Romero v. County of Santa Clara (Summary)

DISCRIMINATION – DISABILITY AND RETALIATION

Romero v. County of Santa Clara
No. 11-cv-04812-WHO (N.D. Cal. July 10, 2014)

The U.S. District Court for the Northern District of California granted in part and denied in part a county-affiliated hospital’s request to dismiss multiple claims made by an anesthesiologist, including retaliation and disability discrimination. The plaintiff, an openly homosexual male anesthesiologist, had reported concerns and allegations of discrimination and harassment based on sexual orientation as well as patient endangerment by other physicians in the hospital. He was then subjected to five separate peer review investigations, which he alleged were conducted improperly in the effort to build support for his termination. On one occasion, a meeting was held as an educational case study to present the anesthesiologist’s alleged mismanagement of a patient, even though the anesthesiologist was unable to attend the meeting. Allegations were made that he disclosed confidential information from a colleague’s peer review, after which he requested a two-month leave due to work stress. The anesthesiologist’s doctors said the job had caused him significant health issues, and advised him not to return to work at the hospital. He requested several extensions of his leave and, ultimately, never returned to the hospital and was eventually terminated.

The hospital argued that there had been no adverse employment actions as the result of the complaints made by the anesthesiologist claiming that the peer reviews did not result in negative findings or actions. However, the court held that they may still qualify as adverse employment actions and that a jury could infer discriminatory motive based on the proximity in time between the anesthesiologist’s complaints and his peer reviews. This inference may also come from the fact that the anesthesiologist was not the subject of a single peer review in the two years before his complaint, but was referred five times within the year of his complaint. Because material facts remain in dispute on this matter, the court denied the hospital’s request for summary judgment on the claims alleging retaliation.

The court also found sufficient evidence to support the anesthesiologist’s claim that he was retaliated against after engaging in constitutionally protected speech. The anesthesiologist’s complaints indicated that his motivation was not to air his grievances with a colleague, but to bring to light inappropriate patient care. The court determined that a reasonable jury could find that retaliatory acts were taken due to these protected claims.

However, the court held that the anesthesiologist’s disability claims failed because he did not request an extension of his medical leave past the time allotted. The hospital granted him numerous extensions in his leave of absence, but was not asked to extend his leave past December 3, 2012. Because the anesthesiologist failed to request an accommodation, the hospital cannot be held liable for failure to provide it. The court also held that his claims of discrimination were time-barred because he failed to exhaust administrative remedies before bringing the claim to court.

Jones v. Temple Univ. (Summary)

DISCRIMINATION – RACE AND GENDER

Jones v. Temple Univ.
No. 12-5349 (E.D. Pa. July 10, 2014)

The United States District Court for the Eastern District of Pennsylvania granted a hospital’s motion to dismiss a radiologist’s race and gender discrimination claims, finding that the hospital’s actions were based on legitimate, nondiscriminatory reasons and that the radiologist had failed to show that she was treated less favorably than similarly situated white male radiologists. Plaintiff, a female African-American radiologist, worked at a university-affiliated hospital as the only part-time radiologist along with several other full-time radiologists. Throughout her employment at the hospital, the radiologist stated her preference to work part-time. The radiologist claimed the hospital discriminated against her on two occasions. First, when the hospital hired a new Chairman of Radiology, ultimately a white male, it did not consider her for the position; and, second, when the hospital terminated only her position for budgetary reasons.

The court held that the hospital’s actions were based on legitimate, business reasons that could give rise to any inference of discriminatory intent. The court stated that the hospital would not have reasonably known that the radiologist was interested in the chairman position because it was a full-time administrative position, and the radiologist had repeatedly stated her preference for part-time positions and that, in addition, the radiologist the hospital sought for the position had many more years of administrative experience. Additionally, the court stated that the hospital eliminated the radiologist’s position for legitimate budgetary reasons and her contract’s clause requiring 90-days’ notice before termination made terminating her contract far more appealing than terminating the contract of one of the full-time radiologists, whose contracts required a full year’s notice. Furthermore, the court agreed with the hospital that the radiologist was unable to show that she was treated less favorably than another similarly-situated radiologist because she was the only radiologist who worked part-time and, therefore, there was no other similarly-situated radiologist for comparison.

Bastidas v. Good Samaritan Hosp. (Summary)

DISCRIMINATION – RACE

Bastidas v. Good Samaritan Hosp.,
No. C 13-04388 SI (N.D. Cal. July 7, 2014)

The United States District Court for the Northern District of California dismissed a Colombian-born surgeon’s lawsuit alleging racial discrimination against a hospital following his suspension after a patient death. The court had already dismissed the surgeon’s claims once, but allowed him the opportunity to amend his complaint. In dismissing his claims this time, the court held that the surgeon still failed to allege sufficient facts that suggest he was intentionally discriminated against based on his race. The court noted that while the surgeon’s complaint included many allegations of disparate treatment between him and white physicians, ultimately he failed to sufficiently show that the only two somewhat analogous situations that had occurred at the hospital, two surgeries performed by white physicians that resulted in the patients’ deaths, were actually similarly situated to him – in terms of similar surgeries being performed and that those physicians’ treatment of those patients was of the type that might have triggered peer review proceedings. The court also dismissed the hospital’s parent company from the lawsuit because the surgeon did not allege any facts that show the parent company directly participated in any wrongdoing.

Lin v. Dignity Health-Methodist Hosp. of Sacramento (Summary)

MEDICAL STAFF PRIVILEGES/WHISTLEBLOWERS

Lin v. Dignity Health-Methodist Hosp. of Sacramento,
No. S-14-0666 KJM CKD (E.D. Cal. July 11, 2014)

A cardiologist sued a hospital, alleging violations of various federal and state laws relating to discrimination, interference with economic interests, unfair trade practices, and whistleblower retaliation arising out of her summary suspension at the hospital. The U.S. District Court for the Eastern District of California granted the hospital’s motion to dismiss, concluding that the cardiologist had failed to show a reasonable likelihood of success on her claims.

This dispute emerged after the hospital placed the cardiologist on summary suspension for failure to perform a proper blood transfusion. The cardiologist demonstrated that this blood transfusion did in fact comply with the requirements of the medical staff, and alleged that, in reality, the suspension had been intended to retaliate against her for an earlier report she had submitted. In this report, known as a “Death Discharge Summary,” the cardiologist had opined that the department chair of internal medicine had breached the standard of care by performing a colonoscopy on a patient who had not been hemodynamically stable and who ultimately died. The cardiologist believed that this Death Discharge Summary was the actual reason for her suspension.

In responding to the cardiologist’s lawsuit, the hospital claimed protection for its actions under the state “anti-SLAPP” statute, which creates protections for certain kinds of free speech that are made in connection with issues under consideration in an official proceeding. Hospital peer review activities fall within the scope of the law and, therefore, plaintiffs have to overcome higher evidential burdens in order to bring a successful legal challenge. In this case, the court found that the cardiologist was unable to meet the burden for two reasons. First, since discharge summaries are a routine document prepared for all patients at the hospital, they cannot be used as the sole basis for a whistleblower retaliation claim which requires that a complaint or report be made to the hospital about a quality of care concern prior to the allegedly retaliatory action. Second, because neither the cardiologist nor her attorney attended the medical staff hearing that she had been afforded under the medical staff bylaws, the court concluded that her other claims were barred by a failure to exhaust all available remedies.

Kinghorn v. Gen. Hosp. Corp. (Summary)

AMERICANS WITH DISABILITIES ACT

Kinghorn v. Gen. Hosp. Corp.
No. 11-12078-DPW (D. Mass. July 1, 2014)

The U.S. District Court for the District of Massachusetts granted a Hospital’s motion for summary judgment, ruling that the Hospital’s termination of an employee with Asperger’s Syndrome (“Employee”) was not a violation of the Americans with Disabilities Act (“ADA”).

The employee was hired by the Hospital to work as a Bioinformatics Specialist. The job description sought someone with strong communication skills, who could work independently with very little supervision. During orientation, the Employee became very angry and hostile toward his trainer. Only then did he present the Hospital with a letter disclosing that he had Asperger’s Syndrome, and that he would need special accommodations in the future. In light of these requests, the Hospital spent considerable time and effort fashioning an organized program with clearly written instructions. Regardless, the Employee did not follow these instructions, ignoring many of the tasks assigned to him. Additionally, the Employee made his former trainer feel very uncomfortable, attempting to shadow her on multiple occasions despite numerous requests to cease contact with her. At one time the trainer’s discomfort level was so great that she locked herself in an office to create some distance from the Employee. Soon after this incident, the Employee was terminated.

All parties agreed that Asperger’s Syndrome constituted a disability under the ADA. However, the Hospital insisted that the Employee was terminated due to his inappropriate behavior, anger and aggression, and inability to perform the essential functions of the job. The court agreed with this, finding sufficient evidence that the Employee was unable to work successfully despite numerous efforts on behalf of the Hospital. The court therefore held that no reasonable jury would find the Employee able to fulfill the essential requirements of effective communication and the ability to work collaboratively or independently. Other employees went out of their way to provide accommodations for the Employee, yet he still struggled to work well in his position. Additionally, these considerable accommodations were deemed unlikely to be feasible on a long-term basis.

Brown v. Cooley Dickinson Hosp., Inc. (Summary)

SEXUAL HARASSMENT AND RETALIATION

Brown v. Cooley Dickinson Hosp., Inc.
No. 13-P-1057 (Mass. App. Ct. July 3, 2014)

The Appeals Court of Massachusetts affirmed a trial court’s decision to deny a judgment notwithstanding the verdict and award compensatory and punitive damages for sexual harassment and retaliation claims against a Hospital.

A nurse, who was a former employee (“Nurse”), brought claims against the Hospital for sexual harassment stemming from sexual advances and physical conduct of a sexual nature by a physician after the Nurse rejected the physician’s request for a date. The Nurse was subject to invasion of her personal space and unwelcome touching by the physician for months, despite her complaints to the Hospital. Subsequently, the Nurse was terminated a short time after she filed a complaint with the Massachusetts Commission Against Discrimination. The Hospital claimed that the Nurse was terminated for deviating from standards of good nursing practice and for failing to acknowledge mistakes in the care of a patient.

The court found that while the unwelcome conduct by the physician was not overwhelming, it was enough to substantiate claims of sexual harassment. The court also upheld the jury’s verdict that the Nurse’s termination was due to retaliation. Conflicting evidence existed regarding whether the Nurse was fired due to her complaint of sexual harassment or poor work performance. However, the jury verdict was not unsupported, as the jury was entitled to believe the Nurse’s theory of the termination rather than the Hospital’s.

Additionally, the court affirmed the jury’s determination that sufficient evidence existed to support the award for punitive damages. Because the Hospital did not act on the Nurse’s complaints, but instead made her continue to work with her harasser for months, the conduct was deemed harmful enough for the jury to award punitive damages. It was also alleged in trial that positive evaluations existed for the Nurse, but were taken out of her file to bolster the Hospital’s claims that she was terminated due to poor performance. The court noted that this inference may have added to the jury’s award of punitive damages.

 

Visiting Nurse Ass’n of Fla., Inc. v. Jupiter Med. Ctr., Inc. (Summary)

ARBITRATION

Visiting Nurse Ass’n of Fla., Inc. v. Jupiter Med. Ctr., Inc.
No. SC11-2468 (Fla. July 10, 2014)

The Supreme Court of Florida held that it is not necessary to determine the legality of a contract in order to enforce an arbitral award based on the contract. The arbitral award in question arose out of an arrangement between a Home Health Agency and a Hospital. Under their arrangement, the Home Health Agency agreed to purchase the Hospital’s in-house home health agency in exchange for the implementation of certain discharge planning procedures. The procedures applied specifically to patients requiring home health services post-discharge; in these circumstances, the Hospital was required to provide a predetermined list of available home health services in the area. If a patient did not express a particular preference for any of the agencies on the list, the Hospital would inform the patient of its relationship with the Home Health Agency.

After observing a decline in Medicare referrals, the Home Health Agency guessed that the Hospital was not complying with the agreement and was instead utilizing a rotation system for home health referrals. Although the Hospital initially denied that there was a rotation system in place, it was later confirmed, by a former discharge planner, that there was such a system.

The Home Health Agency responded by giving notice that it would not renew its lease with the Hospital for certain rental property. The Hospital subsequently gave notice that the Home Health Agency would no longer be permitted to lease space in its discharge planning department. The Hospital also notified the Home Health Agency that it would no longer notify patients of the Hospital’s relationship with the Home Health Agency.

When the Home Health Agency stopped making rent payments, the Hospital sued. Because their contract included an arbitration clause, the dispute was referred to an arbitration panel for resolution. The arbitration panel found that the Hospital had breached the contract by failing to make its staff aware of the discharge planning procedures, by terminating the office space lease agreement, and by announcing its intention to cease complying with the discharge planning procedures. The arbitration panel awarded the Home Health Agency $1.2 million in damages and an additional amount in interest, fees, and costs.

The Hospital tried to reopen the arbitration proceedings to allow testimony concerning the illegality of the panel’s interpretation of the contract, that as construed the contract would violate the state and federal anti-kickback statutes. The arbitration panel denied the Hospital’s motion and the Hospital then filed a motion to vacate the arbitration award in federal court on the same grounds. The Hospital also filed a motion to vacate the arbitration award in state court claiming that the panel had mistakenly construed the parties’ contract in a manner contrary to law and that the panel had exceeded its authority. Specifically, the Hospital argued that state and federal laws would prohibit it from entering agreements to “make, influence, and steer future patient referrals” to the Home Health Agency. Since the contract itself was unlawful, the Hospital argued that courts should refuse to enforce any arbitral award based upon it.

The Florida Supreme Court disagreed with the Hospital. It explained that when parties bargain for an arbitration clause, they consent to substitute a “tribunal of their own choosing” for the one provided and established by law. “[C]ourts cannot review the claim that an arbitrator’s construction of a contract renders it illegal.”

Montone v. Schuylkill Health Sys. (Summary)

CIVIL RIGHTS

Montone v. Schuylkill Health Sys.
No. 3:11-CV-2252 (M.D. Pa. July 3, 2014)

The U.S. District Court for the Middle District of Pennsylvania denied a hospital’s motion for summary judgment against a former employee’s Family and Medical Leave Act of 1993 (“FMLA”) retaliation claim. The employee filed her lawsuit after she was fired from her position as Director of Patient Accounts.

The Employee testified that her supervisor, the Vice President of Finance, prohibited her from taking time off except for an FMLA absence. The Employee was therefore forced to file for FMLA leave in order to cope with a new diagnosis of multiple sclerosis which caused her to suffer exhaustion, memory loss, and painful headaches. The Hospital contended that the Employee was actually discharged because of her failure to manage the billing and collection of patient accounts, causing the hospital to experience significant revenue shortfalls.

The court cited several factors in support of its decision to let the claim proceed to trial. First, the court explained that the timing of events was sufficient on its own to create an inference of FMLA retaliation. The Employee had taken FMLA leave on consecutive business days: a Friday and a Monday. The Hospital terminated her as soon as she returned on Tuesday. In addition, the court noted that the Employee had never been subject to any disciplinary actions or to any poor performance reviews during her three decade long tenure with the Hospital. Finally, the court highlighted the fact that the Vice President of Finance prohibited the employee from taking any time off absent a request for FMLA. This led the court to conclude that the hospital’s reasons for terminating the employee could have been a pretext for its retaliation against her for exercising her FMLA rights.

Atlanta Emergency Servs., LLC v. Clark (Summary)

EMPLOYMENT CONTRACT

Atlanta Emergency Servs., LLC v. Clark
No. A14A0469 (Ga. Ct. App. July 8, 2014)

The Court of Appeals of Georgia upheld a jury’s verdict in favor of an emergency medicine physician (“Physician”) against her employer, a staffing agency (“Employer”), holding the Employer acted in bad faith in terminating the Physician’s employment. The Physician was hired to work at a local hospital. The Physician’s employment contract stated that she could be terminated without cause on 60 days’ written notice, or immediately if the hospital requested her removal or the hospital reported that the physician was being disruptive, unprofessional, or unreasonably uncooperative with the staff.

During the course of a year, the Employer received over a dozen complaints from nurses, patients, and other physicians that the Physician was rude and disrespectful. The Employer met with the Physician in an effort to resolve the issues and in the hope of preventing the complained of behavior from reoccurring.

Several months later, the Employer gave the Physician notice that her employment was being terminated, without cause, in 60 days. Despite the fact that the employment contract required it, and despite the fact that the Physician had requested it, the Employer failed to provide this notice of termination in writing. One month later, the Employer informed the Physician that she was being terminated immediately, for cause, based on a request from hospital administration. The Physician later learned that hospital administration had not requested her termination.

The Physician sued claiming that the Employer terminated her employment for cause despite the fact the contractual conditions required to do so were not satisfied, and, as such, the termination was in bad faith. After a trial, the jury found in favor of the Physician and awarded her $61,000 for lost wages and attorney’s fees. The Employer appealed the jury’s verdict and the amount of the award.

The appellate court held that the jury, as fact finder, was not unreasonable in finding that the Employer breached the employment contract by terminating the Physician’s employment for cause because the hospital’s executive team never requested the Physician’s immediate termination or officially reported any complaints. Furthermore, the court held the Employer acted in bad faith when it decided to terminate the Physician’s employment immediately even though it lacked cause to do so and, under state law, acting in bad faith permits attorney’s fees to be awarded by the jury.

Wheeless v. Maria Parham Med. Ctr., Inc. (Summary)

PEER REVIEW PRIVILEGE

Wheeless v. Maria Parham Med. Ctr., Inc.
No. COA13-1063 (N.C. Ct. App. July 1, 2014)

An orthopedic surgeon (“Physician”) filed a lawsuit against a hospital (“Hospital”) alleging unfair and deceptive trade practices, breach of contract, and negligent infliction of emotional distress. Prior to filing the complaint, the Physician had complained that the Hospital had failed to honor a Settlement Agreement, in particular, that the Hospital had refused to call the Physician for consults when he was requested by his patients.

Several of the Physician’s claims did not survive summary judgment, but others progressed to discovery. A dispute arose when the Physician attempted to use the discovery process to obtain documents related to an earlier peer review process that had led to the Settlement Agreement. The Hospital argued that the documents were privileged under the state peer review statute. The Physician contended that the privilege did not apply because the peer review process had been used maliciously.

The Physician’s first two attempts to compel production of the peer review documents were unsuccessful: two separate judges upheld the Hospital’s claim of a peer review privilege. However, a third judge concluded that there was evidence of malice and compelled the Hospital to produce documents that had previously been determined to be privileged.

The Hospital appealed. The appellate court reversed, concluding that the third judge did not adequately demonstrate that circumstances had changed enough to give her authority to overrule decisions by the prior judges.