Rawdin v. Am. Bd. of Pediatrics (Summary)

ADA – BOARD CERTIFICATION EXAMINATION

Rawdin v. Am. Bd. of Pediatrics, No. 12-6781 (E.D. Pa. Nov. 6, 2013)

The United States District Court for the Eastern District of Pennsylvania denied a pediatrician’s request for injunctive relief in a suit brought against the American Board of Pediatrics (the “Board”) holding that the pediatrician was not “disabled” under the Americans with Disabilities Act (“ADA”) and that the accommodations he sought for taking the board examination were not reasonable.

The pediatrician struggled with a memory deficiency caused by a brain tumor.  He claimed that because of this he was unable to pass the Board’s exam and achieve board certification.  The pediatrician ultimately sued the Board seeking a court order, finding that “he is qualified for board certification and direct[ing] [the Board] to award him certification without requiring him to pass the Exam.”  In the alternative, the pediatrician requested the court to require the Board to provide the accommodation of substituting a different type of exam for the multiple choice exam used by the Board.  The court denied the pediatrician’s request, first finding that he was not disabled under the ADA because his impairment did not cause a substantial limitation in the major life activities of test-taking and work.  According to the court, “[b]ecause the evidence does not show [the pediatrician’s] test-taking abilities are lower than those of the average person in the general population, the court cannot find [he] is substantially limited in the major life activity of test-taking.  The court also held that his requested accommodation was not reasonable under the ADA because the accommodation would “devalue” the certification process.

Nathan v. Ohio State Univ. (Summary)

EMPLOYMENT DISCRIMINATION

Nathan v. Ohio State Univ., No. 2:10-CV-872 (S.D. Ohio Oct. 29, 2013)  

The U.S. District Court for the Southern District of Ohio granted a university’s motion for summary judgment against a female anesthesiologist.  The anesthesiologist brought claims against the university pursuant to Title VII of the Civil Rights Act of 1964, the Age Discrimination and Employment Act, and the Family and Medical Leave Act, asserting discrimination and retaliation.

The anesthesiologist and the university had entered into an employment agreement which allowed for the agreement’s termination at any time with or without cause. After a new Anesthesiology Department chair was hired, the former chair advised him of issues he had faced regarding the anesthesiologist, which included complaints about her professionalism and teaching evaluations. However, the new chair decided to recommend the physician’s reappointment in February 2009 as he did not want to make any decision based on a predecessor’s evaluation. Two months later, the new chair decided that the anesthesiologist’s employment should be terminated because she engaged in conduct that was disruptive to the operations of the department by manipulating clinical assignments to her benefit and the detriment of others, by arriving late for clinical duty, abusing time off and disruptive interactions with surgeons.

The court found that the anesthesiologist failed to create a genuine issue of material fact by attempting to discredit assertions of previous department chairs who had advised that she not be reappointed. The court reasoned that the previous chairs had no discriminatory or retaliatory animus towards her, nor did they take any adverse action against her. The court further found that the anesthesiologist failed to cast substantial doubt as to the department chair’s reasons for her termination.  The anesthesiologist did not provide evidence to prove that she did not have a tendency to be tardy, to be unavailable, and to violate the sick leave policy.

Hobler v. Hussain (Summary)

PHYSICIAN ASSISTANT/EMPLOYMENT

Hobler v. Hussain, 2013 N.Y. Slip Op. 07237 (N.Y. App. Div. Nov. 7, 2013)

The Supreme Court, Appellate Division of New York, affirmed a lower court’s order which granted a physician’s motion for summary judgment and dismissed an orthopedic physician assistant’s (“PA”) complaint that the physician wrongfully prevented him from seeing patients.  The PA stated that this action caused his employment to be terminated by a hospital.

The PA and the hospital had an employment agreement under which the PA’s employment was subject to termination “without cause upon sixty (60) days prior written notice.” Approximately six months after the start of his employment at the hospital, the hospital notified the PA that his employment would be terminated in 90 days.

The court found that the PA could not have reasonably relied upon any assurances that his employment would be secure, given that his employment contract expressly stated that his employment could be terminated without cause. The employment agreement further contained an integration clause which provided that the agreement represented the entire agreement and that no amendment or modification would be effective unless in writing and signed by the parties. Furthermore, the court found that the PA fell short of demonstrating the physician’s use of any wrongful means to allegedly prevent the PA from seeing patients. Moreover, the PA admitted that he was terminated based on the hospital’s financial decision, negating the physician’s involvement in his termination.

Warren v. Dart (Summary)

PEER REVIEW PROTECTION

Warren v. Dart, No. 09 CV 3512 (N.D. Ill. Oct. 30, 2013)

The U.S. District Court for the Northern District of Illinois denied an amended motion to compel production of a witness in a case brought on behalf of a deceased prisoner, finding that a health services’ report on an investigation of the deceased’s death is subject to the protection afforded by the Illinois Medical Studies Act (“IMSA”).

The deceased was kept at a county jail for retail theft. She was found dead in her cell approximately two and a half days after her arrest. The deceased’s friends sued pursuant to the Civil Rights Act, claiming that the sheriff’s deliberate indifference to the deceased’s medical needs caused her death. The friends alleged that the deceased died of bronchial asthma, a condition that would have been treatable had the sheriff given her access to medical treatment. The friends also sued pursuant to state law.

The court found that the health services’ report was a product of a peer review process to benefit patient care and reduce death rates at the jail, and that it was medical in nature. The report included recommendations for improvement of patient care, and did not discuss liability, litigation risk, or other business concerns. The court concluded that the report was subject to IMSA protection. The court further found that though the report was reviewed by those outside of the peer review committee, it was protected under IMSA because it was “initiated, created, prepared, or generated by a peer-review committee.”

U.S. ex rel. Tahlor v. AHS Hosp. Corp. (Summary)

QUI TAM/FALSE CLAIMS ACT

U.S. ex rel. Tahlor v. AHS Hosp. Corp., No. 2:08-cv-02042 (D. N.J. Oct. 31, 2013)

The U.S. District Court for the District of New Jersey granted in part and denied in part a hospital’s motion to dismiss the qui tam False Claims Act (“FCA”) claims brought by a  physician and a case manager (the “Relators”).  The Relators argued that the hospital was billing Medicare for expensive inpatient practices when it should have been billing for less expensive observation services. Months after the physician filed his original complaint in court, the hospital declined to renew his contract, which he alleged was in retaliation for his lawsuit. Before the physician’s appeal, the government intervened and entered into a partial settlement with the hospital and its parent corporation.

The district court dismissed the Relators’ improper billing claims based on the FCA’s “public disclosure bar.”  Although the information was kept secret for business purposes, the court held that audit communications by a recovery audit contractor were essentially a public disclosure of the fraudulent information. Further, the Relators were not an original source of the information, needed to overcome the public disclosure bar, because they did not have direct and independent knowledge of the Medicare billing. The court noted the settlement reached between the hospital and the government put the government on notice that improper billing was occurring.

The district court also held that the Relators did not have enough information to allege that the hospital was knowingly engaged in the fraudulent billing of Medicare.

ADDITIONAL OPINION

U.S. ex rel. Tahlor v. AHS Hosp. Corp., Civ. No. 2:08-cv-02042 (WJM) (D. N.J. Aug. 26, 2014)

The United States District Court for the District of New Jersey granted in part and denied in part motions to dismiss filed by multiple health care practitioners and providers accused of submitting false claims to Medicare. A physician advisor and nurse case manager, employees of one of the defendant hospitals, filed the lawsuit on behalf of the government.

Two separate alleged fraudulent schemes were in dispute. Under the first one, the health care providers allegedly billed Medicare for unnecessary inpatient hospital services. In particular, these providers billed for inpatient stays rather than “observation.” The second one involved allegations that patients were kept in the hospital for at least three days, so that Medicare would cover the patients’ post-hospital care at skilled nursing facilities.

The court dismissed certain claims that had been dealt with in a prior phase of the lawsuit. However, the court denied motions to dismiss the remaining claims, concluding that the relators had alleged sufficient facts for this portion of the lawsuit to proceed to discovery. The court also rejected the defendants’ argument that the statute of limitations precluded some claims from being litigated. The court held that an administrative order issued earlier in the case was sufficient to toll the statute of limitations. Finally, the court denied a motion to strike regarding certain allegations involving incorrect claims. The court stated that the allegations were not sufficiently immaterial or prejudicial to warrant striking them from the lawsuit.

AMENDED OPINION (Correction of Clerical Errors in August 26, 2014 Opinion)

U.S. ex rel. Tahlor v. AHS Hosp. Corp., Civ. No. 2:08-cv-02042 (WJM) (D. N.J. Sept. 10, 2014)

U.S. ex rel. Sharp v. E. Okla. Orthopedic Ctr. (Summary)

QUI TAM/FALSE CLAIMS ACT

U.S. ex rel. Sharp v. E. Okla. Orthopedic Ctr., No. 05-CV-572-TCK-TLW (N.D. Okla. Oct. 29, 2013)  

The U.S. District Court for the Northern District of Oklahoma granted in part and denied in part an orthopedic medical practice’s motion for summary judgment against a terminated front desk supervisor who alleged violations of the False Claims Act (“FCA”) by the practice through upcoding preoperative examinations, miscoding of follow-up visits, waiving Medicare coinsurance and deductibles for certain patients, and billing patient accounts involving worker’s compensation and liability claims to Medicare instead of primary insurance first, resulting in violations of the Medicare Secondary Payer (“MSP”) rules.

The court primarily held that there was insufficient evidence to prove the required falsity and knowledge of these violations.  The front desk supervisor alleged that claim forms for follow-up visits misstated services provided by a specific physician’s usage of the diagnosis code for degenerative joint disease for follow-up visits.  The court found that the degenerative joint disease was the underlying reason why the patients required the procedure done by the physician and there was nothing false about the physician’s coding the visits that way.

With regard to incorrectly classifying a patient as an insurance only patient and not collecting coinsurance deductibles for his visits, the court found that although the medical center did, in fact, fail to disclose that it routinely waived the coinsurance and deductibles for the patient, this was a mere oversight in failing to change the status of the patient.

The argument that the medical center billed patient accounts involving worker’s compensation and liability claims to Medicare in violation of MSP rules failed because, given the confusion regarding the MSP regulations at the time, the medical center’s attempts at compliance were sufficient.

The court found that the front desk supervisor could proceed on the question of retaliatory intent for her discharge as the medical center not only had notice of her external whistleblowing activities but also proffered an implausible reason for her discharge.

U.S. ex rel. King v. Univ. of Tex. Health Sci. Ctr. (Summary)

FALSE CLAIMS ACT

U.S. ex rel. King v. Univ. of Tex. Health Sci. Ctr., No. 12-20795 (5th Cir. Nov. 4, 2013)

The U.S. Court of Appeals for the Fifth Circuit affirmed a lower court’s dismissal of an employee’s False Claims Act (“FCA”) claims due to lack of jurisdiction and for failure to state a claim. The employee claimed that her supervisor had falsified research data results and had failed to obtain written informed consent from human research subjects. The employee alleged that the hospital failed to fully investigate and fraudulently covered up research.

The circuit court held that the university hospital was an “arm of the state” and not a “person” who could be liable under the FCA. The court noted that the hospital’s main source of funding was direct state appropriations, that the hospital was established by state law, and that previous cases as a state agency entitled it to immunity. The university hospital system as a whole is a statewide system that is concerned with education and research in the entire state of Texas. Further, the hospital does not have true autonomy because its board of regents, who are appointed by the governor and approved by the senate, must approve all contracts the hospital enters into. The court determined that this was sufficient to prove that the hospital was an arm of the state that enjoyed immunity, and dismissed the FCA claim for failure to state a claim.

The circuit court also affirmed the dismissal of the employee’s retaliation claim. As an arm of the state, the hospital was entitled to sovereign immunity that barred monetary relief under the FCA anti-retaliation provision.

Cashion v. Smith (Summary)

DEFAMATION

Cashion v. Smith, No. 121797 (Va. Oct. 31, 2013)

The Supreme Court of Virginia affirmed in part and reversed in part a lower court’s grant of summary judgment on an anesthesiologist’s claim of defamation. The anesthesiologist sued a trauma surgeon who accused the anesthesiologist of euthanizing a patient during surgery. The surgeon made these statements, in front of others, in the OR directly after the surgery and in the hallway.

The supreme court held that the lower court erred in determining that statements made by the surgeon that arguably did not accuse the anesthesiologist of euthanasia were non-defamatory.  The court stated insinuations may be defamatory, and the surgeon’s insinuations were something that could be proven true or false through expert testimony.

The court disagreed with the lower court’s judgment that the euthanasia statements were privileged as a matter of law. The court stated that while the communications were on the subject of the care of the patient and those who heard them had an interest in the level of care provided to patients, it was possible for this privilege to be lost. The qualified privilege can be lost through demonstration of malice, which is a determination for the jury.

The court also held that the surgeon’s statements were not rhetorical hyperboles, which are not considered to be defamatory under state law. The court stated that the statements could be reasonably interpreted as allegations of fact, as it was possible for a listener to assume that the anesthesiologist actually engaged in the conduct described by the surgeon.

Waddoups v. Noorda (Summary)

NEGLIGENT CREDENTIALING

Waddoups v. Noorda, No. 20120310 (Utah Nov. 1, 2013)

The Supreme Court of Utah held that a section of the state code was not applicable retroactively, which would have barred a patient’s claim.  The patient brought suit after she suffered an injury during a procedure.  The patient and her husband sued the hospital for negligently credentialing the physician who performed the procedure.  The hospital argued that the patient’s claim was barred by a law that prohibits lawsuits based upon negligent credentialing.  That law went into effect after the patient’s lawsuit was filed.

The supreme court held that the statute did not provide a clear indication of whether it was meant to be applied retroactively. State law only allows statutes to be applied retroactively if the statute explicitly states that it is to be applied in such a way. In order to make this determination, courts look exclusively at the statute’s plain language.  The court stated that this particular statute used only the present tense, and did not provide a clear indication that it was meant to apply to previous events. The patient’s lawsuit was allowed to stand because her case began before the statute went into effect.

Maa v. Ostroff (Summary)

FCA

Maa v. Ostroff, No. 12-cv-00200-JCS (N.D. Cal. Oct. 23, 2013)

The U.S. District Court for the Northern District of California granted in part and denied in part the defendants’ motion to dismiss an action brought by a physician alleging violations of the False Claims Act (“FCA”).  It was alleged that the defendants used unqualified or unsupervised residents and sedation nurses during endoscopic procedures.  The court dismissed the FCA counts but declined to dismiss the First Amendment retaliation claim.