Hall v. Flannery – May 2015 (Summary)

PEER REVIEW PRIVILEGE

Hall v. Flannery, Case No. 3:13-cv-914-SMY-DGW (S.D. Ill. May 1, 2015)

The United States District Court for the Southern District of Illinois ruled against a hospital that argued that audit logs for a patient’s medical records were protected by the state’s peer review statute. The plaintiff patient alleged that she received two different medical charts in her medical record during discovery. The plaintiff then requested the audit log of her medical record to determine who had the ability to edit her records. The defendant hospital argued that the medical record’s audit logs are protected by the state’s peer review statute.

The court ordered the hospital to turn over the audit log because audit logs are created in the hospital’s ordinary course of business and not specifically for a peer review committee.

Whitney v. Franklin Gen. Hosp. – April 2015 (Summary)

SEXUAL HARASSMENT/RETALIATORY DISCHARGE

Whitney v. Franklin Gen. Hosp., No. C 13-3048-MWB (N.D. Iowa Apr. 21, 2015)

The U.S. District Court for the Northern District of Iowa granted in part and denied in part a hospital’s motion for summary judgment against claims filed by one of its former employees, a medical records receptionist. The receptionist sued the hospital for sexual harassment, retaliation, and discrimination alleging that the hospital’s medical director had subjected her to sexual harassment over a period of approximately three years, culminating in her termination from the hospital. The receptionist did not report the alleged sexual misconduct while it was occurring, but she did take 12 intermittent weeks of Family and Medical Leave Act (“FMLA”) leave in order to obtain treatment for anxiety, depression, and symptoms of post-traumatic stress disorder. The medical director was eventually fired by the hospital after an investigation revealed that he had sexually harassed at least eight other women. Following his termination in June 2012, the receptionist reported to her superiors that she had been harassed by the medical director as well, from 2006 through 2009, although she had initially characterized their relationship as being a “consensual” one and only two months later reported that the medical director had sexually harassed her.

Following her return from her most recent FMLA leave, the receptionist requested a reduced schedule due to her anxiety and depression. The hospital permitted her to work half days, but did not excuse her additional absences. The hospital explained that the receptionist had not provided enough information about her condition or about her need for additional accommodations. In defense of its actions, the hospital explained that the receptionist had repeatedly displayed issues with attendance, productivity, and professionalism in the workplace. She had received repeated warnings prior to her termination and was even presented with a Performance Action Plan in an attempt to correct the problems before she was ultimately terminated in December 2012. The hospital emphasized that it had no knowledge of the sexual harassment against the receptionist until well after the medical director was terminated, and also insisted that it had legitimate, non-retaliatory reasons for terminating the receptionist.

The court granted summary judgment in favor of the hospital against the receptionist’s sexual harassment claims finding that no reasonable person could conclude that disciplinary actions, including her termination, constituted sexual harassment rather than retaliation, sufficient to render her sexual harassment claims within the relevant 300-day statute of limitations. However, the court denied the remainder of the hospital’s motion, concluding that the receptionist had presented enough evidence to create a genuine dispute of material fact over her remaining claims alleging retaliatory discharge, disability discrimination, and FMLA discrimination and permitted those claims to proceed to trial.

U.S. ex rel. Bellevue v. Universal Health Servs. of Hartgrove, Inc. – April 2015 (Summary)

FALSE CLAIMS ACT

U.S. ex rel. Bellevue v. Universal Health Servs. of Hartgrove, Inc., No. 11 C 5314 (N.D. Ill. Apr. 24, 2015)

The United States District Court for the Northern District of Illinois granted a psychiatric hospital’s motion to dismiss an action alleging violations of the False Claims Act. A therapeutic counselor filed the lawsuit on behalf of the federal government and the State of Illinois, alleging that the hospital had violated both federal and state law when it submitted certain reimbursement claims to Medicaid.

According to the counselor, the hospital knowingly and repeatedly billed Medicaid for patients that exceeded its authorized capacity. Among other things, the counselor stated that he had personally observed adolescents sleeping in the dayroom on rollaway beds instead of being admitted to a regular patient room. The counselor argued that an individual room is an essential part of the treatment provided by the psychiatric hospital, and argued that failure to provide this room was a complete abdication of the obligation to treat patients.

The court disagreed and held that the counselor had failed to provide sufficient evidence to support his contention that an individual room was essential to treatment. The court ruled that even if the hospital had falsely certified that it was giving individual rooms to patients who were actually sleeping in a common room, those facts alone would not be sufficient to establish liability under the False Claims Act. According to the court, absent an allegation that the failure to provide a patient room destroyed the effectiveness of the rest of the treatment provided, the counselor’s allegation that certain patients were deprived of that particular aspect of the services that they were entitled to cannot serve as the basis of a False Claims Act claim. For these reasons, and others, the court granted the hospital’s motion to dismiss the counselor’s complaint.

Mackey v. Sarroca – April 2015 (Summary)

PHYSICIAN-PATIENT RELATIONSHIP/ON-CALL PHYSICIANS

Mackey v. Sarroca, No. 3-13-0219 (Ill. App. Ct. Apr. 27, 2015)

The Appellate Court of Illinois, Third District, reversed a trial court’s dismissal of claims, finding that an on-call urologist’s advice given to the emergency department physician created a physician-patient relationship, giving rise to a professional duty of care.

The on-call urologist was responsible for giving urology advice to emergency room physicians. He was called by the emergency department physician to render advice on a patient who presented to the ED with a 6mm kidney stone. After the emergency room physician informed the urologist of the specifics of the patient’s case, the urologist prescribed a medication to help pass the stone, and ordered a follow-up appointment two days subsequent. The urologist did not admit the patient and did not prescribe antibiotics. A few days later, the patient developed numerous health conditions, including severe septic shock, renal failure, and multisystem organ failure. The patient initially sued only the hospital and emergency department physician, but later added the urologist as an additional defendant, alleging that her conditions were a result of the urologist’s failure to order treatment that would have prevented septic infection.

The court first addressed the urologist’s argument that the claim was not timely filed, finding that the patient did file within two years of discovering the urologist’s breach of professional duty. It was only during a deposition with the emergency department physician that the patient learned of the urologist’s involvement at the emergency department level and his alleged failure to address antibiotic treatment during that consultation. The court determined that the patient had no reason to know of the urologist’s alleged breach of a professional duty of care before that time. Because she filed within two years of discovering the urologist’s involvement, the claim was considered timely.

The court then addressed the issue of what, if any, duty of professional care the urologist owed to the patient. The court determined that the urologist’s level of involvement in the patient’s case fell in the realm of an actual physician-patient special relationship. The urologist was responsible for consultations with the emergency department physician, was compensated for his consultation, was consulted specifically on the diagnosis and medical advice regarding this patient’s case, and was responsible for making decisions over her care. Given these factors, the court concluded that the urologist did engage in a physician-patient relationship that gave rise to a professional duty of care toward the patient. The court reversed the trial court’s granting of a motion to dismiss on these claims and remanded for further proceedings.

Ashkenazi v. S. Broward Hosp. Dist. – April 2015 (Summary)

AGE DISCRIMINATION IN EMPLOYMENT ACT (ADEA)

Ashkenazi v. S. Broward Hosp. Dist., No. 13-15061 (11th Cir. Apr. 23, 2015)

The United States Court of Appeals for the Eleventh Circuit affirmed a district court’s grant of summary judgment in favor of a hospital district regarding age discrimination claims brought by an independent contractor surgeon.

The surgeon provided on-call services at several emergency rooms within the hospital district. In 2012, the hospital district revoked his major surgical privileges and reported him to the Florida Board of Medical Examiners. The surgeon then sued the hospital district, alleging that his privileges had been revoked due to his age, which was a violation of the federal Age Discrimination in Employment Act. However, his assertions were largely dismissed because he was an independent contractor rather than a hospital district employee. The surgeon appealed this determination, arguing that there was a genuine issue of material fact regarding whether he was an employee of the hospital district, and therefore he should be able to bring claims of discrimination and retaliation. He also argued that a Florida law allowed independent contractors to bring retaliation claims, and that the hospital district interfered with his employment relationships with other parties.

The court first reaffirmed the lower court decision that the surgeon was working as an independent contractor for the hospital district. The court disagreed with the surgeon’s assertions that the hospital district maintained a level of control and oversight over his medical services. The surgeon had his own practice, and his services to the hospital district only made up approximately 10% of his practice. Additionally, the surgeon’s written contract with the hospital district expressly stated that he worked as an independent contractor, and was not to be treated as an employee. The court also determined the surgeon’s state law claims were barred by a Florida statute that grants hospital districts immunity in lawsuits arising out of credentialing and peer review processes and that the surgeon could not prevail in this claim that the hospital district interfered with his relationship with third parties, as his claim offered only speculation about a potential relationship with a private party. Because there was not an actual and specific relationship that the district could have interfered with, the court affirmed the dismissal of this claim.

Geisinger Clinic v. Radziewicz – April 2015 (Summary)

RESTRICTIVE COVENANTS

Geisinger Clinic v. Radziewicz, No. 505 MDA 2014 (Pa. Super. Ct. Apr. 24, 2015)

The Superior Court of Pennsylvania reversed a lower court’s ruling and imposed a preliminary injunction on a physician that prevented him from practicing medicine for six months and three weeks within a 15-mile radius of the medical clinic where he had previously been employed. Plaintiff, a medical clinic, hired defendant, a physician, to practice medicine for its family medicine group. The parties’ employment contract contained a non-compete clause that stated that the physician will not practice medicine for two years within a 15-mile radius of the clinic if he terminated the agreement. The physician left the clinic and obtained employment outside of the restricted area for 18 months. The physician’s new employer then transferred him to a location that was within the 15-mile radius. The clinic sued the physician, seeking a preliminary injunction to enforce the non-compete clause until the two years had been satisfied or until the issue had gone to trial. The court denied the clinic’s request, ruling that the clinic could be adequately compensated by monetary damages, that the clinic would not likely prevail at trial, and that a greater injury – the loss of the physician’s livelihood – would occur if it imposed the injunction.

On appeal, the trial court decision was reversed and the preliminary injunction was imposed. The court stated that the clinic would not be adequately compensated through monetary damages because the non-compete clause was entered into to prevent a potential loss, rather than an actual loss, and this intent must be complied with by enforcing the agreement. Next, the court explained that there was a valid agreement between the parties, and the physician clearly breached that agreement, thus the clinic would likely prevail at trial. Lastly, the court held that no greater harm would result if it imposed the injunction because the physician had already worked outside the area for a year and a half, and failed to show why that arrangement could not continue.

Click Here to read Dissenting Opinion

Ass’n for Disabled Ams. Inc. v. Reinfeld Anderson Family, Ltd. – April 2015 (Summary)

ADA – ACCESSIBILITY ISSUES

Ass’n for Disabled Ams. Inc. v. Reinfeld Anderson Family, Ltd., No. 1:12-CV-23798 (S.D. Fla. Apr. 21, 2015)

The United States District Court for the Southern District of Florida denied a physician’s motion to dismiss an Americans with Disabilities Act (“ADA”) lawsuit filed by a former patient finding that the patient had standing to sue and was entitled to discovery to prove that he was retaliated against when the physician terminated their patient-physician relationship. Plaintiff, a disabled, wheelchair-bound patient, visited the private offices of defendant, a physician. The patient alleged that the physician’s office was not handicap accessible and sued, seeking permanent injunctive relief under the ADA that would require the physician to make his office ADA-compliant. After the patient filed the lawsuit, the physician terminated the patient-physician relationship, informing the patient that the lawsuit he filed created a conflict of interest such that the physician could no longer treat him. The trial court initially dismissed the lawsuit, finding that because the physician-patient relationship had been terminated, the patient did not have standing to seek the injunctive relief as the patient no longer had any intent of returning to the physician’s office. Subsequently, however, the patient amended his complaint to add an allegation of retaliation under the ADA on the basis of the termination of the physician-patient relationship.

Upon reconsideration, the court denied the physician’s motion to dismiss and allowed the patient’s claims to move into discovery. The court explained that it had been error to dismiss the suit due to lack of standing given that the issue of standing is reviewed when a complaint is filed, and that the patient-physician relationship had not been terminated until after the filing of the complaint. Additionally, under the ADA, a plaintiff must only intend to return to the alleged non-compliant building in the future in order to seek an injunction, which is a very liberal standard. The court also determined that the patient properly pled that he was retaliated against under the ADA when the physician terminated their patient-physician relationship. The patient only had to allege that the termination of the patient-physician relationship was not “wholly unrelated” to his ADA protected activity, the filing of his lawsuit, which can be shown by a temporal proximity. The court did note that discovery may ultimately show that their patient-physician relationship was terminated due to a non-retaliatory reason – the conflict of interest created by the ongoing lawsuit – but at this point in the litigation the claim could not be dismissed.

Krusac v. Covenant Med. Ctr., Inc. – April 2015 (Summary)

PEER REVIEW PRIVILEGE

Krusac v. Covenant Med. Ctr., Inc., Docket No. 149270 (Mich. Apr. 21, 2015)

Overturning a lower court decision, the Supreme Court of Michigan held that the state’s peer review statute protected the objective facts described in an incident report.

In this case, a patient’s estate brought suit against the hospital where the patient died following a cardiac catheterization during which she fell off the operating table. A nurse who was present at the catheterization – and during the patient’s fall – filed an incident report shortly after the event, which she submitted to her supervisor. During discovery, the patient’s estate became aware of the existence of the incident report and sought the facts contained therein, alleging that those facts were necessary for cross-examination because it would be unethical for the hospital to offer a defense inconsistent with the facts contained in the report. The trial court examined the incident report and then ordered the hospital to disclose the first page (the objective facts) to the estate.

The hospital appealed to the Supreme Court of Michigan, arguing that the incident report was protected by the state’s peer review statute and that the appellate court precedent which was being followed by the trial court incorrectly interpreted that state statute.        The Supreme Court of Michigan agreed with the hospital and clarified that the state’s peer review statute does not include an exception for objective facts that are recorded in an incident report. Instead, such facts are protected by the statute, along with all “records, data, and knowledge” collected for or by a peer review committee.

Tri State Advanced Surgery Ctr., LLC v. Health Choice, LLC – April 2015 (Summary)

ANTITRUST

Tri State Advanced Surgery Ctr., LLC v. Health Choice, LLC, No. 3:14CV143-JM (E.D. Ark. Apr. 16, 2015)

The United States District Court for the Eastern District of Arkansas dismissed antitrust claims that had been brought against a physician-hospital organization and an insurer, finding that the complaint against them failed to satisfy the rule of reason analysis because it did not properly allege power over the relevant market.

In this case, an ambulatory surgery center and two surgeons who practice at that center (the plaintiffs) brought a lawsuit alleging that the physician-hospital organization and the insurer violated the Sherman Antitrust Act. The plaintiffs alleged that the insurer sent letters to the surgeons demanding that they attest that they would no longer refer patients to the out-of-network ambulatory surgery center and would instead refer patients to in-network facilities (such as the hospital that was part of the physician-hospital organization). When the doctors refused to comply, they were terminated from the insurer’s network.   They claimed these activities constituted an anticompetitive effort to dry up referrals to the ambulatory surgery center.

While the plaintiffs alleged that consumer choice had been limited since doctors were forced to stop referring patients to the ambulatory surgery center and patients were being precluded from using their out-of-network benefits for which they paid additional insurance premiums, the court held that these allegations were insufficient to show detrimental effect to competition since the services of the ambulatory surgery center were still available to the public. The court also held that the plaintiffs failed sufficiently to allege market power since they proposed to define the market impermissibly (by limiting it to patients who pay by private insurance bought from Cigna rather than by incorporating into the definition of “market” the alternative patients who were available to receive services at the ambulatory surgery center and surgeons). The court also found the “geographic market” proposed by the plaintiffs to be lacking since it referred generally to the Memphis metropolitan statistical area and “adjacent counties,” without delineating an area where patients may lack alternatives in the market should prices increase as a result of the defendants’ alleged activities.

Murphy v. Goss – April 2015 (Summary)

HCQIA IMMUNITY – NPDB REPORTING

Murphy v. Goss, No. 3:14-cv-01135-SI (D. Or. Apr. 16, 2015), aff’d, No. 15-35397 (9th Cir. July 11, 2017)

This case involves a cardiac anesthesiologist who consumed one to two glasses of wine while at a restaurant and while on call. The cardiac anesthesiologist was found by the state medical board to have engaged in unprofessional conduct. In turn, the state medical board reported the cardiac anesthesiologist to the National Practitioner Data Bank (“NPDB”). While the cardiac anesthesiologist did not challenge the validity of the state medical board’s determination, he alleged that it violated his due process rights when it answered “Yes” in response to the NPDB’s question: “Is the Adverse Action Specified in This Report Based on the Subject’s Professional Competence or Conduct, Which Adversely Affected, or Could Have Adversely Affected, the Health or Welfare of the Patient?”

In a prior opinion, Murphy v. Goss, No. 3:14-cv-01135-SI (D. Or. Jan. 26, 2015), the United States District Court for the District of Oregon dismissed (without prejudice) the cardiac anesthesiologist’s substantive due process claim against several members of a state medical board on the basis that those individuals were entitled to immunity under the Health Care Quality Improvement Act of 1986 (“HCQIA”) since the cardiac anesthesiologist did not allege that any of them had knowledge of the falsity of any report made to the NPDB.

In this more recent opinion in the same case, Murphy v. Goss, No. 3:14-cv-01135-SI (D. Or. Apr. 16, 2015), the court once again considered whether the cardiac anesthesiologist could pursue his claims against the state board and its members. In granting summary judgment to the state board and its members, again on the basis of HCQIA immunity, the court noted that there was no evidence that anyone at the state board had knowledge of the falsity of the NPDB report. The court rejected the cardiac anesthesiologist’s assertion that he should be permitted to proceed through discovery to trial, where a jury could decide whether to believe the state board employee (who declared that she had no actual knowledge that the report was false) or believe the cardiac anesthesiologist’s unsupported accusation that the employee did know that the report was false. According to the court, “[s]tanding alone, the mere assertion by Plaintiff that one of the Defendants had actual knowledge that the report was false is insufficient to survive a motion for summary judgment.”