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.

Billeaudeau v. Opelousas Gen. Hosp. Auth. — Oct. 2016 (Summary)

NEGLIGENT CREDENTIALING

Billeaudeau v. Opelousas Gen. Hosp. Auth.
No. 2016-C-0846 (La. Oct. 19, 2016)

The Supreme Court of Louisiana affirmed the judgment of the Third Circuit Court of Appeals, holding that a claim for negligent credentialing against a hospital, involving care provided by an independent contractor emergency medicine physician, was not covered by the state medical malpractice act and, as such, was not subject to the statute’s damages cap.

Plaintiff, a woman with Down Syndrome, was taken to the emergency department of a hospital for treatment of a suspected stroke.  The ED physician declined to administer anti-stroke medication, despite the insistence of the patient’s family.  Though the patient was eventually transferred to another facility where she received the adequate treatment for her stroke, the delay resulted in irreversible brain damage.  In addition to basic negligence claims against the ED physician, the patient’s family also sued the hospital, alleging that the hospital negligently credentialed that ED physician when it failed to delve deeper into certain issues identified in her background, including information such as a requirement that ED physicians have at least a year of full-time practice in an emergency department, that was required by the medical staff bylaws.  The hospital argued that the negligent credentialing claim was indistinct from the patient’s medical malpractice claims, which were subject to the state medical malpractice act and associated limitation on damages.

After going through a detailed analysis of the language in the state medical malpractice act and finding no reference to negligent credentialing, the court ultimately applied a six-factor test to determine if the negligent credentialing allegations aligned more with general negligence law or malpractice law.  The test included such factors as whether negligent credentialing was “treatment-related” or caused by a dereliction of duty, whether expert medical evidence would be required to determine a breach of the standard of care, and whether the act in question involved an assessment of the patient’s condition. After applying all factors, the court held that claims involving negligent credentialing were “administrative, not medical, in nature.” Because only claims arising from medical malpractice are governed by the medical malpractice act, negligent credentialing is not a claim related to medical malpractice and therefore was not subject to the statute’s damages cap.

 

U.S. ex rel. Bingham v. HCA, Inc. — Oct. 2016 (Summary)

FRAUD & ABUSE/FALSE CLAIMS ACT

U.S. ex rel. Bingham v. HCA, Inc.
Case No. 13-23671-Civ-COOKE/TORRES (S.D. Fla. Oct. 14, 2016)

The United States District Court for the Southern District of Florida granted a health care services provider’s motion to dismiss an insider’s claims that a national health care services provider violated both the Stark Law and the Anti-Kickback Statute, thus creating liability under the False Claims Act.

A certified general real estate appraiser employed by a large, third-party property management firm that contracted with the health services provider, claimed to be an “insider” with knowledge of an alleged scheme involving a health services provider and a hospital owned by that provider. The insider claimed that after an interest in a hospital owned by the health services provider was sold, referring physicians stood to gain from the sale, as they had an equity interest in the hospital and because referring physicians received free parking benefits. The hospital provides inpatient and outpatient services to patients covered by federal and state sponsored health care programs. If the physicians were referring patients to a hospital in which they had a financial interest, they would be violating the Stark Law. If the physicians were receiving financial inducements to refer Medicare patients to the hospital, they would be violating the Anti-Kickback Statute. A violation of either statute forms a basis for liability under the False Claims Act.

As noted by the court, in order for the insider to state a valid claim under the False Claims Act, he must state with particularity the circumstances constituting fraud, and his knowledge of the circumstances of the fraud must be independently obtained. The court held that the insider’s claims failed because it heavily relied on information obtained through discovery to support the allegations against the health care services provider and, as noted by the court, information obtained through discovery is not independently obtained knowledge. Without the information obtained through discovery, the insider’s claim lacked the particularity necessary to state a valid claim of fraud. As a result, the court concluded that the insider was unable to state a claim under the False Claims Act.

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

PEER REVIEW PRIVILEGE

George v. Christus Health Sw. La.
No. 16-412 (La. Ct. App. Oct. 12, 2016)

The Court of Appeal of Louisiana granted in part a neurosurgeon’s request for relief and set aside a protective order issued by the trial court shielding from discovery peer review information of other physicians at a hospital.

The neurosurgeon was suspended, and ultimately not reinstated from a leave of absence, following accusations that he was inebriated while in the operating room.  The neurosurgeon sued the hospital and others, asserting claims for breach of contract and unfair trade practices.  The neurosurgeon alleged that the hospital displayed malice and personal bias toward him.  To support this allegation, he sought “evidence from the hospital to support [his] position that other doctors subject to [the hospital’s] peer review process were found to lack competence and to be a threat to quality healthcare, but that those doctors were still granted hospital privileges despite those findings.”  The hospital filed for, and was granted, a protective order.  In granting the protective order, the trial court concluded that the Louisiana peer review statute protected the information sought by the neurosurgeon.  The neurosurgeon appealed the trial court’s decision, arguing that the peer review statute was unconstitutional and that the decision should be set aside.  The court of appeal found that the state peer review statute “[does] not provide a hospital with total immunity from discovery of anything that occurs within the internal committee operation of a medical facility.”  Since the trial court reached the opposite conclusion, the court of appeal granted the neurosurgeon’s request for relief in part and remanded to the trial court “to re-examine each of the individual discovery requests…to determine whether any of the information sought is protected by the privilege created by the [peer review statute].”  The court did not rule on the neurosurgeon’s claim that the peer review statute was unconstitutional but noted that if the trial court found that any of the sought after information was protected under the statute, the neurosurgeon could seek further relief.

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

EMTALA

Gutierrez v. Santa Rosa Memorial Hosp.
No. 16-cv-02645-SI (N.D. Cal. Oct. 12, 2016)

The United States District Court for the Northern District of California granted, in part, a defendant hospital’s motion to dismiss, but allowed the plaintiff patient leave to amend her complaint, alleging that the hospital, among other things, violated the Emergency Medical Treatment and Active Labor Act (“EMTALA”) by failing to adequately screen and stabilize the patient’s condition before discharge.

The patient, a diabetic with end-stage renal disease, was treated in the hospital’s emergency department.  The patient alleged that despite indications from lab results that she might have a life-threatening disease, the hospital discharged her four hours later.  The patient collapsed shortly after discharge and was transferred to the ICU in a coma.  The patient (and other members of her family) sued the hospital and others, asserting claims for a violation of EMTALA and a violation of California’s Elder Abuse and Dependent Adult Civil Protection Act.  The hospital filed a motion to dismiss the patient’s complaint.  The court granted the motion, in part, and granted the patient leave to amend the complaint.  Specifically, the court dismissed the patient’s “failure to screen” claim under EMTALA because the complaint contained “no allegations that plaintiff was provided with a screening that was not comparable to that provided to other patients who exhibited similar symptoms.”  Nor did the complaint allege “that the screening provided…was ‘at such a minimal level that it properly cannot be said that the screening [was] appropriate.’”  The court also granted the hospital’s motion to dismiss the patient’s claim under California’s Elder Abuse and Dependent Adult Civil Protection Act because the complaint did not allege that the patient was a “dependent adult” as that term is defined by the statute.  On the other hand, the court denied the hospital’s motion to dismiss with respect to the patient’s “failure to stabilize” claim under EMTALA.  According to the court, the patient’s complaint supported this claim by alleging that the hospital ignored results of lab tests showing “the presence of life-threatening disease” and, subsequently, discharged her without stabilizing her.

Methodist Health Servs. Corp. v. OSF Healthcare Sys. — Sept. 2016 (Summary)

ANTITRUST

Methodist Health Servs. Corp. v. OSF Healthcare Sys.
No. 1:13-cv-01054-SLD-JEH (C.D. Ill. Sept. 30, 2016)

The United States District Court for the Central District of Illinois granted a hospital’s motion for summary judgment against federal and state law claims, brought by another, smaller hospital, relating to alleged illicit monopolization and antitrust violations.

Methodist Health Services Corporation (“Methodist”) sued St. Francis Medical Center (“St. Francis”) after St. Francis entered into exclusive contracts with the largest commercial insurers in the area.  Methodist argued that these exclusive arrangements unreasonably restrained trade and created an unlawful monopoly by diverting higher-reimbursing, commercially-insured patients to St. Francis facilities instead of Methodist facilities.  Methodist argued that St. Francis’ provision of certain specialized and essential services enabled it to use its market influence to “coerce commercial payers into excluding Methodist from their provider networks,” which inevitably created a “substantial foreclosure of competition.”  However, the district court held that a market foreclosure of slightly more than 50 percent constituted insufficient evidence upon which to predicate a claim of substantial foreclosure.

In its analysis, the court emphasized that although Methodist could not compete for some individuals insured by the largest insurer in the market, it was theoretically able to compete at other levels within the market, including employee benefit plans established by area employers.  Additional factors, such as the short duration of the exclusive contracts (one to two years) and Methodist’s alternative means by which it could reach the market of commercial patients, indicated that there was not foreclosure from the market of inpatient services rising to the level of a Sherman Act antitrust violation.  Accordingly, the court held that the exclusive contracts that St. Francis maintained did not “substantially lessen competition in the…market” in the coverage for either inpatient or outpatient services.

Markow v. Rosner — Oct. 2016 (Summary)

NEGLIGENCE/OSTENSIBLE AGENT

Markow v. Rosner
No. B260715, B262530 (Cal. Ct. App. Oct. 4, 2016)

The Court of Appeal for the Second District of California reversed a superior court’s ruling, holding that a patient was not entitled to damages from a hospital for the negligence of a physician.

The patient underwent a series of pain management treatments administered by the medical director of the pain center at the hospital.  After the pain management treatment, the patient experienced tremendous pain and began to develop neurological problems.  The patient’s condition deteriorated, and eventually left him quadriplegic.  A jury found the hospital was liable for the patient’s injuries because the court believed the physician was an ostensible agent of the hospital based on the fact that the patient found the physician on the hospital’s website, the physician was the medical director of a center at the hospital, and that when the patient chose the physician, he believed the physician was an employee of the hospital.

The appellate court disagreed, finding that the patient had substantial notice that the physician was not an employee of the hospital.  Before the patient underwent each pain management procedure, he signed conditions of admissions forms that contained an express provision informing the patient that his physician is not an agent of the hospital.  The patient also made payments for his care to the physician’s actual employer, not the hospital.  The court determined that the patient received actual notice that the physician was not an agent of the hospital, and, therefore, the hospital could not be held liable for the physician’s negligence.

Hernandez v. Avera Queen of Peace Hosp. — Sept. 2016 (Summary)

BREACH OF CONTRACT/DEFAMATION

Hernandez v. Avera Queen of Peace Hosp.
No. 27662 (S.D. Sept. 28, 2016)

The Supreme Court of South Dakota affirmed a circuit court’s decision to dismiss an employee physician’s claims against multiple persons associated with a hospital.

After providing the physician with incentives such as an office, support staff, and loan forgiveness, the physician claimed that when she arrived, her office was not prepared, she did not have adequate support staff, and she did not have sufficient equipment.  Once the physician was able to commence her practice, she experienced complications during her first three surgeries.  The physician claimed these complications were due to an improperly trained support staff and inadequate equipment.  The physician was assigned a proctor due to her complication rates.  The proctor advised that the physician be monitored closely if she was going to continue her practice, because he was concerned about her surgical techniques and how she used the equipment.

A month after beginning her practice, the physician became ill and had to take a medical leave of absence.  During her medical leave, the hospital terminated her employment due to the volume of patient complications and summarily suspended her privileges due to her inability to perform surgical procedures without supervision.  After terminating the physician, the hospital continued a peer review investigation of the physician’s cases with complications and its decision to suspend her privileges.  The investigation was ultimately terminated because the physician let her medical license lapse.  A physician must have a license to have privileges at the hospital.  Since the physician let her license lapse, she was ineligible to hold privileges, and the investigation was no longer necessary.  The hospital then reported the physician’s license forfeiture and privileges suspension to the National Practitioner Data Bank (“NPDB”).

The physician brought a claim against the hospital and multiple persons associated with the hospital for defamation, discrimination, wrongful termination, and wrongful suspension of privileges.  The circuit court dismissed all of these claims.  The physician believed the court erred when it dismissed her claims.  The physician first claimed defamation against the hospital because it reported her license forfeiture and privileges suspension to the NPDB.  For this claim of defamation to survive, the physician needed to prove that the hospital reported to the NPDB with knowledge that its report was false.  The hospital also has immunity from civil suit for the report, absent a showing that it was done with false information.  The physician did not show that the report was false, nor did she claim it was false, therefore her defamation claim against the hospital must be dismissed.  For the same reasons, the physician’s defamation claims against persons associated with the hospital were dismissed as well.

The physician then claimed discrimination against the hospital in violation of the Family Medical Leave Act (“FMLA”) and the ADA.  These discrimination claims were dismissed because the physician did not assert a claim under the FMLA since she took a medical leave of absence, not an FMLA leave.  The physician also did not present evidence that she was disabled or that the hospital perceived her as disabled under the ADA.

The physician lastly claimed wrongful termination and wrongful suspension of privileges against the hospital.  The physician claimed she was wrongfully terminated because the hospital failed to follow statutory procedure and procedure under the hospital’s bylaws.  She then claimed the hospital wrongfully suspended her privileges and wrongfully reported her suspension to the NPDB in violation of her rights because she was not notified or given an opportunity to be heard.  These claims were rightfully dismissed because the physician never brought this cause of action and she could not point to how this issue could be before the court on appeal.