Love v. Permanente Med. Group (Summary)

ATTORNEY-CLIENT PRIVILEGE

Love v. Permanente Med. Group, No. C-12-05679 DMR (N.D. Cal. Feb. 19, 2014)

The United States District Court for the Northern District of California found that the attorney-client privilege had been waived by the presence of a “guest” at a meeting of a Credentials and Privileges Committee (“Credentials Committee”) and, therefore, granted a request for the production of unredacted committee minutes.  The plaintiff, a social worker, had been employed by a medical group in its chemical dependency division.  The social worker had learned of a death threat against her, made by one of her patients, and requested that the medical group obtain a restraining order.  According to the complaint, when the medical group refused, the social worker complained about workplace safety and the medical group retaliated by bringing disciplinary charges against her, and subsequently terminated her employment.  The social worker sued.

During the course of discovery, the social worker sought the production of Credentials Committee minutes.  The medical group produced the minutes, in redacted form, claiming the redacted portion was protected by the attorney-client privilege because it pertained to advice that had been given by legal counsel. 

After reviewing the minutes, the court agreed that the privilege had not been waived simply because the legal opinion had been communicated by the administrator to the Credentials Committee instead of by counsel herself.  Even sharing the legal opinion with the Credentials Committee did not constitute a waiver of the privilege, the court found.

However, according to the court, the privilege was waived by communicating protected information in the presence of a “guest.” The court reasoned that the “guest” did not have any connection to the social worker, the relevant departments and committees, any aspect of the litigation, or any common legal interest to support an assertion of the common legal interest privilege.  Rather, the “guest,” who was identified as the chief of the department of pediatrics, had been invited to the Credentials Committee meeting to address questions pertaining to pediatric privileges.

It is worth noting that it was not clear from the minutes that the guest had actually been present when the legal opinion was shared.  However, as the court pointed out, the party claiming the privilege bears the burden of proving that it applies.  Since there was nothing in the minutes to reflect that the guest had, in fact, left the meeting when the privileged communication was shared, the court concluded that the privilege had been waived.

Centinela Freeman Emergency Med. Assocs. v. Health Net of California, Inc. (Summary)

MANAGED CARE

Centinela Freeman Emergency Med. Assocs. v. Health Net of California, Inc., No. B238867 (Ca. Ct. App. 2nd Dist., Div. 3 Feb. 19, 2014)

Several groups of emergency medicine physicians and a group of radiologists were not paid for the services they rendered to patients covered by an HMO because the IPA to which the HMO delegated its responsibility to reimburse physicians was having financial difficulties.  The physicians sued the HMO for, among other things, negligent delegation.  The California Court of Appeal held that an HMO has a duty not to delegate its obligation to reimburse emergency physicians to an IPA that it knows will be unable to do so.  The court sent the case back to the lower court for further proceedings.

Auluck v. County of Alameda (Summary)

AGE DISCRIMINATION; RETALIATORY DISCHARGE

Auluck v. County of Alameda, No. C-13-05511(EDL) (N.D. Cal. Feb. 18, 2014)

The U.S. District Court for the Northern District of California granted a plaintiff leave to file an amended complaint in a suit alleging that the county and health care services agency violated his free speech rights and discriminated against him due to his advanced age.  After expressing concerns about the quality of hospital care provided to patients of the county’s Juvenile Justice Center, the 69-year-old psychiatrist plaintiff was put on administrative leave.  The leave was only lifted after he complied with a number of specific conditions, including case monitoring and enrollment in a remedial course on record keeping.  The psychiatrist submitted his resignation when he was placed on administrative leave for the second time.  The defendant then filed an “805 report” with the Medical Board of California, stating that the psychiatrist resigned while a fitness for duty investigation was pending.  The Medical Board of California subsequently evaluated the psychiatrist and determined that there was no evidence to suggest the plaintiff was unfit for duty.  The defendant filed a motion to strike the plaintiff’s causes of action based on the 805 report, which the court granted.  However, the court ruled that the defendant was not immune for filing a document along with the report, which the plaintiff alleged was fraudulent, because the plaintiff adequately alleged that the report was filed with malice.

Davis v. Kewanee Hosp. (Summary)

PEER REVIEW PRIVILEGE

Davis v. Kewanee Hosp., No. 2-13-0304 (Ill. App. Ct. 2nd Dist. Feb. 25, 2014)

An anesthesiologist, whose offer of employment was withdrawn before the credentialing process was completed, asked the hospital to provide copies of all the information it relied upon in withdrawing the employment offer because he believed that individuals where he had previously been employed were making disparaging comments about him.  The hospital declined to provide the information.  The anesthesiologist sued, alleging that the hospital’s refusal violated the exceptions to the confidentiality provisions in the Illinois Medical Studies Act and in the Illinois Credentials Act allowing physicians access to information used in making credentialing and privileging decisions.  The hospital argued that the exceptions in those statutes did not apply because it had made an employment decision, not a credentialing decision.  The lower court agreed.  On appeal, the hospital argued that neither the Illinois Medical Studies Act nor the Credentials Act gives a physician a private right of action.  The appeals court agreed, ruling that neither statute gives a physician either an express or an implied private cause of action.

Abdel-Samed v. Dailey — Feb. 2014 (Summary)

NEGLIGENCE

Abdel-Samed v. Dailey
No. S13G0657 (Ga. Feb. 24, 2014)

In this medical malpractice litigation, the plaintiff alleged that the physician’s assistant and physician who saw him in the hospital’s emergency department were negligent when they failed to timely transfer him to a hand surgeon, resulting in the amputation of the tip of his middle finger and other complications.  The defendants filed a motion for summary judgment, arguing that the plaintiff’s claim was subject to a state statute requiring plaintiffs who file claims “arising out of the provision of emergency medical services in a hospital emergency department…to show clear and convincing evidence that the physician or health care provider’s actions showed gross negligence.”  The trial court granted summary judgment in favor of the defendants.  The appeals court reversed, finding an issue of fact regarding whether the statute applied to this situation.  The Georgia Supreme Court ruled that there was no question that the statute applied, but that summary judgment for the defendants was inappropriate because there was a genuine issue for the jury as to whether the defendants’ action constituted gross negligence.

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.”