Antoniewicz v. Univ. of Tex. Health and Sci. Ctr. at Hous. – June 2015 (Summary)

EMPLOYMENT DISCRIMINATION

Antoniewicz v. Univ. of Tex. Health and Sci. Ctr. at Hous., Civil Action No. H-14-2083 (S.D. Tex. June 17, 2015)

The two female physicians alleged they were paid less and treated less favorably than male physicians in the university hospital’s OB/GYN department, claiming they were given less surgical time, were assigned more outpatient office-based assignments, and were excluded from meetings. After unsuccessfully resolving their concerns with the administrators, the female physicians reported the discriminatory conduct to the university hospital, who conducted an investigation. The university hospital found no discriminatory actions were taken. One month after the investigation, the hospital informed the female physicians their contracts would not be renewed. The female physicians claimed that the termination was based on their gender and sued under Title VII.

The physicians also claimed that the hospital administrators violated Section 1983 in their official and in their individual capacities by allegedly retaliating against the physicians by terminating their employment in order to intentionally chill their speech, discredit them and punish them for exercising their right to free speech.

The United States District Court for the Southern District of Texas dismissed the physicians’ Title VII discrimination and retaliation claims, holding the 300-day period in which to submit a claim to the EEOC began when the physicians received their notice of non-renewal of their employment agreement. Since the physicians failed to file their claims with the EEOC within this 300-day period, the court dismissed the physicians’ Title VII claims. The court also dismissed the physicians’ Title VII Fair Pay Act claim as also being time-barred.

With regard to the physicians’ Section 1983 claims, the court dismissed the claims against the administrators in their official capacities, holding these claims were effectively made against the state and as such were prohibited by the Eleventh Amendment.

However, the court denied the administrators’ motion to dismiss the physicians’ Section 1983 claims brought against them in their individual capacities, holding the administrators were not eligible for qualified immunity because the physicians’ speech about discrimination and pay disparity were a public concern. Finally, the court also dismissed motions made by the administrators to force the physicians to plead their Section 1983 claims with greater specifity, holding the physicians’ descriptions of the specific discriminatory actions of each administrator, the process used to report the behavior, and the timeline of this process in relation to the administrator’s decision not to renew the physicians’ contracts were sufficient to plead a Section 1983 claim.

Doctors Hosp. at Renaissance, Ltd. v. Andrade – June 2015 (Summary)

VICARIOUS LIABILITY

Doctors Hosp. at Renaissance, Ltd. v. Andrade
No. 13-15-00046-CV (Tex. App. June 18, 2015)

The parents of a child who was permanently injured at birth, sued the treating doctor and attempted to add the hospital as a defendant. The hospital involved was a limited partnership and the treating physician was a limited partner. The parents attempted to hold both the hospital limited partnership and the general partner in the limited partnership vicariously liable for the acts or omission of the limited partner treating physician. The hospital and the general partner moved for summary judgment claiming that limited partnership is not authorized to practice medicine and that the physician was not acting within the scope or authority of the limited partnership at the time of the injury.

The trial court denied that motion but permitted the hospital and general partner to appeal that decision to the Court of Appeals. The Texas Court of Appeals held that there was an issue of fact as to whether at the time of the incident the doctor was acting on behalf of the partnership. Therefore, the Court of Appeals affirmed the trial court’s decision denying the motion for summary judgment, and so a jury will decide whether the treating doctor was acting as the agent of the hospital and the general partner.

Doctors Hosp. of Augusta, LLC v. Alicea – June 2015 (Summary)

ADVANCE DIRECTIVES

Doctors Hosp. of Augusta, LLC v. Alicea, No. A15A0107 (Ga. Ct. App. June 17, 2015)

The Georgia Court of Appeals ruled that the Georgia Advance Directive for Health Care Act did not provide immunity to a hospital and physician for their role in intubating a patient and placing her on a ventilator against her wishes. Accordingly, the court permitted claims against the hospital and physician for medical battery and other causes of action to continue. However, the court also ruled that the hospital and physician were entitled to summary judgment on claims that their actions constituted malpractice for lack of informed consent.

A woman serving as the administrator of the estate of her grandmother sued the hospital and a physician after her grandmother was intubated and placed on mechanical ventilation which prolonged her life. The patient, in her advance directive, had stated that she did not want her life to be prolonged when she had an incurable and irreversible condition that would result in her death within a relatively short time or when she became unconscious and to a reasonable degree of medical certainty would not regain consciousness. The patient also noted that her granddaughter was to make end-of-life decisions if she was unable to do so. The granddaughter told her grandmother’s physician that she wanted to be contacted before her grandmother was intubated for any reason. The doctor failed to contact his patient’s granddaughter after his patient suffered from complications from surgery that necessitated intubation. The patient was intubated and her granddaughter was forced to make the decision in conjunction with the attending physicians to remove the ventilator and enter a do not resuscitate order. The patient died soon after.

The granddaughter filed her complaint against the hospital and physician for damages from breach of agreement, professional and ordinary negligence, medical battery, intentional infliction of emotional distress, and breach of fiduciary duty for injuries arising out of the care of her grandmother. The doctor and hospital argued that they were immune from suit under the Advance Directive for Health Care Act. The court was not persuaded by this argument because in order to prove that they were entitled to immunity they had to establish that the uncontroverted evidence of record showed that they were making a good faith effort to rely on the directions and decisions of the health care agent when her grandmother was intubated in the intensive care unit. The court held that the defendants had not met this burden. However, the court dismissed the granddaughter’s informed consent claim, finding that the patient had not suffered an injury that was proximately caused by the lack of informed consent.

Levitin v. Nw. Cmty. Hosp. – June 2015 (Summary)

DISCRIMINATION

Levitin v. Nw. Cmty. Hosp., 13 C 5553 (N.D. Ill. June 12, 2015)

A federal district court in Illinois ruled that a physician’s discrimination complaint was not barred by the statute of limitations. The physician and her practice had sued a hospital alleging a hostile work environment after her clinical privileges were terminated. The female Jewish physician filed an EEOC charge, alleging she was discriminated against and subjected to harassment.

The hospital countered her claims, stating that they were not within the statutory period. The court noted that while the only specific acts of discrimination alleged in the complaint had occurred years earlier, the complaint also stated generally that the physician had been subject to harassment up to the time of the filing of her complaint with the EEOC. Accordingly, she would be permitted to attempt to identify evidence showing that discrimination had occurred within the limitations period.

Yau v. Saint Francis Mem’l Hosp. – June 2015 (Summary)

RETALIATION

Yau v. Saint Francis Mem’l Hosp., Case No. 13-cv-02558-DMR (N.D. Cal. June 11, 2015)

A federal district court in California denied a hospital’s motion for summary judgment on claims that it retaliated against a nurse for reporting safety concerns to the state Department of Public Health. Accordingly, the nurse’s claims will be heard by a jury. However, the court granted the hospital’s motion for summary judgment on claims that it discriminated against the nurse based on her race and ethnicity.

The nurse had demonstrated strong job performance throughout her employment, and in 2009 worked 140 hours per two-week pay period. However, by the end of that year, the hospital prohibited the nurse from working extra shifts, and a policy was set in place to limit the number of consecutive shifts that a direct patient care provider could work. The following year, the nurse made internal complaints through the hospital’s internal event reporting system, because she was concerned with some of the care provided in the hospital’s burn unit. However, there were multiple instances where she received no response and the hospital did not take any corrective measures.

During a review of patient records, the hospital found that the nurse had accessed a patient’s medical record that she had no legitimate reason to access. The nurse was then fired for violating HIPAA and hospital policies.

With respect to the discrimination claims, the nurse argued that HIPAA violations had occurred before, but the other non-Asian nurses who committed the violations were not terminated. The court noted that the nurse failed to specifically identify any such instances, and that there was thus no evidence to support this claim.

With respect to the retaliation claims, the court found that under California law the nurse had raised a triable issue of fact over whether the reasons she was terminated were pretext for retaliation. The court noted that a jury could find that the hospital did not conduct a good faith investigation into the alleged HIPAA violation and that the discipline she received was more harsh than for similarly situated individuals.

Council for Urological Interests v. Burwell – June 2015 (Summary)

STARK LAW

Council for Urological Interests v. Burwell, No. 13-5235 (D.C. Cir. June 12, 2015)

The United States Court of Appeals for the District of Columbia Circuit called into question the current prohibition of “per-click” leases under federal regulations implementing the Stark law. The court noted that the per-click ban may be inconsistent with Congressional intent as expressed in the legislative history of the Stark law, and directed that the matter be remanded to the Department of Health and Human Services (“HHS”). HHS will be required to reevaluate whether the per-click ban is consistent with Congressional intent.

In contrast, the court approved HHS’s definition of an “entity furnishing designated health services.” Under the current definition, an entity that either performs or bills for designated health services is considered to be “furnishing” such services. The court found this to be a permissible construction of the statute, and noted that this definition closes “a loophole otherwise available to physician-owned entities that would allow circumvention of the purpose of the Stark Law merely by having the hospital bill Medicare for the services.”

Magnini v. Centegra Health Sys. – June 2015 (Summary)

VICARIOUS LIABILITY

Magnini v. Centegra Health Sys., No. 1-13-3451 (Ill. App. Ct. June 10, 2015)

A patient who was injured as a result of gastric bypass surgery brought a medical malpractice suit against a hospital (where the surgery was performed and the patient received follow-up care) and against several physicians related to her surgery and after care. The patient sought to recover against the hospital based on vicarious liability. In order to succeed on this theory, the patient needed to prove that the physicians were “agents and employees” of the hospital.

The court held in favor of the hospital because a bariatric services agreement and medical director services agreement between the hospital and the physicians indicated that the hospital did not retain the right to control the manner in which the physicians treated their patients. Also, the court observed that an agency relationship did not exist simply because the physicians were required to comply with the hospital’s medical staff bylaws. Furthermore, despite the fact that one physician was a hospital administrator in addition to a physician, because those duties were “distinct and separate” from the individual’s duties as a physician, the physician was not acting as an agent or employee of the hospital. Thus, the hospital was not held liable for the physicians’ actions.

King v. Burwell Update – June 2015 (Summary)

AFFORDABLE CARE ACT

King v. Burwell, No. 14–114 (Argued March 4, 2015—Decided June 25, 2015)

The U.S. Supreme Court decided 6-3 that health insurance tax credits are lawfully available to individuals in states that have a federal exchange.  Chief Justice Roberts wrote that “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.  If at all possible we must interpret the Act in a way that is consistent with the former, and avoids the latter.”

See July 2014 U.S. Court of Appeals Case Summary Here.

Whitlow v. Rideout Mem’l Hosp. – June 2015 (Summary)

OSTENSIBLE AGENT

Whitlow v. Rideout Mem’l Hosp., No. C074810 (Cal. Ct. App. June 9, 2015)

The Court of Appeal of the Third District of California reversed summary judgment in favor of a hospital that claimed an emergency room physician who failed to treat a decedent’s brain hemorrhage was an ostensible agent of the hospital.

The patient, who came to the hospital crying, in excruciating pain and exhibiting high blood pressure, nausea, vomiting and dizziness, was asked by a hospital employee to sign a form stating the physicians and surgeons furnishing services to patients were independent contractors and were not employees or agents of the hospital. Signs in the emergency room also displayed this information. The physician misdiagnosed the hemorrhage and the patient died two days later. The court held the “mere existence of a boilerplate admissions form,” signage, and insignia on the physician’s clothing did not conclusively show the decedent should have known her treating physician was not the hospital’s agent.

Damgaard v. Avera Health – June 2015 (Summary)

CORPORATE NEGLIGENCE

Damgaard v. Avera Health, Civ. No. 13-2192 (RHK/JSM) (D. Minn. June 3, 2015)

The United States District Court for the District of Minnesota granted partial summary judgment in favor of two health care corporation defendants in a medical malpractice action, dismissing claims of direct corporate negligence against both defendants, vicarious liability against the parent corporation, and vicarious liability against the subsidiary corporation based on its failure to follow policies or procedures.

The plaintiff-patient presented to the hospital to deliver a baby and, during labor, the baby suffered from inadequate oxygen to the brain. The baby is now five years old and suffers from cerebral palsy, seizures, and a developmental delay and, as a result, is unable to feed herself, walk, or control her bodily functions. The plaintiff filed a medical malpractice lawsuit against the parent health care corporation and the subsidiary health care corporation, which employed the physician, based on corporate negligence.

The patient argued that the defendants were liable for direct corporate negligence based on a failure to adequately instruct, train, or supervise employees. The court disagreed, finding state law does not recognize direct corporate negligence. The court also stated that although negligent supervision is recognized, that requires a showing that the defendants failed to prevent the foreseeable misconduct of any employee, but here, plaintiff did not point to any evidence that suggested the physician’s alleged negligence was or should have been foreseeable to the defendants.

Although the defendants acknowledged that the subsidiary, as the employer of the physician, could be vicariously liable, the patient also argued that the parent company should be liable since it also was an employer of the physician. The court did not agree that the parent was also an employer, because the patient cited no evidence that the parent had control over the means and manner of the physician’s performance.

Finally, regarding the subsidiary, the court stated that the patient could not rely on the policies to establish vicarious liability because the state peer review statute provides that such policies cannot be admitted at trial. Also, the patient argued that the physician was negligent under the “borrowed servant” rule because she failed to provide appropriate trained and skilled personnel when she was not present, but the court found that the patient did not allege any negligence by the nurses.