McCord v. HCA Health Servs. of Tenn., Inc. – April 2015 (Summary)

HCQIA IMMUNITY – PROFESSIONAL REVIEW ACTION

McCord v. HCA Health Servs. of Tenn., Inc., No. M2014-00142-COA-R3-CV (Tenn. Ct. App. Apr. 27, 2015)

The Court of Appeals of Tennessee affirmed in part and reversed in part a lower court’s dismissal of a surgeon’s claims against a hospital, following revocation of his surgical privileges, for breach of contract, defamation, common law and statutory disparagement, and intentional interference with existing and prospective business relationships. In addition, he sought a declaration that the hospital unjustifiably revoked his privileges, as well as an order from the court to reinstate his privileges and to require the hospital to report this reinstatement to the National Practitioner Data Bank (“NPDB”).

According to the hospital, the surgeon first came under scrutiny during June 2011, when an evaluation raised concerns over how many of his patients were returning for removal of spinal hardware within one year of implantation. The surgeon’s one-year hardware removal rate was approximately 7.5%, which was favorable in comparison to the national average of 10%. However, it was high compared to his colleagues at the hospital, where the next-highest surgeon had a hardware removal rate of only 1.5%. This issue ultimately led the hospital’s Medical Executive Committee to recommend permanent revocation of his privileges.

Under the bylaws, the surgeon was entitled to request a hearing, but on the day the hearing was scheduled, the surgeon’s attorney informed the hospital that he would not be present at the hearing because he did not believe it would be fair. The hearing proceeded without him, resulting in the permanent revocation of his privileges.

After reviewing the record, the trial court determined that the surgeon had voluntarily waived his breach of contract claims by failing to appear at the hearing. It also granted the hospital’s motion to dismiss the remaining claims for lack of subject matter jurisdiction, ruling that the surgeon could only sue after challenging these claims in accordance with the procedures outlined by the Health Care Quality Improvement Act (“HCQIA”).

The Court of Appeals upheld the trial court’s dismissal of the breach of contract claim. However, it disagreed with the trial court’s handling of the surviving non-contract claims. It concluded that under the HCQIA regulations practitioners have the option to dispute the accuracy of reports filed to the NPDB, but are not required to do so.

Instead, the Court of Appeals explained that the hospital was properly entitled to summary judgment against the surviving claims. It emphasized that the surgeon could only prevail on these claims by providing some evidence that the hospital had made a false statement or representation in its report to the NPDB. The court held that the surgeon had failed to meet his burden of producing evidence sufficient to support these claims.

Mansour v. State Med. Bd. of Ohio – May 2015 (Summary)

PHYSICIAN LICENSURE

Mansour v. State Med. Bd. of Ohio, No. 14AP-829 (Ohio Ct. App. May 5, 2015)

The Court of Appeals of Ohio reversed a state medical board’s suspension of a physician, holding that the board’s decision was not supported by reliable, probative, and substantial evidence. The plaintiff physician was charged with 66 counts of drug trafficking. He claimed that his twin brother stole and used his prescription pad. The physician complied with both the state criminal authorities and with the state medical board as they investigated the matter. Two months later, the physician submitted his licensure renewal application, to which he answered “no” to “whether at any time since signing his last application for renewal, “[h]as any board, bureau, department, agency, or any other body, including those in Ohio other than this board, filed any charges, allegations or complaints against you?” Three years later, the physician voluntarily sought evaluation for his alcohol use. The evaluation was sent to the state medical board and stated that the physician undergo a minimum 28-day stay at a board-approved residential treatment facility due to his diagnosis of alcohol abuse, pathological gambling, and depression. The board then summarily suspended the physician’s licenses.

The physician admitted himself to the board-approved residential treatment facility to undergo treatment. The treatment center found no data to indicate a diagnosis of alcohol abuse or dependency and no evidence of pathological gambling. It did find that the physician suffered from depression. Upon his release, the physician requested a hearing to reinstate his medical license. The physician submitted his records from the treatment facility, a letter stating that he did not intend to deceive the board by answering no on the application because he was not aware that an indictment would be considered a “charge, allegation, or complaint against him.” Furthermore, he stated that the state medical board was already aware of the indictment because it investigated it and he fully cooperated. Lastly, the physician requested the medical board to turn over his answers to its investigation in order to show that he never intended to deceive it. The board stated that the physician’s own investigation answers were privileged so he was unable to subpoena them.

During his hearing, the examiner found that the physician was not impaired due to substance abuse and that he was not unable to practice medicine by reason of mental illness. However, the examiner concluded that the physician violated the licensing statute by making false or misleading statements in his license renewal application and recommended that the physician be suspended for a year. The board agreed with the recommendation, but doubled the suspension due to its concerns about his depression. The physician appealed the medical board’s decision arguing that the board failed to prove that his misrepresentation was intended to deceive the board and that the board failed to base its conclusions on reliable evidence.

The court was “troubled” by the board’s decision and reversed it. The court explained that to violate the licensure statute, an applicant not only has to make a false statement, but has to make it with the intent to deceive. Here, the board failed to provide any evidence to show such intent. Not only was it reasonable that the physician misunderstood the question, but he also tried to show that he did not try to deceive the medical board by obtaining the records of the board’s investigation of him. The court scolded the medical board for refusing to allow the physician to obtain these documents on the basis of a privilege. An evidentiary privilege protects the privilege holder, here the physician, thus he is entitled to waive it in order to defend himself.

Next, the court pointed out that the examiner and the board did not find that the physician was unable to practice medicine due to a mental illness, yet the board suspended him because of concerns about his depression. The court held that the board’s decision was not based on reliable, probative, and substantial evidence.

Murphy v. Or. Med. Bd. – April 2015 (Summary)

PHYSICIAN LICENSURE

Murphy v. Or. Med. Bd., Nos. 091334, A152438 (Or. Ct. App. Apr. 29, 2015)

A cardiac anesthesiologist who consumed one to two glasses of wine at a restaurant while on call was found by the state medical board to have engaged in unprofessional conduct. The state medical board reported the cardiac anesthesiologist to the National Practitioner Data Bank (“NPDB”). The cardiac anesthesiologist alleged that the board’s decision violated his due process rights when it answered “Yes” in response to the NPDB’s question: “Is the Adverse Action Specified in This Report Based on the Subject’s Professional Competence or Conduct, Which Adversely Affected, or Could Have Adversely Affected, the Health or Welfare of the Patient?”

In Murphy v. Goss, No. 3:14-cv-01135-SI (D. Or. Jan. 26, 2015), the United States District Court for the District of Oregon dismissed (without prejudice) the cardiac anesthesiologist’s substantive due process claim against several members of a state medical board on the basis that those individuals were entitled to immunity under the Health Care Quality Improvement Act of 1986 (“HCQIA”) since the cardiac anesthesiologist did not allege that any of them had knowledge of the falsity of any report made to the NPDB.

In Murphy v. Goss, No. 3:14-cv-01135-SI (D. Or. Apr. 16, 2015), the court once again considered whether the cardiac anesthesiologist could pursue his claims against the state board and its members. In granting summary judgment to the state board and its members, again on the basis of HCQIA immunity, the court noted that there was no evidence that anyone at the state board had knowledge of the falsity of the NPDB report. The court rejected the cardiac anesthesiologist’s assertion that he should be permitted to proceed through discovery to trial, where a jury could decide whether to believe the state board employee (who declared that she had no actual knowledge that the report was false) or believe the cardiac anesthesiologist’s unsupported accusation that the employee did know that the report was false. According to the court, “[s]tanding alone, the mere assertion by Plaintiff that one of the Defendants had actual knowledge that the report was false is insufficient to survive a motion for summary judgment.”

In this most recent case, the Oregon Court of Appeals reversed the state medical board’s determination that the cardiac anesthesiologist engaged in unprofessional or dishonorable conduct by consuming alcohol while on call because it violated an underlying ethical obligation because the board failed to give the cardiac anesthesiologist notice of this allegation. The board sent a letter to the cardiac anesthesiologist stating that he was to be charged with violating a statutory provision that prohibits unprofessional or dishonorable conduct and an administrative law judge will conduct a hearing. The board explicitly stated that the cardiac anesthesiologist’s breaching of his employer’s drug-free workplace policy was the basis of its action.

The cardiac anesthesiologist learned that he was also being charged with violating an underlying ethical obligation not to drink alcohol when on call. The cardiac anesthesiologist requested an extension in order to prepare a defense for the new allegation. The administrative judge denied the request and allowed the board to proceed. In his proposed order, the administrative judge concluded that the cardiac anesthesiologist’s violation of the hospital’s policy did not constitute unprofessional or dishonorable conduct as defined by the statute, and that the board failed to establish the existence of a recognized standard within the medical profession prohibiting the consumption of alcohol while on call. The board ignored the administrative judge’s findings and disciplined the cardiac anesthesiologist, stating that the cardiac anesthesiologist failed to call any witnesses to refute the board’s ethical argument.

The court agreed with thecardiac anesthesiologist that he was prejudiced by the board’s inadequate notice of the charges. The court explained that the only charge the board had informed the cardiac anesthesiologist of was his alleged unprofessional or dishonorable conduct, without ever having mentioned an ethical argument. The court highlighted the cardiac anesthesiologist’s prejudice with the board’s own order stating that the cardiac anesthesiologist “did not produce one physician to testify that they consumed alcohol while on call at a hospital, or thought it was appropriate to do so.”

Sabit v. Abou-Samra – April 2015 (Summary)

ANTI-SLAPP

Sabit v. Abou-Samra, 2d Civil No. B249793 (Cal. Ct. App. Apr. 30, 2015)

The Court of Appeal for California affirmed a lower court’s dismissal of an intentional interference with a contract claim brought by a physician against a hospital. The plaintiff physician was employed at a private clinic and had privileges at the defendant hospital. The hospital summarily suspended the physician while it investigated an allegation that he did not render appropriate medical care to patients. The clinic terminated his employment. The physician brought suit against the hospital stating that the hospital intentionally interfered with his employment contract. The hospital filed a motion to strike the lawsuit under the state’s civil procedure code as a strategic lawsuit against public participation (“SLAPP”). The lower court granted the motion and the physician appealed.

The court affirmed the anti-SLAPP motion holding that this litigation was a challenge to the hospital’s protected free speech. The court explained that the hospital’s suspension of the physician was an activity and speech authorized by state law, and thus was protected activity. Additionally, the physician’s intentional interference with a contract claim failed because he had not established that the hospital knew of his employment contract with the clinic and it acted knowing that the contract would be disrupted.

Valfer v. Evanston Nw. Healthcare – April 2015 (Summary)

PEER REVIEW IMMUNITY

Valfer v. Evanston Nw. Healthcare, No. 1-14-2284 (Ill. App. Ct. Apr. 30, 2015)

The Appellate Court of Illinois affirmed a lower court’s dismissal of a breach of contract claim brought by a physician against a hospital, holding that the hospital is immune from liability pursuant to the state peer review statute. The hospital found that 50% of the physician’s cases lacked demonstrable indication for surgical intervention, and did not reappoint him due to patient safety concerns. The physician brought suit alleging breach of contract and sought monetary damages. The hospital argued that it followed its bylaws and that it was immune under the state’s peer review statute. The court agreed and dismissed the case. The physician appealed, arguing that the hospital was not immune because its acts were willful and wanton, thus it was not protected by the statute.

The court held that the physician failed to plead or prove some type of physical harm, as is required by the statute to prove willful and wanton conduct. The court explained the peer review statute shields a hospital from civil liability unless it acted willfully and wantonly. The statute explicitly defines willful and wanton as a deliberate action that shows a disregard for a person’s safety. Here, the physician failed to plead that his, or any patients’, safety was threatened, thus he failed to show that the hospital’s conduct satisfied the statutory definition of willful and wanton.

Mullen v. Chester Cnty. Hosp. – April 2015 (Summary)

ADA

Mullen v. Chester Cnty. Hosp., Civil Action No. 14-2836 (E.D. Pa. Apr. 30, 2015)

The United States District Court for the Eastern District of Pennsylvania denied a hospital’s motion to dismiss an Americans with Disabilities Act (“ADA”) claim brought by a nurse, holding that a jury could reasonably find that the hospital discriminated against her on the basis of her disability and that it retaliated against her when she filed a lawsuit. The plaintiff nurse suffered from Lupus and a congenital heart defect which occasionally caused her to become dizzy, lightheaded and faint. During one of these instances, the nurse was put into an empty bed and given an I.V. without a physician’s order. The nurse alleged that she was unable to deny this treatment, even though it violated the hospital’s protocol and the state nursing practice guidelines. The hospital investigated the incident and determined that the nurse may have asked for the I.V. or at least consented to the treatment. After the hospital’s investigation, it terminated the nurse’s employment. A month later, the nurse requested paperwork for a lawsuit and the very same day the hospital reported the nurse to the state’s nursing board. The nurse brought suit alleging that she was discriminated against due to her disability and that the hospital retaliated against her by reporting her to the nursing board in violation of the ADA. The hospital moved to dismiss the case.

The court denied the motion and held that this case was to be decided by a jury. The court explained that a reasonable jury could find that the nurse was discriminated against because the hospital’s motivation for terminating her was its belief that she was too sick to work. Furthermore, a jury could find that she was discriminated against because the nurses who administered the care were not terminated. Additionally, the court held that a jury could find that the hospital reported her to the nursing board in retaliation of her starting a lawsuit. The court explained that the timing of both could allow a jury to find that the hospital violated the ADA’s retaliation provision.

Hall v. Flannery – May 2015 (Summary)

PEER REVIEW PRIVILEGE

Hall v. Flannery, Case No. 3:13-cv-914-SMY-DGW (S.D. Ill. May 1, 2015)

The United States District Court for the Southern District of Illinois ruled against a hospital that argued that audit logs for a patient’s medical records were protected by the state’s peer review statute. The plaintiff patient alleged that she received two different medical charts in her medical record during discovery. The plaintiff then requested the audit log of her medical record to determine who had the ability to edit her records. The defendant hospital argued that the medical record’s audit logs are protected by the state’s peer review statute.

The court ordered the hospital to turn over the audit log because audit logs are created in the hospital’s ordinary course of business and not specifically for a peer review committee.

Whitney v. Franklin Gen. Hosp. – April 2015 (Summary)

SEXUAL HARASSMENT/RETALIATORY DISCHARGE

Whitney v. Franklin Gen. Hosp., No. C 13-3048-MWB (N.D. Iowa Apr. 21, 2015)

The U.S. District Court for the Northern District of Iowa granted in part and denied in part a hospital’s motion for summary judgment against claims filed by one of its former employees, a medical records receptionist. The receptionist sued the hospital for sexual harassment, retaliation, and discrimination alleging that the hospital’s medical director had subjected her to sexual harassment over a period of approximately three years, culminating in her termination from the hospital. The receptionist did not report the alleged sexual misconduct while it was occurring, but she did take 12 intermittent weeks of Family and Medical Leave Act (“FMLA”) leave in order to obtain treatment for anxiety, depression, and symptoms of post-traumatic stress disorder. The medical director was eventually fired by the hospital after an investigation revealed that he had sexually harassed at least eight other women. Following his termination in June 2012, the receptionist reported to her superiors that she had been harassed by the medical director as well, from 2006 through 2009, although she had initially characterized their relationship as being a “consensual” one and only two months later reported that the medical director had sexually harassed her.

Following her return from her most recent FMLA leave, the receptionist requested a reduced schedule due to her anxiety and depression. The hospital permitted her to work half days, but did not excuse her additional absences. The hospital explained that the receptionist had not provided enough information about her condition or about her need for additional accommodations. In defense of its actions, the hospital explained that the receptionist had repeatedly displayed issues with attendance, productivity, and professionalism in the workplace. She had received repeated warnings prior to her termination and was even presented with a Performance Action Plan in an attempt to correct the problems before she was ultimately terminated in December 2012. The hospital emphasized that it had no knowledge of the sexual harassment against the receptionist until well after the medical director was terminated, and also insisted that it had legitimate, non-retaliatory reasons for terminating the receptionist.

The court granted summary judgment in favor of the hospital against the receptionist’s sexual harassment claims finding that no reasonable person could conclude that disciplinary actions, including her termination, constituted sexual harassment rather than retaliation, sufficient to render her sexual harassment claims within the relevant 300-day statute of limitations. However, the court denied the remainder of the hospital’s motion, concluding that the receptionist had presented enough evidence to create a genuine dispute of material fact over her remaining claims alleging retaliatory discharge, disability discrimination, and FMLA discrimination and permitted those claims to proceed to trial.

U.S. ex rel. Bellevue v. Universal Health Servs. of Hartgrove, Inc. – April 2015 (Summary)

FALSE CLAIMS ACT

U.S. ex rel. Bellevue v. Universal Health Servs. of Hartgrove, Inc., No. 11 C 5314 (N.D. Ill. Apr. 24, 2015)

The United States District Court for the Northern District of Illinois granted a psychiatric hospital’s motion to dismiss an action alleging violations of the False Claims Act. A therapeutic counselor filed the lawsuit on behalf of the federal government and the State of Illinois, alleging that the hospital had violated both federal and state law when it submitted certain reimbursement claims to Medicaid.

According to the counselor, the hospital knowingly and repeatedly billed Medicaid for patients that exceeded its authorized capacity. Among other things, the counselor stated that he had personally observed adolescents sleeping in the dayroom on rollaway beds instead of being admitted to a regular patient room. The counselor argued that an individual room is an essential part of the treatment provided by the psychiatric hospital, and argued that failure to provide this room was a complete abdication of the obligation to treat patients.

The court disagreed and held that the counselor had failed to provide sufficient evidence to support his contention that an individual room was essential to treatment. The court ruled that even if the hospital had falsely certified that it was giving individual rooms to patients who were actually sleeping in a common room, those facts alone would not be sufficient to establish liability under the False Claims Act. According to the court, absent an allegation that the failure to provide a patient room destroyed the effectiveness of the rest of the treatment provided, the counselor’s allegation that certain patients were deprived of that particular aspect of the services that they were entitled to cannot serve as the basis of a False Claims Act claim. For these reasons, and others, the court granted the hospital’s motion to dismiss the counselor’s complaint.

Mackey v. Sarroca – April 2015 (Summary)

PHYSICIAN-PATIENT RELATIONSHIP/ON-CALL PHYSICIANS

Mackey v. Sarroca, No. 3-13-0219 (Ill. App. Ct. Apr. 27, 2015)

The Appellate Court of Illinois, Third District, reversed a trial court’s dismissal of claims, finding that an on-call urologist’s advice given to the emergency department physician created a physician-patient relationship, giving rise to a professional duty of care.

The on-call urologist was responsible for giving urology advice to emergency room physicians. He was called by the emergency department physician to render advice on a patient who presented to the ED with a 6mm kidney stone. After the emergency room physician informed the urologist of the specifics of the patient’s case, the urologist prescribed a medication to help pass the stone, and ordered a follow-up appointment two days subsequent. The urologist did not admit the patient and did not prescribe antibiotics. A few days later, the patient developed numerous health conditions, including severe septic shock, renal failure, and multisystem organ failure. The patient initially sued only the hospital and emergency department physician, but later added the urologist as an additional defendant, alleging that her conditions were a result of the urologist’s failure to order treatment that would have prevented septic infection.

The court first addressed the urologist’s argument that the claim was not timely filed, finding that the patient did file within two years of discovering the urologist’s breach of professional duty. It was only during a deposition with the emergency department physician that the patient learned of the urologist’s involvement at the emergency department level and his alleged failure to address antibiotic treatment during that consultation. The court determined that the patient had no reason to know of the urologist’s alleged breach of a professional duty of care before that time. Because she filed within two years of discovering the urologist’s involvement, the claim was considered timely.

The court then addressed the issue of what, if any, duty of professional care the urologist owed to the patient. The court determined that the urologist’s level of involvement in the patient’s case fell in the realm of an actual physician-patient special relationship. The urologist was responsible for consultations with the emergency department physician, was compensated for his consultation, was consulted specifically on the diagnosis and medical advice regarding this patient’s case, and was responsible for making decisions over her care. Given these factors, the court concluded that the urologist did engage in a physician-patient relationship that gave rise to a professional duty of care toward the patient. The court reversed the trial court’s granting of a motion to dismiss on these claims and remanded for further proceedings.