Tenet Healthsystem Desert, Inc. v. Eisenhower Med. Ctr. — May 2016 (Summary)

ERISA

Tenet Healthsystem Desert, Inc. v. Eisenhower Med. Ctr.
D069296 (Cal. Ct. App. May 3, 2016)

The California Court of Appeal affirmed in part and reversed in part a number of fraud claims brought because an ERISA trust did not reimburse a hospital for medical services for a patient who was a member of a medical center’s plan but was denied coverage by the ERISA trust.

The hospital contended that the medical center failed to disclose that the patient had a blood alcohol level far exceeding the legal limit, which would adversely implicate his ability to obtain coverage for his injuries. This resulted in an improper authorization of approximately 50 days of services for the patient as medically necessary, because the hospital was not notified until it was too late to seek other avenues of reimbursement or alternative places of treatment for the patient.

The trial court determined that the amended complaint lacked the necessary specificity to survive a demurrer and was otherwise defective. The court of appeal agreed with many of the claims dismissed by the trial court. However, it reversed the dismissal of negligent misrepresentation and unfair competition law claims. The court reasoned that these claims stated sufficient factual allegations.

UMC Physician Network Servs. v. Leins — May 2016 (Summary)

PHYSICIAN CONTRACT TERMINATION

UMC Physician Network Servs. v. Leins
No. 07-14-00254-CV (Tex. App. May 2, 2016)

The Court of appeals of Texas affirmed in part a lower court’s ruling  upholding a jury verdict in favor of a physician who alleged breach of physician grievance procedures. The court also reversed in part the lower court’s ruling awarding recovery of $100,000 in future damages.

This litigation arose from a physician whistleblower who alleged that he was terminated in a manner that violated the physician grievance procedures because the termination was undertaken without proper notice and the physician was not given the chance to appeal in front of a committee. The court determined that the physician was entitled to $9,000 in damages to recover lost income, benefits, and other expenses sustained in the past.

The court of appeals reversed the lower court’s judgment that the physician was entitled to $100,000 in future damages. It reasoned that the physician failed to establish causation between the medical center’s breach and any future damages.

Horton v. Or. Health and Sci. Univ. — Apr. 2016 (Summary)

NEGLIGENCE, CAUSATION AND FORESEEABILITY

Horton v. Or. Health and Sci. Univ.
110811209; A155917 (Or. Ct. App. Apr. 27, 2016)

The court of appeals of Oregon reversed the decision of a trial court to dismiss a mother’s negligence claim for harm she suffered after undergoing emergency liver transplant surgery. The surgery was necessitated by complications arising from her infant son’s transplant surgery, which was negligently performed by the hospital. The hospital allegedly assigned an inexperienced surgeon for the eight-month-old’s surgery, failed to appropriately mark the proper blood vessels for the procedure, failed to coordinate with the transplant team, and failed to promptly stop the bleeding from the incorrect vessels. The hospital informed the mother her son would need an emergency liver transplant and that she was a tissue match. The mother chose to undergo the surgery, and suffered complications as a result.

The court of appeals held that the mother alleged adequate facts to show she would not have volunteered for the emergency liver transplant surgery but for the failed liver surgery of her infant son. In making this determination, the court of appeals relied on Oregon case law where causation was found when plaintiffs were injured responding to a defendant’s negligence rather than being more directly affected by the negligence. The court of appeals also found the mother’s injury foreseeable, noting that the hospital’s alleged negligence of assigning an inexperienced surgeon to the infant’s surgery, not properly identifying the appropriate blood vessels, failing to promptly stop the bleeding from damaged blood vessels, and failing to coordinate with the transplant team made the need for an emergency transplant liver surgery to correct those errors a foreseeable risk of their conduct. Furthermore, because an emergency liver transplant would need to be performed with a tissue match and the mother was prompted to volunteer by her child’s need for the emergency liver transplant, the court of appeals held the mother had sufficiently alleged facts to be considered a foreseeable plaintiff from the hospital and physicians’ conduct.

Herrera v. JFK Med. Ctr. Ltd. Partnership — Apr. 2016 (Summary)

CLASS ACTION – FEES

Herrera v. JFK Med. Ctr. Ltd. Partnership
No. 15–13253 (11th Cir. Apr. 26, 2016)

The United States Court of appeals for the Eleventh Circuit reversed the decision of a federal district court to deny class certification to motor vehicle owners who sued three Florida hospitals for alleged deceptive and unfair trade practices related to unreasonable fees charged for radiological services.

The vehicle owners obtained personal injury protection (“PIP”) insurance policies of $10,000, as required by Florida law. After insurance pays the $10,000 policy limit, the insured is responsible for any remaining expenses. The vehicle owners claim the hospitals took advantage of these insurance policies by charging vehicle owners radiological service fees as much as 65 times higher than the usual, customary fees charged to non-PIP patients for similar radiological services.

The court of appeals held it would be “premature” to find, at the pleadings stage, that liability issues would not be common to a class. Although factual differences existed between the vehicle owners’ claims, the court of appeals noted that it would be “relatively easy” to determine that these rates were unreasonable across the board during discovery, the theory of liability alleged by the vehicle owners. Additionally, the court of appeals held that although damage calculations would vary between class members, the present lawsuit was not an “extreme case” where the damage calculation for each individual would be so “complex, fact-specific and difficult” that the burden on the court would be “intolerable.”

Fakorede v. Mid-South Heart Ctr., P.C. — Apr. 2016 (Summary)

FALSE CLAIMS ACT

Fakorede v. Mid-South Heart Ctr., P.C.
No. 15-1285 (W.D. Tenn. Apr. 26, 2016)

The United States District Court for the Western District of Tennessee granted a clinic’s motion to dismiss claims made by a physician that it violated the federal False Claims Act (“FCA”).  The physician had been recruited out of cardiology training and had entered into a recruiting assistance agreement and an employment agreement to practice cardiology at a hospital.  A dispute arose about how the hospital was handling an account that had been established pursuant to the agreement which would supplement the cardiologist’s net collections as he worked to establish his practice over the course of the three-year term of the agreement. In order to calculate the hospital’s obligations under the supplemental account, the clinic had to submit certain financial statements to the hospital.  Despite the fact that the cardiologist’s gross collections appeared to exceed the amount necessary to trigger a payment out of the supplemental account, the clinic directed the cardiologist to take draws from the account and to assign those monies to the clinic.

Following several requests, the cardiologist reviewed partial financial information in which he disputed the depreciation costs that would offset his collections that were calculated by the clinic.  After that review, the cardiologist requested a complete audit of the clinic’s financial practices. After several weeks of back and forth regarding the financial information, the physician was terminated by the clinic, which he claimed was in retaliation for his efforts to prevent violations of the FCA.

The court disagreed, finding that the requested audit was not a protected activity because none of the physician’s initial reports to those in authority at the hospital or the clinic alleged fraud. According to the court, the cardiologist’s allegations revealed nothing more than an attempt to minimize his personal financial liability under the recruitment assistance and employment agreements, not an effort to stop an FCA violation.

Navo v. Bingham Mem’l Hosp. — Apr. 2016 (Summary)

APPARENT AGENCY

Navo v. Bingham Mem’l Hosp.
No. 42540 (Idaho Apr. 26, 2016)

The Supreme Court of Idaho vacated and remanded a grant of summary judgment by a lower court to a hospital regarding a medical malpractice action. The patient at issue broke his ankle, had an initial surgical procedure at the hospital and became infected, and, when the patient underwent a second surgery, suffered an adverse reaction to the anesthesia and died. The patient’s family sued the hospital, alleging that the hospital was liable for both its own actions and the acts of the certified registered nurse anesthetist who provided the anesthesia.  The hospital argued that it was entitled to summary judgment because the CRNA was an independent contractor, not an employee, and the hospital could not be held liable for the acts of the CRNA.

On the basis of several factors – including a hospital admission consent form that stated that anesthesia providers were independent contractors and the fact that the anesthesia consent form included language about separate bills – the court granted summary judgment to the hospital, finding the patient had failed to adequately plead apparent authority.

On appeal, the court reversed, finding that there were genuine issues of material fact as to whether the hospital’s conduct could have led the patient to believe that the CRNA was acting on the hospital’s behalf.  The court noted that the admission consent form referenced physicians being independent contractors but was silent on the issue of CRNA providers.  In addition, the anesthesia consent form was silent as to the independent contractor relationship altogether and addressed only billing issues.  Ultimately, the court held that viewing the facts in favor of the plaintiff patient, a genuine issue of material fact remained as to whether the patient had accepted the anesthesia services under the reasonable belief that the services were rendered on behalf of the hospital, such that the grant of summary judgment to the hospital was inappropriate.

Love v. Med. Coll. of Wis. — Apr. 2016 (Summary)

EMPLOYMENT AND CLINICAL PRIVILEGE ACTIONS

Love v. Med. Coll. of Wis.
Case No. 15-cv-0650 (E.D. Wis. Apr. 22, 2016)

The United States District Court for the Eastern District of Wisconsin granted in part and denied in part motions for summary judgment on False Claims Act (“FCA”) violation and various state tort law claims made by a surgeon against a hospital as well as the medical college that had employed the surgeon. The surgeon alleged that after complaining about the quality of care at the hospital, he was retaliated against by being removed from the call schedule, negative and false information being spread about him, his hospital privileges being revoked, and prospective employers being provided with negative and false information about him.  However, at the time of the surgeon’s ultimate separation from the defendant medical college, he signed a separation agreement that included a release from liability from certain defined claims that had arisen before the execution date of the agreement, which the medical college argued served as a bar to the surgeon’s claims against that defendant.

The court agreed that the release provision barred the surgeon’s FCA claims against the medical college, with the exception of one alleged act that had occurred after the separation agreement had been executed.  With regard to the claims against the hospital, the court held that the surgeon’s allegations of FCA violations were insufficient because they primarily involved the alleged acts of the medical college and, contrary to the surgeon’s assertions, the court held that the hospital could not be held vicariously liable for released claims.  The court also held that the surgeon could proceed with certain state law claims, including alleged defamatory acts against both parties that occurred after the execution of the separation agreement, as well as claims against the hospital based on vicarious liability involving certain named individuals who the surgeon was able to demonstrate were subject to the control of the hospital despite the fact that they were actually employed by the medical college.

Mikeska v. Las Cruces Reg’l Med. Ctr., LLC — Apr. 2016 (Summary)

EMTALA

Mikeska v. Las Cruces Reg’l Med. Ctr., LLC
No. 33,836 (N.M. Ct. App. Apr. 21, 2016)

The Court of Appeals of New Mexico reversed a lower court ruling in favor of a hospital finding that it had not violated the Emergency Medical Treatment and Active Labor Act (“EMTALA”) with regard to treatment rendered to a patient. The patient had visited the emergency room in question twice on the same day and was discharged on both occasions after being misdiagnosed with a ruptured ovarian cyst. Four days later, she returned to the emergency room, at which point she was accurately diagnosed with a bowel obstruction. The patient filed her initial suit alleging that she was inadequately screened and was inappropriately discharged under EMTALA. The patient argued that the lower court erred in a number of ways concerning jury instructions, the use of an expert witness, and what evidence was considered admissible.

The court held that the lower court erred in allowing an expert witness to testify concerning the scope and intent of EMTALA which are matters of law, rather than limiting his testimony to opinions on matters pertaining to his field of expertise, which was emergency medicine.  The court held that it was also error for the trial court to allow the expert to reference the fact that the patient actually had health insurance coverage, which interjected a false issue into the trial with regard to the elements necessary to establish an EMTALA claim. Finally, the court held that the district court erred in instructing the jury to disregard evidence that the patient was misdiagnosed.

Strong v. Brakeley — Apr. 2016 (Summary)

PEER REVIEW IMMUNITY

Strong v. Brakeley
Docket No. And-15-260 (Me. Apr. 21, 2016)

The Supreme Judicial Court of Maine affirmed a lower court’s ruling that two physicians were subject to statutory immunity when they provided unfavorable peer evaluations to a credentials verification organization (“CVO”) regarding the plaintiff physician who was applying for medical staff appointment at a hospital that contracted with the CVO.  The plaintiff physician was denied staff privileges after receipt of the peer evaluations, and the plaintiff physician sued the responding physicians, alleging defamation and tortious interference with a business relationship.

The physicians who provided the unfavorable evaluations argued that they were immune from liability under the Maine peer review statute. The court agreed after a complete analysis of the statute, rejecting a number of the plaintiff physician’s arguments regarding the scope and extent of the immunity provided, ultimately holding that the responding physicians were subject to immunity because the evaluations they provided were made for the purpose of assisting a board, authority, or committee in carrying out its statutory “professional competence” duties as a matter of law.

Allen v. Harrison — Apr. 2016 (Summary)

INFORMED CONSENT

Allen v. Harrison
No. 111877 (Okla. Apr. 19, 2016)

The Supreme Court of Oklahoma reversed a partial grant of summary judgment to a physician in a medical malpractice action that was based on the doctrine of informed consent. The patient at issue had come to the emergency department after having swallowed a nail.  The defendant emergency room physician recommended that the patient eat a high fiber diet and let the nail pass naturally, and did not provide the patient with any alternative treatment options. Ultimately, after experiencing serious vomiting, the patient went to a different emergency department where she had the nail surgically removed from her intestines and received treatment for a perforated and infected bowel.

The patient sued the emergency room physician, alleging failure to obtain informed consent based on the physician’s failure to disclose potential risks of allowing the nail to pass naturally, as well as the failure to disclose other options, such as surgical removal. The physician argued that he was entitled to judgment as a matter of law, claiming that a valid informed consent claim was only recognized in cases involving the performance of an affirmative treatment, not, as in this case, where he relied on his clinical judgment in not treating the patient and therefore did not affirmatively cause her injuries.  The trial court agreed, granting summary judgment.

On appeal, however, the court disagreed with the physician’s argument and reversed, finding that it falsely advanced the position that a physician must secure a patient’s informed consent only for surgical procedures, not for those that are noninvasive, and that it ignored state law that requires a physician’s communication to be measured by the patient’s ability to make an intelligent choice.  The court also rejected the physician’s argument that he should not have to disclose alternative treatments that are beyond his scope of practice – like a surgical intervention – finding that he had a duty to disclose alternative invasive interventions even to the extent that they may have required a consultation with another physician to facilitate the disclosure.