Riley v. St. Mary Med. Ctr. (Summary)

DISCRIMINATION – AGE AND DISABILITY

Riley v. St. Mary Med. Ctr., No. 13-CV-7205 (E.D. Pa. May 27, 2014)

The U.S. District Court for the Eastern District of Pennsylvania granted in part a nurse’s motion to reconsider her claim that she was the victim of age discrimination.

The plaintiff, a 62-year-old nurse, worked in the defendant hospital for 10 years with generally positive work reviews.  She had a history of anxiety, colitis, insomnia, and cognitive disabilities.  In 2009, she complained to her supervisor that she was experiencing harassment at the hands of another nurse.  In 2011, the nurse received a poor annual evaluation that she claimed contained a significant amount of inaccurate information.  The nurse expressed her concern that she was being selectively discriminated against because of her age.  Shortly thereafter, the hospital began scheduling her for fewer shifts as the charge nurse, instead giving the position to a younger employee.  One week after the hospital hired a new, younger nurse in early 2013, the hospital terminated her for allegedly poor performance.  The nurse then filed a charge of discrimination with the Equal Employment Opportunity Commission, alleging age discrimination, disability discrimination, and retaliation.

In a prior opinion, the U.S. District Court for the Eastern District of Pennsylvania held that the nurse had not provided adequate factual support to substantiate her claims that she suffered from a disability. Because of this, she could not claim that any discrimination against her was based on a disability. See Riley v. St. Mary Med. Ctr., No. 13-cv-7205 (E.D. Pa. Apr. 23, 2014).

In this subsequent opinion, the court granted in part the nurse’s motion to reconsider, analyzing the nurse’s claims under the liberalized standard of the ADA Amendments Act of 2008 (“ADAAA”). The court determined that the nurse’s mere allegations that she had difficulty in sleeping, concentrating, communicating and thinking were sufficient to allege that she had a disability under the ADAAA.

Noting that the Pennsylvania legislature had not adopted similar amendments to its Human Relations Act, the court held that the nurse continued to allege inadequate facts about her alleged disability to sustain a claim under that Act.  Specifically, the court noted that a claim for discrimination under the Pennsylvania Human Relations Act would require the nurse to allege that her impairments prevent or several restrict her from doing activities that are of central importance to most people’s lives.  Conclusory allegations that the nurse was, at times, limited in her ability to enjoy several major life activities was not sufficient.

Nayak v. St. Vincent Hosp. & Health Care Ctr. (Summary)

EMPLOYMENT DISCRIMINATION

Nayak v. St. Vincent Hosp. & Health Care Ctr., No. 1:12–cv–00817–RLY–DML (S.D. Ind. May 22, 2014)

The United States District Court for the Southern District of Indiana granted in part and denied in part a hospital’s motion for summary judgment regarding a former employee’s allegations of discrimination on the basis of disability, gender, and national origin.

The court held that the former employee, an OB/GYN resident, had not presented enough evidence to support claims of discrimination and retaliation on the basis of national origin.  The court concluded that the evidence presented in the case simply demonstrated the existence of “a possible cultural divide between American and Indian styles of communication and hospital norms” – not intentional discrimination.  The court dismissed her claim that she was terminated in retaliation for complaining about a hostile work environment because there was no evidence that the resident had complained to anyone with decision-making authority.

The court denied the hospital’s motion for summary judgment on the resident’s claims of gender and disability discrimination based, in part, on a document written by one of the supervising physicians which stated that the hospital terminated the resident’s contract because of “a medically complicated pregnancy and significant concerns regarding her academic progress.”  The court found that “this is direct evidence of discrimination” and that a reasonable jury could conclude that the plaintiff was terminated because of her medically complicated pregnancy in violation of both Title VII, which prohibits employment discrimination on the basis of sex, and the Americans with Disabilities Act.

Hamilton v. Sheridan Healthcorp, Inc. (Summary)

EMPLOYMENT DISCRIMINATION

Hamilton v. Sheridan Healthcorp, Inc., No. 13-62008-CIV (S.D. Fla. May 25, 2014)

The United States District Court for the Southern District of Florida granted the defendant’s motion for summary judgment on the plaintiff’s federal and state racial discrimination and retaliation claims.

The plaintiff, an African-American anesthesiologist, alleged that the defendant discriminated against him on the basis of race when it moved him from night shift to day shift, subjected him to monitoring, cut his pay and ultimately terminated him.  The defendant moved for summary judgment, arguing that the plaintiff was not able to show that the defendant treated a similarly situated employee more favorably.  The court agreed that the plaintiff failed to make out a prima facie case of discrimination because he provided no evidence of similarly situated individuals with similar histories of disciplinary and job performance issues.

Turning to the plaintiff’s retaliation claim, the court held that the defendant had a legitimate non-retaliatory basis for the plaintiff’s termination – his failure to return to work when he said he would after being granted leave.  The court rejected the plaintiff’s argument that the defendant’s deviation from its standard termination procedures demonstrated that its “proffered reason for his termination is unworthy of belief.”

Ervine v. Desert View Reg’l Med. Ctr. (Summary)

DISABILITY DISCRIMINATION

Ervine v. Desert View Reg’l Med. Ctr., No. 12-15059 (9th Cir. May 29, 2014)

Plaintiff, individually and on behalf of his wife’s estate, sued the hospital where his wife was treated for cancer and her physician, alleging that their refusal to provide a sign language interpreter violated the Americans with Disabilities Act (“ADA”) and Rehabilitation Act.

The plaintiff sought an injunction under Title III of the ADA, ordering the hospital and physician to provide appropriate aids to him to ensure effective communication.  The U.S. Court of Appeals for the Ninth Circuit held that without the “imminent prospect of a future injury,” the plaintiff lacked standing and the claim could not go forward.  Although the plaintiff and his wife may have suffered past injuries, the plaintiff was not currently seeking admission to the hospital and his wife was no longer a patient.  As a result, there was no prospective harm an injunction could cure and the claim was dismissed for lack of jurisdiction.

In reversing the district court’s grant of summary judgment on the Rehabilitation Act claim, the appeals court ruled that the claim was not barred by the statute of limitations.  The appeals court held that each denial of an interpreter was a discrete and independent wrong.  Although the first denial occurred more than two years before the suit was filed, subsequent denials occurred within the actionable two-year window.

Sapssov v. Health Mgmt. Assocs., Inc. (Summary)

FRAUD AND ABUSE

Sapssov v. Health Mgmt. Assocs., Inc., Nos. 2:12-cv-46-FtM-29DNF, 2:12-cv-163-FtM-29DNF (M.D. Fla. May 21, 2014)

The United States District Court for the Middle District of Florida dismissed plaintiffs’ class action complaint for violations of the Securities and Exchange Act of 1934.  Plaintiffs purchased the publicly traded common stock of the defendant between July 27, 2009 and January 9, 2012 (the “Class Period”).  The defendant is a publically traded corporation that operates 70 acute care hospitals and other health care facilities throughout the United States.

Plaintiffs alleged that defendant violated the Securities and Exchange Act by failing to disclose a scheme to defraud Medicare, which resulted in inflated revenue during the Class Period.  Specifically, plaintiffs alleged that defendant pressured its physicians to admit Medicare beneficiaries regardless of medical necessity, in order to collect higher reimbursement rates, and this increase in revenue inflated its stock price.  Once the fraudulent scheme was disclosed through two subpoenas from the U.S. Department of Health and Human Services, Office of Inspector General, a “60 Minutes” investigative segment and a report from an equity analyst, the defendant’s stock price dropped dramatically, resulting in significant losses for the plaintiffs.

The court held that even though plaintiffs’ complaint contained the required particular circumstances constituting fraud, material misrepresentations, and the intent to defraud, plaintiffs failed to show a causal connection between the material misrepresentations and a subsequent decline in stock value.  The court agreed with defendant that the reports by financial groups did not reveal any information that was not already made public.  The court also held that the drop in price after the subpoenas did not show causation because an investigation, without more, does not prove a material misrepresentation or reliance on it.  Finally, the court ruled that the drop in the stock price after the “60 Minutes” segment was irrelevant because it aired 11 months after the Class Period.

U.S. ex rel. Heesch v. Diagnostic Physicians Group (Summary)

FALSE CLAIMS ACT

U.S. ex rel. Heesch v. Diagnostic Physicians Group, No. 11-0364-KD-B (S.D. Ala. May 22, 2014)

The U.S. District Court for the Southern District of Alabama granted in part and denied in part a motion to dismiss the United States’ Complaint in intervention filed by a health system, its clinic and its clinic subsidiaries in a False Claims Act suit.

The health system created a clinic in order to acquire physician practices and to establish clinic subsidiaries.  The clinic established two clinic subsidiaries.  With the approval of the health system and its board, the clinic entered into contractual agreements with individual physicians and physician groups to provide physicians to the two clinic subsidiaries.  Allegedly, both clinic subsidiaries subsequently entered into agreements with a physician group whereby the subsidiaries billed Medicare for testing and designated health services that were referred by group physicians, and often performed by subsidiary personnel on subsidiary equipment.  The payments made to the group allegedly were in turn paid to the referring physicians, and thus resulted in group physicians receiving payment for referral of designated health services, some of which group physicians did not personally perform, in violation of the Stark Law.

The court held that the government had pled facts with sufficient particularity against the subsidiary clinics and denied the motion to dismiss with regard to them.  However, the court held that the government’s generalized allegations that (1) the health system created the clinic and the clinic in turn created the subsidiaries; (2) there was an overlap among officers, executives and employees within all organizations involved; and (3) some of the shared leadership knew about the improper arrangement were insufficient to support a claim for vicarious liability against the health system and clinic.

• Read the Order of U.S. District Judge Kristi K. DuBose, dated May 22, 2014, adopting the Report and Recommendation dated April 11, 2014.
• Read the Report and Recommendation of U.S. Magistrate Judge Sonja F. Bivins dated April 11, 2014.

 

De v. Catholic Healthcare West (Summary)

EMPLOYMENT DISCRIMINATION – RESIDENCY PROGRAM

De v. Catholic Healthcare West, B247458 (Cal. Ct. App. May 20, 2014)

A California appellate court affirmed a lower court’s decision granting a hospital’s motion for summary judgment in a lawsuit brought by a resident with ADHD.  The third-year internal medicine resident signed a one-year employment agreement with the hospital. For the first nine months of the agreement, the resident’s performance was unsatisfactory in the areas of professionalism, patient care, medical knowledge, communication, and interpersonal skills.  The hospital decided to terminate her from the program, and she appealed. At her appeals hearing, the resident brought to the hospital’s attention, for the first time, that she has ADHD. The hospital allowed the resident to return to work with a highly supervised, reduced workload. The resident did not show any signs of improvement, so the hospital allowed her employment agreement to expire. The resident asked for an extension of time to finish her residency, but the hospital declined. The resident then filed this action alleging, under California law, she was discriminated against due to her disability and that the hospital failed to engage in the interactive process to make and provide reasonable accommodations.

The court held that the resident could not perform the essential duties of the job, even with or without a reasonable accommodation; therefore she was not qualified for the position or protection under the antidiscrimination statute. Furthermore, she could not perform those duties in a manner that would not endanger the health or safety of others even with reasonable accommodations. The hospital also demonstrated that it engaged in a good faith interactive process to determine effective accommodations, once they were requested. Lastly, the court held the resident’s request for an extension of her residency was unreasonable, because there was no indication that she ever would have been competent to treat patients in the ICU or complete the other remaining required rotations without putting patients at risk.

Ridenour v. Glenbeigh Hosp. (Summary)

PEER REVIEW PRIVILEGE – INCIDENT REPORT

Ridenour v. Glenbeigh Hosp., No. 100550 (Ohio Ct. App. May 15, 2014)

An Ohio appellate court affirmed a lower court’s decision granting a patient’s motion to compel production of an incident report that was prepared by a nurse at the hospital.  The patient, while under the hospital’s care, suffered a seizure, fell and sustained life-altering brain injuries.  The patient’s family sued the hospital for negligence and sought discovery of the incident report.  The Court of Appeals held that the report was not generated exclusively for peer review, citing the fact that the original document was forwarded and retained by the director of human resources and that the peer review committee only received a copy.  Thus, the lower court was correct in holding that the peer review privilege did not apply and compelling the production of the document.

Young v. Tri-City Healthcare Dist., No. D063980 (Summary)

*Annotation*

Young v. Tri-City Healthcare Dist., No. D063980 (Cal. Ct. App. May 15, 2014)

The California Court of Appeal denied the surgeon’s request for attorney’s fees stemming from the hospital’s anti-SLAPP motion. The surgeon contended that the hospital’s motion was frivolous and for the sole purpose of harassing him. The court held that at the time the motion was brought, the interpretation of the anti-SLAPP statute could have given the hospital and its counsel an objective reasonable belief that the substance of the surgeon’s claims arose from a protected activity; hence it could not be frivolous. As to the surgeon’s allegation that the anti-SLAPP motion was for the sole purpose of harassing him, the court held that the record did not offer any adequate subjective support for this claim.

Young v. Tri-City Healthcare Dist., No. D059605 (Summary)

ANTI-SLAPP LITIGATION

Young v. Tri-City Healthcare Dist., No. D059605 (Cal. Ct. App. Oct. 17, 2012)

The California Court of Appeal denied a hospital’s anti-SLAPP motion in connection with a medical staff privileging matter involving a cardiac surgeon.  The surgeon’s ability to interact with others and his patient care came into question. After an investigation of these issues, the Medical Executive Committee (“MEC”) recommended terminating his privileges, and a hearing before a judicial review committee upheld the termination. While an appeal to the board was pending, the surgeon continued his behavior and was summarily suspended. The MEC confirmed the decision, the surgeon exhausted his internal appeals, and his privileges were terminated. The surgeon then petitioned for a writ of administrative mandate and reinstatement in court.

Among other things, he claimed that he was denied fair procedure in the handling of his summary suspension and that the decision of the hospital lacked substantial support. The hospital filed an anti-SLAPP motion against this claim, alleging that the peer review proceedings underlying the claim constituted protected speech. (The anti-SLAPP statute permits a motion to strike claims based on an act in furtherance of free speech or right to petition.)

The court held that while the act of public officials voting on a particular decision constituted an exercise of free speech rights protected under the anti-SLAPP statute, not all decisions made through such procedures “arise” from protected activity within the meaning of the statute. The appellate court found that the district’s decision did not constitute free speech and was not protected under the anti-SLAPP statute. Thus, it reversed the trial court’s decision and remanded for further proceedings.