Taylor v. Hy-Vee, Inc. — Dec. 2016 (Summary)

PATIENT SAFETY AND QUALITY IMPROVEMENT ACT

Taylor v. Hy-Vee, Inc.
Case No. 15-9718-JTM (D. Kan. Dec. 22, 2016)

The United States District Court for the District of Kansas denied in part and granted in part a pharmacist’s motion to compel a grocery store pharmacy (“pharmacy”) to produce documents, including incident reports and documents related to the return of prescription medications, in the pharmacist’s case involving claims for age and gender discrimination.

The pharmacy refused to produce the requested incident reports, arguing they were privileged as Patient Safety Work Product under the federal Patient Safety and Quality Improvement Act (“Patient Safety Act”).  The pharmacy contracted with a Patient Safety Organization (“PSO”) for the submission of medication errors through the PSO’s software program.  The pharmacy also maintained a record of medication errors, as required by Kansas Pharmacy Act’s Continuous Quality Improvement Program, in incident reports.  The pharmacist contended that the Patient Safety Act’s privilege did not protect the incident reports because they existed separately from the information submitted to the PSO.  The court rejected this contention, instructing that “what a pharmacy ultimately does with data collected and reported to a PSO is not relevant.  Such data is designated ‘patient safety work product’…and there is nothing in the [Patient Safety Act] to suggest data can lose that designation.”  The court continued by noting “[a]lthough it is used as part of defendant’s internal and state-mandated quality improvement system, the court is satisfied that defendant has met its burden of demonstrating that the data was developed for reporting to a PSO” (emphasis in original).  The court concluded that the information was protected by the Patient Safety Act privilege and properly withheld on that basis.

However, the court rejected the pharmacy’s position that documents reflecting the return of prescription medications were unduly burdensome to identify and produce.  According to the court, the documents were solely accessible by the pharmacy and could reasonably bear on the issue of whether the pharmacist’s termination was unlawful.

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.

Hernandez v. Crespo — Dec. 2016 (Summary)

MEDICAL MALPRACTICE ARBITRATION AGREEMENTS

Hernandez v. Crespo
No. SC15-67 (Fla. Dec. 22, 2016)

The Supreme Court of Florida remanded a case to the court of appeal, concluding that a medical malpractice arbitration agreement between a patient and a health clinic was void as against public policy because it excluded required provisions of Florida’s Medical Malpractice Act.  While 39 weeks pregnant and having contractions, the patient was turned away from her appointment at the health clinic because she arrived a few minutes late.  Three days later, and before her rescheduled appointment, the patient delivered her child stillborn.  After the patient notified the clinic of her intent to sue, the clinic sought to compel binding arbitration based on a signed agreement between the patient and the health care clinic.

The court approved the district court’s finding that the arbitration agreement between the patient and the clinic was against public policy because the agreement changed the “cost, award, and fairness incentives” of the state’s Medical Malpractice Act, which contains statutory requirements for arbitration of medical malpractice actions.  The court found that the arbitration agreement contravened the Act by, among other things, failing to have the clinic assume the majority of the costs of arbitration and failing to require the clinic to pay interest on damages.

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.