Ali v. Calumet Med. Ctr., Inc. — Sept. 2013 (Summary)

EMPLOYMENT DISCRIMINATION

Ali v. Calumet Med. Ctr., Inc.
No. 13-C-0766 (E.D. Wis. Sept. 23, 2013)

The United States District Court for the Eastern District of Wisconsin granted in part and denied in part a hospital’s motion to dismiss a physician’s claims for racial discrimination, invasion of privacy, and breach of contract.

The physician, a Pakistani national, claimed that he was treated differently than similarly situated white employees while employed by the hospital. The physician alleged that upon joining the hospital staff, he was given $20,000 in loan forgiveness and a $10,000 signing bonus and was told that that was the maximum amount allowed; however, white medical providers were given $100,000 for loan forgiveness and a $50,000 signing bonus. He also claimed that he was required to work more days than white providers. He asserts that he was terminated in part because of his complaints to the leadership and that white providers were not terminated for their complaints.

The court allowed the physician’s §1981 discrimination claim to proceed, finding that the physician had sufficiently pleaded that he was treated differently than white medical providers in various conditions of employment by identifying the decision-makers who had discriminated against him and identifying the instances. The court also found that the physician had alleged sufficient facts to state a claim for breach of contract against the hospital because the alleged facts raise the inference that the reason the physician was fired, for complaining about hospital procedures, was not a sufficient basis to terminate his contract. Furthermore, he was not provided the required 90-day notice. The court rejected the physician’s invasion of privacy claim, reasoning that the physician was speculating about what was done with information that he was seeing a psychiatrist because the physician admitted he had no knowledge regarding the facts.

Moelleken v. Jones (Summary)

PRIVILEGES THAT CROSS SPECIALTY LINES

Moelleken v. Jones, 2d Civil No. B242545 (Cal. Ct. App. Oct. 1, 2013)

The Court of Appeal of California refused to grant a new trial for a physician and his medical group in a lawsuit they brought against a hospital that decided not to establish a specific call panel for emergency room patients needing spinal surgery, thereby leaving those patients to be treated by the trauma call physicians (neurosurgeons) and excluding the possibility that those patients would be referred to orthopedic spine surgeons.

The physician (an orthopedic spine surgeon) and his group alleged that the hospital and neurosurgery group unlawfully conspired to restrain trade in violation of the antitrust laws and engaged in unfair business practices under state law.  At trial, the jury returned a verdict in favor of the hospital and neurosurgeons on the antitrust claims and the judge rendered a verdict in favor of the hospital and neurosurgeons on the unfair business practice claim.  The physician and group appealed, arguing that the court inappropriately excluded testimony of two of their witnesses and failed to address improper statements made by a juror and by the hospital’s counsel.

The appellate court upheld the trial court’s procedural conclusions and affirmed the decision not to grant a new trial. Perhaps more importantly, in reciting the facts of the case, the appellate court noted the many steps taken by the hospital to decide whether to create a spinal call panel, including refusing to blindly follow an orthopedic department vote to allow orthopedic spine surgeons to participate in a call panel for spinal patients, establishing a task force not controlled by orthopedic surgeons or neurosurgeons to decide whether a separate call panel would be appropriate, and disregarding the neurosurgeons’ threats to renegotiate their call agreement if orthopedic surgeons were added to the call list.  These are exactly the type of procedures we recommend when managing clinical privileges that cross specialty lines.  Learn how to manage tough clinical privileging like this at The Complete Course for Medical Staff Leaders or The Credentialing Clinic.

Hosp. & Healthsystem Ass’n of Pa. v. Commonwealth of Pa. (Summary)

GOVERNMENT MALPRACTICE FUND

Hosp. & Healthsystem Ass’n of Pa. v. Commonwealth of Pa., Nos. 20 MAP 2010, 21 MAP 2010 (Pa. Sept. 26, 2013)

The Supreme Court of Pennsylvania, in determining the constitutionality of legislation, Act 50 of the Fiscal Code, which mandated a one-time transfer of money from the Medical Care Availability and Reduction of Error (“MCARE”) Fund to the Pennsylvania General Fund, held that legislative bodies have the authority to control special funds to serve the changing needs of the government, specifically when surplus monies continue in the fund after the accomplishment of its purposes.  Whether the transfer of money here represented such a surplus in the MCARE Fund at the time Act 50 was passed had yet to be determined.

In this case, the MCARE Fund, although labeled a “special fund” requiring providers to pay substantial monetary assessments and providing a secondary layer of liability coverage to providers, was a trust fund in nature whose monies were held to satisfy judgments against the health care providers such that the providers retained a vested entitlement to have the money utilized in the manner directed by the MCARE Act. Therefore, although the amendment to the Fiscal Code transferring $100 million from the MCARE Fund to the General Fund implicated the providers’ due process rights, the question of the legislation’s constitutionality required further factual development.

• Majority Opinion
• Dissenting Opinion
• Dissenting Opinion

Glunk v. Greenwald (Summary)

STATE BOARD OF MEDICINE

Glunk v. Greenwald, No. 2052 C.D.2012 (Pa. Commw. Ct. Sept. 19, 2013)

The Pennsylvania Commonwealth Court reversed in part a lower court’s dismissal of a physician’s claims against an attorney who worked for the state’s Board of Medicine. The physician claimed that the attorney used his resources and access to confidential peer review information as counsel to the Board to assist a family with a medical malpractice suit against the physician and help the family oppose the physician’s bankruptcy petition. (The malpractice suit involved the same case being reviewed by the state Board of Medicine.)  A lower court held that the attorney’s assistance was part of his official duties as a state attorney; therefore, the physician’s suit was barred by sovereign immunity.

The commonwealth court reversed in part, holding that the facts pled indicated that some of the attorney’s actions involved actions taken outside of his official capacity. The court stated that providing confidential and privileged information to the family was not the type of service the attorney was hired to perform for the state Board.

Lipka v. Advantage Health Grp., Inc. (Summary)

FALSE CLAIMS ACT/QUI TAM ACTIONS

Lipka v. Advantage Health Grp., Inc., No. 13-CV-2223 (D. Kan. Sept. 20, 2013)

The nursing director of an assisted living center (“ALC”) filed suit against the ALC and others alleging that the ALC unlawfully fired her in violation of the whistleblower protections of the federal False Claims Act (“FCA”).  The U.S. District Court for the District of Kansas granted in part and denied in part the ALC’s motion to dismiss the case.

The nursing director notified the ALC’s administration that the ALC had to obtain a federal regulatory waiver in order for ALC staff to obtain blood samples from residents by use of finger sticks to be tested via glucometer.  The nursing director stated that she had informed administration that the waiver would cost $150, and that administration had rejected the need for a waiver.  The nursing director informed administration that she had previously filed an FCA lawsuit against a former employer over the same waiver issue.  The ALC fired the nursing director four days later.

The district court held that the nursing director had sufficiently stated facts that supported a claim of FCA whistleblower protection against retaliation. She had engaged in a protected activity, acted in a sufficient manner with the administration to raise the inference that she was investigating matters that could reasonably lead to a viable FCA case, and alleged facts that created a reasonable inference that a causal connection existed between her alleged protected activity and the ALC’s determination to fire her four days later.

Accordingly, the court rejected the ALC’s motion to dismiss the case, but did allow for the dismissal of certain individuals as defendants.

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.