Manhas v. Franciscan Hammond Clinic, LLC — Feb. 2017 (Summary)

CREDENTIALING/RELEASE LANGUAGE

Manhas v. Franciscan Hammond Clinic, LLC
No. 45A05-1602-CT-328 (Ind. Ct. App. Feb. 24, 2017)

The Court of Appeals of Indiana reversed a lower court and held that the release language in a neurologist’s application solely applied to the entity that was credentialing the neurologist, not to the neurologist’s former employer.

A neurologist with a two-year employment agreement was notified by her employer, a clinic, that she was being terminated for cause due to her failure to obtain unrestricted hospital privileges at a local hospital.  The neurologist continued to work for the remaining six weeks of her employment agreement, but her employment was not renewed.  She filed a claim with the EEOC, alleging that she was terminated because she had notified the clinic that she was pregnant.  About one year later, the neurologist and clinic settled the discrimination claim.  As part of that settlement agreement, the neurologist was to direct all inquiries from prospective employers to the clinic’s director of human resources and, in turn, the clinic would “provide only the following information:  dates of employment, last position held, and salary.”

About a year-and-a-half later, the clinic received a request for a reference via an evaluation form from an Army Medical Center which had offered a temporary job to the neurologist.  The clinic’s medical director refused to complete the form; however, another physician did, rated the neurologist as fair and poor in the categories set forth on the form and stated that she had been terminated and was not eligible for rehire.  The Army Medical Center withdrew its offer to employ the neurologist, and she sued the clinic and the physician for defamation.

The clinic and physician claimed that they were third-party beneficiaries who were protected by the release language in the application that the neurologist signed when she applied to the Army Medical Center.  The language stated that the neurologist released the Army Medical Center, “its corporate affiliates, its current and/or former officers, directors and employees, its authorized agents and representatives and all others involved in this background investigation and any subsequent investigations, from any liability in connection with any information they give or gather and any decisions made concerning my employment based on such information.”

The Court of Appeals of Indiana held that this release language unambiguously applied solely to the entity that was credentialing the neurologist (the Army Medical Center and/or the temporary physician placement agency that was conducting credentialing on its behalf) – and did not apply to any former employer offering a reference for the neurologist.  Thus, the case was remanded to the lower court for additional proceedings.

Lewis v. Grady Memorial Hosp. Corp., Inc. — Feb. 2017 (Summary)

CHARITABLE IMMUNITY

Lewis v. Grady Mem’l Hosp. Corp., Inc.
A16A1877 (Ga. Ct. App. Feb. 22, 2017)

The Georgia Court of Appeals reversed a lower court’s grant of summary judgment in favor of a hospital, holding that the hospital was not entitled to charitable immunity as a matter of law since genuine issues of material fact remain regarding whether the hospital extended charity to the patient-plaintiff and whether the patient comes within the paying patient exception to the charitable immunity doctrine.

The patient filed a complaint against the hospital alleging that the hospital was liable for the sexual assault and battery committed upon her because a hospital employee failed to properly monitor the hallway leading to the patient’s room and, as a result, another patient was able to enter her room and assault her.  The hospital filed a motion for summary judgment asserting that the patient’s claims were precluded against it based on charitable immunity.  The lower court granted the motion and the patient appealed.

The appeals court explained that a charitable institution is not liable for negligence unless it fails to exercise ordinary care, but there is an exception – when a patient is not the recipient of charity, but pays for services and is injured because of negligence, the institution is liable.

In this case, after being admitted to the hospital, the patient executed a form providing that she was financially responsible for any charges not covered by her insurance plan.  During this time, the patient was employed and had health insurance through her employer.  The patient believed that her health insurance would pay for her treatment, but when the hospital submitted a claim for payment, for reasons unknown, the insurer denied the claim leaving an outstanding balance of approximately ten thousand dollars.  Subsequently, the patient’s attorney tendered to the hospital the outstanding balance of which the hospital accepted.

The court reasoned that the lower court erred in granting the motion for summary judgment based on its rationale that the patient was not a paying patient because her payment for services was tendered by her attorney.  Also, the court found that a patient who is unable to pay, but whose total expenses are paid by some other source, is not a charity patient because the charges are not borne by the public as an expression of charity.  Thus, the court reversed the lower court’s grant of summary judgment since the patient’s costs were paid in full and not charitably absorbed by the hospital nor borne by the public as an expression of charity.

Arnold v. Jewish Hosp. — Feb. 2017 (Summary)

PEER REVIEW

Arnold v. Jewish Hosp.
No. 2015-CA-000311-MR, No. 2015-CA-000427-MR (Ky. Ct. App. Feb. 24, 2017)

The Kentucky Court of Appeals affirmed a lower court’s ruling that peer review documents were not admissible at trial in a negligence case brought by the administratrix for the estate of a former patient against a hospital.

After the patient passed away from complications after a colonoscopy performed at the hospital, the hospital initiated the peer review process, which included a partial chart review by an independent physician, three committee meetings, written correspondence with the patient’s attending physicians, and a discussion with the Director of Nursing and Risk Management.

The lower court determined the peer review documents were inadmissible, the administratrix argued on appeal that the documents should have been admitted because they included statements pertaining to the appropriate standard of care not being met, and that there were concerns by the hospital with respect to the lack of communication between surgeons and nursing staff.

The appeals court stated that Kentucky is one of two states that permit discovery of peer review documents, but that just because such documents are discoverable does not mean it is relevant or admissible.  The court found that the peer review documents were not relevant to the issue of whether the hospital complied with the required standard of care, and assuming that the documents were relevant, the probative value of the documents was outweighed by the danger of unfair prejudice and confusion of the jury.  While the documents contained concerns relating to inadequate communication between the attending physicians, nurses, and the lab, they did not include any specifics as to which communications were inadequate or which nurses were involved.  Also, because the peer review committee did not review the case in its entirety or directly speak with the nurses or doctors involved in the case, the jury could have been confused or could have misinterpreted the committee’s concern as the equivalent of a legal standard of care violation. As such, the court concluded that the relevance of the documents was clearly outweighed by their prejudicial effect and affirmed the lower court’s ruling.

Health Alliance of Greater Cincinnati v. Christ Hospital — Sept. 2008 (Case Only)

Health Alliance of Greater Cincinnati v. Christ Hospital
2008 Ohio App. LEXIS 4191 (2008)

 

Lifespan Corp v. New England Med. Ctr. — July 2010 (Case Only)

Lifespan Corp. v. New England Medical Center
731 F.Supp.2d 232, 239-41 (D.R.I. 2010)

 

Manhas v. Franciscan Hammond Clinic — Feb. 2017 (Summary)

Manhas v. Franciscan Hammond Clinic
No. 45A05-1602-CT-328 (2017 WL 727774), (Ind. Ct. App. Feb. 24, 2017).

A neurologist with a two-year employment agreement was notified by her employing Clinic that she was being terminated for cause due to her failure to obtain unrestricted hospital privileges at a local hospital.  The physician continued to work for the remaining six weeks of her employment agreement, but her employment was, ultimately, not renewed.  She filed a claim with the EEOC, alleging that she was terminated because she had notified the clinic that she was pregnant.  About one year later, the neurologist and Clinic settled the discrimination claim.  As part of that settlement agreement, the neurologist was to direct all inquiries from prospective employers to the Director of HR at the Clinic.  In turn, the Clinic would “provide only the following information:  dates of employment, last position held, and salary.”

About a year-and-a-half later, the Clinic’s credentialing specialist received a request for a reference – in the form of an evaluation form – from an Army Medical Center, which had offered a temporary job to the neurologist.  The medical director of the Clinic refused to complete the form.  Ultimately, another physician completed the form, rating the neurologist as fair and poor in the categories set forth on the form (technical skills, attitude towards supervision, attitude towards duties, attendance record, and overall employment performance) and stated that she had been terminated and was not eligible for rehire.  After the Army Medical Center withdrew its offer to employ the neurologist, her attorney contacted the physician who filled out the evaluation form on behalf of the Clinic.  He then consulted the neurologist’s credentials file and apologized for providing inaccurate information.

The neurologist sued the Clinic and the physician for defamation.  In defense, they claimed that they were third party beneficiaries who were protected by the release that the physician signed when making her application to the Army Medical Center.  That release said that it released the Army Medical Center, “its corporate affiliates, its current and/or former officers, directors and employees, its authorized agents and representatives and all others involved in this background investigation and any subsequent investigations, from any liability in connection with any information they give or gather and any decisions made concerning my employment based on such information.”

The Court of Appeals of Indiana, reversing the lower court, held that this release language unambiguously applied only to the entity that was credentialing the neurologist (the Army Medical Center and/or the temporary physician placement agency that was conducting credentialing on its behalf) – and did not apply to any former employer offering a reference for the neurologist.  The case was remanded to the lower court for additional proceedings.

Taylor v. Intuitive Surgical, Inc. — Feb. 2017 (Summary)

PRODUCT LIABILITY

Taylor v. Intuitive Surgical, Inc.
No. 92210-1 (Wash. Feb. 9, 2017)

The Supreme Court of Washington vacated a jury verdict on behalf of a manufacturer, finding that the trial court had failed to instruct the jury that the manufacturer had a duty to warn the hospital of the dangers of the device it had purchased.

The case, which was a feature story in The New York Times a number of years ago, arose following complications the patient suffered after a prostatectomy in which the surgeon used the da Vinci robot.  The patient sued the surgeon, the hospital, and the manufacturer of the device.  After settling with the surgeon and the hospital, the patient pursued the case against the manufacturer.  At trial, the court failed to instruct the jury that the manufacturer had a duty to warn the hospital, and the jury found in favor of the manufacturer.

On appeal, the Washington Supreme Court found that, under state law, manufacturers have a duty to warn the purchasers of dangerous products.  In this case, the hospital was the purchaser of the dangerous product.  The manufacturer’s duty to warn was not satisfied by warning the physician who used the device.  Rather, the court concluded that hospitals need to know the dangers of the products they own.  The product warnings to hospitals will help hospitals to “design a credentialing process that will keep patients as safe as possible.”

In response to an argument from the manufacturer, that warning the physician should be sufficient because the physician served as a “learned intermediary,” the court concluded that the “learned intermediary doctrine” underscores the importance of patient safety.  Therefore, the court concluded, “it would be illogical if the doctrine was used to excuse another avenue to achieve that goal.  If patient safety is the goal, then it requires all hands on deck.”

Thus, the court concluded that manufacturers have a duty to warn hospitals about the dangers of their products.  The court vacated the defense verdict and remanded the case for a new trial.

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.