Simpson v. Cedar Springs Hosp., Inc. (Summary)

QUALITY MANAGEMENT PROGRAM – COLORADO STATE LAW PRIVILEGE

Simpson v. Cedar Springs Hosp., Inc., No. 13SA124 (Colo. Oct. 14, 2014)

The Supreme Court of Colorado held that a trial court erred in ruling that the state’s quality management privilege only applies to hospitals with authoritative documentation of approval from the Colorado Department of Public Health and Environment (“CDPHE”). The court concluded that Colorado hospitals have an approved quality management program so long as they are licensed by the CDPHE.

This legal issue arose during the discovery phase of a medical malpractice case against a hospital and affiliated psychiatrists. A former patient sued the hospital after the psychiatrists allegedly prescribed inappropriate medications to him, causing severe adverse reactions. When the patient requested the minutes from two meetings of the hospital’s quality management committees, the hospital refused, citing the state’s quality management privilege. In the trial court, the patient argued that the quality management privilege did not apply to these meetings because the hospital failed to submit a schedule for implementation of its quality management plan, a necessary requirement under CDPHE regulations.

In response, the hospital explained that a quality management program is required for a hospital to maintain its CDPHE license. Since the CDPHE permitted the hospital to keep its license throughout all of the time periods relevant to the case, the hospital argued that this amounted to de facto approval of the quality management program. The court sided with the hospital, concluding that the trial court misunderstood the purpose of the quality management privilege, which is meant to promote frank and honest discussions about quality management. The Supreme Court of Colorado further noted that nothing in the privilege statute or regulations suggested that the quality management privilege would only attach to a facility that complies with every CDPHE regulation; therefore, the hospital did not lose the privilege simply by failing to turn its schedule in on time. The Supreme Court of Colorado reversed the trial court’s order and permitted the hospital to refuse to disclose the documents.

Pal v. Jersey City Med. Ctr. (Summary)

HCQIA IMMUNITY

Pal v. Jersey City Med. Ctr., No. 11-6911 (SRC) (D. N.J. Oct. 24, 2014)

The United States District Court for the District of New Jersey granted a renewed motion for summary judgment filed by Jersey City Medical Center and an affiliated physician in a discrimination case brought by a female physician of Indian origin. The physician argued that her application for privileges was denied on account of her gender and national origin. She sued the medical center and affiliated physician for breach of contract, defamation, and a conspiracy to violate her civil rights.

The district court concluded that her breach of contract and defamation claims were barred by the Health Care Quality Improvement Act of 1986 (“HCQIA”), which grants limited immunity from suits from money damages to participants in certain professional peer review actions. The court explained that denial of her application was considered to be a “qualified professional peer review action” under the HCQIA, and noted that she had failed to demonstrate that the other physicians acted improperly with regard to her application.

The district court also held that the record did not support a civil rights conspiracy claim, since there was no evidence indicating a conspiracy to deny her application for a discriminatory purpose.

Mendez v. Shah (Summary)

PEER REVIEW – SELF-CRITICAL ANALYSIS

Mendez v. Shah, No. 13-1585 (D. N.J. Oct. 23, 2014)

The United States District Court for the District of New Jersey upheld a magistrate judge’s decision ordering an orthopaedics group to turn over part of a physician’s employment file. The dispute arose after a former patient sued a physician employed by the orthopaedics group, alleging that a medical device implanted during her back surgery had malfunctioned.

The orthopaedics group had withheld certain documents relating to the physician’s peer review activities, arguing that these were considered “self-critical analysis” and were protected from discovery under the law. In determining whether to order disclosure of the peer review documents, the magistrate judge sought to balance the need for disclosure against the public interest in confidentiality. The magistrate judge weighed various legal factors, including the extent to which the information was available from other sources, the degree of harm suffered by both parties, the public interest in preserving the free flow of information, and whether disclosure would result in a chilling effect on future evaluations. Ultimately, the magistrate judge sided with the patient, reasoning that there was no evidence that the physician would be harmed by disclosure of this information.

The district court upheld the magistrate judge’s decision, explaining that he had correctly balanced and applied each of the relevant legal factors in his decision-making; furthermore, it concluded that his decision was neither clearly erroneous nor contrary to the law. The court denied the appeal of the magistrate judge’s decision and issued an order requiring disclosure of the documents.

Shrub v. Univ. of Tex. Health Science Ctr. at Houston-School of Med. (Summary)

ADA

Shrub v. Univ. of Tex. Health Science Ctr. at Houston-School of Med., No. 4:13-CV-271 (S.D. Tex. Oct. 24, 2014)

The United States District Court for the Southern District of Texas dismissed a medical student’s Americans with Disabilities Act and Rehabilitation Act claims against a university, holding that the student failed to establish that he suffered from a disability, that his alleged disability was a motivating factor in the medical school’s decision to remove him from the program, or that he was “otherwise qualified” to continue enrollment in the medical program. The student alleged that he suffered from obsessive compulsive disorder and severe anxiety and was a visual learner. The student requested his professors’ PowerPoint slides to aid his “visual learning disability.” Every professor provided him access to their slides except for one. The student alleged that this lack of accommodation caused his anxiety to worsen, which led to blinding migraines. The student took a medical leave of absence and was admitted to the hospital. Rumors began to swirl around campus that the student was suicidal. After his discharge, the university requested a copy of his discharge summary and a report from his psychiatrist that he was not a danger to himself or others before resuming classes. The student intentionally did not comply with this request, and was withdrawn from the university. The student sued claiming that the university discriminated against him based on his “visual learning disability.”

The court stated that besides the student’s own claims there was no evidence that he suffered from a disability that limits any of his major life activities. Additionally, by the student’s own admissions, he failed to cooperate with the university and provide it a certification of fitness from his treating psychiatrist because he thought it was unreasonable and “grossly overbroad.”

U.S. ex rel. Guardiola v. Renown Health (Summary)

FALSE CLAIMS/QUI TAM CASES

U.S. ex rel. Guardiola v. Renown Health, No. 3:12-cv-00295-LRH-VPC (D. Nev. Oct. 16, 2014)

The United States District Court for the District of Nevada upheld its own jurisdiction to hear a qui tam complaint against a hospital, in which the hospital’s former compliance director alleged billing fraud involving government-funded health insurance programs. In particular, the former director accused the hospital of submitting short-stay inpatient claims that actually should have been billed as outpatient claims.

The hospital sought to have the claims dismissed for lack of jurisdiction, arguing that the public disclosure bar, which requires a court to dismiss a qui tam complaint if it is based on allegations or transactions that have been previously disclosed to the public, applied because some of the billing fraud issues had been identified through RAC audits. The hospital also claimed that those billing fraud issues had already been disclosed to 585 physicians associated with the hospital and had therefore become public knowledge.

The court disagreed. It explained that these disclosures were not public because they were only made to physicians who were connected with the hospital. It specifically noted that these physicians had an economic incentive to protect the information from disclosure to outsiders. However, it also concluded that even if the disclosures were considered public, it would still have jurisdiction due to the “original source” exception. The original source exception permits the “original source” of the publicly disclosed information to bypass the public disclosure bar. Since the qui tam relator in this case had direct and independent knowledge of the hospital’s billing practices, the court reasoned that she was an original source and could continue to pursue her lawsuit against the hospital and denied the hospital’s motion to dismiss.

Copeland v. Good Samaritan Hosp. (Summary)

RETALIATORY DISCHARGE/WHISTLEBLOWING

Copeland v. Good Samaritan Hosp., No. H039933 (Cal. Ct. App. Oct. 22, 2014)

The Sixth District Court of Appeal for California affirmed a trial court’s grant of summary judgment in favor of a hospital and nurse against a former employee’s wrongful termination lawsuit and other claims. The former employee, also a registered nurse, alleged that the hospital terminated her employment and retaliated against her after she complained about patient abuse and on the basis of her request for leave to attend outpatient rehabilitation which had been mandated by the California Board of Registered Nurses following two DUIs the nurse had received in 2006.

According to hospital records, the nurse was terminated after she gave a patient his breakfast tray while he was sitting on the toilet, which was allegedly motivated by her desire to go on break. On the same day, she allegedly berated another employee and told management to “back off” because she had lawyers. After weighing the conflicting stories from each side, the trial court concluded that the plaintiff failed to show that the hospital’s stated reasons for her termination were pretextual. It noted that she had failed to exhaust her administrative remedies with regard to her request for a leave and that some of her claims were barred by the statute of limitations. In addition, it denied her attempt to sue one of her colleagues, explaining that the anti-discrimination laws only permit lawsuits against employers, not other non-employer individuals working for the employer.

The appellate court affirmed the trial court’s judgment in full, concluding that the nurse could not sue for wrongful termination because she never engaged in a protected “whistleblowing” activity – in fact, she only reported patient care issues to local authorities after she had been terminated which was not sufficient to support a charge of retaliation for engaging in protected activity.

Bluestein v. Cent. Wis. Anesthesiology, S.C. (Summary)

DISCRIMINATION – GENDER AND DISABILITY

Bluestein v. Cent. Wis. Anesthesiology, S.C., Nos. 13-3724 et al. (7th Cir. Oct. 15, 2014)

The United States Court of Appeals for the Seventh Circuit affirmed a district court’s grant of summary judgment to an anesthesiology group in a discrimination lawsuit filed by a former shareholder and board member, who alleged that her termination by the group constituted illegal gender and disability discrimination.

Issues arose between an anesthesiologist, who was a full partner, shareholder, and member of the board of directors in a professional corporation providing anesthesia services, and her fellow shareholders after she was injured in a kayaking accident. Her resulting hamstring injury forced her to take time off from her anesthesiologist duties and eventually led her to request an open-ended leave from her fellow anesthesiologist-shareholders. The board of the anesthesiology group, which was comprised of all anesthesiologist-shareholders, voted to deny her request and instead gave her the option to resign. She refused to resign, was subsequently terminated, and then sued the anesthesiology group, alleging that her termination was based on her gender and disability status.

At trial, the court considered each discrimination claim on the merits, but ultimately ruled that she was not eligible for protection under either law because she did not meet the legal definition of “employee” and was, instead, akin to an employer under the statutes. In fact, the trial court regarded her lawsuit as so unreasonable that it ordered her to repay the anesthesiology group’s attorneys’ fees. The anesthesiologist appealed the decision.

On appeal, the appellate court upheld the trial court’s decision, agreeing with the trial court that, in applying the common law test used to define a “servant” under the law, the anesthesiologist-shareholder’s position and authority on the board gave her sufficient control over several key matters, including hiring and firing, which qualify her legally as an “employer” rather than an “employee.” The appellate court cited numerous other legal factors supporting this conclusion, including the fact that the shareholder was not subject to supervision in her work as an anesthesiologist and that she enjoyed an equal vote on all major decisions in the organization.  The appellate court also affirmed the trial court’s award of attorneys’ fees, concluding that the trial court had acted reasonably in concluding that her suit was “frivolous, unreasonable, and without foundation.” The appellate court did not require the shareholder to pay the anesthesiology group’s attorneys’ fees for the appeal itself, reasoning that while the appeal may have been driven by poor judgment, there was “no evidence of bad faith, harassment or obstinacy.”

Sanders v. Legacy Emanuel Med. Center (Summary)

EMTALA

Sanders v. Legacy Emanuel Med. Center, No. 3:14-cv-00690-PK (D. Or. Oct. 16, 2014)

The United States District Court for the District of Oregon dismissed a patient’s Emergency Medical Treatment and Active Labor Act (“EMTALA”) claim against a hospital, finding that the hospital had in fact provided the patient with a medical screening. The patient had presented at the emergency room of the defendant hospital suffering from hyperammonemia. An ultrasound and glucose test were performed on the patient but ultimately failed to diagnosis the patient’s chromobacterium infection. The patient sued alleging that the hospital had violated EMTALA by failing to provide him with a medical screening.

The court held that the hospital did provide him with a medical screening as evidenced by the two tests that had been performed on him, noting that a screening that may have been inadequate to diagnose his condition was very different than a disparate screening practice based upon whether a patient was insured or uninsured. The court also held that the patient failed to allege sufficient facts that his hyperammonemia symptoms were so severe that in the absence of immediate medical attention it would reasonably be expected that the patient would suffer the types of serious bodily harm as outlined in EMTALA, noting that even the patient had admitted that hyperammonemia is not an emergency medical condition. Finally, the court upheld the magistrate’s dismissal of the patient’s claims against several named physicians, finding that EMTALA claims can only be brought against hospitals, and that any claims against named physicians had to be brought under state law negligence actions.

Shah v. Univ. of Tex. Sw. Med. Sch. (Summary)

DISCRIMINATION – NATIONAL ORIGIN AND DISABILITY

Shah v. Univ. of Tex. Sw. Med. Sch., No. 3:13-CV-4834-D (N.D. Tex. Oct. 20, 2014)

The United States District Court for the Northern District of Texas dismissed a medical school student’s Rehabilitation Act and Americans with Disabilities Act (“ADA”) claims against a university, holding that the Eleventh Amendment provides immunity to the university and its named faculty members. Plaintiff, a medical student of Indian decent with Attention Deficit Hyperactivity Disorder (“ADHD”), was dismissed from defendant, a state university affiliated medical school, after receiving three reprimands for professionalism violations and having received failing grades on more than one clinical rotation. The student appealed the dismissal, asserting that the alleged professionalism violations were a direct result of his ethnicity and his ADHD, which constituted a disability. The medical school denied the appeal, and the student sued the medical school and several named faculty members and other administrative representatives. The university sought to have the lawsuit dismissed, arguing that it was immune from the suit under the Eleventh Amendment.

The court held that the medical school, as an arm of the state, was immune under the Eleventh Amendment as it had not violated any of the student’s constitutional rights. The court explained that the student’s due process rights were not violated because when it comes to academic dismissals, the student was only entitled to notice that the medical school was dissatisfied with his progress and it could lead to dismissal. Furthermore, the court explained that there is no substantive due process right to continued education, and, even if there was, the student failed to show that the university’s actions were a “substantial departure from accepted academic norms.”

Gasteazoro v. Catholic Health Initiatives Colo. (Summary)

CORPORATE NEGLIGENCE/MALPRACTICE

Gasteazoro v. Catholic Health Initiatives Colo., No. 13CA0648 (Colo. Ct. App. Oct. 9, 2014)

The Colorado Court of Appeals affirmed a trial court’s ruling in favor of a hospital in a malpractice case, finding there to be no error in the jury instructions pertaining to a nurse’s exercise of judgment in providing patient care. A patient came to a hospital emergency room with symptoms of nausea, dizziness, neck pain, and a headache. The ER physician diagnosed the patient with a cervical sprain, and ordered that she be discharged, despite the fact that her blood pressure remained elevated. Ten days later, the patient experienced a ruptured brain aneurysm, resulting in a hemorrhagic stroke and serious injuries. The patient sued the ER physician for failure to properly diagnose her symptoms and a nurse who aided in her treatment, alleging that the nurse should have challenged her discharge orders because her vital signs (i.e., blood pressure) were unstable. At trial, a neurosurgery expert testified on behalf of the ER physician that the patient’s ailments were not symptomatic of a sentinel bleed from an aneurysm. At the end of the trial, the court instructed the jury that, much like a physician, an unsuccessful outcome does not mean that a nurse was negligent and that a nurse may not be negligent if he or she exercises his or her best judgment in a patient’s care.

The appellate court found the trial court did not err in overruling the patient’s objection to testimony from the neurosurgery expert, as the expert merely relayed opinions related to his specialty and did not stray from the stipulated line of questioning. The appellate court also found that the trial court did not abuse its discretion by including nurses in its “exercise-of-judgment” jury instruction, as language in various state laws supports the extension of protection to health care professionals such as nurses. Additionally, the court noted that existing hospital policy directs nurses to use “good clinical judgment” in carrying out physician orders.