U.S. v. Acadiana Cardiology (Summary)

FALSE CLAIMS ACT

U.S. v. Acadiana Cardiology, Civil Action No. 04-732 (W.D. La. Mar. 31, 2014)

The U.S. District Court for the Western District of Louisiana denied a cardiologist’s and his cardiology center’s partial motion for summary judgment on an individual’s (“relator”) qui tam action under the federal False Claims Act (“FCA”).  The relator, a former employee of the center, alleged that the cardiologist and center performed, and billed federally funded health care programs for, unnecessary, improper, and excessive medical services.  Defendants moved that the government lacked the CMS Form 1500s to show that any bills were submitted to Medicare for the pertinent procedures.  The court held that, in an FCA case, documentation other than a CMS Form 1500 can serve as sufficient circumstantial evidence that a claim was submitted to Medicare, including testimony that establishes that false claims were submitted.

Bryson v. Milford Reg’l Med. Ctr. (Summary)

EMTALA

Bryson v. Milford Reg’l Med. Ctr., Civil Action No. 11-40052-TSH (D. Mass. Mar. 27, 2014)

The U.S. District Court for the District of Massachusetts granted a defendant’s motion for partial summary judgment, determining that the Emergency Medical Treatment and Active Labor Act (“EMTALA”) transfer requirements were met by the defendant hospital. The process was deemed to be in compliance with EMTALA requirements, and any challenges to the standard of care would need to be addressed through claims of negligence or malpractice.

The plaintiff, a pregnant woman who had previously undergone gastric bypass surgery, was admitted into the defendant hospital after experiencing severe shooting pains in her abdomen. Despite pain and anti-nausea medication, the plaintiff’s condition had not improved, and she was admitted to the labor and delivery unit.  Another obstetrician examined the plaintiff and noted that, though her pain was worsening, the vital signs for her and the fetus were stable.  Ultimately, the defendant decided to transfer the plaintiff to a tertiary care center because the hospital did not have a newborn intensive care unit and did not have adequate resources to address any complications that might arise due to the plaintiff’s previous gastric bypass surgery.  Both the physician and the plaintiff signed her authorization for transfer form.  Before she left the defendant hospital, the plaintiff began vomiting blood. She arrived at the transfer hospital in critical condition and received an emergency caesarean section.  The baby was born with no heart rate and died 11 days later.  The plaintiff alleged that the defendant hospital violated EMTALA by failing to stabilize her before transferring her to another hospital. 

The defendant sought summary judgment to dismiss this claim, arguing that EMTALA does not apply in this case because the plaintiff went directly to the labor and delivery unit and bypassed the emergency room.  The court determined that there was no violation of EMTALA, as the plaintiff was appropriately transferred under the Act’s requirements.  The doctors of the defendant hospital observed and treated the plaintiff and ultimately determined after careful consideration that the benefits of better resources outweighed the risk of a transfer.  Both the physician and the plaintiff signed the authorization for transfer.  The process was, therefore, deemed to be in compliance with EMTALA requirements, and any challenges to the standard of care would need to be addressed through claims of negligence or malpractice.

U.S. v. Sabit (Summary)

FALSE CLAIMS ACT/QUI TAM CASES

U.S. v. Sabit, No. 14–MC–50155 (E.D. Mich. Apr. 1, 2014)

The U.S. District Court for the Eastern District of Michigan largely granted in part and denied in part a United States motion to enforce its civil investigation demand (“CID”).

The defendant, a neurosurgeon, was under investigation for allegedly receiving kickbacks for performing unnecessary implants of spinal devices produced by Reliance Medical Systems.  The government requested (1) medical records of defendant’s patients who received spinal implants, (2) audio recordings of the California Medical Board’s interviews with the defendant, and (3) all e-mail communications between the defendant and Reliance from 2009-2014, including a specific letter from the company terminating its relationship with the defendant.  The defendant argued that his Fifth Amendment right against self-incrimination exempted him from complying with the CID.

The court held that when production of documents requires a defendant to make considerable use of his mental capacities in identifying the documents sought in discovery, that production is testimonial and protected by the Fifth Amendment.  In contrast, when the government has sufficient knowledge concerning the existence and location of specific documents so as to describe them with reasonable particularity, production is tantamount to surrender and is not testimonial.

In granting the motion to enforce, the court ruled that the government’s knowledge of the (1) names of defendant’s patients, (2) existence and location of the audio recordings and (3) existence of the termination letter was sufficient to obligate defendant to surrender the records, recordings and letter.  In denying the motion, the court held that the defendant’s production of the 2009-2014 e-mails was tantamount to testimony material.  The government failed to identify the nature of the e-mails, lacked reliable information concerning the number of e-mails in existence and only identified the existence of a single e-mail between the defendant and the company.  As a result, the defendant would have had to sort through his e-mails and identify the relationships between various individuals and the company.  Accordingly, production would have amounted to forcing the defendant to answer written or oral questions about the documents, a result at odds with the Fifth Amendment and in violation of the defendant’s right against self-incrimination.

Slattery v. Mishra (Summary)

PEER REVIEW ACT PROTECTION

Slattery v. Mishra, No. 13–cv–1058–JAR–DJW (D. Kan. Mar. 31, 2014)

The U.S. District Court for the District of Kansas granted in part and denied in part a defendant hospital’s motion to quash (reject) plaintiff’s subpoena requests.

The plaintiff, the administrator of a deceased patient’s estate, filed a negligence suit against the patient’s treating physician.  The plaintiff filed subpoena requests for, among other things, documents containing peer review and risk management materials.  In granting the motion to quash, the court held that these materials were privileged pursuant to Kansas state law.  The plaintiff argued that the underlying facts, on which the privileged opinions and deliberations were based, were outside the scope of statutory protection, and thus the documents were discoverable.

The court ruled that documents containing factual accounts and witness names were not automatically protected simply because they also contained privileged conclusions and recommendations.  Such documents were only discoverable if the facts and information contained therein went to the heart of the plaintiff’s claim and the failure to disclose would deprive the plaintiff of access to relevant information.  The court found that the plaintiff failed to demonstrate centrality of the facts and the court denied his subpoena requests concerning privileged information.  The court also found that the plaintiff’s other subpoenas concerning certain information were to be honored.

Comm’r of Pub. Health v. Freedom of Info. Comm’n (Summary)

DATA BANK REPORT AND FOIA

Comm’r of Pub. Health v. Freedom of Info. Comm’n, SC 19046 (Conn. Mar. 25, 2014)

The Supreme Court of Connecticut held that any records received by a public agency from either the National Practitioner Data Bank (“NPDB”) or the Healthcare Integrity and Protection Data Bank (“HIPDB”) may not be disclosed by that public agency under the Freedom of Information Act.

A couple filed a lawsuit against an obstetrician/gynecologist from whom the couple had obtained an intrauterine insemination procedure.  The couple alleged that the physician inseminated the woman with his own sperm rather than that of her husband.  The couple settled the lawsuit and the records were sealed.

The Department of Public Health received notice from the NPDB that a medical malpractice action had been settled against the physician.  The Department and the physician entered into a consent order, which was a public document, under which the physician did not contest the Department’s allegation that he had inseminated a patient with his own sperm, but did not admit wrongdoing or guilt.  A newspaper learned of the allegations, and sent a letter to the Department requesting all records under the state Freedom of Information Act (“State FOIA”).  The Department complied with the request in part, but failed to produce certain documents in the report, namely the NPDB and HIPDB reports, and the newspaper filed a complaint with the Freedom of Information Commission (“FIC”).  At the hearing before the FIC, the Department argued that the report contained information from both the NPDB and the HIPDB and that there was federal law to support withholding those documents.  The FIC ruled that federal regulations allowed for the withholding of HIPDB records, but that the NPDB records were not barred from disclosure.  Both the Department and the newspaper appealed the decision of the FIC.  The appeals court affirmed the decision of the FIC, and the Department and newspaper appealed to the Supreme Court of Connecticut.

The court sought to determine if records received from federal databanks by a state agency were subject to the disclosure required under the State FOIA.  The court observed that under the Patient Protection and Affordable Care Act, all HIPDB records were to be transferred to the NPDB.  The court concluded that the federal statutory and regulatory schemes in effect when the newspaper made its request “strongly suggest that records received from both the [NPDB] and the [HIPDB] would not be subject to disclosure under the [State FOIA]” and reversed the decision of the FIC.

Hague v. Univ. of Tex. Health Sci. Ctr. at San Antonio (Summary)

SEX DISCRIMINATION RETALIATION

Hague v. Univ. of Tex. Health Sci. Ctr. at San Antonio, No. 13-50102 (5th Cir. Mar. 28, 2014)

The U.S. Court of Appeals for the Fifth Circuit affirmed a lower court’s grant of summary judgment in favor of a defendant hospital which dismissed a plaintiff nurse’s claims of sex discrimination and sexual harassment, but vacated the lower court’s ruling which granted summary judgment on the retaliation claim.

The nurse was employed by the hospital in the emergency department and, while employed, filed complaints with the hospital against two physicians who worked in the department.  One complaint was for sexual harassment while the other was for differential treatment of employees.  The nurse also filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) and, before the hospital had received any notice of this filing, the nurse was notified by the hospital that her employment contract would not be renewed.  The nurse received a right to sue letter from the EEOC and filed a lawsuit alleging that the hospital retaliated against her and that she was the subject of sex discrimination as well as sexual harassment, which the lower court dismissed.

The appeals court affirmed the lower court’s rulings on the sex discrimination and sexual harassment claims.  On the sex discrimination claim, the appeals court found that the nurse failed to include specific claims of sex discrimination in her EEOC filing.  Also, for the sexual harassment claim, the appeals court found that although the nurse alleged sexual harassment by a supervisor, the conduct in question came from a coworker who did not possess the power to take employment actions against the nurse.  Thus, the appeals court analyzed the coworker’s conduct under the standards for hostile work environment and found that the coworker’s conduct did not have any serious effect on the nurse’s employment, as no physical or sexual advances were made to her and the offensive comments were made infrequently.

Finally, the appeals court vacated the lower court’s ruling on the retaliation claim, finding that the nurse had raised an issue of fact for a jury to decide – namely, that a jury could conclude that the hospital’s reasons for not renewing her employment contract were pretextual, since the hospital refused to give the nurse any reason for not renewing the employment contract at the time it was not renewed, but gave a laundry list of reasons once the nurse filed this lawsuit.

Mitchell v. Tennova Healthcare (Summary)

EMTALA

Mitchell v. Tennova Healthcare, No. 3:13-CV-364-TAV-HBG (E.D. Tenn. Mar. 21, 2014)

The United States District Court for the Eastern District of Tennessee dismissed a patient’s suit against an entity, finding that the patient failed to state a claim under the Emergency Medical Treatment and Active Labor Act (“EMTALA”).

The patient alleged that he went to the entity’s emergency room after sustaining a workplace injury, and that a physician told him the injury would have to be reported to the employer’s human resources department before treatment could be provided.  The patient returned to the employer, found the department closed, and went home for the night.  The next day, the patient spoke to human resources, returned to the entity, and was sent to a different hospital to be treated.  The patient then filed a pro se EMTALA claim against the entity, among other things.

The court found that the patient failed to state a claim as the entity that he sued was not a legal entity.  Also, the court reasoned that even if the patient had brought suit against the correct legal entity, EMTALA is intended to limit the cause of action to those individuals who did not receive an appropriate screening, among other things, and that his complaint “fails to make any mention of the screening that is required” by EMTALA.  Finally, the court observed that the patient’s complaint appears to be that he did not receive the type of medical treatment he believes he should have received, but that does not fall under the protection of EMTALA since EMTALA does not guarantee a particular type of medical treatment, but solely requires a hospital to take appropriate screening measures.

Gentilello v. Univ. of Tex. S.W. Health Sys. (Summary)

SOVEREIGN IMMUNITY

Gentilello v. Univ. of Tex. S.W. Health Sys., No. 05-13-00149-CV (Tex. App. Mar. 24, 2014)

The Court of Appeals of Texas affirmed a trail court’s ruling that a hospital had sovereign immunity in a physician-employee’s claim alleging that adverse personnel actions were taken in retaliation for his good faith report about the hospital’s billing practices that allegedly violated Medicaid patient care requirements.

The physician held multiple titles and positions at the hospital, and contended that after he brought concerns regarding the hospital’s billing practices to its attention, he was stripped of his positions and received an unsatisfactory review and a pay cut.  The physician brought federal and state qui tam actions against the hospital, both of which were settled, and under the terms of the settlement agreement, the physician was allowed to reserve his right to maintain his retaliation claim under state law.

After the settlement, the hospital asserted that since it is a state entity, the physician’s retaliation claim is barred by sovereign immunity, and the trial court agreed.  On appeal, the physician’s contention was that the language of the settlement agreement indicated that the hospital waived its sovereign immunity; however, the appeals court found that the agreement did “not contain clear and unambiguous language waiving sovereign immunity.”  The physician also argued that the hospital waived sovereign immunity by its “extraordinary, egregious, and inequitable” conduct; however, the appeals court also declined to conclude that a state entity, such as the hospital, could waive sovereign immunity by its conduct.

Blom v. Wellstar Health Sys., Inc. (Summary)

SEX DISCRIMINATION

Blom v. Wellstar Health Sys., Inc., No. 13-11893 (11th Cir. Mar. 27, 2014)

The United States Court of Appeals for the Eleventh Circuit affirmed a lower court’s grant of summary judgment in favor of a hospital, finding that a former medical director could not sufficiently allege her claims of gender discrimination and quid pro quo sexual harassment.

The hospital had concerns about three aspects of the medical director’s billing practices: (1) insufficient documentation of procedures; (2) coding above national benchmarks; and (3) billing through her own provider number when she was using another physician to cover her.  The hospital also received an anonymous complaint that she was not fulfilling her duties and was falsifying documentation.  The hospital investigated the complaint and found that the allegations were unfounded; however, the investigation revealed other concerns about the medical director’s performance.  Some of these concerns included that she generally did not go to work during daytime hours, that she documented examining patients that she did not perform exams on, that she was not often present during the discharge process (which is required by the discharge summary), that she often arrived late for team conferences, and that her staff seemed dejected and resigned.  The medical director’s employment was terminated after the hospital concluded that she was a compliance risk and that she failed to conduct herself in a manner consistent with the hospital’s expectations.

The court found that the hospital relied on three legitimate nondiscriminatory bases for the medical director’s termination: (1) concerns about her coding; (2) performance issues that arose after the investigation; and (3) concerns that she was a compliance risk and behaved inconsistently with the position of medical director, which the medical director failed to rebut.  The court further found that the medical director failed to present sufficient evidence that would allow a jury to find that she was the victim of gender discrimination, and failed to rebut and show pretext as to the hospital’s reasons for her termination.  Finally, the court concluded that the medical director failed to present sufficient evidence to establish a causal link between her termination and alleged sexual harassment, thereby failing to sufficiently allege her quid pro quo sexual harassment claim.

Chen v. Bright Health Physicians of PIH (Summary)

DEFAMATION

Chen v. Bright Health Physicians of PIH, No. B246628 (Cal. Ct. App. Apr. 2, 2014)

The California Court of Appeals reversed summary judgment for the defendant nonprofit corporation in a defamation action filed by a plaintiff physician.

The nonprofit corporation provided medical care through a network of independent contractor physicians, as well as employed physicians.  The plaintiff physician was an independent contractor dermatologist, who alleged that after the corporation employed another dermatologist, it dropped plaintiff physician from its referral list, and also sent a memorandum to all of its physicians stating that for approximately one week, plaintiff physician had not been keeping his scheduled appointments, had been unavailable, and did not notify his patients of his leave of absence.  The plaintiff physician filed the defamation action based on the memorandum, contending that during that week, he was on a planned vacation, that he did not have any scheduled appointments, and that he assigned a medical assistant to answer incoming telephone calls.  The lower court granted the corporation’s motion for summary judgment, and the plaintiff physician appealed.

On appeal, the corporation asserted that it was not liable for defamation because the memorandum shares a “common interest” with the physicians in its network, and thus was protected by the “common interest” privilege under state law (e.g., alerting the network physicians that plaintiff physician was mistreating patients).  The plaintiff physician’s contention was that the memorandum was a false, mischaracterization of the events of that week.

The appellate court reversed the lower court and stated that a jury could infer that the corporation acted recklessly in sending out the memorandum, because it did not investigate the situation and had a pecuniary interest in referring patients to its newly employed dermatologist.  Thus, the court concluded that the privilege can be lost when a defendant deliberately decides not to acquire knowledge about the facts of the publication or furthers an interest other than the one shared, and that these issues are for a jury to decide.