Gallo v. Conemaugh Health Sys. – April 2015 (Summary)

CONFIDENTIALITY OF DRUG & ALCOHOL TREATMENT RECORDS

Gallo v. Conemaugh Health Sys., No. 1101 WDA 2014 (Pa. Super. Ct. Apr. 17, 2015)

The Superior Court of Pennsylvania reversed a lower court’s ruling that a physician must turn over his drug and alcohol treatment records, holding that those records were privileged under the federal Public Health Service Act and the state Drug and Alcohol Abuse Control Act.

This case arose after the estate of a patient who died following toe amputation surgery sued the anesthesiologist and the hospital where he worked. The estate alleged, among other things, that the anesthesiologist was impaired at the time he treated the patient. Notably, the 81-year-old patient’s pre-surgical anesthesia evaluation did not include a physical examination, cardiac evaluation, or a pulmonary assessment, even though the patient had a history of both cardiovascular and pulmonary conditions.

During discovery, the patient’s estate asked the court to compel the physician to release his personal drug and alcohol treatment records after it learned of the physician’s history of alcohol abuse. This history included eight DUIs, the last of which occurred just one month before the patient’s surgery. The physician objected to the estate’s discovery request, asserting federal and state privileges to protect his drug and alcohol treatment information.

The lower court ruled that the physician waived the privileges by stating in a court filing (the Answer) that he was not under the influence of alcohol when he treated the patient. Also, the court ruled that the anesthesiologist’s treatment records should be released because the plaintiffs had shown good cause justifying an exception to the privilege.

In this opinion, the appellate court reversed that lower court ruling, holding that the physician had not waived the privileges applicable to his treatment records and, further, that there is no “good cause” provision in the state statute which would allow disclosure of treatment records in a case such as this.

Hellwege v. Tampa Family Health Ctrs. – April 2015 (Summary)

RELIGIOUS DISCRIMINATION

Hellwege v. Tampa Family Health Ctrs., No. 8:14-cv-1576-T-33AEP (M.D. Fla. Apr. 10, 2015)

The U.S. District Court for the Middle District of Florida granted in part and denied in part a health center’s motion to dismiss a complaint filed by an advanced practice nurse alleging that she was denied employment as a nurse midwife based on her religious beliefs and associations in violation of state and federal law.

The health center advertised that it had openings for four nurse-midwife positions. The APN emailed the health center to inquire about the position and attached her resume. In her resume, the midwife listed that she was a member of the American Association of Pro–Life Obstetricians and Gynecologists (AAPLOG), a pro-life organization that does not believe in prescribing hormonal contraceptives in particular situations. An employee of the health center responded telling the midwife that, due to her membership with the AAPLOG, the health center could not move forward in the interviewing process.

The midwife then filed a complaint alleging that the health center had refused to allow her to apply due to her religious beliefs and membership in an organization, in violation of 42 U.S.C. §300a-7 (“Church Amendments”), Title VII, and state law. The health center then filed a motion to dismiss.

The court examined the Church Amendments which contain “conscience provisions” enacted to make it clear that “receipt of Federal funds did not require the recipients of such funds to perform abortions or sterilizations.” The Church Amendments contain clear language prohibiting discrimination and recognizing individual rights stemming from “religious beliefs or moral conviction.” In reviewing the Church Amendments, the court found that the law created a right but it did not create a right of action. Specifically, the court found that in passing the Church Amendments, Congress did not intend to create a private remedy. Rather, as set forth in the law, enforcement is left to the Office of Civil Rights. The court granted the health center’s motion to dismiss the claim involving the Church Amendments.

However, the court held that the midwife had alleged the essential elements of a claim for religious discrimination under Title VII of the Civil Rights Act and state law. Specifically, she alleged that she was a member of a protected class, that she applied for and was qualified for a position, that despite her qualification she was not hired, and that the position remained open. The court took note of the health center’s argument that the midwife was not qualified for the position, but could not rule on that argument at this stage of the proceedings. The court allowed the midwife’s failure-to-hire claim to go forward.

Sanchez v. Bumann – April 2015 (Summary)

DEFAMATION/STATE PRIVILEGE

Sanchez v. Bumann, Civil Action No. 2012-0072 (D. V.I. Apr. 9, 2015)

The U.S. District Court of the Virgin Islands found that the Chief of Anesthesiology did not have a legal duty to make allegedly defamatory statements to authorities at the hospital and, thus, he did not qualify for an absolute privilege under state law.

An employed anesthesiologist reported to the hospital improper professional practices and inappropriate conduct on the part of the Chief of Anesthesiology. According to the complaint, the Chief of Anesthesiology then began retaliating against the anesthesiologist by falsely reporting that he had a drug problem, was diverting narcotics, and was incompetent. The anesthesiologist filed a lawsuit asserting a claim for defamation and intentional infliction of emotional distress against the Chief of Anesthesiology.

The Chief of Anesthesiology filed a motion to dismiss the lawsuit claiming that his statements were absolutely privileged because he was legally obligated to report the anesthesiologist’s misconduct.

The court found that the Chief of Anesthesiology was not entitled to an absolute privilege because he was not legally compelled to make the statements that he did. The hospital bylaws, while applicable, were not codified laws or regulations, and thus did not create a legal duty on the part of the Chief of Anesthesiology. The court acknowledged that the Chief of Anesthesiology may be entitled to a conditional privilege, stemming from his employment, if his employment required him to make the statements. However, the court rejected the argument that an absolute privilege applies in this situation.

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.