Jones v. Temple Univ. – Aug. 2015 (Summary)

DISCRIMINATION – RACE AND SEX

Jones v. Temple Univ., No. 14-3390 (3d Cir. Aug. 13, 2015)

The United States Court of Appeals for the Third Circuit affirmed a district court’s order granting summary judgment in favor of a university on federal and state law claims of race and sex discrimination made by a physician. The physician was employed, in a non-faculty position, as a neuroradiologist for a hospital for which the University provided radiology services pursuant to a contract. The university faced a budget shortfall and needed to eliminate one position from the radiology department based on an insufficient volume of work. The university stated that the plaintiff physician was terminated because she was the only part-time, non-faculty neuroradiologist and because her contract only required 90 days’ notice to terminate as compared to a full year for the full-time faculty neuroradiologists. However, the physician alleged that the university discriminated against her on the basis on race and sex.

The court of appeals affirmed the district court’s grant of summary judgment in favor of the university, finding that the neuroradiologist had failed to present evidence from which a reasonable fact finder could conclude that the university’s legitimate, nondiscriminatory reasons for her termination were a pretext for race or sex discrimination and because, as the only part-time, non-faculty member, there were no similarly situated employees outside of her protected class who were treated differently.

Gumbs v. Dep’t of Health and Human Servs. – Aug. 2015 (Summary)

MEDICAL STAFF APPOINTMENT AND PRIVILEGES

Gumbs v. Dep’t of Health and Human Servs., No. 2014-3194 (Fed. Cir. Aug. 12, 2015)

The United States Court of Appeals for the Federal Circuit affirmed a physician’s removal from an Indian Health Services clinic based on charges of failing to maintain a valid medical license and practicing medicine without a valid license. The physician was aware that his medical license had expired. However, the day after it expired, he proceeded to make normal rounds, evaluating a single patient and prescribing for that patient medication before he was informed by the director of the clinic that he could not participate in any further patient care. The physician was notified that he was going to be removed from his position based on his failure to maintain a valid medical license, and his practice of medicine without a valid medical license. The physician appealed the agency’s action, and an administrative law judge found it to be reasonable under the facts.

The court of appeals agreed, determining that the decision was justified because not only did failure to maintain such a license adversely impact the clinic, but also it was required under the Medical Staff bylaws. The court was not persuaded that the penalty of removal was disproportionate for treating only one patient without a license. It reasoned that there was substantial evidence supporting the finding of a nexus between the physician’s misconduct and an adverse effect on the clinic.

Faulkner v. Dartmouth Hitchcock Med. Ctr. – Aug. 2015 (Summary)

DISCRIMINATION – DISABILITY

Faulkner v. Dartmouth Hitchcock Med. Ctr., No. 12-cv-482-SM (D. N.H. Aug. 12, 2015)

A radiology resident sued her former employer, a medical center, alleging that she was terminated in violation of the Americans with Disabilities Act (“ADA”) and the Family Medical Leave Act (“FMLA”). The resident had had insomnia, which was causing her to have performance-related issues at work. Her treating physician suggested accommodations to the medical center to allow for the resident’s disability.

The medical center fully complied with the suggested accommodations, which included scheduling and call modifications; however, over the course of more than a year, the resident’s performance did not improve. As a result, she was not promoted to her third year of residency and had to repeat her second year. In the middle of that year, the program received a report from her physician indicating that despite all of the accommodations in place, her medical condition was impairing her cognitive functioning such that the medical center had concerns about patient safety. She was ultimately placed on administrative leave and terminated after refusing to resign.

Her ADA claims against the program were twofold – that she had been terminated on the basis of race and disability and that the reason she had not secured a position in a training program in New York to which she had applied was because someone affiliated with the defendant program had said something “negative” about her medical condition.

The resident’s ADA claim failed because she had failed to properly file a claim with the EEOC and because, even if the information was disclosed to the New York program, the defendant did not learn of the resident’s medical condition in an inappropriate manner. Rather, the resident had voluntarily disclosed that information to the program. The resident’s FMLA claim failed because she failed to show any evidence that there was a connection to her invocation of her right to FMLA leave and her subsequent termination.

Tucker v. Mercy Tishomingo Hosp. Corp. – Aug. 2015 (Summary)

RACE AND AGE DISCRIMINATION CLAIMS – PHYSICIAN ASSISTANT

Tucker v. Mercy Tishomingo Hosp. Corp.
No. CIV-14-877-M (W.D. Okla. Aug. 4, 2015)

The United States District Court for the Western District of Oklahoma granted a hospital summary judgment with regard to a former physician assistant’s Title VII race discrimination and ADEA age discrimination claims brought after the hospital terminated his employment due to a perceived violation of EMTALA. The physician assistant – a black 56-year-old Bohemian man – allegedly told a patient with a snake bite that the hospital could not treat the wound because it did not have anti-venom. The patient left the hospital and sought care from another emergency department without being registered in the original hospital’s online charting system and transferred to the other emergency department by the physician assistant, in violation of EMTALA. After investigating the incident and discovering the possible EMTALA breach, the hospital terminated the physician assistant’s employment.

The court held that although the physician assistant was able to make out a prima facie case of age and race discrimination because a younger, white registered nurse was not reprimanded for failing to register the snake bite patient either, the physician assistant was unable to present sufficient evidence that the hospital’s stated reason for terminating his employment, the possible violation of EMTALA and hospital policies, was pretextual. However, the court denied the hospital’s motion for summary judgment with regard to the damages owed to the physician assistant for breach of contract, holding the letter sent from the hospital to the physician assistant terminating his employment a month earlier could not be considered 60-days’ notice of termination required by the physician assistant’s employment contract, and therefore created a fact question as to what damages the hospital owed the physician assistant. Additionally, the court held there was a fact issue as to whether the physician assistant mitigated his damages because he presented evidence that he sought and obtained employment at two clinics following his termination from the hospital.

Diederich v. Providence Health & Servs. – Aug. 2015 (Summary)

RETALIATION CLAIM – RESIDENT

Diederich v. Providence Health & Servs., No. 13-35494 (9th Cir. Aug. 5, 2015)

The United States Court of Appeals for the Ninth Circuit reversed in part a district court’s order for summary judgment in favor of a residency program, holding that comments made by the director of the family practice residency preceding a series of adverse actions against a resident presented sufficient evidence to establish a prima facie claim that the resident was being retaliated against because of a prior lawsuit. However, the court of appeals affirmed summary judgment for the program with regard to the resident’s claim that he was retaliated against for leaving work while sick and requesting vacation time, noting it was “clear from the record” the resident was disciplined for not following protocol to provide adequate coverage of his patients and for not notifying his attending physician of his absence. Additionally, the court held that requesting vacation time was not a protected activity under the Washington Law Against Discrimination.

The court of appeals affirmed the dismissal of the resident’s wrongful termination claim, holding the resident failed to establish a causal connection between his taking sick leave and any adverse employment action and failed to assert a basis in public policy protecting an employee’s choice to leave work without ensuring the work will be handled by someone else. With regard to the resident’s contract-damage appeal, the court of appeals dismissed the claim as moot, noting the resident had voluntarily dismissed the claim with prejudice in the district court. Lastly, the court of appeals affirmed the dismissal of the tortious interference claim, noting evidence of the resident’s one-year residency contract with no promise of completing the program failed to allege facts that could establish valid business expectancy.

Williams v. Hosp. Serv. Dist. of W. Feliciana Parish, La. – Aug. 2015 (Summary)

WHISTLEBLOWER CLAIM – PHYSICIAN

Williams v. Hosp. Serv. Dist. of W. Feliciana Parish, La.
Civil Action No. 15-00095-BAJ-SCR (M.D. La. Aug. 5, 2015)

The United States District Court for the Middle District of Louisiana denied a hospital’s motion to dismiss claims of employment retaliation and civil rights violations made by a physician. The physician was hired by the hospital to serve as Director of the Intensive Outpatient Program. The physician became aware of several instances of alleged illegal conduct ranging from patient abuse to improper billing through Medicare and Medicaid. The physician reported the misconduct to the management company in charge of the program, however nothing was corrected.

The physician claimed that as a result of her reporting activities she was harassed by the issuing of baseless write-ups, taking away her job duties, and changing department policies and procedures without her input. Eventually, the physician’s employment was terminated. The court ruled that the physician properly alleged a violation of the Louisiana Whistleblower Statute because the physician alleged enough facts to support that she was engaged in a protected disclosure activity and was allegedly fired for doing so. Also, the court was not persuaded that the hospital’s Board of Commissioners should not be considered persons under the federal civil rights statute because of their absolute control and authority over staffing decisions.

Venosh v. Henzes – Aug. 2015 (Summary)

PEER REVIEW PRIVILEGE – HMOS

Venosh v. Henzes
No. 1393 MDA 2014 (Pa. Super. Ct. Aug. 7, 2015)

The Superior Court of Pennsylvania affirmed a lower court’s rejection of peer review privilege asserted by an independent practice type of health maintenance organization (“IPA-HMO”). The litigation arose out of complications a patient received after having knee surgery. The IPA-HMO withheld materials relating to a quality-of-care review that it conducted of the medical providers and the incident at issue. Under the Pennsylvania Peer Review Protection Act, peer review occurs only when one professional health care provider is evaluating another professional health care provider. Pennsylvania courts have previously determined that HMOs cannot assert peer review privilege because they are not considered professional health care providers. The court was not persuaded that a distinction should be made for IPA-HMOs because the entity does not provide health care services. Also, the fact that the IPA-HMO has a review committee made up of some medical professionals is not enough to afford it peer review privileges.

Tierney v. Advocate Health and Hosps. Corp. – Aug. 2015 (Summary)

PATIENT PRIVACY

Tierney v. Advocate Health and Hosps. Corp., No. 14-3168 (7th Cir. Aug. 10, 2015)

The United States Court of Appeals for the Seventh Circuit affirmed the dismissal of claims alleging willful and negligent violations of the Fair Credit Reporting Act (“FCRA”). This litigation arose when burglars stole four desktop computers from the health corporation’s administrative offices. The computers contained unencrypted private data relating to approximately four million patients. Six of the affected patients brought this putative class action alleging that the corporation did too little to safeguard their information. The circuit court affirmed the findings of the district court because a hospital did not qualify as a “consumer reporting agency” under the FCRA.

Philips v. Pitt Cnty. Mem’l Hosp., Inc. – Aug. 2015 (Summary)

Philips v. Pitt Cnty. Mem’l Hosp., Inc., No. COA14-1372 (N.C. Ct. App. Aug. 4, 2015)

The Court of Appeals of North Carolina affirmed an award of attorney’s fees to a defendant hospital and several physicians against a plaintiff physician.

The plaintiff physician filed a lawsuit against the hospital and physicians after his privileges were revoked. The trial court held in favor of the hospital and physicians and awarded attorney’s fees. The physician appealed that award, but the court of appeals affirmed the award of attorney’s fees, finding that there was competent evidence to support the claim that the lawsuit was frivolous and malicious and that the claims stemmed from a common nucleus of fact.

Nosal-Tabor v. Sharp Chula Vista Med. Ctr. – Aug. 2015 (Summary)

WRONGFUL TERMINATION AND WORKPLACE RETALIATION

Nosal-Tabor v. Sharp Chula Vista Med. Ctr., No. D065843 (Cal. Ct. App. Aug. 3, 2015)

A California court of appeals overturned a trial court’s grant of summary judgment in favor of a defendant medical center and ruled that a jury could find in favor of the plaintiff nurse for wrongful termination and workplace retaliation.

The Nursing Practice Act allows nurses to perform certain functions that would otherwise be considered the illegal practice of medicine when those functions are performed according to a hospital’s “standardized procedures.” The medical center implemented nurse-led cardiac stress tests, which the nurse refused to perform, complaining that such stress tests were the practice of medicine because the hospital had not adopted standardized procedures.

The nurse filed a lawsuit for wrongful termination and workplace retaliation. The medical center filed a motion for summary judgment, which the trial court granted, finding that the nurse did not present credible evidence that the standardized procedures in place when she was terminated were insufficient. The appeals court overturned the ruling of the trial court, finding that deficiencies in the medical center’s documents could support a jury finding in favor of the nurse.