Jefferson ex rel. Jefferson v. Mo. Baptist Med. Ctr. (Summary)

VICARIOUS LIABILITY

Jefferson ex rel. Jefferson v. Mo. Baptist Med. Ctr., No. ED 99895 (Mo. Ct. App. Aug. 19, 2014)

A patient’s estate sued a radiologist and medical center, alleging that the radiologist negligently failed to note in his interpretation of the patient’s third abdominal CT scan that a soft mass was still present. Two years later, the soft mass was diagnosed as Stage IV inoperable colon cancer.

The medical center filed a motion for summary judgment, arguing that it could not be held liable for the radiologist’s negligence because he was not a medical center employee. The trial court agreed, based on a definition of “physician employee” in Missouri’s tort reform statute. The appeals court ruled that the lower court erred in applying the statutory definition of “physician employee” and held that the term “employee” should be defined in accordance with common law principles of agency which focus on the employer’s right to control the work of the employee. The appeals court remanded the case to the lower court with instructions to apply the term “employee” in a manner consistent with its ruling.

Barney v. Truman Valley Health Care (Summary)

EMPLOYMENT DISCRIMINATION

Barney v. Truman Valley Health Care, No. 14-0468-CV-W-REL (W.D. Mo. Aug. 15, 2014)

The United States District Court for the Western District of Missouri dismissed a nurse’s discrimination claims against a rehabilitation center, holding that the nurse failed to allege that her termination was based on her sex, disability, or national origin. The plaintiff was diagnosed with a “chronic brain injury” which required her to be absent from work to receive medical treatment. The nurse’s supervisor allegedly made negative comments in her employment file about the nurse’s absenteeism, made derogatory comments about her ethnic heritage and accent, and on one occasion referred to her as a “breeder” due to her family’s size. The nurse was terminated after her request for time off under the Family and Medical Leave Act was denied, and she did not appear at work.

The court held that the nurse failed to plead that her membership in a protected group was a contributing factor to the harassment. First, the court stated that familial status is not a protected group. Second, the court explained that the term “breeder” being used once does not rise to the level of severe and pervasive, as is required to establish a hostile work environment claim. Furthermore, the nurse failed to identify any comments her supervisor made about her ethnic heritage or accent. Lastly, the nurse failed to plead required elements of a disability claim – that she was qualified to perform the essential functions of her job, with or without a reasonable accommodation.

Outten v. Genesis Health Care, LLC (Summary)

EMPLOYMENT DISCRIMINATION

Outten v. Genesis Health Care, LLC, Civil Action No. 13-4708 (E.D. Pa. Aug. 12, 2014)

The District Court for the Eastern District of Pennsylvania granted summary judgment to a health care center on a former employee’s claims that she was terminated because of her age and disability and in violation of the Family Medical Leave Act (“FMLA”). The plaintiff, a 60-year-old woman, was terminated from her position as nursing supervisor for the night shift at a nursing home operated by the health care center when she failed to report to work during Hurricane Sandy. The nursing home had a strict written policy stating that staff were not allowed to miss a shift on account of bad weather, and anyone who was found to have abandoned his or her job would be immediately dismissed. Seven other nurses were reprimanded and two were terminated for failing to report during the storm. The supervising nurse was then replaced by another nurse who was 22 years younger.

The court dismissed the supervising nurse’s claims of age and disability discrimination, finding that she failed to present sufficient evidence to show the termination was due to discrimination rather than job abandonment. The court held first that there was not sufficient evidence to show the supervising nurse’s termination was due solely to Hurricane Sandy, as she had already been reprimanded for missing shifts in the past. The supervising nurse was not treated disparately due to discrimination because she was not the only employee who was terminated. Furthermore, the supervising nurse could not hold herself out as similarly situated to the other nurses, because she was held to a higher standard as their supervisor.

Additionally, the supervising nurse failed to establish a causal connection between her termination and her FMLA leave. The court held that even if the one-month proximity between her FMLA leave and her termination could be found causal, it did not undermine the fact that the supervising nurse engaged in behavior that knowingly violated the code of conduct for the nursing home.

Rush Univ. Med. Ctr. v. Burwell (Summary)

MEDICARE REIMBURSEMENT

Rush Univ. Med. Ctr. v. Burwell, No. 13-3285 (7th Cir. Aug. 18, 2014)

The United States Court of Appeals for the Seventh Circuit reversed a lower court decision, holding that teaching hospitals cannot bill Medicare for “indirect medical education” (“IME”) costs when a medical resident is researching activities wholly unrelated to the diagnosis or treatment of patients. Plaintiff, a teaching hospital, sought Medicare reimbursement for such IME costs (referred to in the opinion as “pure research”) from 1983 to 2001. The Affordable Care Act clearly excludes such costs for FY 2001 onward but did not address the period from 1983 to 2001. The teaching hospital filed suit after its fiscal intermediary denied the request. The district court granted summary judgment in favor of the teaching hospital based on a 2010 Seventh Circuit decision holding that pure research is part of compensable IME costs for the 1983 to 2001 period.

Here, the Seventh Circuit ruled that pure research can no longer be included in IME costs. The court explained that when it made its earlier decision, the Affordable Care Act’s provision regarding whether pure research could be included in IME costs was “less than clear,” and there were no regulations to help interpret it. However, since that decision, the Department of Health and Human Services promulgated a regulation excluding pure research from IME costs. The court reasoned that because its previous interpretation of the Affordable Care Act was from an ambiguous provision, and the agency’s definition is reasonable, the subsequent administrative regulation excluding pure research from IME costs is controlling.

Morales v. Palomar Health (Summary)

EMTALA

Morales v. Palomar Health, No. 14cv0164-GPC (MDD) (S.D. Cal. Aug. 12, 2014)

The United States District Court for the Southern District of California granted in part and denied in part a hospital’s motion to dismiss a patient’s claims under the Emergency Medical Treatment and Active Labor Act (“EMTALA”). Relying on the Ninth Circuit’s standard that “a medical screening examination is ‘appropriate’ if it is designed to identify acute and severe symptoms that alert the physician of the need for immediate medical attention to prevent serious bodily injury,” the court held that the plaintiff sufficiently alleged that the hospital failed to provide “a minimally adequate medical screening examination.” The court dismissed the patient’s second EMTALA claim, holding that the patient did not allege any facts that her screening was different from screenings provided to insured patients.

Ramirez-Ortiz v. Corporacion del Centro Cardiovascular de Puerto Rico y Del Caribe (Summary)

Vicarious Liability – Corporate Negligence

Ramirez-Ortiz v. Corporacion del Centro Cardiovascular de Puerto Rico y Del Caribe, No. 12-2024 (FAB) (D.P.R. Aug. 13, 2014)

A district court in Puerto Rico denied two requests for summary judgment, holding that there still existed a genuine issue of fact regarding whether a patient entrusted his health to a hospital system or to specific physicians.

A patient was hospitalized, and treatment was provided by two interventional cardiologists who held hospitalization privileges. After the patient’s untimely death, his survivors brought claims against the hospital for negligence, claiming that the patient entrusted his health to the hospital, not to the individual doctors.

When a patient enters a hospital and is assigned a physician, the hospital may be held vicariously liable to the patient. However, if the patient goes to the hospital by recommendation of a particular physician, the hospital is not liable for the physician’s negligence. The court denied the plaintiff’s motion for summary judgment, stating that genuine issues of material fact still existed regarding the patient’s relationship with the doctors at the time of his treatment. The court stated that more facts will be necessary to determine whether the patient first entrusted his care to the hospital or the doctors.

For similar reasons, the court also denied the hospital’s request for summary judgment. Because it is still unclear whether the patient relied on the physicians specifically or the hospital generally, the issue of vicarious liability cannot yet be addressed. The court cannot determine whether there was a “private patient” relationship between the patient and physician while the details surrounding the patient’s admittance to the hospital are still heavily in dispute.

The court also found that the nursing staff may have violated the standard of care by failing to inform the doctor of material changes made to his pre-operative orders. Because the standard of care remains an issue of controversy, the court denied the hospital’s request for summary judgment.

Buman v. Gibson (Summary)

Supervision of Allied Health Practitioners

Buman v. Gibson, No. W2013-01867-COA-R3-CV (Tenn. Ct. App. Aug. 11, 2014)

A man sought treatment from a physician’s assistant (“PA”) for foot ulcers. For almost three months, the PA treated the patient. During this time, the PA was monitored by a supervising physician, who never personally treated the patient, but who reviewed 30% of the PA’s charts. Eventually, the PA referred the patient to a vascular surgeon. Unfortunately, the patient’s leg eventually had to be amputated below the knee. The patient and his wife filed a motion in which they alleged that the PA was negligent in not referring him to a specialist sooner. The patient passed away soon thereafter, due to unrelated causes, and the executrix was substituted as the plaintiff. The executrix then filed an amended complaint, alleging that the PA’s supervising physician was negligent in not properly ensuring that the patient received effective treatment. Before the trial court date, the supervising physician filed a motion for summary judgment, stating that no expert testimony obtained during depositions could link his alleged negligence with the loss of the patient’s leg. In response, the executrix filed a motion to amend her complaint and “more clearly plead” a claim of vicarious liability against the supervising physician. The trial court granted summary judgment to the supervising physician and denied the executrix’s motion to amend her complaint.

The court found that the trial court was correct in finding the supervising physician fulfilled his responsibilities in monitoring the PA’s behavior. The court held that the supervising physician had sufficiently proven his active and continuous overview of the PA. A supervising physician, who is only statutorily required to review 20% of a PA’s charts, is not expected to determine which charts need special attention over others. Rather, the court held, there is an implied duty on the PA to bring the charts in need of special attention to the supervising physician’s attention. Therefore, the court could find no basis in which to find the physician liable.

The trial court did not err in ruling that there was no claim for vicarious liability, as it is not the court’s job to impose additional responsibilities on supervising physicians that the legislature chose not to enumerate in statute.

The court recognized that the trial court had denied the executrix’s motion to amend the complaint due to timeliness, as the motion to amend was filed two years into the lawsuit and only a few weeks before the trial date. The court found that no abuse of discretion had been shown to rebut this reasoning.

Fresenius Med. Care Holdings, Inc. v. U.S. (Summary)

False Claims Act Settlement

Fresenius Med. Care Holdings, Inc. v. U.S., No. 13-2144 (1^st Cir. Aug. 13, 2014)

After a series of criminal plea and civil settlement agreements with the government, a dispute remained over how the settlement payments made under the False Claims Act by an operator of dialysis centers were to be taxed. The sums paid in criminal fines were deemed non-deductible, while the sums paid in civil settlement agreements were deductible. However, there remained a dispute of the treatment for the existing balance of the civil settlements. The operator of the dialysis centers then filed amended tax returns, taking no deduction for the existing balance. An administrative appeal followed, determining that the existing balance owed to qui tam relators was deductible. The operator of the dialysis centers then began a tax-refund action against the United States District Court for the District of Massachusetts to determine the deductibility of the remaining civil settlement balance. In a subsequent trial, a jury found that $95,000,000 of the $126,796,262 balance was deductible. After the parties stipulated to the verdict’s tax effect, the court entered judgment for the operator of the dialysis centers for $50,420,512.34. The court denied the government’s motion for judgment as a matter of law. The government then appealed.

The government argued that the district court erred in denial of its motion for judgment as a matter of law. The government urges that deductibility cannot be granted because no deductibility agreement existed between the parties. The court affirmed the district court’s ruling, finding this rationale to be single-minded and unrealistic. Furthermore, the court found that the parties specifically manifested the intent to disagree on the issue of deductibility, leaving the court no choice but to take a common-sense approach based on economic realities.

The government also argued that the district court erred in the instructions it presented to the jury. However, the court dismissed this claim, finding that the argument could not be raised for the first time on appeal.

Klaine v. So. Ill. Hosp. Servs. (Summary)

Peer Review Privilege

Klaine v. So. Ill. Hosp. Servs., No. 5-13-0356 (Ill. App. Ct. Fifth Dist. Aug. 6, 2014)

The Appellate Court of Illinois Fifth District affirmed a circuit court’s discovery order regarding documents in a malpractice lawsuit, while imposing a few modifications.

A patient filed a medical malpractice claim against a surgeon after the patient’s colon was perforated during a gallbladder removal procedure. In filing his claims against the surgeon, the patient also sued the hospital, alleging that the hospital was negligent in credentialing the surgeon. The plaintiff filed a motion to compel certain documents for discovery, but the hospital responded that such information was privileged. A circuit court found that while most of the documents were privileged, a few exhibits were not. The court denied the hospital’s motion to reconsider, to which the hospital appealed.

The appellate court found first that the court did not abuse its discretion in allowing an exhibit that details three applications for staff privileges, as the court may have reasonably found relevant evidence from the information within the applications. Also, because the hospital did not raise this issue until the motion to reconsider, the court found that the issue had been forfeited. The hospital also argued that the applications within this exhibit were privileged under the Data Collection Act. After a textual analysis of the act, the court affirmed the circuit court’s ruling, determining that the legislature had not designated an explicit protection of applications for staff privileges.

After determining that the applications for staff privileges were not protected, the court then looked to examine whether specific information within the applications should be redacted. The court held that certain references to an external peer review issued by a consulting company were to be redacted, as the information was protected under the Medical Studies Act. However, the court chose not to redact references to the National Practitioner Data Bank, because such information is permitted through state discovery rules. The court also held that the information within the applications regarding treatment of patients is permitted in judicial and administrative proceedings under HIPAA, and therefore was not to be redacted. Additionally, the hospital argued that information provided by the surgeon about his own medical condition in his application should be protected under the physician-patient privilege. The court denied this reasoning, as it is the surgeon’s own assessment.

The hospital also argued that an exhibit containing the surgeon’s procedure summaries was protected under the Medical Studies Act. The court affirmed the circuit court’s order that these documents be provided, determining that the summaries provided raw data rather than physicians’ evaluations.

Levitan v. Northwest Cmty. Hosp. (Summary)

HCQIA IMMUNITY DENIED

Levitan v. Northwest Cmty. Hosp., 13-C-5553 (N.D. Ill. Aug. 12, 2014)

The United States District Court for the Northern District of Illinois denied in part and granted in part a hospital’s motions to dismiss a surgeon’s antitrust and hostile work environment claims. A female, Jewish physician of Russian descent had privileges at the hospital, as well as other facilities in the area. According to the complaint, the physician was in good standing at the hospital and had never been the subject of any disciplinary action. The physician alleged that a competing surgeon began insulting, ridiculing, and demeaning her based on her gender, ethnicity and religion. The physician reported this behavior to the hospital as a violation of its Disruptive Behavior Policy. In response, the competing surgeon and his senior partner, who was a member of the hospital’s Medical Executive Committee (“MEC”), allegedly retaliated against the physician by submitting 31 of her cases to the MEC for review. This initiated a peer review process that lasted for two years and ultimately resulted in a recommendation to terminate the physician’s medical staff appointment and clinical privileges.

The physician requested a hearing with a judicial review committee pursuant to the medical staff bylaws. The judicial review committee issued a 24-page decision finding, among other things, that the concerns raised about the 31 cases submitted to the MEC did not support the action and that no actions should be taken against the physician’s privileges. The committee also noted that all future reviews of the physician’s practice should be without the involvement of the competing surgeon or his senior partner. The MEC appealed the judicial review committee’s decision to the hospital’s quality committee, which issued a one-page ruling reversing the judicial review committee’s decision. The hospital’s board affirmed and the physician’s privileges were terminated and a report was filed with the National Practitioner Data Bank. The physician brought this action, claiming antitrust violations and a hostile work environment based on her gender, race, and ethnicity.

The court first denied the hospital and surgeon’s immunity under the Health Care Quality Improvement Act and the state’s hospital licensing act, finding that the factual allegations provide “plausible ground” to doubt that the actions taken against the physician were done so with a reasonable belief that they were taken in furtherance of quality health care.

And while the court dismissed the physician’s antitrust claim because she did not plead an antitrust injury, the court did find that the physician had adequately pled that she was harassed because of her gender, race, and ethnicity, and that the case should continue to discovery. The court relied on the fact that the physician was singled out by the competing surgeon and his senior partner for being the sole female, Eastern European, Jewish surgeon and that they verbally attacked her, made belittling remarks, and questioned her skill and judgment.