Aluru v. Anesthesia Consultants, P.C. — Mar. 2016 (Summary)

DISCRIMINATION/RACIAL

Aluru v. Anesthesia Consultants, P.C.
Civil Action No. 13-CV-02939-MSK-NYW (D. Colo. Mar. 31, 2016)

The United States District Court for the District of Colorado granted summary judgment in part and dismissed the remaining claims made by a physician who alleged employment discrimination based on religion, race, gender, and age, as well as various other claims related to conditions of her employment and ultimate termination. The physician is of East Indian descent and is a licensed anesthesiologist. The physician experienced some “performance deficiencies,” and when the group lost a major hospital contract she was terminated in an effort to downsize due to lost revenues. The court reasoned that the physician failed to meet her burden to show that the group’s explanation that she was terminated based on her performance was a pretext for racial discrimination. Also, the physician failed to make a “causal connection” strong enough to demonstrate a prima facie case for her retaliation claims.

Smith v. Northside Hosp., Inc. — Mar. 2016 (Summary)

PUBLIC/GOVERNMENT HOSPITAL

Smith v. Northside Hosp., Inc.
Nos. A15A2303, A15A2304 (Ga. Ct. App. Mar. 30, 2016)

The Court of Appeals of Georgia ruled that a hospital’s records concerning its acquisition of four physician practices were not “public records” subject to the Georgia Open Records Act (“GORA”). This litigation arose from a hospital’s acquisition of four privately owned physician groups.  After learning of these transactions, an attorney sent an open records request to both the state’s Hospital Authority and to the hospital, requesting financial statements and other documents related to the acquisitions. In response to this request, the Authority stated that it did not possess any records or documents that were responsive to his request and that the private, nonprofit hospital was not subject to GORA. The attorney filed a complaint against the hospital, requesting that the trial court compel it to comply with his GORA request.

The court stated that two issues had to be determined:  (1) whether the documents in question were “public records” under GORA; and (2) if so, whether the records contained GORA-exempted trade secrets. The court ruled that the documents were not “public records.” It reasoned that the commercial transactions in question were between private entities, and no evidence was presented that any public official participated in the negotiation. Furthermore, there were no public funds used to finance the acquisitions.

Ford v. Jawaid — Mar. 2016 (Summary)

VICARIOUS LIABILITY

Ford v. Jawaid
No. 22AO4-1506-CT-575 (Ind. Ct. App. Mar. 31, 2016)

The Court of Appeals for Indiana held a trial court improperly granted a hospital summary judgment with regard to a patient’s vicarious liability claim arising from a medical malpractice action against a physician. The court of appeals found the patient’s failure to refute a determination by the medical review panel that the hospital’s conduct did not contribute to the patient’s injuries with expert testimony did not preclude the patient’s vicarious liability claim. Additionally, the court of appeals held the patient was not given adequate notice that his treating physician was an independent contractor because the hospital’s patient registration form merely stated the physicians in the hospital may be independent contractors.

Cerciello v. Sebelius — Mar. 2016 (Summary)

DATA BANK

Cerciello v. Sebelius
Civil Action No. 13-3249 (E.D. Pa. Mar. 31, 2016)

A physician challenged the final decision by the Secretary of Health and Human Services (under the Administrative Procedures Act) to leave the physician’s name as reported to and in the National Practitioner Data Bank (“NPDB”).  The U.S. District Court for the Eastern District of Pennsylvania upheld the Secretary’s decision.

The physician had written an expert report supporting the plaintiff in a malpractice action.  The defendant physician filed a grievance against the physician, Dr. Cerciello, with the American Academy of Orthopedic Surgeons and the American Association of Orthopedic Surgeons (together referred to as “AAOS”).  In reaching its decision, the court found the Secretary’s decision was not arbitrary, capricious, an abuse of discretion, and otherwise in accordance with the law.  The court determined that the Secretary appropriately made her decision based on the findings of the AAOS.  These two organizations had determined that Dr. Cerciello’s reasoning and rationale could detrimentally affect future patient health and welfare by his failure to (i) evaluate the patient based on generally accepted standards, and (ii) have the knowledge of the appropriate standard of care in an expert report. Additionally, the district court determined the Secretary did not violate the physician’s First Amendment right to free speech because the Secretary took no action to restrict the physician’s speech.

Christian v. Kettering Med. Ctr. — Mar. 2016 (Summary)

NEGLIGENCE/STATUTE OF LIMITATIONS

Christian v. Kettering Med. Ctr.
No. 26717 (Ohio Ct. App. Mar. 25, 2016)

The Court of Appeals of Ohio reversed and remanded a lower court’s grant of summary judgment to a medical center.  The summary judgment denied a patient’s negligence claim based on statute of limitation grounds, i.e., that the claim was not timely filed.

This litigation arose from a patient who went to the emergency department of the medical center for symptoms of hemorrhaging. Upon arriving at the hospital, the patient’s friend (and driver) went inside and requested help with getting the patient out of the vehicle. A registered nurse then attempted to transfer the patient from the car to a wheelchair. The attempt was unsuccessful and the patient ended up on the ground, suffering injuries to her Achilles tendon and foot. The patient then filed suit for negligence and negligent supervision and training.

The medical center moved for summary judgment and claimed that the patient’s allegations amounted to a “medical claim,” and that her action was filed beyond the one-year statute of limitations. The trial court’s decision to grant summary judgment was based on its understanding of what constitutes a “medical claim,” and that transporting a patient fell within that defined term. The court of appeals disagreed, stating that the act of transferring the patient from the vehicle to a wheelchair was too attenuated from the actual receipt of a diagnosis and medical treatment to constitute a “medical claim.”

Chanko v. Am. Broad. Cos. Inc. — Mar. 2016 (Summary)

PHYSICIAN-PATIENT CONFIDENTIAL RELATIONSHIP

Chanko v. Am. Broad. Cos. Inc.
2016 N.Y. Slip Op. 02478 (N.Y. Mar. 31, 2016)

The Court of Appeals of New York ruled that a company’s actions in filming a patient’s medical treatment and death in a hospital emergency room were not so extreme and outrageous as to support a cause of action by the patient’s family members for intentional infliction of emotional distress. However, the court ruled that the complaint sufficiently stated a cause of action against the hospital and treating physician for a breach of physician-patient confidentiality.

This litigation arose from the company’s filming of a documentary series about medical trauma and the professionals who attend to patients suffering from such trauma. No one informed the decedent or any of his family members that a camera crew was present and filming; nor was their consent obtained for filming or for the crew’s presence. Sixteen months later, the decedent’s widow watched an episode of the documentary on her television, and was subject to watching and reliving her husband’s death. This was the first time she became aware of the recording of decedent’s medical treatment and death.

The court reasoned that the broadcasting company’s actions were not so extreme and outrageous to satisfy the exceedingly high legal standard required for the tort of intentional infliction of emotional distress. The court stated that this was due to the editing of the footage: which did not include the decedent’s name, his image was blurred, and the episode included less than three minutes devoted to him. But the court also reasoned that the complaint sufficiently alleged that a fiduciary physician-patient relationship existed, and that the duty of confidentiality springing from that relationship was breached when the hospital allowed the film crew to be present during the filming of decedent’s medical treatment and to view such film at a later time, all without consent from the decedent or his family.

N.H. Hosp. Ass’n v. Burwell — Mar. 2016 (Summary)

MEDICAID REIMBURSEMENT

N.H. Hosp. Ass’n v. Burwell
Civil No. 15-cv-460-LM (D.N.H. Mar. 11, 2016)

The District Court for the District of New Hampshire granted hospitals’ and a trade association’s request for a preliminary injunction enjoining the federal government from enforcing the policy contained in FAQs 33 and 34 clarifying the Centers for Medicare & Medicaid Services 2008 rules concerning the audit and enforcement procedure for calculating hospital-specific disproportionate-share hospital (“DSH”) payments in the Medicaid program.  Specifically, the hospitals and trade association petitioned the government to repeal the policies referenced in FAQs 33 and 34 regarding the inclusion of private health insurance and Medicare payments in the calculation of Medicaid shortfall.  The district court agreed that the potential harm cited by the hospitals, the reduction in prospective DHS payments and the recoupment of DHS overpayments made in previous years, were both fairly traceable to the federal government’s enforcement of policy outlined in FAQs 33 and 34 and could both be redressed by the preliminary injunction.  The hospitals provided statements from a number of state officials who indicated they would not act if the federal government was enjoined from enforcing the policies articulated in FAQs 33 and 34.

In evaluating the hospitals’ argument that the policy found in FAQs 33 and 34 violated the Medicaid statute under a Chevron analysis, the district court agreed with the federal government that the Secretary was granted the authority to define the term “cost” found in § 1396r-4(g)(1) and that “cost” could include payments from private insurance and Medicare.  The district court held, however, the government failed to show how interpreting “cost” to include payments from private health insurance or Medicare resulted in a reasonable interpretation of the statute.  Such an interpretation seemed to be directly contrary to the plain language of the statute itself.

The district court also found the hospitals demonstrated they were likely to prevail on the merits based upon their argument that the policy articulated in FAQs 33 and 34 substantively altered the obligations imposed by CMS’s 2008 regulations.  The district court held the Secretary’s interpretation of the statute was plainly erroneous.  The Preamble to the 2008 regulations stated numerous times that nothing in that rule was to change the way that hospital-specific DHS payments were to be calculated.  Furthermore, the protocol referenced in the Preamble that was intended to assist states and auditors calculate hospital-specific DHS payments did not include payments by private health insurance or Medicare as “data elements” to be considered.  As such, the district court found that the policy articulated in FAQs 33 and 34 should have been enacted through the notice and rulemaking process, because that policy substantially altered the formula for calculating hospital-specific DHS payments, was binding upon state Medicaid agencies, and effectively amended the 2008 rule.

The court agreed that the hospitals would suffer irreparable harm if the preliminary injunction was not granted because the state would recoup payments from the hospitals based upon the policy referenced in FAQs 33 and 34 and the hospitals had no means to recover these payments under state or federal law.  The district court also found the balancing of the equities favored granting the hospitals the preliminary injunction.  If the state proceeded to recoup DHS overpayments, a number of not-for-profit hospitals argued they would need to cut services and could fall out of compliance with their bond covenants.  The district court found the hospitals’ hardship outweighed the hardship faced by the Secretary because the federal government would simply need to adjust the amount of money paid to the state if the government were to prevail.  The district court granted the hospitals a preliminary injunction enjoining the government from enforcing the policy articulated in FAQs 33 and 34 and directing the federal government to inform the state Medicaid program that the federal government would not seek to recoup any DHS funds provided to New Hampshire based upon the state’s noncompliance with FAQs 33 and 34.  Additionally, in a separate decision on March 28, 2016, the district court dismissed the federal government’s motion to dismiss the hospitals’ complaint, citing the reasons outlined above.

Saint Alphonsus Med. Ctr. – Nampa, Inc. v. St. Luke’s Health Sys., Ltd. — Mar. 2016 (Summary)

ANTITRUST – ATTORNEY’S FEES

Saint Alphonsus Med. Ctr. – Nampa, Inc. v. St. Luke’s Health Sys., Ltd.
Case No. 1:12-CV-00560-BLW (D. Idaho Mar. 28, 2016)

The District Court for the District of Idaho unwound a merger between a health system and medical group brought by another hospital and the state of Idaho due to the potential anticompetitive effects of the merger.  In a subsequent proceeding to determine whether the plaintiff hospital was entitled to attorney’s fees, the district court rejected the defendant hospital’s argument that 80% of the attorney’s fees sought by the plaintiff hospital were related to matters never ruled upon by the court.  The district court stated it was appropriate to “defer to the winning lawyer’s professional judgment,” and that the “vast majority” of the work performed on behalf of the plaintiff hospital was related to the anticompetitive effects the merger would have on the adult primary care market.  However, the district court reduced the attorney’s fees awarded to the counsel for the plaintiff hospital by 10%, holding that this amount of the work represented time the attorney did not spend working on relevant issues.

The district court rejected the health system’s and medical group’s argument that the attorney for the plaintiff hospital exaggerated the number of hours the attorney spent on the case.  Although the government and private plaintiff were found to spend approximately 229% of the total time spent by the hospital preparing for the case, the district court held that opposing counsel’s billing records were not dispositive on the issue.  Based upon billing information the hospital had submitted in a prior case and the lack of evidence presented by the hospital to support its claim, the district court rejected the hospital’s argument that the reported hours spent by the private plaintiff and government were unreasonable.

The district court also found an award of attorney’s fees for travel expenses to be appropriate.  Although the Idaho Court of Appeals had recently held attorney’s fees would only be awarded as a sanction, the district court found the complicated healthcare antitrust case warranted specialized counsel not available within the jurisdiction.  Additionally, because the district court placed the parties on a fast track discovery schedule, the attorneys often needed to travel extensively to meet tight deadlines.  The district court found the travel costs sought by the private plaintiff’s counsel to be reasonable.  The private plaintiff was also entitled to interest on the attorney’s fees award until paid by the hospital.

Barot v. Susquehanna Physician Servs. — Mar. 2016 (Summary)

PHYSICIAN COMPENSATION

Barot v. Susquehanna Physician Servs.
No. 4:14-CV-00673 (M.D. Pa. Mar. 28, 2016)

The District Court of the Middle District of Pennsylvania denied a motion brought by a gastroenterologist compelling his former employer to produce the meeting minutes of the employer’s physician compensation committee that pertained to other physicians.  The hospital had already provided the gastroenterologist with the meeting minutes where the gastroenterologist’s compensation had been discussed.  However, the hospital refused to release the meeting minutes where the compensation of other physicians was discussed, arguing those minutes were confidential and not relevant to the gastroenterologist’s claim.  The district court agreed, noting that the other physicians did not seek the same amount of compensation as the gastroenterologist, nor did they practice in the same field of medicine.  The district court held the meeting minutes discussing other physicians’ compensation were not relevant to the gastroenterologist’s breach of contract claim.

Brahm v. DHSC, LLC — Mar. 2016 (Summary)

DISCOVERY OF MEDICAL RECORDS

Brahm v. DHSC, LLC
No. 2015CA00165 (Ohio Ct. App. Mar. 21, 2016)

In a medical negligence claim against a hospital and treating physician, the husband of a deceased patient made a number of discovery requests to the hospital, including information concerning the physician’s and the hospital’s catheterization department’s complication rates with percutaneous coronary interventions.  The trial court denied the request and instead ordered the hospital to submit the documents to an in camera review to determine if the documents were “confidential in whole or in part.”  The hospital appealed the trial court’s decision, informing the court it would be unable to provide the complication statistics because that information was only contained in non-discoverable quality assurance and peer review files.  However, the Court of Appeals of Ohio dismissed the appeal, holding that a trial court’s order for a hospital to submit documents for an in camera review by the court did not constitute a final appealable order.  The court of appeals noted the trial court did not order the hospital to release any documents, and the issue of whether or not certain information was privileged was not yet decided.  The dissent disagreed, arguing the disclosure violated the meaning of the statute per se.