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.

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.