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.

Harrison v. Munson Healthcare, Inc. (Summary)

PEER REVIEW PRIVILEGE

Harrison v. Munson Healthcare, Inc., Nos. 304512, 304539 (Mich. Ct. App. Jan. 30, 2014)

The Court of Appeals of Michigan affirmed in part a lower court’s holding that sanctions against a hospital and its attorney were appropriate, finding that a defense inconsistent with known but non-disclosed facts was presented during discovery and trial after a patient sued the hospital.  The patient had undergone thyroid surgery at the hospital, during which a cauterizing device had burned her arm.  During discovery and trial, the hospital claimed that no one in the operating room remembered how the patient’s arm was burned and no one was interviewed after the incident.  The hospital maintained that it was the hospital’s practice to always return the cauterizing device to its holster during surgery, asserting that the burn must have been an accident caused by the accidental “unholstering” of the device.  However, the hospital’s operating room manager had sent a letter to the patient about the incident and later testified that she would have interviewed operating room staff before sending the letter.  As such, the lower court had ordered the hospital to produce incident reports about the incident.  The report produced, which the hospital claimed was peer review protected and had not been provided to the patient as part of the discovery process, stated that the cauterizing device was laid on the surgical drape during surgery and the surgeon leaned against the patient at the device site.  Further, the device holder was on site but the device was not in the holder.

The court found that the incident report was only partially protected as a peer review document, reasoning that it did not fully meet the definition of peer review documents under state law, and thus the observations about the device being laid on the surgical drape were not privileged. Specifically, the court noted that the initial page of the incident report, which included the operating room staff member’s contemporaneous observations of the existing facts in the operating room at the time the burn was discovered, was not privileged; however, the remaining portion of the incident report that detailed the actual review process followed by the operating room manager was privileged as it reflected a deliberative review process.  The court also held that sanctions against the hospital and its legal counsel were appropriate because the hospital had prevented the patient’s “search for truth throughout discovery,” stressing that a portion of a report being privileged does not give the hospital the right to impede the discovery process and to maintain a defense that was inconsistent with known but non-disclosed facts.

Columbia North Hills Hosp. Subsidiary v. Bowen

Columbia North Hills Hosp. Subsidiary v. Bowen
2014 WL 345658 (Tex. Ct. App. Jan. 30, 2014)

Roberts v. Legacy Meridian Park Hosp., Inc. (Summary)

RACE DISCRIMINATION & ANTITRUST

Roberts v. Legacy Meridian Park Hosp., Inc., No. 3:13-CV-01136-SI (D. Or. Jan. 24, 2014)

The United States District Court for the District of Oregon granted in part and denied in part a motion to dismiss filed by a hospital and others in a suit brought by an African-American neurosurgeon.  The surgeon alleged, among other things, that a precautionary suspension and proctoring requirement imposed by the hospital violated Oregon’s anti-discrimination laws and state and federal antitrust laws.  According to the surgeon, the initiation of the peer review that resulted in the suspension and proctoring requirement was made by competitors on the hospital’s Medical Executive Committee and Surgery Department’s Executive Committee and was motivated by these individuals’ hostility arising from the surgeon’s success and race.

In partially denying the hospital’s motion to dismiss, the federal district court concluded that the state’s law prohibiting race discrimination applied to the hospital, as a “public accommodation,” and to the surgeon, as someone with “privileges” to use the hospital’s facilities.  Accordingly, the surgeon, as an independent contractor, could bring his claim for race discrimination under the state statute.  However, the surgeon’s unlawful retaliation claim under state law was dismissed, because “Oregon courts have consistently interpreted [the unlawful retaliation statute] to apply only in the employment context.”

The court also allowed the surgeon’s antitrust claims under state and federal law to proceed.  The surgeon alleged that the defendants’ suspension of his privileges was a conspiracy in restraint of trade which “reduced the quality of neurological surgery services available in the market.”  The court, in denying the defendants’ motion to dismiss the surgeon’s conspiracy claims, found that “a reduction in quality may constitute an antitrust injury, at least when allocative efficiency has adversely been affected.”

Ampuero-Martinez v. Cedars Healthcare Group (Summary)

AMENDMENT 7

Ampuero-Martinez v. Cedars Healthcare Group, Nos. SC11-2208 & SC11-2336 (Fla. Jan. 30, 2014)

The Supreme Court of Florida ordered a hospital to produce documents about adverse medical incidents for a malpractice lawsuit, finding that Article X, Section 25 of the Florida Constitution (“Amendment 7”) guaranteed patient access to such documents, even though they dealt with the care of other patients with different conditions.

St. Alphonsus Medical Center v. St. Luke’s Health System (Summary)

ANTITRUST

St. Alphonsus Medical Center v. St. Luke’s Health System., No. 1:13-CV-00116-BLW (D. Idaho Jan. 24, 2014)

The United States District Court for the District of Idaho ordered a health system to divest itself from a physician group it had acquired, finding that the acquisition violated the Clayton Act and the state anti-competition law.  The hospital system’s acquisition of a medical group made it the dominant provider in the area for primary care, giving it significant bargaining leverage over health insurance plans.  The Federal Trade Commission, the State of Idaho and a competing health care system brought suit against the health system, claiming a violation of antitrust laws.

The court subsequently unsealed detailed findings of fact and conclusions of law supporting its decision.  Among other things, the court rejected the defendant’s assertion that efficiencies associated with hospital-physician integration and the change from fee-for-service to risk-based reimbursement outweighed the possible anti-competitive effects of the high market share percentage in the market for physician services resulting from the acquisition.