Linking Alleged Inducements to Increase in Medicare Claims Sufficient to Show But-For Causation
A federal district court in Massachusetts affirmed its decision to deny summary judgment for a medical device company that was alleged to have violated the Anti-Kickback Statute (“AKS”) by not only providing product support to physicians, but also effectively running their clinics. The court had previously denied summary judgment, but was reconsidering its prior decision in light of an appellate court ruling that was recently issued, which held that the phrase “resulting from” in the 2010 amendment to the AKS requires “but-for” causation. Applying that stricter “but-for” standard to the facts at hand, the district court held that summary judgment was still inappropriate, since the relator presented evidence linking the medical device company involvement in the clinics to an increase in specific Medicare claims. The court emphasized that the relator’s evidence included temporal and circumstantial data showing that the company’s remuneration activities were a likely cause of false claims, which was sufficient to withstand summary judgment on this issue. U.S. ex rel. Witkin v. Medtronic, Inc.
Summary Judgment for Hospital Reviewing Health and Professionalism Concerns
A federal district court in Wisconsin granted summary judgment in favor of a hospital that was sued by a physician alleging disability discrimination and FMLA retaliation claims. The dispute arose after the physician failed to respond timely while serving on the call schedule and subsequently claimed that a medical emergency prevented her from responding. In the end, the court held that summary judgment was appropriate because the physician submitted no evidence supporting her claims that any restrictions on her privileges or practice were due to her being regarded as disabled or taking FMLA leave and, instead, all evidence supported a finding that all investigations and actions were related to the patient safety event (the physician’s failure to respond while on call). Mezu-Ndubuisi v. Bd. of Regents of the Univ. of Wis. Sys.
Confusion Over Who Is Responsible for Physician Assistant Actions in ED
An appellate court in Illinois affirmed summary judgment in favor of an ED staffing group and physician, but reversed summary judgment that had been granted to the hospital, in a malpractice lawsuit brought by a patient who was discharged from the hospital’s ED by a physician assistant, only to return later having suffered from a stroke (resulting in severe and permanent damages). The court held that the physician had no duty to the patient, since the physician was never involved in the patient’s care and the physician assistant exercised discretion to decide whether to consult with the physician before discharging the patient from the ED. The court also held that the ED staffing group had no duty, despite the fact that the hospital paid for a medical director from the group to set and train employees on policy matters and such, because the physician assistant was required to follow hospital policies while working in the hospital. In reversing summary judgment for the hospital, the court held that there was a genuine issue of material fact regarding whether the physician assistant was an agent of the hospital – despite consent forms stating that ED physicians and physician assistants were independent contractors – because of the patient’s condition at the time she entered the ED and the fact that patients coming to the ED in an emergent condition may not be able to make a meaningful choice to seek care elsewhere if presented with such a form (even if they are able to understand its contents). Martin v. Layman
HCQIA Immunity Requires at Least Some Discovery
The Supreme Court of Nevada reversed summary judgment that had been granted in favor of a surgical care center, on the basis of immunity under the Health Care Quality Improvement Act (“HCQIA”). First, the court held that the lower court improperly invoked HCQIA immunity to bar the physician’s claim for declaratory relief (he wanted a declaration that he was wrongly suspended in violation of the surgery center’s Bylaws, as well as an order requiring the surgery center to remove its report from the National Practitioner Data Bank), since the HCQIA’s immunity only applies to money damages. The court also held that the physician should have been provided at least some opportunity to conduct discovery during the course of litigation before the lower court decided whether the surgery center was entitled to HCQIA immunity on the money damages claims. While the court acknowledged that the HCQIA was designed to permit hospitals and other health care providers to seek early dismissal of non-meritorious litigation, application of HCQIA immunity does require an evaluation of whether the health care provider met certain standards (e.g., action in furtherance of quality care, action after reasonable effort to obtain the facts of the matter, action after adequate notice and hearing to the practitioner) and, in turn, the court held that it was improper to grant summary judgment to the surgery center before he had any opportunity for discovery. Khamamkar v. Specialty Surgicare of Las Vegas, L.P.
Credentialing Applications and Evaluations Protected by Peer Review Privilege
The Connecticut Superior Court granted a hospital’s motion for a protective order in a malpractice lawsuit, where the patient’s representative requested a physician’s credentialing file (including applications for hospital privileges and periodic performance evaluation forms, some bearing handwritten notes indicating internal review). The court noted that the peer review privilege applies to documents generated primarily for peer review purposes or reflecting peer review analysis, while materials independently recorded or obtained outside the peer review process are not protected. Because the physician’s privilege applications and performance evaluations were intended for review by committees evaluating qualifications and clinical performance, the court determined that they were privileged. Acknowledging that privileges may restrict access to otherwise relevant information, the court emphasized the important policy interests served by maintaining confidentiality in peer review. Penn-Williams v. The Norwalk Hosp. Ass’n