Williams v. City of Philadelphia (Summary)

PEER REVIEW PRIVILEGE

Williams v. City of Philadelphia, No. 08-1979 (E.D. Pa. Nov. 4, 2014)

The District Court for the Eastern District of Pennsylvania required a company to produce mortality and sentinel event reviews in a class action suit brought by prison inmates.

Prison inmates alleged that overcrowding and triple-celling resulted in a dangerously unhealthy and unsafe environment, amounting to unconstitutional conditions of confinement. The prison inmates submitted a discovery request to the City of Philadelphia, seeking mortality and sentinel event reviews for the deaths of those in custody between the dates of January 2012 and December 2013. The city then sought to obtain the requested information from a contracted medical services provider. However, the medical services provider refused to turn over the documents, arguing that the documents are not discoverable because they are privileged and protected under the state’s peer review privilege law.

The court upheld the long-standing practice of refusing to recognize the peer review privilege in the federal court, finding that the medical services provider made no significant showing as to why the reviews should be withheld from discovery. The court also determined that the safety and efficiency of the prison system were sufficiently important, outweighing any potential harm that may be caused by disclosure.

Disability Rights North Carolina v. Frye Reg’l Med. Ctr. (Summary)

PEER REVIEW PRIVILEGE

Disability Rights North Carolina v. Frye Reg’l Med. Ctr., No. 5:13-CV-102 (W.D. N.C. Nov. 7, 2014)

The United States District Court of the Western District of North Carolina denied a hospital’s assertion of the peer review privilege on documents requested by a federal protection and advocacy agency (the “P&A”). The request involved documents related to a patient who died after an altercation with hospital staff that resulted in the individual being placed in restraints. The P&A initiated an investigation of the patient’s death for abuse or neglect. After the P&A requested the hospital’s root cause analyses and peer review documents, the hospital asserted that those records were protected by the state peer review statute.

The court denied the hospital’s peer review privilege assertion, holding that the statute did not apply to this circumstance. The court explained that the peer review privilege only applied in discovery or introduction of evidence in civil actions. The P&A’s request was pursuant to an investigation of the death of a patient with mental illness, not a civil lawsuit. Additionally, the state peer review statute is preempted by the federal Protection and Advocacy for Individuals with Mental Illness Act (“PAIMI”), which explicitly states that state laws limiting access for PAIMI proposes are prohibited.

Ware v. Bronson Methodist Hosp. (Summary)

INVASION OF PRIVACY

Ware v. Bronson Methodist Hosp., No. 307886 (Ct. App. Mich. Nov. 4, 2014)

A patient specified on her privacy authorization form that her personal information was not to be shared with a particular nurse at the hospital, the girlfriend of the patient’s ex-husband. However, the nurse did access the patient’s medical files. She proceeded to share the patient’s confidential information with the patient’s ex-husband. The patient then sued the hospital for vicarious liability, negligence, and breach of contract.

The court found that the hospital was not vicariously liable for the nurse’s private actions. The “vindictive” actions of the nurse were not in the scope of her employment and did not further the interests of the hospital. The court also determined that the trial court improperly judged the hospital’s patient confidentiality procedures, because the reasonableness of medical judgment cannot be evaluated by a jury. However, the court affirmed the trial court’s decision allowing a jury to hear arguments on the hospital’s enforcement of existing patient confidentiality procedures. Claims of enforcement do not address medical standards of care, meaning the jury should be permitted to hear and resolve the claim.

Click here to read the Court’s Majority Opinion

Click here to read the Dissenting Opinion

Hansen v. Jackson (Summary)

PHYSICIAN EMPLOYMENT

Hansen v. Jackson, No. 13-14-00039-CV (Tex. Ct. App. Nov. 6, 2014)

The Court of Appeals of Texas affirmed in part and reversed in part a lower court’s dismissal of a cardiovascular (“CV”) surgeon’s breach of contract, business disparagement, and tortious interference claims against a hospital. The CV surgeon was hired by a third-party employer to work exclusively at a hospital. The CV surgeon’s contract was for a five-year term. The third-party employer could only terminate the CV surgeon for cause during the first three years, then without cause for the remainder of the contract if “annual practice losses” exceeded $500,000. Furthermore, the CV surgeon was guaranteed due process rights if he was terminated for cause.

Two years into his contract, the hospital was acquired by a system. The system’s vice president recommended that the hospital terminate the CV surgeon’s contract based on his high “clinic losses” as compared to his base annual salary of $750,000. Around this time, the CV surgeon began feuding with the hospital’s cardiologists. The hospital requested that the third-party employer terminate the CV surgeon’s contract, citing his behavior with the cardiologists and the fact that his “clinic losses” were over the $500,000 threshold. The CV surgeon brought suit claiming that (1) the third-party employer breached their contract, (2) the hospital damaged his economic interests by disparaging him, and (3) the hospital interfered with his contract with the third-party employer.

While a trial court granted summary judgment in favor of the hospital, the appellate court held that the CV surgeon’s breach of contract and tortious interference claims should proceed to trial. The appellate court explained that the third-party employer did not conclusively establish the grounds on which it terminated the CV surgeon. If he was terminated for cause, then the CV surgeon was entitled to a due process hearing. If he was terminated without cause, then the third-party employer did not present evidence that “clinic losses” were actually “practice losses” as stated in the contract. Moreover, this ambiguity could prove that the hospital intentionally interfered with the CV surgeon’s contract. However, the ambiguity was not enough to show that the hospital acted with malice, as is required for a business disparagement claim.

U.S. ex rel. Troxler v. Warren Clinic, Inc. (Summary)

FRAUD AND ABUSE

U.S. ex rel. Troxler v. Warren Clinic, Inc., No. 11–CV–808–TCK–FHM (N.D. Okla. Nov. 5, 2014)

The United States District Court for the Northern District of Oklahoma granted a motion to dismiss filed by a physician group and affiliated hospital in defense of a qui tam lawsuit. The lawsuit was filed by a physician formerly employed by the group, who argued that the group violated the False Claims Act by permitting “unqualified personnel” to obtain and record patients’ History of Present Illness (“HPI”) during office visits. The physician claimed that this was a violation of the Evaluation and Management Services Guide (“Guide”) published by the Department of Health and Human Services, which does not specifically authorize non-physicians to obtain a patient’s HPI.

The court found this argument unpersuasive. It noted that the physician’s lawsuit was based on a “lone provision” in the Guide that had not been demonstrated to have a legally binding effect on healthcare providers. Furthermore, it explained that even if the Guide were legally binding, perfect compliance with HPI regulations is not a condition of payment. Consequently, the court held that a failure to meet the Guide’s requirements could not possibly give rise to a false claim. The court dismissed the physician’s lawsuit with prejudice.

U.S. ex rel. Mastej v. Health Mgmt. Assocs., Inc. (Summary)

FRAUD AND ABUSE

U.S. ex rel. Mastej v. Health Mgmt. Assocs., Inc., No. 13-11859 (11th Cir. Oct. 30, 2014)

The United States Court of Appeals for the Eleventh Circuit affirmed in part and reversed in part a district court’s dismissal of a qui tam complaint against a hospital. The complaint alleged that the hospital had entered into illegal financial relationships with ten physicians, in violation of the False Claims Act, the Stark Law, and the Anti-Kickback Statute. The financial relationships allegedly included lucrative on-call contracts for six neurosurgeons who were not required to provide on-call services and a golf trip benefit for all ten physicians.

The qui tam relator who filed the claim was formerly the CEO at one of the hospital’s campuses; prior to that, he served as the Vice President of Acquisitions and Development. By virtue of these positions, the relator was familiar with the hospital’s billing practices and with its policies on the use of corporate jets. According to the relator, the hospital sought payment from Medicare for services rendered to patients who had been illegally referred by the ten physicians. In addition, the hospital illegally certified to the government that it was supplying medical services in compliance with applicable laws.

The hospital did not contest that the financial incentives were paid as alleged. Rather, it argued that the complaint had failed to state fraud with particularity. Under the federal rules of civil procedure, lawsuits alleging fraud must explain the circumstances of the fraud with “particularity” – i.e., must explain the fraud with a certain fullness of detail. The hospital argued that the complaint failed to establish that any of the ten physicians ever referred patients, or that the hospital ever submitted any false claim for an illegally referred patient, or that the government ever paid any false claim for an illegally referred patient.

The court focused on the significance of the relator’s former roles and duties as an employee of the hospital. It concluded that his complaint had adequately established the existence of fraudulent claims during his time as an employee; however, it agreed with the hospital that the complaint gave “no factual basis” for his claim that the physicians continued to refer patients or submit false claims after he left.

The relator attempted to overcome this by invoking a new version of the False Claims Act. The court was unpersuaded. It noted that the relator had never mentioned the newer version of the False Claims Act in any part of his complaint, and explained that even under the newer law he would still need more evidence to prove that false claims were made after he left the hospital. Consequently, it affirmed the district court’s dismissal of those claims that occurred after the relator left his employment with the hospital, but reversed the district court’s dismissal of the other claims and remanded the case for further proceedings.

Adams-Ezaro v. Hosp. San Gerardo — Oct. 2014 (Summary)

EMTALA

Adams-Ezaro v. Hosp. San Gerardo
No. 13-1918 (FAB) (D. P.R. Oct. 30, 2014)

The United States District Court for the District of Puerto Rico denied a hospital’s motion to dismiss an Emergency Medical Treatment and Active Labor Act (“EMTALA”) claim which alleged that the hospital violated EMTALA’s screening provision. Plaintiff is the estate of a patient who died in the emergency room of the defendant hospital after sustaining several gunshot wounds. The patient died while waiting for an ambulance to transfer him to another hospital. The estate alleged that the hospital violated EMTALA’s screening provision because it did not provide the patient with surgical and radiological consultations, perform a thoracotomy, or try to identify the source of his bleeding and hypotension. Additionally, the plaintiff alleged that the hospital did not follow its protocols for patients with gunshot wounds or its Advance Trauma Life Support program. The court held that the allegations that the hospital violated EMTALA’s screening provision were plausible and that discovery in the case was warranted.

Levitin v. Northwest Community Hosp. (Summary)

PEER REVIEW PRIVILEGE

Levitin v. Northwest Community Hosp., N.D. Ill. (No. 13 C 5553 Oct. 31, 2014)

The U.S. District Court for the Northern District of Illinois ruled that the state’s peer review privilege did not apply in a federal employment discrimination lawsuit brought by a physician. The physician claimed that the hospital peer review committees discriminated against her – the only female, Russian, Jewish surgeon on staff – while ignoring similar actions of non-Russian, non-Jewish male surgeons. To prove her claims, she sought peer review records regarding surgeons who she claimed were similarly situated to her. The court first held that any documents not generated specifically for peer review, such as credentialing and personnel files, did not fall under the scope of documents covered by the peer review privilege. Furthermore, the court found that the peer review privilege did not apply to the documents in this case because the information sought is relevant to Title VII claims of discrimination. According to the court, the interest of eradicating discrimination outweighs the interest of promoting candor in the peer review process. When the hospital raised concerns that the peer review documents would be broadly distributed once produced, the court assured that the peer review materials would remain protected from widespread dissemination.

Newby v. Bon Secours St. Francis Family Medicine Residency Program (Summary)

DUE PROCESS

Newby v. Bon Secours St. Francis Family Medicine Residency Program, No. 3:14V459 (E.D. Va. Oct. 27, 2014)

The U.S. District Court for the Eastern District of Virginia dismissed claims brought by an African-American resident who resigned after failing her first year rotations three times alleging that she was denied her due process rights under the Fourteenth Amendment. To prove her claim, the plaintiff was required to show that she was denied a right guaranteed by the Constitution under the color of state law. The court ruled that she failed to show that she had a constitutionally protected right to continue in her graduate program or that the Residency Program or Residency Directors who gave her unfavorable recommendations were state actors or acting under color of state law.

NOTE:  There are two documents for this case: 1 – is an order and 2 – is the Report and Recommendation.

1. Order
2. Report and Recommendation

Simpson v. Cedar Springs Hosp., Inc. (Summary)

QUALITY MANAGEMENT PROGRAM – COLORADO STATE LAW PRIVILEGE

Simpson v. Cedar Springs Hosp., Inc., No. 13SA124 (Colo. Oct. 14, 2014)

The Supreme Court of Colorado held that a trial court erred in ruling that the state’s quality management privilege only applies to hospitals with authoritative documentation of approval from the Colorado Department of Public Health and Environment (“CDPHE”). The court concluded that Colorado hospitals have an approved quality management program so long as they are licensed by the CDPHE.

This legal issue arose during the discovery phase of a medical malpractice case against a hospital and affiliated psychiatrists. A former patient sued the hospital after the psychiatrists allegedly prescribed inappropriate medications to him, causing severe adverse reactions. When the patient requested the minutes from two meetings of the hospital’s quality management committees, the hospital refused, citing the state’s quality management privilege. In the trial court, the patient argued that the quality management privilege did not apply to these meetings because the hospital failed to submit a schedule for implementation of its quality management plan, a necessary requirement under CDPHE regulations.

In response, the hospital explained that a quality management program is required for a hospital to maintain its CDPHE license. Since the CDPHE permitted the hospital to keep its license throughout all of the time periods relevant to the case, the hospital argued that this amounted to de facto approval of the quality management program. The court sided with the hospital, concluding that the trial court misunderstood the purpose of the quality management privilege, which is meant to promote frank and honest discussions about quality management. The Supreme Court of Colorado further noted that nothing in the privilege statute or regulations suggested that the quality management privilege would only attach to a facility that complies with every CDPHE regulation; therefore, the hospital did not lose the privilege simply by failing to turn its schedule in on time. The Supreme Court of Colorado reversed the trial court’s order and permitted the hospital to refuse to disclose the documents.