Genova v. Banner Health (Summary)

EMTALA

Genova v. Banner Health, No. 12-1314 (10th Cir. Aug. 20, 2013)

The United States Court of Appeals for the Tenth Circuit ruled that a physician could not state a claim under the Emergency Medical Treatment and Active Labor Act (“EMTALA”) against a hospital after his services were discontinued following his complaints about overcrowding in the hospital’s emergency room.  The court noted that although EMTALA allows suits by individuals directly harmed by or retaliated against for reporting a failure of the hospital to stabilize, examine, or transfer a patient, the doctor instead complained about the hospital’s emergency room taking too many patients, the complete inverse of an EMTALA violation.

The physician’s argument that he was entitled to bring suit because he reported an impending EMTALA violation failed, as the statute only allows suits pertaining to existing violations and patient dumping, not alleged patient “hoarding.” Finally, the physician waived any right to his state claims in contract and tort because he had signed a separate agreement with the hospital releasing those claims.

Love v. The Permanente Med. Grp. (Summary)

PEER REVIEW PRIVILEGE

Love v. The Permanente Med. Grp., No. C-12-05679 DMR (N.D. Cal. Aug. 15, 2013)

The United States District Court for the Northern District of California granted a chemical dependency therapist’s motion to compel a hospital to respond to discovery requests because federal privilege law, not the California peer review privilege, applied to the therapist’s request for documents relating to her credentials and privileges.  Also, documents regarding the therapist’s supervisor were not confidential and all documents relating to the therapist’s performance in the hospital were relevant to her claim that she was terminated without just cause in breach of her collective bargaining agreement.

Barrash v. Am. Ass’n of Neurological Surgeons, Inc. (Summary)

COMMERCIAL DISPARAGEMENT

Barrash v. Am. Ass’n of Neurological Surgeons, Inc., Civ. Action No. 4:13-cv-1054 (S.D. Tex. Aug. 13, 2013)

The United States District Court for the Southern District of Texas granted an Illinois nonprofit corporation’s motion to dismiss an association member’s claims of tortious interference with prospective business relations and economic advantage and breach of the corporation’s bylaws, finding that the member failed to allege falsity or malice, elements which are necessary to satisfy a commercial disparagement claim, when the corporation published the member’s notice of censure for violating the corporation’s Rules on Expert Opinion Services on its website.

Also, the court dismissed the member’s breach of contract claim because, based on Texas law, judicial intervention was inappropriate when dealing with the internal affairs of a private association and members of the association subject themselves, within legal limits, to the association’s power to administer and make rules.

Follow-up opinion: 

Barrash v. Am. Ass’n of Neurological Surgeons, Inc., No. 4:13-cv-1054 (S.D. Tex. Jan. 31, 2014), in which the United States District Court for the Southern District of Texas granted in part and denied in part the Defendant’s motion to dismiss Counts I and II of the Plaintiff’s Amended Complaint.

Malempati v. Indep. Inpatient Physicians, Inc. (Summary)

UNJUST ENRICHMENT

Malempati v. Indep. Inpatient Physicians, Inc., No. 12AP-565 (Ohio Ct. App. Aug. 15, 2013)

The Court of Appeals of Ohio ruled that a private practice was not entitled to damages based on its counterclaim asserting unjust enrichment against a former employee.  The court found that the private practice, through its owner, made a promise to pay the employee bonus payments contingent upon the employee obtaining tail coverage that benefitted the practice.  The court also found that the former employee reasonably and foreseeably relied on the practice’s promise to pay her the bonus payments.  Further, the court found that the former employee was injured as a result of the practice’s failure to perform its promise to pay the bonus payments.  The court concluded that the practice did not establish the elements of unjust enrichment.

Dall v. St. Catherine of Siena Med. Ctr. (Summary)

SEXUAL HARASSMENT

Dall v. St. Catherine of Siena Med. Ctr., No. 11-CV-0444 (E.D. N.Y. Aug. 14, 2013)

The United States District Court for the Eastern District of New York denied a hospital’s motion for summary judgment on a gender discrimination claim filed by a formerly employed male MRI technician.  The court found that because the female nurse who accused the technician of sexual harassment was engaged in sexually inappropriate conduct herself and violated the medical center’s Sexual Harassment Policy, but was not disciplined, a jury could find gender discrimination.

However, the court dismissed the technician’s hostile work environment claim, finding that the technician could not establish that the inappropriate sexual conduct in the environment was gender-based. As for the technician’s retaliation claims under Title VII of the Civil Rights Act and New York State Human Rights Law, although the technician was terminated soon after he filed his own sexual harassment claim against the female nurse, he may still have been terminated after the medical center’s investigation into the complaint against him for alleged sexual harassment.

Casillas-Sanchez v. Ryder Mem’l Hosp., Inc. (Summary)

VICARIOUS LIABILITY

Casillas-Sanchez v. Ryder Mem’l Hosp., Inc., Civil No. 11-2092 (FAB) (D. P.R. Aug. 15, 2013)

The United States District Court for the District of Puerto Rico ruled that a hospital could be vicariously liable for the alleged negligence and malpractice of a non-employed emergency department physician.

The court noted that Puerto Rico law holds hospitals liable for a doctor’s negligence when the patient seeks treatment from the hospital rather than the individual physician, regardless of the doctor’s employment relationship with the hospital.  The court found that the decedent had entrusted her health to the hospital, not the doctor, and the hospital provided the negligent doctor as a treating physician.  Thus, the hospital may be held jointly and severally liable for the doctor’s negligence even though the doctor was not an employee of the hospital, but rather had privileges to practice there.

Shurb v. Univ. of Tex. Health Sci. Ctr. at Houston-School of Med. (Summary)

DISABILITY DISCRIMINATION – MEDICAL SCHOOL

Shurb v. Univ. of Tex. Health Sci. Ctr. at Houston-School of Med., No. 4:13-CV-271 (S.D. Tex. Aug. 13, 2013)

The United States District Court for the Southern District of Texas granted in part and denied in part a state university medical school’s motion to dismiss discrimination claims brought by a medical student who suffered from obsessive-compulsive disorder, major depressive disorder, severe anxiety, panic attacks, and a history of migraines.  The medical student alleged several violations of the Americans with Disabilities Act and the Rehabilitation Act.

The court dismissed all the state tort and breach of contract claims, holding that the medical school was immune from liability based on the Eleventh Amendment.  The court allowed the ADA claim to continue, stating that the student properly demonstrated that he had a disability that required accommodation and that some professors refused to grant those accommodations.

The district court also allowed the due process claims to stand, holding that the student supported his claims that he was subject to a number of unreasonable conditions upon his return to medical school following a medical leave of absence, including the demand that he provide full access to his medical records and psychiatrists’ notes. The court allowed the student’s request for reinstatement to the medical school to stand, holding that the Eleventh Amendment barred only monetary damages.

Pisharodi v. Andrews (Summary)

MEDICAL STAFF HEARING – INJUNCTIVE RELIEF

Pisharodi v. Andrews, No. 13-13-00027-CV (Tex. App. Aug. 8, 2013)

The Court of Appeals of Texas affirmed the denial of a physician’s request for a temporary restraining order (“TRO”) and temporary injunction against a hospital CEO individually and in her professional capacity, finding that the physician failed to provide any evidence of a probable, imminent and irreparable injury if the relief was not granted while he awaited a hearing regarding discipline, suspension, or termination.

The physician had asked the hospital’s medical executive committee to review the care provided by another physician at the hospital; however, as a result of that review, the medical executive committee made an adverse recommendation involving the plaintiff’s appointment and privileges.  The physician requested a fair hearing and then less than two weeks prior to the start of the hearing, sought an injunction in order to prepare.  While the lower court initially granted the TRO, it was later dissolved, which the appellate court found to be appropriate.

Manion v. Spectrum Healthcare Resources (Summary)

RETALIATORY TERMINATION – FEDERAL CONTRACTOR

Manion v. Spectrum Healthcare Resources, No. 7:12-CV-247-BO (E.D. N.C. Aug. 6, 2013)

The United States District Court for the Eastern District of North Carolina denied a health care contracting company’s motion to dismiss an employed psychiatrist’s claims of illegal reprisal for protected disclosures under the Defense Contractor Whistleblower Protection Act (“DCWPA”).

The psychiatrist, who was employed by a contracting service to provide psychiatric treatment to severely injured sailors and marines returning from combat duty, was terminated after he filed complaints with Congress and the OIG about the lack of protocols for managing psychotic, suicidal and homicidal patients, as well as chronic under-staffing in a Navy hospital.  The psychiatrist sued both the health care contracting company and the secondary company that it had assigned his contract to in order to monitor his employment.  The health care contracting company claimed that the psychiatrist had no standing to sue under the DCWPA because he was not an employee civilian defense contractor, but rather an independent contractor of the secondary company under a personal services contract with the Navy.

The court resolved the issue of whether the psychiatrist was entitled to whistleblower protection under the DCWPA by pointing out that a similarly remedial statute, the False Claims Act, favored a broader definition of the term “employee” to protect the government from fraud.

In re Higby (Summary)

PEER REVIEW PRIVILEGE

In re Higby, No. 01-11-00946-CV (Tex. App. Aug. 13, 2013)

The Court of Appeals of Texas granted a relator’s petition for writ of mandamus, finding that the American College of Obstetrics and Gynecology’s (“ACOG”) Grievance Committee, which reviews allegations made about physician fellows who are members of the group, falls within the purview of the medical peer review committee statute, and, thus, the relator’s communications that had been made to the committee were privileged.  The underlying matter involved two physicians – one a maternal-fetal medicine specialist and one an obstetrician-gynecologist – who had served as experts in a malpractice case, one on behalf of the plaintiff mother and the other on behalf of the defendant obstetrician.

After reviewing the reports completed by the obstetrician-gynecologist expert, the maternal-fetal medicine physician filed a complaint with the ACOG Grievance Committee alleging that the reports were full of false and misleading statements.  As a result, the obstetrician-gynecologist expert sued the maternal-fetal medicine physician for defamation.  At a deposition, the maternal-fetal medicine physician refused to answer several questions about his complaint claiming that the information sought was protected by the state peer review privilege because the Grievance Committee was a “medical peer review committee.”

The court looked to the state medical peer review statute for the definition of “medical peer review committee” and found that it defines such a committee as one which is “authorized to evaluate the quality of medical and health care services…[and] the competence of physicians….” As such, the court reasoned that providing expert testimony and opinions clearly implicates the competence of the physician, thus suggesting that the Grievance Committee is a peer review committee and that the maternal-fetal medicine physician’s communications to the committee were privileged.