George v. Christus Health Sw. La. — Nov. 2016 (Summary)

PEER REVIEW STATUTE

George v. Christus Health Sw. La.
16-412 (La. Ct. App. Nov. 4, 2016)

The Third Circuit for the Court of Appeal of Louisiana set aside and remanded back to a lower court a case brought by a neurosurgeon who claimed that his former employer, a hospital, had treated him disproportionately with respect to other doctors under the hospital’s employ.  The neurosurgeon sought evidence to determine whether the hospital had subjected the other doctors’ competencies to the same peer review process that the neurosurgeon was subjected to before the termination of his employment.  The hospital responded to the discovery request with a motion for a protective order, asserting that the documents sought were peer review materials protected from discovery under Louisiana’s peer review confidentiality statutes.

The court looked to cases of the Supreme Court of Louisiana, which had made it clear that the state’s confidentiality statutes did not provide blanket immunity, and also established that no liability attaches to a committee member who acts without malice and in good faith while performing his or her functions within committee.  Thus, when a committee member steps outside the scope of his or her duties, immunity does not continue.  The appeals court reasoned that the lower court incorrectly concluded that the state’s confidentiality statutes provided the hospital with total immunity from discovery of anything that had occurred.  As such, because the lower court had yet to examine the discovery requests in order to determine whether each item of information sought by the neurosurgeon was protected by the state’s confidentiality statutes, the court set aside and remanded the case back to the lower court to determine whether any of the information sought was protected by the privilege established in the confidentiality statutes.  

Friedrich v. S. Cty. Hosp. Healthcare Sys. — Nov. 2016 (Summary)

EMTALA/URGENT CARE CENTER

Friedrich v. S. Cty. Hosp. Healthcare Sys.
No. 14-353 S (D.R.I. Nov. 1, 2016)

The United States District Court for the District of Rhode Island denied a healthcare system’s motion for partial summary judgment in a suit brought by the estate of a deceased patient asserting that the healthcare system’s urgent care center violated the Emergency Medical Treatment and Active Labor Act (“EMTALA”).

The patient visited the urgent care center after experiencing chest pains.  The urgent care center diagnosed the patient with acid reflux and sent her home.  The patient died the next day from a heart attack.  The patient’s estate sued the healthcare system, claiming that its urgent care center violated EMTALA because it failed to screen and stabilize the patient.  The healthcare system filed a motion for partial summary judgment arguing that the urgent care center did not constitute a “dedicated emergency department” under EMTALA and, therefore, was not required to comply with EMTALA’s mandates.  The court disagreed.  Relying on the EMTALA regulations, the court concluded that the urgent care center was a “dedicated emergency department” subject to EMTALA because it held itself out “as a place that provides care for emergency medical conditions on an urgent basis without requiring a previously scheduled appointment.”

Novotny v. Sacred Heart Health Servs. — Oct. 2016 (Summary)

PEER REVIEW PRIVILEGE

Novotny v. Sacred Heart Health Servs.
Nos. 27615, 27626, 27631 (S.D. Oct. 26, 2016)

The Supreme Court of South Dakota reversed and remanded the lower court’s decision ordering  defendant health care providers to produce peer review materials in suits brought by patients asserting numerous claims, including fraud, deceit, and negligent credentialing.

The patients sought production of documents from the defendants, but the defendants claimed that the documents were protected by the state’s peer review privilege. In the lower court, the patients challenged the privilege as unconstitutional. The lower court agreed, but ultimately held that the statute was constitutional, but only if a court-created “crime-fraud exception” applied.  Pursuant to this “crime-fraud exception,” the lower court ordered the defendants to turn over the peer review materials, finding that the patients had presented enough evidence to make out prima facie cases for fraud and deceit.

On appeal, the Supreme Court of South Dakota disagreed with the lower court, determining that the state’s peer review privilege gives broad protection to information generated “by or at the behest of a peer review committee,” including deliberative information and objective information.  The Supreme Court of South Dakota also took issue with the lower court’s “crime-fraud exception,” concluding that the exception was not necessary to preserve the patients’ rights to open courts.  The court noted that the patients “may obtain certain information from independent sources.  The availability of that information from sources outside the peer review committees allows [the patients] access to information that may expose alleged fraudulent activity and allow [the patients] to present their case.”

Commonwealth of Pa. Dept. of State, Bureau of Prof. and Occupational Affairs v. Abington Health — Oct. 2016 (Summary)

RELEASE OF RESULTS OF DRUG TESTING

Commonwealth of Pa. Dep’t of State, Bureau of Prof’l and Occupational Affairs v. Abington Health
No. 242 M.D. 2016 (Pa. Commw. Ct. Oct. 28, 2016)

The Commonwealth Court of Pennsylvania granted the request for relief filed by the Pennsylvania State Board of Nursing (“Board”) and ordered a hospital to release to the Board, pursuant to the Board’s investigative subpoena, the drug and alcohol test results of a registered nurse whose employment the hospital terminated based on these results.  The court held that the confidentiality provisions of the Pennsylvania Drug and Alcohol Abuse Control Act applied to patients and their patient records generated for purposes of drug and alcohol treatment, but not to employees and their drug and alcohol test results generated for employment purposes.

Sharda v. Sunrise Hosp. and Med. Ctr., LLC — Oct. 2016 (Summary)

MEDICAL STAFF HEARING/FOURTEENTH AMENDMENT

Sharda v. Sunrise Hosp. and Med. Ctr., LLC
No. 2:16-CV-2233 JCM (GWF) (D. Nev. Oct. 26, 2016)

The United States District Court for the District of Nevada denied a physician’s motion for a temporary restraining order and preliminary injunction related to the suspension of his clinical privileges by a hospital.  The physician alleged that his procedural due process and Fourteenth Amendment rights were violated by the hospital “not scheduling a hearing with respect to the denial of his request for reinstatement of clinical privileges.”  According to the physician, he was entitled to a hearing under the hospital’s medical staff bylaws.  The court denied his motion, concluding that the hospital was not a state actor as required to demonstrate a violation of the Fourteenth Amendment.  Since his claim would not succeed on the merits because of this, there were no grounds for granting a temporary restraining order and preliminary injunction.

FTC v. Advocate Health Care Network — Oct. 2016 (Summary)

ANTITRUST

FTC v. Advocate Health Care Network
No. 16-2492 (7th Cir. Oct. 31, 2016)

The United States Court of Appeals for the Seventh Circuit reversed and remanded a district court’s denial of a motion for preliminary injunction.  The Federal Trade Commission (“FTC”) and the State of Illinois sought to enjoin the proposed merger of two hospital networks. The court reasoned that the district court’s finding that the FTC and State of Illinois had not demonstrated a likelihood of success because they had not shown a relevant geographic market that was clearly erroneous. The district court  was wrong in treating the analysis offered by the FTC’s expert economist as circular; inappropriately concluded that evidence central to the commercial reality of hospital competition in the market was equivocal, and overlooked the market power created by what economists have come to label, “the silent majority.”

The court began its analysis reasoning that the district court erred in its criticism of the FTC’s expert’s hypothetical monopolist test, which analyzes a proposed candidate market, simulates a monopolization of that market, then adjusts the candidate market and reruns the simulation as necessary, and not mentioning the expert’s results nor explaining why an alternative test would produce correct results. The district court mistook the test’s iterations for circularity and concluded that the test assumed the answers to the market definition questions. However, the hypothetical monopolist analysis actually tests its hypothesis and adjusts the market definition if the results required, which the appeals court concluded was not circular reasoning.

The court further determined that the district court erred in its conclusion that the FTC’s expert had no economic basis to exclude hospitals that were primarily academic medical centers. After reviewing the record, the court found that the witnesses consistently used the term “academic medical center” and recognized that demand for those few hospitals differ from the demand for general acute care hospitals, which draw patients from much smaller geographic areas. The court found the testimony sufficient to distinguish between academic medical centers and other hospitals like those operated by the two health networks. Moreover, the court reasoned that evidence pertaining to the expert’s determination that patients generally choose hospitals close to their homes was not equivocal to workplace locations and outpatient relationships influencing patient choice because the testimony in which the district court cited addressed medical care broadly, not inpatient acute care specifically.

Lastly, the appeals court stated that the district court wrongly discounted the testimony of the expert’s diversion ratios, although it did not explain what it inferred from the ratios. The court stated that if patients were the relevant buyers in the market, the numbers would be more compelling since diversion rations indicate which hospitals patients consider substitutes, but the insurers rather than the patients were the most relevant buyers. Therefore, measures of patient substitution like diversion ratios do not translate into options for the insurers, and the district court wrongly assumed that they did. Additionally, the court found the district court’s reasoning and the silent majority fallacy both focus on the patients who exited the market rather than the hospitals’ market power over the patients who remained. This resulted in the hospitals having market power over the insurers who need them to offer commercially viable products to customers who are reluctant to travel farther for general acute hospital care. The relevant geographic market did not include every competitor but rather the area of effective competition, which is the place where the “effect of the merger on competition will be direct and immediate.

Fewins v. Granbury Hosp. Corp. — Oct. 2016 (Summary)

EMTALA

Fewins v. Granbury Hosp. Corp.
No. 16-10192 (5th Cir. Oct. 25, 2016)

The United States Court of Appeals for the Fifth Circuit affirmed a district court’s grant of summary judgment in favor of a hospital for allegedly violating the Emergency Medical Treatment and Active Labor Act (“EMTALA”) by failing to adequately screen and stabilize a six-year-old patient’s condition before discharge.

The child was brought to the emergency room by his mother because of a pain in his leg from a fall that had occurred six days earlier.  The nursing staff performed a triage assessment and measured the child’s vital signs.  An emergency physician examined the child and noted contusions on both of his hips.  The physician ordered lab tests and a CT scan, which revealed an elevated white blood cell count and a hematoma/seroma on his right hip.  After receiving these results, the physician discharged the child with instructions to take medication and to follow up with his pediatrician.  The next day, the child was taken to an emergency room of a different hospital with a fever and swelling and tenderness in his leg.  Test results revealed the child was suffering from a bacterial infection, which was later diagnosed as MRSA.  The child was hospitalized for a little over a month and underwent several surgeries.

The child’s parent brought an EMTALA action against the original hospital, claiming that the child was not given an appropriate screening examination or stabilized prior to being discharged.  The court of appeals affirmed the district court’s grant of summary judgment in favor of the hospital with respect to the screening claim, holding that the patient failed to provide evidence that individuals who were perceived to have the same medical condition as the child received disparate treatment.  Additionally, the court agreed with the lower court in rejecting the argument that the hospital failed to follow its own pain management policy; the patient did not establish the fact that the pain management policy was an emergency room screening policy which could serve as the basis of an EMTALA claim.

With regard to the patient’s stabilization claim, the court of appeals agreed with the district court’s decision in favor of the hospital, holding that, because the physician did not have actual knowledge of or perceive the child as having an emergency medical condition, the medical center had no duty to stabilize the child.

Watkins v. Good Samaritan Hosp. of Cincinnati Ohio — Oct. 2016 (Summary)

PEER REVIEW PRIVILEGE

Watkins v. Good Samaritan Hosp. of Cincinnati Ohio
No. C-160194 (Ohio Ct. App. Oct. 26, 2016)

The Court of Appeals for the First District of Ohio reversed and remanded the judgment of a trial court, which had granted a motion compelling a hospital to produce certain documents that were arguably protected from discovery by peer review privilege.

The plaintiffs, a husband and wife with their newborn son, sued the hospital and physicians who assisted in the delivery of the baby.  The plaintiffs in discovery requested certain personnel records from the hospital.  The hospital contended that the documents were protected by peer review privilege.  To invoke the protection of peer review privilege, a litigant must show the existence of a peer review committee and that the requested documents fall within the scope of such a committee.  A peer review committee, as defined by state law, includes any type of committee that conducts hearing processes on recommendations, actions, and quality review.

The court noted that the hospital sufficiently demonstrated both that a peer review committee did exist at the hospital and that the records sought by the plaintiffs were within the scope of the peer review committee.  The court held that the hospital correctly pointed out that documents “involving competence as well as professional qualifications of the health care providers in question[,]” although not sufficient to trigger the privilege itself, did rise to the level of potentially privileged documents under state law that should have required an in camera examination of their privileged status by the trial court.

Because the trial court did not initiate this discretionary, in camera proceeding at the behest of the hospital before compelling discovery of potentially privileged documents, the court of appeals reversed the decision and remanded the case for further consideration.

Morales v. Palomar Health — Oct. 2016 (Summary)

EMTALA

Morales v. Palomar Health
Case No. 3:14-cv-0164-GPC-MDD (S.D. Cal. Oct. 20, 2016)

The United States District Court for the Southern District of California granted a hospital’s partial motion for summary judgment, denying a patient’s claim of inadequate screening under the Emergency Medical Treatment and Active Labor Act (“EMTALA”).

A patient brought a claim of inadequate screening under EMTALA.  The patient had the burden of proving that the hospital breached its duties under EMTALA by “treating a patient differently than other patients presenting similar issues, or by conducting a screening examination so lacking as to support the conclusion that it was not designed to identify acute and severe symptoms.” The patient’s claim of inadequate screening focuses on the second way in which the hospital could have breached its duties under EMTALA.  Whether or not a screening is lacking or inappropriate depends on whether the examination was designed to identify acute and severe symptoms that alert physicians to the need for immediate medical attention.

In order to demonstrate that the patient’s screening was appropriate, the hospital provided the court with a copy of its EMTALA Policy and an expert report opining on the sufficiency of that policy.  The expert concluded that the hospital adequately designed a medical screening procedure to identify emergency medical conditions and that its staff had followed those procedures in the course of treating the patient.  The patient then failed to present any evidence in support of his argument that the hospital’s treatment was insufficient under EMTALA.  Because the patient offered no evidence to support his claim, nor did he make a single argument against the hospital’s policy for identifying emergency medical conditions, the hospital was entitled to partial summary judgment.

United States v. Charleston Area Med. Ctr., Inc. — Oct. 2016 (Summary)

United States v. Charleston Area Med. Ctr., Inc.
Civil Action No. 2:16-3664 (S.D. W. Va. Oct. 21, 2016)

The United States District Court for the Southern District of West Virginia granted a United States proposed final judgment against two healthcare providers operating two separate general acute-care hospitals in two different counties.

The United States alleged that the two healthcare providers entered into an agreement to limit the marketing of competing healthcare services in violation of the Sherman Act.  The United States further alleged that on multiple instances, pursuant to their agreement, the healthcare providers either failed to approve certain advertisements placed in the other provider’s county, or removed the advertisement at the request of the other provider if such advertisement was in their county.  On one occasion, the marketing department of one provider mentioned that they do not advertise in the other provider’s county due to a gentleman’s agreement.  According to the United States, the alleged agreement disrupts the competitive process, harming both patients and physicians.  The agreement “[deprives] patients of information they otherwise would have when making important healthcare decisions and…[denies] physicians…the opportunity to advertise their services to potential patients.”

Before the proposed final judgment can be approved, the court must determine whether the judgment is in the public interest.  In order to make such a determination, the court looked to the United States’ complaint and the proposed final judgment to “determine if the remedies in the proposed final judgment effectively address the harms identified in the complaint.”  The court found that the public interest is served by approving the proposed final judgment.  The proposed final judgment eliminated the anti-competitive impact of the agreement between the healthcare providers by prohibiting the agreement and limiting marketing communications between the providers; provided a remedy that is unambiguous and does not propose difficulties in implementation; and provided both internal briefing and outside inspections to ensure compliance with the proposed judgment.  Most importantly, the proposed final judgment fostered competition in the healthcare market and allowed physicians the opportunity to advertise their services to potential patients in a larger geographic region.