Gutierrez v. Santa Rosa Memorial Hosp. — Dec. 2016 (Summary)

EMTALA

Gutierrez v. Santa Rosa Mem’l Hosp.
Case No. 16-cv-02645-SI (N.D. Cal. Dec. 13, 2016)

The United States District Court for the Northern District of California granted in part and denied in part a hospital’s motions to dismiss claims under the Emergency Medical Treatment and Active Labor Act (“EMTALA”) and California’s Elder Abuse and Dependent Adult Civil Protection Act brought by a patient and her family (“plaintiffs”).

The patient, a diabetic with end-stage renal disease, sought treatment at the hospital’s emergency department.  The hospital ordered various laboratory and diagnostic tests which allegedly showed evidence of “profound congestive heart failure.”  Despite this, according to the plaintiffs’ complaint, the patient was discharged and, while sitting in the hospital’s waiting room, collapsed.  She was resuscitated, but remained in a coma.  The plaintiffs sued the hospital asserting claims for, among other things, a violation of EMTALA and a violation of the state’s Elder Abuse and Dependent Adult Civil Protection Act.  The hospital filed a motion to dismiss, which the court granted in part and denied in part.  In doing so, the court found that the plaintiffs adequately pleaded a failure to screen claim under EMTALA in that the plaintiffs alleged that the hospital provided a screening that was different than what it would have provided to patients who were not indigent and underinsured and that the screening was “so cursory that it was not designed to identify acute and severe symptoms.”  The court also concluded that the plaintiffs adequately pleaded a failure to stabilize claim under EMTALA.  On the other hand, the court dismissed the plaintiffs’ Elder Abuse and Dependent Adult Civil Protection Act claim because the patient did not fit the definition of “dependent adult” under the law and there was no “caretaking or custodial relationship” between the patient and the hospital.

Palepu v. Bondi — Feb. 2017 (Summary)

PEER REVIEW PRIVILEGE

Palepu v. Bondi
No. 458 WDA 2016 (Pa. Super. Ct. Feb. 14, 2017)

The Superior Court of Pennsylvania affirmed a decision granting a defendant physician’s motion for summary judgment on the issue of defamation for his role in relaying a report of harassment to a hospital peer review committee.

A nurse reported to her supervisor disparaging comments directed toward her by plaintiff physician.  The nursing supervisor notified the defendant physician, the chair of the surgery department, about the incident, and the defendant chair ultimately disclosed the information to the peer review committee.  Plaintiff physician sued the defendant physician claiming that his report to the peer review committee was “knowingly false” and therefore did not enjoy the privilege of peer review protection.  Under Pennsylvania law, unless the information provided to the peer review committee was intentionally false, the individual providing the information is immune from suit.  The court found that the plaintiff physician failed to adduce any evidence demonstrating that the defendant physician had deliberately fabricated or manipulated the events that he relayed to the peer review committee and, as such, failed to rebut the protection of peer review privilege.  The Superior Court therefore affirmed the grant of summary judgment in favor of the defendant physician.

Winger v. Meade Dist. Hosp. — Dec. 2016 (Summary)

DUE PROCESS RIGHTS

Winger v. Meade Dist. Hosp.
Case No. 13-1428-JTM (D. Kan. Dec. 14, 2016)

The United States District Court for the District of Kansas granted a hospital’s motion for summary judgment on the issue of whether it had afforded adequate due process to a physician when it revoked the physician’s staff privileges; the court found that the termination of privileges did not deprive the physician of any property interest without due process.

After staff reported that a physician had provided substandard care to two patients on the same day, the hospital convened a meeting with its risk management committee, which determined that an external peer review entity should examine the physician’s care.  Following the external peer review entity’s determination, the physician was given a chance to formally respond to the external review and the charges of substandard care.  While the physician initially stated that he would respond to the external review, he instead opted to ask a fellow physician to provide an opinion and submitted that physician’s brief and “conclusory” letter – which included no details about the patients’ care – to the risk management committee.  Because the physician failed to respond directly to the findings of substandard care, the physician’s temporary privileges to practice at the hospital were terminated.  Rather than face termination, the physician resigned his appointment and his employment was terminated shortly thereafter.

The physician sued on a number of grounds, with the only claim remaining at this stage was that the hospital deprived him of his property interest in 60 days of continued employment without due process, including notice of the charges, an explanation of the evidence, and an opportunity to respond.  The court disagreed, granting the hospital’s motion for summary judgment after finding that the physician knew of the charges against him and had been informed about his opportunity to formally respond sufficient to meet the standards for adequate due process.

Tshibaka v. Sernulka — Dec. 2016 (Summary)

HCQIA

Tshibaka v. Sernulka
No. 15-1839 (4th Cir. Dec. 13, 2016)

The United States Court of Appeals for the Fourth Circuit affirmed in part and vacated in part a physician’s claim that a hospital revoked his hospital privileges because of racial discrimination.

While the details regarding the specific behaviors the physician engaged in were redacted in the court opinion, the physician signed an agreement with the hospital after a 2008 incident involving a nurse in which he agreed to undergo a mental health evaluation and begin receiving treatment.  Also included in the agreement was a “last chance” provision.  In 2013, after a patient care technician accused the physician of sexual harassment the CEO determined that the physician had violated the “last chance” provision of their agreement and instituted a summary suspension and a merits hearing.  Ultimately, both the hearing panel and the appellate review board adjudged the physician responsible for committing two sexual assaults and the board terminated the physician’s hospital privileges.

The court determined that the physician failed to allege racial discrimination because he could not identify other, similarly-situated physicians who were treated differently from him solely on the basis of race.  The court also determined that the hospital was immune from the physician’s state law claims under the Health Care Quality Improvement Act (“HCQIA”). The physician was unable to rebut the presumption that the professional review activity was in the furtherance of improving health care quality, after providing adequate notice and hearing to the physician, therefore, the hospital qualified for immunity under the statute.

The court did find, however, that the lower court’s dismissal of the physician’s defamation claim against the patient care technician was unwarranted as she did not qualify for the absolute immunity that the state common law extends to protect witnesses in judicial or quasi-judicial proceedings.  Rather, while the court noted that she may be entitled to the qualified privilege extended to those involved in peer review proceedings, further proceedings were necessary by the trial court to make that determination.

Woods v. Lynch — Dec. 2016 (Summary)

DEA REGISTRATION

Woods v. Lynch
No. 1:16-CV-01289-STA-egb (W.D. Tenn. Dec. 12, 2016)

The United States District Court for the Western District of Tennessee granted a preliminary injunction against the Drug Enforcement Agency’s (“DEA”) waiver requirement as it applied to two physicians with former substance abuse problems.

The plaintiffs are two physicians who had issues with substance abuse in the past which resulted in the surrender of their DEA registrations.  Both had ultimately had the registrations reinstated with full prescribing authority, one in 2002 and the other in 2013.  Both physicians held admitting privileges at the same local hospital where they had been practicing without incident for several years, information of which the DEA was aware.  In late 2016, however, the DEA advised them that they were required to have a waiver in order to work at the hospital.  The physicians claimed that the DEA could not retroactively apply an administrative regulation to them and that doing so would cause them irreparable harm in the form of lost income.

The physicians asserted that they surrendered their licenses voluntarily while pursuing substance abuse treatment and then petitioned the DEA for reinstatement, which was granted by the DEA. It was at that time that the DEA should have addressed the issue of a waiver, which the agency failed to do. The court found that the physicians’ claims, if adjudged accurate, were likely to preclude the DEA from requiring the physicians to sign a waiver to practice because the DEA missed the opportunity to do it earlier.  As such, the court granted the physicians’ request for preliminary injunction against the application of the DEA’s waiver requirement.

Nahas v. Shore Memorial Hosp. — Dec. 2016 (Summary)

HCQIA

Nahas v. Shore Memorial Hosp.
Docket No. A-4638-14T2 (N.J. Super. Ct. App. Div. Dec. 7, 2016)

The New Jersey Superior Court of Appeals affirmed a lower court’s decision granting a hospital immunity under state law and the Health Care Quality Improvement Act (“HCQIA”) for its denial of renewing staff privileges for a surgeon.

After a surgeon’s release from jail and house arrest based on charges that he obstructed and misled a healthcare fraud investigation, he sought reinstatement at the hospital where he had practiced.  Over the course of more than ten years, multiple reinstatement options were recommended and/or imposed by medical staff committees and different levels of appeals were held pertaining to those different actions.  Ultimately, the physician was granted provisional privileges at the hospital for some general surgery procedures, “supervised” privileges for some vascular procedures because the medical staff found that he did not have “sufficient clinical competency,” and some privileges were ultimately denied for failure to establish the requisite training and level of current clinical competence.  The surgeon appealed the various privileging requirements arguing they were “arbitrary and capricious,” while the hospital argued that it was immune from suit on the basis of the HCQIA and state peer review statute.  Because the hospital complied with the HCQIA due process provisions in restricting the physician’s privileges in the manner in which it did, the court affirmed the hospital’s immunity from suit for the “professional review action” undertaken.  The New Jersey Superior Court of Appeals accordingly affirmed the lower court’s decision granting the hospital immunity for its professional review action that resulted in the restriction of the physician’s privileges.

EID v. Loyola Univ. Med. Ctr. — Feb. 2017 (Summary)

PEER REVIEW PRIVILEGE

EID v. Loyola Univ. Med. Ctr.
No. 1-14-3967 (Ill. App. Ct. Feb. 24, 2017)

The Appellate Court of Illinois for the First District upheld a lower court’s determination that the Illinois Medical Studies Act privilege applied to documentation generated by a hospital’s risk manager who had been directed by the hospital’s chief medical officer, a member of the hospital’s Medical Care Evaluation and Analysis Committee (“MCEAC”), to investigate a patient care incident on behalf of the MCEAC.

After being sued for medical negligence and reckless infliction of emotional distress stemming from the death of a toddler, the hospital refused to produce 13 pages of documents pertaining to the incident that had been generated by the hospital’s risk manager, arguing that because the documentation had been generated on behalf of the MCEAC, a peer review committee that reviews deaths in the efforts to reduce morbidity and mortality, it was privileged under the Medical Studies Act. The court upheld the lower court’s decision that the Act’s privilege covered the disputed documents because the information gathered was part of a peer review study covered by the Act. The court noted that the hospital’s bylaws authorized the chief medical officer of the hospital to begin a peer review investigation and the hospital provided affidavits which established that the risk manager reported the information resulting from her investigation to the chief medical officer and another member of the MCEAC for presentation to the full MCEAC.

As such, because the information contributed to the MCEAC’s deliberation, was considered prior to the conclusion of the MCEAC’s review, and fell within the scope of the Medical Studies Act, the court held that the 13 pages of documents were privileged under the Medical Studies Act.

Murphy v. Advocate Health and Hosps. Corp. — Dec. 2016 (Summary)

MEDICAL STAFF PRIVILEGES

Murphy v. Advocate Health and Hosps. Corp.
No. 4-16-0863 (Ill. App. Ct. Dec. 8, 2016)

The Appellate Court of Illinois for the Fourth District reversed a lower court’s denial of a physician’s request for a temporary restraining order (“TRO”) against a hospital which medical executive committee voted to terminate his privileges based on findings from an external peer review and the committee’s review of care the physician provided to a specific patient, which care had already resulted in a summary suspension of the physician’s privileges that the physician had previously sued to enjoin and which was already pending before the court.

The physician objected to the committee moving forward with its recommendation to terminate his privileges because the committee was basing its decision, in part, on the earlier summary suspension of his clinical privileges, which was the action that the physician had already sued to enjoin and which was in the interlocutory appeal stage before the court, scheduled to be heard in January 2017.   The lower court denied this second request for a TRO, finding that the hospital, in making the recommendation to terminate his privileges, had acted within its bylaws and that the physician failed to show a likelihood of success on the merits of his claim.

The court reversed the lower court’s ruling, however, reasoning that the physician did not have to show a likelihood of success; rather, that he raised a fair question about the existence of his right and that the court should preserve the status quo until his case was decided on the merits. Consequently, because denying the physician’s request to preserve the status quo would have essentially rendered meaningless the physician’s appeal pertaining to the summary suspension, the court reversed the lower court’s judgment and granted the physician’s request for a TRO.

Bousamra v. Excela Health — Dec. 2016 (Opinion)

Bousamra v. Excela Health
Nos. 1188 WDA 2015 to 1191 WDA 2015 (Pa. Super. Ct. Dec. 19, 2016)

Opinion attached

Equal Emp’t Opportunity Comm’n v. St. Joseph’s Hosp., Inc — Dec. 2016 (Summary)

ADA

Equal Emp’t Opportunity Comm’n v. St. Joseph’s Hosp., Inc.
No. 15-14551 (11th Cir. Dec. 7, 2016)

The United States Court of Appeals for the Eleventh Circuit affirmed the district court’s finding that the Americans with Disabilities Act (“ADA”) did not require job reassignment without competition as a reasonable accommodation.

A nurse was employed in the psychiatric ward of a hospital.  During her employment she began to experience back pain, developed arthritis, and underwent hip replacement surgery.  In order to alleviate the pain of her physical ailments, she began to use a cane.  Without her cane, she could only walk short distances and would need to stop to realign her body.  The director of Behavioral Health Operations at the psychiatric ward was concerned that the cane could be used as a weapon by one of the patients.  In response to the director’s concerns, the nurse produced a doctor’s note recommending use of the cane in the psychiatric ward.  Two years later, the hospital advised the nurse that she could no longer use the cane in the psychiatric ward because it posed a safety risk.  The hospital allowed the nurse 30 days to identify and apply for other positions at the hospital and compete with other internal applicants, even though she did not meet the criteria required to apply for a position internally.  The hospital’s human resources director emphasized that it was not their job to get the nurse a new job.  The nurse did not apply for any new positions until three weeks into her 30-day allotment and of the 700 jobs that were available, the nurse only applied to seven, and of those seven jobs, she was only qualified for three.  The hospital did not interview the nurse for any of the three jobs for which she was qualified.  When the nurse did not obtain another hospital position, the hospital terminated her employment and the Equal Employment Opportunity Commission (“EEOC”) brought a suit against the hospital on her behalf.

Both parties filed motions for summary judgment, with the district court ruling that the nurse established a disability under the ADA, that the hospital was reasonable in not allowing her to use the cane, and that the hospital did not have an obligation to reassign the nurse to a vacant position without competition.  The case went to trial with the jury bringing back a verdict in favor of the hospital.

On appeal, the EEOC argued that the ADA mandates noncompetitive reassignment and that had the jury been instructed as such, there would not have been a finding of good faith on behalf of the hospital.  The Court of Appeals agreed with the district court’s ruling, finding that the ADA only provides that an employer must reasonably accommodate a disabled employee; it does not say how the employer must do it.  The ADA provides that it may be reasonable to reassign a disabled employee to a vacant position, but it does not mandate reassignment.

The appeals court found that the employer had a best-qualified applicant policy, and that requiring reassignment in violation of an employer’s best-qualified hiring or transfer policy is not reasonable and passing over the best-qualified job applicants in favor of less-qualified ones is not a reasonable way to promote efficiency or good performance.  It also found that in the case of hospitals, the well-being and even the lives of patients can depend on having the best-qualified personnel.  Thus, undermining a hospital’s best-qualified hiring or transfer policy would impose substantial costs on the hospital and potentially on patients.  The ADA only requires an employer to allow a disabled person to compete equally with the rest of the world for a vacant position, not to undermine the business structure of a hospital or the need for quality patient care.