Lindsey v. Butterfield Health Care II, Inc. — Feb. 2017 (Summary)

PEER REVIEW PRIVILEGE

Lindsey v. Butterfield Health Care II, Inc.
Nos. 2-16-0042 & 2-16-0268 cons. (Ill. App. Ct. Feb. 9, 2017)

The Appellate Court of Illinois for the Second District affirmed a lower court’s ruling that a nursing home had to produce a report and witness statements pertaining to a patient fall because the documents were not privileged.

Following a fall in a nursing home, a patient brought a claim for negligence against the nursing home and sought to discover all documents relating to the investigation of her fall.  The nursing home objected to producing a report and witness statements, claiming that the documents were privileged under the Quality Assurance Act and the Medical Studies Act because the documents were prepared for the Facility’s Quality Assurance Committee.

The trial court ruled against the nursing home, finding that the documents were simply factual and contained no recommendations for improvement.  When the nursing home failed to abide by the order, the trial court held it in contempt.

On appeal, the court considered whether the report and the witness statements were privileged pursuant to the Quality Assurance Act and the Medical Studies Act.  The court rejected the nursing home’s argument that the documents were privileged because they were eventually reviewed by the Quality Assurance Committee.  Specifically, the court found that such reasoning would allow the nursing home to circumvent established Illinois precedent and keep everything privileged except a patient’s own medical records.  Rather, the court concluded that Illinois precedent established that while documents initiated, created, prepared, or generated by a peer review committee are privileged, documents that are created in the ordinary course of business or for later corrective action are not.  The court pointed out that both the report and the witness statements were prepared prior to any peer review committee meeting.

The court did vacate the lower court’s contempt citation, finding that the nursing home’s refusal to comply with the discovery orders was undertaken in good faith merely as a means to seek appellate review of its unsuccessful assertion of privilege.  The court remanded the case back to the lower court, affirming in part and vacating in part.

Bain v. Colbert Cty. Nw. Ala. Health Care Auth. — Feb. 2017 (Summary)

MALPRACTICE/AGENCY

Bain v. Colbert Cty. Nw. Ala. Health Care Auth.
1150764 (Ala. Feb. 10, 2017)

The Supreme Court of Alabama affirmed a decision by a lower court to grant a hospital’s motion for summary judgment in a malpractice action brought by a patient’s wife.  The complaint alleged that the nurses and the physician in the emergency department had breached the standard of care when they treated the patient.  With respect to the physician, the complaint alleged that he was acting within the scope of his duties as an employee or that he was an actual or apparent agent of the hospital, and thus the hospital should be held liable.

The facts leading to the claim are as follows.  After experiencing increasing pressure near the base of his skull and fatigue, the patient, a 30-year-old male, was brought to the hospital’s emergency department where he was first triaged by nurses.  There was no indication in the medical record that the nurses noted the patient’s family history, which included that his father had died of an aneurysm at age 47.  Subsequently, the ED physician examined the patient and obtained a medical history, including information that the patient’s father had an aneurysm.  Although the ED physician failed to document the history in the medical record, the patient’s wife remembered the discussion and testified about such during her deposition.

The ED physician ordered certain tests, including an x-ray, a CT, an EKG, and blood work; he  was, however, unable to determine the cause of the patient’s symptoms.  The ED physician discharged the patient approximately six hours later with instructions that the patient follow up with his primary physician.  The patient died approximately 20 days later when a 45-millimeter ascending aortic aneurysm dissected.

With respect to the claim against the hospital for the care rendered by the ED nurses, the court concluded that summary judgment in favor of the hospital was proper because there was no evidence that the nurses’ failure to obtain the patient’s family history contributed to the patient’s death.  Rather, the evidence supported that the ED physician learned through his own efforts that the patient’s father had died of an aneurysm.  The failure of the nurses to obtain and communicate this information to the ED physician did not affect the treatment provided to the patient.

With respect to the claim against the hospital for the alleged negligence of the ED physician, the court said that there had to be proof that:  (1) the hospital had acted to hold the ED physician out as its employee or agent; (2) because of the acts of the hospital, the patient reasonably believed that the ED physician was an employee or agent of the hospital; and (3) the patient actually relied on the appearance that the ED physician was an employee or agent of the hospital.  The court found that there was no proof to support these conclusions.

The court also refused to find that the hospital had a nondelegable duty to provide the patient with emergency medical physician services that met the standard of care.  While the hospital was required to properly organize, staff and equip the ED, the court found that the hospital was not required to “provide emergency physician services that are within the applicable standard of care for emergency-room physicians.”  The duty to provide care that met the standard of care rests solely with the ED physician; the hospital did not share that duty.

Wollschlaeger v. Governor of Florida — Feb. 2017 (Summary)

PHYSICIAN-PATIENT RELATIONS  RE:  GUN OWNERSHIP

Wollschlaeger v. Governor of Florida
No. 12-14009 (11th Cir. Feb. 16, 2017)

The United States Court of Appeals for the Eleventh Circuit affirmed in part and reversed in part a district court’s ruling on the constitutionality of a Florida law which restricted physicians and other medical professionals from asking patients about their ownership and use of firearms.  The law also prohibited physicians from entering information into a patient’s medical record about firearm ownership or use if the physician knew that such information “is not relevant to the patient’s medical care or safety or the safety of others.”  According to the law at issue, violations could lead to disciplinary action by the Florida Board of Medicine, including a $10,000/violation fine, reprimand, compulsory remedial education, or license revocation.

The law had been adopted in response to complaints from six patients about questions they had been asked by their physicians regarding firearm ownership.  The intent of the law was to protect patient privacy, to protect the Second Amendment rights of patients, and to protect patients from verbal harassment and discrimination based on their ownership of firearms.  A number of physicians filed suit challenging the law, soon after its adoption, claiming that the law forced them, against their professional judgment, to engage in self-censorship and, therefore, violated their First Amendment rights.

In reviewing the challenge to the law, the circuit court said “the question…is whether, in a state with more than 18 million people…six anecdotes…are sufficient to demonstrate harms that are ‘real, [and] not merely conjectural,’ such that the [law] ‘will in fact alleviate these harms in a direct and material way.’”  The court concluded that even if there was a possible conflict between the First Amendment rights of physicians and the Second Amendment rights of patients, the law, as written, did not advance the legislative goals in a permissible way.

The court also concluded that concerns that patients would be harassed by the questions asked by their physicians, absent the law, was similarly unfounded.  The court pointed to equally uncomfortable discussions physicians typically have with patients about other private matters like sexual activity.

Ultimately, the court concluded that the provisions of the law, which required physicians to limit their inquiries about the ownership of firearms, limit what information they could enter in the medical record, and refrain from harassment, did not advance the legislative goals of protecting patient privacy, regulating the medical profession, and safeguarding Second Amendment rights in a permissible way.

The court upheld the anti-discrimination provisions of the law which prohibited physicians from discriminating against patients because of their ownership of firearms.

Morshed v. St. Barnabas Hosp. — Feb. 2017 (Summary)

PEER REVIEW PRIVILEGE

Morshed v. St. Barnabas Hosp.
No. 16 Civ. 2862 (LGS) (S.D.N.Y. Feb. 10, 2017)

The United States District Court for the Southern District of New York overruled a hospital’s assertion that certain documents relating to claims of sexual harassment, discrimination, and a hostile work environment were privileged.

A former resident in a training program alleged that he was subject to sexual harassment, a hostile work environment, and discrimination, by physicians who supervised and evaluated him during his training.  The resident sought the production of documents, including e-mails between and among supervising physicians, preceptor evaluations, and e-mails addressing the resident’s performance.  The hospital claimed that the documents were protected from discovery by the peer review privilege.  To this end, the hospital argued that the court should recognize the existence of a peer review privilege under state and federal laws.

The court rejected this argument and ruled that the Health Care Quality Improvement Act did not create a federal peer review privilege.  Similarly, the court ruled that the Patient Safety and Quality Improvement Act only created a privilege for documents that were assembled for and reported to a patient safety organization; the documents at issue did not fit within the purview of this law.

In considering the state peer review privilege, the court concluded that, on balance, the resident’s need for the information to support his claims for harassment, hostile work environment, and discrimination outweighed the hospital’s desire to keep the documents protected from disclosure.  The court, therefore, overruled the hospital’s assertion of privilege and ordered the production of the documents at issue.

U.S. ex rel. Michaels v. Agape Senior Cmty., Inc. — Feb. 2017 (Summary)

FALSE CLAIMS ACT

U.S. ex rel. Michaels v. Agape Senior Cmty., Inc.
No. 15-2145 (4th Cir. Feb. 14, 2017)

The United States Circuit Court of Appeals for the Fourth Circuit affirmed in part and dismissed in part a ruling by the district court in a False Claims Act (“FCA”) case brought against a group of affiliated elder care facilities.

Two former employees (“relators”) filed a qui tam action alleging that the elder care facilities fraudulently billed Medicare and other federal programs for services that were not actually provided or that were provided to ineligible patients.  Although the United States Government was entitled to join the lawsuit as a party, it declined to intervene.  The relators and the elder care facilities eventually agreed to a settlement, but the Government objected, contending that the settlement amount was much less than it had estimated the damages.  Based on the Government’s objections, the district court rejected the proposed settlement, holding that the Government had “unreviewable veto authority” over a proposed settlement even when it had declined to intervene as a party.

Looking to cases in other circuit courts and the plain language of the FCA statute, the Fourth Circuit ruled that the Government possessed absolute veto power over voluntary settlements in qui tam actions and, as such, the relators were not entitled to settle a case over the Government’s objections.  The court noted that in an FCA case, the Government is the real party in interest.  To rule otherwise would allow private party relators to settle claims for their own benefit while depriving the Government, and the public, of money that was rightfully due.

U.S. ex rel. Rembert v. Bozeman Health Deaconess Hosp. — Feb. 2017 (Summary)

FALSE CLAIMS ACT

U.S. ex rel. Rembert v. Bozeman Health Deaconess Hosp.
No. CV 15-80-BU-SHE (D. Mont. Feb. 7, 2017)

The United States District Court for the District of Montana denied, among other motions, a hospital’s motion to dismiss for lack of subject matter jurisdiction, reasoning that a public disclosure bar was inapplicable to the case at hand. The hospital filed the motion in response to a qui tam action, which alleged that the hospital had violated the False Claims Act (“FCA”) by unlawfully trading patient referrals for remuneration through the formation and operation of an outpatient medical imaging joint venture.

Noting that the public disclosure bar deprives a district court of jurisdiction over any qui tam action that is based upon allegations or transactions already disclosed in certain public forums (unless the qui tam relator was the original source of the information underlying the action), the court reasoned that the public disclosure bar was inapplicable because no prior disclosure within the parameters of the FCA was shown to have been made.

Part of the dispute over the public disclosure bar centered on an earlier complaint filed in state court.  That complaint had asserted claims for intentional interference with contractual relations, breach of contract, breach of an implied covenant of good faith and fair dealing, unfair trade practices, and punitive damages.  The court explained that this state court action was not similar enough to the current FCA case to qualify as a “public disclosure.”  The court determined that the facts underlying the former state court complaint were not substantially similar to the unlawful kickback scheme that was currently being alleged.  Therefore, the public disclosure bar did not preclude the district court’s jurisdiction, and the court saw fit to deny the hospital’s motion to dismiss.

Walker v. Memorial Health Sys. of E. Tex. — Feb. 2017 (Summary)

NATIONAL PRACTITIONER DATA BANK

Walker v. Mem’l Health Sys. of E. Tex.
Civil Action No. 2:17-CV-00066-JRG (E.D. Tex. Feb. 8, 2017)

The United States District Court for the Eastern District of Texas granted a surgeon’s motion for a preliminary injunction against his hospital employer. After issues arose in conjunction with the surgeon’s treatment of two patients at the hospital, the hospital’s Medical Executive Committee (“MEC”) had recommended that the surgeon have a mandatory concurring proctoring requirement for five bowel surgery cases.

The Board ultimately adopted the MEC’s recommendation (that the surgeon be required to have five bowl surgery cases proctored at his expense), but failed to specify a timetable for the completion of the proctored cases.  Thirty days elapsed without the surgeon completing the five cases, so the hospital filed an adverse report to the National Practioner Data Bank (“NPDB”).  The report noted the proctoring requirement and stated that the basis for the action was “substandard or inadequate skill level.”  (The court noted in a footnote that a hearing committee composed of five physicians had recommended rejecting any adverse action.)

The surgeon filed an administrative dispute of the report and filed this action seeking immediate injunctive relief.  The court found that the surgeon established all of the necessary elements to entitle him to a preliminary injunction: a substantial likelihood of success on the merits of the claim; a substantial threat of irreparable injury or harm for which there is no adequate remedy at law; a threatened injury to the applicant outweighing any harm that the injunction might cause to the defendant; and that the injunction would not disserve the public interest.

The court declined to interpret NPDB reporting requirements in a way that would “discriminate against practitioners in rural communities.”  The court reasoned that it would be easier for a surgeon in a busy Dallas hospital to find a proctor and complete the set number of cases within 30 days, compared to a surgeon practicing in a rural area with fewer potential proctors.  The court also directed criticism at the hospital’s decision-making process, noting that it had access to competent legal counsel yet decided to adopt a proctoring requirement that was silent as to duration, without any explanation.

With respect to irreparable harm, the court noted that an adverse report on the NPDB that deems a surgeon to have “substandard or inadequate skill” is an “indelible stigma” and would be intrinsically harmful to the surgeon’s practice, professional reputation, and livelihood.  In addressing the balance of harm element, the court rejected the hospital’s claim that the injunction would force the hospital to violate federal law by not making the report, stating that any injunctive relief ordered by the court would compel the hospital to comply with federal law, not violate it.

Lastly, the court concluded that the preliminary injunction would not disserve the public’s interest, because Congress had already considered the competing interests of the public and medical practitioners when it drew the 30-day bright-line temporal standard.  The court found that proctoring sanctions against the surgeon were not reportable, and to hold otherwise would read the 30-day requirement out of the statute and applicable NPDB guidelines. Thus, the court granted the surgeon’s motion for preliminary injunctive relief.

U.S. ex rel. Conroy v. Select Med. Corp. — Feb. 2017 (Summary)

FALSE CLAIMS ACT

U.S. ex rel. Conroy v. Select Med. Corp.
No. 3:12-cv-00051-RLY-DML (S.D. Ind. Feb. 3, 2017)

The United States District Court for the Southern District of Indiana denied a defendant hospital’s motion for interlocutory appeal in a False Claims Act (“FCA”) action.  Former employees alleged that the defendant-hospital had perpetrated a scheme to defraud Medicare, in violation of the FCA.

The FCA, a fraud enforcement statute for entities participating in federal programs, allows the Executive Branch to oppose the dismissal of a claim if the allegations were previously publicly disclosed.  This is part of the “public disclosure bar” doctrine.  On appeal, the hospital argued that if the allegations had indeed been publicly disclosed, the public disclosure bar would prohibit a federal court from hearing the case.  Looking to the language of the statute, the court found that Congress had clearly not intended for public disclosure to serve as a reason for stripping federal courts of their ability to hear a case.  The unanimous decisions of other circuits bolstered the court’s rationale.

The court also addressed whether the Executive Branch’s involvement in consensual dismissal of an FCA action constituted a separation of powers violation.  Because both the court and attorney general must give written consent for the voluntary dismissal of a qui tam FCA claim, the hospital claimed this created an impermissible “built-in condition” that required Executive Branch approval before dismissing a case.  The court disagreed, holding that no such approval is required in cases of involuntary dismissal and, therefore, the Executive Branch approval in voluntary dismissal by a qui tam relator does not run afoul of the separation of powers doctrine.  This is because the government, which has been injured by the violative conduct, has a right to intervene where an otherwise meritorious FCA claim might be dismissed by a defendant on public disclosure grounds.

Accordingly, the court denied the hospital’s motions for interlocutory appeal on the questions of law presented.

Brasher v. Thomas Jefferson Univ. Hosp. Inc. — Jan. 2017 (Summary)

AGE DISCRIMINATION

Brasher v. Thomas Jefferson Univ. Hosp. Inc.
No. 16-1146 (3d Cir. Jan. 27, 2017)

The United States Court of Appeals for the Third Circuit affirmed a lower court’s grant of summary judgment to a hospital on a claim of age discrimination under the Age Employment in Discrimination Act (“ADEA”).

The hospital terminated the employment of a nurse in her 50s following clinical concerns.  The hospital cited the nurse’s failure to follow protocols, initiation of procedures exceeding her scope of practice, and documentation errors as reasons for her termination.  The nurse claimed the proffered justifications were pretextual.  The nurse offered a similarly situated individual, a fellow nurse in her 20s, who allegedly also made a serious medication error.  The court found the comparison unpersuasive because the comparator did not have a similar disciplinary record.  The nurse also cited the animosity of the staff as evidence of age discrimination toward her.  The court similarly found this argument unconvincing because the nurse did not demonstrate how other staff members were treated more favorably than her.  Finally, the court held that the nurse’s mere contention that her scope of practice violation was done with the prior approval of a physician was insufficient to raise suspicion that the hospital’s explanation for her termination was pretextual.

Because the nurse produced evidence to discredit only one of the hospital’s many reasons for terminating her employment, the nurse failed to demonstrate that her termination was the result of age discrimination under the ADEA.

Mullins v. Suburban Hosp. Healthcare Sys., Inc. — Feb. 2017 (Summary)

EMTALA

Mullins v. Suburban Hosp. Healthcare Sys., Inc.
Civil Action No. PX 16-1113 (D. Md. Feb. 6, 2017)

The United States District Court for the District of Maryland granted in part and denied in part motions to dismiss claims of medical malpractice and violations of the Emergency Medical Treatment and Active Labor Act (“EMTALA”).

A patient went to a hospital’s emergency room for stabilization of a hand injury.  When the patient’s request for a transfer to a hand specialty facility for treatment was denied, the on-call physician performed the surgery himself.  The patient later filed suit against the hospital, treating physicians, and the hand specialty facility for medical malpractice and violations of EMTALA.

Because the patient was screened, stabilized, diagnosed, and treated at the hospital, all of which are requirements under EMTALA, the court found that the patient had no basis to stake a claim under the statute.  The appropriateness of care, the court noted, is a different concern that implicates state medical malpractice laws and is not addressed by EMTALA.  EMTALA is not a federal malpractice statute.  Accordingly, the court granted the hospital’s motion to dismiss the claim.

The court also granted the hospital’s and physicians’ motions to dismiss the medical malpractice claims, because the patient did not comply with the appropriate Maryland procedures for filing his claims.  The court did, however, deny the hand specialty facility’s motion to dismiss the claim under EMTALA’s “reverse-dumping” provision, which mandates that hospitals with specialized capabilities “shall not refuse to accept an appropriate transfer” from another facility.  Therefore, the patient’s allegations that the hand specialty facility was a participating hospital with specialized services and refused his transfer request were sufficient to survive the motion to dismiss.

Finally, the court denied the patient’s motion to amend his complaint, on the basis that his proposed amendments had no bearing on the pending motions to dismiss.