Tate v. Univ. Med. Ctr. of S. Nev. — Nov. 2015 (Summary)

Tate v. Univ. Med. Ctr. of S. Nev.
Case No. 2:09-cv-01748-LDG (NJK) (D. Nev. Nov. 4, 2015)

UPDATE:  reconsideration denied, 2:09-cv-01748-JAD-NJK (D. Nev. May 4, 2016)

The United States District Court for the District of Nevada granted in part and denied in part summary judgment on a physician’s Section 1983 civil rights action, breach of contract, and breach of the covenant of good faith and fair dealing. The court held that the Health Care Quality Improvement Act of 1986 (“HCQIA”) did not provide immunity for the hospital from monetary damages to the physician’s claim alleging a violation of procedural due process rights under Section 1983. However, the court granted the hospital immunity as to the remaining contract claims. It reasoned that the language of HCQIA precluded application of immunity for damages brought “under any law of the United States relating to the civil rights of any persons or persons”; and a claim brought pursuant to Section 1983 was consistent with this portion of the statute. The court also determined that the medical staff could not be held liable for the contract claims.

Scott v. Sarasota Doctors Hospital, Inc. — Nov. 2015 (Summary)

Scott v. Sarasota Doctors Hospital, Inc.
No. 8:14-cv-1762-T-30TBM (M.D. Fla. Nov. 5,  2015)

The United States District Court for the Middle District of Florida denied a hospital’s motion for summary judgment on a hospitalist’s gender discrimination and retaliation claims. The hospitalist was employed by a physician services provider who assigned her to work at the hospital full time. While she was subject to a number of informal complaints about her “abrupt” and “curt” behavior, none of the concerns regarding the hospitalist’s behavior were ever reviewed through formal channels. She was, however, being encouraged to consider positions at other hospitals by her medical director, and the hospital was actively seeking a replacement for her. Feeling she was being treated differently than her male colleagues, who she alleged were given opportunities to respond to complaints and correct their behavior, the hospitalist filed a charge of gender discrimination against the hospital. Then, after having a confrontation with the hospital’s human resources generalist, the hospitalist was escorted from the hospital. The hospital then informed the physician services provider that it wanted the hospitalist permanently removed from the hospital because of her ongoing behavioral issues. The hospitalist was later terminated by her employer.

The hospital argued it was entitled to summary judgment on the hospitalist’s discrimination claims because it was not her employer. However, utilizing various legal theories, the district court determined that the hospital was a joint employer of the hospitalist. Next, the hospital argued that even if it were found to be an employer during the relevant time, the hospitalist’s gender discrimination claim failed because she failed to show that the hospital treated similarly-situated males more favorably. The court disagreed with this reasoning as well, citing the fact that a male physician who had exhibited similar behavior had been offered counseling, anger management classes, etc. before he was terminated. Therefore, there was sufficient evidence to make the issue of discriminatory intent one for a jury.

 

U.S. ex rel. Jajeh v. John J. Stroger Hosp. of Cook Cnty. — Oct. 2015 (Summary)

FALSE CLAIMS ACT

U.S. ex rel. Jajeh v. John J. Stroger Hosp. of Cook Cnty.
No. 13-cv-4728 (N.D. Ill. Oct. 30,  2015)

The United States District Court, Northern District of Illinois dismissed a physician’s claims under the False Claims Act for fraud and retaliation brought against a hospital that previously employed the physician. The physician alleged that his former supervisor at the hospital disbursed funds from NIH issued research grants in an illegal manner and in violation of NIH policy. The physician also alleged that after he made complaints to the hospital and the FBI about the alleged improprieties, his former supervisor retaliated against him by suspending the physician’s nurse practitioner and restricting the physician’s job duties. The hospital contended that the physician’s claims were barred by the False Claims Act statute of limitations. The court agreed, holding that the physician had not filed either his fraud or retaliation claims within the applicable statute of limitations period.

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.