St. Luke’s Magic Valley Reg’l Med. Ctr. v. Luciani (Summary)

HOSPITAL AFFILIATION – ASSIGNMENT OF RIGHTS

St. Luke’s Magic Valley Reg’l Med. Ctr. v. Luciani, No. CV08-30-S-EJL (D. Idaho Sept. 30, 2013)

The United States District Court for the District of Idaho granted in part and denied in part a law firm’s motion for summary judgment in a lawsuit filed by a health system against a law firm for legal malpractice.

The hospital hired the law firm to defend a wrongful termination and False Claims Act action alleging fraudulent Medicare billing by the hospital.  At some point during litigation, the law firm was terminated, and a new law firm hired, to represent the hospital in the litigation.  Then, after the former law firm was terminated, but before the litigation was settled, the hospital was purchased and a new health system created.  The terms of the purchase agreement stated that the new health system would assume the hospital’s liability in the litigation, and also contained a general assignment of all claims against third parties, including legal malpractice claims, known or unknown at the time of sale.

The new health system sued the former law firm for legal malpractice, and the law firm filed a motion for summary judgment, arguing that the legal malpractice claim was not assignable, that assignment of the claim was not valid, and that the new health system cannot prove that any of the damages were proximately caused by the former law firm.

The court held that the hospital’s legal malpractice claim was assignable to the new health system, since the purchase agreement was sufficiently broad to preserve any legal malpractice claims against a third party even if it was unknown at the time the agreement was executed or the closing documents were signed.  Also, the new health system stepped into the shoes of the hospital, so any alleged damages did not have to be incurred prior to the execution of the purchase agreement or closing.  However, the court found that the new health system will not be allowed to recover attorneys’ fees associated with the wrongful termination and False Claims Act litigation, because the duty to defend litigation was not foreseeable or proximately caused by the former law firm’s alleged malpractice.

Colo. Med. Soc’y v. Hickenlooper (Summary)

PHYSICIAN SUPERVISION – ANESTHESIA SERVICES

Colo. Med. Soc’y v. Hickenlooper, No. 12SC671 (Colo. Oct. 7, 2013)

The Supreme Court of Colorado granted a writ of certiorari as to whether a lower court erred in concluding that the state’s Nurse Practice Act allows Colorado’s governor to request an exemption from Medicare’s reimbursement regulations’ physician-supervision requirement, so that a certified registered nurse can administer anesthesia without physician supervision and the facility can obtain Medicare reimbursement.

Barker v. Columbus Reg’l Healthcare Sys., Inc. (Summary)

QUI TAM

Barker v. Columbus Reg’l Healthcare Sys., Inc., No. 4:12-CV-108 (CDL) (M.D. Ga. Oct  9, 2013)

The United States District Court for the Middle District of Georgia denied a former owner of a cancer treatment center’s motion to dismiss a qui tam action against him alleging that his sale of the cancer treatment center to a healthcare system violated the Anti-Kickback Statute and the Stark Law.

The district court found that the relator adequately asserted a claim under the False Claims Act by stating with particularity the circumstances constituting the basis for the false claim.

U.S. ex rel. Ortolano v. Amin Radiology (Summary)

QUI TAM

U.S. ex rel. Ortolano v. Amin Radiology, No. 5:10-cv-583-Oc-10TBS (M.D. Fla. Oct. 3, 2013)

The United States District Court for the Middle District of Florida granted in part and denied in part a private radiology company’s motion to dismiss a qui tam action brought by a former employee.

The former employee alleged that the radiology company failed to properly register a radiology center as an independent diagnostic testing facility, and instead, it registered the center as a physician practice group.  The district court, in granting this part of the motion, found that there is no requirement in Medicare that the provider enroll as one type of provider versus another type of provider and such a misclassification does not provide for any penalties.

The former employee also alleged that the radiology center submitted claims for MRI and PET procedures without the proper level of supervision, and that these procedures were performed by unlicensed and uncertified technicians.  The court granted this part of the motion, because the former employee’s specific identification of numerous procedures submitted for reimbursement that constituted false claims, coupled with his position as an insider working during the relevant time period with the ability to personally observe the events, was more than enough to satisfy the reliability of a claim for relief.  Also, the former employee not only discussed an MRI and PET scan submitted in violation of Medicare regulations, but also attached a spreadsheet listing over 300 claims submitted for reimbursement detailing the amount of charges, dates of procedures, and the amount reimbursed, all of which were enough to plead a False Claims Act violation.

Howland v. Wadsworth (Summary)

MEDICAL MALPRACTICE

Howland v. Wadsworth, No. A13A0927 (Ga. Ct. App. Oct. 9, 2013)

The Court of Appeals of Georgia affirmed a lower court’s finding that a physician, a physician’s assistant, and an emergency department physician group were liable for ordinary negligence and owed a patient damages of $5 million.

The patient sued the providers for ordinary negligence and gross negligence, claiming that the providers failed to provide her with appropriate medical treatment while she was in the emergency department of the hospital.  The patient was admitted to the emergency room as a “non-urgent” patient; however, she was experiencing a medical condition which included symptoms of significant pain and coldness in her feet, and the inability to walk.  The physician’s assistant ordered exams on the patient, and ruled out the possibility of deep vein thrombosis and acute arterial occlusion, and concluded that the patient had cellulitis which can be treated with antibiotics on a nonemergency basis.  After discharge from the emergency room, the patient had to be taken to the emergency department again the next day, where it was determined that her arteries behind both knees were completely blocked and she had to have both legs amputated below the knees.

The patient filed a medical malpractice lawsuit and, at trial, the providers moved for a directed verdict, claiming that since the lawsuit arose out of the provision of emergency medical care, she had to prove gross negligence, instead of ordinary negligence, pursuant to a state statute, and that she failed to do so.  The patient argued that the treatment was not emergency medical care, and that the jury should be allowed to consider ordinary negligence.  The trial court denied the providers’ motion, finding that whether it was ordinary negligence or gross negligence, or whether the care provided was emergency medical care, was up to the jury, and the court so instructed the jury.  The jury applied the ordinary negligence standard and awarded the patient $5 million.

The appeals court, in affirming the trial court, held:  the issue of whether a medical malpractice lawsuit involves emergency medical care is not solely a matter of law for the trial court; whether a medical malpractice claim involved emergency medical care is a question for the jury; and jury instructions did not unduly emphasize the ordinary negligence standard, and any perceived confusion in those instructions with regard to the applicable standard of care was resolved by verdict form.

Kuchera v. Jersey Shore Family Health Ctr. (Summary)

CHARITABLE IMMUNITY

Kuchera v. Jersey Shore Family Health Ctr., No. A-2155-12T3 (N.J. Super. Ct. App. Div. Oct. 10, 2013)

The Superior Court of New Jersey, Appellate Division, affirmed the dismissal of a negligence claim against a family health center, which is a subsidiary of a hospital, holding that the center was properly afforded blanket charitable immunity under a state statute.

The plaintiff, who was an attendee at a free eye screening event at the family health center being put on by a separate entity, the Commission for the Blind, slipped and fell at the center.  The plaintiff filed a lawsuit against the family health center, among others, the center moved for summary judgment, arguing that it was not liable based on the state charitable immunity statute, and the trial court granted the motion based on the center being entitled to blanket charitable immunity.  The plaintiff appealed.

The appeals court upheld the judgment of the trial court.  The issue on appeal was whether the family health center was organized exclusively for hospital purposes.  If the family health center was not organized exclusively for hospital purposes, it would not be liable since it would be entitled to blanket charitable immunity.  However, if the family health center was organized exclusively for hospital purposes, it would be liable for up to $250,000.

The appeals court found that the family health center was not organized exclusively for hospital purposes, since it provides free charitable care to the community, is open to the public, turns no one away because of an inability to pay, and “[e]ven more to the point, the [center] lends its facility to other entities, such as the Commission for the Blind, so that the community can be afforded other beneficial services, such as the free eye screening event, to improve its members’ health and well-being.  This was the very purpose for which the [center] was being used when the plaintiff sustained her injury.  We conclude that such a function is not a ‘hospital.’”

Clark v. Jackson Hosp. & Clinic, Inc. (Summary)

PRACTITIONER HEALTH/ FAMILY & MEDICAL LEAVE ACT/ ADA

Clark v. Jackson Hosp. & Clinic, Inc., No. 2:12-CV-836-WKW (M.D. Ala. Sept. 23, 2013)

The United States District Court for the Middle District of Alabama granted in part and denied in part a hospital’s motion for summary judgment in a lawsuit brought by a nurse who took FMLA leave to receive drug treatment after being caught diverting Dilaudid.  The nurse claimed that the hospital violated the FMLA and ADA when it did not reinstate her employment after she returned from treatment.  The hospital argued that it could not return the nurse to her original position because of restrictions on her ability to access controlled substances and its policy of not placing employees with a history of diversion on high acuity units, where the administration of controlled substances would be frequent.  And since no other positions were available, the hospital had no choice but to terminate the nurse’s employment at the conclusion of her leave.

The court rejected the nurse’s FMLA-interference claim, noting that the nurse was not entitled to be reinstated to her position following her FMLA leave because she failed to provide medical certification of her fitness for duty.  The court allowed the nurse’s FMLA-retaliation claim to go forward, however.  The court noted that a prima facie case of retaliation required the nurse to allege that (1) she engaged in statutorily protected activity (in this case, taking FMLA leave), (2) suffered an adverse employment action (in this case, termination), and (3) the adverse employment action was causally related to the protected activity.  The fact that the nurse’s termination was temporally close to her leave was sufficient to allege the third element of the FMLA-retaliation claim.  The hospital articulated a nondiscriminatory reason for the termination (failure to submit a fitness for duty evaluation and a policy of not assigning post-diversion employees to high acuity units).  Noting that the hospital changed its reason for the employee’s termination and that original letters and conversations regarding the termination cited different reasons, the court found there was sufficient evidence that the hospital’s reasons were pretextual to send the matter to a jury for consideration of whether the hospital’s real reason for terminating the nurse was to retaliate against her for taking FMLA leave.

The court further held that it could not grant summary judgment on the ADA claim based on the application of §12114(a) (which excludes from ADA protection those who are currently engaging in the illegal use of drugs) due to a genuine issue of material fact as to whether the hospital actually terminated her based on the fact that she was using illegal drugs or for one of the many other reasons it provided over time.  Further, the court noted that the nurse would have been entitled to the ADA’s protections once she ceased the illegal use of drugs and began a rehabilitation program and, therefore, there was some dispute about whether the nurse was entitled to ADA protection at the time of her termination.

Rolfe v. Lawrence & Mem’l Hosp., (Summary)

HEALTH/ FMLA LEAVE/ ADA

Rolfe v. Lawrence & Mem’l Hosp., No. 3:10-CV-80(RNC) (D. Conn. Sept. 30, 2013)

The United States District Court for the District of Connecticut granted a hospital’s motion for summary judgment, dismissing a nurse’s ADA retaliation and adverse employment action claims. A few years into her employment, the nurse had been diagnosed with MS and placed on FMLA medical leave due to debilitating symptoms. She returned to work when the symptoms decreased, taking a position as an admissions nurse.  The job description for that position required her to serve as a floating nurse, helping out with general nursing duties in other units when needed.

A year later, when the nurse was asked her thoughts on nominating the hospital for “MS Employer of the Year,” she voiced her opinion that she did not feel that the hospital deserved to be nominated because the hospital had not been supportive of her efforts to return to work following her medical leave.  The hospital soon thereafter changed the way it handled hospital admissions as part of its efforts to reduce the time patients spent in the ED.  As a result, the nurse was required to work more frequently on hospital units, which required more standing and walking and, she alleged, pain.  The nurse responded by refusing to take assignments, explaining that her job was focused in the ED, and also refusing to move her locker out of the ED.  Eventually, after a series of disciplinary actions, the nurse took another FMLA leave and, upon her return, was terminated.

The nurse claimed that her revised work duties, which resulted in her termination, were implemented in retaliation for her refusal to nominate the hospital for “MS Employer of the Year.”

The court held that the nurse failed to allege sufficient facts to sustain a claim that but for her protected activity, she would not have been subjected to an adverse employment action (in this case, assignment of more rigorous nursing duties).  The court noted the hospital’s undisputed evidence that it began work on new admissions processes before the “MS Employer of the Year” incident occurred, that the supervisor involved in making changes to the nurse’s duties was not involved in the “MS Employer of the Year” incident and testified that she had no knowledge of the incident at the time she implemented the changes, and that two other admissions nurses were similarly affected by the changes.

Budik v. Howard Univ. Hosp. (Summary)

EMPLOYMENT DISCRIMINATION

Budik v. Howard Univ. Hosp., Civil Action No. 12-1191(RBW) (D. D.C. Sept. 30, 2013)

The United States District Court for the District of Columbia granted in part a hospital’s motion to dismiss a physician’s claims of Title VII racial discrimination, among other things. The African-American radiologist was hired by the hospital to perform radiology services and shortly thereafter obtained temporary privileges and began providing services. The physician alleged, however, that the services she was asked to provide (backlog cases) were different than those described to her during pre-employment discussions and that she was told she would be paid as an independent contractor pursuant to a 1099, rather than on the payroll as other employees.  She further alleged that discriminatory comments about getting rid of African-American doctors were made by a Caucasian physician with whom she worked.

The district court dismissed the physician’s disparate treatment claim, finding that although the physician was a member of a protected class and did allege some form of disparate treatment (not being excused from performing a certain procedure from which another physician was excused), she did not allege that the coworkers who were being treated differently were nearly identical in their employment situation. Specifically, she failed to give the coworker’s title or any information about his experience, seniority, or expertise.  The court went on to also dismiss the radiologist’s claim for hostile work environment, noting that the type of discriminatory behavior she alleged was insufficient to amount to a hostile work environment.

The court refused to dismiss the physician’s retaliation claim, however, holding that the radiologist alleged a prima facie claim (that she complained about racial discrimination and was subjected to an adverse employment action – termination – just 16 days later).  The hospital argued that the retaliation claim should be dismissed because it was based on the same conduct which was deemed insufficient to support the radiologist’s discrimination claim.  The court rejected this argument, holding that a retaliation claim merely requires an allegation that an adverse employment action was in retaliation for the employee’s complaints about unlawful discrimination, without regard to whether the underlying discrimination claim is meritorious.

Graham v. Mem’l Health Univ. Med. Ctr. (Summary)

EMPLOYMENT DISCRIMINATION

Graham v. Mem’l Health Univ. Med. Ctr., No. CV411-316 (S.D. Ga. Sept. 20, 2013)

The United States District Court for the Southern District of Georgia granted in part and denied in part a motion for summary judgment based on an OR nurse’s claims of racial discrimination, hostile work environment, disparate treatment and retaliation. The Caucasian nurse alleged that her African-American charge nurses screamed and yelled at her, subjected her to unwarranted and intense scrutiny, overburdened her, and refused to accept her assistance even after asking her to help.

The OR nurse was eventually involuntarily transferred from the transitional, 11-to-11 shift to a lower-paying day shift, which she claimed was in retaliation for her complaints.  Based on two incidents of alleged noncompliance with procedures, the nurse was terminated from hospital employment within two weeks of meeting with the Ethics Office to allege racial discrimination by the charge nurses.

The district court dismissed the nurse’s hostile work environment claim, holding that the nurse failed to allege sufficient facts to support her allegation that the harassment to which she was subjected was racially motivated. The nurse provided only one example in which a charge nurse even mentioned the race of the OR nurse and, even then, the statement merely implied that the OR nurse may have been racially biased.  The court also found that, based on the facts alleged by the OR nurse, any harassment she experienced was not severe enough to create a hostile work environment.  (The OR nurse’s claim for disparate treatment discrimination was allowed to proceed to trial due to a technical error in pleading on behalf of the hospital’s attorneys).

The court held that the OR nurse’s retaliation claim based on her transfer to the less desirable shift could not stand because though she complained about her supervisors’ harassing conduct at that time, she did not complain that the conduct was racially motivated until later, after the shift transfer had occurred.   The court allowed her claim for retaliatory discharge to proceed to trial, however, noting that she was discharged shortly after complaining to HR about racial discrimination and provided ample evidence to create a question of fact regarding whether the alleged policy violations were created as a pretext to fire her in retaliation for her complaints.