Jones-McNamara v. Holzer Health Sys., Inc. (Summary)

Jones-McNamara v. Holzer Health Sys., Inc., No. 2:13-cv-616 (S.D. Ohio Apr. 28, 2014)

The U.S. District Court for the Southern District of Ohio denied defendant hospital’s motion for judgment on a former employee’s False Claims Act (“FCA”) retaliatory discharge claim.

In May 2010, plaintiff, a former compliance officer, began investigating conduct that she believed resulted in improper and fraudulent claims being submitted in violation of the FCA.  She sent a memorandum complaining of such conduct and advised that reimbursement checks be sent to the government.  In response, the compliance officer allegedly was instructed not to talk to her informant again, not to reduce her findings and analyses to writing, and not to work with anyone in her investigations except for outside counsel in order to create the appearance that the attorney-client privilege covered any materials involved in the work.  In June 2010, the compliance officer was terminated from her position and she sued, claiming retaliatory discharge.

In denying the hospital’s motion for judgment, the court held that a plaintiff is not required to bring or further a qui tam FCA case against a defendant in order to gain protection under the FCA’s retaliation provision.  Instead, the current retaliation provision affords broad coverage to employees by protecting them from being fired for (1) conduct that is in furtherance of an FCA action, as well as (2) other efforts to stop violations of the FCA (including internal reporting of FCA violations).  As a result, the court found it inappropriate to dismiss the former compliance officer’s claim because her investigation and disclosure of conduct in potential violation of the FCA satisfied the second prong and, as a result, was protected.

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

DISCRIMINATION – AGE

Riley v. St. Mary Med. Ctr., No. 13-cv-7205 (E.D. Pa. Apr. 23, 2014)

The U.S. District Court for the Eastern District of Pennsylvania granted in part and denied in part a hospital’s motion to dismiss a former nurse’s claim that she was the victim of age discrimination.

The plaintiff, a 62-year-old nurse, worked in the defendant hospital over ten years with generally positive work reviews.  She had a history of anxiety, colitis, insomnia, and some 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 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.

The court found that the nurse could only bring claims based on her termination itself.  Claims for the other alleged previous acts of discrimination were held to be untimely since they occurred more than 300 days before the filing of the suit.  This time-bar prevented the nurse’s claims of a hostile work environment prior her termination.  The court held that the termination itself was to be considered a “discrete act” which could not be aggregated with the other acts that had allegedly occurred in the past to constitute proof of a hostile work environment.  The court did not dismiss the nurse’s discrimination and retaliation claims, finding that the facts suggested a plausible claim for relief.  However, the court 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 also claim that any discrimination against her was based on a disability.

Doe v. Bd. of Regents of the Univ. of Neb. (Summary)

DISCRIMINATION – DISABILITY

Doe v. Bd. of Regents of the Univ. of Neb., No. S-12-1136 (Neb. Apr. 24, 2014)

The Supreme Court of Nebraska upheld the dismissal of a medical school student’s Americans with Disabilities Act (“ADA”) and Rehabilitation Act claims against a university medical school, its affiliated hospital, and several faculty members in their official and individual capacities.  The student was placed on academic probation his first year, asked to have his exams rescheduled twice, and was granted a leave of absence to deal with personal issues related to a death in the family and the break-up of a relationship.  Later, he was granted the unprecedented ability to take specially arranged summer core classes to stay on pace with his class.  During his third year, he failed two clerkships and received a marginal rating in another.  These results were based on a mixture of professional concerns, such as playing internet poker on duty, leaving clinic hours early, and unexcused absences, as well as academic concerns such as difficulty presenting patients, below-average knowledge base, and failing national exams.  The student agreed to an academic contract which included a professionalism clause in order to maintain enrollment in medical school.  During his next rotation, the student received a poor rating and negative comments in regard to his professionalism.  On that basis, the medical school determined that he was in violation of his academic contract and terminated his enrollment.  In challenging the termination, the student claimed that he was suffering from a disability – depression – and that his termination was in violation of the ADA and Rehabilitation Act.  It was undisputed that the student had never formally informed the medical school that he was suffering from a disability through the designated process or ever requested an accommodation.

Due to their similarities, the court analyzed both claims together.  The court held government officials cannot be sued in their individual capacities under the ADA or the Rehabilitation Act.  Next, the court held that the medical school never had knowledge of the student’s disability and, therefore, it could not be held liable under the Acts.  The mere fact that plaintiff told some faculty members he was “depressed” or “stressed” was insufficient to prove that the medical school had knowledge of a disability or a request for an accommodation.  The court also concluded that the academic contract that the student signed didn’t have materially adverse effects on the student, but instead, merely clarified the expectations of the program applicable to all students.  Moreover, given the record full of professionalism and clinical knowledge issues, the student had failed to show that there were any adverse actions taken “because of his disability” by defendants.

Miller v. Huron Reg’l Med. Ctr., Inc. (Summary)

NPDB REPORTING

Miller v. Huron Reg’l Med. Ctr., Inc., No. 12-4138-KES (D. S.D. Apr. 22, 2014)

The U.S. District Court for the District of South Dakota dismissed a claim for tortious interference with business relationships and expectations that was brought by a general surgeon against the professional liability carrier of the hospital where she worked, in which the surgeon alleged that the professional liability carrier’s delay of almost four months in submitting the results of an external review regarding one of her cases resulted in the hospital reporting her to the National Practitioner Data Bank.

The court noted that, to survive dismissal, the surgeon was required to allege an intentional and unjustifiable act of interference by the professional liability carrier with respect to the contract between the surgeon and the hospital.  She failed to do this, instead claiming that the carrier had a duty to facilitate the external review in a reasonable and prudent manner (i.e., without negligence).

Thome v. Cook (Summary)

NPDB REPORTS BY STATE BOARDS

Thome v. Cook, No. 11-cv-03320-RM-MEH (D. Colo. Apr. 22, 2014)

The U.S. District Court for the District of Colorado dismissed a claim brought by a licensed counselor against the Colorado Board of Licensed Professional Counselor Examiners (the “Board”), in which she alleged that it inappropriately tendered a letter of admonition involving her to the National Practitioner Data Bank (“NPDB”).  The case involved a licensed counselor who was charged by the Board for failure to follow applicable standards of the profession.  The charges were ultimately overturned by a court and, eventually, dismissed by the Board, but not until after a letter of admonition had been filed with the NPDB.  The counselor filed suit seeking damages under federal and state law for what she described as “fabricated” charges and an “informal sham process.”

In a prior opinion, the court dismissed all of the claims related to the Board’s proceedings, noting that the Board and its members were entitled to judicial and prosecutorial immunity under state law.  Accordingly, after the counselor amended her complaint, the court was merely considering the issue of whether the Board’s submission of the letter of admonition to the NPDB was covered by the judicial and prosecutorial immunity.

The counselor argued that immunity would be inappropriate since the letter was not legally tendered.  In support of this argument, the counselor argued that because the Board’s proceedings were inappropriate, the report of the outcome of those proceedings was not legally mandated.  Further, she argued that because the Board missed the 30-day deadline to submit the report, it was not legally mandated.

The court rejected both of these arguments, noting that even if the contents of the letter were erroneous (because the conclusions therein were based on a sham process), the legal mandate to report the letter was clear and was intertwined with the Board’s adjudication process.  Further, the court noted no case law “putting forth the proposition that missing a reporting deadline renders the reporting” outside of the legal mandate.  Therefore, the court held that the report of the letter of admonition was part of the proceeding in this case and the Board and its members were, in turn, entitled to immunity for their participation in making that report.

Isaacs v. Dartmouth-Hitchcock Med. Ctr. (Summary)

TERMINATION FROM RESIDENCY PROGRAM

Isaacs v. Dartmouth-Hitchcock Med. Ctr., No. 12-CV-040-LM (D. N.H. Apr. 18, 2014)

The United States District Court for the District of New Hampshire granted summary judgment in favor of a hospital and residency program, dismissing the lawsuit of a physician who was terminated from the residency program.

This physician’s most unusual background included:  (1) expulsion from medical school for harassing a classmate; (2) completion of medical education at a second school located in the Caribbean; (3) omission of his attendance at the first medical school on his electronic residency application service (“ERAS”) application; (4) resignation from his first residency program after being put on probation after receiving a Notice of Deficiency just three weeks into the program; (5) submission of a second ERAS application (to the defendant hospital and residency program), in which he omitted his attendance at the first medical school and the first residency program; and (6) submission of an application for a training license in New Hampshire, in which he indicated that he had resigned from a medical education program “in good standing” because he felt that the program was “not a good fit” with his overall career plans.

Having been admitted to the second residency program, the physician’s case load was reduced after only five days due to concerns over his ability to manage the full load.  Explaining the reduction in duties, the director of the internal medicine program cited concerns over the physician’s punctuality, preparation for rounds, handling of the pager and note writing.  Within days, he took the further step of removing the physician from the service, noting performance issues and stating “[a]s far as we can tell, his medical knowledge is zero.”  Over the next six months, the physician was placed on a performance improvement plan, which he did not complete, removed again from an internal medicine rotation, and found to have documented an examination in a patient chart despite not having examined the patient.

Less than nine months following his commencement of the residency program, the physician was terminated due to omissions and misrepresentations on his applications for the residency program and for a training license from the state board, false reporting in patient records, deficits in knowledge and professionalism, failure to achieve a performance level necessary for progression to PGY-2, and inability to perform basic PGY-1 level tasks when caring for patients.

The physician filed a lawsuit, representing himself and alleging ten claims, including:  disability discrimination (he claimed a well-established head injury dating back to 1997), wrongful termination, breach of contract, breach of the covenant of good faith and fair dealing, negligent misrepresentation, fraud, and negligent and intentional infliction of emotional distress.  The defendants filed for summary judgment, which was granted.

The appellate court upheld the lower court’s grant of summary judgment to the hospital and residency program.  Among other things, the court held that the physician could not sustain his disability discrimination claims because he never made a proper request for an accommodation for his alleged disability and, in fact, filled out paperwork at the beginning of the program stating that he did not have a disability and would not like to request any accommodation.  Further, the court held that mere allegations that he “requested leave” were not sufficient to show he requested an accommodation for his disability, without additional detail being pled and evidenced.

With respect to the wrongful discharge claim, the court rejected the physician’s argument that he was discharged because he filed an ethics complaint with the president of Dartmouth College, finding instead that the overwhelming evidence showed a long, well-documented history of the residency program attempting to help the physician overcome his deficiencies and that the physician was terminated for failing to correct those deficiencies.

The court went on to note that summary judgment was appropriate for a number of the physician’s other claims due to his failure to plead the claims appropriately (for example, pleading what seemed to be a defamation claim as a fraud claim), failure to follow appropriate legal procedures (for example, not filing charges with the EEOC or state human rights commission prior to making a claim for discrimination in a court of law and not offering expert witness testimony to link the alleged negligent infliction of emotional distress with any symptoms of distress being suffered by the physician), and failure to produce evidence in support of his claims (for example, failure to produce a contract the terms of which had been breached in support of his claim for breach of contract).

Kapoor v. Brown (Summary)

DEFAMATION

Kapoor v. Brown, No. A13-1402 (Minn. Ct. App. Apr. 21, 2014)

The Court of Appeals of Minnesota affirmed summary judgment in favor of a multispecialty medical clinic, its administrator, and an OB/GYN who were sued by a radiologist for defamation after requesting that the radiologist’s employer no longer schedule him to read their scans, stating that he had reported one of the physicians to the state medical board, and stating that he had “lost his mind.”

The alleged animosity between the radiologist and other physicians in this case was related to the birth of the radiologist’s son.  His wife’s family physician was unable to attend the birth, resulting in the on-call family practice physician and resident attending the delivery (with which the doctor and his wife were dissatisfied).  When the radiologist and his wife attempted to switch her postpartum care to an OB/GYN, that OB/GYN refused to see them pursuant to a departmental policy of not seeing patients who had been delivered by a family practice physician.  A few months later, the OB/GYN called the radiologist’s employer to request that her patients’ CT scans not be read by the radiologist because she was concerned that his feelings about the birth of his son had compromised his ability to be impartial and she did not trust him.  Subsequently, the family practice physician who had been unavailable to deliver the radiologist’s baby learned that a complaint had been filed against her with the board of medical practice and believed that the radiologist or his wife must have made the complaint.  She reported her concerns to the administrator of the medical clinic, who contacted the radiologist’s employer to request that the radiologist no longer be present on the premises of their buildings or read any of their cases.  In the process, the administrator allegedly stated that the radiologist had reported the family practice physician to the state board and “has lost his mind.”

The appellate court found that the lower court did not err by granting summary judgment to the medical group, administrator, and physician because the statements at issue could not reasonably be interpreted as representations of fact and, accordingly, were not defamatory.  The court reasoned that the statements were subjective opinions and expressions of personal preferences to not have the radiologist involved in their patients’ care, rather than statements of fact.  Further, the statement that the radiologist “lost his mind” was a “rhetorical hyperbole” that could not be proven true or false and was merely intended to convey the subjective concern that the radiologist was so upset with the physicians involved in the delivery of his baby that his ability to perform his professional duties was compromised.

Shaham v. Tenet HealthSystem QA, Inc. (Summary)

CALIFORNIA ANTI-SLAPP

Shaham v. Tenet HealthSystem QA, Inc., B246549 (Cal. Ct. App. Apr. 15, 2014)

A California court affirmed a motion to strike 15 claims alleged by an obstetrician against a hospital and three of its physicians, concluding that the state’s anti-SLAPP statute protected the hospital and physicians’ conduct and the obstetrician failed to show a likelihood of prevailing on the merits of his claims.

The obstetrician, who was the subject of focused peer review, claimed that there was no basis for subjecting him to focused review and, although he was fully exonerated and his privileges were reinstated, he was damaged by the negative information about him that was provided to other doctors and other facilities where he worked (including that his privileges were in abeyance and that he was a “dangerous doctor”).  He alleged that the peer review was initiated and conducted with no factual basis or notice, was a sham intended to allow the physician defendants to redirect his patients to the hospital’s residency program, and that confidentiality of the process was not maintained.

The court held that the alleged claims of misconduct were subject to the anti-SLAPP statute because the defendants acted in furtherance of protected speech in connection with medical peer review.  Further, the court agreed with the lower court that the obstetrician provided no evidence that he would probably prevail on his claims, noting that the only evidence provided by the time of the anti-SLAPP hearing was a declaration of the obstetrician which was full of accusations and assumptions, but not facts, and further, that document was untimely filed and thus ineligible for consideration.

U.S. ex rel. Smart v. Christus Health (Summary)

FALSE CLAIMS ACT – QUI TAM

U.S. ex rel. Smart v. Christus Health, No. 13-40785 (5th Cir. Apr. 16, 2014)

The United States Court of Appeals for the Fifth Circuit affirmed the lower court’s decision to deny a relator’s claim for a share of the settlement of another qui tam action brought against the same health system by another relator.  The court rejected the relator’s claim that both qui tam actions were based on the same allegations of fraud; the other claim, which was filed later in time, was barred.

The court disagreed, noting that while both relators allege violations under the False Claims Act (“FCA”), the allegations of fraud in the relators’ complaints were different (the other relator’s complaint alleged that the health system committed billing fraud by improperly using inpatient codes for outpatient procedures (upcoding), whereas this relator alleged that the health system rented office space at below market value to induce referrals in violation of the Anti-Kickback Statute and Stark Law).

The relator pointed out that the settlement agreement in the other relator’s case released the hospital “from any claims the Government may have under, inter alia, the monetary penalty provisions in the Stark Law and the Anti-Kickback Statute.”  The court held the language of the release to be irrelevant to whether the first-to-file rule would bar the other relator’s claim, noting that it is the comparison of the complaints, not settlement agreements, that matters when determining whether one qui tam suit alleges the same material elements of fraud as a previously filed suit.

The relator also claimed that his allegations of fraud were sufficient to alert the other relator to the upcoding fraud and, in turn, he was the “original source” of the other qui tam action.  In rejecting this claim, the court noted that the complaints included different elements of fraud and the relator had pointed to no evidence showing that he even had knowledge of the upcoding fraud.

Lieving v. Pleasant Valley Hosp., Inc. (Summary)

WHISTLEBLOWER RETALIATION

Lieving v. Pleasant Valley Hosp., Inc., No. 3:13-27455 (S.D. W.Va. Apr. 11, 2014)

The United States District Court for the Southern District of West Virginia dismissed in part the gender discrimination and retaliation claims brought by a former employee against a hospital and its CEO.  The employee claimed she was discriminated against, in violation of the federal Civil Rights Act of 1964 and the West Virginia Human Rights Act, and retaliated against, in violation of the West Virginia Patient Safety Act, for her “good faith reports of wrongdoing and waste.” The federal district court dismissed the federal discrimination claim against the CEO because, unlike an employer, an “individual supervisor” cannot be liable under the Civil Rights Act.  Further, the court dismissed the retaliation claim against the hospital and CEO because the employee was not the type of worker protected by the West Virginia Patient Safety Act.  Specifically, the court held that the Act protects “health care workers,” which is defined as those who provide direct patient care.  In this case, the employee did not provide direct patient care (the court’s opinion does not state what position she held at the hospital).