Ferguson v. United States — Apr. 2016 (Summary)

SEARCH AND SEIZURE

Ferguson v. United States
Civil Action No. 14-6807 (E.D. Pa. Apr. 18, 2016)

The United States District Court for the Eastern District of Pennsylvania refused to dismiss the claims brought against the hospital employees and Custom and Border Protection (“CBP”) agents who allegedly violated a woman’s Fourth and Fifth Amendment rights.  After returning from a visit to the Dominican Republic, the woman was interrogated by CBP agents at the airport.  Suspecting her of drug trafficking, the agents took the woman to a nearby hospital.  The woman repeatedly refused medical treatment while at the hospital and hospital employees noted that she did not display symptoms of “drug packing.”

The CBP agents never obtained a warrant to search the woman.  Instead, they were able to convince a physician at the hospital to involuntarily commit her so that a warrant was no longer needed prior to conducting medical tests/searches.  Following the commitment, the hospital allegedly tied the woman to a bed, forcibly cut her clothing from her body, and performed an invasive visual and physical search of her body.  Hospital employees then allegedly administered two drugs to the woman intravenously, a sedative and an anti-psychotic, and proceeded to conduct numerous tests, including an electrocardiogram, a CT scan, a urine analysis, and an X-ray of the woman’s abdomen.  None of the tests revealed the presence of foreign objects and the woman was released later that day.  CBP agents returned the woman to the airport and set her free.  On her way home from the airport, the woman was involved in a car accident and sustained physical injuries.  She brought suit against a number of individuals, including the hospital and its employees, for injuries relating to the car accident, the invasive search, and unwanted medical procedures.

The district court rejected the hospital employees’ argument that they were private actors and could not be sued in a “Bivens” action (an action for damages, where there has been a violation of constitutional rights by someone acting under the color of federal authority).  The court found dismissal improper because the woman alleged a sufficiently “close nexus” between the CBP agents and the hospital employees.  Specifically, the CBP agents allegedly guarded the woman while she was at the hospital and conferred with the hospital staff with regard to the woman’s treatment and whether she was to be involuntarily committed.  Additionally, the woman alleged the CBP agents conducted a close visual inspection of her body after hospital employees restrained her and forcibly removed her clothing.  Taken together, the court found these alleged facts could support an inference that there was a close nexus between the government and private actors in this case.

Robinson v. St. John Med. Ctr., Inc. — Apr. 2016 (Summary)

EMPLOYMENT DISCRIMINATION

Robinson v. St. John Med. Ctr., Inc.
No. 15-5039 (10th Cir. Apr. 13, 2016)

The United States Court of Appeals for the Tenth Circuit affirmed summary judgment in favor of a medical center on claims of racial discrimination, retaliation, and wrongful termination made by a formerly employed nurse case manager.

The nurse case manager had been terminated for acting outside the scope of her position.  Specifically, after becoming concerned that a patient suffering from sickle cell anemia was not having her pain treated adequately, the nurse case manager proceeded to take several actions regarding the patient’s treatment without first obtaining physician approval, including:  (1) questioning the resident physicians regarding why the patient was not receiving antibiotics, why the patient was not on an IV pain pump, and why a hematologist had not been consulted; (2) contacting a sickle cell treatment facility in another state and obtaining information about a physician at that facility, for the purpose of arranging a consult for the patient; (3) consulting with a local infectious disease specialist regarding whether the patient should be on IV antibiotics; (4) asking the patient whether she was willing to have a pain pump; and (5) trying to obtain a hematologist for the patient and asking a social worker to determine whether transportation to another city (where the hematologist was located) could be arranged.  The actions of the case manager resulted in the patient refusing to take her medication and questioning why she was not receiving IV medication.  Further, several physicians and one nurse ultimately complained about the nurse case manager’s conduct, stating that it undermined the role of the physicians involved in the patient’s care and drove a wedge between the patient and the medical center.  The nurse was terminated.  She filed suit, alleging race discrimination, retaliation for race discrimination, and violation of public policy.

The lower court granted summary judgment to the medical center because the nurse failed to show a genuine issue of material fact as to whether her employer’s proffered reasons for terminating her employment were pretext for discrimination or retaliation.  The Court of Appeals agreed and stated that what the nurse offered as evidence of pretext was insufficiently supported by fact.  The court also reasoned that the offered evidence did not show weakness, implausibilities, inconsistencies, incoherencies, or contradictions in the medical center’s proffered legitimate reasons for her termination.

Blatchley v. Cunningham — Apr. 2016 (Summary)

PEER REVIEW PRIVILEGE

Blatchley v. Cunningham
Civil Action No. 15-cv-00460-WYD-NYW (D. Colo. Apr. 18, 2016)

The United States District Court for the District of Colorado granted a protective order in favor of a medical center, holding that the state peer review statute protected the records of the medical center’s trauma peer review committee, thus preventing discovery in a personal injury lawsuit.

In this case, the patient requested, during the discovery phase of her lawsuit, “any and all information regarding [her] created by or for any professional review, peer review or quality control or management from the [medical center].”  The medical center objected, claiming peer review privilege for the records of its trauma peer review committee.  The patient argued that even if the records of the committee are peer review records, the facts that are embedded within them – as opposed to the records of deliberations of the Committee – are not privileged since the privilege does not apply to original source documents.

The court disagreed, noting that the peer review statute does not make a distinction between facts and deliberation, nor does the statute specifically state that facts can be discovered from records generated as part of the peer review process.

U.S. ex rel. Polukoff v. St. Mark’s Hosp. — Apr. 2016 (Summary)

FALSE CLAIMS ACT

U.S. ex rel. Polukoff v. St. Mark’s Hosp.
No. 3:12-cv-01277 (M.D. Tenn. Apr. 13, 2016)

The United States District Court for the Middle District of Tennessee dismissed a physician’s False Claims Act suit, brought against a healthcare system and its affiliated corporate body, premised upon fraudulent Medicare/Medicaid billing by a hospital and physician for medically unnecessary patent foramen ovale (“PFO”) closures.  The plaintiff claimed that many PFOs do not require treatment and billing for the closure of a PFO is appropriate only if the closure is medically necessary.  In support of his claim that the defendants billed for medically unnecessary closures, the physician claimed that the physician in question performed 861 closures in 2010 while, during the same time period, all of the doctors at the Cleveland Clinic combined performed 37 such procedures.  The physician claimed that the hospital and health care system turned a blind eye to the volume of procedures being performed by the surgeon.

The district court held that the affiliated corporate body could not be held liable for a violation of the False Claims Act by the affiliated healthcare system/hospitals since the physician alleged no facts regarding the corporate body’s knowledge of or participation in any scheme to bill for medically unnecessary services.

Additionally, the district court held that the physician failed to allege sufficient facts necessary to overcome the heightened pleading standard for fraud.  Specifically, the district court found the physician failed to allege how the corporation would have known the medically unnecessary procedures were being performed, what actions the corporation could have taken to stop the alleged procedures, or reimbursement or reports sought by the corporation from the government for the procedures in question.  Additionally, although the physician alleged the corporation conspired with the hospital and the physician performing the procedures to defraud the government, the district court found the physician failed to identify any communication between the corporation and the other parties to the case.

Am. Civil Liberties Union v. Trinity Health Corp. — Apr. 2016 (Summary)

EMTALA STABILIZATION AND CATHOLIC RELIGIOUS DIRECTIVES

Am. Civil Liberties Union v. Trinity Health Corp.
Case No. 15-cv-12611 (E.D. Mich. Apr. 11, 2016)

The United States District Court for the Eastern District of Michigan dismissed a request by the American Civil Liberties Union (“ACLU”) for a declaratory judgment that a corporation that owns and operates Catholic hospitals violates EMTALA and the Rehabilitation Act when its member hospitals adhere to the Ethical and Religious Directives for Health published by the United States Conference of Catholic Bishops, because such adherence prevents patients from receiving termination of pregnancy services that are necessary to stabilize their health conditions.  The ACLU specifically challenged the corporations’ adherence to Directive 45, which states:  “Abortion (that is, the directly intended termination of pregnancy before viability or the directly intended destruction of a viable fetus) is never permitted.”

The district court did not make a decision regarding the substance of the ACLU’s claim.  Instead, it found the ACLU lacked standing to bring the lawsuit, noting the ACLU’s allegation that one of its members was previously denied treatment because of the directive was insufficient to establish standing.  Furthermore, the district court found the ACLU failed to establish that any of its current members would inevitably be at risk of injury, even if pregnant, stating the ACLU had presented no facts as to why this member faced a substantial risk of pregnancy complications requiring early termination of her pregnancy.  Additionally, the district court found the ACLU’s claim was not ripe for review because the civil rights group did not explain specific medical conditions that placed its members at risk of being harmed by Directive 45.

Langston v. Milton S. Hershey Med. Ctr. — Apr. 2016 (Summary)

EMTALA STABILIZATION

Langston v. Milton S. Hershey Med. Ctr.
Civil No. 1:15-CV-02027 (M.D. Pa. Apr. 11, 2016)

The United States District Court for the Middle District of Pennsylvania denied in part and granted in part motions to dismiss brought by a medical center, hospital, surgeon, and treating physician with regard to a former patient’s §1983, ADA, Rehabilitation Act, and EMTALA claims.

This case arose after a surgeon performed an ileostomy on the patient to treat a perianal fistula.  After the procedure, which had ended up being a more extensive surgery than she had hoped for, the patient said she experienced persistent complications.  Though she was experiencing leg cramps, she said that her doctor discharged her from the hospital, leaving her to take a 90-minute taxi ride to an empty house.  Within a day or so, the patient presented to another hospital’s Emergency Department, where she was treated for dehydration and then allegedly began to suffer renal failure.  As a result, she was transferred back to the medical center where her surgery had been performed.  When the medical center tried to discharge her, the patient arranged to be transferred to a nursing home for two weeks.  She continued to suffer complications, including problems with the ostomy-bag seal, dehydration, and renal failure.  These complications resulted in the patient seeking care from and being transferred numerous times between the medical center that performed the surgery, another hospital, a nursing home, and a rehabilitation facility.

The patient sued claiming, among other things, that the medical center violated EMTALA when it discharged her to a rehabilitation facility despite the fact that she was suffering from leg cramps.  She further alleged that the hospital violated EMTALA when it transferred her back to the medical center twice, the first time while she was experiencing renal failure and the second time while she was experiencing severe “vice-like” pain.

With regard to the patient’s transfer from the medical center to the rehabilitation facility, with alleged leg cramps, the court dismissed the patient’s EMTALA claim against the medical center, stating:  “…we agree with [the medical center] that ‘to stabilize’ or ‘stabilized’ does not require all ailments to be cured, only that no material deterioration of a condition is likely to result from or occur during the transfer.  Moreover, we remain unconvinced that the alleged leg cramps qualify as an independent, emergency medical condition.”

The court also dismissed one of the patient’s EMTALA claims against the hospital (the claim related to the patient’s transfer while in renal failure), because although the patient alleged that she suffered from renal failure while at the hospital, she alleged no facts concerning her condition at the time of the transfer or regarding the medical treatment she received at the hospital, if any.

The court allowed one of the patient’s EMTALA claims to proceed against the hospital – the claim related to her transfer to the medical center while suffering “vice-like” pain.  The court noted that the patient alleged her ostomy-bag seal failed multiple times, resulting in severe pain, and that her physician at the hospital ignored her requests for pain management and instead transferred her back to the medical center.  Based on these facts, the district court found the patient had adequately alleged she presented at the hospital with an emergency medical condition that was not stabilized prior to her transfer to the medical center.

Robinson v. Children’s Hosp. Boston — Apr. 2016 (Summary)

FLU VACCINE AND RELIGIOUS ACCOMMODATION

Robinson v. Children’s Hosp. Boston
Civil Action No. 14-10263-DJC (D. Mass. Apr. 5, 2016)

The United States District Court for the District of Massachusetts granted a hospital’s motion for summary judgment on wrongful termination claims made by an administrative associate who refused to obtain a flu vaccine, in contravention of hospital policy.  The employee worked in the emergency room and was typically one of the first hospital employees to interact with patients and their family members who arrived in the emergency department.  Pursuant to hospital policy, all employees interacting with patients were required to obtain a flu vaccine, except for employees who obtained an exemption for medical reasons (because the vaccine would cause a serious health risk).

The associate objected to the vaccine on religious grounds and, when she learned that was not a viable exemption under the hospital’s policy, asserted that she was also entitled to a medical exemption due to previous bad reactions to vaccination.  The hospital gave the employee extra time to obtain the vaccination, offered to supply a vaccine made without any pork byproducts (which the employee said violated her religious beliefs), gave her time to gather medical records to support her claim for a medical exemption, and even worked with the employee to find a position where she would not interact with patients.  In the end, the employee was terminated from employment as a result of her refusal to obtain the vaccine and failure to find another position exempt from the vaccination requirement.  Though she was terminated, the hospital treated her separation as a voluntary resignation so that she would be eligible to re-apply for other hospital positions in the future, should a position open up for which she was qualified and wished to apply.

In granting summary judgment in favor of the hospital, the court reasoned that due to the associate’s position, which included close contact with many patients, it would have been an undue hardship for the hospital to accommodate her request not to be vaccinated.  Further, the court noted the many steps the hospital took to bend over backwards to accommodate the employee’s requests for religious accommodation – even though the ultimate outcome for this employee was termination.

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

NEGLIGENT CREDENTIALING

Billeaudeau v. Opelousas Gen. Hosp. Auth.
No. 15-1034 (La. Ct. App. Apr. 6, 2016)

The Court of Appeals of Louisiana found that a patient’s claim for negligent credentialing against a hospital did not constitute a medical malpractice claim and so was not subject to the requirements of the Louisiana Medical Malpractice Act (“MMA”). The court reviewed the matter under the analysis and factors required in Louisiana law to determine if an action comes under the MMA.  The court found from its review of these six factors that the negligent credentialing action was a distinct claim from the MMA.  Additionally, the court noted that while amendments had been proposed three times to include “credentialing” in the definition of “malpractice,” the legislature had rejected the proposal each time.

Talwar v. Staten Island Univ. Hosp. — Mar. 2016 (Summary)

DISCRIMINATION

Talwar v. Staten Island Univ. Hosp.
No. 12-CV-33 (CBA) (E.D.N.Y. Mar. 31, 2016)

The New York City Human Rights Law makes it an unlawful practice for an employer to refuse to hire or employ or to bar or discharge from employment such persons or to discriminate against such persons in compensation or in terms or privileges of employment because of a protected characteristic, such as national origin or gender.  A physician from India was working in the U.S. on an O-1 visa, which is meant to allow those with extraordinary talents to work in the U.S. for a limited time.  The visa is renewable, but is only meant for individuals who plan to work in the U.S. for a short time and then return to their country of origin.  The physician’s supervisor did not want to continue to help the physician renew her visa because he felt she no longer met the qualifications.  Additionally, the physician alleged that her employment agreement was altered based on her gender and that she was retaliated against for her complaints.  The court held that she did not present sufficient evidence to support her claims.

Gonzalez-Trapaga v. Mayaguez Med. Ctr. Dr. Ramon Emeterio Betances, Inc. — Mar. 2016 (Summary)

DISCRIMINATION

Gonzalez-Trapaga v. Mayaguez Med. Ctr. Dr. Ramon Emeterio Betances, Inc.
Civil No. 15-1342 (DRD) (D.P.R. Mar. 30, 2016)

The United States District Court of Puerto Rico granted in part and denied in part motions to dismiss brought by a municipality, a medical center and physicians regarding a physician’s claims under §1983 and the Social Security Act. The physician alleged the defendants violated his due process rights under the Fourteenth Amendment and retaliated against him in violation of the Social Security Act for his bringing to the attention of others the medical center’s failure to implement an on-call duty system, which disproportionately harmed solo practitioners like the physician. With regard to the physician’s §1983 claim, the district court found the municipality did not take direct action because the fact that the municipality leased the hospital facilities to the medical center did not make the municipality responsible for the conduct of private parties. The municipality had no way to force the medical center to take action, and was not involved in a profit-sharing arrangement with the medical center.

With regard to indirect state action, the district court found that the medical center’s conduct of providing health services was not a “public function” that was traditionally the responsibility of the state. Additionally, the court found the municipality in no way attempted to coerce the medical center into taking a certain course of action. Finally, the district court held that, reviewing the totality of the circumstances, the municipality was not “so far insinuated” in a position with the medical center that the municipality became a joint participant in the medical center’s activities. The district court found the municipality had no authority to control or influence the day-to-day affairs of the medical center, which was found to be “the most salient factor.” Additionally, the district court did not find the municipality profited in any way from the medical center’s failure to adopt an on-call duty program.

The district court also dismissed the physician’s private causes of action under the Social Security Act, holding the physician’s alleged causes of action pertained to a different section of the statute that did not reference the requirement to establish an on-call duty program or whistleblower protections.