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.

Murtagh v. St. Mary’s Reg’l Health Ctr. (Summary)

DUE PROCESS/ DEFAMATION

Murtagh v. St. Mary’s Reg’l Health Ctr., No. 1:12-CV-00160-NT (D. Me. Sept. 23, 2013)

The United States District Court for the District of Maine granted in part and denied in part a medical center’s motion to dismiss a physician’s claims of breach of contract, defamation and wrongful termination. The physician was hired as a locum tenens physician for a three-month position, but was terminated after only three weeks, pursuant to the contract between the medical center and its staffing agency which provided the medical center authority to remove from assignment any physician whose performance is reasonably found to be unacceptable for reasons of professional competence or personal conduct.  The medical center later gave a reference indicating that the physician had been terminated for unsatisfactory performance.

The district court rejected the physician’s argument that he was entitled to due process before being terminated from the medical staff since the bylaws provide such process for permanent physicians and, as a locum tenens, he was standing in the shoes of a permanent physician.  The court noted that the bylaws specifically stated that due process rights were not available to those who lose temporary privileges and dismissed the breach of contract claim.  The court also rejected the physician’s argument that he was a third party beneficiary of the contract between the medical center and the staffing agency and was entitled to some sort of notice prior to termination.  That contract specifically stated the procedures for the medical center to remove a physician from placement at the medical center and merely required notice to be given to the staffing agency, not the physician.

The court did not dismiss all of the physician’s claims.  First, the court held that the physician’s defamation claim would survive the motion to dismiss because the physician alleged sufficient facts to support such a claim (that a negative reference, which would tend to harm his professional reputation and was false, was published to third parties).  The court also allowed the physician’s claim for violation of a state employment practices statute to move forward, finding a question of fact existed as to whether the physician was an independent contractor or employee pursuant to state law (regardless of the fact that the contract stated that he was an independent contractor).

Robinson v. St. John Med. Ctr., Inc. (Summary)

RETALIATORY DISCHARGE

Robinson v. St. John Med. Ctr., Inc., No. 12-CV-109-JED-FHM (N.D. Okla. Sept. 25, 2013)

The United States District Court for the Northern District of Oklahoma denied a hospital’s motion to dismiss a nurse’s public policy tort claim, which alleged that she was terminated for complaining about improper medical care given to a patient. The nurse, who was also the RN case manager, noticed that a patient who had been admitted for sickle cell anemia was in great pain and was not being provided the minimum treatment.  This prompted her to report her concerns to the hospital’s resident physicians and her supervisor, who told her to stop managing the case.  Within a week or two, the nurse was terminated, with the explanation that she was terminated for undermining a physician.

She sued for discrimination pursuant to §1981, Title VII and the state antidiscrimination statute and also alleged a public policy tort (an exception to the at-will employment doctrine in cases where termination is contrary to a clear mandate of public policy as articulated in the constitution, a statute, or judicial law, the “public policy tort” provides a tort claim for an employee who is discharged for refusing to act in violation of an established and well-defined public policy or for performing an act that is consistent with a clear and compelling public policy).  The hospital sought dismissal only of the public policy tort, arguing that the nurse did not establish a clear mandate of public policy which was implicated in her termination.  The court disagreed, noting that the nurse cited nursing regulations which required proper care to be provided to patients and alleged that she was terminated for performing acts consistent with those regulations.  Those allegations were sufficient to allow the claim to move forward.

Royal Mile Co., Inc., v. UPMC (Summary)

ANTITRUST MONOPOLIZATION

Royal Mile Co., Inc., v. UPMC, No. 10-1609 (W.D. Pa. Sept. 27, 2013)

The U.S. District for the Western District of Pennsylvania dismissed the second amended complaint brought by several companies against a health care provider and health care insurer who were alleged to have conspired in violation of federal antitrust law to maintain their respective monopolies in Western Pennsylvania, thereby causing the companies to pay inflated premiums for health care coverage.

The companies alleged that the conspiracy between the provider and insurer allowed the provider to impose “monopoly rents” on the market by overcharging the insurer, knowing that the insurer would abuse its monopoly status and pass on excessive “monopoly rents” to its subscribers, the companies here. As such, the conspiracy forced policyholders, such as the companies that brought this lawsuit, to pay inflated, above-market rates for health insurance that would not exist but for the conspiracy.

The court found that the filed rate doctrine – which bars antitrust suits based on rates that have been filed and approved by federal and state agencies – barred the companies’ claims.  The court held specifically that a determination by the state insurance department that the rates charged by the insurer were not excessive, inadequate, or unfairly discriminatory is not subject to review by the court, nor can the court select a hypothetical rate that the department would have approved for the insurer in the absence of the conspiracy.  Accordingly, due to the filed rate doctrine, the companies would be unable to allege an estimated measure of damages, which is an essential element of a Sherman Act antitrust claim.

Finally, the court held that the companies’ claim for tortious interference with existing or prospective contractual relations was time-barred because failing to disclose the conspiracy between the provider and insurer was not sufficient to establish an affirmative independent act of concealment to toll the statute of limitations.

U.S. ex rel. Jones v. Univ. of Utah Health Scis. Ctr. (Summary)

FALSE CLAIMS ACT

U.S. ex rel. Jones v. Univ. of Utah Health Scis. Ctr., No. 2:11cv1200 (D. Utah Sept. 24, 2013)

The United States District Court for the District of Utah granted in part a hospital’s motion to dismiss, allowing the relator leave to amend the complaint to name as a defendant a state hospital employed physician in his individual capacity.

Parents of a patient brought a False Claims Act (“FCA”) claim against a state-run hospital after their daughter underwent three surgeries to repair her tendon and suffered postoperative complications. The parents alleged that the claims for their daughter’s surgeries were fraudulent because all of their daughter’s postoperative care was performed by a resident even though the surgical procedures (the fees for which included all post-operative care) were billed to Medicare and Medicaid under the guise of having been provided by the supervising physician.

The parents’ original complaint named as defendants the hospital and the supervising physician in his official capacity.  The court held that the claims against the hospital could not survive dismissal because they were state entities and, in turn, were not “persons” under the FCA.  Further, the supervising physician, while acting in his official capacity, would be standing in the state’s shoes and, in turn, could not be sued under the FCA.

However, the court went on to grant leave to the parents to amend their complaint to name as a defendant the supervising physician in his individual capacity. In doing so, the court rejected the physician’s argument that an FCA claim can only be maintained against a state actor who acts outside the scope of his official duties.  The court noted that allowing all state officials to the immune from suit under the FCA would be contrary to public policy.  Further, there is nothing in the FCA which provides an exception for state employees; the statute merely states that it applies to any person who submits a false claim or causes such a claim to be submitted.

Cahill v. Franciscan Health Sys. (Summary)

PRACTITIONER HEALTH/ DISABILITY DISCRIMINATION

Cahill v. Franciscan Health Sys., No. C12-5829 BHS (W.D. Wash. Sept. 27, 2013)

The United States District Court for the Western District of Washington denied a physician’s motion for a preliminary injunction. The physician applied for privileges on the hospital medical staff, but was informed that her application could not be completed until she finished her contract (related to the physician’s alcoholism) with the state physicians’ health program.  The hospital claimed that its VPMA had a phone call with the physician, during which she withdrew her application, while the physician claimed that she never withdrew her application and instead was “denied” privileges – resulting in her being unable to obtain another job or privileges.

In refusing to grant an injunction, the court first noted that the physician seemed to be seeking some sort of relief that the court had no power to grant (to have the application process deemed invalid and for the parties to go on as if nothing had ever happened).  The court also noted that there was a genuine issue of fact as to whether or not the physician withdrew her application. And, finally, though the physician claimed that she was prohibited from seeking other lucrative opportunities as a result of the hospital’s conduct, she admitted that she received substantial income in 2011 and 2012.