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.

Nehra v. Rush Univ. Med. Ctr. — Oct. 2015 (Summary)

PHYSICIAN EMPLOYMENT CONTRACTS

Nehra v. Rush Univ. Med. Ctr.
Case No. 14 C 7445 (N.D. Ill. Oct. 20, 2015)

The United States District Court for the Northern District of Illinois granted in part and denied in part a university’s motion for partial summary judgment on a claim for breach of contract made by a urologist. The urologist was hired by the university and signed a Faculty Employment Agreement (“FEA”), which conferred the status of faculty member with the title of professor. The agreement permitted the urologist’s termination either by mutual agreement or for cause.

One year later, the urologist was appointed to the position of Chairperson of the Department of Urology, the details of which were set forth in an offer letter. The offer letter, which provided for a five-year appointment term, stated that the FEA would continue to be in effect with an amended effort allocation section to reflect his new duties. Importantly, the offer letter was silent on termination. Within the next year, the university removed the urologist from the position of Chairperson and notified him that his clinical privileges would cease shortly thereafter, at which point, the urologist sued, alleging breach of contract. Four months later, the university notified him that it would not renew his FEA when it expired and that he was being placed on administrative leave.

The parties disputed how the urologist’s FEA and the offer letter interrelated when it came to termination or non-renewal. The offer letter did not say anything about whether or why Rush could terminate the urologist from the department chairperson position. The court ruled that it could not resolve the dispute at this stage, given multiple ambiguities and because extrinsic evidence and discovery could help fully resolve the issue. However, the court did grant summary judgment on two issues relating to recoverable damages. First, the court held that the urologist could not recover damages for breach of contract that extend beyond the date of the trial. Second, the urologist could not recover damages for loss of reputation even if he prevailed on his breach of contract claim.

Scates v. Shenandoah Mem’l Hosp. — Oct. 2015 (Summary)

FALSE CLAIMS ACT

Scates v. Shenandoah Mem’l Hosp.
No. 5:15-cv-00032 (W.D. Va. Oct. 19, 2015)

An ultrasound technician at a hospital filed a complaint against her former employer for terminating her employment in retaliation for her complaints about allegedly false billing practices for ultrasound exams. The ultrasound technician reported to her supervisor that there was an inconsistency between the hospital’s ultrasound practices and the number of ultrasound photos required by the Current Procedural Terminology (“CPT”) codes. The technician complainant also reported concerns about a fellow employee to the hospital and the hospital told her that it would take no action against the employee because it would seem retaliatory. The hospital’s reasoning was related to prior complaints that the accused employee had made against the complainant technician in the past.

In responding to the hospital’s motion to dismiss, the court held that to proceed with the claims, the complainant had to allege sufficient facts to raise a plausible inference that there was an objectively reasonable possibility that the conversations between her and her employer were in furtherance of a False Claims Act (“FCA”) suit or an effort to stop an FCA violation. The court noted that the complainant “only highlighted ‘inconsistencies’ in billing practices, and never asked the hospital to change its ultrasound policies, objected to these policies, nor mentioned her belief that the hospital’s billing policies might be illegal.”

As such, the court held that the complainant failed to show how the conversations with her employer would have induced fear in the employer of an FCA claim. The court also held that the complainant did not meet any of the three exceptions for wrongful termination claims in the Commonwealth of Virginia, given that she failed to cite any statute that would support her claim, failed to show how her termination was in violation of public policy according to statute, and failed to show how her behavior was a refusal to engage in criminal conduct. Thus, the court dismissed the complainant’s wrongful termination claim with prejudice, but did allow her leave to amend on her FCA retaliation complaint against the hospital.

Southern Baptist Hosp. of Fla., Inc. v. Charles — Oct. 2015 (Summary)

PATIENT SAFETY AND QUALITY IMPROVEMENT ACT

Southern Baptist Hosp. of Fla., Inc. v. Charles
Case No. 1D15-0109 (Fla. Dist. Ct. App. Oct. 28, 2015)

The Florida District Court of Appeal, First Circuit granted a hospital’s petition for certiorari review, quashed the discovery orders of a lower court compelling the production of a hospital’s occurrence reports, and held that the occurrence reports were protected as Patient Safety Work Product under the Patient Safety and Quality Improvement Act (“Patient Safety Act”).

The hospital develops “occurrence reports” of events that are not consistent with the routine operations of the hospital (or care of a patient) or that could result in an injury. These occurrence reports are collected and maintained under the hospital’s Patient Safety Evaluation System and submitted to a Patient Safety Organization, consistent with the process outlined in the Patient Safety Act.

In a medical malpractice action, the plaintiff sought discovery of these reports pursuant to Amendment 7. Amendment 7 was a ballot initiative adopted in 2004 which amended the Florida Constitution and gives individuals “a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.”

The lower court concluded that the occurrence reports, even though they existed in the protected space of the hospital’s Patient Safety Evaluation System, were not Patient Safety Work Product and, thus, not privileged under the Patient Safety Act because they were created or maintained pursuant to Florida statutory and regulatory requirements. The court of appeal disagreed, finding that the reports were entitled to protection under the Patient Safety Act because they met the statutory definition for Patient Safety Work Product. Specifically, the documents were entitled to protection as Patient Safety Work Product, regardless of whether state law or regulation required their creation and maintenance, because they were placed into the hospital’s Patient Safety Evaluation System, where they remained pending submission to a Patient Safety Organization. The court of appeal also held that Amendment 7 was expressly and impliedly preempted by the Patient Safety Act.

Doe v. Rogers — Oct. 2015 (Summary)

NATIONAL PRACTITIONER DATA BANK

Doe v. Rogers
No. 12-01229 (TFH) (D.D.C. Oct. 9, 2015)

The United States District Court for the District of Columbia granted in part and denied in part a motion to dismiss filed by the Secretary of the Department of Health and Human Services (“HHS”) in a suit brought by a surgeon alleging that the Secretary unlawfully accepted, maintained, and continued to release an inaccurate, fraudulent, and untimely Adverse Action Report that was submitted to the National Practitioner Data Bank (“NPDB”) by the physician’s prior employer. This litigation arose out of an emergency laparoscopic appendectomy in which the surgeon mistakenly removed a segment of a 14-year-old patient’s Fallopian tube. Shortly after, the surgeon “voluntarily suspend[ed]” his surgical privileges and, then, “tendered a short letter of resignation.” Two months later, the hospital submitted a report to the NPDB indicating, among other things, that the surgeon resigned while under investigation.

After unsuccessfully challenging the report with the NPDB, the surgeon brought a suit for damages and declaratory and injunctive relief against HHS, the NPDB, and three NPDB officials. The surgeon asserted a litany of claims, including a claim that the NPDB’s actions regarding the report were unlawful because although it was classified as a “voluntary surrender of clinical privileges, while under, or to avoid, investigation relating to professional competence or conduct,” there was no evidence that an investigation was occurring either before or at the time the surgeon surrendered his surgical privileges and resigned. The court disagreed, referencing the administrative record which contained substantial evidence that an investigation was underway at the time of his resignation.

The court also rejected the surgeon’s argument that an investigation was not commenced because there was no formal request for an investigation by the Credentials Committee, per the medical staff bylaws. The court observed as follows: “Nowhere…does the Health Care Quality Improvement Act, [HHS] regulations implementing the Act, or the NPDB Guidebook state that, to qualify as an ‘investigation’ for the purpose of the mandatory reporting requirements, the Hospital’s actions must be taken in accordance with its own internal bylaws or policies. The reportable event is based on an ‘investigation’ as that term is contemplated by the statute, not as contemplated by a health care entity’s individualized and internal governing documents. To hold otherwise would result in ad hoc reporting and reporting inconsistencies across the multitude of health care entities throughout the nation.”

Similarly, the court dismissed the surgeon’s argument that the NPDB should have rejected the report because it was untimely. According to the court, “[b]ecause the statute imposes a significant sanction for the failure to submit a report – i.e., the potential loss of immunity pursuant to the [Health Care Quality Improvement Act] – the clear message is that Congress intended to compel all reporting required by the statute.” The court also found that the surgeon’s due process rights were not violated by defendants concluding that, among other things, “[t]he harm in this case…is the result of private hospitals responding to information contained in the [NPDB] and not the result of government action that changed [the surgeon’s] [employment or clinical privileges] status.” However, the court remanded to the Secretary the question of whether the statement that “the hospital’s quality assurance review of this matter indicates departures by the physician from standard of care” was reportable.