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.

Trahan v. LaSalle Hosp. Serv. Dist. No. 1 (Summary)

SEX DISCRIMINATION RETALIATION

Trahan v. LaSalle Hosp. Serv. Dist. No. 1, Civil Action No. 11-1507 (W.D. La. Mar. 24, 2014)

The United States District Court for the Western District of Louisiana granted in part and denied in part a defendant hospital’s motion for summary judgment in a lawsuit filed by an employee nurse alleging sexual harassment/hostile work environment, tortious infliction of emotional distress, negligent hiring and supervision and retaliation.

The hospital employed a physician to provide services on its medical-surgical floor, and the physician also provided services in the hospital’s emergency department as an independent contractor through a company that had a staffing agreement with the hospital.  The physician, who was not on duty, allegedly appeared on the medical-surgical floor at 3:00 a.m. while intoxicated, and proceeded to kiss the nurse’s neck, hug and tickle her, and eventually touched her breast.  The nurse reported the incident to the hospital, and the hospital modified the nurse’s schedule so that she would not encounter the physician anymore, and began an investigation.  However, less than one week later, due to another physician’s illness, the physician worked the emergency department while the nurse was working on the medical-surgical floor, during which time the physician stared at the nurse with his arms crossed.  The nurse resigned several months later, and eventually filed a lawsuit against the hospital, alleging that after she reported the incidents to the hospital, her hours were cut, her coworkers were rude to her, her evaluation scores were lowered, and the hospital falsified misconduct reports regarding her.

The court granted the hospital’s motion for summary judgment on the sexual harassment/hostile work environment claim, finding that the touching of intimate body parts does not alter the material terms and conditions of employment if not done continually or habitually, and the claim was based on two incidents, the second of which did not show sexual harassment.  The court also found that the hospital took prompt remedial action by investigating the incident and disciplining the physician.

The court also granted the hospital’s motion on the intentional infliction of emotional distress claim, finding that the nurse did not offer any evidence that the hospital knew that the physician would be working during the second incident, noting that the evidence showed that the physician was scheduled to work in the emergency department by the company that had a staffing agreement with the hospital.

The court further granted the hospital’s motion on the negligent hiring and supervision claim, holding that the Louisiana Office of Worker’s Compensation has exclusive jurisdiction of negligence claims against an employer.

Finally, the court did not grant the hospital’s motion on the retaliation claim, finding that the nurse contended: (1) that she did receive lower scores on her annual evaluation after she made her complaint; (2) that she was written up for allegedly violating the confidentiality agreement and stealing hospital property by making a photocopy of a hospital policy and taking it home; (3) that there is a statement in the nurse’s personnel file from another physician that alleges the nurse sexually harassed him, and that the physician filed an affidavit in this case attesting that he had never been harassed by the nurse.  The court found that the hospital did respond to these contentions, and since these actions may have been in retaliation for the complaints, these remain genuine issues of material fact, which are to go to trial.

Holmes v. E. Cooper Cmty. Hosp., Inc. (Summary)

MEDICAL STAFF ATTORNEY FEES AND COSTS

Holmes v. E. Cooper Cmty. Hosp., Inc., No. 27370 (S.C. Mar. 26, 2014)

The South Carolina Supreme Court upheld a lower court’s summary judgment in favor of a defendant-hospital and against a plaintiff-physician and upheld the court’s sanctions that were imposed against the physician.

The physician, an ophthalmologist and attorney, was a member of the hospital’s consulting staff.  In 2006, the physician sought advancement from the courtesy staff to the active staff at the hospital.  The hospital’s credentialing committee found that the physician was unqualified to advance, but she was permitted to remain on the courtesy staff.  In 2008, the physician again sought advancement to the active staff, and the hospital determined that her application was incomplete, and requested that she voluntarily resign from the courtesy staff.  The physician refused to resign, and instituted a lawsuit challenging the hospital’s decision.

The lower court held that the physician’s claims arose out of the hospital’s peer review process and that courts do not have jurisdiction over the decisions of private hospitals concerning the staff category and privileges of practitioners.  Furthermore, the lower court ordered sanctions against the physician for attorneys’ fees and costs in the amount of $53,447.15 because the case law was clear that courts did not have such jurisdiction and found that the lawsuit was frivolous.  The lower court also enjoined the physician from filing any further actions against the hospital without first posting a bond.

The physician appealed the award of sanctions to the South Carolina Supreme Court.  The court found that the physician’s first lawsuit previously determined the issue on its merits and this estopped the plaintiff from making the exact same argument against the hospital in the second lawsuit.  Moreover, the court upheld the sanctions because not only was this repeated challenge frivolous, but the physician was already sanctioned as a result from bringing this type of claim against the hospital.

Gentilello v. Dallas Cnty. Hosp. Dist. (Summary)

SOVEREIGN IMMUNITY

Gentilello v. Dallas Cnty. Hosp. Dist., No. 05-13-00150-CV (Tex. App. Mar. 24, 2014)

The Court of Appeals of Texas affirmed a trial court’s ruling that a hospital had sovereign immunity in a physician’s claim alleging that he was removed from the call schedule and retaliated against for reporting practices that violated Medicaid rules and regulations.

The physician was employed by a medical center and also provided services at the hospital.  In accordance with an agreement between the medical center and the hospital, physicians employed by the medical center who provided services at the hospital were required to follow the policies and procedures of the hospital, including its corporate compliance policy and procedures.  One such procedure required that employees, contractors, and agents were to report potential or suspected incidents of fraud and violations of law to the hospital.  The physician filed a lawsuit which alleged that after he reported the practices that violated Medicaid rules and regulations, the hospital removed him from its call schedule and conspired with the medical center to retaliate against him for reporting the violations.  The hospital then entered into a settlement agreement with the physician and, under the terms of the 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.  Finally, the court found that whether the hospital is liable under the terms of the state’s Medicaid fraud prevention laws is irrelevant absent a waiver of sovereign immunity.

Sood v. Univ. of Iowa (Summary)

ADMINISTRATIVE REMEDY

Sood v. Univ. of Iowa, No. 13 – 0870 (Iowa Ct. App. Mar. 26, 2014)

The Iowa Court of Appeals affirmed a lower court’s grant of summary judgment in favor of a defendant university hospital and its board of regents and against the plaintiff, a former physician employee, on the physician’s breach of contract claim.

The physician filed a lawsuit against the hospital and its board for breach of contract, among other things, alleging that the hospital failed to follow its rules and regulations in revoking the physician’s clinical privileges and reducing his compensation.  The lower court granted summary judgment in favor of the hospital and the board and the physician appealed.

The appeals court found that the hospital and the board were state administrative agencies that had (1) established their own grievance and appellate policies; and (2) adopted specific rules in relation to the appointment and termination of physicians, the qualifications necessary to obtain staff membership and the grant, modification or termination of clinical privileges.

The court found that since the physician’s breach of contract claim stemmed from (1) the hospital’s opinion of his job performance; and (2) the hospital’s alleged failure to follow its own procedures when it revoked his clinical privileges, the physician’s claim necessarily implicated the hospital’s administrative procedures and thus was not actionable in state court unless the physician exhausted those procedures.

U.S. v. Shoemaker (Summary)

ANTI-KICKBACK

U.S. v. Shoemaker, Nos. 12-60754, 12-60791 (5th Cir. Mar. 25, 2014)

The United States Court of Appeals for the Fifth Circuit reversed a trial court’s ruling and reinstated the criminal convictions of Earnest Levi Garner (“Garner”) and Raymond Lamont Shoemaker (“Shoemaker”) (collectively, “defendants”) and remanded the case to the trial court for sentencing.

The defendants were alleged to have engaged in a bribery and kickback scheme involving a community hospital.  Garner, the owner and operator of a nurse staffing business, alleged that David Chandler (“Chandler”), the chairman of the hospital’s board of trustees, requested that Garner pay him $5 for every nursing hour billed at the hospital in return for Chandler securing Garner business.  It was alleged that, about once a month, Garner would pressure Chandler to increase the hours billed and Chandler would lobby Shoemaker, the hospital’s chief operating officer and later its chief executive officer, accordingly.  In total Garner paid Chandler $268,000 and the hospital paid Garner’s company $2.3 million for nursing service.  Shoemaker was then alleged to solicit kickbacks and bribes and for making false statements in a subsequent transaction.

After an FBI investigation, Garner and Shoemaker stood trial for various federal crimes, including, among others, conspiracy and federal program bribery.  After the jury returned guilty verdicts on all counts against the defendants, the trial court entered judgments of acquittal and, in the alternative, granted new trials as to the conspiracy charges against the defendants and the bribery charges against Garner.

The appeals court held that Chandler was an agent of the hospital for the purposes of federal law and thus any bribes sought to influence his decision-making were sufficient to establish a conspiracy.  Also, Chandler was a director, who was authorized to act on behalf of the hospital with respect to its funds and, more specifically, he scheduled and set the agenda for hospital board meetings, contacted department heads for reports at board meetings, worked closely with Shoemaker, approved a $50,000 raise for Shoemaker and signed a contract on behalf of the hospital providing a nonprofit with the right to purchase the hospital.

The appeals court also held that the conspiracy claims were actionable notwithstanding the lack of direct evidence linking Garner and Shoemaker.  Chandler testified that Shoemaker requested money of him, that Garner verbally agreed to let him pay Shoemaker, and that he did in fact pay Shoemaker.  This testimony was sufficient to establish a conspiratorial relationship and the trial court’s rejection of such testimony amounted to an impermissible judgment of credibility.