Brintley v. St. Mary Mercy Hosp. (Summary)

RACE DISCRIMINATION

Brintley v. St. Mary Mercy Hosp., No. 12-2616 (6th Cir. Nov. 15, 2013)

The United States Court of Appeals, Sixth Circuit affirmed the district court’s grant of summary judgment in favor of a hospital and others, in a suit brought by a female, African-American surgeon alleging race discrimination under state and federal law.

The surgeon was required to undergo a proctorship after she accidentally cut two major blood vessels of an otherwise healthy woman in her early 20’s while performing a routine appendectomy.  A review of the surgeon’s practice also revealed that she had a high rate of surgical complications.  Because of this, the hospital imposed a proctorship, under which the proctors would have authority to intervene.  Moreover, the surgeon could not disregard the proctors’ directives or supervision.  The surgeon failed to comply with the proctors’ requirements on several occasions and, ultimately, her privileges were suspended.  The surgeon sued, claiming the hospital discriminated against her because of her race.  The lower court dismissed the case.  The appellate court affirmed, finding, for Title VII purposes, the surgeon was not an employee of the hospital.  The court also concluded that the medical staff bylaws did not create a contract, required to sustain a claim under 42 U.S.C. §1981.  Lastly, the court determined that under the state’s anti-discrimination law, there was no evidence of discrimination.  According to the court, “[the surgeon] alleges that [the hospital] imposed less restrictive proctorships upon two Caucasian doctors than it imposed on her.  But neither of the two doctors had the history of serious complications that [the surgeon] did.  Thus, neither of them are similarly situated to [the surgeon], and her [state law discrimination] claim therefore fails.”

Bluestein v. Cent. Wis. Anesthesiology (Summary)

DISABILITY AND SEX DISCRIMINATION

Bluestein v. Cent. Wis. Anesthesiology, No. 12-cv-322-bbc (W.D. Wis. Nov. 12, 2013)

The United States District Court for the Western District of Wisconsin granted an anesthesiology group’s motion for summary judgment in a discrimination suit brought by an anesthesiologist who was a full partner and shareholder of the group.

The anesthesiologist was injured while kayaking.  As a result of her injuries, she requested multiple accommodations, including an open-ended medical leave of absence.  The group denied the leave of absence and, ultimately, terminated the anesthesiologist.  The anesthesiologist sued, claiming, among other things, that she was discriminated against in violation of the Americans with Disabilities Act (“ADA”) and Title VII.  The court dismissed her ADA claim, concluding that the ADA only protects employees.  The court concluded that the anesthesiologist was an “employer” due to her being a shareholder and member of the board of the group.  Accordingly, she was not protected by the ADA.  The court also found that the anesthesiologist failed to present evidence that she was “disabled” under the ADA because her complaint “speaks only in the broadest terms of how [her] condition limits any of her major life activities.”  Moreover, her request for an indefinite leave of absence was not a “reasonable accommodation” under the ADA since she failed to provide evidence that the leave would restore her ability to work as an anesthesiologist.  The court also dismissed the anesthesiologist’s sex discrimination claim under Title VII based on the court’s finding that she was not an employee of the group.

U.S. ex rel. Baklid-Kunz v. Halifax Hosp. Med. Ctr. (Summary)

FALSE CLAIMS ACT – STARK LAW

U.S. ex rel. Baklid-Kunz v. Halifax Hosp. Med. Ctr., No. 6:09-cv-1002-Orl-31TBS (M.D. Fla. Nov. 13, 2013)

The United States District Court for the Middle District of Florida granted in part and denied in part a motion for partial summary judgment filed by the federal government in a False Claims Act suit against a hospital.

The government alleged that the hospital entered into employment agreements with oncologists that violated the Stark Law.  According to the government, the oncologists’ productivity bonuses violated the Stark Law because they were calculated by referencing the medical oncology program’s operating margin (or profit), which took into account services not personally performed by the oncologists.  The government filed a motion for summary judgment seeking a determination that the hospital violated the Stark Law and False Claims Act by billing Medicare for services provided as a result of referrals from the oncologists.  The court granted the motion with respect to the government’s Stark Law claims, finding that the productivity bonus did not meet the Stark Law’s bona fide employment exception, since it was not based on services personally performed by the oncologists (even though the productivity bonus the oncologists received was “divided up” based on services personally performed).  The court also rejected the hospital’s claims that the oncologists were not “referring physicians” simply because they were identified as the attending or operating physician on Medicare forms for processing facility fees.  According to the court, “to accept [the hospital’s] argument…one would have to assume that…both attending physicians and operating physicians are completely disconnected from any ‘request or establishment of a plan of care…which includes the provision of designated health services.’”  However, the court did not grant the government’s motion for summary judgment with respect to the amount of damages, because, among other things, the hospital’s contention that one of the oncologists did not receive a bonus in the relevant time period and could not have violated the Stark Law.

• Order 11/13/2013
• Order 11/18/2013
• Order 11/26/2013
• Denial of Motion to Reconsider 12/4/2013

Thompson v. LifePoint Hosps., Inc (Summary)

FALSE CLAIMS ACT/ANTI-KICKBACK STATUTE

Thompson v. LifePoint Hosps., Inc., No. 11-01771 (W.D. La. Nov. 8, 2013)

The United States District Court for the Western District of Louisiana granted a motion to dismiss filed by a physician and two hospitals in response to another physician’s complaint alleging False Claims Act (“FCA”) violations.  The court granted the motion, holding that the physician’s complaint failed to plead with particularity the alleged fraudulent conduct underlying the FCA claims.

In his complaint, the physician alleged that the hospitals violated the Medicare swing-bed requirements by not having a qualified therapeutic recreation specialist on staff and violated the Anti-Kickback Statute by providing a non-employee physician an apartment owned by the hospital at less than fair market rent.  His complaint also alleged that the physician defendant was performing unnecessary upper endoscopies.  However, the physician only made general allegations that the defendants submitted false claims to the government.

In granting the defendants’ motion to dismiss, the court found that the physician failed to plead his claims with sufficient particularity when he failed to, among other things, “identify a single claim that was actually submitted pursuant to the allegedly fraudulent schemes….”  The court also rejected the defendant physician’s motion for attorneys’ fees, finding that his unsupported contentions that the plaintiff physician was “mad that the Hospital sought to enforce [his] loan repayment obligations…agreed to in [his] Recruitment Agreement” did not establish that the suit was “clearly frivolous, clearly vexatious, or brought primarily for the purposes of harassment.”

Bailey v. Manor Care of Mayfield Heights (Summary)

PEER REVIEW PRIVILEGE

Bailey v. Manor Care of Mayfield Heights, No. 99798 (Ohio Ct. App. Nov. 7, 2013)

The Court of Appeals of Ohio reversed in part and affirmed in part a trial court’s ruling granting a motion to compel filed by an administrator of a deceased patient’s estate in a negligence suit brought against a nursing home.   The nursing home argued that the materials requested by the estate were protected by Ohio’s peer review and quality assurance privileges.  The trial court disagreed, granting the motion to compel.

On appeal, the state appellate court first concluded that federal regulations giving residents of long-term care facilities the right to access all of their records do not preempt the state peer review privilege.  The appellate court then concluded that “based on the evidence before it and given the lack of an in camera inspection of the documents, the trial court could not conclude as a matter of law that investigation reports were not subject to [the peer review and quality assurance] privilege….”  Accordingly, the appellate court ordered the trial court to conduct an in camera review of the documents and advised that the trial court require, among other things, that the nursing home file a detailed privilege log with the court.

Barnum v. Ohio State Univ. Med. Ctr (Summary)

FIRST AMENDMENT RETALIATION/ADA

Barnum v. Ohio State Univ. Med. Ctr., No. 2:12-cv-930 (S.D. Ohio Nov. 8, 2013)

The United States District Court for the Southern District of Ohio granted in part and denied in part a hospital’s motion to dismiss a suit brought by an employed certified registered nurse anesthetist (the “CRNA”), claiming that the hospital discriminated against her in violation of the Americans with Disabilities Act (“ADA”) and retaliated against her in violation of the First Amendment.

The CRNA was going through a divorce.  The Chair of the Anesthesia Department and a psychiatrist at the hospital required her to report to the hospital’s emergency room because her coworkers had reported concerns about her.  She was not admitted, but was eventually placed on “an unspecified leave of absence.”  Two separate fitness for duty examinations confirmed the CRNA’s ability to return to work.  While on leave, the CRNA filed a complaint with the U.S. Department of Health and Human Services Office of Civil Rights, claiming the hospital breached the Health Insurance Portability and Accountability Act (“HIPAA”) when its representatives had unauthorized discussions with the CRNA’s counselors.  Eventually, the CRNA was allowed to return to work, but she claimed that the hospital eliminated her sick days, altered her schedule, changed her work location, and altered her car assignments.

In ruling on the hospital’s motion to dismiss, the court allowed the CRNA’s First Amendment retaliation claim to proceed, holding that the CRNA’s allegation that the hospital violated HIPAA was a matter of public concern.  Since the hospital did not assert whether it had adequate justification for treating the CRNA, as an employee, any differently from any other member of the general public, the claim was allowed to go forward.  With respect to the CRNA’s ADA claim, the court held that the CRNA “alleged significant changes in her terms of employment, including changes in her case assignment, locations, and schedules” to constitute an “adverse employment action” for purposes of the ADA.

Chudacoff v. Univ. Med. Ctr. of S. Nev (Summary)

IMMUNITY PROVISION IN THE BYLAWS

Chudacoff v. Univ. Med. Ctr. of S. Nev., No. 2:08-cv-00863-RCJ-GWF (D. Nev. Nov. 1, 2013)

The United States District Court for the District of Nevada granted a motion for summary judgment and denied two others filed by a hospital and others in this protracted suit brought by an Obstetrician/Gynecologist (the “OB/GYN”) claiming that the hospital wrongfully suspended his privileges and filed a report with the National Practitioner Data Bank.  Notably, the court allowed the OB/GYN’s contract-based bad faith claim to go to trial.  In doing so, the court held “the Bylaws…only immunize Defendants where their actions are taken in good faith, which is the crux of the present dispute.  Good faith is for the fact-finder in this case.”

Perez v. Brookdale Univ. Hosp. & Med. Ctr (Summary)

EMTALA

Perez v. Brookdale Univ. Hosp. & Med. Ctr., No. 12-CV-5672 (E.D. N.Y. Nov. 8, 2013)

The United States District Court for the Eastern District of New York granted a motion for summary judgment filed by a hospital and other defendants in a suit brought on behalf of a deceased patient alleging, among others, a claim under the Emergency Medical Treatment and Active Labor Act (“EMTALA”).  The patient died 48 hours after the hospital discharged her.  Her family sued on behalf of themselves and the patient’s estate.  The hospital filed a motion to dismiss, arguing that the patient’s discharge, which occurred three weeks after her admission to the hospital, fell outside the scope of EMTALA.  The court agreed, concluding that the hospital satisfied its duties under EMTALA once it stabilized the patient and that “[a]ny malpractice, deterioration, or new disease acquired in the hospital was outside EMTALA’s concern.”  Accordingly, the court dismissed the EMTALA claim and declined to exercise supplemental jurisdiction over the remaining state law claims.

Patel v. St. Luke’s Sugar Lang P’ship (Summary)

PHYSICIAN – HOSPITAL PARTNERSHIP

Patel v. St. Luke’s Sugar Lang P’ship., No. 01-13-00273-CV (Tex. App. Nov. 7, 2013)

The Court of Appeals of Texas reversed a trial court’s denial, because of mootness, of an application for injunction by several physicians against a partnership in which they held interests. 

The partnership was created to own and operate a hospital.  The partners included the physicians and a subsidiary of a health system.  The subsidiary was the managing partner.  The partnership’s governing board initiated a capital call without the participation of any board members appointed by the physician partners.  The physician partners refused to respond to the capital call, claiming it was an ultra vires act disallowed under the amended partnership agreement.  The partnership terminated the physicians’ interests because they failed to respond to the capital call. The physicians filed suit seeking a temporary injunction to prevent the managing partner from taking certain actions, including terminating the partnership interests of the physicians.  While a ruling on the injunction was pending, the managing partner considered the physicians’ interest terminated and began the process of assuming direct responsibility for operating the hospital by transferring essential licenses and paperwork into its own name.  Based on this, the partnership argued that the physicians’ request for a temporary injunction was moot because of a change in circumstances.  The lower court denied the temporary injunction since the acts sought to be enjoined were already performed by the partnership.  The appellate court disagreed, holding that it could not infer that any of the actions taken by the managing partner, including transferring the partnership’s CMS provider number, indicated an actual transfer of the hospital’s ownership from the partnership to the managing partner.  Accordingly, the appellate court reversed the lower court’s ruling finding as moot the application for a temporary injunction.

Sidibe v. Sutter Health (Summary)

ANTITRUST

Sidibe v. Sutter Health, No. C 12-04854 LB (N.D. Cal. Nov. 7, 2013)

The United States District Court for the Northern District of California granted a health system’s motion to dismiss in this putative class action suit brought by two individuals enrolled in commercial health plans (the “insureds”) alleging antitrust violations.  The insureds claimed that the health system violated state and federal antitrust laws by requiring payers: (1) to contract with all of the health system’s providers to have access to any of its providers, and (2) to “steer” patients to the health system’s providers.

In dismissing the complaint, the court found that the insureds failed to allege the relevant inpatient hospital services geographic markets to support its Sherman Act claims. The court also concluded that the insureds did not adequately allege a tying claim because they failed to plead facts showing any negative impact on competition.  Lastly, because the insureds were found not to have alleged the relevant inpatient hospital services geographic markets, the court dismissed the monopolization and attempted monopolization claims as well.  Even though the court granted the health system’s motion to dismiss, it granted the insureds leave to amend their complaint.