Budhun v. Reading Hosp. and Med. Ctr. (Summary)

FMLA

Budhun v. Reading Hosp. and Med. Ctr., No. 11-4625 (3d Cir. Aug. 27, 2014)

The United States Court of Appeals for the Third Circuit vacated a district court’s dismissal of an employee’s Family Medical Leave Act (“FMLA”) interference claim against a hospital, holding that there are genuine issues of material fact that a jury must decide. Plaintiff, employee, worked at defendant, hospital, as a credentialing assistant. The employee broke a bone in her hand which limited her ability to type at her normal pace, which resulted in the employee taking FMLA leave for a week. Prior to returning to the hospital, the employee saw a physician and obtained a note stating she could return to work with no restrictions. The hospital informed her that due to her broken hand, she would not be able to perform her typing duties at her expected capacity. The employee went back on FMLA leave, and visited her physician to have him complete the required FMLA leave certification form. On the form, the physician indicated that the employee was unable to perform “any of his/her job functions.” The employee’s FMLA leave expired without her physician clearing her to return to work; therefore, the hospital informed her she would be terminated. The employee brought this action claiming that the hospital interfered with her right to be restored to her position, as granted by the FMLA, after her first attempt to return to work.

The court held that there were genuine issues of material fact that needed to be decided by a jury; specifically, whether the employee was capable, and cleared by her healthcare provider, to return to work. Relying on the FMLA regulations, the court stated that the only way for an employer to keep an employee from returning to work for not being able to perform the essential functions of her job is to provide a list of the essential functions at the time the employee takes the FMLA leave. Additionally, the court noted the inconsistencies in the physician’s notes and held that these issues are appropriate for a reasonable jury to decide.

U.S. ex rel. Guardiola v. Renown Health (Summary)

FALSE CLAIMS – QUI TAM RELATOR

U.S. ex rel. Guardiola v. Renown Health, No. 3:12-cv-00295-LRH-VPC (D. Nev. Aug. 20, 2014)

The United States District Court for the District of Nevada denied a hospital’s motion to dismiss a former employee’s False Claims Act (“FCA”) claim, holding that the complaint adequately alleged a plausible claim for relief against the hospital. The relator, a registered nurse and former compliance professional at defendant, hospital, alleged that she discovered a fraudulent billing scheme while employed at the hospital. Relator brought the scheme to upper management’s attention, but nothing was resolved. Specifically, the relator alleged that the hospital incorrectly coded outpatients as inpatients, resulting in higher Medicare payouts.

The court held the relator’s allegations should not be dismissed because the relator adequately set forth the details of an alleged scheme and its falsehoods, as well as the manner in which the allegedly false claims were submitted to Medicare for payment. The court stated that the relator provided 579 inpatient claims that were allegedly incorrectly billed because they were discharged from the hospital in the same calendar day making them outpatients. Furthermore, the relator sufficiently alleged that the hospital had actual knowledge of the fraud, or, at a minimum, acted in deliberate ignorance of the falsity of the inpatient claims because an audit of the hospital’s billing and documentation practices revealed a “significant” problem that the hospital was submitting inaccurate outpatient claims as inpatient claims and it failed to take appropriate corrective measures.

Bode v. L.A. Doctors Hosp. Corp. (Summary)

HCQIA IMMUNITY

Bode v. L.A. Doctors Hosp. Corp., B244502 (Cal. Ct. App. Aug. 20, 2014)

The California Court of Appeals ruled that a trial court properly denied a hospital’s motion for summary judgment based on HCQIA immunity because there was evidence that the plaintiff physician was not provided notice and a hearing as required by the safe harbor provisions of the Act. However, the appeals court ruled that the trial court improperly adjudicated the issue of immunity in favor of the plaintiff physician because she did not file a motion for summary adjudication. Thus, the issue should have remained for determination at trial. The appeals court reversed and remanded the matter to the lower court “to determine the issue of immunity under HCQIA by way of a motion by [the plaintiff physician] for summary adjudication, a court or jury trial on disputed factual issues, or other appropriate procedure….”

The appeals court also ruled that the trial court erred in not granting summary judgment to the hospital on the issue of immunity under California law. However, the appeals court ruled that the trial court properly determined that the anesthesiologist showed no evidence of outrageous conduct or severe emotional distress, and no evidence that the hospital acted with malice.

Jefferson ex rel. Jefferson v. Mo. Baptist Med. Ctr. (Summary)

VICARIOUS LIABILITY

Jefferson ex rel. Jefferson v. Mo. Baptist Med. Ctr., No. ED 99895 (Mo. Ct. App. Aug. 19, 2014)

A patient’s estate sued a radiologist and medical center, alleging that the radiologist negligently failed to note in his interpretation of the patient’s third abdominal CT scan that a soft mass was still present. Two years later, the soft mass was diagnosed as Stage IV inoperable colon cancer.

The medical center filed a motion for summary judgment, arguing that it could not be held liable for the radiologist’s negligence because he was not a medical center employee. The trial court agreed, based on a definition of “physician employee” in Missouri’s tort reform statute. The appeals court ruled that the lower court erred in applying the statutory definition of “physician employee” and held that the term “employee” should be defined in accordance with common law principles of agency which focus on the employer’s right to control the work of the employee. The appeals court remanded the case to the lower court with instructions to apply the term “employee” in a manner consistent with its ruling.

Barney v. Truman Valley Health Care (Summary)

EMPLOYMENT DISCRIMINATION

Barney v. Truman Valley Health Care, No. 14-0468-CV-W-REL (W.D. Mo. Aug. 15, 2014)

The United States District Court for the Western District of Missouri dismissed a nurse’s discrimination claims against a rehabilitation center, holding that the nurse failed to allege that her termination was based on her sex, disability, or national origin. The plaintiff was diagnosed with a “chronic brain injury” which required her to be absent from work to receive medical treatment. The nurse’s supervisor allegedly made negative comments in her employment file about the nurse’s absenteeism, made derogatory comments about her ethnic heritage and accent, and on one occasion referred to her as a “breeder” due to her family’s size. The nurse was terminated after her request for time off under the Family and Medical Leave Act was denied, and she did not appear at work.

The court held that the nurse failed to plead that her membership in a protected group was a contributing factor to the harassment. First, the court stated that familial status is not a protected group. Second, the court explained that the term “breeder” being used once does not rise to the level of severe and pervasive, as is required to establish a hostile work environment claim. Furthermore, the nurse failed to identify any comments her supervisor made about her ethnic heritage or accent. Lastly, the nurse failed to plead required elements of a disability claim – that she was qualified to perform the essential functions of her job, with or without a reasonable accommodation.

Outten v. Genesis Health Care, LLC (Summary)

EMPLOYMENT DISCRIMINATION

Outten v. Genesis Health Care, LLC, Civil Action No. 13-4708 (E.D. Pa. Aug. 12, 2014)

The District Court for the Eastern District of Pennsylvania granted summary judgment to a health care center on a former employee’s claims that she was terminated because of her age and disability and in violation of the Family Medical Leave Act (“FMLA”). The plaintiff, a 60-year-old woman, was terminated from her position as nursing supervisor for the night shift at a nursing home operated by the health care center when she failed to report to work during Hurricane Sandy. The nursing home had a strict written policy stating that staff were not allowed to miss a shift on account of bad weather, and anyone who was found to have abandoned his or her job would be immediately dismissed. Seven other nurses were reprimanded and two were terminated for failing to report during the storm. The supervising nurse was then replaced by another nurse who was 22 years younger.

The court dismissed the supervising nurse’s claims of age and disability discrimination, finding that she failed to present sufficient evidence to show the termination was due to discrimination rather than job abandonment. The court held first that there was not sufficient evidence to show the supervising nurse’s termination was due solely to Hurricane Sandy, as she had already been reprimanded for missing shifts in the past. The supervising nurse was not treated disparately due to discrimination because she was not the only employee who was terminated. Furthermore, the supervising nurse could not hold herself out as similarly situated to the other nurses, because she was held to a higher standard as their supervisor.

Additionally, the supervising nurse failed to establish a causal connection between her termination and her FMLA leave. The court held that even if the one-month proximity between her FMLA leave and her termination could be found causal, it did not undermine the fact that the supervising nurse engaged in behavior that knowingly violated the code of conduct for the nursing home.

Rush Univ. Med. Ctr. v. Burwell (Summary)

MEDICARE REIMBURSEMENT

Rush Univ. Med. Ctr. v. Burwell, No. 13-3285 (7th Cir. Aug. 18, 2014)

The United States Court of Appeals for the Seventh Circuit reversed a lower court decision, holding that teaching hospitals cannot bill Medicare for “indirect medical education” (“IME”) costs when a medical resident is researching activities wholly unrelated to the diagnosis or treatment of patients. Plaintiff, a teaching hospital, sought Medicare reimbursement for such IME costs (referred to in the opinion as “pure research”) from 1983 to 2001. The Affordable Care Act clearly excludes such costs for FY 2001 onward but did not address the period from 1983 to 2001. The teaching hospital filed suit after its fiscal intermediary denied the request. The district court granted summary judgment in favor of the teaching hospital based on a 2010 Seventh Circuit decision holding that pure research is part of compensable IME costs for the 1983 to 2001 period.

Here, the Seventh Circuit ruled that pure research can no longer be included in IME costs. The court explained that when it made its earlier decision, the Affordable Care Act’s provision regarding whether pure research could be included in IME costs was “less than clear,” and there were no regulations to help interpret it. However, since that decision, the Department of Health and Human Services promulgated a regulation excluding pure research from IME costs. The court reasoned that because its previous interpretation of the Affordable Care Act was from an ambiguous provision, and the agency’s definition is reasonable, the subsequent administrative regulation excluding pure research from IME costs is controlling.

Morales v. Palomar Health (Summary)

EMTALA

Morales v. Palomar Health, No. 14cv0164-GPC (MDD) (S.D. Cal. Aug. 12, 2014)

The United States District Court for the Southern District of California granted in part and denied in part a hospital’s motion to dismiss a patient’s claims under the Emergency Medical Treatment and Active Labor Act (“EMTALA”). Relying on the Ninth Circuit’s standard that “a medical screening examination is ‘appropriate’ if it is designed to identify acute and severe symptoms that alert the physician of the need for immediate medical attention to prevent serious bodily injury,” the court held that the plaintiff sufficiently alleged that the hospital failed to provide “a minimally adequate medical screening examination.” The court dismissed the patient’s second EMTALA claim, holding that the patient did not allege any facts that her screening was different from screenings provided to insured patients.

Ramirez-Ortiz v. Corporacion del Centro Cardiovascular de Puerto Rico y Del Caribe (Summary)

Vicarious Liability – Corporate Negligence

Ramirez-Ortiz v. Corporacion del Centro Cardiovascular de Puerto Rico y Del Caribe, No. 12-2024 (FAB) (D.P.R. Aug. 13, 2014)

A district court in Puerto Rico denied two requests for summary judgment, holding that there still existed a genuine issue of fact regarding whether a patient entrusted his health to a hospital system or to specific physicians.

A patient was hospitalized, and treatment was provided by two interventional cardiologists who held hospitalization privileges. After the patient’s untimely death, his survivors brought claims against the hospital for negligence, claiming that the patient entrusted his health to the hospital, not to the individual doctors.

When a patient enters a hospital and is assigned a physician, the hospital may be held vicariously liable to the patient. However, if the patient goes to the hospital by recommendation of a particular physician, the hospital is not liable for the physician’s negligence. The court denied the plaintiff’s motion for summary judgment, stating that genuine issues of material fact still existed regarding the patient’s relationship with the doctors at the time of his treatment. The court stated that more facts will be necessary to determine whether the patient first entrusted his care to the hospital or the doctors.

For similar reasons, the court also denied the hospital’s request for summary judgment. Because it is still unclear whether the patient relied on the physicians specifically or the hospital generally, the issue of vicarious liability cannot yet be addressed. The court cannot determine whether there was a “private patient” relationship between the patient and physician while the details surrounding the patient’s admittance to the hospital are still heavily in dispute.

The court also found that the nursing staff may have violated the standard of care by failing to inform the doctor of material changes made to his pre-operative orders. Because the standard of care remains an issue of controversy, the court denied the hospital’s request for summary judgment.

Buman v. Gibson (Summary)

Supervision of Allied Health Practitioners

Buman v. Gibson, No. W2013-01867-COA-R3-CV (Tenn. Ct. App. Aug. 11, 2014)

A man sought treatment from a physician’s assistant (“PA”) for foot ulcers. For almost three months, the PA treated the patient. During this time, the PA was monitored by a supervising physician, who never personally treated the patient, but who reviewed 30% of the PA’s charts. Eventually, the PA referred the patient to a vascular surgeon. Unfortunately, the patient’s leg eventually had to be amputated below the knee. The patient and his wife filed a motion in which they alleged that the PA was negligent in not referring him to a specialist sooner. The patient passed away soon thereafter, due to unrelated causes, and the executrix was substituted as the plaintiff. The executrix then filed an amended complaint, alleging that the PA’s supervising physician was negligent in not properly ensuring that the patient received effective treatment. Before the trial court date, the supervising physician filed a motion for summary judgment, stating that no expert testimony obtained during depositions could link his alleged negligence with the loss of the patient’s leg. In response, the executrix filed a motion to amend her complaint and “more clearly plead” a claim of vicarious liability against the supervising physician. The trial court granted summary judgment to the supervising physician and denied the executrix’s motion to amend her complaint.

The court found that the trial court was correct in finding the supervising physician fulfilled his responsibilities in monitoring the PA’s behavior. The court held that the supervising physician had sufficiently proven his active and continuous overview of the PA. A supervising physician, who is only statutorily required to review 20% of a PA’s charts, is not expected to determine which charts need special attention over others. Rather, the court held, there is an implied duty on the PA to bring the charts in need of special attention to the supervising physician’s attention. Therefore, the court could find no basis in which to find the physician liable.

The trial court did not err in ruling that there was no claim for vicarious liability, as it is not the court’s job to impose additional responsibilities on supervising physicians that the legislature chose not to enumerate in statute.

The court recognized that the trial court had denied the executrix’s motion to amend the complaint due to timeliness, as the motion to amend was filed two years into the lawsuit and only a few weeks before the trial date. The court found that no abuse of discretion had been shown to rebut this reasoning.