Gaskill III v. VHS San Antonio Partners LLC (Summary)

HCQIA – NO CAUSE OF ACTION

Gaskill III v. VHS San Antonio Partners LLC, No. SA-13-CV-665-XR (W.D. Tex. Sept. 6, 2013)

The United States District Court for the Western District of Texas dismissed a physician’s lawsuit against a hospital that arose after the hospital suspended the physician’s privileges based on quality concerns.  The physician sued the hospital in federal court, asserting his lawsuit was based on violations of the federal Health Care Quality Improvement Act (“HCQIA”).  However, the district court found that the HCQIA creates no private cause of action.  As such, the remaining allegations in the physician’s complaint were all state law claims, which were outside the federal district court’s jurisdiction.

Vraney v. Med. Specialty Clinic, P.C. (Summary)

BREACH OF CONTRACT

Vraney v. Med. Specialty Clinic, P.C., No. W2012-02144-COA-R3-CV (Tenn. Ct. App. Sept. 9, 2013)

A contract dispute between a physician and a clinic was allowed to proceed after the Court of Appeals of Tennessee reversed a lower court’s grant of summary judgment in favor of the clinic.   The clinic had successfully argued its breach of contract and duty of loyalty claims against the physician, who, allegedly, among other things, limited his hours in violation of his “full-time” employment, incorporated a competing practice, and withheld his accounts receivable from the clinic, all while still employed.

Nevertheless, the appeals court found that there was a question of fact as to whether the clinic may have breached its contract with the physician first, either through constructive discharge or by disseminating erroneous information to the physician’s patients, thereby excusing the physician from performing his obligations under the contract.

The appeals court did uphold the trial court’s denial of the physician’s claim for unpaid vacation time, as the employment agreement specifically stated that unused vacation time could not be carried over to succeeding years and the clinic would not pay for time not taken.

Khdrlaryan v. Olympia Med. Ctr. (Summary)

WRONGFUL TERMINATION AND DEFAMATION

Khdrlaryan v. Olympia Med. Ctr., No. B243321 (Cal. Ct. App. Sept. 9, 2013)

The Court of Appeal of California affirmed a lower court’s grant of summary judgment in favor of a medical center, holding that a respiratory therapist’s claims of wrongful termination and defamation were dismissed without error. The court stated that the therapist’s wrongful termination claim did not properly allege that she raised any complaints about workplace safety. She could provide no evidence of instances in which she voiced her workplace safety concerns to coworkers or supervisors. With no issue of fact on which to base the wrongful termination claim, the appellate court held that the issue was properly dismissed by the trial court.

The appellate court also granted summary judgment on the defamation claim. The therapist admitted in her written statement that she briefly left a patient’s area before another respiratory therapist had arrived to replace her. This admission left no issue of fact as to the truth of the defamation statements. The appellate court held that the trial court properly ruled in favor of the medical center on this issue.

Hagen v. Siouxland Obstetrics & Gynecology, P.C. – Aug. 2013 (Summary)

TERMINATION OF EMPLOYMENT – PUBLIC POLICY

Hagen v. Siouxland Obstetrics & Gynecology, P.C., No. C 11-4047-MWB (N.D. Iowa Aug. 29, 2013)

An obstetrician who was on call provided obstetrical services to a woman who was suffering from infections related to a prior liver transplant.  The on-call physician spoke to the woman’s regular OB, but the regular OB thought the woman was at another hospital and did not come into treat her.

When the on-call physician got to the hospital, he found that the baby had died.  When the physician asked the nurses how long the baby had been dead, they could not tell him.  The physician became upset and accused the nurses of doing nothing to help the unborn child and of causing the death.  The physician then told the parents that the nurses missed something.  The physician also went directly to the hospital and told the hospital what he had told to the nurses and reported the nurses and the regular OB to the Board of Medicine.  He also told the patient that she was mistreated and should get an attorney.

The on-call physician was given a ten-day suspension, but did not discipline the nurses or the regular OB.  Within days, while he was out of town, he was told he needed to come to a meeting that night and he was being fired.  He subsequently sued in federal court claiming, among other things, that his employer retaliated against him in violation of public policy.  After a jury trial, the jury found in the physician’s favor and awarded him over $1 million in damages.

In order to determine whether the United States District Court for the Northern District of Iowa should uphold the jury verdict, the district court recognized that the wrongful discharge issues raised by the physician were issues of first impression of state law that needed to be decided by the Iowa Supreme Court.  The district court noted that other state courts are split on these issues of wrongful discharge, further highlighting the importance of certification to the Iowa Supreme Court.  As a result, the district court certified a number of questions to the Iowa Supreme Court and will not issue a ruling on the employer’s post-trial motion until it receives this guidance from the State Supreme Court.

Patel v. Saint Vincent Health Ctr. (Summary)

FMLA

Patel v. Saint Vincent Health Ctr., No. 12-0298 ERIE (W.D. Pa. Aug. 28, 2013)

During the second year of her residency program, a resident was placed on notice of her academic deficiencies.  Subsequently, the resident requested FMLA leave in order to treat a heart condition.  This leave was granted and the resident acknowledged that she would be terminated if she did not return to work when the leave expired.  The resident requested an extension to her leave, which the residency program said would be granted if her treating physician would provide the program with an order for the extension.  The resident failed to obtain the order from her treating physician and she was terminated due to her unauthorized leave of absence.  The resident sued the residency program alleging that her termination violated the FMLA and requested that the court order the residency program to reinstate her.  The United States District Court for the Western District of Pennsylvania denied the resident’s request.  The court held that the resident failed to establish interference with her FMLA rights because she did not properly request, and was not entitled to, the extended leave.

Stevens v. Saint Elizabeth Med. Ctr., Inc. (Summary)

SEX DISCRIMINATION

Stevens v. Saint Elizabeth Med. Ctr., Inc., No. 12-5243 (6th Cir. Aug. 29, 2013)

The United States Court of Appeals for the Sixth Circuit affirmed the grant of summary judgment in favor of a medical center for claims of, among others, sexual harassment, gender discrimination and retaliatory discharge under Title VII and the Kentucky Civil Rights Act, brought by a nurse, who was terminated because of her romantic relationship with the CEO of the Physician Group.  The court found that, although inappropriate actions occurred in the workplace, the CEO’s relationship with the nurse did not create a hostile work environment such that it unreasonably interfered with her work performance.

The nurse’s retaliatory discharge claims also failed because not only was the CEO also terminated, but he had no control over her discharge.  The court found that the medical center offered legitimate non-discriminatory reasons for her termination, including her in-office sex and the ongoing office disruption resulting from the relationship.

Hickman v. Catholic Health Initiatives (Summary)

PEER REVIEW IMMUNITY

Hickman v. Catholic Health Initiatives, No. 13CA0939 (Colo. Ct. App. Aug. 29, 2013)

Beginning in 1989, Colorado hospitals have been statutorily immune from damages in any civil action brought against the hospital due to a peer review decision.  On July 1, 2012, the law granting immunity was nullified by a new law.  The question before the Colorado Court of Appeals was which law applied when a credentialing decision and alleged injury occurred before the July 1, 2012 effective date of the new statute, but a negligent credentialing claim was not filed against the hospital until after that date.  The Colorado Court of Appeals rejected the hospital’s assertion of immunity holding that the current state statute, which nullifies the immunity with regard to credentialing decisions, applied retroactively.  The court found that the language of the current statute shows the General Assembly’s intent to apply the new statute retroactively and the retroactive application did not impair the hospital’s vested rights.  The court could not conclude that the retroactive application of the current state statute imposed a constitutional disability.  The court further held that the current statute is remedial, finding that the old statute did not provide immunity from suit but immunity from damages and that the hospital’s statutory immunity is not a vested right or liability.

U.S. ex rel. Ketroser v. Mayo Found. — Sep. 2013 (Summary)

FALSE CLAIMS ACT, QUI TAM

U.S. ex rel. Ketroser v. Mayo Found.
No. 12-3206 (8th Cir. Sept. 4, 2013)

A plaintiff’s attorney and three others filed a False Claims Act case based on information learned during discovery in a malpractice case, claiming that the hospital system billed Medicare for surgical pathology services it did not provide.  The United States Court of Appeals for the Eighth Circuit dismissed four relators’ qui tam action, holding that the billing codes applicable to the hospital system’s claims do not require written reports for surgical pathology services.  The court found that neither the Medicare regulations nor the American Medical Association Codebook require physicians using the CPT codes for surgical pathology services to prepare additional written reports, the kind which the relators claim the hospital system fraudulently failed to provide.

U.S., et al. v. Kaiser Found. Health Plan, Inc. (Summary)

FALSE CLAIMS ACT

U.S., et al. v. Kaiser Found. Health Plan, Inc., No. 12-cv-03896-WHO (N.D. Cal. Aug. 28, 2013)

An ambulance company claimed that Kaiser Health Plan’s refusal to pay an ambulance service for transporting Kaiser ESRD patients to and from dialysis treatments and instead required the ambulance company to seek reimbursement from Medi-Cal violated the False Claims Act.  The ambulance service also alleged that after its representative complained to Kaiser about this practice, Kaiser retaliated against the transport service by refusing to pay for services rendered and by excluding the ambulance company from bidding to provide future services.

The United States District Court for the Northern District of California granted in part and denied in part Kaiser’s motion to dismiss and motion to strike.  The district court dismissed the False Claims Act claim, holding that the medical transport services provider inadequately pled the FCA claim by failing to identify the law, rule or regulation the health plan undertook to comply with that “is implicated in submitting a claim for payment.”  The medical transport services provider also failed to identify what claims the health plan submitted that were “impliedly” false.  However, the ambulance company was given the opportunity to amend its complaint.

The court dismissed with prejudice the ambulance company’s state health and safety code claim finding that the law covers only patients and employees, whereas the provider is an entity, not “any other health care worker.”  Kaiser’s motion to dismiss the ambulance company’s unfair competition law claims was granted in part and denied in part and the court will also permit the ambulance company the opportunity to amend its state unfair competition law count.

Guinn v. Mount Carmel Health (Summary)

CIVIL RIGHTS

Guinn v. Mount Carmel Health, No. 2:09-cv-229 (S.D. Ohio Aug. 29, 2013)

A non-employed African-American cardiologist sued a hospital and others due to the summary suspension and subsequent non-renewal of his electrophysiology privileges.  The United States District Court for the Southern District of Ohio granted the hospital’s motion for summary judgment on the physician’s employment discrimination claims based on the fact that he was not an employee of any of the defendants.  However, the court will permit the cardiologist to attempt to prove a discrimination claim under both state and federal law based on:  (i) the existence of a contractual relationship with the hospital; (ii) that a similarly situated medical staff member who was a non-minority was treated more favorably; and (iii) other non-minority physicians were given notice of investigations and were given the opportunity to address the committee, while the cardiologist was not.

The court dismissed the cardiologist’s claims of defamation and tortious interference against the hospital because the hospital qualified for HCQIA immunity.  However, the court also ruled that the physician who initiated the investigation was not entitled to immunity.  The court held that the initiating physician allegedly reported information that was false, and a reasonable jury might conclude that his action fell outside of peer review protection.  The court also allowed the cardiologist’s defamation claim against this physician to stand, stating that a reasonable jury may find that the initiating physician’s alleged statements were not made in good faith.