Munoz v. Watsonville Cmty. Hosp. — June 2016 (Summary)

EMTALA

Munoz v. Watsonville Cmty. Hosp.
Case No. 15-cv-00932-BLF (N.D. Cal. June 2, 2016)

The United States District Court for the Northern District of California granted with leave to amend a defendant-hospital’s motion to dismiss Emergency Medical Treatment and Active Labor Act (“EMTALA”) claims brought by a plaintiff-patient for failure to stabilize and disparate treatment.

The patient alleged that after being identified as having an emergency medical condition, the hospital failed to stabilize the condition because she received treatment for a mental condition instead of treatment for abdominal pain.  The court noted that if a hospital detects an emergency medical condition, it has a duty to stabilize, but EMTALA does not impose liability on a hospital that misdiagnoses the condition.  The court found that, in this case, plaintiff’s allegations appear to rest on a misdiagnosis and, if so, that would not be actionable under EMTALA.

The patient also claimed she received disparate treatment.  The court noted that the plaintiff’s claim appears to be based on her not being given an appropriate medical screening examination required by the appropriate standard of care.  However, the court found that the “measuring stick” for disparate treatment is not the standard of care, but what treatment other patients that had the same condition would have received at the hospital.  Since the patient did not allege that she received different treatment than others presenting with the same condition, she did not state a claim under EMTALA.

Fischer v. Nyack Hosp. — June 2016 (Summary)

Peer Review Actions

Fischer v. Nyack Hosp.
No. 521817, 521668 (N.Y. App. Div. June 2, 2016)

The Supreme Court of New York, Appellate Division, granted summary judgment to a hospital in a lawsuit brought by a surgeon asserting the hospital terminated her privileges improperly and violated the Medical Staff Bylaws.

The appellate court corrected some procedural mistakes made by the lower court and then considered the physician’s claim for injunctive relief (seeking reinstatement of her privileges at the hospital).

The court noted that, under the state statute that gives physicians access to judicial review of privileging actions, the court’s review was limited to whether the grounds set forth by the hospital were reasonably related to institutional concerns, whether they were based on the apparent facts perceived by the hospital, and whether they were assigned in good faith.  The court found all of these requirements met in this case.

It noted that the physician received a fair hearing, at which she was represented by counsel, conducted cross-examination, and presented evidence in support of her position.

Further, the grounds for termination of privileges were “reasonably related to institutional concerns and amply supported by proof.”  Specifically, the termination of privileges was recommended due to the following findings:  “a pattern of inaccessibility to staff when on call, she repeatedly did not respond promptly to the emergency department when on call, she failed to obtain coverage when unavailable because of illness, she left the operating room and could not be located while her patients were in surgery and she failed to properly disclose her suspension at the other hospital as required by [the hospital’s] bylaws.”

Shibley v. King Cty. Pub. Hosp. Dist. No. 4 — May 2016 (Summary)

HCQIA Immunity – NPDB Reporting

Shibley v. King Cty. Pub. Hosp. Dist. No. 4
No. 72855-5-I (Wash. Ct. App. May 23, 2016)

The Court of Appeals of Washington affirmed summary judgment in favor of a hospital that was sued by a physician whose employment had been terminated, holding that the hospital was entitled to immunity and that the employee released the hospital from all claims in a severance agreement.  Additionally, the court affirmed the lower court’s denial of attorney’s fees to the hospital.

This case arose after the physician admitted to dictating a history and physical examination for a patient who he had never seen and, as a result, his employment was terminated. The physician signed a severance agreement that unconditionally released the hospital from any and all claims stemming from his employment and termination. After the physician was terminated from employment, the Medical Executive Committee (“MEC”) voted to also terminate his clinical privileges.  On this same day, the hospital submitted an adverse action report to the National Practitioner Data Bank (“NPDB”), which it later corrected to state the action taken was a summary suspension instead of a revocation of privileges and termination of employment.  The physician exercised his hearing and appeal rights and the governing board of the hospital ultimately upheld the termination of privileges based on the physician’s false documentation of an H&P that he did not perform.

Despite repeatedly admitting that he did not perform the H&P that he documented, the physician sued.  The Court of Appeals of Washington held that the hospital was entitled to immunity because it met the appropriate requirements of the Health Care Quality Improvement Act (“HCQIA”).  The court noted that even if a hospital does not follow the HCQIA’s specified notice and hearing procedures, those are merely a safe harbor.  The hospital can still be entitled to immunity if it satisfies the standards of the HCQIA.

Further, with respect to the NPDB report, the court noted that the hospital corrected its mistaken report to the NPDB and there was no evidence that it had any ill motives in filing the first report that incorrectly stated the MEC’s recommendation with respect to the physician as a “termination.”

Additionally, the court found that the physician’s signing of the severance agreement barred him from making employment and termination-related claims, such as his claims for breach of the employment agreement and free speech retaliation.

While summary judgment was upheld against the physician, the court rejected the hospital’s assertion that it was entitled to attorney’s fees, reasoning that the claims were not entirely frivolous.

Elkharwily v. Mayo Holding Co. — May 2016 (Summary)

EMPLOYMENT DISCRIMINATION

Elkharwily v. Mayo Holding Co.
No. 15-1492 (8th Cir. May 20, 2016)

The United States Court of Appeals for the Eighth Circuit affirmed a district court’s grant of summary judgment against a hospitalist’s claims of retaliatory discharge in violation of the False Claims Act, the Minnesota Whistleblower Act, and EMTALA.   Due to concerns regarding patient safety, interactions with hospital staff, and the hospitalist’s truthfulness, the clinic had decided to terminate the hospitalist’s employment contract at the tail end of his 90-day probationary period.  Ultimately, it offered him the opportunity to resign, which he took, but he then sued the clinic shortly thereafter, claiming retaliatory discharge.  The trial court granted summary judgment to the clinic, finding that the hospitalist had failed to show that his termination had been a pretext.  On appeal, the appellate court concurred with the trial court that the hospitalist failed not only to prove that his employment termination was a pretext for retaliation but also failed to show that his termination was motivated exclusively by his reporting of the clinic’s alleged violations of the Minnesota Whistleblower Act, EMTALA, and the False Claims Act. The court reasoned that nothing in the record supported the hospitalist’s retaliatory discharge claim, and that the clinic had articulated a legitimate, non-discriminatory reason for the termination, namely, the hospitalist’s poor job performance evaluations that were confidential, based on feedback from numerous staff interviews, and performed independently of each other. Therefore, the lower court had properly granted the hospital’s motion for summary judgment against the hospitalist.

Rasor v. Nw. Hosp., LLC — May 2016 (Summary)

PATIENT SAFETY ORGANIZATIONS — PRIVILEGE

Rasor v. Nw. Hosp., LLC
No. 2 CA-CV 2015-0065 (Ariz. Ct. App. May 17, 2016)

The Court of Appeals of Arizona affirmed a trial court’s decision in a malpractice action to allow discovery regarding other patients who suffered similar injuries to the plaintiff patient in order to establish a habitual hospital practice and procedure. The court held that the information regarding other patients with similar injuries was not privileged under the Patient Safety and Quality Improvement Act even though the hospital may have to access patient safety work product to identify the requested information because the information that was actually being sought – patient medical records – was exempt from protection under the Act.

The patient sued the hospital after she developed a significant pressure ulcer following a prolonged hospital stay for open heart surgery, claiming that her ICU nurses had breached the standard of care by failing to reposition her during her stay.  In discovery, among other things, the patient had requested records of all patients who had developed pressure ulcers in the ICU, a request that the hospital claimed was overbroad, would violate HIPAA, and was privileged under statutes. While the trial court did narrow the discovery requests, it ordered the hospital to provide the requested records for a four-year period prior to the patient’s hospital admission.  On appeal, the hospital claimed that the request for patient records was barred by the Patient Safety Act.  The appellate court disagreed, holding that the requested patient records were not protected by the Patient Safety Act as they were not specifically created for safety or quality control purposes but, rather, were created to diagnose and treat medical conditions, and that even if identifying the relevant records required accessing patient safety work product through the PSO, it wouldn’t violate the act, because the information sought was exempt from protection.

Valfer v. Evanston Nw. Healthcare — May 2016 (Summary)

PEER REVIEW IMMUNITY

Valfer v. Evanston Nw. Healthcare
No. 119220 (Ill. May 19, 2016)

The Supreme Court of Illinois affirmed the Appellate Court of Illinois’ dismissal of a breach of contract claim brought by a physician against a hospital, holding that the hospital was immune from liability pursuant to the state peer review statute in the absence of willful and wanton misconduct. After a medical staff peer review committee at the hospital determined that at least 50% of the surgeon’s surgical cases lacked necessary indications for intervention, the surgeon’s operating privileges were suspended and, ultimately, the hospital denied the surgeon’s reappointment, citing patient safety concerns. Following a three-day medical staff hearing and an appellate review process, the hospital board adopted the recommendation to deny, after which the surgeon sued.  Finding that the hospital did not violate the bylaws, the lower courts determined that the hospital had immunity conferred by the state’s peer review statute.  The lower courts also determined that the case did not fall within the “willful and wanton misconduct” exception to peer review immunity, finding that the plain text of the statute required a showing of physical harm by an affected practitioner. The physician was unable to show physical harm when he alleged that the hospital did not follow its bylaws relating to suspension of privileges. The court reasoned that if the exception to immunity included any and all types of intentional harm, including harm to one’s reputation or economic well-being, it would negate any immunity provided by the peer review statute. Also, the court clarified that this case should not be interpreted as condoning sham peer review, explaining that hospitals do not have absolute immunity from all legal challenges to all decisions made by peer review committees. As examples, it offered the possibility of injunctive relief for decisions about compliance with hospital bylaws and tort actions for physical harm brought by willful and wanton misconduct, neither of which the court found in this case.

Doctor v. LifePoint Hosps., Inc. — May 2016 (Summary)

REVOCATION OF PRIVILEGES — TRO

Doctor v. LifePoint Hosps., Inc.
No. 2015 CA 0979 (La. Ct. App. May 12, 2016)

After being reinstated from a summary suspension, an OB/GYN’s privileges were revoked when new concerns arose which violated the probationary conditions that were put on his practice.

After receiving a hearing and appeal, the OB/GYN filed for a temporary restraining order (“TRO”) enjoining the hospital from revoking his clinical privileges and making an adverse report to a third party or agency, which was initially granted and later reversed by the trial court.

The hospital then suspended the OB/GYN’s clinical privileges and medical staff membership and the OB/GYN appealed. The court of appeals denied the hospital’s motion to dismiss the OB/GYN’s appeal as moot, holding that the reporting to third parties and agencies was not a “one-time event” and the suspension was for “no less than one year,” presenting a justiciable controversy.

The court of appeals went on to affirm the judgment of the trial court, finding that the trial court did not error when it refused to allow the physician to present evidence from three other physicians, noting that two of those physicians’ testimony was in the Hearing Committee Report provided to the trial court judge and the other physician was not affiliated with the hospital in any way.  The court of appeals also agreed with the trial court that evidence that other physicians violated the same rule was irrelevant and inadmissible. The court of appeals rejected the physician’s argument that he should have been granted a fair hearing when the conditions for reinstatement were imposed, noting he agreed to the conditions. Additionally, the OB/GYN was not able to show the trial court he would have likely succeeded on the merits, as the MEC decision was “made after a reasonable effort to obtain the facts and after affording [the physician] adequate notice and hearing procedures.”

Winger v. Meade Dist. Hosp. — May 2016 (Summary)

Employment Termination – Liberty Interest vs. Property Interest

Winger v. Meade Dist. Hosp.
No. 15-3075 (10th Cir. May 12, 2016)

The Tenth Circuit of the United States Court of Appeals found that a physician who’s employment had been terminated by a hospital did have a valid liberty interest claim, but not a property interest claim. The physician sued the hospital, claiming he was fired without due process and that the hospital infringed upon his liberty interest in his professional reputation by reporting his termination to the state board.

According to the physician’s contract, he was hired for an initial term of one year and could be terminated without cause on 60 days’ notice or immediately for “good cause.” Not long after he started, the hospital’s risk management committee conducted an investigation after receiving complaints about the physician. Based upon the findings of the investigation, the hospital revoked the physician’s temporary privileges for failing to practice within the expected standard of care. The hospital’s bylaws provided that temporary privileges could be terminated at any time without a right to appeal. The physician’s contract was then terminated “with cause” for failing to meet the “standards of care required of physicians in the community.” Reports were filed with the state board, which reported the termination to the National Practitioner Data Bank.

While a district court granted summary judgment to the hospital, the circuit court reversed the lower court’s findings, finding that under Kansas law, the physician had a property interest in his continued employment because his contract provided that he could only be terminated immediately if there was “good cause” and that it was a question for the jury as to whether he had received adequate due process. However, the circuit court did affirm the district court’s finding of summary judgment for the hospital with regard to the physician’s liberty interest claim, holding that the hospital was required to report the termination of the physician’s clinical privileges by statute.

U.S. ex rel. Cieszynski v. LifeWatch Servs., Inc. — May 2016

False Claims Act – Qui Tam Action

U.S. ex rel. Cieszynski v. LifeWatch Servs., Inc.
Case No. 13 CV 4052 (N.D. Ill. May 13, 2016)

A district court granted a physician’s motion to dismiss a counterclaim brought by his former employer – a medical device company – stating the physician had breached his confidentiality agreement and the company’s privacy policy when he disclosed documents to his attorney and the government for the purposes of filing a qui tam suit. The physician had disclosed a spreadsheet that contained the names of individuals on both private and government insurance who used the company’s medical device. The district court held that this document alone did not expose the physician to liability for the confidentiality agreement he signed, stating public policy strongly favored supporting the efforts of relators to report fraud. Similarly, the district court held the company failed to state a claim with regard to the physician’s alleged breach of the privacy policy as well. The company did not plead sufficient facts to show the privacy policy was part of the physician’s employment agreement. The district court also held the physician’s disclosure was sufficiently narrow to avoid liability for the privacy policy as well. Additionally, the district court noted that HIPAA provides a safe harbor for employees who disclose protected health information to a government agency or attorney, “if such employee has a good faith belief that the HIPAA-covered employer has engaged in unlawful conduct.”

Dark v. Houston Methodist San Jacinto Hosp. — May 2016 (Summary)

EMPLOYMENT DISCRIMINATION – NURSE

Dark v. Houston Methodist San Jacinto Hosp.
Civil Action No. H-14-3540 (S.D. Tex. May 12, 2016)

The District Court for the Southern District of Texas granted a hospital’s motion for summary judgment with regard to a former nurse’s ADA, Title VII, and §1981 claims of disability and racial discrimination. The former nurse was an RN II at the hospital. After receiving a flu shot, the nurse was diagnosed with Unspecified Connective Tissue Disease, an autoimmune disease, and she applied for short-term disability in January 2014. The hospital informed the nurse in May 2014 that her short-term disability would expire in July 2014 unless she returned to work or received an extension as an accommodation. The nurse provided documentation that she could not return to work and requested an extension, but both requests were denied. The hospital informed the nurse that her leave would be exhausted on October 2, 2014, and she would be terminated from her position unless she returned to work. After her termination, the nurse filed a lawsuit.

The district court held the nurse failed to present evidence that the open and available positions she indicated would be appropriate would not involve patient contact. The former nurse’s claim that the hospital did not engage in an interactive process to accommodate her disability were also rejected. The hospital’s human resources director communicated with the nurse regarding her limitations, and noted that telecommuting would not be an option because all nurse positions at the hospital required patient contact. The district court also held the nurse failed to cite evidence that her request for an extended leave of absence constituted a reasonable accommodation, holding the nurse never provided the hospital an estimate of when she could resume her job duties and that the hospital was not required to wait indefinitely for the nurse’s medical condition to be resolved.

In reviewing the nurse’s racial discrimination claim, the district court held the nurse had failed to establish a prima facie case. The nurse did not dispute she was no longer qualified for her previous position or any available position currently at the hospital. Additionally, the district court held the nurse failed to provide sufficient evidence of disparate treatment because those employees who were treated “more favorably” than her were not similarly situated: one nurse had suffered a broken wrist and the other was pregnant, both temporary conditions. The district court held the nurse had failed to show the hospital’s decision to terminate her employment, namely that no reasonable accommodation would have enabled the nurse to perform the essential functions of her job as an RN II, was merely a pretext for racial discrimination.