Sumner v. Summerlin Hosp. Med. Ctr. LLC — Feb. 2016 (Summary)

EMTALA

Sumner v. Summerlin Hosp. Med. Ctr. LLC
No. 2:14-cv-02121-JAD-VCF (D. Nev. Feb. 1, 2016)

The federal district court for Nevada dismissed an EMTALA complaint against a hospital, joining the many other courts who have ruled that EMTALA does not create a federal cause of action for malpractice. The litigation arose out of the death of a 91-year-old patient. The patient was taken to the emergency room where she complained of chest pain. After receiving a CT scan, the family was assured that she was not in immediate danger and that there was no life-threatening condition. However, early the next morning, she died from gallbladder torsion.

The family argued that the hospital violated EMTALA’s screening and stabilization requirements. However, the court disagreed because EMTALA violations do not occur if a hospital fails to detect or misdiagnoses an emergency condition. Furthermore, the court added that allegations of substandard care are cognizable under state tort law, not under EMTALA. The judge declined to exercise supplemental jurisdiction in relation to the remaining state law claims and remanded these claims back to a Nevada state court.

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.