Wheat v. Rush Health Sys., Inc. (Summary)

AMERICANS WITH DISABILITIES ACT

Wheat v. Rush Health Sys., Inc.
No. 3:13-cv-984-HSO-RHW (S.D. Miss. July 15, 2014)

The United States District Court for the Southern District of Mississippi denied a hospital’s motion for summary judgment against a former employee’s claims under the Americans with Disabilities Act. The former employee alleged disparate treatment, failure to provide a reasonable accommodation, and retaliation.

The former employee, who wears bilateral hearing aids due to a hearing impairment, had been assigned to the hospital’s Medical Surgery Floor as a Charge and Preceptor Nurse. He later held a Staff RN position in the Post-Anesthesia Care Unit, and after that accepted a position as RN Circulator in the Orthopedic Surgery Unit. Fourteen months after he was hired into this role, he was removed from the position of RN Circulator and placed on administrative leave with pay. The hospital claimed that this occurred because he was not performing well in the position and posed a direct threat to patient safety.

While the employee was on administrative leave, the hospital assisted him in trying to find a replacement position. A lack of job offers eventually forced the employee to accept a clinic position in an urgent care clinic, resulting in a pay cut of $6.00 an hour. When the employee realized that his pay would be further reduced by another $2.00 per hour, he resigned and filed a lawsuit.

The hospital argued that the defendant was not disabled, was not qualified for his position as RN Circulator, and was not subjected to an adverse employment action. The plaintiff countered this evidence by showing a Staff Assessment Form that scored his performance as nine out of ten. The court held that summary judgment was inappropriate since both parties had offered evidence of contradictory material facts on important issues. The former employee also testified that a supervisor had told him he was pulled off a case as RN Circulator because the doctors did not like having to tell him something twice. These factors led the court to deny summary judgment and permit the case to proceed to trial.

Pal v. Jersey City Med. Ctr. (Summary)

EMPLOYMENT DISCRIMINATION

Pal v. Jersey City Med. Ctr.
No. 11-6911(SRC) (D.N.J. July 21, 2014)

The United States District Court for the District of New Jersey granted a motion for summary judgment filed by the University of Medicine and Dentistry of New Jersey (“UMDNJ”) and two affiliated physicians in a discrimination case brought by a female physician of Indian origin whose residency contract was not renewed. The court held that UMDNJ and its affiliated physicians had offered sufficient evidence to show that the issues at stake in the lawsuit were already decided by a prior ruling in the New Jersey state courts. In addition, UMDNJ and the two physicians filed a motion to impose sanctions on the plaintiff-physician, arguing that she had demonstrated a pattern of claiming medical disability in order to avoid deadlines for her own advantage. The court ruled that these sanctions were unwarranted based on the evidence available in the record. The court also denied the plaintiff-physician’s motion for leave to amend the complaint. The court held that the motion was “prejudicially untimely,” with no apparent justification for the delay.

Bejar v. Gibson (Summary)

EMPLOYMENT DISCRIMINATION/EXHAUSTION OF REMEDIES

Bejar v. Gibson
No. 13-2222-DDC-GLR (D. Kan. July 18, 2014)

The U.S. District Court for the District of Kansas dismissed a neurologist’s claims of discrimination and retaliation against the Veterans Administration (“V.A.”) due to lack of jurisdiction and failure to state a claim.

The plaintiff Ecuadorian neurologist began his work at the hospital in 1988. By 2010, he had filed seven Equal Employment Opportunity (“EEO”) complaints against the hospital, alleging discrimination and retaliation for prior complaints. In 2011, the neurosurgeon again filed an EEO complaint, arguing that hospital supervisors were engaging in discriminatory activity against him. He alleged that he was assigned extra work due to his nationality and in retaliation for his previous EEO claims. He also claimed that he was continually assigned to female patients, in violation of a hospital policy to assign patients and doctors of the same gender. The neurosurgeon expressed his belief that this was an attempt to elicit complaints from the female patients, giving the hospital a reason to take adverse action against him. Soon after his complaint was filed, a female patient alleged that the neurosurgeon had touched her inappropriately during an examination. Rather than investigate this complaint, the hospital suspended the neurosurgeon’s privileges. The neurosurgeon alleged that the defendant persuaded the woman to file a false complaint in order to have a reason to suspend his privileges. Even if there was no persuasion, the neurosurgeon claimed that the V.A. violated its normal hospital policy by assigning him to the female patient, which allowed the false complaint to occur. He maintains that the actions of the defendant were due to his race, national origin, and prior EEO complaints.

Because discrimination and retaliation claims are federal in nature, the court found that it had no jurisdiction over the case. However, the court dismissed the neurosurgeon’s claims based on the fact that he did not exhaust all administrative remedies before filing suit. Additionally, the court found that the neurosurgeon failed to show that he suffered a materially adverse employment action, rather than an inconvenient alteration of job responsibility. Due to this failure to state a claim, the court granted the defendant’s motion to dismiss.

Sutter Health v. Super. Ct. of Sacramento County (Summary)

PATIENT CONFIDENTIALITY

Sutter Health v. Super. Ct. of Sacramento County
C072591 (Cal. Ct. App. July 21, 2014)

The California Court of Appeal dismissed a class action lawsuit against a health care provider for an alleged breach of confidentiality. A thief broke into a Sutter Health office and stole a computer which contained medical records of about four million patients. A class action was brought against Sutter by the patients whose records were stolen, claiming a breach of the California Confidentiality of Medical Information Act, Cal. Civ. Code §56 et seq. The Act provides for nominal damages of $1,000 per patient.

The appellate court dismissed the class action because the patients did not allege that their medical information was actually viewed by any unauthorized person. The court reasoned that the mere possession of the medical records by an unauthorized person was insufficient to establish a breach of confidentiality if the unauthorized person has not viewed the records. Here, the patients could not establish that there was a breach because the stolen records were password protected and they did not know if the records were actually ever viewed.

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

PEER REVIEW PRIVILEGE

Wheeless v. Maria Parham Med. Ctr., Inc.
No. COA13-1475 (N.C. Ct. App. July 15, 2014)

The Court of Appeals of North Carolina, in an unpublished decision, found that a surgeon had waived any privilege with respect to discovery of his medical records in a case brought against a hospital.

The orthopedic surgeon held privileges with the defendant hospital, and underwent two separate peer reviews in a two-year period. After the surgeon requested a fair hearing, both parties agreed to a Mediated Settlement Agreement (“MSA”), which provided that the surgeon was to alter the terms of his staff privileges, and that the Medical Executive Committee was to terminate any pending actions against him. On multiple occasions, the surgeon expressed concern that the hospital was not honoring the terms of the MSA. Eventually, he filed a complaint against the hospital, asserting a claim, among other things, for infliction of emotional distress. During the course of discovery, the surgeon said that he had been treated for mental health issues by the North Carolina Physician Help Program (“NCPHP”). The hospital requested the release of the surgeon’s records from NCPHP. The surgeon refused and sought a protective order, arguing that the records were privileged information because they had been requested by a medical review board pursuant to N.C. Gen. Stat. §131E-95. The trial court ordered the surgeon to produce the documents, finding that his mental health records were relevant to his claims of emotional distress. The court also found that because the surgeon had made his mental health an issue in the case, he had waived any privilege to withhold these records. The Court of Appeals affirmed this ruling.

Halbig v. Burwell (Summary)

AFFORDABLE CARE ACT

Halbig v. Burwell
No. 14-5018 (D.C. Cir. July 22, 2014)

The U.S. Court of Appeals for the District of Columbia ruled that the Patient Protection and Affordable Care Act (“ACA”) did not authorize the Internal Revenue Service to provide tax credits for individuals who purchase insurance policies on the federal health exchange. The plaintiffs in this lawsuit challenged the IRS’s interpretation of a particular section in the ACA addressing “premium assistance amounts.” Under the ACA, these premium assistance amounts provide eligible individuals with tax credits that reduce the cost of acquiring a health insurance policy.

The court explained that the crux of the case turned upon whether exchanges established by the federal government were included under the phrase “Exchange established by the State.” The term “Exchange” means a health exchange, which is a kind of marketplace where people can compare and purchase different insurance plans. At this time, 16 states have established their own exchange. The rest use exchanges run wholly or partially by the federal government.

Each party in the lawsuit disputed the appropriate interpretation of the phrase “Exchange established by the State.” The plaintiffs argued that the court should read this phrase narrowly, limiting tax credits to individuals who purchased their policies on one of the 16 state-run exchanges. In contrast, the IRS argued that reading the phrase so narrowly would lead to significant contradictions with other parts of the ACA. The IRS had originally interpreted this law to permit the federal government to “stand in the shoes” of a state when creating an exchange. Under the IRS’s reading, individuals would not be denied tax credits because they did not purchase their policy from a state-run exchange.

The D.C. Circuit ruled that the government could offer no textual basis for concluding that a federally-established exchange could be considered “established by a state.” It held that in the absence of such evidence, the court was not permitted to ignore the text of the law simply because it led to odd results.

Bhanusali v. Orange Reg’l Med. Ctr. (Summary)

ANTITRUST/DISCRIMINATION

Bhanusali v. Orange Reg’l Med. Ctr., No. 13-3426-cv (2d Cir. July 16, 2014)

The U.S. Court of Appeals for the Second Circuit upheld the dismissal of a physician’s antitrust claim against a hospital but reinstated his discrimination claim. Previously, in Bhanusali v. Orange Reg’l Med. Ctr., No. 10-CV-6694 (CS) (S.D. N.Y. Aug. 12, 2013), the U.S. District Court for the Southern District of New York dismissed claims of retaliation and antitrust violation brought by an orthopedic surgeon against a medical center.

The 62-year-old Indian orthopedic surgeon was the subject of a peer review, which led to the suspension and restriction of his privileges. The surgeon alleged that the Sham Peer Review was conspired as a means of intentional discrimination due to his race, national origin, and age, in violation of Title VII. The court originally found insufficient facts to show intentional discrimination, and gave the surgeon leave to amend his complaint with the instruction to add more clarity and specificity of the discrimination. In the surgeon’s amended complaint, he listed his cases that were examined on peer review, highlighting the fact that none of the reviewed surgeries resulted in an unsatisfactory outcome or patient complaint. The amended complaint then alleged numerous situations in which younger or white physicians were not investigated or punished for actions with serious complications. Additionally, the complaint gives examples of other Indian doctors who have allegedly experienced similar discrimination by the hospital. The surgeon also alleged that this conspired Sham Review Process was an antitrust violation, as it rendered it economically and professionally impossible for him to act as an orthopedic surgeon.

The district court dismissed all claims, finding that the surgeon failed to fix deficiencies from the previous pleading. The information provided to show intentional discrimination was deemed insufficient. The six incidents that led to the surgeon’s discipline were not explained in detail, making the court’s analysis impossible. Additionally, the surgeon’s allegation that similarly-situated doctors have not been disciplined was impossible to compare. The complaint did not elaborate on the experience of the similarly-situated doctors, so the court was unable to determine if they were actually comparator-doctors relative to the surgeon, as he claimed. Also, the allegations made regarding the disparaging treatment of the other Indian doctors were not deemed helpful to bolster the surgeon’s claims. Because the information presented in the complaint was insufficient to show that the surgeon was treated unfairly specifically due to his race, age, and national origin, the court dismissed this claim. In the absence of the discrimination claim, the court also had to dismiss the surgeon’s claim of conspiracy.

The district court also dismissed the antitrust claim, finding that the complaint failed to allege that the actions taken by the hospital resulted in antitrust injury because there were no factual connections made to link the alleged discrimination and the alleged market effects. The court declined to grant the surgeon a fourth chance to amend the complaint, holding that he had already been given ample opportunity to fix any deficiencies with the claims.

On appeal, the Second Circuit agreed with the district court that the surgeon did not properly support his antitrust claims that a hospital conspiracy to restrict his privileges resulted in harm to the marketplace. The appellate court did find, however, that the district court erred in dismissing the surgeon’s discrimination claims. Drawing reasonable inferences, the court concluded that the surgeon’s amended complaint was sufficient to plausibly support an inference of discrimination, and therefore should not have been dismissed.

King v. Burwell (Summary)

AFFORDABLE CARE ACT

King v. Burwell
No. 14-1158 (4th Cir. July 22, 2014)

The U.S. Court of Appeals for the Fourth Circuit ruled that the Internal Revenue Service (“IRS”) acted appropriately in determining that the Patient Protection and Affordable Care Act (“ACA”) authorized tax subsidies for individuals who purchase insurance policies on the federal health exchange.

The plaintiffs in this lawsuit had challenged the IRS’s interpretation of a particular section in the ACA addressing “premium assistance amounts.” Under the ACA, premium assistance amounts provide eligible individuals with tax credits intended to reduce the cost of acquiring a health insurance policy. The dispute involved a portion of the law that describes the formula used to calculate these premium assistance amounts. That formula refers specifically to policies purchased on “an Exchange established by the State.” The term “Exchange” means a health exchange, which is a kind of marketplace where people can compare and purchase different insurance plans. At this time, 16 states have established their own exchange. The rest use exchanges run wholly or partially by the federal government.

Each party in the lawsuit disputed the appropriate interpretation of the phrase “Exchange established by the State.” The plaintiffs argued that the court should read this phrase narrowly, limiting tax credits to individuals who purchased their policies on one of the 16 state-run exchanges. In contrast, the IRS argued that reading the phrase so narrowly would lead to significant contradictions with other parts of the ACA. The IRS had originally interpreted this law to permit the federal government to “stand in the shoes” of a state when creating an exchange. Under the IRS’s reading, individuals would not be denied tax credits simply because they did not purchase their policy from a state-run exchange.

Faced with this challenge, the Fourth Circuit acknowledged the “common-sense appeal” of the plaintiffs’ literal reading of the law. The judges contrasted this with the IRS interpretation, which they found slightly stronger because it was more consistent with other portions of the law. Although they preferred the IRS interpretation, the judges concluded that the law was ambiguous enough to permit both readings of the statute.

Under a body of principles known as “administrative law,” courts must sometimes defer to an agency’s interpretations of an ambiguous law. This is limited to those instances where Congress has authorized the agency to administer or execute the portion of the law in question. In this case, since the ambiguous law was located in the Internal Revenue Code, which the IRS administers, the court concluded that it must defer to the IRS’s legal interpretation. Consequently, the court upheld the IRS’s authority to provide premium tax credits for individuals who purchase policies from a federal exchange and affirmed the decision of the district court below.

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.