U.S. ex rel. D’Alessio v. Vanderbilt Univ. (Summary)

FALSE CLAIMS ACT

U.S. ex rel. D’Alessio v. Vanderbilt Univ., No. 3:11-00467 (M.D. Tenn. Mar. 19, 2014)

The United States District Court for the Middle District of Tennessee denied defendant’s motion to dismiss a lawsuit filed by three physicians (“relators”) under the federal False Claims Act.  The court held that the relators’ first-hand knowledge of defendant’s specific false billing practices and procedures was sufficient to create a strong inference of purported fraud notwithstanding the absence of specific instances of fraud in relators’ complaint. In addition, the court found the “public disclosure bar” and “original source” requirements did not preclude the relators’ lawsuit because they possessed first-hand knowledge of relevant events that was acquired while they provided services for defendant.

Doss v. St. Claire Med. Ctr. (Summary)

EMPLOYMENT DISCRIMINATION

Doss v. St. Claire Med. Ctr., No. 12-92-HRW (E.D. Ky. Mar. 14, 2014)

The United States District Court for the Eastern District of Kentucky found a hospital was entitled to summary judgment on a race discrimination claim as well as a retaliation claim made by a former employee.

The employee was given 90 days’ notice of her termination, in accordance with her employment contract, as a Chief Certified Nurse Anesthetist.  The reasons for termination were ineffective leadership, not acting in a harmonious manner and failure to effectively evaluate and supervise staff. The employee alleged she was terminated because she was an African-American woman.  She also claimed two racial remarks created a hostile work environment, and she was retaliated against because she complained about the remarks.

The hospital conceded the employee was in a protected class and she experienced an adverse employment action. However, the hospital argued, and the court agreed, that the employee did not perform her job satisfactorily and she was not treated differently than similarly situated employees. The court relied heavily on the fact that two Caucasian males in similar positions to the employee also lost their jobs due to performance. The court went on to hold that even though the two racial remarks were deplorable, they were not severe and pervasive enough to establish a hostile work environment. Lastly, the court held there was an absolute lack of evidence of any connection between the employee’s complaints of racial remarks and her termination of employment because the complaints were submitted after her notice of termination.

Zipkin v. Kaiser Found. Health Plan (Summary)

ARBITRATION

Zipkin v. Kaiser Found. Health Plan, B245252 (Cal. Ct. App. Mar. 25, 2014)

The California Court of Appeal compelled arbitration between a medical group and its former employee, reversing the lower court’s order.

In June 2011, an OB/GYN called a meeting to complain about inadequate patient care. Later that month, she was accused of providing care to a nonmember. She was put on administrative leave and terminated in November 2011.  She filed a complaint, claiming various code violations as well as intentional infliction of emotional distress. The medical group filed a motion to compel arbitration consistent with the arbitration clause in her signed partnership agreement. The lower court found that the arbitration clause was both procedurally and substantively unconscionable.

The appellate court found that even though the arbitration rules were not attached to the arbitration agreement, this was not procedurally unconscionable because the physician had access to those rules online. The court did find that the arbitration clause was a contract of adhesion; however, it involved only a minimal degree of procedural unconscionability.  The court held the arbitration agreement was not substantively unconscionable because it was not “so one sided as to shock the conscience.”  However, the court did note that provisions of the agreement regarding attorney’s fees and amendment were highly substantively unconscionable, but that they could be severed from the contract.

Colantonio v. Mercy Med. Ctr. (Summary)

DEFAMATION

Colantonio v. Mercy Med. Ctr., 2014 N.Y. Slip Op. 02009 (N.Y. App. Div. Mar. 26, 2014)

A New York appeals court affirmed a previous order of a lower court denying a medical center’s motion to dismiss the plaintiff’s complaints of defamation.

The plaintiff, a physician, alleged that the defendants defamed him by making false statements to the National Practitioner Data Bank.  The appeals court ruled that the plaintiff’s allegations of malice are sufficient to state a cause of action for purposes of a motion to dismiss. Additionally, the court held that the defendants were not entitled to dismissal because no documentary evidence was presented to utterly refute the plaintiff’s allegations.

The defendants also argued that the one-year statute of limitations barred the plaintiff’s defamation claims against statements that appeared in a 2010 report. The defendants argued that these statements were originally published in 2009, and are therefore barred due to the single-publication rule. However, the appeals court affirmed the lower court’s decision not to apply the time-bar, as the subject statements differed in scope, detail, and description from the original publications.

Villare v. Beebe Med. Ctr. (Summary)

MEDICAL STAFF BYLAWS

Villare v. Beebe Med. Ctr., No.: 08C-10-198 JRJ (Del. Super. Ct. Mar. 19, 2014)

The Superior Court of Delaware ruled that medical staff bylaws do not create an enforceable contract.  The court reasoned that the bylaws expressly state that “‘[a]ppointment to the Medical Staff is a privilege and not a right’ and otherwise set forth the process to acquire Medical Staff privileges. In other words, the Bylaws provisions at issue are not written to provide a basis for breach of contract, but to set forth a procedural process.”  Accordingly, the court granted the hospital’s motion for summary judgment against a surgeon’s breach of contract claim.

Perry v. Schumacher Grp. of La (Summary)

DISCRIMINATION/WRONGFUL TERMINATION

Perry v. Schumacher Grp. of La., No. 2:13-cv-36-FtM-29DNF (M.D. Fla. Mar. 13, 2014)

The United States District Court for the Middle District of Florida granted an ER staffing group’s motion to dismiss a female, African-American physician’s claims of racial discrimination, gender discrimination, retaliation, trade libel, negligence, breach of contract, and breach of implied duty of good faith and fair dealing, finding that the physician failed to adequately allege her claims. The physician alleged that she was not treated equally to her male, Caucasian counterpart and that certain officers of the health group had issues with her because of her race and gender, falsely claiming that she was not acting in compliance with her role. Eventually, the group terminated the physician’s employment, giving her the required 60 days’ notice, but then informing her that her last shift would occur before the 60 days were over.

The court found that the physician had failed to state a claim of negligence.  She could not adequately allege – as required by Florida law to state a claim of negligence – that she was permitted to recover on the theory of supervisory authority, that the breach of the agreement created a foreseeable zone of risk, and that there was a misrepresentation of material fact or that she justifiably relied upon the misrepresentation.

The court also found that the physician failed to state a plausible claim for breach of contract because the agreement rendered her unable to rely on the general principles governing a claim for breach of contract as it imposes duties and obligations on the physician.  The court reasoned that she could assert a breach of contract claim under the doctrine of prevention of performance; however, the physician failed to allege that the group attempted to avoid liability under the agreement or perform any of its obligations under the agreement.  Finally, the court found that the physician failed to allege a breach of the contract because she simply alleged that the health group failed to comply in good faith with the agreement, which is not a plausible claim for breach of the implied duty of good faith and fair dealing.

Bastidas v. Good Samaritan Hosp. (Summary)

DISCRIMINATION/DUE PROCESS

Bastidas v. Good Samaritan Hosp., No. C 13-04388 SI (N.D. Cal. Mar. 13, 2014)

The United States District Court for the Northern District of California granted a hospital’s motion to dismiss the claims of discrimination and denial of due process made by a former doctor.  The plaintiff, a doctor specializing in surgical oncology, was appointed to the medical staff of the defendant hospital.  While performing a Whipple procedure at the hospital, the doctor allegedly removed a patient’s kidney and damaged the patient’s mesenteric artery, and the patient died. The doctor’s privileges to perform the Whipple procedure were suspended.  The Medical Executive Committee, determining that the doctor’s actions fell below the standard of care, later affirmed the existing suspension and expanded it to include other pancreatic procedures.  After numerous hearings, the hospital’s Judicial Review Committee found the suspension of the doctor’s privileges to be “reasonable and warranted.”  The doctor sued the hospital, claiming that the defendant engaged in racial discrimination and violated his right to due process.

The court held that the doctor did not allege sufficient facts to suggest that his suspension was racially motivated.  The cause of action was therefore dismissed, though the doctor was given leave to amend.

With respect to the doctor’s due process claim, the court ruled that he was unable to show why the private hospital was to be treated as a state actor.  The doctor argued that the hospital’s compliance with a statutorily-created system of physician peer review made the defendant a state actor, and therefore liable for denial of due process.  The court disagreed, finding that “private hospitals are not transformed into state actors by virtue of their compliance with California’s statutory scheme.”  Because the doctor failed to show that the private hospital was actually a public entity, the court dismissed the cause of action entirely.

Howell v. Holland (Summary)

PEER REVIEW PRIVILEGE

Howell v. Holland, No. 4:13-cv-0295-RBH-TER (D. S.C. Mar. 10, 2014)

The United States District Court for the District of South Carolina denied a plaintiff’s motion to compel discovery.  Plaintiff, James Howell, alleged numerous state law claims and a violation of the Americans with Disabilities Act (“ADA”) against Dr. Holland and McLeod Regional Medical Center.  Plaintiff requested any and all documents regarding any investigations performed by the Medical Staff Executive Committee, and the Quality Outcomes Committee, as well as any “Improve the Process” forms concerning Dr. Holland.  Defendants claimed that the documents are privileged under the South Carolina peer review statutes, which protect documents generated by peer review committees, as well as committees formed to maintain professional standards.  The court agreed with the defendants and held that the requested documents are protected from disclosure.

Hutchson v. Burgess Health Ctr. (Summary)

WRONGFUL TERMINATION

Hutchson v. Burgess Health Ctr., No. 13-0716 (Iowa Ct. App. Mar. 12, 2014)

The Court of Appeals of Iowa affirmed a lower court’s grant of summary judgment in favor of a hospital and denial of a nurse anesthetist’s motion of summary judgment on the nurse anesthetist’s breach-of-contract claim. Following concerns over the anesthetist’s care of patients, a hospital peer review committee held that another anesthetist must observe him. Upon refusing to be observed, the anesthetist’s employment was terminated.

The court held that the hospital “legally and properly” terminated the anesthetist’s employment when he refused to be observed per the peer review committee’s directions.  The court agreed with the lower court that the anesthetist’s refusal violated his employment contract, which allowed for immediate termination.

Adams v. Yale New Haven Hosp. — Mar. 2014 (Summary)

DISCRIMINATION

Adams v. Yale New Haven Hosp.
No. 12-4279-cv (2^nd Cir. Mar. 12, 2014)

The United States Court of Appeals for the Second Circuit affirmed a lower court’s dismissal of a former physician associate’s claims of racial discrimination, sex discrimination, and retaliation. The plaintiff, an African-American male, worked as a physician associate in the hospital’s Surgery Department, but transferred to another department to avoid having to periodically be on call.  Several weeks later, a new administrative position was created within the Surgery Department and offered to the remaining physician associate who negotiated an arrangement where she would not have to take call.  The plaintiff then filed charges against the hospital, alleging that he was not offered the leadership position due to discrimination.

The court held that the plaintiff was not qualified for the position because he no longer worked in the Surgery Department.  His discrimination claim therefore failed.  In regard to claims of retaliation, the court affirmed that the plaintiff’s voluntary transfer did not constitute any adverse action on behalf of the hospital.