Murphy v. Tuality Healthcare — Jan. 2016 (Summary)

RETALIATORY DISCHARGE – MILITARY SERVICE

Murphy v. Tuality Healthcare
Case No. 3:14-cv-01498-SI (D. Or. Jan. 15, 2016)

An anesthesiologist and National Guard member brought a suit against his former employer, a hospital, under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), alleging that he was terminated in retaliation for fulfilling a six-week obligation to the military (of course, the physician said nothing of the fact that days before leaving to fulfill his military service, he consumed alcohol while on call and then engaged in an altercation with another physician at the hospital where he was providing services, an incident which later led to him being disciplined by the state medical board). The USERRA protects service members who are deployed while holding civilian jobs to guarantee that when the individual returns from service he or she will still be employed, preventing discrimination against service members.

The hospital moved for summary judgment, arguing that the anesthesiologist was not an employee but an independent contractor and therefore was not entitled to protection under the USERRA. In response, the anesthesiologist claimed that despite a contract saying that he was an independent contractor, he was an employee. The federal district court held that the anesthesiologist was an employee, after considering six factors: (1) the employer’s right to control, (2) the employee’s opportunity for profit loss depending upon his managerial skill, (3) any investment in equipment or material required for the individual’s tasks, (4) whether the service the individual performs requires a special skill, (5) the degree of permanence of the individual’s working relationship, and (6) whether the service the individual performs is an integral part of the employer’s business. In reaching its determination that the anesthesiologist was an employee despite explicit contract language to the contrary, the court emphasized that the reality of how the physician worked at the hospital took precedent over the parties’ expressed intentions.

Brown v. Trover — Jan. 2016 (Summary)

STATUTE OF LIMITATIONS

Brown v. Trover
No. 2012-CA-001880-MR (Ky. Ct. App. Jan. 8, 2016)

A patient brought actions for medical negligence and fraud against a radiologist and claimed medical negligence, negligent credentialing, and fraud against the hospital that employed him (“Foundation”).

The circuit court held that the patient did not file any of his claims against the radiologist within the statutory period and that no actions of the defendants prevented the patient from discovering any of his claims. The court also held that the claims against the Foundation for medical negligence and negligent credentialing were not timely filed. Additionally, the circuit court held that the patient presented no evidence to support his fraud claims against the Foundation.

The court of appeals held that the tort of negligent credentialing is not recognized in Kentucky and the court of appeals left the decision as to whether to recognize the tort of negligent credentialing up to the state supreme court. Additionally, the court held that the procedural error alleged by the patient, regarding notice for a motion for the summary judgment hearing was harmless and did not provide grounds to disturb the circuit court’s order granting summary judgment in favor of the Foundation. The court of appeals further held that the circuit court’s grant of summary judgment on the medical negligence claims, against both the radiologist and the Foundation, was proper because the claim was not filed within the one-year statute of limitations. The patient was on notice that he may have had a claim against the defendants when he learned that he was improperly diagnosed; not at a later date when he read an announcement that stated that patients who had been treated by the physician should present themselves as potential members of a class action lawsuit. Finally, the court held that the patient did not present any evidentiary support for his fraud claims against the Foundation and the radiologist; therefore, the court of appeals upheld the lower court’s grant of summary judgment.

Babchuk v. Ind. Univ. Health — Jan. 2016 (Summary)

DATA BANK REPORT

Babchuk v. Ind. Univ. Health
No. 15-1816 (7^th Cir. Jan. 11, 2016)

The clinical privileges of a radiologist who was the sole employee of a professional corporation that held an exclusive radiology agreement at a hospital that was affiliated with Indiana University were summarily suspended by a hospital peer review committee on the grounds that the radiologist delayed for eight days dictating a report on a woman who was in her 30^th week of pregnancy and who presented to the hospital’s emergency department. The woman was transferred to another hospital where she gave birth prematurely. While the physician disputed the allegations, during the eight-day delay, the hospital alleged that the physician attempted to make the ultrasound results “go away” by instructing hospital staff to delete the records of the results of the ultrasound. The summary suspension of the physician’s clinical privileges was made permanent by the MEC and his corporation’s exclusive agreement with the hospital was terminated.

The physician sued the hospital alleging that due to the hospital’s relationship with the state university, the hospital had violated the physician’s due process rights protected by 42 U.S.C. §1983. The physician also alleged that the hospital’s report to the National Practitioner Data Bank deprived him of due process.

The 7^th Circuit Court of Appeals affirmed the decision of the district court that granted summary judgment to the hospital. The circuit court ruled that the report to the Data Bank was appropriate. The court also held that since the hospital was not a state actor, 42 U.S.C. §1983 did not apply.

Colantonio v. Mercy Med. Ctr. — Jan. 2016 (Summary)

HCQIA IMMUNITY

Colantonio v. Mercy Med. Ctr.
2016 N.Y. Slip Op. 00147 (N.Y. App. Div. Jan. 13, 2016)

A physician’s hospital privileges were revoked after the hospital received numerous complaints from other physicians and staff members about the physician’s behavior. Among other things, the physician was alleged to have raised his voice in the Intensive Care Unit, made rude comments in front of patients, confused and intimidated the nurses, made the nurses feel uncomfortable, and made inappropriate entries in patient charts. The hospital met with the physician to discuss its concerns. When the disruptive behavior continued, the matter was first addressed in a preliminary meeting with the Medical Staff Credentials Committee and then the Medical Staff Executive Committee exercised its authority under the hospital’s medical staff bylaws to terminate the physician’s clinical privileges and medical staff membership.

The physician then sued, asserting 18 causes of action to recover damages for defamation based on allegations of false statements made by certain personnel at the hospital prior to, during and after the Credentials Committee meeting. The defendants moved for summary judgment and argued that because the comments occurred during a Credentials Committee meeting they were entitled to absolute or qualified privileged based on public policy. The lower court held that because that meeting was not a hearing, the communications were not subject to absolute privilege. However, the appellate court held that those communications were entitled to qualified privilege under the Health Care Quality Improvement Act because the physician failed to show during discovery that those communications were made with malice. The appellate court then ruled that summary judgment was appropriate.

Valles v. Albert Einstein Medical Ctr. — Aug. 2002 (Summary)

Valles v. Albert Einstein Medical Ctr.
Nos. 10 & 11 EAP 2001 (Pa. Aug. 28, 2002)

The Pennsylvania Supreme Court ruled that a hospital cannot be held vicariously liable for the failure of a physician to obtain informed consent from a hospital patient, regardless of whether the physician was employed by the hospital or served as an independent contractor member of the medical staff. The court noted that the relationship between physicians and patients is “highly individualized and dynamic,” and stated that interjecting an element of hospital control into such a relationship would be “improvident and unworkable.” Therefore, the court dismissed a claim against the hospital based on allegations that physicians at the hospital had failed to obtain the patient’s informed consent prior to performing an aortogram.

Boffa Surgical Grp. LLC v. Managed Healthcare Assocs. LTD. — Dec. 2015 (Summary)

ANTITRUST

Boffa Surgical Grp. LLC v. Managed Healthcare Assocs. LTD.
No. 1–14–2984 (Ill. App. Ct. Dec. 23, 2015)

The Appellate Court of Illinois affirmed the dismissal of antitrust and tortious interference claims brought by a surgical group, and two of its general surgeons, against a physician hospital organization (“PHO”) and an independent practice association (“IPA”). The PHO and the IPA provided health maintenance and management association services for patients at the local hospital. Although the surgeons retained their clinical privileges at the hospital, they were excluded from the managed care network.

The Appellate Court of Illinois held that the surgical group and the surgeons failed to state a claim under Illinois’ antitrust law because the complaint failed to include factual details about the “who, when, or how of the purported conspiracy or how it resulted in a restraint of trade.” Critical to the court’s analysis was the fact that there are 21 competing hospitals within a short distance and the surgeons had privileges at each of those facilities. The court likened the managed care network to a staffing arrangement, which the court said it would not “micromanage,” and the court concluded that, without more, the arrangement did not result in an unreasonable restraint of trade. With regard to the tortious interference claim, the appellate court found the surgical group’s failure to name a specific third party with whom they had a business expectancy precluded recovery.

Royer v. Our Lady of the Lake Hosp., Inc. — Dec. 2015 (Summary)

FRAUD

Royer v. Our Lady of the Lake Hosp., Inc.
No. 2015 CA 0009 (La. Ct. App. Dec. 11, 2015)

The Court of Appeal of Louisiana affirmed a lower court’s ruling granting summary judgment for a hospital and two physicians on claims of fraud brought by an injured patient. The patient had initially sought treatment for symptoms of an apparent heart attack from his primary care physician who advised the patient to go to the hospital emergency department (“ED”). At approximately 1:30 p.m., the patient presented to the hospital ED. Several tests were ordered and three hours later the patient was admitted to the CCU.

The patient’s claim for fraud was based on the hospital’s advertisements, which, the patient alleged, misrepresented the nature of the hospital’s services. Specifically, the patient claimed as fraudulent the advertisements in which it was asserted that (1) the hospital and the physicians worked together as “integral parts of the team that provided services”; (2) the staff was “completely committed to medical excellence”; and (3) the hospital had earned “the highest level of recognition for performance excellence.” The patient argued that the ads influenced his decision to seek treatment at the hospital.

While the malpractice claims were dismissed as premature (because they had not first been submitted for review by a medical review panel), the claims for fraud continued. Ultimately, the court dismissed the claims for fraud brought against the physicians since they were not responsible for the hospital’s advertisements.

The court also dismissed the claims for fraud brought against the hospital because there was no evidence that the ads influenced the patient’s decision to seek treatment at the hospital. Rather, the patient sought treatment at the closest hospital as recommended by his primary care physician. The court also found that the representations in the ads were not demonstrably false. The court found that if the care the patient received fell below the applicable standard of care, this could be alleged in the malpractice action.

Haight v. NYU Langone Med. Ctr., Inc. — Jan. 2016 (Summary)

SEXUAL HARASSMENT/DISABILITY DISCRIMINATION

Haight v. NYU Langone Med. Ctr., Inc.
No. 13 Civ. 4993 (LGS) (S.D. N.Y. Jan. 4, 2016)

The District Court for the Southern District of New York granted in part and denied in part a hospital’s motion for summary judgment with regard to a nurse practitioner’s claims of negligent supervision and retention, hostile work environment, and disability discrimination. Over a period of six years, the nurse practitioner (“NP”) was allegedly harassed by both a co-worker and a supervising physician at the hospital. The female co-worker made numerous sexual advances toward the NP, including touching her breasts, behind, and crotch and placing her hands inside the NP’s pants. Additionally, the co-worker improperly accessed the NP’s medical records and was suspected of leaving a used pregnancy test in the NP’s desk.

The NP was also allegedly harassed by her supervising physician at the hospital who, after learning that the NP suffered from a gynecological problem, presented her with a book containing a section “on women who were cursed by God because they have no children[.]” In addition to the book, the physician allegedly made comments to the NP about masturbating and inappropriately touched her in front of other staff members.

The NP made repeated complaints to HR and ultimately to the hospital’s Compliance Officer, and the co-worker was eventually fired because of her improper access of the NP’s medical records. Several months later, the co-worker was hired by a vendor of the hospital and was soon back on the premises. The NP saw her co-worker on the hospital premises a number of times, and suffered from nausea and fainting spells with each encounter. Allegedly, some of these sightings were coordinated by the supervising physician. The NP was diagnosed with post-traumatic stress disorder due to the behavior of the supervising physician and the co-worker. She began collecting worker’s compensation after she was terminated a year later.

The district court granted the hospital’s motion for summary judgment with regard to the NP’s negligent supervision and retention claim, holding that New York’s Worker’s Compensation statute preempted state common law negligence claims. The court further found that the NP had not offered any evidence to show the hospital had committed an intentional tort, a claim that would have been outside the preemption of the Worker’s Compensation statute.

However, the district court denied the hospital’s motion for summary judgment with regard to the NP’s hostile work environment claims. First, the court held that although some of the alleged harassment fell outside the three-year statute of limitations window, the earlier harassment was sufficiently related to the events that occurred within the limitation period and therefore was not time barred.

Second, the district court found the conduct and comments of the supervising physician, co-worker, and other employees were so pervasive and severe to create a sufficient question of fact as to whether a hostile work environment existed. The district court also found the allegations that the hospital failed to expediently investigate improper access to her medical records and failed to respond to reported incidents of sexual harassment were enough to show the hospital “encourage[ed], condon[ed], or approv[ed]” the discriminatory actions of its employees, thereby potentially extending liability to the hospital.

With regard to the disability discrimination claim, the district court denied the hospital’s motion for summary judgment, holding it was not “impossible” to provide the NP with a reasonable accommodation. The district court noted that since the NP’s post-traumatic stress disorder was triggered by proximity to two hospital employees, the hospital could have relocated the NP to a different position at a different location as an accommodation.

Collip v. Ratts — Dec. 2015 (Summary)

AHP/DUTY OF COLLABORATING PHYSICIAN

Collip v. Ratts
No. 49A05–1501–CT–1 (Ind. Ct. App. Dec. 31, 2015)

The Indiana Court of Appeals held that a physician who entered into a collaborative practice agreement (“CPA”) with a nurse practitioner to oversee her prescriptive authority owes a duty of care to the nurse practitioner’s patients even if the physician never treated any of those patients.   The mother of a patient brought a malpractice action after her daughter died from bronchopneumonia complicated by mixed drug interaction. The mother sued not only the nurse practitioner (“NP”) who treated her daughter but also the physician with whom the NP had entered into a collaborative agreement.

Pursuant to the CPA, and as required by state law, the physician was required to review at least 5% of the NP’s charts on a weekly basis for the purpose of evaluating her prescriptive practices. The physician admitted that he never complied with this requirement. The physician had, however, performed a limited review of the NP’s notes. Following this review, the physician was concerned enough about the amount of narcotics that the NP was prescribing that he suggested that she attend a narcotic-prescribing seminar. The physician failed to follow up regarding the seminar even though he knew he held the “keys to the drugstore” for the NP.

In arguing that the malpractice claim against him should be dismissed, the physician pointed out that there was no physician-patient relationship between him and the patient who had died and therefore he did not owe a duty to the patient. The court disagreed.

The court found that the physician voluntarily undertook to supervise the NP’s practice, including her prescribing practices, and he was compensated for his services. (The court pointed out that the physician had a CPA with 11 or 12 other NPs and worked 90 hours per week in his own medical practice.) The services required by the CPA were necessary for the protection of the NP’s patients. The court concluded that it was “eminently foreseeable that the nurse practitioner’s patients could suffer harm” if the physician failed to perform his oversight duties.   Therefore, the physician owed a duty, as a matter of law, to the NP’s patients to fulfill the undertakings outlined in the CPA. The court pointed out that the CPA does not make the physician a guarantor of the NP’s medical practice; instead, it merely requires the physician to fulfill his duty of reasonable care in complying with the CPA.

Davis v. S. Nassau Cmtys. Hosp. — Dec. 2015 (Summary)

DUTY TO WARN/MALPRACTICE

Davis v. S. Nassau Cmtys. Hosp.
No. 163 (N.Y. Dec. 16, 2015)

The Court of Appeals of New York held that a medical provider has a duty that extends to third parties, to warn a patient that the administration of certain medications could impair the patient’s ability to safely operate an automobile. A patient who presented to the hospital ED received an opioid narcotic painkiller and a benzodiazepine intravenously. The patient was discharged 90 minutes later, at 12:30 a.m., and the patient proceeded to drive herself home. As she was driving home, the patient crossed over a double yellow line and struck an automobile operated by the plaintiff. The driver filed a lawsuit against the hospital claiming damages for injuries received as a result of the hospital’s alleged medical malpractice in treating the patient.

The court held that administering medication to the patient without warning the patient of the disorienting effects of the drug “create[d] a peril affecting every motorist in [the patient’s] vicinity.” In determining that the hospital’s duty to warn extended to third parties, the court cited a number of factors. First, the court found that the burden placed upon hospitals and physicians would be small; no additional obligation was being created. Second, the court explained that the hospital was not required to prevent the patient from leaving the hospital. Rather, the hospital only had a duty to ensure the patient was properly warned about the effects of the medication administered to her. Third, the court recognized that it should proceed “cautiously and carefully” in recognizing duties of care, and explained that its holding in no way evidenced a retreat from this principle.