Blum v. Morristown Med. Ctr. — Oct. 2015 (Summary)

MALPRACTICE/PRIVILEGED DOCUMENTS

Blum v. Morristown Med. Ctr.
Docket No. A-3017-14T3 (N.J. Super. Ct. App. Div. Oct. 30, 2015)

The Superior Court of New Jersey, Appellate Division affirmed in part and remanded in part the trial court’s rulings that four documents in a medical malpractice case were not confidential. A patient who suffered numerous complications after undergoing gastric bypass surgery sued the physician who performed the surgery and the hospital where the surgery was performed. The patient claimed that the hospital failed to ensure that the surgeon had necessary liability insurance, and that it “failed to exercise reasonable care in the appointment, re-appointment, and…granting of clinical privileges to [its] medical staff.”

At issue in this appeal was whether the trial court erroneously classified the four specific documents as non-confidential and improperly ordered the hospital to turn over the documents to the patient. The first document was a letter from the State Board of Medical Examiners (“BOME”) concerning the surgeon after he was discharged by the medical center. The confidentiality of this document under state law depended on whether the BOME rendered a final disposition, which was not clear from the appellate record. Accordingly, the court remanded the discoverability of the document to the trial court for further consideration. The second and third documents were a fax cover sheet and a transmittal letter from the hospital where the physician previously practiced to the defendant hospital. The court determined that the portions of the documents merely repeating information already contained the hospital’s privilege log were discoverable. However, it remanded to the trial court the issue of whether the remaining portions of those documents were confidential, because the trial court had failed to provide an analysis, under the applicable common law. The fourth document was a string of internal e-mails pertaining to the credentialing process. These were also remanded for further consideration under common-law analysis.

Jones-McNamara v. Holzer Health Sys. — Nov. 2015 (Summary)

FALSE CLAIMS ACT

Jones-McNamara v. Holzer Health Sys.
No. 15-3070 (6th Cir. Nov. 2, 2015)

The United States Court of Appeals, Sixth Circuit affirmed the district court’s order granting summary judgment to a health system in a False Claims Act retaliation suit brought against it by a former employee. The former employee, who held the position of Vice President for Corporate Compliance, alleged that she was terminated because of her complaints to the CEO and others that an ambulance company was providing, in violation of the Anti-Kickback Statute, embroidered jackets to individuals working at the health system and hot dogs and hamburgers for the health system’s health and wellness fairs. In granting summary judgment to the health system, the court concluded that the former employee did not engage in protected activity under the False Claims Act anti-retaliation provisions because she did not have an objectively reasonable belief that the conduct violated the Anti-Kickback Statute. According to the court, “[i]t cannot plausibly be suggested that one jacket valued at $23.50 and occasional services of hotdogs and hamburgers could induce a reasonable person to prefer one provider over another.” The court also determined that the former employee failed to provide evidence of a connection between the gifts and referrals to that ambulance company.

Koenig v. Aetna Life Ins. Co. — Oct. 2015 (Summary)

ERISA

Koenig v. Aetna Life Ins. Co.
No. 4:13-CV-0359 (S.D. Tex. Oct. 29, 2015)

The United States District Court, Southern District of Texas granted a health insurer’s motion for summary judgment in a suit brought against it by a physician-owned hospital asserting violations of the Employee Retirement Income Security Act (“ERISA”). The hospital was an out-of-network provider for the insurer and offered a “prompt pay discount,” through which out-of-network patients could receive a reduction in their coinsurance payment by either paying up front or within a limited time after admission. After several years of processing claims through a subsidiary or a third-party vendor, the health insurer began processing the hospital’s claims in-house. The hospital alleged its claims for healthcare services were “significantly reduced” after the switch, and sued arguing that these substantial underpayments were a violation of ERISA.

As a preliminary matter, the court concluded that the hospital’s prompt pay discount (which closely followed the Office of Inspector General’s Advisory Opinion No. 08-03) did not violate Texas state law. The court indicated that nothing in the law prohibited the hospital from discounting the patient’s bill, and the hospital presented patients with all of the information necessary to acquire properly executed assignments under ERISA. However, the court rejected the hospital’s assertion that the insurer underpaid its claims by inconsistently reimbursing the same or similar services, noting the plans at issue vested the discretionary authority to determine eligibility and construe plan benefits solely with the insurer.

Butt v. Iowa Bd. of Med. — Oct. 2015 (Summary)

DISRUPTIVE BEHAVIOR/STATE BOARD SANCTIONS

Butt v. Iowa Bd. of Med.
No. 14-1764 (Iowa Ct. App. Oct. 28, 2015)

The Court of Appeals of Iowa affirmed sanctions imposed by the Iowa Board of Medicine (“Board”) on a physician for his inappropriate conduct but remanded to the lower court for an order directing the Board to strike certain parts of its decision and to amend its National Practitioner Data Bank (“NPDB”) report on the physician.

The Board sanctioned the physician after it found that the physician engaged in unethical and unprofessional conduct when he threatened a nurse by telling her he would “crush her” and when he asked an employee if she would leave her husband to have his baby. The physician appealed the Board’s sanctions and findings and the Court of Appeals reversed certain of those findings and remanded to the Board “to determine the propriety of the discipline imposed.” On remand, the Board added that it “believe[d] that such conduct interferes with, or has the potential to interfere with, patient care and/or the effective functioning of health care staff.” The Board then decided to reinstitute the prior sanctions, which the physician again appealed. Ultimately, the Court of Appeals held the Board’s statement with regard to patient care was a new finding of fact and not supported by the evidence, reversed the Board’s decision, and remanded to the district court for an order directing the Board to strike the sentence. The Court of Appeals also took issue with the Board’s decision to answer “Yes” to the following NPDB question regarding the physician: “Is the Adverse Action Specified in this Report Based on the Subject’s Professional Competence or Conduct, Which Adversely, or Could Have Adversely Affected, the Health or Welfare of the Patient?” According to the court, there was no evidentiary support for the “Yes” answer. The Court of Appeals remanded to the district court with instructions to the Board to amend the answer to “No.”

U.S. ex rel. Troxler v. Warren Clinic, Inc. — Oct. 2015 (Summary)

FALSE CLAIMS ACT

U.S. ex rel. Troxler v. Warren Clinic, Inc.
No. 14-5144 (10th Cir. Oct. 28, 2015)

The United States Court of Appeals, Tenth Circuit affirmed the dismissal of a physician’s False Claims Act suit against a health clinic where he previously worked. The physician alleged that nurses and medical assistants improperly collected “History of Present Illness” (“HPI”) information from patients. According to the physician, since HPI information is necessary to select the proper billing code for evaluation and management services and must be supported by a physician’s documentation, the clinic was fraudulently billing Medicare and Medicaid and violating the False Claims Act.

In affirming the decision of the district court dismissing the physician’s claims, the court held that the physician failed to plead a plausible false claim. The court concluded, among other things, that the complaint failed to state a factually false claim because “there [were] no allegations that the clinic submitted anything false to the government or that the services were not actually provided.”

Chenevert v. Christus Continuing Care — Oct. 2015 (Summary)

DISABILITY DISCRIMINATION

Chenevert v. Christus Continuing Care
No. 12-3096 (W.D. La. Oct. 21, 2015)

A nurse/administrator sued a hospital (her former employer) under a workers’ compensation retaliation statute for disability discrimination, retaliation, and failure to accommodate claims under the disability provisions of the Louisiana Employment Discrimination Law and the Americans with Disabilities Act (“ADA”), and also under a state whistleblower statute. The hospital filed a motion for summary judgment.

As for her first claim, the court held that due to the timing of her termination and the circumstances surrounding her injury, including the fact that she had to remind her supervisor to submit her claim, she raised a genuine issue of material fact of whether her termination was more probably than not a result of her workers’ compensation claim. Thus, the claim survived summary judgment. As for the ADA and Louisiana Employment Discrimination Law claims, which, according to the court, provide similar rights and remedies, the court held that because there was no documentation of any performance problems before the relevant injury to the complainant, she has brought sufficient evidence to raise a genuine issue as to whether the cited reason for her termination was pretext for discrimination. Thus, the claim survives summary judgment.

The court dismissed the retaliatory discharge claim because she did not provide enough specific evidence – other than general animosity toward her after her complaints – to support her claim. The court dismissed her failure to accommodate under the ADA claim because she returned to work after injury with a full release from her doctor and did not ask for any accommodations. The court dismissed her whistleblower claim because the statute provided protection to an employee only if he or she discloses or threatens to disclose an act or practice in violation of state law and the only related state law claim she offered – the claim of assault and battery against a particular physician – was never reported to the hospital.

Reginelli v. Boggs — Oct. 23, 2015 (Summary)

PEER REVIEW PRIVILEGE

Reginelli v. Boggs
Nos. 1584 WDA 2014, 1585 WDA 2014 (Pa. Super. Ct. Oct. 23, 2015), aff’d, J-25A-2017, 2018 WL 1473633 (Pa. Mar. 27, 2018).

A physician group and hospital appealed an order directing the group employing a physician to produce the physician’s employee performance file after an allegation of negligence against the physician. The hospital on appeal raised two issues: (1) whether the order granting the plaintiff’s motion to compel is appealable when that order compels production under Pennsylvania’s Peer Review Protection Act and (2) whether the trial court erred in ordering the production of the physician’s performance file which contained information that was the result of the review and evaluation of the Director of Emergency Services at the hospital in accordance with the Pennsylvania Peer Review Protection Act, and therefore is privileged information and protected from discovery.

The court held that the order granting the motion to compel discovery and production of the performance file was an appealable order. The court further held that because the only professional health care providers who may conduct privileged peer review are either direct practitioners or administrators of a health care facility, the file was not privileged. Additionally, the court noted that because the performance file was shared by the physician’s employer with the hospital, any privilege that would have existed was destroyed via disclosure.

Hooper v. Proctor Health Care Inc. — Oct. 2015 (Summary)

DISABILITY DISCRIMINATION

Hooper v. Proctor Health Care Inc.
No. 14-2344 (7^th Cir. Oct. 26, 2015)

The United States Court of Appeals for the Seventh Circuit affirmed a district court’s grant of summary judgment on disability discrimination claims made by a physician, who was hired to work in outpatient clinics. The physician was diagnosed with bipolar disorder and was required to regularly see a psychologist to maintain his medical license in Illinois. After an incident, the physician was given time off and was placed on an immediate paid medical leave of absence. After a psychiatrist determined that the physician could return to work, the employer left messages but the physician did not respond. He was sent a termination notice. The court reasoned that the failure to accommodate claim was meritless because the employer undertook numerous efforts to notify the physician that he was cleared to return to work. Therefore, no reasonable juror could find that the employer acted in a discriminatory manner.

Picard v. Am. Bd. of Fam. Med. — Oct. 2015 (Summary)

CERTIFYING BOARD – FAIR PROCESS

Picard v. Am. Bd. of Fam. Med.
Case No. 13-14552 (E.D. Mich. Oct. 22, 2015)

The United States District Court for the Eastern District of Michigan granted summary judgment to the American Board of Family Medicine (“ABFM”) for claims of violation of due process and defamation made by a physician. The ABFM is a corporate medical specialty board that certifies physicians in the medical specialty of family medicine. Board certification is voluntary; however, it is seen as an indicator of quality and excellence in the practice of family medicine.

The component at issue in this case was professionalism, which requires physicians to maintain a valid, full, and unrestricted medical license. The physician was a recovering drug and alcohol addict, who suffered a relapse. The physician then entered a 90-day residential treatment program, but tested positive for cocaine on a random drug screen. After receiving notice and process, the Michigan Department of Community Health filed an administrative complaint against the physician. This resulted in a summary suspension of the physician’s medical license. Eventually, the physician’s medical license was reinstated and he was placed on probation with monitoring requirements.

Three months later, the ABFM retroactively rescinded the physician’s certification. The physician’s employment was terminated as a result of his inability to gain ABFM certification. The court felt that this decision was not arbitrary or unreasonable because the bases were supported by the evidence and it was substantively rational. Furthermore, the physician was afforded both fair notice and fair procedure during the decertification process, and therefore his procedural rights were not violated.

Baroudi v. Shinseki — Oct. 2015 (Summary)

EMPLOYMENT DISCRIMINATION – NATIONAL ORIGIN, RELIGION, GENDER

Baroudi v. Shinseki
Case No: 8:14-cv-1099-T-30TBM (M.D. Fla. Oct. 20, 2015)

The United States District Court for the Middle District of Florida granted summary judgment to the Department of Veterans Affairs Secretary on claims of retaliation made by a former employed physician. Even though the physician was facing scrutiny for a previously occurring privacy violation, she proceeded to violate the privacy policy a second time by taking photographs of patient records that were left in unsecure locations. She then provided the photographs to the attorney representing her in her discrimination/retaliatory hostile work environment lawsuit against the hospital, in the effort to demonstrate that other employees also violated patients’ privacy but were not treated as harshly. The employer investigated this behavior and placed the physician on a 14-day suspension, which was eventually reduced to a seven-day “paper suspension” with pay.

The physician argued that her actions were part of a “litigation privilege,” which allowed her to violate her employer’s privacy policies, with no consequence. The court was not persuaded by this because it saw that the employer had legitimate, non-discriminatory reasons for suspending the employee and investigating the allegations of privacy breaches. The court also ruled that the employee’s declining performance evaluations and perceived personal animosity were not significant enough to amount to retaliation by the employer.