Copeland v. Good Samaritan Hosp. (Summary)

RETALIATORY DISCHARGE/WHISTLEBLOWING

Copeland v. Good Samaritan Hosp., No. H039933 (Cal. Ct. App. Oct. 22, 2014)

The Sixth District Court of Appeal for California affirmed a trial court’s grant of summary judgment in favor of a hospital and nurse against a former employee’s wrongful termination lawsuit and other claims. The former employee, also a registered nurse, alleged that the hospital terminated her employment and retaliated against her after she complained about patient abuse and on the basis of her request for leave to attend outpatient rehabilitation which had been mandated by the California Board of Registered Nurses following two DUIs the nurse had received in 2006.

According to hospital records, the nurse was terminated after she gave a patient his breakfast tray while he was sitting on the toilet, which was allegedly motivated by her desire to go on break. On the same day, she allegedly berated another employee and told management to “back off” because she had lawyers. After weighing the conflicting stories from each side, the trial court concluded that the plaintiff failed to show that the hospital’s stated reasons for her termination were pretextual. It noted that she had failed to exhaust her administrative remedies with regard to her request for a leave and that some of her claims were barred by the statute of limitations. In addition, it denied her attempt to sue one of her colleagues, explaining that the anti-discrimination laws only permit lawsuits against employers, not other non-employer individuals working for the employer.

The appellate court affirmed the trial court’s judgment in full, concluding that the nurse could not sue for wrongful termination because she never engaged in a protected “whistleblowing” activity – in fact, she only reported patient care issues to local authorities after she had been terminated which was not sufficient to support a charge of retaliation for engaging in protected activity.

Bluestein v. Cent. Wis. Anesthesiology, S.C. (Summary)

DISCRIMINATION – GENDER AND DISABILITY

Bluestein v. Cent. Wis. Anesthesiology, S.C., Nos. 13-3724 et al. (7th Cir. Oct. 15, 2014)

The United States Court of Appeals for the Seventh Circuit affirmed a district court’s grant of summary judgment to an anesthesiology group in a discrimination lawsuit filed by a former shareholder and board member, who alleged that her termination by the group constituted illegal gender and disability discrimination.

Issues arose between an anesthesiologist, who was a full partner, shareholder, and member of the board of directors in a professional corporation providing anesthesia services, and her fellow shareholders after she was injured in a kayaking accident. Her resulting hamstring injury forced her to take time off from her anesthesiologist duties and eventually led her to request an open-ended leave from her fellow anesthesiologist-shareholders. The board of the anesthesiology group, which was comprised of all anesthesiologist-shareholders, voted to deny her request and instead gave her the option to resign. She refused to resign, was subsequently terminated, and then sued the anesthesiology group, alleging that her termination was based on her gender and disability status.

At trial, the court considered each discrimination claim on the merits, but ultimately ruled that she was not eligible for protection under either law because she did not meet the legal definition of “employee” and was, instead, akin to an employer under the statutes. In fact, the trial court regarded her lawsuit as so unreasonable that it ordered her to repay the anesthesiology group’s attorneys’ fees. The anesthesiologist appealed the decision.

On appeal, the appellate court upheld the trial court’s decision, agreeing with the trial court that, in applying the common law test used to define a “servant” under the law, the anesthesiologist-shareholder’s position and authority on the board gave her sufficient control over several key matters, including hiring and firing, which qualify her legally as an “employer” rather than an “employee.” The appellate court cited numerous other legal factors supporting this conclusion, including the fact that the shareholder was not subject to supervision in her work as an anesthesiologist and that she enjoyed an equal vote on all major decisions in the organization.  The appellate court also affirmed the trial court’s award of attorneys’ fees, concluding that the trial court had acted reasonably in concluding that her suit was “frivolous, unreasonable, and without foundation.” The appellate court did not require the shareholder to pay the anesthesiology group’s attorneys’ fees for the appeal itself, reasoning that while the appeal may have been driven by poor judgment, there was “no evidence of bad faith, harassment or obstinacy.”

Sanders v. Legacy Emanuel Med. Center (Summary)

EMTALA

Sanders v. Legacy Emanuel Med. Center, No. 3:14-cv-00690-PK (D. Or. Oct. 16, 2014)

The United States District Court for the District of Oregon dismissed a patient’s Emergency Medical Treatment and Active Labor Act (“EMTALA”) claim against a hospital, finding that the hospital had in fact provided the patient with a medical screening. The patient had presented at the emergency room of the defendant hospital suffering from hyperammonemia. An ultrasound and glucose test were performed on the patient but ultimately failed to diagnosis the patient’s chromobacterium infection. The patient sued alleging that the hospital had violated EMTALA by failing to provide him with a medical screening.

The court held that the hospital did provide him with a medical screening as evidenced by the two tests that had been performed on him, noting that a screening that may have been inadequate to diagnose his condition was very different than a disparate screening practice based upon whether a patient was insured or uninsured. The court also held that the patient failed to allege sufficient facts that his hyperammonemia symptoms were so severe that in the absence of immediate medical attention it would reasonably be expected that the patient would suffer the types of serious bodily harm as outlined in EMTALA, noting that even the patient had admitted that hyperammonemia is not an emergency medical condition. Finally, the court upheld the magistrate’s dismissal of the patient’s claims against several named physicians, finding that EMTALA claims can only be brought against hospitals, and that any claims against named physicians had to be brought under state law negligence actions.

Shah v. Univ. of Tex. Sw. Med. Sch. (Summary)

DISCRIMINATION – NATIONAL ORIGIN AND DISABILITY

Shah v. Univ. of Tex. Sw. Med. Sch., No. 3:13-CV-4834-D (N.D. Tex. Oct. 20, 2014)

The United States District Court for the Northern District of Texas dismissed a medical school student’s Rehabilitation Act and Americans with Disabilities Act (“ADA”) claims against a university, holding that the Eleventh Amendment provides immunity to the university and its named faculty members. Plaintiff, a medical student of Indian decent with Attention Deficit Hyperactivity Disorder (“ADHD”), was dismissed from defendant, a state university affiliated medical school, after receiving three reprimands for professionalism violations and having received failing grades on more than one clinical rotation. The student appealed the dismissal, asserting that the alleged professionalism violations were a direct result of his ethnicity and his ADHD, which constituted a disability. The medical school denied the appeal, and the student sued the medical school and several named faculty members and other administrative representatives. The university sought to have the lawsuit dismissed, arguing that it was immune from the suit under the Eleventh Amendment.

The court held that the medical school, as an arm of the state, was immune under the Eleventh Amendment as it had not violated any of the student’s constitutional rights. The court explained that the student’s due process rights were not violated because when it comes to academic dismissals, the student was only entitled to notice that the medical school was dissatisfied with his progress and it could lead to dismissal. Furthermore, the court explained that there is no substantive due process right to continued education, and, even if there was, the student failed to show that the university’s actions were a “substantial departure from accepted academic norms.”

Gasteazoro v. Catholic Health Initiatives Colo. (Summary)

CORPORATE NEGLIGENCE/MALPRACTICE

Gasteazoro v. Catholic Health Initiatives Colo., No. 13CA0648 (Colo. Ct. App. Oct. 9, 2014)

The Colorado Court of Appeals affirmed a trial court’s ruling in favor of a hospital in a malpractice case, finding there to be no error in the jury instructions pertaining to a nurse’s exercise of judgment in providing patient care. A patient came to a hospital emergency room with symptoms of nausea, dizziness, neck pain, and a headache. The ER physician diagnosed the patient with a cervical sprain, and ordered that she be discharged, despite the fact that her blood pressure remained elevated. Ten days later, the patient experienced a ruptured brain aneurysm, resulting in a hemorrhagic stroke and serious injuries. The patient sued the ER physician for failure to properly diagnose her symptoms and a nurse who aided in her treatment, alleging that the nurse should have challenged her discharge orders because her vital signs (i.e., blood pressure) were unstable. At trial, a neurosurgery expert testified on behalf of the ER physician that the patient’s ailments were not symptomatic of a sentinel bleed from an aneurysm. At the end of the trial, the court instructed the jury that, much like a physician, an unsuccessful outcome does not mean that a nurse was negligent and that a nurse may not be negligent if he or she exercises his or her best judgment in a patient’s care.

The appellate court found the trial court did not err in overruling the patient’s objection to testimony from the neurosurgery expert, as the expert merely relayed opinions related to his specialty and did not stray from the stipulated line of questioning. The appellate court also found that the trial court did not abuse its discretion by including nurses in its “exercise-of-judgment” jury instruction, as language in various state laws supports the extension of protection to health care professionals such as nurses. Additionally, the court noted that existing hospital policy directs nurses to use “good clinical judgment” in carrying out physician orders.

Marotto v. Ohio State Univ. Med. Ctr. (Summary)

STATE IMMUNITY/MALPRACTICE

Marotto v. Ohio State Univ. Med. Ctr., No. 14AP-303 (Ohio Ct. App. Oct. 14, 2014)

The Court of Appeals of Ohio affirmed a lower court’s ruling that a physician was not entitled to state immunity because he was not an officer or employee of the state. The physician, an OB/GYN, was employed by a private group, but was also a courtesy medical staff member at a state university hospital. The plaintiffs sued the physician seeking damages related to injuries suffered as a result of the delivery of their son by the physician. The physician claimed that he was immune because he is a state employee, and had a contract with the state to render medical care. The lower court concluded that the physician was not entitled to immunity and the appellate court affirmed. In doing so, the appellate court rejected the physician’s argument that his application to become a member of the courtesy medical staff, the letter appointing him to the courtesy medical staff, and the bylaws of the state university formed a contract. The appellate court rejected this argument, stating, among other things, “[a]ssuming these documents do form a contract, they do not form a contract of employment.”

MacGlashan v. ABS Lincs KY, Inc. (Summary)

DEFAMATION

MacGlashan v. ABS Lincs KY, Inc., No. 5:13-CV-00135-TBR (W.D. Ky. Oct. 7, 2014)

The United States District Court for the Western District of Kentucky denied a hospital’s motion for partial dismissal of a former nurse manager’s defamation claim. The hospital terminated the nurse for a violation of the Health Insurance Portability and Accountability Act (“HIPAA”). According to the hospital, the nurse took portions of a patient’s medical record home without authorization. After her termination, the nurse filed for unemployment benefits, which were denied when the hospital disputed the claim by stating that the nurse was terminated for violating HIPAA. The nurse sued the hospital claiming that she was wrongfully terminated and that the hospital defamed her.

The court denied the hospital’s motion, finding that the nurse manager sufficiently pled that the hospital used defamatory language when it stated that she violated HIPAA and that the defamatory statements were published to a third party when the hospital informed the Kentucky unemployment office of the violation. The court also concluded that the qualified privilege for defamatory statements related to the conduct of employees did not apply because the nurse sufficiently pled malice by claiming that the hospital’s statements were false and driven by retaliation.

United States v. Millennium Radiology, Inc. (Summary)

FALSE CLAIMS/ANTI-KICKBACK

United States v. Millennium Radiology, Inc., No. 1:11cv825 (S.D. Ohio Sept. 30, 2014)

The United States District Court for the Southern District of Ohio denied the motions to dismiss of two hospitals and their exclusive radiology group in a lawsuit brought by a former physician employee, as a relator on behalf of the government, who alleged that the hospitals and group violated the Anti-Kickback Statute and the False Claims Act.

The relator alleged that the radiology group provided medical director and marketing services to the hospitals free of charge in exchange for the exclusive right to provide radiology services at those hospitals.

In denying the hospitals’ and group’s motions to dismiss, the court rejected their arguments that the relator had not sufficiently alleged that the hospital received remuneration from the hospitals. The court noted that anything of value could constitute “remuneration” and, while the relator had not provided much detail of the remuneration, the fact that the hospital received medical director and marketing services from the group for free means that those services were necessarily provided at below market rates. Further, while the overall arrangement between the hospitals and group should be considered, rather than focusing on the mere fact that no separate compensation was paid to medical directors, the court found that the relator’s allegations were sufficient to survive dismissal. The court also held that the relator sufficiently alleged wrongful intent on the part of the hospitals and group when he claimed that the corporation had been advised by counsel that an exclusive arrangement requiring medical director services to be provided for free could be illegal.

McCullum v. Orlando Reg’l Healthcare Sys. Inc. (Summary)

ADA COMPLIANCE

McCullum v. Orlando Reg’l Healthcare Sys. Inc., No. 13-12118 (11th Cir. Oct. 3, 2014)

The United States Court of Appeals for the Eleventh Circuit affirmed the dismissal/summary judgment of several discrimination claims brought by the parents of a deaf son, individually and on behalf of their son. The parents had claimed that they and their daughter were discriminated against, by association, when the hospital defendants relied on them to provide interpretation services to their son, rather than obtaining a professional interpreter. Further, they claimed their son suffered direct discrimination due to the hospitals’ failure to provide an interpreter. Though health care workers used several communication tactics to help the 14-year-old patient understand his care, including written explanations, pictorial and skill demonstration, books, literature aimed specifically for children, and even an ostomy doll, the parents claimed that their son suffered discrimination and was not able to properly communicate with physicians and other medical staff as a result of the hospitals’ failure to provide an interpreter.

The trial court dismissed the claims of the parents and sister, holding that they had no standing to sue since they had not been directly excluded or denied access to the hospital. The court granted summary judgment to the hospitals on the patient’s claim for an injunction, finding that claim to be too speculative, since there was no evidence that the patient would be likely to need hospital services at any time in the near future or that the hospitals would deny him an interpreter now that they knew he would prefer to have one. The court also granted summary judgment on the patient’s claims for damages, holding that there was not sufficient evidence to show that the hospitals acted with deliberate indifference toward the patient’s disability. Rather, the evidence showed that neither hospital was ever informed that the patient would like to have the services of an interpreter and, further, both hospitals took steps to accommodate the patient’s disability with both believing that they were communicating effectively with the patient. For these same reasons, on appeal, the court affirmed the lower court’s holdings.

Geiger v. Cent. Carolina Surgical Eye Assocs. PA (Summary)

EMPLOYMENT AGREEMENTS/VERBAL MODIFICATION

Geiger v. Cent. Carolina Surgical Eye Assocs. PA, No. COA14-169 (N.C. Ct. App. Oct. 7, 2014)

The Court of Appeals of North Carolina affirmed a trial court’s grant of a directed verdict in favor of an ophthalmologist who sued after her employer failed to pay her the wages she was guaranteed under her written employment contract.

This case involved an ophthalmologist employed by the defendant group (the employer) pursuant to a written employment agreement that included terms for a base salary, as well as bonus. While processing her application for participation, Blue Cross Blue Shield learned that the ophthalmologist was the subject of a National Practitioner Data Bank (“NPDB”) report (she had resigned from her prior employment while an investigation was underway regarding her clinical practice), which she had not disclosed on her application. This resulted in a delay in processing her application for participation in BCBS. Once the employer learned of the NPDB report, it met with the physician and told her that the terms of her employment would be changed – that she could work on a commission basis, but would not be provided a base salary. The ophthalmologist eventually began work for the employer and repeatedly complained that she was not being paid appropriately and pursuant to her contract. Ultimately, she stopped working for the employer and sued for breach of contract and violation of the state’s fair wage act. The employer raised the affirmative defense of modification of contract, alleging that it modified the contract during its discussions with the ophthalmologist and when it sent a modified contract to her two months after that conversation.

At trial, the court granted a directed verdict in favor of the ophthalmologist with respect to the affirmative defense of contract modification, noting that the fair wage law did not permit wages to be modified verbally and there was no evidence that the contract had been modified in writing.