Bulwer v. Mount Auburn Hosp. — Feb. 2016 (Summary)

EMPLOYMENT DISCRIMINATION

Bulwer v. Mount Auburn Hosp.
SJC–11875 (Mass. Feb. 29, 2016)

The Supreme Judicial Court of Massachusetts vacated summary judgment for a hospital and remanded proceedings to the trial court with regard to an African-American physician’s employment discrimination and breach of contract claims, holding the physician had presented sufficient evidence to raise a question of fact as to whether a hospital’s decision to not renew his contract was a pretext for racial discrimination and that the hospital breached his residency agreement. The physician, who received his medical training at the University of the West Indies, moved to the states and enrolled in a residency program at Mount Auburn Hospital. Through various rotations, the physician received both highly positive and highly negative reviews. Some physicians indicated he was very competent; another described him as “horrendous.” The hospital informed the physician that it would not renew his contract, because of concerns about his ability to analyze complex information, his inability to “build effective therapeutic relationships,” and his difficulty presenting information to other members of his teams. As required by the residency agreement the physician signed, an ad hoc committee was convened to review the hospital’s decision. However, the resident was only permitted to attend one of the three meetings, and no other resident served on the committee, in violation of the residency agreement. Ultimately, the committee confirmed the decision, and the physician’s contract was not renewed. The physician proceeded to file an employment discrimination suit.

The court found the physician presented sufficient evidence to create a fact question that the hospital’s reported reasons for not renewing his contract were pretextual. First, the court held that the widely different reviews of the physician’s performance could raise a fact question to the jury as to whether or not the contract decision was fueled by racial animus. Second, the court found evidence that the physician was treated differently from other foreign interns as evidence that the hiring decision was pretextual. The physician reported that while other foreign interns experienced similar negative evaluations, they were offered an opportunity to fix their performance. Third, an African-American psychiatrist at the hospital noted instances of more favorable treatment for white physicians, and explained he had seen white supremacist materials in a break room. Fourth, the court found that some of the ambiguous language present in the physician’s evaluation, considered in the context of a racial discrimination claim, could be considered racial animus. Comments such as the “intern was too confident for his own good” and the physician has “no capacity for self-assessment” were considered to have the possibility of creating a fact question for the jury, especially in light of the fact that another employee publicly berated the physician in an “inappropriate” way. Fifth, the hospital’s deviation from the procedure set forth in the residency agreement could also be considered evidence that the hospital’s purported reasons for firing the physician were pretextual.

With regard to the breach of contract claim, the court found the physician presented sufficient evidence to raise a fact question as to whether or not the hospital breached the residency agreement. The hospital’s failure to (1) place a resident on the ad hoc review committee, (2) allow the physician to participate in two days of the hearing, (3) notify the physician of additional concerns the ad hoc committee had regarding his performance, and (4) provide appropriate supervision and resources necessary for the physician to perform his work were all found to create a fact question as to whether the hospital breached its contract with the physician. Furthermore, the court held that the hospital failed to establish the absence of any issue of material fact as to whether the hospital violated its non-discrimination policy by failing to renew the physician’s contract.

Bentley v. Highlands Hosp. Corp. — Feb. 2016 (Summary)

Discovery Dispute (Focuses on Burden of Production)

Bentley v. Highlands Hosp. Corp.
Civil Action No. 7:15-cv-97-ART-EBA (E.D. Ky. Feb. 23, 2016)

The United States District Court for the Eastern District of Kentucky denied in part and granted in part discovery requests made by a patient to a medical center with regard to a physician who allegedly misread her MRI, delaying appropriate care and worsening her condition. The patient filed suit against the physician, the medical center, nurses associated with her care, insurers, and other corporations associated with the medical center, alleging, among other things, medical malpractice, vicarious negligence, negligent hiring, and violations of the Kentucky Consumer Protection statute.

The district court found a number of discovery requests to be too burdensome, overly broad, and not sufficiently relevant to the allegedly negligent reading of the MRI conducted by the physician. These requests included the following: a copy of the “medical staff bylaws, rules, regulations, guidelines, membership requirements or other written documents governing your medical staff,” a request for the medical center’s corporate governance structure and “any organizational chart(s), annual reports, board of director reports, lists of committee and department names,” information concerning any and all contractual agreements among the various defendants in the case, information concerning the accreditation of the medical center, a request for “board minutes, meeting minutes, committee notes or other documentation” regarding any named party, a request for any documentation regarding investigations by an accrediting body, state or federal entity, or other association for the past five years, and a request for all documented protocols and procedures of various departments in the medical center over a three-year period.

The district court also denied the patient’s requests for any complaints or other documents related to investigations or inquiries about the physician’s care with any healthcare-related entity, noting that all the relevant information had been disclosed in another interrogatory request regarding other litigation. Requests for a log of documents that were to be kept in employment files and a log of the physician’s daily activities were denied because the medical center kept no such records. The patient’s request for a list of all advertisements issued by the medical center in the past three years were denied because medical services were not an activity covered by the Kentucky Consumer Protection Act. A request for documentation of policies and procedures for electronic health records was also denied because plaintiff never made an allegation that her electronic health records were improperly accessed. Lastly, the district court denied the patient’s request for the medical center to disclose any reports from the National Practitioner Data Bank regarding the physician, holding that federal law expressly prohibited such a disclosure.

The district court did grant discovery requests for the employment agreement between the medical center and the physician, personnel files of any employee who treated the patient, and the credentialing file of the physician.

U.S. ex rel. Orgnon v. Chang — Feb. 2016 (Summary)

FALSE CLAIMS ACT

U.S. ex rel. Orgnon v. Chang
No. 3:13-cv-144-JAG (E.D. Va. Feb. 19, 2016)

The United States District Court for the Eastern District of Virginia granted a physician group practice’s motion to dismiss with prejudice, but denied the motions to dismiss filed by a physician and a health system, in a False Claims Act suit brought against them. The suit was brought by a medical coder and a physician who alleged that the defendants submitted false claims to federal and state agencies for unnecessary breast exams, which the agencies paid because the physician defendant falsely indicated the patients’ presenting problems. In dismissing the claims against the group practice where the physician defendant previously worked, the court determined that no facts were alleged indicating that the group practice had actual knowledge of the allegedly false billing practices. On the other hand, the court declined to dismiss the claims against the health system, finding that all elements of a False Claims Act claim were alleged, including that the health system had actual knowledge of the fraudulent conduct since they had performed an investigation into the conduct. The court, similarly, concluded that the claims against the physician defendant could proceed.

Blanchard v. Steward Carney Hosp., Inc. — Feb. 2016 (Summary)

DEFAMATION

Blanchard v. Steward Carney Hosp., Inc.
No. 14-P-717 (Mass. App. Ct. Feb. 24, 2016)

The Appeals Court of Massachusetts affirmed in part and reversed in part the lower court’s denial of a motion to dismiss filed by a hospital and other defendants in a suit brought by a number of registered nurses alleging defamation. The hospital was faced with losing its license to operate an inpatient adolescent psychiatric unit due to purported patient abuse and neglect. The hospital’s president made statements in newspapers and in internal e-mails regarding concerns about patient safety and the termination of a number of employees, including the nurses, because of these concerns. The hospital argued that the nurses’ suit should be dismissed because of the state’s “anti-SLAPP” statute, which protects statements made as a part of petitioning activity. The court found that the president’s statements made to the newspaper were protected under the “anti-SLAPP” statute because they were tied to petitioning activity in that they were made in pursuit of the maintenance of the license to operate the psychiatric unit and were not devoid of factual support. However, the court determined that the internal e-mail was not protected by the “anti-SLAPP” statute because there was no indication that the e-mail was provided to state regulators or that the regulators were told about the e-mail. Furthermore, “[t]hat the e-mail may have been part of an over-all strategy to address the conditions in the unit in the hope of influencing the regulators is not sufficient to qualify as petitioning activity.”

Igwe v. Decatur Mem’l Hosp. — Feb. 2016 (Summary)

RACE AND GENDER DISCRIMINATION

Igwe v. Decatur Mem’l Hosp.
No. 4-15-0153 (Ill. App. Ct. Feb. 19, 2016)

The Illinois Court of Appeals affirmed the trial court’s dismissal of a nurse anesthetist student’s race and gender discrimination claims, but reversed the trial court’s dismissal of the student’s retaliation claims in a suit the student brought against a hospital where the clinical portion of his education program was conducted. The student was dismissed from the program after he brought a metal endotracheal tube into an MRI suite, jeopardizing the safety of a patient. The student filed suit under state law claiming his dismissal was the result of discrimination based on his race and gender. He also alleged that he was retaliated against because he opposed what he perceived to be unlawful discrimination.  The court, in affirming the lower court’s dismissal of the student’s discrimination claim, concluded that the hospital was not a “place of public accommodation” according to Illinois’ anti-discrimination law. Per the court, “while a hospital is specifically listed in the [law] as a place of public accommodation, it is listed in the context of a patient/medical-provider relationship, not as a place where educational services, such as those involved here, are provided to select individuals.” When reversing the trial court’s dismissal of the student’s retaliation claims, the court of appeals held that a retaliation claim could move forward even though the underlying claim for discrimination was dismissed.

Barnum v. Ohio State Univ. Med. Ctr. — Feb. 2016 (Summary)

RETALIATION AND THE ADA

Barnum v. Ohio State Univ. Med. Ctr.
No. 15-3450 (6th Cir. Feb. 19, 2016)

The United States Court of Appeals for the Sixth Circuit affirmed a district court’s grant of summary judgment in favor of a medical center with regard to a CRNA’s claims that she was retaliated against in violation of the First Amendment and discriminated against in violation of the Americans with Disabilities Act (“ADA”). After exhibiting concerning work-related behavior, including expressing suicidal ideation to coworkers, the medical center required that the CRNA undergo a psychiatric evaluation. The CRNA was placed on paid leave and was told that she could return to work after clearing a fitness for duty examination by a psychiatrist of her choosing if the psychiatrist discussed his findings with the chief of the anesthesiology department. Eventually, the CRNA’s paid leave expired and she was moved to unpaid leave. The CRNA was ultimately reinstated after satisfying the conditions related to the psychiatric evaluation.

Nonetheless, the CRNA sued the medical center claiming that it retaliated against her in violation of the First Amendment for protected speech regarding privacy practices. The CRNA filed a complaint with the U.S. Department of Health and Human Services (“HHS”), alleging that the medical center violated federal standards by not restricting her protected health information from being shared and used by her husband. The court of appeals rejected this claim, concluding that the retaliation of which the CRNA complained, including placing her on leave, all occurred before she lodged the complaint with HHS. The court of appeals also rejected the CRNA’s claim that the medical center violated the ADA by requiring her to submit to a medical examination. The court of appeals noted that the inability to perform routine tasks and expression of suicidal thoughts “constitute[d] significant evidence that would cause a reasonable person to inquire whether the employee is still capable of performing her job.” Accordingly, the medical examination requirement was held not to have violated the ADA.

Estate of Ray v. Forgy — Feb. 2016 (Summary)

PEER REVIEW PRIVILEGE

Estate of Ray v. Forgy
No. COA15-236 (N.C. Ct. App. Feb. 16, 2016)

The Court of Appeals of North Carolina reversed an order from the trial court that ordered a hospital to produce documents in a medical malpractice suit. The family of the patient sought documents regarding the physician’s malpractice insurance coverage history and the physician’s recredentialing history, among other things.

On appeal, the hospital argued that all of the documents were protected from discovery by the state peer review statutes. The court agreed stating that the requested documents contained records and materials produced by the hospital’s medical review committees and were privileged. The court also reasoned that the medical review committees’ materials survived a merger between the original hospital, where the patient received care, and the health system that currently owns the hospital. The medical review committees were properly maintained by the new owner in accordance with the medical staff bylaws. Therefore, the medical review committees met the requirements of the peer review statute and the documents in question were privileged.

Intermountain Stroke Ctr., Inc. v. Intermountain Health Care, Inc. — Feb. 2016 (Summary)

FALSE ADVERTISING

Intermountain Stroke Ctr., Inc. v. Intermountain Health Care, Inc.
No.14-4045 (10th Cir. Feb. 9, 2016)

The 10^th Circuit Court of Appeals upheld a district court ruling which dismissed a claim under the federal Lanham Act and remanded a state law claim to state court.

A neurologist specializing in stroke care and her employer, a stroke center (“plaintiffs”), alleged violations of the state’s Truth In Advertising Act (“TIAA”) and claims of unfair competition through false advertising under the federal Lanham Act against a parent corporation that operated a network of hospitals, and two subsidiaries of the parent, one which operated medical facilities and the other which operated a health maintenance organization (“defendants”). The plaintiffs claimed that the defendants misled prospective customers regarding the nature and quality of defendants’ services, causing the stroke center to close its doors. The district court dismissed the Lanham Act claim and remanded the TIAA claim to state court and the plaintiffs appealed to the 10^th Circuit Court of Appeals.

Under the Lanham Act, a plaintiff must plausibly allege: (1) that a defendant made material false or misleading representations of fact in connection with the commercial advertising or promotion of its product; (2) in commerce; (3) that are either likely to cause confusion or mistake as to the origin, association or approval of the product with or by another or the characteristics of the goods or services; and (4) injure the plaintiff.

The district court ruled that defendants’ general marketing statements, such as those pertaining to “best medical practices,” were not statements of fact but were mere “puffery” and thus not in violation of the Lanham Act.

Also, the district court found that three specific statements alleged by the plaintiffs to be in violation of the Lanham Act were not actionable because the statements were not false or misleading under the Act. In the first specific statement, the plaintiffs attacked the defendants’ website alleging that it misled consumers in the way the website listed physicians and that consumers could be deceived in thinking more specialists worked for the facility than actually did. The district court held that the statement was true and not misleading. The second specific statement was that the defendants did not adhere to their internal ethics code. The court held that the ability or inability to adhere to an ethics code is not relevant to a false advertising claim. The third specific statement was that a stroke pamphlet published by the defendants had incorrect information regarding stroke care. The court held that the language is not actionable because it is unrelated to the nature, characteristics, or qualities of the provider’s services. Therefore, the court of appeals upheld the findings of the district court.

U.S. ex rel. Schramm v. Fox Valley Physical Servs. — Feb. 2016 (Summary)

FALSE CLAIMS ACT

U.S. ex rel. Schramm v. Fox Valley Physical Servs.
No. 12C8262 (N.D. Ill. Feb. 11, 2016)

The United States District Court for the Northern District of Illinois denied a motion to dismiss allegations of violations of the False Claims Act (“FCA”), payment under mistake of fact, and unjust enrichment against various defendants.

A physician’s assistant was employed by a health care entity. She alleged facts against the entity, including that she was not given her own password to log into the electronic medical record system to enter Medicare bills. She was told to log in using a physician’s login identification and enter information falsely under the physician’s name so that the service would be billed at the physician rate instead of the physician assistant rate of billing. She also alleged that slips of paper were used to record patient treatment records instead of entering the information directly into patient files. This was done so that the services could be billed under a different individual’s name who was CMS authorized so that the provider could receive payment from CMS. She also claimed that bills were made for services that were never rendered. The court held that her amended complaint described above contained sufficient information and that the “who, what, when, and how” were explicitly described and therefore the motion to dismiss was denied.

W. Va. ex rel. Wheeling Hosp., Inc. v. Wilson — Feb. 2016 (Summary)

PEER REVIEW PRIVILEGE

W. Va. ex rel. Wheeling Hosp., Inc. v. Wilson
No. 15-0558 (W. Va. Feb. 9, 2016)

The Supreme Court of Appeals of West Virginia granted a writ of prohibition to preclude the enforcement of a discovery order issued by a lower court in a medical malpractice and negligent credentialing suit by a patient who suffered bilateral vocal cord paralysis after experiencing complications from a thyroidectomy.  During discovery, the patient requested access to her doctor’s application materials for the renewal of his staff privileges. The lower court granted this request, reasoning that the documents fell under the “original source” exception to the peer review privilege because they “were not created solely for the hospital’s [credentialing] committee but are otherwise available from original sources extraneous to that committee.”

The Supreme Court of Appeals disagreed with the lower court, stating that the requested records were created specifically for and exclusively used by a peer review committee, and therefore shielded by the peer review statute. The court also reasoned that peer review protection does not stem from a document being reviewed by a peer review committee. (Notably, the Illinois Supreme Court recently reached the opposite conclusion, in Klaine v. S. Ill. Hosp. Servs., No. 118217 (Ill. Jan. 22, 2016) with respect to the discoverability of documents considered by credentials committees.)