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.

Leimbach v. Haw. Pac. Health – July 2015 (Summary)

EMTALA

Leimbach v. Haw. Pac. Health, Civ. No. 14-00246 JMS-RLP (D. Haw. July 22, 2015)

The United States District Court for the District of Hawai’i granted, with leave to amend, a motion to dismiss filed by a health system and others (“defendants”) in a suit brought by a patient who alleged that the defendants violated the Emergency Medical Treatment and Active Labor Act (“EMTALA”).

The patient argued that the defendants failed to provide him with an appropriate screening examination and failed to stabilize and/or transfer him. With regard to the inappropriate screening allegations, the patient argued that the health system, by providing only a “cursory examination,” failed to diagnose his necrotizing fasciitis. In addressing the defendants’ motion to dismiss, the court rejected this claim, instructing that “[d]efendants cannot incur EMTALA liability for what is merely an incorrect diagnosis.” The court also dismissed the patient’s claims of disparate treatment under EMTALA, finding that the patient’s “allegations fail to support the plausible inference that Plaintiff and [the four patients identified by patient to support his claim] had similar symptoms, let alone that Plaintiff’s screening examination was in any way different.”

Finally, the court dismissed the patient’s failure to stabilize and/or transfer claims under EMTALA based on his necrotizing fasciitis. According to the court, the patient alleged that the defendants failed to diagnose his necrotizing fasciitis. Consequently, the defendants “were obligated to stabilize only the medical conditions they actually diagnosed.”

Boatright v. Crozer-Keystone Health Sys. – July 2015 (Summary)

NEGLIGENT DISCLOSURE OF MEDICAL INFORMATION

Boatright v. Crozer-Keystone Health Sys., Civil Action No. 14-7041 (E.D. Pa. July 24, 2015)

The United States District Court for the Eastern District of Pennsylvania denied a health system and others’ motion to dismiss a patient’s claim for compensatory and punitive damages for negligent, unlawful disclosure of private medical information which allegedly resulted in the patient’s suspension and demotion in his employment.

The patient was an employee of the New Jersey Police Department and was involved in a motor vehicle accident. Shortly after the accident, the director of the emergency department and an emergency room nurse allegedly disclosed the patient’s private medical information to the patient’s superior officers without the patient’s knowledge or consent. The patient’s supervisors arrived at the hospital. The patient filed a complaint with the U.S. Department of Health and Human Services, Office of Civil Rights (“OCR”), which concluded that the director and emergency room nurse impermissibly disclosed the patient’s protected health information to his employer.

The defendants sought to dismiss the patient’s punitive damages claims by arguing, among other things, that there were insufficient facts to support an inference of reckless disregard for the rights of the patient. The court was not persuaded because the patient’s claims were sufficiently detailed. The court also concluded that at this stage of the proceedings the defendants were not entitled to a presumption that the patient’s supervisors showed up at the hospital out of concern for the patient’s condition (as opposed to the unauthorized disclosure). Finally, the court refused to strike portions of the pleadings that referred to the OCR’s administrative hearing on the matter because factual findings from the OCR’s investigation could potentially be admissible at trial.

Adams-Erazo v. Hosp. San Gerardo – July 2015 (Summary)

EMTALA

Adams-Erazo v. Hosp. San Gerardo, Civil No. 13-1918 (FAB) (D.P.R. July 24, 2015)

The United States District Court for the District of Puerto Rico denied a hospital’s motion for summary judgment in a suit brought by a patient’s surviving family members alleging, among other things, violations of the Emergency Medical Treatment and Active Labor Act (“EMTALA”).

The patient presented to the hospital’s emergency department with gunshot wounds. His surviving family members alleged that the hospital failed to appropriately screen the patient under EMTALA. In denying the hospital’s motion for summary judgment, the court held that a genuine issue of material fact existed as to whether the hospital provided the patient with an appropriate medical screening examination because the hospital failed to follow its gunshot wound screening protocol. In light of its decision on the EMTALA claim, the court decided to exercise supplemental jurisdiction over the plaintiffs’ Puerto Rico law claims.