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.

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.