Emlich v. OhioHealth Corp. — Dec. 2016 (Summary)

HCQIA IMMUNITY

Emlich v. OhioHealth Corp.
Case No. 2:14-cv-1697 (S.D. Ohio Dec. 22, 2016)

The United States District Court for the Southern District of Ohio granted a hospital’s motion for summary judgment in a suit brought by a physician asserting numerous claims, including claims under the Sherman Act and the False Claims Act, after the hospital terminated the physician’s clinical privileges and medical staff appointment.

The physician had a history of quality of care concerns at the hospital dating back to 2004.  A number of the issues raised were sent out for external review, which found that the physician’s treatment fell below “generally accepted standards of care” and contributed to patients’ injuries or deaths.  Concerns were also raised about the physician’s professional conduct, including instances in which the physician failed to respond to his pager, to see his patients on daily hospital rounds, and to enter daily progress notes on his patients.  The Medical Executive Committee (“MEC”) formed an ad hoc committee to investigate the physician’s quality of care and professional conduct issues.  The ad hoc committee found that the concerns were substantiated and serious.  The ad hoc committee recommended the termination of the physician’s appointment and clinical privileges.  The MEC accepted the ad hoc committee’s recommendation.  The physician requested and was granted a hearing which took place over six days.  During the hearing, the physician was provided with a list of the MEC’s witnesses and exhibits, represented by legal counsel, permitted to call nine witnesses, allowed (through his counsel) to cross-examine witnesses, given a transcript of the hearing at its conclusion, and allowed to file a post-hearing brief.  The hearing officer approved the recommendation of the MEC to terminate the physician’s appointment and clinical privileges.  In turn, the MEC voted unanimously to reaffirm its original recommendation.  On appeal to the hospital’s board of directors, the board affirmed the MEC’s recommendation.

The physician sued asserting that the hospital’s termination of his privileges originated in the physician’s disagreement with the hospital’s decision to move to a closed-model for the hospital’s ICU and because he complained about what he considered to be fraudulent billing practices.  The hospital filed for summary judgment, arguing that it was immune under the Health Care Quality Improvement Act (“HCQIA”).  The court granted the hospital’s motion finding that the hospital acted in the reasonable belief that the action furthered quality health care.  According to the court, the MEC had a reasonable belief that terminating the physician’s privileges would further quality health care considering “five separate external reviews, involving six different patients, documented numerous deficiencies” in his care, including several avoidable deaths.  The court also concluded that the hospital engaged in a reasonable effort to obtain the facts and afforded the physician fair and adequate notice and hearing as required for HCQIA immunity to attach.  With respect to the fair and adequate notice requirement, the court observed that the hospital “established that [it] fully complied with the [HCQIA] safe harbor requirements.”  The court also rejected the physician’s claim that two of the members of the ad hoc committee were direct competitors of his since the direct competition prohibition under HCQIA only applied to the hearing officer and not members of the ad hoc committee.

Finally, the court noted that the physician did not allege “that he has complied with any of the procedural prerequisites for bringing a claim under the [False Claims Act].”  Nonetheless, the court ordered the physician to show cause within 30 days as to why his False Claims Act should not be dismissed.