Lopreato v. Select Specialty Hosp. – N. Ky. — Jan. 2016 (Summary)

AMERICANS WITH DISABILITIES ACT

Lopreato v. Select Specialty Hosp. – N. Ky.
No. 15-5011 (6th Cir. Jan. 29, 2016)

A federal appellate court ruled in favor of a hospital on two nurses’ claims under the Americans with Disabilities Act (“ADA”). The nurses had been terminated by a prior employer for drug diversion, and they entered a rehabilitation program run by the Kentucky Board of Nursing. Their licenses were restricted as a result of their participation in the rehabilitation program.

Later, they applied for employment with the hospital. The hospital’s practice was not to hire nurses “who have current or previous restrictions or disciplinary action on their licenses regardless of the reasons for the disciplinary action or restriction.” The court ruled that the hospital’s practice was “legitimate and nondiscriminatory, even though [the nurses] licenses were restricted because they were participants” in the drug rehabilitation program.

Hammer v. Barth — Jan. 2016 (Summary)

VICARIOUS LIABILITY

Hammer v. Barth
No. 1-14-3066 (Ill. App. Ct. Jan. 25, 2016)

An Illinois appellate court ruled that a patient’s wrongful death claim against a hospital based on a theory of “apparent authority” could proceed. In the case, a wife filed a wrongful death complaint on behalf of her husband, alleging that the hospital where he received treatment was vicariously liable for the treating physician’s negligence. The court noted that the treating physician wore a name tag that identified her as a hospital employee and a lab coat with the hospital’s name. Also, while the consent form signed by the patient stated that some of the physicians were not employees of the hospital but were instead independent contractors, the form did not state that the treating physician was not an employee. Further, the court considered the manner in which the hospital’s website discussed its “team” of doctors. Based on these factors, the appellate court ruled that the patient’s claim could continue.

Monarch Healthcare v. Orr — Jan. 2016 (Summary)

COVENANT NOT TO COMPETE

Monarch Healthcare v. Orr
No. G050463 (Cal. Ct. App. Jan. 20, 2016)

A physician sold her medical practice to a health care company. The transaction was completed via an asset purchase agreement that included specific valuations for items such as furniture, fixtures, equipment and supplies. The purchase agreement stated that the assets being sold included “all of the goodwill of the medical practice.” However, the agreement did not allocate a specific portion or percentage of the purchase price to the element of goodwill as it did for the tangible items. The asset purchase agreement also included a covenant not to compete and a nonsolicitation clause. After the sale of the practice, the physician worked for the company that purchased her practice. After the physician’s employment ended, she opened her own practice. The company sued to enforce the nonsolicitation clause. The trial court granted a preliminary injunction as requested by the company. The court of appeal reversed this ruling. It held that because the asset purchase agreement did not include consideration for the goodwill of the physician’s medical practice, the covenant not to compete and nonsolicitation clause of the asset purchase agreement were not enforceable. The court of appeal also ruled that the employment agreement – which the physician admitted included a $100,000 signing bonus that was verbally discussed as compensation for the goodwill of her practice – did not constitute consideration for the noncompete and nonsolicitation covenants.

Dunn v. Dunn — Jan. 2016 (Summary)

PATIENT SAFETY AND QUALITY IMPROVEMENT ACT

Dunn v. Dunn
Civil Action No. 2:14-cv-601-MHT (M.D. Ala. Jan. 27, 2016)

The United States District Court for the Middle District of Alabama ruled that the documents, that a non-party correctional services corporation withheld on a case challenging prison conditions, were not protected by the state peer review privilege or by any other federal or state privileges, including the Patient Safety and Quality Improvement Act (“PSQIA”). The court noted that although the documents sought to be withheld may not have been essential to the case, their evidentiary value was likely significant. The documents drew on source material otherwise unavailable to the prisoners and were likely to be relevant to demonstrate the prison’s policies and practices toward mentally ill prisoners.

The court stated that the PSQIA was not intended to provide a blanket protection for all information and communications generated for quality control purposes. Furthermore, extending the privilege to quality assurance documents not submitted to a certified organization would destroy this incentive and undermine the purpose of Congress’s certification scheme.

P.W. v. Children’s Hosp. Colo. — Jan. 2016 (Summary)

WRONGFUL DEATH

P.W. v. Children’s Hosp. Colo.
Supreme Court Case No. 15SA151 (Colo. Jan. 25, 2016)

The Supreme Court of Colorado held that a hospital cannot assert comparative negligence and assumption of risk defenses in a wrongful death action arising from a patient suicide when the hospital had knowledge that said self-destructive acts were likely to occur. This litigation arose when a 16-year-old patient was admitted to a secure mental health unit, for the purpose of being prevented from attempting suicide. After being left unsupervised, the patient committed suicide. The court ruled that the hospital assumed an affirmative duty to protect the patient from self-harm, and the nature and scope of that assumption of duty subsumed the patient’s own duty not to harm himself. Therefore, because the patient could not have been at fault under these circumstances as a matter of law, the defenses were correctly dismissed.

The court emphasized that its holding was limited by the facts presented, and does not impose strict liability on hospitals caring for suicidal patients. The patient is still required to prove that the defendant had a duty to prevent foreseeable harm, that it breached that duty, and that the hospital’s breach proximately caused the harm.

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.