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.

Anderson v. E. Conn. Health Network, Inc. – July 2015 (Summary)

AGE/DISABILITY DISCRIMINATION

Anderson v. E. Conn. Health Network, Inc.
No. 3:12-CV-00785 (RNC) (D. Conn. July 16, 2015), aff’d, No. 15-2605-cv, 2016 WL 4502034 (2d Cir. Aug. 29, 2016)

A surgeon sued a health system after his employment was terminated, alleging that by failing to accommodate his depression, the hospital network violated the Americans with Disabilities Act (“ADA”), the Age Discrimination in Employment Act (“ADEA”), and the Connecticut Fair Employment Practices Act (“CFEPA”). The surgeon also sued for negligent infliction of emotional distress.

The surgeon was reported to hospital administration to be unsure of himself during surgery and unkempt in appearance, and at times appeared to be in a stupor-like state. The surgeon’s psychiatrist noted that these symptoms were related to his medication for depression. The psychiatrist adjusted his medication and his condition improved. Sometime later, several incidents related to the surgeon’s performance were reported. The administration suggested he take a leave of absence to be evaluated. It was recommended that the surgeon have a proctor when he returned to work. The administration and the surgeon worked to develop a plan for the surgeon’s resumption of duties. Proctoring was a part of this plan. The surgeon appealed the proposed plan because it would require reporting to the National Practitioner Data Bank (“NPDB”). An alternate plan was then submitted by the surgeon, which involved a “preceptor” for successive 30-day periods, which would not (according to the court) have to be reported to the NPDB. This plan was not acceptable to the CEO, who then terminated the surgeon’s employment. The parties continued to discuss his possible return to work until the ad hoc hearing committee denied his appeal of the original proctoring recommendation.

The court granted summary judgment in favor of the hospital on the ADA and CFEPA claims because there was only an obligation to provide a reasonable accommodation to his employment, not an accommodation of the surgeon’s choice. Specifically, the court concluded that the surgeon could not decline to accept the accommodation offered by the hospital (i.e., proctoring) solely because it was reportable to the NPDB. As for the age discrimination claims under the ADEA and CFEPA, the court granted summary judgment in favor of the hospital partly due to the fact that the surgeon was hired at age 64 – less than a year before his discharge – by the same person who fired him, which indicated that the discharge was not age-dependent. The court dismissed the negligent infliction of emotional distress claim without prejudice.

Okun v. Montefiore Med. Ctr. – July 2015 (Summary)

ERISA

Okun v. Montefiore Med. Ctr., No. 13-3928-cv (2d Cir. July 17, 2015)

The United States Court of Appeals for the Second Circuit vacated and remanded a judgment by a lower court dismissing a physician’s claim for severance benefits because a medical center’s severance policy did not constitute a “plan, fund, or program” under ERISA. The policy provided that all full-time physicians “employed before August 1, 1996 who are terminated for other than cause” are entitled to either 12 months’ notice or six months’ severance pay. Eligible employees with more than 15 years’ service were also entitled to automatic review of the amount of severance pay by the CEO.

This litigation arose from the termination of a physician who had been employed at the medical center for 23 years. After giving notice to his supervisor that he would be taking a job elsewhere in four months, the physician was fired “for cause.” The medical center claimed that the physician was fired because of what he said at a meeting. However, the physician argued that his “for cause” termination was a pretext for the medical center to interfere with his right to severance payments under the policy and ERISA.

The Second Circuit reasoned that the policy was covered by ERISA because it represented a multi-decade commitment to provide severance benefits to a broad class of employees under a wide variety of circumstances. Also, because the policy has been in effect in one form or another since 1987, the medical center demonstrated an “ongoing commitment” to providing severance benefits.

Howerton v. Harbin Clinic, LLC – July 2015 (Summary)

SEXUAL HARASSMENT

Howerton v. Harbin Clinic, LLC, No. A15A0141 (Ga. Ct. App. July 16, 2015)

A technician was allegedly sexually harassed by a physician with clinical privileges in the hospital where the technician was employed. The technician’s husband confronted the physician, telling him that his wife had recorded her conversations with the physician. The physician proceeded to tell hospital administration that the technician was recording conversations in the operating room. Instead of moving the technician to another shift, the hospital moved the technician to another department, promising her additional hours and overtime pay, which did not materialize. The technician subsequently sued the physician and his clinic for tortious interference, among other things.

The Court of Appeals of Georgia found the technician did allege a claim of tortious interference against the physician because the physician was a “stranger” to the employment contract between the technician and the hospital because he did not have a direct economic interest in the agreement and was not a third-party beneficiary to the agreement. The court also held that a jury question existed as to whether the physician acted with malicious intent, that is, whether the physician reported an alleged HIPAA violation because of a sense of legal obligation or because he was seeking to undermine the technician’s sexual harassment allegations.

The Court of Appeals for Georgia also reversed the trial court’s decision granting summary judgment in favor of the physician on the technician’s intentional infliction of emotional distress claim. The court held that the technician’s allegations were sufficiently outrageous in nature. However, the court did affirm the trial court’s grant of summary judgment for the clinic on the technician’s negligent supervision claim, noting the technician did not reveal the alleged sexual harassment to anyone at the clinic until three weeks before the physician sought employment elsewhere and that the clinic produced evidence showing that a thorough background check on the physician’s prior employment did not reveal any kind of improper conduct on his part.

Bartow HMA, LLC v. Edwards – July 2015 (Summary)

PEER REVIEW PRIVILEGE – EXTERNAL REVIEWS

Bartow HMA, LLC v. Edwards, No. 2D14-3450 (Fla. Dist. Ct. App. July 10, 2015)

A district court in Florida found that external peer review reports fell outside of the scope of Amendment 7 of Florida’s constitution. Amendment 7 preempts that state’s peer review protections by allowing patients access to any records related to an adverse medical incident that were “made or received in the course of business.”

In this case, a patient served a hospital with a request to produce peer review documents, including the results of an external peer review that was ordered by the hospital’s attorney, after she was injured during a gallbladder removal surgery. The hospital would not produce the documents, arguing that the reports were not made in the “course of business” but in response to a letter sent by its counsel. The court agreed, holding that the documents were not made or received in the regular course of business under Amendment 7, since hospitals are not required to retain external experts to evaluate adverse outcomes to determine if the standard of care was met.

Wash. State Hosp. Ass’n v. Wash. State Dep’t of Health – July 2015 (Summary)

CERTIFICATE OF NEED

Wash. State Hosp. Ass’n v. Wash. State Dep’t of Health, No. 90486-3 (Wash. July 9, 2015)

The Washington Supreme Court held that the Department of Health impermissibly expanded the scope of its authority in approving certain types of hospital ownership changes. The Washington legislature’s certificate of need statute indicated a review was needed for any “sale, purchase, or lease of part or all of any existing hospital.”

In July 2013, the Department of Health proposed a new definition of “sale, purchase, or lease” which would include “any transaction in which the control, either directly or indirectly, of part or all of any existing hospital changes to a different person including, but not limited to, by contract, affiliation, corporate membership, restructuring, or any other transaction.” The court held the Department’s new rule interpreted the words “sale, purchase, or lease” in “a manner that departed too far from the plain meaning of those terms.”

LaFlamme v. Rumford Hosp. – July 2015 (Summary)

EMPLOYMENT DISCRIMINATION – NURSING

LaFlamme v. Rumford Hosp., No. 2:13-cv-460-JDL (D. Me. July 9, 2015)

The United States District Court for the District of Maine denied a hospital’s motion for summary judgment in an employment discrimination case. The hospital had fired a Med Surg nurse who had been on disability for over a year after having back surgery.

The nurse had been promoted to full-time status prior to the surgery, but requested a reduction in her work hours in the months following her back surgery, culminating with a request for medical leave. After six months of medical leave, the hospital and nurse agreed she would be moved from full-time to per diem status. This meant she would have no regular work hours, but would work only when needed to fill in for regular employees. During this time, the hospital attempted to schedule the nurse for a number of shifts over the next six months, but the nurse was unable to be cleared by her physician for work. In November, she informed the hospital that she expected to be cleared to return to work in four weeks. The hospital terminated the nurse in December under its long-standing policy of terminating per diem nurses if they have not worked within the last six months.

In denying the hospital’s motion for summary judgment, the district court found there was a triable issue of fact as to whether it was reasonable for the nurse to ask the hospital to keep her position open after she informed it in November that she would be cleared for full-time work in four weeks. The district court also found that whether the nurse’s employment termination for absenteeism was based on her disability was also a triable issue. Further, the court found the nurse had made a prima facie case for retaliation, explaining a jury could find the hospital’s reasons for firing her (i.e., her unavailability and poor work performance) were pretextual.

Simpson v. St. James Hosp. – July 2015 (Summary)

EMPLOYMENT DISCRIMINATION – NURSING

Simpson v. St. James Hosp., No. 13 CV 5857 (N.D. Ill. July 8, 2015)

The United States District Court for the Northern District of Illinois granted a hospital summary judgment in a nurse’s suit that alleged that she was fired because she was female, African-American, over 40, or pregnant. The hospital asserted that it fired the nurse because she had a two-year pattern of rude and otherwise inappropriate behavior. Between the months of October 2010 and September 2011, the nurse had seven incidents cited and recorded on forms called “Employee Corrective Action Reports.” The conduct written in these reports ranged from disobeying doctors’ orders to removing a patient’s morphine pump as an act of retaliation for complaining about the care provided.

The court found that there was no basis to the nurse’s claims that the hospital applied its rules against her more strictly due to her gender or pregnancy. The court applied further analysis to determine if the hospital’s reasons for the nurse’s termination were pretextual for racial and age discrimination. Because there was undisputed evidence of the nurse violating hospital rules, the court found that the hospital’s proffered explanations were not pretextual, and these violations served as a nondiscriminatory basis of the nurse’s termination.