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.

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)