Ramirez v. Long Beach Memorial Med. Ctr. — Jan. 2017 (Summary)

MALPRACTICE PHYSICIAN AND HOSPITAL

Ramirez v. Long Beach Mem’l Med. Ctr.
No. B265548 (Cal. Ct. App. Jan. 19, 2017)

The California Court of Appeal for the Second District affirmed the judgment of a lower court which held that plaintiffs who brought a wrongful death action could not conduct further discovery after summary judgment had been granted by the lower court for all but one defendant.

The plaintiffs represented a decedent who was rushed to the emergency room of the defendant hospital after being shot in the leg.  The hospital physician instructed the unit secretary to contact the on-call vascular surgeon.  After contacting the incorrect vascular surgeon initially, the unit secretary succeeded in reaching the correct vascular surgeon who arrived at the hospital, after a short delay, and operated on the decedent.  Prior to the vascular surgeon’s arrival and again after the four-hour surgery was complete, the decedent suffered heart attacks.  He was pronounced dead following the second heart attack.

At trial, the plaintiffs sued for malpractice and negligence, claiming that the delay in administering treatment to the decedent was the proximate cause of his death.  Both the plaintiffs and defendants summoned expert witnesses to testify.  At the summary judgment stage, the court found that the actions of the vascular surgeon, nurse, and on-call service all comported with their respective standards of care.  This ruling foreclosed any future litigation over the vicarious liability of the hospital for the actions of the exculpated individuals.

The plaintiffs requested additional discovery with respect to the on-call list and the unit secretary, the only other individual who took part in the care of the decedent the night of his death and who did not obtain a summary judgment ruling.  The plaintiffs premised this request for additional discovery on the unit secretary’s alleged negligence which, they argued, could be imputed to the hospital.  The court, however, disagreed.  The court held that the plaintiffs failed to raise an inference of negligence on the part of the hospital because there was no evidence that the unit secretary was in charge of creating or managing the hospital’s on-call list and, therefore, was not liable for the delay that resulted from contacting the incorrect physician.  Further, the plaintiffs’ expert witnesses made no argument during discovery regarding the unit secretary’s standard of care and, even if they had, the court found that the expert witnesses would have lacked foundation to competently attest to the “internal emergency room procedures regarding preparation and maintenance of a list of on-call physicians.”

Finally, the court pointed out that the delay in treatment was not, alone, sufficient evidence to bolster any inference of negligence committed by the hospital.  Because the plaintiffs’ expert witnesses did not produce any evidence of how the delay in treatment deviated from the standard of care in emergency room hospitals, the court found the plaintiffs’ allegations of the hospital’s negligence unfounded.  Accordingly, the court affirmed the lower court’s denial of the plaintiffs’ motion for further discovery and affirmed the award of summary judgment in the hospital’s favor.

Emergency Med. Care Facilities, P.C. v. BlueCross BlueShield of Tenn., Inc. — Jan. 2017 (Summary)

EMTALA

Emergency Med. Care Facilities, P.C. v. BlueCross BlueShield of Tenn., Inc.
No. 15-1014 (W.D. Tenn. Jan. 19, 2017)

The United States District Court for the Western District of Tennessee refused to accept federal jurisdiction over a lawsuit brought by a provider of emergency care services (hospital emergency department screenings and treatment) against a Medicaid MCO, challenging the MCO’s unilateral decision to limit payments for emergency medical screenings performed in hospital emergency departments to $50 whenever the visit is afterwards determined to be non-emergent.

The MCO claimed that since the limit on payment was dictated by the state of Tennessee’s Medicaid managed care system, it was a directive from the state and had the force of law and, in turn, was automatically incorporated into the parties’ contractual agreement.  The provider of emergency care services disagreed that the payment cap had the force of law and instead argued that the MCO breached the contract by unilaterally implementing the payment change.  But, in the alternative, the emergency care provider claimed that if the cap on payment implemented by the MCO did have the force of law, then it was contrary to state law defining “emergency medical condition,” as well as the federal Emergency Medical Treatment and Active Labor Act (“EMTALA”).  In response to this argument, the MCO issued a notice to remove the lawsuit from state to federal court, on the basis that the arguments made by the provider of emergency care services referred to federal law and, in turn, presented federal questions.

The federal court declined jurisdiction.  Among other things, the court held that simply because the contract between the MCO and the provider of emergency care services required the provider to abide by EMTALA did not mean that federal question jurisdiction exists.  Accordingly, it remanded the case to state court for further proceedings.

Offor v. Mercy Med. Ctr. — Jan. 2017 (Summary)

EMPLOYMENT DISCRIMINATION

Offor v. Mercy Med. Ctr.
No. 16-839 (2d Cir. Jan. 20, 2017)

The United States Court of Appeals for the Second Circuit affirmed in part, vacated in part, and remanded in part the ruling of a lower court on a physician’s racial discrimination, retaliation, and hostile work environment claims.

The physician, an African-American female of Nigerian descent, alleged that while employed at the defendant hospital, she was denied vacation time and moonlighting hours due to her race and national origin.  Later, the physician was placed in a probationary program, where she alleged that the hostile work environment and discrimination persisted.  Eventually, the physician filed a complaint with the Equal Employment Opportunities Commission (“EEOC”) and was terminated by the hospital.

The court found that the physician’s claims of discrimination were not sufficient to survive a motion to dismiss because the physician’s comparators (other employed physicians who allegedly received better treatment than she did despite their supposedly equal status) were not, in fact, “similarly situated in all material respects.”  The physician also claimed a violation of the Family and Medical Leave Act (“FMLA”).  Because the physician brought her claim nearly three years after the hospital allegedly denied permission to take vacation time, the physician was required to prove that this denial was a “willful” violation of the FMLA.  The court pointed to the fact that the physician was eventually permitted to take the vacation time and that the hospital, at the time, offered reasonable explanations for denying her request.  Accordingly, the court affirmed the lower court’s dismissal of the claims that related to discrimination and the FMLA.

The court did, however, find evidence sufficient to raise an “inference of retaliatory intent” in the hospital’s decision to place the physician in a probationary program only a month after she had retained an attorney and attempted to exercise her FMLA rights.  Because the physician attempted to exercise her FMLA rights, was qualified for her position, and suffered an adverse employment action, the court vacated the lower court’s dismissal of the physician’s retaliation claim.

Stafford v. Burns — Jan. 2017 (Summary)

EMTALA

Stafford v. Burns
No.1 CA-CV 15-0476 (Ariz. Ct. App. Jan. 17, 2017)

The Court of Appeals of Arizona affirmed a lower court’s instruction that the parents of a deceased patient bore the burden of a heightened standard of proof.  The case arose out of a patient arriving at a hospital’s emergency room having ingested an unknown amount of methadone.  After hours of treatment and testing, the tending physician discharged the patient.  The patient was found dead the next day, and his parents subsequently filed a complaint against the tending physician, alleging that she negligently caused the patient’s death by discharging him prematurely.

The lower court returned a defense verdict in favor of the physician, to which the parents appealed arguing, in part, that because the physician did not provide medical care in compliance with the Emergency Medical Treatment and Active Labor Act (“EMTALA”), the lower court incorrectly required the parents show a heightened burden of proof.

At the outset, the court found that EMTALA applies whenever a person comes to the hospital for “what may be” an emergency medical condition.  Consequently, because the patient came to the hospital seeking treatment for what may have been an emergency medical condition, the physician was required to provide EMTALA mandated services.  Therefore, the lower court properly invoked a heightened burden of proof as required by an EMTALA claim.

Underwood v. Roswell Park Cancer Inst. — Jan. 2017 (Summary)

RACE DISCRIMINATION – RETALIATION

Underwood v. Roswell Park Cancer Inst.
Case No. 15-CV-684-FPG (W.D.N.Y. Jan. 13, 2017)

The United States District Court for the Western District of New York granted in part and denied in part motions to dismiss filed by a defendant hospital and hospitalist against claims of racial discrimination, whistleblower retaliation, hostile work environment, and breach of contract brought by a former staff physician.

Over the course of several years, the physician was subjected to various adverse employment events.  As early as 2008, the physician noticed that his salary, calculated by an objective determination of multiple clinical performance factors, was lower than that of his similarly-situated, white colleagues despite demonstrated successes in writing and receiving grants.  In addition to this, the physician’s outpatient office hours were reduced, he was restricted from accessing information on a hospital database that was necessary to conduct clinical research, was subjected to a peer review without notice, was removed from a leadership position, and refused to renew his staff privileges.  Following this series of events, the physician agreed to attend an advanced training course in order to regain his staff privileges.  After completing the course with positive reviews, the physician filed a charge of racial discrimination with the Equal Employment Opportunity Commission (“EEOC”).  The physician also expressed concern about the hospital’s urology department practices and requested an external review to assess potential patient care concerns.  These requests were ignored.  When the physician applied for re-credentialing, the hospital refused to approve his privileges.  The physician took an eight-month leave of absence at the hospital’s request and, when he returned to work, he was put under supervision.  The physician sued the hospital and the hospitalist, alleging discrete discrimination, hostile work environment, breach of contract, and retaliation claims.

The court held that the physician’s claims of discrete discrimination were subject to the 300-day statute of limitations.  Therefore, despite the fact that the alleged acts were ongoing and continuous over a period of several years, only those within the statutory period were actionable.  The physician’s claims of disparate treatment, though not included in his initial EEOC complaint, were not dismissed by the court because they were “reasonably related” to the claims set forth in the EEOC filing, regardless of whether or not the claims in that filing were exhausted.  Accordingly, the court denied the defendants’ motions to dismiss the claims that were “reasonably related” to the exhausted EEOC claims.

The court next denied the hospital’s motion to dismiss the charges of discrimination.  The hospital argued that most of the actions in the complaint related to the hospitalist rather than the hospital itself.  The court disagreed; the court found that the facts provided by the physician in his complaint demonstrated that the hospital “authorized or ratified the employment actions” taken against the physician by the hospitalist.  As such, the hospital’s motion to dismiss was denied.  Furthermore, the court held that the physician’s agreed-upon attendance at the advanced training course in return for staff privileges that were never renewed, as promised, demonstrated a likelihood of discriminatory conduct sufficient to justify denying the hospital’s motion to dismiss.  Looking at “all the circumstances” – including the physician’s comparatively low salary and derogatory remarks directed toward him – the court additionally determined this amounted to a sufficient amount of evidence to deny the hospital’s motion to dismiss with respect to the hostile work environment claim.

The court then dismissed the hospital’s motion to dismiss with respect to the state law retaliation claim.  The physician’s repeated concerns to hospital management regarding patient care and other questionable institutional practices, and the hospital’s subsequent severance of the physician’s privileges, indicated that the hospital’s conduct may have constituted retaliation in response to the physician’s whistleblowing.  Therefore, the court denied the hospital’s motion to dismiss.

The court dismissed the physician’s state law claim for breach of contract because the termination of staff privileges section of the agreement was not bound to abide by the hospital’s by-law policy.

The court also denied the hospitalist’s motion to dismiss the discrete discrimination allegations against him on the basis of qualified immunity as well as the retaliation claims.  The court found that the hospitalist failed to demonstrate, solely on the facts contained in the complaint, that he was entitled to such immunity.  Additionally, the court found that the coerced leave of absence, data access restrictions, and supervised privileges instituted by the hospitalist against the physician following the physician’s EEOC filing all raised sufficient evidence of potential retaliation.

Davis v. Johnson — Jan. 2017 (Summary)

MEDICAL STAFF APPOINTMENT – RETALIATION

Davis v. Johnson
No. 5:16-cv-262-DPM (E.D. Ark. Jan. 10, 2017)

The United States District Court for the Eastern District of Arkansas granted a defendant hospital’s motion to dismiss a claim brought by a physician alleging that the hospital retaliated against him for filing a previous lawsuit, in not considering a request for restoration of his privileges.

A hospital terminated a physician’s privileges following patient care concerns.  The physician sued the hospital in federal court, alleging racial discrimination.  While the physician sought restoration of his hospital privileges, he filed another lawsuit against the hospital in state court.  At the pre-application stage, the hospital considered the fact that the physician had filed the second lawsuit as evidence that the physician was “unwilling” to collaborate with the hospital.  Citing this and the physician’s lack of recent experience, the hospital rejected the physician’s application.  The physician sued the hospital claiming retaliation.

The court rejected the physician’s retaliation claims, citing recent precedent from the 8^th Circuit.  A retaliation claim, the court held, “requires a plausible allegation that the [hospital’s] reliance on the lawsuit [is] the ‘but-for’ cause” for rejecting an application for staff privileges.  Because retaliation was not the sole motivation behind its decision to reject the physician’s application for staff privileges, the decision not to consider the application for renewal of privileges could not serve as the basis for a retaliation claim under 42 U.S.C. §1981.  The court declined to rule on the physician’s state law retaliation claim or Freedom of Information Act claim.

Cales v. Baptist Healthcare Sys., Inc. — Jan. 2017 (Summary)

PRODUCT LIABILITY – OFF-LABEL USE

Cales v. Baptist Healthcare Sys., Inc.
No. 2015-CA-001103-MR (Ky. Ct. App. Jan. 13, 2017)

The Court of Appeals of Kentucky affirmed a lower court’s dismissal of a patient’s product liability claims against a health care system and manufacturer of a medical device, but reversed and remanded her medical negligence claims.

The case arose out of the physician’s off-label use of the Infuse Device.  The FDA approved the Infuse Device, and, as approved, the label provided: “these components must be used as a system.  The Infuse Bone Graft component must not be used without the LT-Cage Lumbar Tapered Fusion Device Component.” As a system, the device consisted of BMP, a BMP/Sponge and an LT-Cage.  During the patient’s surgery, the performing physician utilized a Capstone fusion cage with the BMP/Sponge rather than the LT-Cage.

Consequently, the patient brought two product liability claims, alleging that the health system only purchased a portion of the medical device, which was unreasonably dangerous and defective, the health care system’s hospital breached its duty to act as a reasonably prudent hospital, and, in reselling the medical device, the manufacturer should have known that the device would be used off label.  Furthermore, the patient asserted medical negligence claims alleging that the health care system either knew or should have known of the risks of using the device, and that she would not have consented to the off-label use of the device.

Addressing the product liability claims, the court agreed with the lower court’s dismissal of the claim because the claims were pre-empted by federal law.  Once the FDA has approved a medical device, the Medical Device Amendments of 1976 permit off-label uses and allow a health care provider to use the device in any manner deemed appropriate.  Thus, the FDA approval pre-empts any contention that the BMP/Sponge was defective or unreasonably dangerous.

Turning to the medical negligence claims, the court held that the health care system owed a duty to the patient.  After establishing that the performing physician was an agent of the hospital, the court reasoned that the off-label use of a medical device and the need to inform a patient are questions of fact to be decided by a jury.  Therefore, the court affirmed in regard to the dismissal of the product liability claims, and reversed and remanded to the lower court the medical negligence claims.

U.S. ex rel. Napoli v. Premier Hospitalists PL — Jan. 2017 (Summary)

FALSE CLAIMS ACT

U.S. ex rel. Napoli v. Premier Hospitalists PL
Case No. 8:14-cv-2952-T-33TBM (M.D. Fla. Jan. 12, 2017)

The United States District Court for the Middle District of Florida denied a physician, billing entity, and a hospitalist organization’s motion (collectively, the “organization”) to dismiss against the relators of a qui tam action.  The three relators, a nurse practitioner, former vice president of the hospitalist organization, and former medical administrator of the hospitalist group alleged violations of the False Claims Act by the organization.

The court held that the relators sufficiently pled with particularity improper billing practices by the organization which allegedly led to false claims being presented to and paid by the government.  While none of the relators were able to personally submit fraudulent bills, they each had access to documents and were in a position to observe the organization’s billing practices.  During the relators’ employment with the organization, the relators allegedly discovered improper billing practices and interviewed other employees for confirmation of their findings.

Additionally, the court found that the relators pled with sufficient particularity that a conspiracy existed between members of the organization.  The relators alleged that members of the organization were well aware through its communications with the billing entity that it was billing Medicare and Medicaid for patients never being seen, yet billed like they had.  Also, the relators alleged that they personally spoke with the owner and manager of the billing solutions and confirmed that they were aware of the policies.  As such, the court concluded that the relators sufficiently alleged that a member of the organization took an overt step of submitting a false claim to be paid, and which was a sufficient pleading with particularity of an FCA violation capable of withstanding the organization’s motion to dismiss.

Volk v. DeMeerleer — Dec. 2016 (Summary)

Petersen v. Supreme Court of Washington — Oct. 1983 (Summary)