In re Otero County Hosp. Ass’n, Inc. (Summary)

NEGLIGENT CREDENTIALING

In re Otero County Hosp. Ass’n, Inc.
No. 11-11-13686 JL, et al. (Bankr. D.N.M. July 25, 2014)

The United States Bankruptcy Court for the District of New Mexico denied cross-motions for summary judgment and held that there were issues of disputed fact in a case brought by a group of tort claimants alleging that a hospital management company was negligent in credentialing and supervising a physician who was performing experimental back surgeries.

The management company entered into an administrative services agreement with a hospital. The agreement required the management company to provide key executives, including a Chief Executive Officer (“CEO”), to the hospital. Under the agreement, the hospital retained responsibility for all matters requiring professional medical judgment, including credentialing of physicians. The hospital entered into an employment agreement with a physician to provide medical services in the specialty of anesthesia and pain management. The physician was also granted temporary privileges. The letter sent to the physician informing him of the grant of temporary privileges was signed by the CEO. During the physician’s tenure, his proctor accused him of performing “experimental surgery,” and an insurer suspended his participation in its plan because of questions about whether he was credentialed to perform back surgery. Despite these concerns, the physician was allowed to continue to perform these surgeries at the hospital.

The plaintiffs, a group of patients who apparently had spine surgery performed on them by the physician, brought suit alleging that the management company was negligent “in the hiring, privileging, and supervision” of the physician. The management company argued that it had no right or responsibility to engage in these activities under the agreement with the hospital and, therefore, owed no duty to the plaintiffs.

The court disagreed with the hospital and held, among other things, that the agreement between the management company and the hospital did not limit the company’s duty to the plaintiffs. Further, because there were factual disputes regarding whether the management company undertook actions related to privileging and supervising the physician, including granting him temporary privileges, the court held that summary judgment was inappropriate.

U.S. ex rel. Donegan v. Anesthesia Assocs. of Kansas City, PC (Summary)

FALSE CLAIMS ACT

U.S. ex rel. Donegan v. Anesthesia Assocs. of Kansas City, PC
No. 4:12-CV-0876-DGK (W.D. Mo. July 28, 2014)

The United States District Court for the Western District of Missouri granted in part and denied in part a suit alleging violations of the False Claims Act brought by a certified registered nurse anesthetist (“CRNA”) against his former employer, ananesthesia group. According to the CRNA’s complaint, the anesthesia group submitted bills to Medicare claiming that anesthesia was provided under the “medical direction” of a physician even though a physician did not prescribe the anesthetic and was not present when a patient came out of general anesthesia. The complaint also alleged that the CRNA was terminated after, and in retaliation for, informing his supervisor that he would no longer check the box on the group’s billing forms indicating that anesthesia was given under “medical direction.” The complaint did not allege that the CRNA reported to his supervisor that the group was engaged in fraudulent activity.

The anesthesia group filed a motion to dismiss. The court refused to dismiss the CRNA’s first two claims under the False Claims Act, finding that the CRNA had sufficiently pleaded the “who, what, when, where, and how” of the purported fraud. However, the court granted, without prejudice, the anesthesia group’s motion to dismiss the CRNA’s retaliation claim, instructing that it could not “find any authority suggesting that an employee’s failure to do something he has been instructed to do – such as routinely mark a box on a form – somehow puts the employer on notice that the employee was engaged in protected activity.”

Wollschlaeger v. Governor of Fla. (Summary)

FLORIDA’S FIREARM OWNERS PRIVACY ACT

Wollschlaeger v. Governor of Fla.
No. 12-14009 (11th Cir. July 25, 2014)

The United States Court of Appeals for the Eleventh Circuit reversed a district court’s grant of summary judgment in favor of a group of physicians and physician advocacy groups and vacated an injunction against enforcement of Florida’s Firearm Owners Privacy Act (the “Act”).

The plaintiffs challenged the Act, which, according to the court, “seeks to protect patients’ privacy by restricting irrelevant inquiry and record-keeping by physicians regarding firearms.” The plaintiffs contended that the Act imposed an unconstitutional restriction on their freedom of speech under the First Amendment. The Eleventh Circuit disagreed, concluding that “[t]he State may validly regulate the practice of medicine to protect patients’ privacy. Any speech that the Act reaches takes place entirely within the confines of the physician-patient relationship, where the ‘personal nexus between professional and client’ is strong, and so is entirely incidental to the Act’s regulation of physicians’ professional conduct.”

The opinion also included a sharply-worded dissent which described the Act as a “gag order” that violates the First Amendment rights of physicians. According to the dissent, “the record and common sense lead inexorably to the conclusion that children will suffer fewer firearm related injuries if they – and their parents – know more about firearm safety. But now [as a result of the Act] they will know less.”

Decesaris v. Hallmark Health Emergency Physicians, Inc. (Summary)

NEGLIGENT RETENTION/SUPERVISION

Decesaris v. Hallmark Health Emergency Physicians, Inc.
No. 13-P-971 (Mass. App. Ct. July 29, 2014)

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The Appeals Court of Massachusetts affirmed a lower court’s judgment on directed verdicts in favor of an emergency physician group and hospital who were sued by a patient claiming that the two defendants negligently retained and supervised an emergency room doctor who was employed by the group and practiced at the hospital.

The patient was treated by the doctor at the hospital. After the patient left the hospital, the two engaged in a consensual sexual relationship that lasted approximately ten days. The patient then sued the hospital system, claiming that her relationship with the doctor caused her harm and that the group and hospital were responsible for that harm under theories of negligent supervision and negligent failure to protect. In upholding the lower court’s decision, the appellate court concluded that the defendants could not be liable for these causes of action because, at the time, they had no knowledge that the doctor had engaged in any “past acts of impropriety.” Moreover, the appellate court instructed that “[a] consensual sexual relationship generally does not give rise to a tort cause of action.”

Rouhani v. Bronson Battle Creek Hosp. (Summary)

SEXUAL HARASSMENT

Rouhani v. Bronson Battle Creek Hosp.
No. 315121 (Mich. Ct. App. July 15, 2014)

The Michigan Court of Appeals upheld a lower court’s ruling dismissing a psychiatrist’s sexual harassment claim against a hospital, holding that the psychiatrist failed to establish that there was any connection between the alleged harassment and a tangible employment action. After the psychiatrist received three letters concerning her quality of care, the Vice President of Medical Affairs at the hospital met with her to discuss how to improve her quality of care going forward. The psychiatrist alleged that, during this meeting, the VPMA made sexual comments to her and fondled her hand. The psychiatrist alerted the hospital and it conducted an investigation of the incident but was unable to determine whether any inappropriate conduct occurred. After the investigation, the psychiatrist alleged that her referrals decreased dramatically. The psychiatrist brought quid pro quo sexual harassment and retaliation claims against the hospital.

The court held that the psychiatrist failed to establish that there was any connection between the decrease in referrals and the alleged sexual conduct or her complaint. The court stated that an employee must show more than just a temporal connection between the alleged harassment and the adverse action; there needs to be evidence that one caused the other. Here, the psychiatrist only made conclusionary statements.

Matta-Rodriguez v. Ashford Presbyterian Cmty. Hosp. (Summary)

EMTALA

Matta-Rodriguez v. Ashford Presbyterian Cmty. Hosp.
No.12-1028 (PAD) (D.P.R. July 18, 2014)

The United States District Court for the District of Puerto Rico dismissed a family’s Emergency Medical Treatment and Active Labor Act (“EMTALA”) claim against a hospital, holding the hospital fulfilled its statutory duty to the patient. After a patient was admitted to the hospital, he was evaluated for an open cholecystectomy. Four days later, an additional test was ordered for the patient, but not by his treating physicians. This test would ultimately reveal the patient had high levels of bilirubin and alkaline. However, his treating physicians discharged him, and he reappeared in the hospital’s emergency room five days later. The patient was readmitted and after a consultation with the same treating physicians a CT scan was performed. The CT scan revealed two liters of bile in the patient’s abdominal cavity. The treating physicians determined the patient needed a special surgery that the hospital was not equipped and transferred the patient to a neighboring hospital for the surgery. The patient died two days later. The patient’s family brought this action against the hospital, claiming that the hospital violated EMTALA when it discharged the patient with an “unstablized emergency medical condition,” when it did not order a CT scan as part of the initial screening process during the patient’s second visit, and when it transferred the patient in an unstable condition.

The court held that despite the family potentially having a state medical malpractice claim, EMTALA was not violated. The court stated that the patient being negligently discharged is not an appropriate EMTALA claim since EMTALA no longer applies once a patient has been admitted as an inpatient. The court also found that the hospital fulfilled its EMTALA duty once it admitted the patient. Next, the court stated that the hospital did not take the patient’s financial ability into consideration when it failed to order a CT scan as part of his initial screening process. The hospital’s initial screening process had never included a CT scan, no matter how wealthy or poor the patient. Lastly, the court stated that the third claim falls outside of EMTALA’s protections as well because the patient was not transferred for financial reasons.

Elkharwily v. Mayo Holding Co (Summary)

PEER REVIEW PRIVILEGE

Elkharwily v. Mayo Holding Co., No 12-3062 (DSD/JJK) (D. Minn. July 21, 2014)

The U.S. District Court for the District of Minnesota ruled that a magistrate judge did not err in limiting the peer review privilege in a hospitalist’s case against his former employer.

The hospitalist alleged that he observed instances of negligence, improper patient admissions, and improper coding practices at the clinic. After reporting these concerns, the hospitalist was placed on administrative leave and eventually terminated. He brought a suit against the clinic, alleging breach of contract and retaliation under state and federal whistleblower statutes. The magistrate judge denied the hospitalist’s request for documents relating to relevant mortality conferences because such documents were protected by peer review privilege. The hospitalist then appealed this denial.

The court held that although the hospitalist alleged claims under both state and federal law, the magistrate judge’s application of the state statute of peer review privilege was appropriate in this instance. Additionally, the court noted that the magistrate judge did not issue a blanket application of the privilege, but instead ordered that evaluation of privilege be made on a specific document-by-document basis.

Wheat v. Rush Health Sys., Inc. (Summary)

AMERICANS WITH DISABILITIES ACT

Wheat v. Rush Health Sys., Inc.
No. 3:13-cv-984-HSO-RHW (S.D. Miss. July 15, 2014)

The United States District Court for the Southern District of Mississippi denied a hospital’s motion for summary judgment against a former employee’s claims under the Americans with Disabilities Act. The former employee alleged disparate treatment, failure to provide a reasonable accommodation, and retaliation.

The former employee, who wears bilateral hearing aids due to a hearing impairment, had been assigned to the hospital’s Medical Surgery Floor as a Charge and Preceptor Nurse. He later held a Staff RN position in the Post-Anesthesia Care Unit, and after that accepted a position as RN Circulator in the Orthopedic Surgery Unit. Fourteen months after he was hired into this role, he was removed from the position of RN Circulator and placed on administrative leave with pay. The hospital claimed that this occurred because he was not performing well in the position and posed a direct threat to patient safety.

While the employee was on administrative leave, the hospital assisted him in trying to find a replacement position. A lack of job offers eventually forced the employee to accept a clinic position in an urgent care clinic, resulting in a pay cut of $6.00 an hour. When the employee realized that his pay would be further reduced by another $2.00 per hour, he resigned and filed a lawsuit.

The hospital argued that the defendant was not disabled, was not qualified for his position as RN Circulator, and was not subjected to an adverse employment action. The plaintiff countered this evidence by showing a Staff Assessment Form that scored his performance as nine out of ten. The court held that summary judgment was inappropriate since both parties had offered evidence of contradictory material facts on important issues. The former employee also testified that a supervisor had told him he was pulled off a case as RN Circulator because the doctors did not like having to tell him something twice. These factors led the court to deny summary judgment and permit the case to proceed to trial.

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

EMPLOYMENT DISCRIMINATION

Pal v. Jersey City Med. Ctr.
No. 11-6911(SRC) (D.N.J. July 21, 2014)

The United States District Court for the District of New Jersey granted a motion for summary judgment filed by the University of Medicine and Dentistry of New Jersey (“UMDNJ”) and two affiliated physicians in a discrimination case brought by a female physician of Indian origin whose residency contract was not renewed. The court held that UMDNJ and its affiliated physicians had offered sufficient evidence to show that the issues at stake in the lawsuit were already decided by a prior ruling in the New Jersey state courts. In addition, UMDNJ and the two physicians filed a motion to impose sanctions on the plaintiff-physician, arguing that she had demonstrated a pattern of claiming medical disability in order to avoid deadlines for her own advantage. The court ruled that these sanctions were unwarranted based on the evidence available in the record. The court also denied the plaintiff-physician’s motion for leave to amend the complaint. The court held that the motion was “prejudicially untimely,” with no apparent justification for the delay.

Bejar v. Gibson (Summary)

EMPLOYMENT DISCRIMINATION/EXHAUSTION OF REMEDIES

Bejar v. Gibson
No. 13-2222-DDC-GLR (D. Kan. July 18, 2014)

The U.S. District Court for the District of Kansas dismissed a neurologist’s claims of discrimination and retaliation against the Veterans Administration (“V.A.”) due to lack of jurisdiction and failure to state a claim.

The plaintiff Ecuadorian neurologist began his work at the hospital in 1988. By 2010, he had filed seven Equal Employment Opportunity (“EEO”) complaints against the hospital, alleging discrimination and retaliation for prior complaints. In 2011, the neurosurgeon again filed an EEO complaint, arguing that hospital supervisors were engaging in discriminatory activity against him. He alleged that he was assigned extra work due to his nationality and in retaliation for his previous EEO claims. He also claimed that he was continually assigned to female patients, in violation of a hospital policy to assign patients and doctors of the same gender. The neurosurgeon expressed his belief that this was an attempt to elicit complaints from the female patients, giving the hospital a reason to take adverse action against him. Soon after his complaint was filed, a female patient alleged that the neurosurgeon had touched her inappropriately during an examination. Rather than investigate this complaint, the hospital suspended the neurosurgeon’s privileges. The neurosurgeon alleged that the defendant persuaded the woman to file a false complaint in order to have a reason to suspend his privileges. Even if there was no persuasion, the neurosurgeon claimed that the V.A. violated its normal hospital policy by assigning him to the female patient, which allowed the false complaint to occur. He maintains that the actions of the defendant were due to his race, national origin, and prior EEO complaints.

Because discrimination and retaliation claims are federal in nature, the court found that it had no jurisdiction over the case. However, the court dismissed the neurosurgeon’s claims based on the fact that he did not exhaust all administrative remedies before filing suit. Additionally, the court found that the neurosurgeon failed to show that he suffered a materially adverse employment action, rather than an inconvenient alteration of job responsibility. Due to this failure to state a claim, the court granted the defendant’s motion to dismiss.