Robinson v. CareAlliance Health Servs. – June 2015 (Summary)

ADA AND HCQIA

Robinson v. CareAlliance Health Servs., No. 2:13-cv-1916-RMG (D. S.C. June 24, 2015)

A hospital that refused to allow an OB/GYN to provide obstetric services while sitting on a stool was denied summary judgment with regard to the OB/GYN’s ADA claim because material issues of fact existed as to whether the OB/GYN had a disability, whether the OB/GYN had ever requested an accommodation, and the appropriateness of the requested accommodation. The court granted summary judgment for the hospital with respect to the OB/GYN’s state law claims of civil conspiracy, abuse of process, and tortious interference with contract, holding that the hospital was entitled to immunity under the Health Care Quality Improvement Act (“HCQIA”) for the peer review action taken.

The OB/GYN, who has Type II diabetes and is insulin dependent, was, as a result of his condition, substantially limited in his ability to walk and stand and sometimes used a stool during surgery. Following several complaints, including a complaint that the OB/GYN had stumbled while sitting on the stool and touched the surgical drape, the chief medical officer asked two physicians to investigate.   The investigation report supported that the OB/GYN was fit for duty. An orthopedic surgeon also reported that the OB/GYN was able to function without limitations.

The chief medical officer then told the OB/GYN that he could use the stool so long as it did not become a patient safety issue. An occupational medicine physician also weighed in and confirmed that the OB/GYN was able to meet or exceed the physical requirements to safely provide care to his patients.

Two months later, the OB/GYN performed a difficult caesarian section on an obese patient while sitting on a rolling chair. A physician who assisted with the case complained that the OB/GYN was a danger to his patients. The anesthesiologist and two nurses also registered concerns about the OB/GYN’s care of the patient, including that he appeared unable to stand for any part of the procedure.

An investigating committee was appointed and subsequently determined that the OB/GYN performed in a “substandard” way during the delivery because he was unable to stand during the most important parts of the procedure. The investigating committee recommended that the OB/GYN not be permitted to sit during a caesarian section for “any period of time.” The MEC reviewed the report and asked the OB/GYN to provide additional information concerning his condition and any treatment he had requested for his condition. He was also required to undergo a comprehensive physical examination. Additionally, the MEC requested that the OB/GYN request a medical leave of absence within 10 days or face an immediate precautionary suspension.

The OB/GYN requested a 30-day medical leave, but was informed by the MEC that he was being placed on medical leave for at least six weeks. The MEC also notified the OB/GYN that he had to register for a Competency Advancement Program to assess his functional capacity.

Shortly thereafter, the OB/GYN’s legal counsel sent a letter to the hospital alleging that the hospital was keeping the OB/GYN away in violation of the ADA. The OB/GYN also gave notice that he was terminating his “voluntary” leave, agreed to undergo observation and simulation, and requested that the hospital accommodate his disability by letting him use a stool for procedures.

The chief medical officer informed the OB/GYN that he could not return until he was cleared by the MEC. The physician’s legal counsel provided another letter accompanied by physician reports and a demand to fully reinstate the OB/GYN. The MEC deferred a decision on the matter because it had yet to receive the information requested from the OB/GYN with regard to the functional capacity program. The OB/GYN then filed suit.

Citing to the OB/GYN’s testimony regarding the impact of his diabetic condition on his ability to walk and stand and the wide variety of assistive footwear he had to wear, the court found that the OB/GYN had presented sufficient evidence that he was disabled. The court also found that there was sufficient evidence to support that the OB/GYN was “regarded” as disabled.

The court also held that there was sufficient evidence to establish an issue of fact as to whether the hospital had notice of the OB/GYN’s disability and that he needed an accommodation to continue to perform his job and denied his request for an accommodation. The court pointed out that the evidence supported that the hospital knew the OB/GYN needed a stool for surgery, that it had determined that using the stool in the OR did not jeopardize patient safety, and that using a stool was even common practice. However, according to the court, there was evidence to support that the MEC did not reject the ad hoc committee’s recommendation that the OB/GYN only be permitted to practice if he could stand on his own for a minimum of two hours and not be allowed to sit during caesarean sections “for any period of time.” This was sufficient to establish a question of fact that the requested accommodation was denied.

With regard to the state law claims, the court rejected the physician’s argument that the hospital failed to qualify for immunity under the HCQIA. Even if the MEC deviated from the standard procedure set forth in the medical staff bylaws, the OB/GYN was provided with notice of the concerns and met with the investigating committee. The court concluded that the process that was followed was fair under the circumstances. The court also found that the OB/GYN was not able to overcome the presumption that the MEC’s actions were taken in a reasonable effort to obtain the facts in light of very serious concerns raised about the OB/GYN’s clinical practice. The court also rebuked the OB/GYN for “quickly assum[ing] the posture of an impending litigant.”

Reyes v. Glendale Mem’l Hosp. – June 2015 (Summary)

AGENCY

Reyes v. Glendale Mem’l Hosp., B255302 (Cal. Ct. App. June 26, 2015)

Following complications experienced by a patient after receiving care in the hospital’s ED, the patient sued the hospital on the grounds that the ED physician involved was the hospital’s agent. The trial court ruled in favor of the hospital’s summary judgment motion. On appeal, the California Court of Appeals reversed the trial court’s decision. The Appeals Court ruled that the hospital failed to refute the state law inference that the ED physician was the hospital’s agent, and that the hospital failed to show the patient knew of the ED physician’s independent status. The hospital had argued that it was not liable for the ED doctor’s care because the patient signed a form in her admission paperwork stating that “doctors caring for patients in the hospital are independent providers of medical care and are not employees or agents of the hospital.” In addition to making significant procedural mistakes in its summary judgment motion, the court found that the form was not enough to support the hospital’s motion because its mere existence was not sufficient to conclusively indicate that the patient should have known the physician was not the hospital’s agent.

Sumeru Health Care Grp. v. Hutchins – June 2015 (Summary)

BREACH OF CONTRACT

Sumeru Health Care Grp. v. Hutchins, No. 3:02-cv-447 (E.D. Tenn. June 24, 2015)

A Tennessee health care group employed a number of overseas physicians to serve medically underserved rural communities through the group’s clinics. Under a state program, the physicians were required to enter into employment agreements to obtain visas that would lift certain residency restrictions on their temporary visas. The group also placed physicians to work in a nearby hospital’s Emergency Department. The health care group alleged that the hospital improperly enticed physicians to breach their employment contracts and work solely at the hospital’s ED, leading to the financial collapse of the clinics and the group. The court held that the group was unable to show that its injuries were caused by the hospital or that the group suffered any damages other than those it self-inflicted.

Luedecke v. Tenet Healthcare Corp. – June 2015 (Summary)

AMERICANS WITH DISABILITIES ACT

Luedecke v. Tenet Healthcare Corp., Civil Action No. 3:14-CV-1582-B (N.D. Tex. June 23, 2015)

A Texas anesthesiologist filed a discrimination lawsuit against several hospitals that employed him. While the physician claimed that he was able to act as an anesthesiologist during his regularly scheduled shifts, he claimed that his employer’s refused to grant his request to be removed from the emergency on-call list due to impairments in his neck, violated the Americans with Disabilities Act. The physician further alleged that his employer refused to offer the accommodation and retaliated against him by increasing his on-call responsibilities. The District Court ruled that the physician’s amended complaint included sufficient additional facts including the specific daily tasks that were affected by his neck injuries, to allow the case to go forward.

Tate v. Univ. Med. Ctr. of S. Nev. — June 2015 (Summary)

MEDICAL STAFF HEARING

Tate v. Univ. Med. Ctr. of S. Nev.
No. 13-15736 (9th Cir. June 22, 2015)

The United States Court of Appeals for the Ninth Circuit affirmed in part and reversed in part a ruling by a district court dismissing a negligence claim made by a physician and granting a medical center summary judgment on a breach of contract claim. The litigation arose after the termination of the physician’s medical staff membership and clinical privileges. The court determined that the district court correctly dismissed the physician’s negligence claim because the Nevada statutes used as a basis for the claim were not violated. However, the court determined that the breach of contract claims were improperly dismissed because there was a material issue of fact as to whether the physician voluntarily resigned or whether his medical staff appointment was terminated in which case he was entitled to a hearing under the medical staff bylaws.

Antoniewicz v. Univ. of Tex. Health and Sci. Ctr. at Hous. – June 2015 (Summary)

EMPLOYMENT DISCRIMINATION

Antoniewicz v. Univ. of Tex. Health and Sci. Ctr. at Hous., Civil Action No. H-14-2083 (S.D. Tex. June 17, 2015)

The two female physicians alleged they were paid less and treated less favorably than male physicians in the university hospital’s OB/GYN department, claiming they were given less surgical time, were assigned more outpatient office-based assignments, and were excluded from meetings. After unsuccessfully resolving their concerns with the administrators, the female physicians reported the discriminatory conduct to the university hospital, who conducted an investigation. The university hospital found no discriminatory actions were taken. One month after the investigation, the hospital informed the female physicians their contracts would not be renewed. The female physicians claimed that the termination was based on their gender and sued under Title VII.

The physicians also claimed that the hospital administrators violated Section 1983 in their official and in their individual capacities by allegedly retaliating against the physicians by terminating their employment in order to intentionally chill their speech, discredit them and punish them for exercising their right to free speech.

The United States District Court for the Southern District of Texas dismissed the physicians’ Title VII discrimination and retaliation claims, holding the 300-day period in which to submit a claim to the EEOC began when the physicians received their notice of non-renewal of their employment agreement. Since the physicians failed to file their claims with the EEOC within this 300-day period, the court dismissed the physicians’ Title VII claims. The court also dismissed the physicians’ Title VII Fair Pay Act claim as also being time-barred.

With regard to the physicians’ Section 1983 claims, the court dismissed the claims against the administrators in their official capacities, holding these claims were effectively made against the state and as such were prohibited by the Eleventh Amendment.

However, the court denied the administrators’ motion to dismiss the physicians’ Section 1983 claims brought against them in their individual capacities, holding the administrators were not eligible for qualified immunity because the physicians’ speech about discrimination and pay disparity were a public concern. Finally, the court also dismissed motions made by the administrators to force the physicians to plead their Section 1983 claims with greater specifity, holding the physicians’ descriptions of the specific discriminatory actions of each administrator, the process used to report the behavior, and the timeline of this process in relation to the administrator’s decision not to renew the physicians’ contracts were sufficient to plead a Section 1983 claim.

Doctors Hosp. at Renaissance, Ltd. v. Andrade – June 2015 (Summary)

VICARIOUS LIABILITY

Doctors Hosp. at Renaissance, Ltd. v. Andrade
No. 13-15-00046-CV (Tex. App. June 18, 2015)

The parents of a child who was permanently injured at birth, sued the treating doctor and attempted to add the hospital as a defendant. The hospital involved was a limited partnership and the treating physician was a limited partner. The parents attempted to hold both the hospital limited partnership and the general partner in the limited partnership vicariously liable for the acts or omission of the limited partner treating physician. The hospital and the general partner moved for summary judgment claiming that limited partnership is not authorized to practice medicine and that the physician was not acting within the scope or authority of the limited partnership at the time of the injury.

The trial court denied that motion but permitted the hospital and general partner to appeal that decision to the Court of Appeals. The Texas Court of Appeals held that there was an issue of fact as to whether at the time of the incident the doctor was acting on behalf of the partnership. Therefore, the Court of Appeals affirmed the trial court’s decision denying the motion for summary judgment, and so a jury will decide whether the treating doctor was acting as the agent of the hospital and the general partner.

Doctors Hosp. of Augusta, LLC v. Alicea – June 2015 (Summary)

ADVANCE DIRECTIVES

Doctors Hosp. of Augusta, LLC v. Alicea, No. A15A0107 (Ga. Ct. App. June 17, 2015)

The Georgia Court of Appeals ruled that the Georgia Advance Directive for Health Care Act did not provide immunity to a hospital and physician for their role in intubating a patient and placing her on a ventilator against her wishes. Accordingly, the court permitted claims against the hospital and physician for medical battery and other causes of action to continue. However, the court also ruled that the hospital and physician were entitled to summary judgment on claims that their actions constituted malpractice for lack of informed consent.

A woman serving as the administrator of the estate of her grandmother sued the hospital and a physician after her grandmother was intubated and placed on mechanical ventilation which prolonged her life. The patient, in her advance directive, had stated that she did not want her life to be prolonged when she had an incurable and irreversible condition that would result in her death within a relatively short time or when she became unconscious and to a reasonable degree of medical certainty would not regain consciousness. The patient also noted that her granddaughter was to make end-of-life decisions if she was unable to do so. The granddaughter told her grandmother’s physician that she wanted to be contacted before her grandmother was intubated for any reason. The doctor failed to contact his patient’s granddaughter after his patient suffered from complications from surgery that necessitated intubation. The patient was intubated and her granddaughter was forced to make the decision in conjunction with the attending physicians to remove the ventilator and enter a do not resuscitate order. The patient died soon after.

The granddaughter filed her complaint against the hospital and physician for damages from breach of agreement, professional and ordinary negligence, medical battery, intentional infliction of emotional distress, and breach of fiduciary duty for injuries arising out of the care of her grandmother. The doctor and hospital argued that they were immune from suit under the Advance Directive for Health Care Act. The court was not persuaded by this argument because in order to prove that they were entitled to immunity they had to establish that the uncontroverted evidence of record showed that they were making a good faith effort to rely on the directions and decisions of the health care agent when her grandmother was intubated in the intensive care unit. The court held that the defendants had not met this burden. However, the court dismissed the granddaughter’s informed consent claim, finding that the patient had not suffered an injury that was proximately caused by the lack of informed consent.

Levitin v. Nw. Cmty. Hosp. – June 2015 (Summary)

DISCRIMINATION

Levitin v. Nw. Cmty. Hosp., 13 C 5553 (N.D. Ill. June 12, 2015)

A federal district court in Illinois ruled that a physician’s discrimination complaint was not barred by the statute of limitations. The physician and her practice had sued a hospital alleging a hostile work environment after her clinical privileges were terminated. The female Jewish physician filed an EEOC charge, alleging she was discriminated against and subjected to harassment.

The hospital countered her claims, stating that they were not within the statutory period. The court noted that while the only specific acts of discrimination alleged in the complaint had occurred years earlier, the complaint also stated generally that the physician had been subject to harassment up to the time of the filing of her complaint with the EEOC. Accordingly, she would be permitted to attempt to identify evidence showing that discrimination had occurred within the limitations period.

Yau v. Saint Francis Mem’l Hosp. – June 2015 (Summary)

RETALIATION

Yau v. Saint Francis Mem’l Hosp., Case No. 13-cv-02558-DMR (N.D. Cal. June 11, 2015)

A federal district court in California denied a hospital’s motion for summary judgment on claims that it retaliated against a nurse for reporting safety concerns to the state Department of Public Health. Accordingly, the nurse’s claims will be heard by a jury. However, the court granted the hospital’s motion for summary judgment on claims that it discriminated against the nurse based on her race and ethnicity.

The nurse had demonstrated strong job performance throughout her employment, and in 2009 worked 140 hours per two-week pay period. However, by the end of that year, the hospital prohibited the nurse from working extra shifts, and a policy was set in place to limit the number of consecutive shifts that a direct patient care provider could work. The following year, the nurse made internal complaints through the hospital’s internal event reporting system, because she was concerned with some of the care provided in the hospital’s burn unit. However, there were multiple instances where she received no response and the hospital did not take any corrective measures.

During a review of patient records, the hospital found that the nurse had accessed a patient’s medical record that she had no legitimate reason to access. The nurse was then fired for violating HIPAA and hospital policies.

With respect to the discrimination claims, the nurse argued that HIPAA violations had occurred before, but the other non-Asian nurses who committed the violations were not terminated. The court noted that the nurse failed to specifically identify any such instances, and that there was thus no evidence to support this claim.

With respect to the retaliation claims, the court found that under California law the nurse had raised a triable issue of fact over whether the reasons she was terminated were pretext for retaliation. The court noted that a jury could find that the hospital did not conduct a good faith investigation into the alleged HIPAA violation and that the discipline she received was more harsh than for similarly situated individuals.