropriate stage to consider the group’s argument regarding post-termination retaliation and the individual shareholders’ arguments regarding individual liability.

Boland v. Saint Luke’s Health Sys., Inc. – Aug. 2015 (Summary)

WRONGFUL DEATH

Boland v. Saint Luke’s Health Sys., Inc., No. SC 93906 (Mo. Aug. 18, 2015)

The Supreme Court of Missouri affirmed a trial court’s ruling that five wrongful death lawsuits were time-barred by a three-year statute of limitations under Missouri statute. The suits were consolidated and all arose from treatment received from the same employee of a hospital. The employee was a respiratory specialist who intentionally administered a lethal dose of succinylcholine, insulin, or other medications that resulted in the death of each of the patients. The same employee’s actions are alleged to have caused at least nine suspicious deaths and 18 suspicious medical emergencies, often involving cardiac arrest or the inability to breathe. The plaintiffs argued that there should be a delayed accrual of the statute of limitations in this case, as they claim that the hospital fraudulently concealed the facts underlying the patients’ deaths or that, alternatively, an exception should be made for fraudulent concealment.

The court was not persuaded that any exceptions to the statute of limitations should apply in this matter. The court stated that while it was difficult to reach a conclusion that left the patients without a remedy, the legislative branch of the government had determined the policy of the state and clearly fixed the time when the limitation period begins to run. Also, the court must interpret the law, not disregard it, as written by the legislature.

U.S. ex rel. Bingham v. Baycare Health Sys. – Aug. 2015 (Summary)

FALSE CLAIMS ACT

U.S. ex rel. Bingham v. Baycare Health Sys., No. 8:14-cv-73-T-23EAJ (M.D. Fla. Aug. 14, 2015)

The United States District Court for the Middle District of Florida denied a health system’s motion for summary judgment on claims brought against it under the False Claims Act and the Stark Law. The alleged violation involves construction of medical office buildings, common areas, walkways and garages on a hospital’s campus, and leasing arrangements between the developer/landlord buildings. Specifically, the lease was amended to allow referring physicians, their staff, and their patients to use parking systems owned by another entity at no charge, which resulted in an estimated annual parking benefit per referring physician of more than $10,000.

The alleged violation arose out of the fact that the health system billed federally sponsored health programs and the government paid for claims based on referrals from tenant physicians who received remuneration from the system for referrals. The court held that the claims were sufficient to survive summary judgment because they were grounded in sufficient indicia of reliability.

Abdale v. N. Shore Long Island Jewish Health Sys., Inc. – Aug. 2015 (Summary)

HEALTH INFORMATION PRIVACY

Abdale v. N. Shore Long Island Jewish Health Sys., Inc., No. 2367/13 (N.Y. App. Div. Aug. 14, 2015)

The Supreme Court of Queens County, New York granted in part and denied in part a health system’s motion for summary judgment. The litigation arose when the health system allegedly failed to adequately protect the confidential, personal, and medical information of their current and former patients, which ultimately resulted in identity and medical identity data breaches. Thirteen patients alleged that they experienced repeated instances of identity theft since the data breach.

The patients’ complaint alleged 11 causes of action, including: negligence per se under five different statutes, breach of contract, breach of fiduciary duty, negligence, breach of the implied covenant of good faith and fair dealing, and misrepresentation. The court dismissed all but the negligence claim because of technical issues with the pleadings. The court refused to dismiss the negligence claim, holding that it was clear that the patients gave the system personal information, the patients were informed that their personal information would not be disclosed to third parties, and the patients sufficiently stated their injuries based on such disclosures.

Sheldon v. Kettering Health Network – Aug. 2015 (Summary)

HIPAA – HEALTH INFORMATION PRIVACY

Sheldon v. Kettering Health Network, No. 26432 (Ohio Ct. App. Aug. 14, 2015)

The Court of Appeals of Ohio affirmed a lower court’s dismissal of tort claims, including invasion of privacy, negligence, negligence per se, negligent training, negligent supervision, intentional infliction of emotional distress, and breach of fiduciary duty, all of which were based on alleged violations of the federal Health Insurance Portability and Accountability Act (“HIPAA”). The litigation involved claims made by a patient that a health network had failed to protect the privacy of her electronic medical information, which was based on allegations that the administrator of the health network, who was the patient’s former husband, had improperly accessed and disclosed her protected health information to a subordinate network employee with whom he was alleged to be having an affair. The patient claimed that had the network been running and monitoring appropriate electronic record audits, the breaches could have been prevented or minimized.

The health network argued that HIPAA does not provide a private right of action, therefore, as a matter of law, the patient could not assert her common law tort claims, all of which essentially alleged HIPAA violations. The court agreed that the unauthorized access was a HIPAA-based claim and held that allowing such a claim to proceed against the network based on claims that the network failed to take reasonable steps allegedly required under HIPAA to protect her health information and detect the breaches at issue would effectively allow an unlawful private action for damages predicated on HIPAA requirements. The court also found that the network could not be found vicariously liable for the administrator’s intentional and unauthorized access of the records for purposes of furthering his affair, as it was not conduct of the kind which he was authorized to perform or which was actuated, at least in part, to serve the purposes of his employer, the health network.

Jones v. Temple Univ. – Aug. 2015 (Summary)

DISCRIMINATION – RACE AND SEX

Jones v. Temple Univ., No. 14-3390 (3d Cir. Aug. 13, 2015)

The United States Court of Appeals for the Third Circuit affirmed a district court’s order granting summary judgment in favor of a university on federal and state law claims of race and sex discrimination made by a physician. The physician was employed, in a non-faculty position, as a neuroradiologist for a hospital for which the University provided radiology services pursuant to a contract. The university faced a budget shortfall and needed to eliminate one position from the radiology department based on an insufficient volume of work. The university stated that the plaintiff physician was terminated because she was the only part-time, non-faculty neuroradiologist and because her contract only required 90 days’ notice to terminate as compared to a full year for the full-time faculty neuroradiologists. However, the physician alleged that the university discriminated against her on the basis on race and sex.

The court of appeals affirmed the district court’s grant of summary judgment in favor of the university, finding that the neuroradiologist had failed to present evidence from which a reasonable fact finder could conclude that the university’s legitimate, nondiscriminatory reasons for her termination were a pretext for race or sex discrimination and because, as the only part-time, non-faculty member, there were no similarly situated employees outside of her protected class who were treated differently.

Gumbs v. Dep’t of Health and Human Servs. – Aug. 2015 (Summary)

MEDICAL STAFF APPOINTMENT AND PRIVILEGES

Gumbs v. Dep’t of Health and Human Servs., No. 2014-3194 (Fed. Cir. Aug. 12, 2015)

The United States Court of Appeals for the Federal Circuit affirmed a physician’s removal from an Indian Health Services clinic based on charges of failing to maintain a valid medical license and practicing medicine without a valid license. The physician was aware that his medical license had expired. However, the day after it expired, he proceeded to make normal rounds, evaluating a single patient and prescribing for that patient medication before he was informed by the director of the clinic that he could not participate in any further patient care. The physician was notified that he was going to be removed from his position based on his failure to maintain a valid medical license, and his practice of medicine without a valid medical license. The physician appealed the agency’s action, and an administrative law judge found it to be reasonable under the facts.

The court of appeals agreed, determining that the decision was justified because not only did failure to maintain such a license adversely impact the clinic, but also it was required under the Medical Staff bylaws. The court was not persuaded that the penalty of removal was disproportionate for treating only one patient without a license. It reasoned that there was substantial evidence supporting the finding of a nexus between the physician’s misconduct and an adverse effect on the clinic.

Faulkner v. Dartmouth Hitchcock Med. Ctr. – Aug. 2015 (Summary)

DISCRIMINATION – DISABILITY

Faulkner v. Dartmouth Hitchcock Med. Ctr., No. 12-cv-482-SM (D. N.H. Aug. 12, 2015)

A radiology resident sued her former employer, a medical center, alleging that she was terminated in violation of the Americans with Disabilities Act (“ADA”) and the Family Medical Leave Act (“FMLA”). The resident had had insomnia, which was causing her to have performance-related issues at work. Her treating physician suggested accommodations to the medical center to allow for the resident’s disability.

The medical center fully complied with the suggested accommodations, which included scheduling and call modifications; however, over the course of more than a year, the resident’s performance did not improve. As a result, she was not promoted to her third year of residency and had to repeat her second year. In the middle of that year, the program received a report from her physician indicating that despite all of the accommodations in place, her medical condition was impairing her cognitive functioning such that the medical center had concerns about patient safety. She was ultimately placed on administrative leave and terminated after refusing to resign.

Her ADA claims against the program were twofold – that she had been terminated on the basis of race and disability and that the reason she had not secured a position in a training program in New York to which she had applied was because someone affiliated with the defendant program had said something “negative” about her medical condition.

The resident’s ADA claim failed because she had failed to properly file a claim with the EEOC and because, even if the information was disclosed to the New York program, the defendant did not learn of the resident’s medical condition in an inappropriate manner. Rather, the resident had voluntarily disclosed that information to the program. The resident’s FMLA claim failed because she failed to show any evidence that there was a connection to her invocation of her right to FMLA leave and her subsequent termination.

Tucker v. Mercy Tishomingo Hosp. Corp. – Aug. 2015 (Summary)

RACE AND AGE DISCRIMINATION CLAIMS – PHYSICIAN ASSISTANT

Tucker v. Mercy Tishomingo Hosp. Corp.
No. CIV-14-877-M (W.D. Okla. Aug. 4, 2015)

The United States District Court for the Western District of Oklahoma granted a hospital summary judgment with regard to a former physician assistant’s Title VII race discrimination and ADEA age discrimination claims brought after the hospital terminated his employment due to a perceived violation of EMTALA. The physician assistant – a black 56-year-old Bohemian man – allegedly told a patient with a snake bite that the hospital could not treat the wound because it did not have anti-venom. The patient left the hospital and sought care from another emergency department without being registered in the original hospital’s online charting system and transferred to the other emergency department by the physician assistant, in violation of EMTALA. After investigating the incident and discovering the possible EMTALA breach, the hospital terminated the physician assistant’s employment.

The court held that although the physician assistant was able to make out a prima facie case of age and race discrimination because a younger, white registered nurse was not reprimanded for failing to register the snake bite patient either, the physician assistant was unable to present sufficient evidence that the hospital’s stated reason for terminating his employment, the possible violation of EMTALA and hospital policies, was pretextual. However, the court denied the hospital’s motion for summary judgment with regard to the damages owed to the physician assistant for breach of contract, holding the letter sent from the hospital to the physician assistant terminating his employment a month earlier could not be considered 60-days’ notice of termination required by the physician assistant’s employment contract, and therefore created a fact question as to what damages the hospital owed the physician assistant. Additionally, the court held there was a fact issue as to whether the physician assistant mitigated his damages because he presented evidence that he sought and obtained employment at two clinics following his termination from the hospital.

Diederich v. Providence Health & Servs. – Aug. 2015 (Summary)

RETALIATION CLAIM – RESIDENT

Diederich v. Providence Health & Servs., No. 13-35494 (9th Cir. Aug. 5, 2015)

The United States Court of Appeals for the Ninth Circuit reversed in part a district court’s order for summary judgment in favor of a residency program, holding that comments made by the director of the family practice residency preceding a series of adverse actions against a resident presented sufficient evidence to establish a prima facie claim that the resident was being retaliated against because of a prior lawsuit. However, the court of appeals affirmed summary judgment for the program with regard to the resident’s claim that he was retaliated against for leaving work while sick and requesting vacation time, noting it was “clear from the record” the resident was disciplined for not following protocol to provide adequate coverage of his patients and for not notifying his attending physician of his absence. Additionally, the court held that requesting vacation time was not a protected activity under the Washington Law Against Discrimination.

The court of appeals affirmed the dismissal of the resident’s wrongful termination claim, holding the resident failed to establish a causal connection between his taking sick leave and any adverse employment action and failed to assert a basis in public policy protecting an employee’s choice to leave work without ensuring the work will be handled by someone else. With regard to the resident’s contract-damage appeal, the court of appeals dismissed the claim as moot, noting the resident had voluntarily dismissed the claim with prejudice in the district court. Lastly, the court of appeals affirmed the dismissal of the tortious interference claim, noting evidence of the resident’s one-year residency contract with no promise of completing the program failed to allege facts that could establish valid business expectancy.