U.S. ex rel. Willis v. Angels of Hope Hospice, Inc. (Summary)

FALSE CLAIMS ACT

U.S. ex rel. Willis v. Angels of Hope Hospice, Inc., No. 5:11-CV-041(MTT) (M.D. Ga. Feb. 21, 2014)

A former employee of a Medicare-certified hospice provider filed a False Claims Act complaint alleging that the hospice violated the False Claims Act and anti-kickback statute by admitting patients regardless of eligibility, falsifying medical records, withholding hospice aide visits during initial enrollment to create an appearance of decline, backdating paperwork to avoid paying for care provided to hospice enrollees and paying for referrals.  The hospice filed a motion to dismiss, arguing that the relator did not sufficiently allege that false claims were actually submitted to the Government or the underlying fraudulent schemes and did not sufficient plead the existence of a compensation arrangement that violates the anti-kickback statute.  The Federal District Court for the Middle District of Georgia denied the hospice’s motion to dismiss.

Kaufman v. Columbia Mem’l Hosp. (Summary)

EMPLOYMENT DISCRIMINATION; BREACH OF CONTRACT

Kaufman v. Columbia Mem’l Hosp., No. 1:11-CV-667 (MAD/DRH) (N.D. N.Y. Feb. 19, 2014)
The United States District Court for the Northern District of New York granted summary judgment to a hospital on the plaintiff-surgeon’s age and disability discrimination claims.  The court ruled that the surgeon was unable to prove a prima facie case of disability discrimination because he could not “identify any non-disabled, similarly situated physicians who were treated differently than him, or that were hired by [the defendant hospital] after his termination.”  With regard to the age discrimination claim, the court held the plaintiff demonstrated a prima facie case of discrimination with respect to the term of his employment agreement.  When the plaintiff and his partner were hired by the hospital, the plaintiff was offered a three-year employment agreement; his partner, a five-year term.  However, the court ultimately granted summary judgment to the hospital on the physician’s age discrimination claim because the hospital was able to show legitimate non-discriminatory reasons for the plaintiff’s shorter term.  The plaintiff  was unable to show those reasons were a pretext for discrimination.  The physician also alleged breach of contract based on the hospital’s failure to provide him a hearing under the medical staff bylaws.  The hospital argued that bylaws do not create a contract under New York law.  The court denied the hospital summary judgment on that claim, ruling that the bylaws were incorporated into the physician’s employment agreement by reference.

**Annotation**

Kaufman v. Columbia Mem’l Hosp., No. 1:11-CV-667 (MAD/CFH) (N.D. N.Y. June 19, 2014)
The United States District Court for the Northern District of New York denied plaintiff-surgeon’s motion for reconsideration of the court’s dismissal of his age and disability discrimination claims and denied defendant hospital’s motion for reconsideration of the court’s denial of summary judgment for plaintiff’s breach of contract claim. The court held that although there was an intervening change in the state’s controlling law, plaintiff-surgeon still had not produced sufficient evidence to prove causation, that he was terminated due to a discriminatory intent. Lastly, the court denied defendant hospital’s motion for reconsideration because none of its arguments constituted an appropriate basis for reconsideration. Furthermore, the court reiterated that the physician’s employment agreement explicitly incorporated the hospital bylaws by reference.

 

Love v. Permanente Med. Group (Summary)

RETALIATION

Love v. Permanente Med. Group, No. 12-cv-05679-WHO (N.D. Cal. Feb. 10, 2014)

The United States District Court for the Northern District of California denied an employee’s motion for reconsideration of the court’s dismissal of her state law retaliation claim which she brought against her employer, a medical group.  The employee claimed that she was retaliated against for complaining about the medical group’s failure to obtain a restraining order against a patient who had threatened to kill her.  The court concluded that recent production of new evidence did not alter the fact that her retaliation claim was based on allegations that the medical group retaliated against her because of her complaints related to her own safety.  According to the court, for a retaliation claim to move forward under state law, the employee would have had to allege that her complaints were related to “patient safety, care, or conditions at the hospital.

Kissing Camels Surgery Ctr., LLC v. Centura Health Corp. (Summary)

ANTITRUST

Kissing Camels Surgery Ctr., LLC v. Centura Health Corp., No. 12-cv-3012-WJM-BNB (D. Colo. Feb. 13, 2014)

The United States District Court for the District of Colorado granted in part and denied in part motions to dismiss filed by a health system, insurers, and others in an antitrust suit brought against them by several ambulatory surgery centers (“ASCs”).  The ASCs alleged that the defendants conspired to reduce competition for ambulatory surgery services by not doing business with the ASCs, and by pressuring physicians and insurers to not do business with the ASCs.

The court, among other things, denied the health system’s motion to dismiss, finding that the ASCs had sufficiently pleaded claims under Sections 1 and 2 of the Sherman Act against the health system because their complaint “describe[d] an overt agreement between competing parties to put [the ASCs] out of business by influencing physicians and insurers not to do business with [the ASCs], with the goal of reducing competition for their own respective hospitals and surgery centers” and “set forth overt anticompetitive acts in support of an attempt to exclude [one of the ASCs] from the [relevant] market.”

With regard to the ASCs’ claims under Section 1 of the Sherman Act against the insurance companies, the court granted their motions to dismiss because the ASCs’ complaint did not set forth allegations that the insurers agreed with the other defendants to engage in anticompetitive conduct.

U.S. ex rel. Babalola v. Sharma (Summary)

“ALTERNATE REMEDY” – FALSE CLAIMS ACT

U.S. ex rel. Babalola v. Sharma, No. 13-20182 (5^th Cir. Feb. 14, 2014)

The United States Court of Appeals for the Fifth Circuit affirmed the district court’s grant of partial summary judgment in favor of the United States, finding that a valid qui tam action must be filed at the time of government proceedings in order for the relator to recover any form of alternate remedy under the False Claims Act (“FCA”).

The United States criminally prosecuted two physicians for fraud and obtained a multi-million dollar award of restitution.  During the criminal investigation of the physicians, medical assistants working for the physicians provided information to the government regarding the fraud.  While the physicians’ appeal of their restitution amount was pending, the medical assistants, as relators, filed an FCA suit against the physicians.  As a part of their suit, the relators sought a share of the criminal forfeiture previously obtained by the United States from the physicians under the alternate remedy provisions of the FCA.  The district court granted the United States partial motion for summary judgment, concluding “that because the relators filed their qui tam action after the Government had begun to criminally prosecute the [physicians], the criminal proceeding was not an ‘alternate remedy’ in which the relators could exercise their rights to recovery.”  The Fifth Circuit affirmed the district court’s decision, holding that “the [relators’] qui tam proceeding must have been in existence at the time of the Government’s election of the alternate remedy.”

Wabash County Hosp. Found., Inc. v. Hai Lee (Summary)

ASSAULT AND BATTERY

Wabash County Hosp. Found., Inc. v. Hai Lee, No. 85A04-1306-CT-291 (Ind. Ct. App. Feb. 13, 2014)

The Court of Appeals of Indiana affirmed the trial court’s denial of a hospital’s motion to dismiss in a suit brought by an 89-year-old employed anesthesiologist claiming assault and battery.

After concerns were raised about the anesthesiologist’s fitness to practice and an investigation was commenced, the anesthesiologist took a leave of absence and the hospital suspended her surgery privileges.  During her leave, the anesthesiologist showed up at the hospital and was seen in the recovery room area checking her blood pressure.  The anesthesiologist claimed that she was injured and had to have her arm arthroscopically repaired when a nurse employed by the hospital allegedly tried to forcibly remove her from the hospital.  The hospital, which the anesthesiologist claimed was vicariously liable for the acts of the nurse, filed a motion to dismiss the suit, arguing that the court lacked jurisdiction because the suit fell within the province of the state’s Worker’s Compensation Act.  The trial court disagreed, and rejected the hospital’s motion to dismiss.  The court of appeals affirmed the trial court’s decision, concluding that the anesthesiologist’s injuries did not arise out of her employment with the hospital, nor were they inflicted during the course of her employment since she had been placed on a leave of absence and her surgery privileges had been suspended.

Shuler v. Garrett (Summary)

MEDICAL BATTERY

Shuler v. Garrett, No. 12-6270 (6^th Cir. Feb. 14, 2014)

The United States Court of Appeals, Sixth Circuit reversed the decision of the lower court in a suit alleging a claim of medical battery brought by the heirs of a deceased patient against the patient’s doctors and the hospital and clinic where the patient was treated.  According to the complaint, the patient died after being injected with heparin.  The patient was allergic to heparin and had
objected to receiving heparin on a number of occasions.  The lower court dismissed the plaintiffs’ medical battery claim, holding that medical injections were not “procedures” and “treatments” as required for a medical battery claim.  The Sixth Circuit reversed, concluding that an injection is a medical procedure for purposes of a medical battery claim and that the patient did not authorize the injection by giving a general authorization for an operation or course of treatment.

Walters v. Mayo Clinic Health Sys. – Eau Claire Hosp., Inc. (Summary)

EMPLOYMENT DISCRIMINATION (DISABILITY)

Walters v. Mayo Clinic Health Sys. – Eau Claire Hosp., Inc., No. 12-CV-804-WMC (W.D. Wis. Feb. 11, 2014)

The United States District Court for the Western District of Wisconsin denied summary judgment for a hospital being sued by a nurse for disability discrimination and interference with her rights under the Family and Medical Leave Act (“FMLA”), holding that there was a material question of fact about whether the hospital discriminated against the nurse and failed to offer her a reasonable accommodation under the Americans with Disability Act – and interfered with her right to take intermittent FMLA leave – when it disciplined and eventually terminated her for tardiness and attendance issues despite knowing she was suffering from mental health issues and without engaging in the interactive process to determine whether a reasonable accommodation would help her to avoid further tardiness and attendance problems.  The court made several notable findings in reaching its decision:

• That the hospital, as a health care provider, should have been better able to recognize the effects of mental illness on its employee – even though the employee’s own physician stated, in the FMLA certification – that the nurse was able to perform the essential functions of her job.
• That even if the nurse never requested any accommodation – other than intermittent FMLA leave – the employer should have taken the initiative, knowing of her health condition, to commence the interactive process of discussing whether a reasonable accommodation would help the nurse to perform the essential functions of her job.  Further, the court said the employer’s duty was even greater in a case such as this, involving mental health, where the employee may be unable to adequately express her need for an accommodation.

Hamilton v. Sheridan Healthcorp, Inc. (Summary)

EMPLOYMENT DISCRIMINATION (RACE)

Hamilton v. Sheridan Healthcorp, Inc., No. 13-62008-CIV (S.D. Fla. Feb. 11, 2014)

The United States District Court for the Southern District of Florida granted a hospital’s motion to strike an anesthesiologist’s jury demand, finding that the anesthesiologist had knowingly and voluntarily waived his right to a jury trial when he signed his employment agreement.  The African-American anesthesiologist brought suit alleging racial discrimination after he was demoted and subsequently fired from the hospital.  His employment agreement contained a waiver of the right to a jury trial, which the court found to be conspicuous as it appeared immediately above the signature portion of the agreement, in capital letters.  The court further reasoned that the anesthesiologist was “sufficiently sophisticated” to waive his right to a jury trial as he was an educated and intelligent individual.

Columbia N. Hills Hosp. Subsidiary, L.P. v. Bowen (Summary)

NEGLIGENT CREDENTIALING AND SUPERVISION

Columbia N. Hills Hosp. Subsidiary, L.P. v. Bowen, No. 02-13-00286-CV (Tex. App. Jan. 30, 2014)

The Court of Appeals of Texas affirmed a lower court decision denying a hospital’s request to dismiss health care liability claims brought by a patient. A hand surgeon severed a patient’s ulnar nerve in a procedure he performed on the patient’s elbow in a surgical hospital although it was not known at the time of the procedure.  When the patient reported in a follow-up visit several weeks later that numbness and weakness persisted in that hand, the surgeon recommended that the patient be admitted to another hospital, that same afternoon, so that he could perform an ulnar decompression procedure. The procedure took five hours, resulted in allegedly deficient documentation of the certain aspects of the operation in the medical record, and did not improve the symptoms.  The patient sued both the hand surgeon and the hospital alleging, among other things, that the hospital was negligent in its supervision of the surgeon.

The hospital objected to the patient’s expert report from a hand and upper extremity specialist, who claimed that there is a better chance of repair to a nerve injury when it is treated sooner rather than later. The hospital argued that the report did not specify any standard of care that applied to the hospital, and did not clarify what kind of surgeon supervision should have been provided. In overruling the hospital’s objections, the appellate court concluded that the report fairly established the hospital’s standard of care by explaining its responsibilities to follow correct monitoring and reporting procedures. According to the court, the report adequately summarized the hospital’s failure to meet the standard of care by detailing the fact that the surgeon did not appear to have adequate or updated training to perform endoscopic cubital tunnel procedures, that the hospital should have questioned the emergent scheduling of the case, as well as the dismissal of proper protocol and documentation in the record.

The hospital also argued that the expert report failed to show a causal connection between a breach in the standard of care and the patient’s resulting injuries. The expert asserted his belief that the hospital was a contributing cause to the patient’s injury, stating that the patient would have learned of the severed ulnar nerve much earlier had the hospital followed proper protocol. Additionally, the expert stated that the hospital should have questioned the need of the second, and ultimately unnecessary, emergency surgery. The court ruled that this report adequately addressed the issue of causation to provide a basis for the patient’s claims.