Liu v. Cook Cnty. — Mar. 2016 (Summary)

DISCRIMINATION AND RETALIATION

Liu v. Cook Cnty.
No. 14-1775 (7th Cir. Mar. 15, 2016)

The United States Court of Appeals for the Seventh Circuit affirmed a lower court’s grant of summary judgment for a government hospital on claims of Title VII and section 1981 discrimination and retaliation brought by a former employed physician of Chinese descent.  The court concluded that defendants honestly believed that the employee posed a danger to patients and that reprimands were not related to her membership in any protected class.  The hospital took the challenged action based on the surgeon’s repeated refusal to operate on patients with appendicitis, which she allegedly refused to do so over several years.

Nahas v. Shore Med. Ctr. — Mar. 2016 (Summary)

HCQIA

Nahas v. Shore Med. Ctr.
Civil No. 13-6537 (RBK/AMD) (D.N.J. Mar. 15, 2016)

The United States District Court for the District of New Jersey denied a hospital’s motion to dismiss, finding that it had subject matter jurisdiction and that a physician sufficiently pleaded that the hospital acted out of malice rather than in the furtherance of health care sufficient to overcome the hospital’s presumptive immunity under HCQIA.  However, the court allowed the hospital to file a motion for summary judgment on the HCQIA issue based on an extensive record of disputes with the physician for over 10 years.  The court also allowed the physician to file an amended complaint alleging violation of New Jersey’s anti-discrimination statute.

Parkview Hosp. v. Frost — Mar. 2016 (Summary)

DISCOVERY AND ADMISSIBILITY

Parkview Hosp. v. Frost
No. 02A03-1507-PL-959 (Ind. Ct. App. Mar. 14, 2016)

The Indiana Court of Appeals held that evidence of discounts provided to patients who either have private health insurance or are covered by government healthcare reimbursement programs is relevant and admissible evidence regarding the determination of reasonable charges under the Indiana Hospital Lien Act (“Act”).  Under the Act, a patient may contest the lien or the reasonableness of the charges by filing a motion to quash or reduce the claim in the court where the lien was perfected.  The court upheld a lower court order denying the hospital summary judgment.  The hospital had argued that because the patient agreed to be responsible for full charges as stated on the hospital’s charge-master, the patient had agreed that those charges were reasonable.

Ritchie v. Cmty. Howard Reg’l Health, Inc. — Mar. 2016 (Summary)

PRECAUTIONARY SUSPENSION

Ritchie v. Cmty. Howard Reg’l Health, Inc.
No. 34A02-1505-PL-385 (Ind. Ct. App. Mar. 10, 2016)

A cardiologist whose privileges were precautionarily suspended was denied preliminary injunctive relief.  The Indiana Court of Appeals upheld the trial court’s denial of the injunction, based on the Indiana Peer Review Act which prohibits peer review actions to be enjoined unless they were taken with malice and also because the cardiologist failed to exhaust administrative remedies under the medical staff bylaws.

Murfin v. St. Mary’s Hosp. — Mar. 2016 (Summary)

HCQIA AND STATE IMMUNITY

Murfin v. St. Mary’s Hosp.
No. 5-14-0136 (Ill. App. Ct. Mar. 8, 2016)

A physician’s staff membership and clinical privileges were revoked by a hospital board following two incidents involving allegedly disruptive conduct.  The trial court enjoined the revocation, finding that the physician had been terminated without a hearing.  The trial court also granted summary judgment in favor of the hospital on the issue of damages, based on federal (HCQIA) and state immunity.  The court of appeals reversed the injunction and upheld the summary judgment in favor of the hospital on the immunity issue, holding that the undisputed facts in the record show that the hospital board’s decision to revoke the plaintiff’s privileges was made in compliance with section 10.4 of the Illinois Hospital Licensing Act and the applicable provisions in the bylaws and credentials manual, and that there was nothing in the record to demonstrate that the hospital engaged in willful and wanton conduct in making or reviewing that decision.

Bastidas v. Good Samaritan Hosp. LP — Mar. 2016 (Summary)

RETALIATION

Bastidas v. Good Samaritan Hosp. LP
Case No. 13-cv-04388-SI (N.D. Cal. Mar. 15, 2016)

The United States District Court for the Northern District of California granted in part and denied in part a hospital’s motion to dismiss a retaliation claim made by a surgeon.  This litigation arose following a complicated surgery at a hospital that resulted in the death of a patient and the suspension of the surgeon’s privileges.

After peer review proceedings, the Board of Trustees issued a final report on the matter, recommending that the surgeon be proctored for a number of surgeries prior to regaining his surgical privileges.  The surgeon asserted retaliation claims across three separate complaints, and this specific case dealt with the fourth amended complaint.

The surgeon argued that he was subject to retaliation by the hospital in four separate instances: a failure to update an entry in the National Practitioner Data Bank, a continued delay in allowing the surgeon to satisfy proctoring requirements, the disqualification of the surgeon from chief of surgery election, and the removal of the surgeon as chair of a cancer committee.  The court reasoned that the surgeon failed to plead facts that demonstrated that these instances constituted retaliation.

Moore v. Warr Acres Nursing Ctr., LLC — Mar. 2016 (Summary)

EMPLOYMENT

Moore v. Warr Acres Nursing Ctr., LLC
No. 113098 (Okla. Mar. 8, 2016)

The Supreme Court of Oklahoma reversed a grant of summary judgment in favor of a nursing center, holding that Oklahoma public policy prohibited the termination of an employee who missed several days of work because he was infected with influenza.  The nurse, who had been subject to frequent disciplinary complaints (including disregarding and failing to follow a supervisor’s instructions, spreading rumors, failing to complete tasks, and rebellious behavior), was sent home by the director of nursing after he vomited at work.  He followed the nursing center’s handbook by reporting his illness and obtaining a note from his physician that he stay home from work for three days.  When the nurse returned to work, he found he had been terminated.

A majority of the Supreme Court of Oklahoma held that, even though the nurse was an at-will employee, summary judgment was inappropriate because Oklahoma health codes and federal regulation articulated a public policy against spreading communicable diseases in the workplace.  The court pointed out that the employee’s history appears to show a pattern of constantly moving from one job to the next.  “These facts may reflect that the termination was neither pretextual, post hoc rationalization, nor a violation of public policy.  Nevertheless, that issue is for the jury to decide.”

Estate of Doyle v. Covenant Med. Ctr., Inc. — Mar. 2016 (Summary)

MALPRACTICE CLAIM/RETAINED SPONGE AND PEER REVIEW PRIVILEGE

Estate of Doyle v. Covenant Med. Ctr., Inc.
Docket No. 324337 (Mich. Ct. App. Mar. 3, 2016)

Full Opinion

Concurring-in-part and Dissenting-in-part Opinion

The Court of Appeals of Michigan reversed in part and affirmed in part a trial court’s ruling that a patient’s estate was time-barred from bringing a claim for medical malpractice.  This litigation arose from cardiac bypass surgery that was performed in 2003.  Unknown to the patient, a surgical sponge was left inside the surgical site and lodged against his heart.  For close to eight years, the patient suffered, without diagnosis, from unexplained shortness of breath, fatigue, sweating and pain.  Finally, when the patient underwent a sternotomy, the missing sponge, which was surrounded by “green foul fluid,” was discovered.  The patient filed a malpractice action, eight years after the initial surgery, against the surgeon, the group that employed the surgeon, and the hospital (collectively, the “surgeon”).

In response to the complaint, the surgeon asserted that the patient’s claims were time-barred because the claims were not filed within the six-year statute of repose.  The surgeon also alleged that the patient failed to sufficiently plead that he had acted fraudulently by concealing the existence of the sponge.

The trial court dismissed the complaint, finding that “a discrepancy in the [sponge] count does not equate to knowledge of a retained sponge.”  However, on appeal, the court found that failing to disclose that there was a missing sponge deprived the patient of an opportunity for early treatment and deprived the patient of facts underlying a claim for malpractice.  The appellate court found that the surgeon owed the patient a fiduciary duty to disclose the fact that there was a missing sponge and the intentional failure to do so constituted fraudulent concealment.  Thus, the court concluded that the time frame the patient had to file the malpractice action should be extended.

The appellate court affirmed the trial court’s ruling that an incident improvement report was privileged under the state peer review statute and was thus not discoverable.  The appellate court also affirmed the trial court’s decision that a letter sent to the patient by the hospital’s director of risk management, after the sponge was discovered, acknowledging that the hospital “would assume all costs associated with the incident,” was inadmissible because it was an offer of compromise.

U.S. ex rel. Sheldon v. Kettering Health Network — Mar. 2016 (Summary)

FALSE CLAIMS ACT AND HIPAA

U.S. ex rel. Sheldon v. Kettering Health Network
No. 15-3075 (6th Cir. Mar. 7, 2016)

The United States Court of Appeals for the Sixth Circuit denied a Relator’s motion to amend her complaint and granted a health network’s motion to dismiss.  The court held that the Relator lacked personal knowledge of False Claims Act (“FCA”) violations, and the complaint failed to sufficiently allege a false claim for payment.

Underlying this litigation was a disclosure by the health network that its employees (Relator’s ex-spouse and others) had impermissibly accessed the Relator’s protected health information (“PHI”).  In its disclosure, the health network informed the Relator that the unauthorized access of her PHI violated its internal policy, as well as the law, and that the health network would be reporting the breach to the Department of Health and Human Services.

In her complaint against the health network, the Relator alleged that her ex-spouse, a director at the health network, and his subordinate accessed her PHI in furtherance of the extramarital affair they were having.  She further alleged that the health network had falsely certified its compliance with certain provisions of the HITECH Act, and received meaningful-use incentive payments as a result.  The Relator claimed that the individual breaches constituted violations of the Act and/or that the health network failed to implement security policies and procedures in violation of the Act.  The Relator also claimed that the health network failed to regularly run reports, which help monitor inappropriate access to PHI and that this failure constituted a breach of its duties under the Act.

Shortly after filing the complaint in federal court, the Relator filed a complaint in state court in which she alleged various torts arising from the same breach of her electronic health records.  The state court claims were dismissed because “HIPAA does not allow private causes of action.”

The federal district court dismissed the complaint, holding that the Relator failed to allege a specific false claim and failed to plausibly plead that the health network did not meet the HITECH Act’s standards.  On appeal, the Sixth Circuit Court of Appeals upheld the dismissal of the complaint, finding that the Relator failed to allege a specific false claim, failed to adequately plead a false claim for payment, and lacked personal knowledge of the FCA violation.

U.S. ex rel. Willette v. Univ. of Mass., Worcester — Mar. 2016 (Summary)

DISCOVERY

U.S. ex rel. Willette v. Univ. of Mass., Worcester
Civil Action No. 4:13-CV-40066-TSH (D. Mass. Mar. 3, 2016)

The United States District Court for the District of Massachusetts held that a university and the state of Massachusetts had to submit to limited discovery for the purpose of determining whether a relator in a False Claims Act suit was entitled to any recovery.  The False Claims Act suit was brought against the university and a former employee who was deceased.  The relator alleged that the former employee misappropriated more than $3 million during his employment in the Estate Recovery Unit.  The university repaid the commonwealth and the relator filed a motion for a relator’s share.

The court concluded that limited discovery would be necessary to determine whether the relator was entitled to such a share.  There is an alternative remedy provision that preserves the relator’s right to a share of the proceeds when the government seeks an alternative remedy rather than intervening in the relator’s qui tam suit.  The court granted two months’ time to conduct limited discovery regarding the circumstances under which the university repaid the commonwealth.  The university and the commonwealth moved for protective orders to bar discovery.  The court denied the protective orders, noting that neither party is entitled to sovereign immunity or protection from discovery in the instant case.