Williams v. Hosp. Serv. Dist. of W. Feliciana Parish, La. – Aug. 2015 (Summary)

WHISTLEBLOWER CLAIM – PHYSICIAN

Williams v. Hosp. Serv. Dist. of W. Feliciana Parish, La.
Civil Action No. 15-00095-BAJ-SCR (M.D. La. Aug. 5, 2015)

The United States District Court for the Middle District of Louisiana denied a hospital’s motion to dismiss claims of employment retaliation and civil rights violations made by a physician. The physician was hired by the hospital to serve as Director of the Intensive Outpatient Program. The physician became aware of several instances of alleged illegal conduct ranging from patient abuse to improper billing through Medicare and Medicaid. The physician reported the misconduct to the management company in charge of the program, however nothing was corrected.

The physician claimed that as a result of her reporting activities she was harassed by the issuing of baseless write-ups, taking away her job duties, and changing department policies and procedures without her input. Eventually, the physician’s employment was terminated. The court ruled that the physician properly alleged a violation of the Louisiana Whistleblower Statute because the physician alleged enough facts to support that she was engaged in a protected disclosure activity and was allegedly fired for doing so. Also, the court was not persuaded that the hospital’s Board of Commissioners should not be considered persons under the federal civil rights statute because of their absolute control and authority over staffing decisions.

Venosh v. Henzes – Aug. 2015 (Summary)

PEER REVIEW PRIVILEGE – HMOS

Venosh v. Henzes
No. 1393 MDA 2014 (Pa. Super. Ct. Aug. 7, 2015)

The Superior Court of Pennsylvania affirmed a lower court’s rejection of peer review privilege asserted by an independent practice type of health maintenance organization (“IPA-HMO”). The litigation arose out of complications a patient received after having knee surgery. The IPA-HMO withheld materials relating to a quality-of-care review that it conducted of the medical providers and the incident at issue. Under the Pennsylvania Peer Review Protection Act, peer review occurs only when one professional health care provider is evaluating another professional health care provider. Pennsylvania courts have previously determined that HMOs cannot assert peer review privilege because they are not considered professional health care providers. The court was not persuaded that a distinction should be made for IPA-HMOs because the entity does not provide health care services. Also, the fact that the IPA-HMO has a review committee made up of some medical professionals is not enough to afford it peer review privileges.

Tierney v. Advocate Health and Hosps. Corp. – Aug. 2015 (Summary)

PATIENT PRIVACY

Tierney v. Advocate Health and Hosps. Corp., No. 14-3168 (7th Cir. Aug. 10, 2015)

The United States Court of Appeals for the Seventh Circuit affirmed the dismissal of claims alleging willful and negligent violations of the Fair Credit Reporting Act (“FCRA”). This litigation arose when burglars stole four desktop computers from the health corporation’s administrative offices. The computers contained unencrypted private data relating to approximately four million patients. Six of the affected patients brought this putative class action alleging that the corporation did too little to safeguard their information. The circuit court affirmed the findings of the district court because a hospital did not qualify as a “consumer reporting agency” under the FCRA.

Philips v. Pitt Cnty. Mem’l Hosp., Inc. – Aug. 2015 (Summary)

Philips v. Pitt Cnty. Mem’l Hosp., Inc., No. COA14-1372 (N.C. Ct. App. Aug. 4, 2015)

The Court of Appeals of North Carolina affirmed an award of attorney’s fees to a defendant hospital and several physicians against a plaintiff physician.

The plaintiff physician filed a lawsuit against the hospital and physicians after his privileges were revoked. The trial court held in favor of the hospital and physicians and awarded attorney’s fees. The physician appealed that award, but the court of appeals affirmed the award of attorney’s fees, finding that there was competent evidence to support the claim that the lawsuit was frivolous and malicious and that the claims stemmed from a common nucleus of fact.

Nosal-Tabor v. Sharp Chula Vista Med. Ctr. – Aug. 2015 (Summary)

WRONGFUL TERMINATION AND WORKPLACE RETALIATION

Nosal-Tabor v. Sharp Chula Vista Med. Ctr., No. D065843 (Cal. Ct. App. Aug. 3, 2015)

A California court of appeals overturned a trial court’s grant of summary judgment in favor of a defendant medical center and ruled that a jury could find in favor of the plaintiff nurse for wrongful termination and workplace retaliation.

The Nursing Practice Act allows nurses to perform certain functions that would otherwise be considered the illegal practice of medicine when those functions are performed according to a hospital’s “standardized procedures.” The medical center implemented nurse-led cardiac stress tests, which the nurse refused to perform, complaining that such stress tests were the practice of medicine because the hospital had not adopted standardized procedures.

The nurse filed a lawsuit for wrongful termination and workplace retaliation. The medical center filed a motion for summary judgment, which the trial court granted, finding that the nurse did not present credible evidence that the standardized procedures in place when she was terminated were insufficient. The appeals court overturned the ruling of the trial court, finding that deficiencies in the medical center’s documents could support a jury finding in favor of the nurse.

Leimbach v. Haw. Pac. Health – July 2015 (Summary)

EMTALA

Leimbach v. Haw. Pac. Health, Civ. No. 14-00246 JMS-RLP (D. Haw. July 22, 2015)

The United States District Court for the District of Hawai’i granted, with leave to amend, a motion to dismiss filed by a health system and others (“defendants”) in a suit brought by a patient who alleged that the defendants violated the Emergency Medical Treatment and Active Labor Act (“EMTALA”).

The patient argued that the defendants failed to provide him with an appropriate screening examination and failed to stabilize and/or transfer him. With regard to the inappropriate screening allegations, the patient argued that the health system, by providing only a “cursory examination,” failed to diagnose his necrotizing fasciitis. In addressing the defendants’ motion to dismiss, the court rejected this claim, instructing that “[d]efendants cannot incur EMTALA liability for what is merely an incorrect diagnosis.” The court also dismissed the patient’s claims of disparate treatment under EMTALA, finding that the patient’s “allegations fail to support the plausible inference that Plaintiff and [the four patients identified by patient to support his claim] had similar symptoms, let alone that Plaintiff’s screening examination was in any way different.”

Finally, the court dismissed the patient’s failure to stabilize and/or transfer claims under EMTALA based on his necrotizing fasciitis. According to the court, the patient alleged that the defendants failed to diagnose his necrotizing fasciitis. Consequently, the defendants “were obligated to stabilize only the medical conditions they actually diagnosed.”

Boatright v. Crozer-Keystone Health Sys. – July 2015 (Summary)

NEGLIGENT DISCLOSURE OF MEDICAL INFORMATION

Boatright v. Crozer-Keystone Health Sys., Civil Action No. 14-7041 (E.D. Pa. July 24, 2015)

The United States District Court for the Eastern District of Pennsylvania denied a health system and others’ motion to dismiss a patient’s claim for compensatory and punitive damages for negligent, unlawful disclosure of private medical information which allegedly resulted in the patient’s suspension and demotion in his employment.

The patient was an employee of the New Jersey Police Department and was involved in a motor vehicle accident. Shortly after the accident, the director of the emergency department and an emergency room nurse allegedly disclosed the patient’s private medical information to the patient’s superior officers without the patient’s knowledge or consent. The patient’s supervisors arrived at the hospital. The patient filed a complaint with the U.S. Department of Health and Human Services, Office of Civil Rights (“OCR”), which concluded that the director and emergency room nurse impermissibly disclosed the patient’s protected health information to his employer.

The defendants sought to dismiss the patient’s punitive damages claims by arguing, among other things, that there were insufficient facts to support an inference of reckless disregard for the rights of the patient. The court was not persuaded because the patient’s claims were sufficiently detailed. The court also concluded that at this stage of the proceedings the defendants were not entitled to a presumption that the patient’s supervisors showed up at the hospital out of concern for the patient’s condition (as opposed to the unauthorized disclosure). Finally, the court refused to strike portions of the pleadings that referred to the OCR’s administrative hearing on the matter because factual findings from the OCR’s investigation could potentially be admissible at trial.

Adams-Erazo v. Hosp. San Gerardo – July 2015 (Summary)

EMTALA

Adams-Erazo v. Hosp. San Gerardo, Civil No. 13-1918 (FAB) (D.P.R. July 24, 2015)

The United States District Court for the District of Puerto Rico denied a hospital’s motion for summary judgment in a suit brought by a patient’s surviving family members alleging, among other things, violations of the Emergency Medical Treatment and Active Labor Act (“EMTALA”).

The patient presented to the hospital’s emergency department with gunshot wounds. His surviving family members alleged that the hospital failed to appropriately screen the patient under EMTALA. In denying the hospital’s motion for summary judgment, the court held that a genuine issue of material fact existed as to whether the hospital provided the patient with an appropriate medical screening examination because the hospital failed to follow its gunshot wound screening protocol. In light of its decision on the EMTALA claim, the court decided to exercise supplemental jurisdiction over the plaintiffs’ Puerto Rico law claims.

Anderson v. E. Conn. Health Network, Inc. – July 2015 (Summary)

AGE/DISABILITY DISCRIMINATION

Anderson v. E. Conn. Health Network, Inc.
No. 3:12-CV-00785 (RNC) (D. Conn. July 16, 2015), aff’d, No. 15-2605-cv, 2016 WL 4502034 (2d Cir. Aug. 29, 2016)

A surgeon sued a health system after his employment was terminated, alleging that by failing to accommodate his depression, the hospital network violated the Americans with Disabilities Act (“ADA”), the Age Discrimination in Employment Act (“ADEA”), and the Connecticut Fair Employment Practices Act (“CFEPA”). The surgeon also sued for negligent infliction of emotional distress.

The surgeon was reported to hospital administration to be unsure of himself during surgery and unkempt in appearance, and at times appeared to be in a stupor-like state. The surgeon’s psychiatrist noted that these symptoms were related to his medication for depression. The psychiatrist adjusted his medication and his condition improved. Sometime later, several incidents related to the surgeon’s performance were reported. The administration suggested he take a leave of absence to be evaluated. It was recommended that the surgeon have a proctor when he returned to work. The administration and the surgeon worked to develop a plan for the surgeon’s resumption of duties. Proctoring was a part of this plan. The surgeon appealed the proposed plan because it would require reporting to the National Practitioner Data Bank (“NPDB”). An alternate plan was then submitted by the surgeon, which involved a “preceptor” for successive 30-day periods, which would not (according to the court) have to be reported to the NPDB. This plan was not acceptable to the CEO, who then terminated the surgeon’s employment. The parties continued to discuss his possible return to work until the ad hoc hearing committee denied his appeal of the original proctoring recommendation.

The court granted summary judgment in favor of the hospital on the ADA and CFEPA claims because there was only an obligation to provide a reasonable accommodation to his employment, not an accommodation of the surgeon’s choice. Specifically, the court concluded that the surgeon could not decline to accept the accommodation offered by the hospital (i.e., proctoring) solely because it was reportable to the NPDB. As for the age discrimination claims under the ADEA and CFEPA, the court granted summary judgment in favor of the hospital partly due to the fact that the surgeon was hired at age 64 – less than a year before his discharge – by the same person who fired him, which indicated that the discharge was not age-dependent. The court dismissed the negligent infliction of emotional distress claim without prejudice.

Okun v. Montefiore Med. Ctr. – July 2015 (Summary)

ERISA

Okun v. Montefiore Med. Ctr., No. 13-3928-cv (2d Cir. July 17, 2015)

The United States Court of Appeals for the Second Circuit vacated and remanded a judgment by a lower court dismissing a physician’s claim for severance benefits because a medical center’s severance policy did not constitute a “plan, fund, or program” under ERISA. The policy provided that all full-time physicians “employed before August 1, 1996 who are terminated for other than cause” are entitled to either 12 months’ notice or six months’ severance pay. Eligible employees with more than 15 years’ service were also entitled to automatic review of the amount of severance pay by the CEO.

This litigation arose from the termination of a physician who had been employed at the medical center for 23 years. After giving notice to his supervisor that he would be taking a job elsewhere in four months, the physician was fired “for cause.” The medical center claimed that the physician was fired because of what he said at a meeting. However, the physician argued that his “for cause” termination was a pretext for the medical center to interfere with his right to severance payments under the policy and ERISA.

The Second Circuit reasoned that the policy was covered by ERISA because it represented a multi-decade commitment to provide severance benefits to a broad class of employees under a wide variety of circumstances. Also, because the policy has been in effect in one form or another since 1987, the medical center demonstrated an “ongoing commitment” to providing severance benefits.