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).

Eriksson v. Deer River Healthcare Center (Summary)

TERMINATION OF EMPLOYMENT – FMLA LEAVE

Eriksson v. Deer River Healthcare Ctr., Inc., No. 13-647 (RHK/LIB) (D. Minn. Apr. 18, 2014)

The United States District Court for the District of Minnesota dismissed a physician’s claim against his hospital employer for violation of the Family Medical Leave Act (“FMLA”), holding that the physician was unable to establish the nexus between his termination and his use of FMLA leave because he offered no evidence to link the two other than their temporal proximity (50 days), a proximity the court found insufficient.  Further, the court noted that the hospital proffered a non-discriminatory explanation for the termination – specifically, the physician’s consistent failure to timely complete medical records.  Despite the physician’s allegation that the hospital focused on his delinquent records as a pretext to discriminate against him based on his use of FMLA leave, the court noted that previous to the physician’s request for FMLA leave, the hospital had generated a number of notes and e-mails regarding the physician’s delinquent records, the physician had been involved in numerous conversations with the hospital’s clinic manager regarding his delinquent records, and the clinic had been forced to forego reimbursement for a number of claims due to the physician’s failure to timely document his care.  The court found that the hospital’s escalation of its efforts to address the physician’s documentation failures following his request for FMLA leave did not, in turn, lend to the conclusion that such escalation was the result of that request.

Cohlmia v. St. John’s Medical Center (Summary)

HCQIA – ATTORNEYS’ FEES

Cohlmia v. St. John Med. Ctr., No. 12-5188 (10th Cir. Apr. 21, 2014)

The United States Court of Appeals for the Tenth Circuit affirmed an award of over $700,000 in attorneys’ fees to a hospital pursuant to the Health Care Quality Improvement Act (“HCQIA”), in a lawsuit that had been brought by a physician to challenge the suspension of his clinical privileges.

This case arose after a surgeon’s privileges were suspended by a hospital following two serious and unexpected outcomes involving the surgeon’s patients.  The surgeon appealed the suspension internally and it was upheld by the hearing panel, MEC, and Board of the hospital.

The surgeon sued the hospital (and 18 other defendants), alleging eight claims, including:  violation of the federal and state antitrust laws, tortious interference with contract, unlawful attempt to monopolize the market, illegal boycott, discrimination on the basis of the surgeon’s affiliation with Native American patients, intentional infliction of emotional distress, and defamation.  Five of those claims were dismissed early in the litigation, while the remaining three claims proceeded to discovery, resulting in the hospital and other defendants producing over 150,000 documents.  Following discovery, the lower court noted that the surgeon produced no evidence to support his claims of antitrust violations and, in turn, granted summary judgment on the basis of immunity under the HCQIA.

The court awarded $732,668 in attorneys’ fees to the hospital and other defendants on the basis that a number of the surgeon’s claims were frivolous when filed (the five claims dismissed for failure to state a claim).  Further, with respect to the remaining three claims that proceeded through discovery only to be dismissed at the summary judgment phase, the court noted that it had expressed skepticism early on about whether the surgeon would be able to support his antitrust claims, but the surgeon nevertheless pursued those claims and engaged in extensive, costly discovery, ignoring indicators that the case lacked substance.  The circuit court agreed with the findings of the lower court, noting that the surgeon’s suit was “at best – unreasonable and without foundation and – at worst – frivolous and asserted in bad faith.”

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

QUI TAM/RETALIATION

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

The U.S. District Court for the Southern District of Alabama granted a motion to dismiss, filed by Infirmary Medical Clinics (“Medical Clinics”), in response to a relator’s third amended complaint.  The relator alleged in the complaint that he was employed by Diagnostic Physicians Group (“Physicians Group”) and that, as a result of his investigation and report, which showed that Physicians Group had violated the Stark and Anti-Kickback statutes, it had retaliated against him and terminated his employment.

In its motion to dismiss, Medical Clinics asserted that it did not employ relator, and thus could not retaliate against him.  In an effort to overcome this deficiency in the complaint, relator proposed a fourth amended complaint in which he alleged that due to the “inextricably intertwined relationship between Physicians Group and Medical Clinics, he was an ‘employee, contractor, or agent’ of all the defendants.”

The court concluded that relator might be able to establish that he had an “employer type” relationship with Medical Clinics for the purposes of the whistleblower provisions of the False Claims Act.  However, the court found that since the fourth amended complaint did not include any allegations of specific acts of retaliation on the part of Medical Clinics, including that Medical Clinics acted in concert with Physicians Group in retaliating against relator because of protected conduct, the claim for retaliation against Medical Clinics was futile and must be dismissed.

Hamilton Mem’l Hosp. Dist. v. Toelle (Summary)

BREACH OF CONTRACT

Hamilton Mem’l Hosp. Dist. v. Toelle, No. 12-cv-1004-JPG-PMF (S.D. Ill. Apr. 11, 2014)

The United States District Court for the Southern District of Illinois granted in part and denied in part a motion for summary judgment filed by a physician in a hospital’s lawsuit for breach of contract.

A physician (“Physician”) left the employment of a hospital (“Employer”) in the middle of a three-year contract, in order to work for another hospital.  The Employer filed suit, arguing that it was entitled to damages for the costs associated with tail insurance, a signing bonus and moving expenses for a replacement physician, loss of goodwill, and expenses associated with continuing medical education (“CME”).  The Physician filed a motion for summary judgment to dismiss the claim for damages brought by the Employer.

The employment agreement required the Employer to cover the cost of tail insurance unless there was a “for cause” termination.  The court concluded that no reasonable jury could find the Physician liable for the price of the tail insurance in light of the Physician’s early departure.  The court also found that the Employer failed to provide evidence to support its claim for loss of goodwill.  The court also found that the CME expenses fell within the category of expenses that the Employer was obligated to pay, per the employment contract.  Summary judgment was granted on behalf of the Physician for these claimed damages.

The Employer had also claimed that the Physician should reimburse the amount spent to recruit a replacement physician, as well as the amount paid to the replacement physician for a signing bonus and moving costs.  With respect to these claims, the court found that there was a genuine issue of fact, and the Physician’s motion for summary judgment was denied.

Picard v. Am. Bd. of Family Med. (Summary)

DUE PROCESS, TORTIOUS INTERFERENCE

Picard v. Am. Bd. of Family Med., No. 13–cv–14552 (E.D. Mich. Apr. 9, 2014)

The United States District Court for the Eastern District of Michigan granted in part and denied in part a motion to dismiss filed by the American Board of Family Medicine (“ABFM”) in a lawsuit filed by a physician alleging violation of common law due process, defamation, and tortious interference with a business relationship and contract.

In 1998, the physician obtained ABFM board certification.  For certification, ABFM requires all medical licenses held by a physician to be currently valid, full, and unrestricted.  In 2011, the physician, a recovering drug and alcohol addict, suffered a relapse and self-reported the incident to Michigan’s Health Professional Recovery Program.  The physician completed a recovery program, but, due to a “paperwork glitch,” his file with the recovery program was closed and this resulted in his license being inappropriately suspended for four months.  The Michigan Board of Medicine reversed the suspension and reinstated the physician’s license.  It also required the physician to participate in a monitoring agreement with the recovery program.

Before the reversal of the license suspension by the Michigan Board of Medicine, the ABFM revoked the physician’s board certification.  Notwithstanding the reversal, the ABFM refused to reinstate the physician’s board certification because it determined that the monitoring agreement violated its certification requirements, specifically its policies on professionalism.

The physician was not initially informed of termination until he gained employment with a new hospital in 2012.  The physician’s employment was subsequently terminated because he was denied board certification.

The physician then sued the ABFM, which responded with a motion to dismiss.  With respect to the due process and tortious interference claims, the court denied ABFM’s motion to dismiss.  The court held that since ABFM certification was essential to the physician’s practice and could significantly affect the physician’s profession, ABFM had a fiduciary duty to be substantively, rationally and procedurally fair when deciding whether to grant certification.  Based on allegations in the complaint that ABFM had failed to provide the physician with due process, the court found that the physician had stated a colorable claim for a violation of common law due process.

The court also held that the physician had stated a claim for tortious interference because he had alleged that ABFM was aware of his relationship with his current employer and maliciously denied him certification, notwithstanding his satisfaction of certain criteria, and that this denial cost the physician his job.

The court granted ABFM’s motion to dismiss the defamation claims, finding that the first claim was barred by the one-year statute of limitations and the second was based on ABFM’s opinion and, since the opinion was grounded on disclosed facts, a third party could assess the facts and determine the truth or falsity of ABFM’s opinion.  With respect to the third, fourth and fifth claims relating to defamation, the court determined that the communication was privileged since it was only published to the physician’s attorney on the physician’s request.

Intermountain Stroke Ctr. v. Intermountain Health Care (Summary)

TRUTH IN ADVERTISING

Intermountain Stroke Ctr. v. Intermountain Health Care, No. 2:13-cv-00909-DN (D. Utah Mar. 31, 2014) 

The U.S. District Court for the District of Utah, Central Division, granted in part the defendants’ motion to dismiss plaintiffs’ claims that the defendants misrepresented themselves in violation of the federal Lanham Act and Utah’s Truth in Advertising Act (“UTIAA”), and intentionally interfered with the plaintiffs’ economic relations.

The plaintiff stroke center claimed that the defendants misled patients regarding the defendants’ quality of care for strokes and transient ischemic attacks (“TIAs”).  The plaintiffs argued that the defendants should have referred patients to the stroke center or paid for the stroke center’s services (one defendant being a health insurance company), as plaintiffs were the only same-day urgent care stroke clinic in Utah.  The plaintiffs also claimed that one defendant’s website falsely advertised that the organization employs numerous physicians specializing in stroke treatment.  The plaintiffs asserted that this alleged misrepresentation of quality violated the Lanham Act and the UTIAA.

The court held that one defendant’s claim to have the “best medical practices” was simply puffery, as no reasonable customer would rely on these statements in determining where to receive stroke treatment. Puffery is not a violation of the Lanham Act.  Plaintiffs’ claim that the defendants offered misleading statements as to the number of employed stroke specialists was also dismissed under the Lanham Act, as it was ruled that consumers would not infer that all the physicians were specialists in stroke or TIA treatment.  The court ruled that one defendant’s “Life After a Stroke or TIA” pamphlet did not mislead consumers as to the characteristics of the organization’s services.  However, the federal court remanded the UTIAA and other state law claims to state court for additional proceedings.

Collins v. Dartmouth-Hitchcock, Med. Ctr (Summary)

ADA

Collins v. Dartmouth-Hitchcock, Med. Ctr., No. 13-cv-352-JD (D. N.H. Apr. 7, 2014)

The U.S. District Court for the District of New Hampshire denied a hospital’s partial motion to dismiss a patient’s suit asserting claims under the Americans with Disabilities Act, the Rehabilitation Act of 1973, and various state law claims.  The patient suffered from significant hearing loss, despite the use of a cochlear implant, and at times communicated in sign language.

After undergoing an unsuccessful surgical procedure at the hospital to replace her cochlear implant, the patient awoke, unable to hear at all.  The doctor who performed the surgery knew that the patient would not be able to hear after the procedure, but had not provided her with a sign language interpreter when he met with her to inform her of the outcome of the operation.  Instead, the doctor explained the issues to the patient’s sisters, despite the sisters’ insistence that he directly address the patient.  The doctor attempted to convey the results of the operation to the patient eight hours later, albeit unsuccessfully, never once using an interpreter.  In subsequent appointments, the patient and her family requested an interpreter, though one was never provided.  The patient was allegedly forced by the hospital and doctor to sign a waiver indicating she did not wish to have an interpreter.  The hospital informed the patient that she would not be treated at the hospital unless she signed the waiver.

The court held that the defendants recklessly created a risk of harm, as they failed to provide the patient with an interpreter immediately after her operation, despite knowing that she would be unable to hear, and failed to explain to her what happened during the operation for at least eight hours after the doctor’s initial attempt.  The court further found that the hospital exhibited “malicious or oppressive” conduct in retaliating against the patient by threatening to withhold further medical care and forcing her to waive her rights to an interpreter.

Medlin v. N.C. Specialty Hosp (Summary)

PEER REVIEW ACT PROTECTION

Medlin v. N.C. Specialty Hosp., Civil No. COA13-818 (N.C. Ct. App. Apr. 1, 2014)

The Court of Appeals of North Carolina affirmed and remanded in part a lower court’s finding in favor of a patient in a medical malpractice suit against a hospital.  The patient’s suit alleged that he suffered permanent damage to his eye and extreme pain as a result of the hospital’s negligent use of an incorrect, toxic chemical during his cataract surgery.

The hospital claimed that if its appeal was not heard, a substantial right regarding “the production of privileged materials and testimony” would be affected. As such, the court considered the hospital’s appeal on issues relating to privilege.

The court held that the lower court did not err in requiring non-privileged questions to be answered, as the questions were not regarding the (1) proceedings of a medical review committee or (2) records and materials produced by a medical review committee.  The court further found that the lower court’s in camera review was not biased against the hospital’s defenses.

Blake v. Main Line Hosps. (Summary)

EMTALA

Blake v. Main Line Hosps., No. 12-3456 (E.D. Pa. Apr. 2, 2014) 

The U.S. District Court for the Eastern District of Pennsylvania denied a hospital’s partial motion for summary judgment on an EMTALA claim that the hospital failed to perform an appropriate medical screening exam, brought by the estate of the deceased.  The plaintiff claimed that when decedent was admitted to the hospital for chest pain, the screening procedure performed on the decedent deviated from the hospital’s standard screening procedure in violation of the Act.  The motion for summary judgment was denied because neither party had put into evidence what constituted the hospital’s standard screening procedure for the patient’s condition, making it impossible to determine if there was a deviation in the actual medical screening examination that the decedent received.