Odeluga v. PCC Cmty. Wellness Ctr. – April 2015 (Summary)

DISCRIMINATION

Odeluga v. PCC Cmty. Wellness Ctr., Case No. 12–cv–07388 (N.D. Ill. Apr. 1, 2015)

The United States District Court of the Northern District of Illinois granted a motion for summary judgment filed by a health center and several physicians. A former fellow brought a lawsuit against a federally-qualified community health center and several physicians who served as co-directors of the health center’s maternal child health fellowship program. The fellow claimed that she had been discriminated against based on her age, national origin, and race, and that she had been subjected to harassment and a hostile work environment.  In support of her claim for discrimination, the fellow alleged that one of the co-directors of the training program had said to her: “You Nigerians like to be overly ambitious. You people are greedy.” The court found that the stray comment, even if made, did not create a “total picture of discrimination” and thus could not be used as direct evidence of discrimination.

The fellow also tried to present indirect evidence of discrimination. However, the record supported that the health center had received complaints about the fellow’s performance from early in the training program. According to her evaluations, the fellow failed to recognize important tissue landmarks during surgery, including a failure to recognize the difference between the bladder and the uterus. The evaluations also supported that the fellow was slow to respond to patient emergencies, and often had trouble remembering basic obstetrical knowledge. One evaluation stated that the physician had left blood and other fluids on her shirt for hours after a delivery, even while seeing other patients. Yet another evaluation noted that the fellow fell asleep in the labor room while a resident delivered a baby without supervision.

In granting the health center’s motion for summary judgment on the discrimination claims, the court held that the fellow could not demonstrate that she was meeting the health center’s legitimate performance expectations and thus could not establish a case for discrimination. The fellow also could not show that she was treated less favorably than other similarly situated fellows in her class. Her age discrimination, harassment, and hostile work environment claims failed for the same reasons.

Goh v. Dep’t of the Air Force – April 2015 (Summary)

PEER REVIEW

Goh v. Dep’t of the Air Force, No. 1:14-cv-00315 LJO SKO (E.D. Cal. Apr. 8, 2015)

The United States District Court for the Eastern District of California affirmed the decision to restrict a physician’s clinical privileges to practice at an Air Force hospital holding that there was sufficient evidence to support the decision.

After the physician discharged a patient who was having a myocardial infarction from the emergency department without diagnosing the patient’s condition, the physician’s privileges were held in abeyance pending a review of his records. A review of 74 records confirmed that in 15 cases there were “significant discrepancies ranging from lack of adequate documentation to failure to meet standard of care.” Based on these findings, the Credentials Committee recommended supervision and medical record review for the next 360 patient interactions. The Credentials Committee then reviewed an additional 102 cases and found discrepancies in 22 cases and concluded that the physician failed to meet the standard of care in 13 of these cases.

The physician requested and was granted a hearing. The hearing committee found that the physician had failed to meet the standard of care in a number of cases. The review panel concluded that the physician failed to meet the standard of care in 22 out of 192 cases and that this was “egregious.” A final decision was made to restrict the physician’s privileges.

The physician sought review of the restriction arguing that the decision was arbitrary or capricious because there was no evidence of mismanagement or inappropriate care. Specifically, the physician asserted that it was unreasonable to find that his conduct fell below the standard of care because no patients suffered adverse outcomes. The physician also argued that the hospital’s documentation requirements were onerous given its paper records system.

The court affirmed the hospital’s decision to restrict the physician’s privileges finding that the decision was supported by sufficient evidence. The court explained that the physician’s argument – that there was no evidence that he failed to meet the standard of care because there were no injured patients – was contrary to common sense. According to the court, the physician’s argument “relies on the logical fallacy that simply because one never becomes aware of something necessarily means that the thing does not exist.” The court concluded that the hospital’s decision was supported by the evidence and reasonable because it based its decision on the review performed by four practicing physicians.

Furthermore, the court rejected the argument that the hospital’s documentation standard was onerous and required that the physician record “each of his impressions.” Rather, the hospital had been critical of the physician’s documentation because he failed to document that he had evaluated alternative etiologies and he failed to document his medical decision-making. Thus, there was substantial evidence to support the hospital’s decision to restrict the physician’s privileges.

Jablow v. Wagner – April 2015 (Summary)

STATE PATIENT SAFETY ACT

Jablow v. Wagner, No. A-4202-13T4 (N.J. Super. Ct. App. Div. Apr. 8, 2015)

The Superior Court of New Jersey, Appellate Division, affirmed a lower court’s ruling that an attorney representing a patient should be disqualified, holding that the attorney impermissibly reviewed information that was privileged pursuant to the state Patient Safety Act. A patient had suffered a complication while undergoing surgery at defendant hospital. The hospital performed a root cause analysis in accordance with the state’s Patient Safety Act. Before the patient filed a medical malpractice action, her attorney received an anonymous copy of the root cause analysis report and related documents in the mail.

First, the hospital filed a motion to compel the return of the documents stating that they were privileged pursuant to the Patient Safety Act. Finding no evidence that the person who disclosed the documents was authorized to do so, the district court agreed with the hospital and required that the documents be returned to the hospital.

Next, the hospital filed a motion to disqualify the patient’s attorney on the basis that the attorney had violated the rules of professional conduct by reviewing the privileged documents and that such review would prejudice the hospital. The district court granted the hospital’s motion and disqualified the attorney from representing the patient.

The appellate court affirmed the lower court’s ruling, holding that the attorney violated the rule of professional conduct and that he should be disqualified. The court explained that the circumstances, including that the report was mailed from an anonymous source and had a footer on every page which stated that the report was prepared exclusively in compliance with the Patient Safety Act, should have alerted the attorney that the documents were privileged. The attorney was thus obligated, under the rules of professional conduct, to stop reading the documents and return them to the hospital.

Cancel v. Sewell v. Cancel – March 2015 (Summaries)

FIDUCIARY DUTY/FRAUD

Cancel v. Sewell, No. A12A1950, et al. (Ga. Ct. App. Mar. 29, 2013)

Four anesthesiologists brought suit against their practice group after they were not selected for continued employment as part of a restructured anesthesiology department. The anesthesiologists claimed that they were wrongfully terminated for reporting their concerns over fraudulent billing practices of their coworkers to both the practice group and the hospital involved. They filed suit against numerous individuals and entities. And, as stated by the court: “A barrage of summary judgment motions filed by the defendants challenged the plaintiffs’ claims on various grounds.”

The appellate court ruled on numerous decisions made by the lower court. One principal outcome was that one of the lead plaintiffs could no longer be a part of the lawsuit, as both the lower and appellate court found against him in all rulings. In addition, acting on the barrage of summary judgment rulings made by the lower court, the appellate court affirmed one, reversed in part the judgment of another, and also dismissed that case in part.

Sewell v. Cancel, No. A12A1951 (Ga. Ct. App. Mar. 30, 2015)

Three of the physicians accused of engaging in a conspiracy that led to the anesthesiologists’ termination challenged the denial of their motion for summary judgment to dismiss the claims of breach of fiduciary duty and fraud. The defendant physicians argued that the decision to terminate the anesthesiologists’ contracts was the result of a decision made by the directors and shareholders of the practice group, i.e., all of its physicians, and was not a breach of contract or fiduciary duty.

The court agreed that the physicians’ acts in question “amounted to an exercise of their business judgement, based upon facts available at the time and the advice of counsel.” The court found the defendant physicians were entitled to summary judgement on the issue of breach of fiduciary duty.  The court also found that the anesthesiologists offered no evidence to support their claim that they were fraudulently induced to sign termination agreements by the defendant physicians.

Faulk v. Cancel, No. A12A1952 (Ga. Ct. App. Mar. 30, 2015)

Hospital defendants challenged the denial of their joint motion for summary judgment over the claims of breach of fiduciary duty and fraud, arguing that the anesthesiologists failed to produce evidence in support of their claims. They also argued that they were entitled to immunity because they were performing peer review activities.

The court determined that the evidence did not establish whether the peer review committee was engaged in the evaluation of medical care quality and efficiency. The court, therefore, vacated the trial court’s denial of summary judgment and remanded in order to determine if the peer review committee was, in fact, evaluating the quality and efficiency of medical care.

Oguntoye v. Medstar Georgetown Univ. Hosp. – April 2015 (Summary)

PEER REVIEW

Oguntoye v. Medstar Georgetown Univ. Hosp., No. 2013 CA 5054 (D.C. Super. Ct. Apr. 3, 2015)

THIS CASE IS NOT AVAILABLE FOR DOWNLOAD.

A physician applied for appointment to the medical staff of Jacobi Medical Center (“JMC”). As a part of its credentialing process, JMC sought recommendations from other physicians concerning Dr. Oguntoye. A physician completed the recommendation form and spoke with a JMC physician employee. While the outside physician recommended Dr. Oguntoye, he did so with reservation. Following this discussion, JMC advised Dr. Oguntoye to withdraw his application due to questions raised by the qualified recommendation. Dr. Oguntoye filed claims for defamation, false light invasion of privacy, tortious interference with prospective advantage, tortious interference with contract, and racial discrimination. He also sought to compel production of the completed recommendation form and any notes of the discussion with the outside physician. After this request was denied, the applying physician asked for reconsideration.

The court found that the applying physician’s request for reconsideration failed to establish a clear error of law made by the court upon which reconsideration could be based. Additionally, the request did not establish any new facts that would justify reconsideration. The hospital’s use of the recommendation form and any notes made of the conversation about the information on the form was protected under the peer review process, and therefore not discoverable. The court did grant Dr. Oguntoye’s request to amend the complaint, as it was not made in bad faith and does not create new issues.

Clark v. S. Broward Hosp. Dist. – March 2015 (Summary)

GENDER DISCRIMINATION

Clark v. S. Broward Hosp. Dist., No. 13-14848 (11th Cir. Mar. 31, 2015)

The United States Court of Appeals for the Eleventh Circuit affirmed the dismissal of numerous gender discrimination and retaliation claims brought under Title VII of the Civil Rights Act by a physician against the defendant hospital.

Plaintiff Dr. Clark, a female physician, was employed at the defendant hospital in its critical care department (“CCD”). Dr. Clark had the responsibility to create the CCD physicians’ monthly work schedule. (She was paid for this service.)

A number of events led to Dr. Clark’s legal actions. When the position of Director of the CCD opened up, Dr. Clark was advised that she should not apply because she was too direct and confrontational. Before selecting a permanent CCD Director, the hospital chose a male surgeon from a different department to act as the Interim Director. Dr. Clark complained to the hospital’s human resources department that she had been passed over for this position because she was a woman.

A month later, the Interim Director scheduled a meeting to discuss physicians’ complaints that Dr. Clark was creating unfair schedules. All 14 CCD physicians attended. During the meeting, two male physicians stated that Dr. Clark was intimidating and unapproachable and created unbalanced work schedules. The meeting ended abruptly when Dr. Clark suddenly left and declared she was taking a two-month leave of absence (“LOA”) beginning the next day.

A few days later, during her LOA, Dr. Clark discovered she could no longer log into the scheduling system and that the Interim Director had taken over her scheduling responsibilities. Dr. Clark filed a gender discrimination complaint with the EEOC.

The hospital investigated Dr. Clark’s complaints and found no evidence of gender discrimination with any of them. The hospital concluded that Dr. Clark had many interpersonal conflicts with her coworkers.

During this same time period, Dr. Clark applied for the permanent CCD Director position. Dr. Clark was interviewed, but the hospital selected another candidate, as it was looking for someone outside the department and with previous supervisory experience. Dr. Clark then took another LOA, this time for three months.

A year later, the new CCD Director began receiving complaints that Dr. Clark was bullying and threatening other physicians, which included the use of racial and religious slurs. It was alleged Dr. Clark stated that she was going to leave the hospital “in a trail of blood” and “bring down the group.” After an independent investigation, the hospital found that Dr. Clark had been using bullying and threatening behavior and terminated her employment.

Dr. Clark sued on the claims that she was discriminated against based on her gender when the hospital took away her scheduling responsibilities, failed to promote her, and terminated her. Additionally, she alleged that the hospital retaliated against her for filing a complaint with the EEOC. The hospital argued that, regardless of Dr. Clark’s gender, it would have made the same decision based on her conduct. The district court dismissed the suit and Dr. Clark appealed.

The appeals court affirmed the lower court’s ruling, holding that Dr. Clark failed to rebut any of the hospital’s legitimate decisions. The court explained that the fact Dr. Clark had lost her paid department scheduling position while she was on a self-imposed LOA was neither unreasonable nor an adverse action by the hospital. Moreover, Dr. Clark was not discriminated against when she did not receive a promotion to Director; she was simply unqualified by the hospital’s hiring criteria.

The court also found no gender discrimination on the hospital’s part by its termination of Dr. Clark’s employment. The hospital terminated her contract not because of Dr. Clark’s gender but due to the multiple reports of her using threatening behavior and inflammatory language. Lastly, the court held that the hospital did not fire Dr. Clark in any retaliation. The court found that Dr. Clark failed to show a causal connection between her complaint to the EEOC and her termination; the temporal gap of 15 months between the two events was too long.

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

PEER REVIEW IMMUNITY

Valfer v. Evanston Nw. Healthcare, No. 1-14-2284 (Ill. App. Ct. Mar. 26, 2015)

The Illinois Appellate Court affirmed the dismissal of an obstetrician’s breach of contract claim against a hospital, holding that the hospital was immune under the state’s peer review statute. Plaintiff, an obstetrician, lost his privileges at defendant, a hospital, after a reappointment peer review committee determined that at least 50% of his surgical cases lacked demonstrable indications for surgical intervention. The obstetrician alleged that the hospital breached its bylaws (the alleged contract) when the hospital allowed competitors to review his work and to testify against him during his reappointment denial hearing. The obstetrician claimed that his reputation was damaged and sought monetary damages. The hospital argued, and the lower court agreed, that it was immune from liability under the state’s peer review statute. The obstetrician appealed.

The appellate court affirmed the lower court’s holding, stating that the hospital was immune from civil damages unless the obstetrician alleged that the hospital acted willfully and wantonly, as defined by the statute, which he failed to do. The statute requires that the obstetrician pled or proved that there was some type of harm to his safety or the safety of others, not just to his reputation. The court explained that if a physician could sue for civil damages every time he or she lost privileges, the immunity in the peer review statute would be meaningless and medical peer review would be discouraged for fear of lawsuits seeking money damages.

Mixon v. Bronson Health Care Grp. – March 2015 (Summary)

EMTALA

Mixon v. Bronson Health Care Grp., No. 1:14-cv-330 (W.D. Mich. Mar. 31, 2015)

The United States District Court for the Western District of Michigan dismissed an Emergency Medical Treatment and Active Labor Act (“EMTALA”) claim brought by a patient against a hospital, holding that the patient did not have legal standing to assert the claim. While in labor, plaintiff, a patient, was admitted to defendant, a hospital. The patient delivered a live boy of 22 weeks’ gestation who died within minutes of his birth. The patient sued, alleging that the hospital violated EMTALA by failing to provide her baby with a medical screening examination and stabilizing treatment. The patient herself, and not the estate of her deceased son, sought damages for the emotional distress caused by the hospital’s failure to assist or resuscitate her baby.

The court dismissed the EMTALA claim, holding that the patient did not have standing to assert such a claim. The court stated that the patient did not suffer any actual personal harm, as is required under EMTALA. Moreover, the court explained that her EMTALA claim was actually a negligent infliction of emotional distress claim under state law. The patient had alleged the harm done was her emotional distress caused by the hospital’s non-compliant EMTALA actions. As described by the court, EMTALA is not a federal malpractice or negligence law.

Lastly, the court found that there was no disparate treatment given to the baby by the hospital, a key element of any EMTALA claim.

REPORT AND RECOMMENDATION

ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

Methodist Health Servs. Corp. v. OSF Healthcare Sys. – March 2015 (Summary)

ANTITRUST

Methodist Health Servs. Corp. v. OSF Healthcare Sys., Case No. 1:13-cv-01054-SLD-JEH (C.D. Ill. Mar. 25, 2015)

The U.S. District Court for the Central District of Illinois ruled that the plaintiff Methodist health services corporation provided services through various operating provisions, including acute care hospitals. Meanwhile, Saint Francis Medical Center, the largest hospital in the region, was the fourth largest medical center in the State of Illinois. According to Methodist, Saint Francis received approximately 53 percent of the market share for inpatient services, and over 50 percent of the market share for outpatient services. In order to retain this percentage, Methodist alleged that Saint Francis threatened insurers that they will withdraw from the insurance provider’s network if the insurer engaged with a competing health care provider, such as Methodist. These exclusionary agreements were alleged to cut off Methodist from 60 percent of the health insurance market in the region. Methodist filed complaints against Saint Francis, stating that Saint Francis engaged in exclusive dealing, monopolization, attempted monopolization, tortious interference with prospective economic advantage, and unfair and deceptive acts and practices. Saint Francis brought a motion for judgment on the pleadings, arguing that Methodist failed to adequately plead plausible relevant product markets or substantial foreclosure in those markets.

The court found that Methodist’s claims were sufficient to survive the motion for judgment on the pleadings. The court found that Methodist properly defined the relative product markets, dismissing the argument that sales to commercial health insurers for inpatient and outpatient surgical services are not interchangeable with the sales of services to government payers. The court also disagreed with Saint Francis’ argument that Methodist had failed to show a substantive foreclosure of competition in the relevant market. The court determined that, with the benefit of discovery, Methodist will likely be able to establish that it was foreclosed from some portion of the health insurance market. The court did, however, grant Saint Francis’ motion to leave to file a reply, and also granted Methodist’s leave to file a surreply.

U.S. ex rel. Hagood v. Riverside Healthcare Ass’n – March 2015 (Summary)

FALSE CLAIMS ACT

U.S. ex rel. Hagood v. Riverside Healthcare Ass’n, Civil Action No. 4:11cv109 (E.D. Va. Mar. 23, 2015)

The United States District Court for the Eastern District of Virginia dismissed multiple False Claims Act (“FCA”) claims brought by a pair of relators against a hospital, holding that the allegations failed to meet the FCA’s heightened pleading requirements. The relators were employed as the emergency room’s administrator and as the Administrator of the defendant hospital. The relators alleged that due to the hospital’s faulty software system, the hospital submitted false claims to the government for services not rendered, pharmaceuticals not administered, services that were “upcoded,” and for services that were provided by unqualified personnel. Additionally, the former administrator relator claimed she was retaliated against after she informed the hospital that certain billing practices were illegal, and was subsequently fired. In their complaint, the relators provided a table of individuals, including the patient’s name, account number, date of service, and service item code, who allegedly were improperly charged by the hospital. The relators assert that twenty to thirty percent of the patients listed in the table were covered by a Government Payor program because Government Payors served at least twenty to thirty percent of the hospital’s patient base. The hospital motioned to dismiss the claims stating that the relators failed to meet the FCA’s heightened pleading requirements, specifically, that the relators failed to allege any particular false claim that was actually presented to the government for payment.

The relators conceded that their claims for retaliation and for billing for services provided by unqualified personnel failed to satisfy the FCA’s heightened pleading requirements, therefore the court dismissed them. Next, the court dismissed the relators’ remaining claims, that the hospital fraudulently billed for services not rendered, pharmaceuticals not administered, and “upcoded” services, because the relators’ allegations failed to identify specific false claims that were actually presented to Government Payors. Furthermore, the relators’ allegations failed to reasonably imply that the hospital submitted false claims to the government for payment. The court explained that the relators failed to connect any overcharging to the submission of bills to Government Payors. Instead, the relators only alleged that because twenty to thirty percent of the hospital’s patients are supported by Government Payors, twenty to thirty percent of the billings must violate the FCA.