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.

Brown v. Gupta — Dec. 2015 (Summary)

OSTENSIBLE AGENCY

Brown v. Gupta
Docket No. 322676 (Mich. Ct. App. Dec. 15, 2015)

The Court of Appeals of Michigan reversed and remanded a lower court’s order which denied a hospital’s motion for summary disposition. Following colon resection surgery, a patient experienced great pain and underwent exploratory surgery which revealed that she had a perforated colon. The patient suffered from other complications and sued the surgeon who performed the surgery; the patient also sued the hospital.

The hospital argued that the trial court erred in denying its motion for summary disposition because it was not liable for the physician’s negligence under the theory of ostensible agency. The court was persuaded that the surgeon was an independent contractor who merely used the hospital’s facilities to render treatment to his patients. In dismissing the complaint against the hospital, the court found that there was inadequate evidence that the hospital took any action or made any representation that led the patient to reasonably believe that the surgeon was an agent of the hospital.

Sara v. Saint Joseph Healthcare Sys., Inc. — Dec. 2015 (Summary)

BYLAWS AS A CONTRACT

Sara v. Saint Joseph Healthcare Sys., Inc.
No. 2013-CA-001909-MR (Ky. Ct. App. Dec. 23, 2015)

A nephrologist filed an action against a hospital, his former employer, after the Credentials Committee blocked his application to renew his staff privileges. The committee cited allegations against the physician, including violation of patient care policies, lapses in recordkeeping, and breaches of the hospital’s standard of conduct.

The physician pursued a review of the action through a Credentials Committee hearing, a Medical Governing Council review and the Hospital’s appeal board. The end result upheld the Credentials Committee’s recommendations.

The physician filed this legal action on two principal grounds. He first argued that because the hospital had to report the action against him to the Kentucky Board of Medical Licensure, this resulted in a delegation of the hospital’s investigatory and fact-finding functions, making the hospital a de facto state agency whose procedures were subject to the requirements of Kentucky statutes. Secondly, the physician argued that the hospital’s medical staff bylaws constituted a contract between the physician and hospital, and that the hospital breached that contract. The physician argued that the hospital wrongfully terminated his staff privileges in violation of the requirements of the bylaws.

This court held that the hospital did not function as a state agency based on the definition of agency in the applicable statute. As for the contractual argument, the court held that the bylaws did not constitute a contractual agreement in the instant case. The court held that the trial court properly dismissed Dr. Sara’s claims based upon breach of contract arising from the hospital’s bylaws.

Willis v. UPMC Children’s Hosp. of Pittsburgh — Dec. 2015 (Summary)

AGE DISCRIMINATION

Willis v. UPMC Children’s Hosp. of Pittsburgh
No. 15-1526 (3d Cir. Dec. 22, 2015)

After a neonatal nurse practitioner was terminated by the hospital that employed her, the nurse alleged that she was discriminated against based on her age. She brought an action under the Age Discrimination in Employment Act and the Pennsylvania Human Relations Act.

The court found that the plaintiff met a number of the necessary elements of a prima facie case of age discrimination: she was over 40 years old, had suffered an adverse employment decision, and was qualified for the position. However, the fourth required element was not met: the position that the nurse vacated was not filled until a year after her demotion. Additionally, the court found that the nurse failed to establish that the disciplinary events her employer cited as cause for her termination were mere pretext. The court held in favor of the employer on both claims.

Golden v. Sound Inpatient Physicians Med. Grp., Inc. — Dec. 2015 (Summary)

UNLAWFUL COMPETITIVE BUSINESS ACTIONS

Golden v. Sound Inpatient Physicians Med. Grp., Inc.
No. 14-cv-00497-TLN-EFB (E.D. Cal. Dec. 11, 2015)

The U.S. District Court for the Eastern District of California granted in part and denied in part a medical group’s motion to strike and dismiss. The plaintiff physician, a hospitalist, entered into individual contracts with physicians on Dameron Hospital’s medical staff to provide inpatient care to their patients. This was after the hospital had chosen the rival, defendant medical group to provide hospitalist services.

The medical group sought to convince the particular medical staff physicians to change their designations for hospitalist care (between the physician and the medical group), and to convince all staff physicians to send their inpatients to the medical group for hospitalist care. To do this, the medical group sent letters to physicians stating that the plaintiff physician did not practice at the hospital anymore, even though, in fact, she did. The group also sent a nurse to visit physicians’ offices to inform them that the plaintiff physician no longer practiced at the hospital. Lastly, the group had emergency room staff informed that they were no longer to check to see if the plaintiff physician had been designated as the hospitalist of choice as all patients had now been assigned to the group.

The physician claimed that under the California Business and Professional Code the medical group was in violation of misleading advertising and unlawful/fraudulent business acts. The court granted a motion to dismiss for the misleading advertising claim. The court found that the group was not engaged in advertising per se, and that the group’s actions did not meet the state law requirement that the public be harmed by the actions involved. However, the court did not grant the motion to dismiss for the claim of unlawful business actions because the physician plaintiff had made sufficient factual allegations which created a plausible claim for relief.

Shore v. Children’s Mercy Hosp. — Dec. 2015 (Summary)

DISCRIMINATION

Shore v. Children’s Mercy Hosp.
WD 78530 (Mo. Ct. App. Dec. 22, 2015)

The Missouri Court of Appeals affirmed a summary judgment order in favor of a hospital against racial discrimination and retaliation claims brought under the Missouri Human Rights Act. The court found that the physician failed to show that a genuine issue of fact existed as to whether (i) the physician’s race (Caucasian) was a contributing factor to his employment termination, and (ii) the physician was fired for engaging in protected activity, namely complaining that his supervisor was discriminating against him.

The Court of Appeals stated the plaintiff physician’s own testimony showed that his physician supervisor, Dr. Woods, an African-American, had been friendly with him during his first five years of employment. Dr. Woods had invited the physician to play tennis, attend social events, join his fantasy football league, and serve as a mentor for junior physicians. The physician acknowledged that his relationship with Dr. Woods did not change until after he had complained for months about having to move his office to another building, and, even more so, had made a comment about treating sickle cell patients that Dr. Woods found to be offensive and racist in nature. The court noted that the physician was fired after numerous complaints brought by nurses and others regarding alleged inappropriate conduct by the physician, including the use of offensive language.

In light of these facts, the Court of Appeals affirmed the trial court’s finding of summary judgment with regard to the physician’s racial discrimination claim because the physician did not show a genuine issue of fact existed as to whether he was discriminated against because he was Caucasian. With regard to the physician’s retaliation claim, the Court of Appeals rejected the physician’s argument that he was retaliated against because he had complained to human resources that he believed Dr. Woods’ thought he was racist. The Court of Appeals noted those complaints took place two years prior to the physician being fired. Since those complaints were made, the physician had been the subject of numerous complaints brought by nurses and others for offensive and rude behavior. The Court of Appeals found the trial court did not err in finding the physician’s termination was related to continuing problems with his performance rather than complaints he made against his supervisor.