U.S. ex rel. Parikh v. Citizens Med. Ctr. (Summary)

FALSE CLAIMS ACT/QUI TAM

U.S. ex rel. Parikh v. Citizens Med. Ctr., No. 6:10-CV-64 (S.D. Tex. Sept. 20, 2013)

Three cardiologists brought a qui tam suit against a county hospital and individuals for violations of the False Claims Act.  The cardiologists alleged that the hospital had, among other things, run a kickback scheme in which it paid bonuses and financial incentives to physicians who referred patients for treatment at the hospital and for providing unnecessary medical services. The U.S. District Court for the Southern District of Texas denied the hospital’s motion to dismiss allegations concerning (i) violations among certain physician groups of the hospital, (ii) violations for providing unnecessary medical services, and (iii) conspiring to violate the False Claims Act.

Three cardiologists who were formerly employed by the hospital contended, among other things, that the hospital (i) implemented bonus and fee-sharing programs for emergency room physicians who referred patients for cardiology treatment at the hospital, and (ii) employed cardiologists at above-market salaries and provided them discounted office space so long as they referred patients to one exclusive cardiac surgeon.  The court ruled that the allegations of a pervasive referral and kickback scheme that allowed emergency room physicians to receive bonus payments were sufficiently detailed and plead to survive the hospital’s motion to dismiss.  Similar alleged arrangements with gastroenterologists, the Lithotripsy Group, and urologists also survived the motion to dismiss.  The court found that sufficient details were also given and plead concerning medically unnecessary treatment to reject the hospital’s motion to dismiss in this area.  The Court dismissed claims pertaining to the hospital’s alleged violation of Medicare Conditions of Participation.

** Subsequent Opinion **

U.S. ex rel. Parikh v. Brown, No. 13-41988 (5th Cir. Aug. 11, 2014)

Initial Appellate Review, subsequently withdrawn and replaced by Order dated October 1, 2014.

** Additional District Court Opinions**

FALSE CLAIMS ACT

U.S. ex rel. Parikh v. Citizens Med. Ctr., Civil Action No. 6:10-CV-64 (S.D. Tex. Sept. 3, 2014)

The District Court for the Southern District of Texas struck a hospital’s affirmative defenses of ratification, waiver, and consent, finding that they were inapplicable in False Claims Act (“FCA”) cases. The court refused to strike language in the hospital’s answer that argued the United States had suffered no injury or damages. The relator’s motion to strike the “public disclosure bar” was denied. The court refused to strike the hospital’s affirmative defenses of compliance with Stark Law exceptions and anti-kickback safe harbors, finding that the invocation of specific statutory exemptions would be sufficient.

** Additional U.S. Court of Appeals Opinion **

U.S. ex rel. Parikh v. Brown, No. 13-41088 (5th Cir. Oct. 1, 2014)

The United States Court of Appeals for the Fifth Circuit granted a petition for a panel rehearing in this case.  It withdrew its prior opinion in the case and filed a new opinion, which also affirmed the district court’s ruling denying qualified immunity to an employed cardiologist and to an administrator of a county-owned hospital.

 

Foster v. Jennie Stuart Med. Ctr., Inc. (Summary)

WRONGFUL TERMINATION

Foster v. Jennie Stuart Med. Ctr., Inc., Nos. 2011-CA-001136-MR, 2011-CA-001137-MR (Ky. Ct. App. Sept. 20, 2013)

The Court of Appeals of Kentucky affirmed in part and reversed in part a summary judgment order against two nurses after they had brought suit against a medical center for wrongful termination, defamation, and the denial of termination appeal rights. The medical center stated that it had terminated the nurses’ employment because “it was in the best interests of the institution.” The nurses believed that they had been fired because the medical center suspected that they were the authors of an anonymous email sent to the state nursing board which reported nursing practices at the medical center that were outside the scope of acceptable standards and an unsafe hospital environment.

The court dismissed one of the nurse’s claims for unlawful retaliation in violation of a state law, as the law does not allow protection for someone who is not the whistleblower and, in this case, the nurse was not the actual whistleblower. The court, however, held that the nurse could maintain a claim for wrongful termination, reasoning that the elements of the common-law wrongful termination were met if the nurse was discharged because it was believed that she sent the anonymous email; this would violate the stated public policy to ensure safe health care facilities.

The court ordered further review by the lower court of the nurses’ claim that the medical center refused to comply with the nurses’ employee appeal rights. After the nurses were terminated, their access to the medical center’s computer network was also terminated, and they could not access the online version of the employee manual.  The nurses also claimed that the medical center would not provide them with paper copies of the appeal procedure.

Russo v. New York Presbyterian Hosp. (Summary)

WRONGFUL TERMINATION/SEXUAL HARASSMENT

Russo v. New York Presbyterian Hosp., No. 09-CV-5334 MKB (E.D. N.Y. Sept. 23, 2013)

The U.S. District Court for the Eastern District of New York granted a hospital’s motion for summary judgment as to a former employee’s hostile work environment and retaliation claims. The employee, a perfusionist at the hospital, had been terminated for leaving the OR before a patient’s surgery was completed.

Over the years, based upon a series of interactions with a particular surgeon, the perfusionist complained that the surgeon treated her inappropriately because of her gender and that she felt harassed by him.  Following a particular incident with this surgeon in the OR, the employee filed a formal written complaint with the hospital, stating that she felt harassed.  The perfusionist did not, however, explicitly state sexual harassment, though she claimed she had raised this concern in a conversation with a hospital administrator.

The court held that the employee failed to sufficiently establish a federal Title VII hostile work environment claim because she could not show that her interactions with the surgeon were objectively severe or pervasive and that she was treated differently because of her gender.  The court determined that a reasonable jury could not find that the employee was treated less well than other employees because of her gender since the surgeon’s behavior was directed at the entire OR staff, which consisted of both genders.   The court reached the same conclusion as to the state hostile work environment claims because they are analyzed under the same standard as Title VII hostile work environment claims.

The court also dismissed the employee’s retaliation claims, finding that the employee could not establish that she was retaliated against because she engaged in protected activity. The court found that no reasonable jury could find that the employee was terminated because of her formal complaint against the surgeon since the hospital had legitimate reasons for terminating the employee:  (i) the employee had left the hospital before a surgery was complete, (ii) she had been warned and disciplined for similar behavior before, and (iii) the hospital came to its termination conclusion before the employee filed her written complaint with a hospital administrator.

Harper v. Hippensteel (Summary)

PHYSICIAN LIABILITY

Harper v. Hippensteel, No. 42A04-1302-MI-95 (Ind. Ct. App. Sept. 25, 2013)

The Court of Appeals of Indiana affirmed a lower court’s decision of granting summary judgment in favor of a physician, finding that the physician did not owe a duty to a deceased patient as there was no physician-patient relationship between them. The patient’s estate filed a complaint against the physician alleging that he was negligent in providing medical care and treatment to the patient, resulting in the patient’s death. The patient had received all of his medical care and treatment from a nurse practitioner who had entered into a collaborative practice agreement (“CPA”) with the physician, in which the physician had agreed to be available to the nurse practitioner for consultation. The CPA explicitly stated that it was not intended to serve as a substitute for the nurse practitioner’s independent clinical judgment, nor did this arrangement increase the physician’s liability for decisions made by the nurse practitioner.

The court held that in medical malpractice cases, a duty arises from a physician-patient relationship and that the physician in question “did not perform any affirmative act with regard to [the patient],” and thus a physician-patient relationship was lacking. Upon examining state law and the terms of the CPA, the court further concluded that the physician did not owe a duty to the deceased patient as he had not entered into a physician-patient relationship with the patient, entitling the physician to summary judgment.

Bronitsky v. Bladen Healthcare, LLC (Summary)

WRONGFUL EMPLOYMENT TERMINATION

Bronitsky v. Bladen Healthcare, LLC, No. 7:12-CV-147-BO (E.D. N.C. Sept. 20, 2013)

The U.S. District Court for the Eastern Division of North Carolina granted a healthcare company’s motion for summary judgment on claims brought by a formerly employed OB/GYN physician for age discrimination, gender discrimination, breach of contract, defamation, and failure to pay wages.  The court found that the physician failed to present facts to oppose the company’s motion and attempted to rely only on inadmissible hearsay.  The court also found that the physician did not present sufficient evidence to show that he was involuntarily terminated.

Love v. Permanente Med. Group (Summary)

WRONGFUL TERMINATION/RETALIATION

Love v. Permanente Med. Group, No. 12-cv-05679-WHO (N.D. Cal. Sept. 18, 2013)

The United States District Court for the Northern District of California granted in part and denied in part defendant hospital, health plan and medical group’s motion to dismiss a former employee’s wrongful termination action for alleged retaliation.

A colleague had warned the employee that a patient wanted to murder her, after which the employee requested that the defendants obtain a restraining order on her behalf against the patient.  But the defendants did not do so.  The employee repeatedly complained to the defendants about the failure to provide a safe work environment.  She was later disciplined for allegations relating to the patient who had threatened her and then for violating employment policies and professional duties to other patients.  Finally, she was terminated without an offer to have a hearing on her termination.

The court found that the employee failed to adequately plead that her complaints about the defendants’ failure to protect her fell within the protection of a state law that prohibits retaliation and discrimination against employees of health care facilities if they complained about the quality of care, services, or conditions at the facility.  The court reasoned that, rather than complaining about the defendants’ failure to protect her, the employee should have alleged that her complaints were about patient care and safety and workplace conditions.

The court denied the defendants’ motion to dismiss the claim for the employee’s wrongful termination of hospital privileges, finding that her hospital privileges were revoked and she was terminated without notice or a hearing.  As the employee was not even informed that she had a right to a hearing, she was not required to obtain a writ of mandamus before instituting this action.

Mir v. Deck (Summary)

CIVIL RIGHTS/RICO

Mir v. Deck, No. SACV 12-1629-RGK (SH) (C.D. Cal. Sept. 11, 2013)

The United States District Court for the Central District of California granted hospital defendants’ motions to dismiss a physician’s complaint for civil rights violations, defamation, RICO violations, intentional interference with prospective economic advantage, intentional infliction of emotional distress and malicious prosecution.

The hospital terminated the physician’s clinical privileges in 2000 after he performed a series of surgeries on a woman that ultimately led to an above-the-knee amputation due to gangrene.  The court held that the physician’s claims were time-barred by the applicable statute of limitations, since he became aware of the injury in 2000, when his privileges were terminated.  California has a two-year statute of limitations for personal injury actions, which does not apply retroactively to claims that accrued before January 1, 2003.  By the time the physician had filed his original complaint in 2012, the applicable statute of limitations had already expired.  Also, there is a four-year statute of limitations on bringing civil RICO claims, which begins accruing once the plaintiff has either actual or constructive notice of the injury.

• Order
• Report & Recommendation

U.S. ex rel. Akl v. Va. Hosp. Ctr. – Arlington Health Sys. (Summary)

QUI TAM

U.S. ex rel. Akl v. Va. Hosp. Ctr. – Arlington Health Sys., No. 12-03 (EGS) (D. D.C. Sept. 16, 2013)

The United States District Court for the District of Columbia dismissed a qui tam action brought by a physician against a hospital, holding that the action was substantially related to the physician’s other lawsuits against the hospital, which had already been decided.  The court stated that the physician’s prior lawsuits, in which he claimed that he was subject to a sham peer review and had his clinical privileges wrongfully revoked, were substantially similar to the qui tam action, since all alleged that the hospital engaged in an improper peer review process, failed to abide by its own policy, and filed false reports with the NPDB.

Disability Rights North Carolina v. Moses H. Cone Mem’l. Hosp. Operating Corp. (Summary)

PEER REVIEW DOCUMENTS

Disability Rights North Carolina v. Moses H. Cone Mem’l. Hosp. Operating Corp., No. 1:11CV812 (M.D. N.C. Sept. 11, 2013)

The United States District Court for the Middle District of North Carolina granted the motion of an entity serving as the state’s protection and advocacy group for individuals with disabilities, holding that there was no issue of material fact regarding the entity’s statutory authority to access a deceased patient’s records during an investigation, and required a hospital to provide the records to the entity.

The entity had probable cause to believe that the deceased patient had been abused or neglected while in the hospital and started an investigation.  During the investigation, the hospital refused to provide all the documents requested by the entity.  The court, ruling that the hospital was required to provide the documents, stated that the entity had sufficiently demonstrated that it was entitled to access the patient’s records because of its investigative authority and its designation as the state’s protection and advocacy group.

The court also held that providing the documents to the entity was not a waiver of the peer review privilege because the hospital was required to turn the documents over as part of the investigation.  The court also denied the hospital’s request for a protective order, stating that it would unnecessarily burden the entity’s function as the state’s protection and advocacy group and that the group would be bound by federal laws regarding the maintenance and confidentiality of records, so there was no reason to further limit it with a protective order.

Okun v. Montefiore Med. Ctr. (Summary)

ERISA

Okun v. Montefiore Med. Ctr., No. 11 Civ. 9615 (PGG) (S.D. N.Y. Sept. 10, 2013)

The United States District Court for the Southern District of New York dismissed a case brought by a doctor against his previous employer, a medical center, for violations of ERISA after failing to offer the doctor severance payments.  The court found that severance payments did not qualify as an employee welfare benefit plan under ERISA, which the doctor would be entitled to, because no exercise of managerial discretion was involved and the medical center did not have an ongoing commitment to provide the payments.

In its explanation, the court said that the ongoing commitment factor weighed against a finding that the severance policy was an ERISA plan because the medical center had the right to change, modify, or discontinue the severance policy at any time, with or without notice.