EEOC v. Midwest Reg’l Med. Ctr. (Summary)

NURSE CLAIMS DISCRIMINATION

EEOC v. Midwest Reg’l Med. Ctr., No. CIV-13-789-M (W.D. Okla. Aug. 7, 2014)

The United States District Court for the Western District of Oklahoma granted in part and denied in part cross motions related to the EEOC’s disability claim brought on behalf of a nurse. The nurse began missing work at her employer hospital a month after she began radiation treatment for skin cancer. Over the next several months, the nurse called in sick eight times, which led her supervisor to put her on a leave of absence. The nurse was ultimately terminated for missing several additional days while she was on leave. The EEOC brought this action on behalf of the nurse, alleging the hospital discriminated against her based on her disability.

The court held that a motion to dismiss was not appropriate because there are material issues of fact that need to be decided at a trial. The court concluded that the nurse did have a disability, cancer; however, there was a genuine issue over whether the nurse was discriminated against based on her disability. While the hospital proffered a legitimate nondiscriminatory reason, excessive absenteeism, the EEOC presented sufficient evidence that the hospital’s reason for terminating the nurse was pretextual, based on inconsistencies in its story. The district court focused on the fact that the hospital expected the nurse to still call off work even though she was placed on a leave of absence. The district court did find that the hospital presented sufficient evidence to establish a question as to whether the nurse mitigated her damages.

Hendricks v. Bronson Methodist Hosp., Inc. (Summary)

QUI TAM

Hendricks v. Bronson Methodist Hosp., Inc., No. 1:13-CV-294 (W.D. Mich. July 30, 2014)

The United States District Court for the Western District of Michigan dismissed a physician-relator’s qui tam claims for being insufficiently vague, while allowing a personal claim of termination of employment in violation of public policy to survive.

A physician-relator brought a qui tam action against a hospital alleging that hospital-employed physicians had certified sonogram reports without having acquired the expertise to review them, and, in some instances, issued a report without reviewing the associated sonograms, claiming that billing the federal and state governments based on these practices violated the federal False Claims Act and the Michigan Medicaid False Claims Act. The physician-relator also claimed that soon after she began complaining to the hospital about these practices, she was terminated.

The court found that the physician-relator’s allegations did not satisfy the heightened pleading requirements of those alleging fraud, deeming it insufficient for her to merely point out the existence of a fraudulent scheme, without specifying a given time or place of the alleged violations. The court also found that the physician-relator did not articulate a particular injury – she alleged that the government may have paid claims it would not otherwise have paid – and that was too vague. The physician-relator then argued that a relaxed pleading standard should apply to her, but the court found that her claims lacked the personal knowledge required to meet a relaxed standard. Thus, the court dismissed the qui tam claims.

However, the court did not dismiss the physician-relator’s claim in her individual capacity that the hospital terminated her employment in violation of state public policy (termination for failure or refusal to violate the law during employment), and allowed that claim to go forward.

Powell v. Ashland Hosp. Corp. (Summary)

NEGLIGENT HIRING/SUPERVISION/VICARIOUS LIABILITY

Powell v. Ashland Hosp. Corp., Nos. 2012-CA-002019-MR, 2012-CA-002073-MR (Ky. Ct. App. Aug. 1, 2014)

The Court of Appeals of Kentucky affirmed the decision of the trial court to grant summary judgment in favor of a defendant-hospital and against a plaintiff-nurse, and also affirmed a jury verdict in favor of the plaintiff-nurse against the defendant-physician, in a case in which a physician allegedly kicked a nurse.

The nurse filed a lawsuit against a physician for assault and battery after the physician allegedly kicked her after surgery, and, based on his actions, also filed a claim against the hospital for negligent hiring/supervision, and vicarious liability, among other things, based on the physician’s actions. The trial court granted summary judgment in favor of the hospital, which the nurse appealed, and a jury rendered a verdict in favor of the nurse, which the physician appealed.

For the nurse’s appeal, the appeals court found that her claim against the hospital was barred by the exclusive remedy provision in the Workers’ Compensation Act (“Act”) because the record was devoid of any material that the hospital intended for, or engaged in any conduct to encourage, the physician to kick the nurse.

Also, for the nurse’s appeal, the appeals court also found that the hospital was not vicariously liable for the actions of the physician since he was not the hospital’s agent – the nurse did not present any evidence that the physician was acting within the scope of his duties to the hospital when he injured the nurse, which is necessary to establish vicarious liability.

Finally, for the nurse’s appeal, the appeals court affirmed the trial court’s limitation of the nurse’s discovery. The trial court performed an in camera review of the physician’s personnel file, disciplinary records and employee grievances, then deemed a portion of the documents discoverable. The nurse claimed on appeal that she was entitled to review the entire file; however, the appeals court found no abuse of discretion in the trial court performing the in camera review and providing information to the nurse that was relevant to her claims.

The physician appealed, contending that the trial court erred by admitting evidence of his prior bad acts, and that the award of punitive damages was excessive. The appeals court found that the trial court’s admittance of the physician’s prior bad acts was not an abuse of discretion because the physician had placed his mental state in dispute to show that he lacked the intent to kick the nurse. The appeals court also found that there was no record indicating the physician raised the issue of excessive damages in trial court and, therefore, that claim was not properly preserved for review.

Wong v. Sunrise Mountainview Hosp., Inc. (Summary)

HCQIA IMMUNITY

Wong v. Sunrise Mountainview Hosp., Inc., No. 61375 (Nev. July 29, 2014)

The Supreme Court of Nevada upheld a district court’s dismissal of an anesthesiologist’s lawsuit against a hospital, reasoning that the Health Care Quality Improvement Act of 1986 (“HCQIA”) rendered the hospital immune to the suit. The anesthesiologist had sued the hospital after a peer review committee revoked his medical staff membership and privileges.

A hospital can qualify for immunity under the HCQIA so long as its actions meet certain conditions. In particular, the physician under review must be afforded adequate notice and an adequate hearing – otherwise, the hospital will not be afforded immunity under the HCQIA. The anesthesiologist argued that the hospital had not met this adequate notice and hearing requirement, and therefore was not immune to his lawsuit.

The Supreme Court of Nevada ruled that the anesthesiologist had waived his right to challenge the notice and hearing requirement, since he had not raised any objections during the hospital’s own peer review hearing. It concluded that the trial court had not abused its discretion in granting HCQIA immunity to the hospital.

Appleyard v. Governor Juan F. Luis Hosp. and Med. Ctr. (Summary)

TEMPORARY RESTRAINING ORDER

Appleyard v. Governor Juan F. Luis Hosp. and Med. Ctr., CIVIL NO. SX-14-CV-282 (V. I. Super. Ct. July 28, 2014)

The Superior Court of the Virgin Islands granted a temporary restraining order enjoining a hospital from maintaining and enforcing a suspension against a spinal surgeon until a hearing can be held to determine if a preliminary injunction is appropriate.

The plaintiff, a spinal surgeon, was suspended from defendant, a government run hospital, for disruptive behavior. The surgeon brought a motion for a temporary restraining order requesting the court to enjoin the hospital from enforcing the suspension and from reporting the suspension to any national reporting database because the hospital did not follow its own bylaws and procedures. Additionally, the surgeon alleged that the hospital did not provide mandatory notice as required by Virgin Island statute for government employees. As a result of these omissions, the surgeon claimed that her due process rights were violated.

The court held that a temporary restraining order was appropriate until a hearing was held to determine whether a preliminary injunction should be entered. The court stated that the surgeon established a reasonable probability that she would succeed at a preliminary injunction hearing because the hospital’s suspension letter did not include information that was required by law. Furthermore, the surgeon would suffer irreparable harm if an erroneous suspension is reported to a national reporting database and no patients are put at risk from the temporary restraining order because the suspension is for behavioral concerns and not her standard of care. Lastly, the temporary restraining order is in the public’s interest because the public has a strong interest in the government following its own rules and laws.

In re Otero County Hosp. Ass’n, Inc. (Summary)

NEGLIGENT CREDENTIALING

In re Otero County Hosp. Ass’n, Inc.
No. 11-11-13686 JL, et al. (Bankr. D.N.M. July 25, 2014)

The United States Bankruptcy Court for the District of New Mexico denied cross-motions for summary judgment and held that there were issues of disputed fact in a case brought by a group of tort claimants alleging that a hospital management company was negligent in credentialing and supervising a physician who was performing experimental back surgeries.

The management company entered into an administrative services agreement with a hospital. The agreement required the management company to provide key executives, including a Chief Executive Officer (“CEO”), to the hospital. Under the agreement, the hospital retained responsibility for all matters requiring professional medical judgment, including credentialing of physicians. The hospital entered into an employment agreement with a physician to provide medical services in the specialty of anesthesia and pain management. The physician was also granted temporary privileges. The letter sent to the physician informing him of the grant of temporary privileges was signed by the CEO. During the physician’s tenure, his proctor accused him of performing “experimental surgery,” and an insurer suspended his participation in its plan because of questions about whether he was credentialed to perform back surgery. Despite these concerns, the physician was allowed to continue to perform these surgeries at the hospital.

The plaintiffs, a group of patients who apparently had spine surgery performed on them by the physician, brought suit alleging that the management company was negligent “in the hiring, privileging, and supervision” of the physician. The management company argued that it had no right or responsibility to engage in these activities under the agreement with the hospital and, therefore, owed no duty to the plaintiffs.

The court disagreed with the hospital and held, among other things, that the agreement between the management company and the hospital did not limit the company’s duty to the plaintiffs. Further, because there were factual disputes regarding whether the management company undertook actions related to privileging and supervising the physician, including granting him temporary privileges, the court held that summary judgment was inappropriate.

U.S. ex rel. Donegan v. Anesthesia Assocs. of Kansas City, PC (Summary)

FALSE CLAIMS ACT

U.S. ex rel. Donegan v. Anesthesia Assocs. of Kansas City, PC
No. 4:12-CV-0876-DGK (W.D. Mo. July 28, 2014)

The United States District Court for the Western District of Missouri granted in part and denied in part a suit alleging violations of the False Claims Act brought by a certified registered nurse anesthetist (“CRNA”) against his former employer, ananesthesia group. According to the CRNA’s complaint, the anesthesia group submitted bills to Medicare claiming that anesthesia was provided under the “medical direction” of a physician even though a physician did not prescribe the anesthetic and was not present when a patient came out of general anesthesia. The complaint also alleged that the CRNA was terminated after, and in retaliation for, informing his supervisor that he would no longer check the box on the group’s billing forms indicating that anesthesia was given under “medical direction.” The complaint did not allege that the CRNA reported to his supervisor that the group was engaged in fraudulent activity.

The anesthesia group filed a motion to dismiss. The court refused to dismiss the CRNA’s first two claims under the False Claims Act, finding that the CRNA had sufficiently pleaded the “who, what, when, where, and how” of the purported fraud. However, the court granted, without prejudice, the anesthesia group’s motion to dismiss the CRNA’s retaliation claim, instructing that it could not “find any authority suggesting that an employee’s failure to do something he has been instructed to do – such as routinely mark a box on a form – somehow puts the employer on notice that the employee was engaged in protected activity.”

Wollschlaeger v. Governor of Fla. (Summary)

FLORIDA’S FIREARM OWNERS PRIVACY ACT

Wollschlaeger v. Governor of Fla.
No. 12-14009 (11th Cir. July 25, 2014)

The United States Court of Appeals for the Eleventh Circuit reversed a district court’s grant of summary judgment in favor of a group of physicians and physician advocacy groups and vacated an injunction against enforcement of Florida’s Firearm Owners Privacy Act (the “Act”).

The plaintiffs challenged the Act, which, according to the court, “seeks to protect patients’ privacy by restricting irrelevant inquiry and record-keeping by physicians regarding firearms.” The plaintiffs contended that the Act imposed an unconstitutional restriction on their freedom of speech under the First Amendment. The Eleventh Circuit disagreed, concluding that “[t]he State may validly regulate the practice of medicine to protect patients’ privacy. Any speech that the Act reaches takes place entirely within the confines of the physician-patient relationship, where the ‘personal nexus between professional and client’ is strong, and so is entirely incidental to the Act’s regulation of physicians’ professional conduct.”

The opinion also included a sharply-worded dissent which described the Act as a “gag order” that violates the First Amendment rights of physicians. According to the dissent, “the record and common sense lead inexorably to the conclusion that children will suffer fewer firearm related injuries if they – and their parents – know more about firearm safety. But now [as a result of the Act] they will know less.”

Decesaris v. Hallmark Health Emergency Physicians, Inc. (Summary)

NEGLIGENT RETENTION/SUPERVISION

Decesaris v. Hallmark Health Emergency Physicians, Inc.
No. 13-P-971 (Mass. App. Ct. July 29, 2014)

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The Appeals Court of Massachusetts affirmed a lower court’s judgment on directed verdicts in favor of an emergency physician group and hospital who were sued by a patient claiming that the two defendants negligently retained and supervised an emergency room doctor who was employed by the group and practiced at the hospital.

The patient was treated by the doctor at the hospital. After the patient left the hospital, the two engaged in a consensual sexual relationship that lasted approximately ten days. The patient then sued the hospital system, claiming that her relationship with the doctor caused her harm and that the group and hospital were responsible for that harm under theories of negligent supervision and negligent failure to protect. In upholding the lower court’s decision, the appellate court concluded that the defendants could not be liable for these causes of action because, at the time, they had no knowledge that the doctor had engaged in any “past acts of impropriety.” Moreover, the appellate court instructed that “[a] consensual sexual relationship generally does not give rise to a tort cause of action.”

Rouhani v. Bronson Battle Creek Hosp. (Summary)

SEXUAL HARASSMENT

Rouhani v. Bronson Battle Creek Hosp.
No. 315121 (Mich. Ct. App. July 15, 2014)

The Michigan Court of Appeals upheld a lower court’s ruling dismissing a psychiatrist’s sexual harassment claim against a hospital, holding that the psychiatrist failed to establish that there was any connection between the alleged harassment and a tangible employment action. After the psychiatrist received three letters concerning her quality of care, the Vice President of Medical Affairs at the hospital met with her to discuss how to improve her quality of care going forward. The psychiatrist alleged that, during this meeting, the VPMA made sexual comments to her and fondled her hand. The psychiatrist alerted the hospital and it conducted an investigation of the incident but was unable to determine whether any inappropriate conduct occurred. After the investigation, the psychiatrist alleged that her referrals decreased dramatically. The psychiatrist brought quid pro quo sexual harassment and retaliation claims against the hospital.

The court held that the psychiatrist failed to establish that there was any connection between the decrease in referrals and the alleged sexual conduct or her complaint. The court stated that an employee must show more than just a temporal connection between the alleged harassment and the adverse action; there needs to be evidence that one caused the other. Here, the psychiatrist only made conclusionary statements.