Grove v. PeaceHealth St. Joseph Hosp. (Summary)

MEDICAL MALPRACTICE

Grove v. PeaceHealth St. Joseph Hosp., No. 69556-8-I (Wash. Ct. App. Oct. 28, 2013)

The Court of Appeals of Washington affirmed a trial court’s decision to overturn a jury verdict in favor of an injured patient.  The patient underwent heart surgery, and was monitored by a “team” that included surgeons and physician assistants.  The patient brought suit against the team and the hospital after the team failed to properly diagnose the patient’s post-surgery condition, causing permanent injury to the patient’s left leg.  The jury found the team and the hospital liable for the patient’s injury and awarded damages.  The trial court overturned the jury verdict, holding that there was no legal basis for the decision because the patient had not proved that a specific employee was negligent.

The appellate court held that the patient did not prove the relevant standard of care, stating that medical malpractice in the state was a statutory issue that required proving specific elements.  The patient failed to allege that the negligence of a specific healthcare provider was the cause of his injuries.  Further, the team as a whole, which included both surgeons and physician assistants, cannot be held to the same standard of care because the team did not belong to one single class.  The court held that the patient failed to prove that a duty existed or to which health care provider that duty fell.  The team as a whole could not be negligent, rather there needed to be a “negligent player on the team.”

The appellate court also rejected the patient’s argument that he sufficiently proved that the lead attending physician on the team was negligent in supervising the team.  The court held that the patient failed to demonstrate that the attending physician’s direct actions were the cause of his injury.  The court also noted that it would be impossible for the attending physician to negligently supervise the patient because he was on the other side of the country at the time and had left another physician in charge of the patient.  The attending physician was neither the employer nor the supervisor of the team, so he could not be held vicariously liable for their actions.

Steinberg v. Good Samaritan Hosp. (Summary)

HCQIA/NPDB

Steinberg v. Good Samaritan Hosp., No. 4:10CV3085 (D. Neb. Oct. 22, 2013)

The United States District Court for Nebraska denied a hospital’s motion for summary judgment.  A psychiatrist brought suit against the hospital for defamation, after the hospital filed a report with the National Practitioner Data Bank (“NPDB”) about the psychiatrist.  It was later determined by HHS that the report was unnecessary.  The psychiatrist claimed that the NPDB report was filed in retaliation for his criticism of hospital administration.

The district court held that the hospital’s report to the NPDB was a statement of fact – not opinion – and thus was not protected by the First Amendment.  The court stated that the hospital referenced a “finding” in its report, which would indicate that there was a finding of fact determination by the hospital that the psychiatrist failed to meet the applicable professional standard.  The hospital argued that this was a true statement that shielded it from the psychiatrist’s defamation claims.  However, the court stated that it could not make a determination at the summary judgment phase as to whether or not this statement was true.

Roberts v. Saint Thomas Health Servs. (Summary)

HCQIA/NPDB

Roberts v. Saint Thomas Health Servs., No. M2012-01718-COA-R3-CV (Tenn. Ct. App. Oct. 17, 2013)

The Court of Appeals of Tennessee affirmed a lower court’s grant of summary judgment in favor of a hospital against a surgeon’s claims of injury to his reputation, breach of contract, defamation of character, and tortious interference with business relations, based on the Health Care Quality Improvement Act (“HCQIA”) and the state peer review statute. The hospital’s medical executive committee (“MEC”) had suspended the surgeon’s clinical privileges after finding that the surgeon failed to comply with the hospital’s standards of care. The MEC’s suspension was conveyed to the surgeon through a letter, which also explained his procedural rights under the hospital’s medical staff bylaws. Upon receiving the letter, the surgeon requested a fair hearing but the parties reached an agreement before the hearing, after which he waived his right to a fair hearing. The agreement was that the surgeon would complete counseling and enroll in ongoing outpatient therapy and the hospital would restore his clinical privileges. The hospital also reported these proceedings with the National Practitioner Data Bank (“NPDB”), because the surgeon was suspended for more than 30 days.

The court found that while the hospital did not provide notice and a hearing, as required by HCQIA for immunity to apply, the report to the NPDB was made after the surgeon waived his fair hearing rights. The NPDB Guidebook suggests that a fair hearing that negated the recommendations of the MEC would not have required a report to the NPDB. The court reasoned that the surgeon’s alleged reputational damage cannot be separated from his decision to waive his right to a fair hearing. The court concluded that the fair hearing was the place to challenge the procedures the surgeon now complains were insufficient and dispute any allegations against him.

Sadeghi v. Sharp Mem’l Med. Ctr. Chula Vista (Summary)

MEDICAL STAFF HEARING

Sadeghi v. Sharp Mem’l Med. Ctr. Chula Vista, D060429 (Cal. Ct. App. Oct. 23, 2013)

A California appellate court upheld the denial of a physician’s petition for administrative mandate, in which the physician asked the court to compel a medical center to void a decision upholding the 2007 summary suspension of his privileges.  The physician argued that several aspects of his hearing and appeal process (which lasted over 35 sessions!) were unfair which justified having the medical center’s determination overturned.

The physician argued that the hearing officer improperly excluded evidence that he took steps after the summary suspension to address the MEC’s concerns about his mental health and professional competence, including obtaining an additional psychiatric evaluation and attending the PACE program.  The court rejected this argument, finding the hearing panel to have appropriately limited its scope to considering whether the MEC’s decision to summarily suspend the physician’s privileges was reasonable based on the information it had at the time of the suspension.  Therefore, evidence of mitigating actions that were later taken by the physician was irrelevant to the hearing panel’s deliberations.

The court also rejected the physician’s argument that the hearing panel was improperly composed, since it did not include three medical staff members, finding that the Bylaws specifically contemplated that when it was not feasible to utilize three medical staff members (such as here, where a number of individuals were eliminated from consideration due to competing financial interests and prior involvement in the matter), the panel could include individuals outside the hospital.

The court also rejected the physician’s argument that he had been improperly told he could not talk to hospital staff members about the hearing and this prevented him from identifying and preparing witnesses.  The court noted that the restriction on contact applied only to the physician, not his attorney, and was within the scope of the hearing officer’s duties since the physician’s prior contact with hospital employees had resulted in a number of complaints of harassment.

Andrew v. Range Reg’l Health Servs. (Summary)

HIPAA PRIVACY

Andrew v. Range Reg’l Health Servs., No. A13-0487 (Minn. Ct. App. Oct. 21, 2013)

The Court of Appeals of Minnesota reversed an unemployment law judge’s decision that a licensed practical nurse was ineligible for unemployment benefits because she engaged in employment misconduct (HIPAA violations) when she accessed her own medical records without first submitting a release to the medical records department.  The appellate court found that even if the health services center had a policy against accessing one’s own records, the nurse’s conduct was not sufficient misconduct to disqualify the long-term employee from receiving unemployment benefits since such benefits could be denied only for “intentional, negligent, or indifferent conduct…that displays clearly…as serious violation of the standards of behavior the employer has the right to reasonably expect of the employee.”  (The court declined to opine on whether it was appropriate to fire the employee).

In finding that the nurse’s conduct was insufficient to warrant a denial of unemployment benefits, the court noted that the hospital’s HIPAA training slideshow did not address employees’ access to their own medical records, the employee only accessed her record a few times during a week when she was attempting to contact her physician regarding lab results, and that no patient privacy was violated as a result of the employee’s access.

U.S. ex rel. Antoon v. Cleveland Clinic Found. (Summary)

FRAUD & ABUSE

U.S. ex rel. Antoon v. Cleveland Clinic Found., No. 3:12-CV-027 (S.D. Ohio Oct. 16, 2013)

The United States District Court for the Southern District of Ohio granted a hospital’s motion to dismiss the Anti-Kickback and False Claims Act (“FCA”) lawsuit brought by a patient-turned-relator who alleged that his hospital and physician engaged in fraud by stating that his surgeon personally performed the patient’s prostate surgery and billing for the procedure as such, even though other physicians and a physician assistant were allowed to participate.  Further, the patient/relator claimed that the hospital and physician engaged in an unlawful kickback scheme with a robotics supplier, pursuant to which the supplier paid kickbacks in exchange for the doctor recommending robotic surgery and inflating the quality of procedures performed with the robot.

Among other things, the court found that the relator could not maintain a false certification FCA claim (i.e., a suit alleging that the claim submitted to Medicare was a false claim because the care was provided in a manner that violated a statute or rule) based upon alleged violation of the conditions of participation by the hospital or doctor.  Rather, the relator would have had to allege violation of a statute or rule that created a condition prerequisite to payment.

Further, the court held that the relator (who had filed his complaint pro se) failed to adequately plead many of the technical elements of an FCA claim.  For example, the relator stated that a claim was filed, but did not identify the specific claim, the date it was submitted, or the specific services billed.  Likewise, he alleged no injury as a result of the alleged false claim.

The court concluded that the relator was not the original source of the information underlying his FCA claim because there had been numerous malpractice allegations brought against the doctor alleging that he falsely inflated the positive outcomes for robotic surgery and was paid by the robotics supplier.  Further, the doctor had authored publications on robotic surgery in which he admitted to having a financial relationship with the supplier.

Romine v. St. Joseph Health Sys. (Summary)

EMTALA

Romine v. St. Joseph Health Sys., No. 12-6587 (6th Cir. Oct. 24, 2013)

The United States Court of Appeals for the Sixth Circuit affirmed a lower court’s decision to grant a hospital’s motion for summary judgment, finding that a patient had failed to provide sufficient evidence to establish a causal relationship between the hospital’s alleged violation of the Emergency Medical Treatment and Active Labor Act (“EMTALA”) and his injury.

The patient had lacerated his hand and went to the hospital’s emergency department.  While at the emergency department, the patient was informed by the receptionist there were no beds available, while the patient waited and insisted that all he needed was an examination.  After waiting about ten to 12 minutes, the patient went back home, only to have to return to the hospital emergency department because of his profuse bleeding.  The same receptionist told the patient that he would have to wait.  A nurse then noticed the patient’s significant injury and took him into the emergency room for treatment.  While the staff managed to temporarily stop the bleeding, they decided that the patient would need to be airlifted to another hospital for more treatment.  At this new hospital, the patient got the treatment he needed, but was instructed not to use the injured hand for one month, during which time he was unable to work.

The court found that the patient had not provided adequate evidence of causation for his EMTALA suit because he failed to provide expert testimony to prove that his harm, missing one month of work, resulted from the hospital’s delay in treating him.  The court noted that in cases such as this, a layperson cannot distinguish between whether the harm was caused by the initial injury or the delay in treatment and, accordingly, expert testimony is required.  Furthermore, the court held that the patient failed to provide evidence that the hospital acted with an “improper motive” – which is an essential element of an EMTALA claim in that jurisdiction – because he made no allegations that he received a different standard of care than other patients.

The court also rejected the patient’s argument that CMS’s preliminary determination letter, which found that the hospital had violated EMTALA, was binding in this case.  Notably, said the court, the CMS preliminary determination letter makes no findings about whether the violation caused a patient’s harm or whether the hospital had improper motive.  In addition, because the preliminary decision is preliminary and has not been adjudicated within the agency, it is not the sort of agency decision that would be entitled to preclusive effect in later lawsuits.

Shervin v. Partners Healthcare Sys., Inc. (Summary)

CONFIDENTIALITY OF CERTIFYING BOARD PEER REVIEW INFORMATION

Shervin v. Partners Healthcare Sys., Inc., No. 1:13MC23 (M.D. N.C. Oct. 15, 2013)

The U.S. District Court for the Middle District of North Carolina denied a residency program’s motion to compel the American Board of Orthopedic Surgery (“ABOS”) to disclose records about an orthopedic surgeon who was suing the residency program for gender discrimination.  The physician’s lawsuit, in part, claimed that the residency program (and its affiliated entities) placed her on probation as part of its gender discrimination and may have contributed negative information to the ABOS or failed to submit any information, thereby impacting her ability to sit for Part II of the Boards.

To defend the lawsuit, the residency program sought ABOS records concerning any information submitted to ABOS by the residency program, as well as any information provided by hospitals where the resident had gone on to work.  The program argued that such records were relevant because if the physician had problems at her post-residency hospitals, that would undermine her suggestions that the deficiencies during residency were a pretext for discrimination.

The court refused to order the ABOS to release the documents, noting that if the residency program wanted to obtain information about the physician’s performance at post-residency hospitals, it could contact those hospitals directly.  Further, the court noted that the ABOS has a strong interest in maintaining the confidentiality of peer review information submitted to it and to compel the disclosure of such information would undermine ABOS’s ability to fulfill its mission to protect the public by evaluating the initial and continuing qualifications of orthopedic surgeons.

Lopez-Krist v. Salvagno (Summary)

VICARIOUS LIABILITY/ ACTUAL AND APPARENT AGENCY

Lopez-Krist v. Salvagno, Civil Action No. ELH-12-01116 (D. Md. Oct. 17, 2013)

The United States District Court for the District of Maryland refused to grant summary judgment for either party in a lawsuit brought by the mother of a patient whose leg was amputated due to the alleged negligence of the orthopedist on call for the emergency department. The mother claimed that the hospital should be held liable since the physician was the actual or apparent agent of the hospital.  The hospital argued that the orthopedic surgeon was an independent contractor member of the medical staff and, in turn, that it could not be held vicariously liable for his negligence.

In considering whether the orthopedist was an actual agent of the hospital, the court considered the contracts and relationships between the two.  It noted that the orthopedist would be considered a “servant” of the hospital if the hospital had sufficient control over the activities of the orthopedist. It looked at the existing contracts between the orthopedic surgeon, his professional association, and the hospital, which dealt with pay-for-call and directorship of the joint replacement program, and noted that the hospital had at least some degree of control over the physician’s practice and his schedule. The court found that whether or not this amounted to actual authority was a question of fact for the jury, which could not be determined at the summary judgment stage of the case.

The district court also denied summary judgment on the issue of apparent authority.  In support of her claim for apparent agency, the mother alleged that the informed consent form was on hospital letterhead and the services of the orthopedic surgeon were provided in the ER, which was located physically within the hospital.  The hospital, on the other hand, argued that the patient was brought to the hospital by the ambulance – not because he chose the hospital specifically.  Accordingly, according to the hospital, the patient and his mother never relied on any representations of agency when choosing a hospital (and, in fact, did not choose the hospital at all).   Noting that the facts were in dispute, the court held that summary judgment would be inappropriate and the issue would need to be decided by a jury.

Koch v. Sheehan (Summary)

LICENSURE ACTION / MEDICAID EXCLUSION

Koch v. Sheehan, 2013 N.Y. Slip Op. 06804 (N.Y. Oct. 22, 2013)

The Court of Appeals of New York affirmed a lower court’s determination that the state Office of the Medicaid Inspector General (“OMIG”) acted arbitrarily and capriciously when terminating a physician’s participation in Medicaid following the physician’s entrance into a consent order with the Bureau of Professional Misconduct (“BPMC”) involving two professional misconduct charges.  The court disagreed with the lower court’s reasoning, however.

The lower court had held that it was arbitrary and capricious for the OMIG to terminate the physician from participation in Medicaid based solely on the consent order, since the BPMC allowed the physician to continue practicing pursuant to that consent order.  The lower court held that the OMIG would have to conduct its own independent investigation before deciding to exclude the physician.

The court of appeals disagreed.  It held that the OMIG had clear statutory authority to use its discretion to exclude an individual from the Medicaid program based on the individual’s plea of no contest to professional misconduct charges, without any necessity for the OMIG to conduct an independent investigation.  The court noted, however, that exclusion by the OMIG is not automatic for all physicians who enter into a consent order with the BPMC.  Rather, the OMIG is expected to use its discretion when deciding whether to exclude a physician based on a BPMC consent order.  Accordingly, it is necessary for the OMIG to document the exercise of its discretion in cases where it chooses to exclude.  Applying those conclusions to the case at hand, the court held that it was arbitrary and capricious for the OMIG to exclude this physician from the Medicaid program on the basis of the BPMC consent order without explaining why it was relying on the consent order to reach the decision to exclude.