Essex Ins. Co. v. Galilee Med. Ctr. S.C. — Mar. 2016 (Summary)

INSURANCE

Essex Ins. Co. v. Galilee Med. Ctr. S.C.
Nos. 14-1791, 14-1801 (7th Cir. Mar. 4, 2016)

An insurance provider brought suit against a medical clinic and a physician employed by that clinic seeking to rescind a professional liability policy due to material misrepresentations in the policy application.  The physician and the medical clinic, when filling out applications for insurance, had both indicated that they did not provide weight reduction drugs and did not perform experimental procedures.  Subsequently, in a malpractice claim brought by an injured patient, the physician admitted to treating more than 5,000 patients with mesotherapy to reduce fat areas and contour body shape. Mesotherapy had not been approved by the U.S. Food and Drug Administration for any purpose.

The insurance company denied coverage to both the medical clinic and the physician in this malpractice suit and sought to rescind the policy.  The court held in favor of the insurance company, finding that the clinic and the physician had made misrepresentations on the insurance application by not indicating the types of weight reduction techniques that would be used.  Specifically, the court noted that any reasonable person would have understood from the application that the insurance company wanted to know whether nontraditional weight loss medications and procedures were being used to assess whether to issue a policy or increase premiums.

Long v. Parry — Feb. 2016 (Summary)

DATA BANK REPORTING

Long v. Parry
Case No. 2:12-cv-81 (D. Vt. Feb. 29, 2016)

A physician brought claims of professional negligence, breach of contract, breach of fiduciary duty, and violation of consumer protection laws against the attorney who represented him in litigation with a hospital.  The litigation centered on whether the hospital appropriately reported the physician to the data bank when he resigned from the medical staff.  After several years, the litigation with the hospital was ultimately resolved through mediation, which resulted in a $4 million settlement in favor of the physician. However, a dispute over how to distribute the funds arose once the settlement was paid out. After a tortured retrying of various facts involved in the earlier litigation with the hospital, the court granted the physician’s attorney’s motion for summary judgment on all of the physician’s claims.

Cerciello v. Sebelius — Mar. 2016 (Summary)

DATA BANK REPORTING

Cerciello v. Sebelius
Civil Action No. 13-3249 (E.D. Pa. Mar. 1, 2016)

The United States District Court for the Eastern District of Pennsylvania dismissed a physician’s challenge of a report that was made to the National Practitioner Data Bank by the American Academy of Orthopaedic Surgeons and the American Association of Orthopaedic Surgeons after they suspended his membership. The district court found the physician asserted no identifiable cause of action against the defendants and, even if he did, injunctive relief was inappropriate as he had other adequate remedies under the law.

In re Rockwall Reg’l Hosp., LLC — Mar. 2016 (Summary)

PEER REVIEW PRIVILEGE

In re Rockwall Reg’l Hosp., LLC
No. 05-15-01554-CV (Tex. App. Mar. 2, 2016)

The Court of Appeals of Texas granted a writ of mandamus requested by a hospital to vacate a trial court’s ruling to produce certain documents allegedly protected by medical peer review committee and medical committee privileges. The litigation with a physician-owned hospital arose out of a dispute about the buy-back of a physician’s shares after he ended his relationship with the hospital. Believing that other physicians received more favorable compensation for their shares, the physician sought the production of peer review and credentialing files related to other practitioners.

The trial court applied a routine business records exception in the state peer review statute to the requested documents when it determined that they were not privileged. The Court of Appeals disagreed when it conducted an in-camera review. It reasoned that the documents on their face related to the credentialing or re-credentialing process. Accordingly, the documents were protected by the medical peer review committee privilege and the trial court abused its discretion.

Farha v. Cogent Healthcare of Mich., P.C. — Feb. 2016 (Summary)

DISCRIMINATION AND WHISTLEBLOWER CLAIMS

Farha v. Cogent Healthcare of Mich., P.C.
Case No. 14-14911 (E.D. Mich. Feb. 29, 2016)

The United States District Court for the Eastern District of Michigan granted in part and denied in part a medical practice’s motion for summary judgment on claims made by a former employed hospitalist who sued the group after being terminated. The practice alleged that it fired the physician because she complained about her schedule for two years, was constantly tardy, and that she threatened to refuse to work when scheduled. The practice also noted she provoked a blowup with her supervisor in the middle of the hospital. The physician argued that the termination violated her employment contract, as she was never formally confronted about the complaints that had been raised about her tardiness. She also alleged that her termination violated the Americans with Disabilities Act (“ADA”) and the Family and Medical Leave Act (“FMLA”), alleging her scheduling issues were based on the treatment she was receiving for a detached retina. Finally, she brought a claim under the Michigan Whistleblower Protection Act, alleging that her termination was in retaliation for raising clinical concerns about another physician.

The court determined that it was not appropriate to grant summary judgment on the breach of contract claims, as the parties provided very different accounts of the physician’s employment and whether she was indeed arriving late for work.  The physician’s discrimination claim under the ADA would also go forward, as would her discrimination claims under the FMLA and the state whistleblower statute.  However, the court did grant the practice summary judgment on the ADA accommodation claims, finding the practice had engaged in the interactive process to determine a reasonable accommodation, as well as the physician’s FMLA interference claim.

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.