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.

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.