Anestis v. United States (Summary)

DUTY TO TREAT

Anestis v. United States, Civil Action No. 11-28-DLB-REW (E.D. Ky. Dec. 3, 2014)

A federal district court in Kentucky ruled that Kentucky law imposed a duty on a health care clinic to treat an individual with a medical emergency, even though the clinic did not have emergency facilities. The court reasoned that the clinic was one of four divisions within the Lexington Veteran’s Administration (“VA”) network, all of which shared a common name, geography and bureaucratic element of control. The court indicated that its ruling was limited to VA facilities, since they serve a narrow patient base.

In the case, a veteran arrived at the clinic complaining of trauma and emotional distress. Though he was in need of emergency care, the veteran was turned away because he was not enrolled in the VA system. Upon returning home, the veteran assaulted his wife and committed suicide. The veteran’s estate sued the VA for its failure to provide treatment. Partial summary judgment for duty and breach was granted to the veteran’s estate.

The court denied the government’s motion to reconsider, affirming the standard that, while hospitals usually have no duty to admit a patient without an order from a physician, there is a duty to treat in a medical emergency. Though the state does not have any official definition of what constitutes a medical emergency, for purposes of providing emergency care, the court used the definition provided in the Emergency Medical Treatment and Active Labor Act. The court held the VA to this standard, finding that it should have provided emergency care, even though the clinic did not have emergency facilities. The court found that the clinic was part of the Lexington VA system, and noted that “[w]hen a healthcare provider serves a particularly small cross-section of the community, as the Lexington VA does, it is reasonable to impose upon it a duty to provide emergency care, whether or not an individual seeks treatment at the correct location.”

Shelbyville Hosp. Corp. v. Mosley (Summary)

RECRUITMENT AGREEMENTS

Shelbyville Hosp. Corp. v. Mosley, No. 4:13-cv-088 (E.D. Tenn. Nov. 24, 2014)

The United States District Court for the Eastern District of Tennessee granted in part and denied in part a hospital’s motion to dismiss an orthopedic surgeon’s claims for breach of contract, intentional interference with a business relationship, and negligent misrepresentation. Plaintiff, an orthopedic surgeon, was recruited by defendant, a hospital, to open a practice at a clinic owned by the hospital. The surgeon alleged that during negotiations the hospital supplied him with false information regarding the practice’s potential profitability and indicated that there would be an x-ray service and facility available to him. But after opening his practice, he alleged, the hospital removed the x-ray equipment that had previously been located next door, failed to replace signage referring to the previous orthopedic practice, placed a competing surgeon in his office space, and otherwise interfered with his attempts to successfully establish his practice. The hospital sued the surgeon for breach of the recruitment agreement, seeking to recoup guarantee payments that had been paid. The surgeon counterclaimed for breach of contract, intentional interference with a business relationship, and negligent misrepresentation.

The court dismissed the breach of contract claim on the basis that the recruitment agreement (the contract) did not address the issues which the surgeon complained hurt his practice (that the hospital removed the x-ray equipment that was located next to his practice, failed to replace signage from the old practice, and removed an ice maker and copier from his practice) and, in turn, could not form the basis of a breach of contract claim. The court allowed the surgeon’s claim for fraud in the inducement to move forward, however, noting that his claim could be successful if he can show that the hospital knowingly misrepresented the financial prospects for his orthopedic practice (by providing inaccurate figures regarding earnings by the prior group).

Perry v. Naples HMA, LLC (Summary)

RACIAL DISCRIMINATION/EMPLOYMENT/ED STAFFING

Perry v. Naples HMA, LLC, No. 2:13-cv-36 (M.D. Fla. Nov. 19, 2014)

The United States District Court for the Middle District of Florida granted judgment as a matter of law in favor of a hospital system, with respect to a number of claims, in a lawsuit brought by an African-American, female physician who alleged racial discrimination motivated the hospital system to request her removal as the medical director of the hospital system’s emergency department.   In support of her claims, the physician alleged that although the satisfaction ratings for the Emergency Department steadily increased under her supervision, the CNO, director of nursing, and others refused to answer to her and manufactured false accusations about the quality of her services. Soon after raising her concern that she was being treated discriminatorily, the hospital requested that the ED staffing organization remove the director from her assignment to the hospital, pursuant to a contractual provision allowing the hospital to require removal of any health care professional if it believed removal to be in the hospital’s best interest.

In dismissing the Title VII claim brought by the physician, the court noted that she was an independent contractor of the ED staffing organization (and not an employee) and, accordingly, even under a theory of indirect liability, the hospital could not be held liable for violation of Title VII (an employment law). For the same reason, the court rejected the physician’s claim that the hospital could be held liable as a “joint employer” with the ED staffing organization.

The court allowed the physician’s claim pursuant to §1981 of the Civil Rights Act (that the hospital discriminatorily interfered with her contract with the ED staffing organization) to continue. The court noted that §1981, unlike Title VII, protects an individual’s ability to enforce contracts (rather than employment relationships). The court held that if the hospital’s request to remove the physician from its ED was motivated by racial animus, that behavior would interfere with the physician’s ability to perform her contract with the ED staffing organization and would be subject to §1981.

Ingle v. Janick (Summary)

FALSE CLAIMS ACT – WHISTLEBLOWER PROTECTION

Ingle v. Janick, No. 2:14-cv-544-FtM-38DNF (M.D. Fla. Nov. 17, 2014)

The United States District Court for the Middle District of Florida denied a medical facility’s motion to dismiss an employee’s False Claims Act (“FCA”) lawsuit, holding that the employee does not have to actually file an FCA action to qualify for the Act’s whistleblower protection. The employee worked as an office manager at the defendant medical facility for over 30 years. The medical facility allegedly began to bill Medicare for ultrasound services that were performed by non-credentialed personnel. The employee claimed that she objected to this practice and informed the medical facility that this type of billing was illegal. Additionally, the employee informed the medical facility that she would not work there until it ceased this fraudulent activity. The medical facility never informed her of its changed practices and the employee resigned. The employee claimed that she was constructively discharged due to her objections and sued under the FCA whistleblower provision. The medical facility argued that the employee is ineligible for this protection because she never filed a qui tam lawsuit on behalf of the government, nor did she follow the FCA’s qui tam procedures.

The court held that in order to qualify for whistleblower protection under the FCA, the employee merely needed to engage in protected conduct that notified the medical facility that there was a distinct possibility of legal action against it. The standard does not require an actual FCA claim to be filed. The court went on to find that, in this case, the employee’s objection that the medical facility’s actions were illegal was enough to put them on notice that legal action was a distinct possibility.

Moore v. Grand View Hosp. (Summary)

EMTALA

Moore v. Grand View Hosp., Civil Action No. 13-2384 (E.D. Pa. Nov. 24, 2014)

The U.S. District Court for the Eastern District of Pennsylvania granted a hospital’s request for summary judgment on the Emergency Medical Treatment and Active Labor Act (“EMTALA”) claims brought by a patient whose fetus died two days after she was discharged from the hospital’s L&D unit.

The pregnant patient had been sent to the hospital after her private obstetrician noted, during her final prenatal visit, that the patient was suffering some of the symptoms of preeclampsia. After arriving at the hospital’s L&D unit, the patient was given several tests, including blood glucose, urinalysis, and electronic fetal monitoring. After several hours of monitoring, the attending physician reviewed the patient’s blood pressure and the fetal monitor tracing (but did not screen her for preeclampsia) and determined to discharge the patient. Two days later, the patient delivered a stillborn baby. Testing indicated that the baby died due to preeclampsia.

The patient and her husband sued the hospital and others, alleging malpractice and wrongful death. In addition, with respect to the hospital, they alleged that the hospital failed to screen and stabilize the patient, in violation of EMTALA. In granting summary judgment to the hospital on the EMTALA claim, the federal district court held that the hospital’s failure to screen and stabilize the patient for preeclampsia was not an EMTALA violation because the hospital provided the same screening to this patient that it routinely provided to other patients presenting with similar symptoms. Further, the patient could not sustain a claim for discharge prior to stabilization, since the hospital did not believe the patient had an emergency medical condition and, accordingly, did not believe it was discharging the patient in a non-stabilized condition.

State v. Gear (Summary)

PROSECUTION IMMUNITY

State v. Gear, No. 1 CA-CR 13-0852 (Ariz. Ct. App. Nov. 20, 2014)

The Court of Appeals of Arizona affirmed a lower court’s dismissal of an indictment against a physician. The physician was charged with forgery and fraudulent schemes and artifices after falsely stating that he had reviewed a woman’s medical records during the process of certifying her for access to medical marijuana. In fact, the woman was a confidential informant sent by the Navajo County drug task force, who had visited the physician in connection with an undercover investigation of an illicit medical marijuana cooperative. Although this confidential informant did not bring a complete set of medical records with her, the physician checked a box on a form from the Arizona Department of Health Services (“DHS Form”), certifying that he had “reviewed the qualifying patient’s medical records, including medical records from other treating physicians from the previous 12 months.”

Under the Arizona Medical Marijuana Act (“AMMA”), a physician is immune from prosecution for providing written certifications that a patient will receive a therapeutic or palliative benefit from the medical use of marijuana. The Court of Appeals held that the DHS Form was a written certification for purposes of AMMA, explaining that criminal scrutiny and prosecution of physicians for certifying patients for medical marijuana use would have a chilling effect on physicians and would hinder patients’ ability to obtain advice on medical marijuana. It ruled that AMMA barred the state’s prosecution of the physician and affirmed the superior court’s dismissal of the indictment.

Sw. Emergency Physicians, P.C. v. Nguyen (Summary)

MEDICAL MALPRACTICE

Sw. Emergency Physicians, P.C. v. Nguyen, No. A14A0942 (Ga. Ct. App. Nov. 21, 2014)

The Court of Appeals of Georgia reversed a trial court’s decision to grant partial summary judgment for a patient in a negligence lawsuit against a hospital. The lawsuit was brought by the parents of a six-month-old child, who ended up in the hospital’s emergency room after she fell out of bed and hit her head on a suitcase. In the emergency room, a physician’s assistant diagnosed her with a minor scalp contusion and did not call in a physician or order radiology studies. The child was eventually readmitted to the hospital after suffering respiratory distress; it was determined that she had suffered severe and permanent neurological injuries from an undiagnosed subdural hematoma.

At trial, the parents moved for partial summary judgment, arguing that under Georgia law, a hospital can be found liable for ordinary negligence if it fails to provide a certain level of emergency medical care. Specifically, the parents argued that their child could not have received emergency medical care, because none of the providers in the emergency room believed that her symptoms actually presented a medical emergency. The trial court agreed and granted their motion.

On appeal, the hospital argued that the issue of whether emergency medical care had been provided was a question of fact and therefore had to be presented to the jury. Consequently, it claimed the trial court had erred in granting partial summary judgment to the patient. The appellate court agreed and reversed the earlier decision, explaining that a jury had to evaluate whether the child was suffering from an actual emergency when she presented to the emergency room.

Hurwitz v. AHS Hosp. Corp. (Summary)

HCQIA IMMUNITY

Hurwitz v. AHS Hosp. Corp., No. A-5112-12T2 (N.J. Super. Ct. Nov. 24, 2014)

The Superior Court of New Jersey affirmed a trial court’s dismissal of a surgeon’s lawsuit against a hospital, concluding that the hospital and the participants in its internal review processes were immune to the suit under federal and state law. The surgeon’s lawsuit had alleged several causes of action, including breach of contract, breach of an implied covenant of good faith and fair dealing, and violation of due process rights.

Concerns over the surgeon’s work first emerged during 2010, after an outside expert found problems with the surgeon’s treatment of two patients. The Medical Executive Committee (“MEC”) voted unanimously to commence a formal investigation of the matter. Several months later, the investigating committee determined that the surgeon’s care exhibited delays in managing surgical complications and poor documentation of care plans. It concluded that these shortcomings had resulted in adverse outcomes for the patient.

This chain of events eventually culminated in a hearing and appeal. The hearing panel issued a report to the board of trustees, concluding that the surgeon demonstrated poor surgical judgment, lack of attentiveness to patients, untimely post-operative management of surgical complications, and a failure to provide adequate documentation. The board revoked the surgeon’s clinical privileges and he opted to take legal action.

The trial court dismissed the surgeon’s lawsuit, ruling that the surgeon had failed to present enough evidence to overcome the hospital’s legal protections under state and federal law. It reached the same conclusion for the surgeon’s lawsuit against the participants of the hospital’s internal review processes. On appeal, the surgeon argued that this decision was premature and that the court should have given him an opportunity to conduct depositions.

The appellate court upheld the trial court’s decision. It concluded that the hospital and other defendants were clearly within the scope of the federal Health Care Quality Improvement Act, which provides immunity for participants in certain qualified professional review actions. In addition, it found that New Jersey state law also extended a similar form of immunity protection to the hospital and its peer reviewers. It disagreed with the surgeon’s argument that the trial court should have permitted him to conduct depositions, explaining that the surgeon had already had an opportunity to conduct some amount of discovery. It noted that strong public policy reasons supported the decision to limit discovery under certain circumstances, with the aim of encouraging a “free flow of evaluative communications within a hospital…in an effort to improve future patient care.”

Zeman ex rel. U.S. v. USC Univ. Hosp. (Summary)

QUI TAM SUIT

Zeman ex rel. U.S. v. USC Univ. Hosp., No. CV 11-05755 DDP (MRWx) (C.D. Cal. Nov. 12, 2014)

The U.S. District Court for the Central District of California granted a hospital’s motion for summary judgment against a qui tam suit filed by a patient.

The patient, a Medicare beneficiary, had undergone several outpatient orthopedic surgeries at an ambulatory surgical center owned and operated by the hospital, with occasional return visits for follow-up care from her surgeons. A dispute arose after the patient received bills for some of these follow-up visits. The additional fees amounted to approximately $95.63.

The patient argued that the bills were illegal under the Medicare regulations, which prohibit charges for follow-up care within 90 days of certain kinds of major surgery. Based on this, the patient brought a qui tam complaint for violation of the False Claims Act, alleging that the hospital knowingly presented false or fraudulent claims to Medicare and used false records to get such claims approved. The hospital disputed this and insisted that it had only billed for legitimate facility fees.

In discovery, the patient further alleged that the hospital did not qualify for “provider-based status” under the Medicare regulations, and thus could not be eligible for any exceptions to the 90-day global surgery rule. The court was unpersuaded, concluding that the patient’s legal position was “untenable” and failed to provide the hospital with fair notice. In particular, it explained that the patient could not proceed under her newly raised theory about the hospital’s “provider-based status” because she had not pleaded it in the complaint. Since this “provider-based status” claim was the crux of the patient’s argument, the court ruled against her and granted the hospital’s motion for summary judgment.

Sambasivan v. Kadlec Med. Ctr. (Summary)

Sambasivan v. Kadlec Med. Ctr., No. 31858-3-III (Wash. Ct. App. Nov. 18, 2014)

The Court of Appeals of Washington reversed a lower court’s entry of summary judgment in favor of a hospital against a lawsuit filed by a cardiologist. The cardiologist, a native of India, claimed that the hospital had retaliated against him for a discrimination lawsuit he had filed in June 2008. The hospital argued that the cardiologist could only assert a federal retaliation claim if he could identify an impaired contractual relationship under which he had rights. The hospital explained that there was no contractual relationship, since the bylaws were not a contract. In addition, the hospital argued that the cardiologist could only win a retaliation claim under state law if he could show that the retaliatory action was taken in the context of an employment relationship or independent contractor relationship. It explained that the cardiologist had neither sort of relationship with the hospital.

The cardiologist countered by arguing that his case was not based on the bylaws, but was instead founded on the impairment of his capacity to contract to perform emergency department call coverage services for the hospital and the loss of his ability to serve future patients. The court found that this evidence was sufficient to overcome summary judgment and to permit the physician to present a jury issue about his loss of future call contracts and the loss of his contracts with future patients. The court noted that the cardiologist was permitted to bring state and federal retaliation claims because he was performing services as an independent contractor under the Emergency Department Call Coverage Agreement. The court reversed and remanded for trial.