Russo v. Brattleboro Retreat — Jan. 2016 (Summary)

WRONGFUL DEATH

Russo v. Brattleboro Retreat
Case No. 5:15-cv-55 (D. Vt. Jan. 25, 2016)

The United States District Court for the District of Vermont denied a motion to compel production of communications between a mental health facility and The Joint Commission and an HMO in which it was a participating provider about the suicide of a patient at the facility. The case involved a wrongful-death action that arose out of the suicide. The patient argued that the materials sought were not privileged because they were not created as part of a formal review process, and that they were not a “product” of any peer review committee. After an in-chambers review, the court concluded that none of the materials in those records were “original sources,” and were protected by the Vermont peer review protection act.

Fewins v. CHS/Community Health Sys., Inc. — Jan. 2016 (Summary)

EMTALA

Fewins v. CHS/Community Health Sys., Inc.
Civil Action No. 3:14-cv-0898-M (N.D. Tex. Jan. 25, 2016)

The United States District Court for the Northern District of Texas granted summary judgment in favor of a medical center with regard to EMTALA claims filed on behalf of a six-year-old child. The child was brought to the emergency room of the medical center by his mother because of a pain in his leg from a fall that had occurred six days earlier. The nursing staff performed a triage assessment and measured the child’s vital signs. The child rated his pain as a 10 on the Wong-Baker face scale. An emergency physician examined the child and noted contusions on both of his hips. The physician ordered lab tests and a CT scan, which revealed an elevated white blood cell count and a hematoma/seroma on his right hip. After receiving these results, the physician discharged the child with instructions to take medication and to follow up with his pediatrician. The next day, the child was taken to an emergency room of a different hospital with a fever and swelling and tenderness in his leg. Test results revealed the child was suffering from a bacterial infection, which was later diagnosed as MRSA. The child was hospitalized for a little over a month and underwent several surgeries.

The child’s parent brought on EMTALA action against the original medical center, claiming the medical center did not provide the child with an appropriate screening examination and that the child was not stabilized prior to being discharged from the medical center. The patient also argued the medical center nurses had been negligent with regard to the child’s treatment. The district court granted summary judgment in favor of the hospital with regard to the screening claim, holding that the patient failed to provide evidence that individuals who were perceived to have the same medical condition as the child received disparate treatment. The three individual cases presented by the child’s representatives involved an elderly man with a history of severe medical conditions, a 59-year-old man taking at least ten medications at the time he was admitted to the hospital, and an elderly woman suffering from dementia. Additionally, the district court rejected the patient’s argument that the medical center failed to follow its own pain management policy, noting the patient had not established the pain management policy was an emergency room screening policy which served the basis of an EMTALA claim.

With regard to the patient’s stabilization claim, the district court granted summary judgment in favor of the medical center, holding that, because the physician did not perceive the child as having an emergency medical condition, the medical center had no duty to stabilize the child. The physician diagnosed the child with a contusion and noted in the medical record that the child seemed to “play up” the severity of the pain depending on who was in the room, which was corroborated by the child’s mother. Additionally, the district court granted summary judgment with respect to medical negligence claims brought against the nurses in the medical center, holding that the nurses’ actions in treating the child did not amount to gross negligence under Texas law.

Klaine v. S. Ill. Hosp. Servs. — Jan. 2016 (Summary)

NEGLIGENT CREDENTIALING

Klaine v. S. Ill. Hosp. Servs.
No. 118217 (Ill. Jan. 22, 2016)

The Supreme Court of Illinois affirmed a decision of the appellate court holding a physician’s three applications for staff privileges at a hospital were not privileged under section 15(h) of the Illinois Health Care Professionals Credentials Data Collection Act and were therefore discoverable by individuals suing the hospital for the negligent credentialing of the physician. The supreme court agreed with the appellate court that although section 15(h) stated that credentials data collected by hospitals was “confidential,” confidentiality, admissibility and discoverability are distinct concepts. The supreme court further explained that when enacting the Credentials Act, the legislature did not explicitly create a privilege for these credentialing materials; it only provided a uniform process through which physicians could apply for staff privileges at hospitals. Additionally, because the three applications for staff privileges were the only materials considered by the credentialing committee in determining whether to grant the physician privileges, the supreme court found these materials relevant to the negligent credentialing cause of action, and opined that it was unlikely the plaintiffs could resolve their claim without access to these documents.

The supreme court also rejected the hospital’s argument that any references to reports to the National Practitioner Data Bank (“NPDB”) should be redacted. The court stated that hospitals were not only permitted to request disclosures from the NPDB, they were required to do so when a physician applies for clinical privileges or a position on the medical staff. Additionally, the supreme court noted the Health Care Quality Improvement Act (HCQIA) permitted attorneys to request information from the NPDB with regard to a physician who is also named as a defendant in a medical malpractice suit against a hospital. Reading the HCQIA and its underlying regulations together, the supreme court held that while reports to the NPDB may be confidential, they were not privileged and therefore did not need to be redacted.

Finally, the supreme court rejected the hospital’s claim that information concerning medical care delivered by the physician to patients who were not a party to the present lawsuit should be redacted pursuant to the physician-patient privilege of Illinois. The supreme court began its analysis by noting that the physician-patient privilege argument was not made at either the appellate or trial court level, and was forfeited as a result. Nevertheless, the supreme court held that, even if the argument was not forfeited, the information would not need to be redacted because personally identifiable information had already been redacted by order of the appellate court. The only information that remained was a list of the surgical procedures and patient care delivered by the physician.

Delibertis v. Pottstown Hosp. Co. LLC — Jan. 2016 (Summary)

EMTALA

Delibertis v. Pottstown Hosp. Co. LLC
Civil Action No. 14-6971 (E.D. Pa. Jan. 21, 2016)

The District Court of the Eastern District of Pennsylvania granted in part and denied in part a hospital’s motion for summary judgment on a patient’s EMTALA claim. The patient was brought to the emergency room of the hospital by his wife who claimed the patient was suffering from symptoms associated with a stroke. A physician administered several tests that indicated the patient did not suffer from a stroke, but wrote in the patient’s record that the patient’s condition presented a “certified medical emergency.” The physician who administered the examination consulted with another physician, and the patient was released with instruction to follow up with the consulting physician. Three hours later, the patient returned to the ER and was found to have suffered a stroke by a different physician.

The district court denied the hospital’s motion for summary judgment with regard to the patient’s “failure to screen” EMTALA claim, holding that a genuine issue of material fact remained because the hospital only presented evidence that the physician complied with his own procedures for possible stroke patients, and did not present any evidence of the hospital’s internal policies and procedures for stroke patients. However, the district court granted the hospital’s motion for summary judgment with respect to the patient’s “failure to stabilize claim.” The court held that no genuine issue of material fact existed as to whether the patient was stabilized at the time of his departure because the examining physician’s tests revealed the patient had not suffered from a stroke, the patient exhibited normal speech and blood pressure, and notations in the medical record indicated the patient was feeling “well” and “verbaliz[ed] an understanding and willingness” to comply with the discharge plans.

The district court also granted the consulting physician’s motion for summary judgment with respect to the patient’s medical negligence claim, holding that, because the patient’s expert report focused on the actions and alleged negligence of the examining physician and not the consulting physician, the patient had failed to establish a prima facie case of medical negligence.

Searls v. Johns Hopkins Hosp. — Jan. 2016 (Summary)

ADA/DISCRIMINATION

Searls v. Johns Hopkins Hosp.
Civil No. CCB-14-2983 (D. Md. Jan. 21, 2016)

The United States District Court for the District of Maryland granted a deaf nurse’s motions to strike and for partial summary judgment against a hospital with regard to the nurse’s claim of discrimination under the ADA. The nurse completed two clinical rotations in a unit of the hospital with the aid of an ASL interpreter. She then applied for a nursing position responsible for coordinating care, which she accepted. The job description for the position required listening and communication skills, so the nurse requested an ASL interpreter as an accommodation. The ADA compliance team for the hospital estimated that providing the nurse with two ASL interpreters would cost $240,000 a year, while the unit’s budget was $3.4 million per year. After the requested accommodation was forwarded to and discussed by nursing administrators, the nurse manager informed the ADA compliance team that the unit’s threshold budget for interpreter costs was “zero” because the interpreter would be an ongoing operating cost that was not budgeted or funded. Additionally, the nurse manager explained they would need to layoff four nurses to fund the interpreter because the unit “cannot incur any new expenses,” and that these layoffs would amount to an “enormous safety risk.” Although the nurse indicated she was only seeking a single ASL interpreter, the ADA compliance team along with the nurse manager concluded the cost was prohibitive. The nurse manager and a member of the ADA compliance team rescinded the nurse’s offer via letter. A few months later, the nurse found employment with another hospital that fulfilled her request for an ASL interpreter.

The district court disagreed with the hospital that the nurse’s accommodation was not “reasonable.” The court found the nurse would retain responsibility over a substantial portion of the duties of her job because she would formulate her own questions to ask, voice her own responses with regard to patient care, and would act on her own in response to alarms. Additionally, the court found that the nurse’s deafness did not render her unable to perform essential job functions within the meaning of the ADA; the nurse would need to rely upon her own medical judgment and training when providing care and responding to alarms after receiving a visual cue from the ASL interpreter.

The district court granted summary judgment in favor of the nurse with respect to the hospital’s undue hardship defense, holding that while the budget of the unit was relevant, the hospital had failed to address how hiring an interpreter at the cost of “0.007%” of the hospital’s budget could impose an undue hardship on the hospital. The district court said that the employer’s budget with respect to accommodations was “irrelevant,” and the fact that the interpreter would cost twice as much as the nurse’s salary did not necessarily make the accommodation an undue hardship. Furthermore, the court found the ability of the nurse’s current employer to supply her with an ASL interpreter to be “particularly relevant.”

The district court disagreed with the hospital that hiring the nurse would be a direct threat. First, the court noted the hospital’s concerns for patient safety were raised only after the nurse filed the present lawsuit, and were therefore “suggestive of pretext.” Additionally, the court rejected the hospital’s direct threat defense because the hospital’s only explanation in rescinding the nurse’s employment offer was because of the cost of the ASL interpreter, and the hospital failed to base its determination that the nurse would be a risk to patient safety on an individualized assessment of the nurse’s ability to safely perform the functions of her job.

The district court also granted the nurse’s motion to strike the testimony of three of the hospital’s experts, holding that, because none of the individuals had experience with deaf health care professionals or deafness, they could not reliably testify as to how the nurse would have performed the essential functions of her job.

Colon Health Ctrs. of Am., LLC v. Hazel — Jan. 2016 (Summary)

CERTIFICATE OF NEED

Colon Health Ctrs. of Am., LLC v. Hazel
No. 14-2283 (4th Cir. Jan. 21, 2016)

Virginia requires health care providers to obtain a certificate of need (“CON”) to establish or expand medical facilities and services in the state. Two out-of-state medical imaging providers brought an action against Virginia government officials claiming that this requirement discriminated against out-of-state providers in violation of the Fourteenth Amendment and the Commerce Clause. The district court held that the requirement was not discriminatory and that it did not place an undue burden on interstate commerce. The Fourth Circuit court agreed, noting that the providers would have needed to prove that the CON requirement, if enforced, would negatively impact interstate commerce to a greater degree than intrastate commerce. The court held that the CON law equally affects in state and out of state potential medical providers.

Evanston Ins. Co. v. Agape Senior Primary Care, Inc. — Jan. 2016 (Summary)

PROFESSIONAL LIABILITY INSURANCE – CREDENTIALS FRAUD

Evanston Ins. Co. v. Agape Senior Primary Care, Inc.
No. 14-2268 (4th Cir. Jan. 15, 2016)

A physician used a false identity, including the credentials of a physician friend who was out of the country, to gain employment with a group that employs physicians and nurse practitioners to provide services to nursing homes and assisted living facilities. The group and the imposter were insured under the same professional liability policy, but when the insurer learned of the identity theft, it attempted to rescind coverage for the imposter and the physician on the basis that the misrepresentations made by the imposter on the insurance application was sufficient to rescind coverage for everyone covered by the policy, including the entire group. The federal appellate court upheld the lower court’s determination that principles of equity demand that coverage for the group and other co-insureds should remain intact, as they had engaged in no wrongdoing, though coverage for the imposter could be rescinded.

Wharton Physician Servs. v. Signature Gulf Coast Hosp., L.P. — Jan. 2016 (Summary)

NON-COMPETE CLAUSES

Wharton Physician Servs. v. Signature Gulf Coast Hosp., L.P.
No. 13-14-00437-CV (Tex. App. Jan. 14, 2016)

The Court of Appeals of Texas affirmed summary judgment in favor of a hospital in a lawsuit brought by the hospital’s former hospitalist group. The group alleged that the hospital violated the non-compete clause in the parties’ contract when its new hospitalist group hired two physicians who were previously employed by the first hospitalist group within six months of when the hospital terminated the group’s contract. The group sought liquidated damages pursuant to the contract’s terms, which the hospital refused to pay. Finding in favor of the hospital, the court held that while the parties’ contract was enforceable generally, the non-compete clause was unenforceable because there was no additional consideration for that clause given outside the main contract for hospitalist services. In other words, the fees to be paid under the contract were all attributable to hospitalist services provided – and no additional amounts could be attributed to the non-compete itself. Further, the court held that even if the non-compete was enforceable, there was no breach of that provision because the hospital did not employ the physicians – its new hospitalist group did. The court noted that the hospital could not have bound a non-signatory party, such as the new hospitalist group, to a contract term. The mere fact that the new hospitalist group had a contract to provide services at the hospital did not make it an affiliated organization that would be bound by a non-compete in one of the hospital’s contracts.

Helfer v. Associated Anesthesiologists of Springfield, LTD — Jan. 2016 (Summary)

RETALIATORY DISCHARGE – WHISTLEBLOWER

Helfer v. Associated Anesthesiologists of Springfield, LTD
No. 10-3076 (C.D. Ill. Jan. 14, 2016)

The United States District Court for the Central District of Illinois denied an anesthesia group’s motion for summary judgment in a lawsuit brought by one of its former anesthesiologists, who alleged he was terminated in retaliation for raising concerns about the anesthesia group to Medicare.

While the anesthesiologist worked with the group for almost 20 years, according to the court opinion, the tension between the anesthesiologist and the other members of the group came to a head in 2008, a year or so prior to the termination. The partners believed the anesthesiologist to be isolated from the group and difficult to work with and were concerned that he used more narcotics during surgeries than other members of the group. But, most of all, the partners were displeased that the anesthesiologist had, on two occasions, contacted third parties regarding concerns he had with the group’s business practices. First, he contacted the IRS about the group’s health savings account. In the second instance, he contacted the CEO of the hospital where the group provided services to discuss the way the group was billing epidurals. In both cases, the anesthesiologist’s contact resulted in the entities auditing the group. Following these events, the group’s executive committee met with the anesthesiologist and told him that if he had a concern, he should bring it up to the group rather than discuss it with third parties, unless he had the group’s authorization. The partners reiterated this message to the anesthesiologist at their next shareholder meeting.

Just three months later, concerned about the billing of epidurals to Medicare, the anesthesiologist brought his concerns to the president of the group. The group began looking into the anesthesiologist’s concerns. When the concerns were not resolved to the anesthesiologist’s satisfaction, within about a month, the anesthesiologist went ahead and e-mailed CMS directly about his concerns. After learning that the anesthesiologist had once again made unauthorized contact with a third party regarding the group’s billing practices, the decision was made to terminate his employment. Members of the group later testified that the anesthesiologist’s contact with Medicare was “part of a continued problem” of the anesthesiologist “repeatedly ignoring [the group’s] policy of bringing concerns to the group rather than contacting third parties.”

The anesthesiologist filed a qui tam action against the group, alleging violations of the False Claims Act, retaliatory discharge, and other causes of action. He later added the hospital as a defendant. After some litigation and procedural posturing, the lawsuit was boiled down to a claim by the anesthesiologist against the group, alleging retaliatory discharge in violation of the False Claims Act. The group filed a motion for summary judgment, alleging that the anesthesiologist had not presented sufficient information for a reasonable jury to find that he was terminated because of his contact with Medicare (the only actions of the physician that would have been protected by the False Claims Act).

In denying summary judgment, the court noted that a number of facts remained in contention which could allow a reasonable jury to find that the anesthesiologist’s termination was caused by his contact with CMS: that a motion to terminate was prepared and circulated to the partners just after the anesthesiologist contacted Medicare (even though a number of partners testified that they would have been willing to sign such a petition had it been brought at an earlier date); that no evidence existed to indicate the group was considering termination prior to the anesthesiologist’s contact with CMS; and, finally, that an e-mail by one of the partners specifically indicated that the partner was displeased with the anesthesiologist’s contact with Medicare and the fact that it could cause another audit and his suggestion that the anesthesiologist should be terminated.

Pac. Kidney & Hypertension, LLC v. Kassakian — Jan. 2016 (Summary)

NON-COMPETE ENFORCEMENT

Pac. Kidney & Hypertension, LLC v. Kassakian
Case No. 3:16-cv-0025-SI (D. Or. Jan. 19, 2016)

The United States District Court for the District of Oregon granted in part and denied in part a motion for a temporary restraining order (“TRO”) in a lawsuit alleging that a formerly employed nephrologist was violating the non-compete from her employment agreement by accepting employment with a direct competitor within the restricted area. While the court granted the TRO in part, thereby preventing the nephrologist from soliciting patients of her former employer, it refused to grant the TRO in full – noting that the public interest was a significant factor that had to be considered in this case. The court observed that nephrologists were in great demand in the geographic area and because there were not enough nephrologists to meet current demand, the nephrologist’s former patients would have to endure months-long waits to be seen by new nephrologists. The court also noted that the nephrologist’s new employer already had a long list of patients to be seen by the nephrologist and would not be relying on the nephrologist to build a patient base (in other words, there is no reason to believe the nephrologist would be soliciting the former practice’s patients).