Kowalski v. St. Francis Hosp. and Health Ctrs. (Summary)

NEGLIGENCE

Kowalski v. St. Francis Hosp. and Health Ctrs., 2013 N.Y. Slip Op. 04756 (N.Y. June 26, 2013)

The Court of Appeals of New York ruled that a hospital and an emergency room physician did not have a duty to prevent an intoxicated patient from leaving the hospital.

The patient had come to the hospital voluntarily and requested entry into the hospital’s detoxification facility.  While the patient had expressed suicidal thoughts in a prior visit to the hospital, one month earlier, he did not express such thoughts when he asked to enter the detoxification unit.  The patient later left the hospital and was killed when he was struck by a car.

The court ruled that there was no statute or regulation that authorized the hospital to prevent the patient from leaving.  Thus, the hospital had no authority to restrain the patient.  The hospital had no duty to confine the patient for having suicidal thoughts a month prior to the event, nor did the physician involved have a duty to call the police.  If the hospital restrained the visitor, it may have been exposed to liability for false imprisonment.

O’Connor v. Jordan Hosp. (Summary)

EMTALA

O’Connor v. Jordan Hosp., No. 10-11416-MBB (D. Mass. June 17, 2013)

The United States District Court for the District of Massachusetts ruled that a jury should decide whether a hospital terminated a nurse in retaliation for reporting an EMTALA violation or, alternatively, because of concerns about her performance.  Accordingly, the court denied the hospital’s motion for summary judgment.

The nurse claimed that the hospital terminated her in retaliation for reporting EMTALA violations in her capacity as variance manager for the hospital.  The court found that the nurse “reported” an EMTALA violation to her supervisors by bringing a complaint from another hospital to her supervisors’ attention and by preparing a letter to be sent to CMS.  Further, the court noted that the nurse’s subsequent termination was an adverse employment action.  The court ruled that a jury should determine whether her termination was in retaliation for her “reporting” the EMTALA violation or, as the hospital claimed, was based on ongoing concerns with her performance.  Thus, the hospital’s motion for summary judgment was denied on the EMTALA claim.

The court used similar reasoning in deciding that a jury should decide if the hospital retaliated against the nurse in violation of the Massachusetts Healthcare Provider Whistleblower Statute.

Graves v. Kovacs (Summary)

TORTIOUS INTERFERENCE WITH CONTRACT

Graves v. Kovacs, No. 49A05-1301-PL-1 (Ind. Ct. App. June 18, 2013)

The Court of Appeals of Indiana ruled that a complaint filed by a cardiologist did not have to explicitly mention the words “tortious interference with a contract” in order to state a cause of action against two physicians who he claimed played a role in the revocation of his clinical privileges at a hospital. The allegations of the complaint were sufficient to state a cause of action, even if the cause of action was mislabeled.

Butt v. Iowa Bd. of Med. (Summary)

MEDICAL LICENSURE ACTIONS

Butt v. Iowa Bd. of Med., No. 12-1118 (Iowa Ct. App. June 12, 2013)

The Court of Appeals of Iowa affirmed in part and reversed in part a state medical board’s conclusion that a cardiologist engaged in unprofessional behavior by engaging in a pattern of sexual harassment, holding that the record supported the board’s findings.  The board had testimony from nurses and telephone records that supported the claims that the cardiologist had made numerous unwanted telephone calls to a nurse’s cell phone, made threatening comments to a second nurse, and made offensive comments in a joking manner to a third staff member.  However, the court held that the application of the rule prohibiting unprofessional and unethical conduct was unconstitutionally vague in connection with certain of the allegations against the physician.  The court noted that the medical board’s charge against the physician had been that he had made numerous “harassing” phone calls; however, at the end of his hearing, the board concluded that he had made numerous “unwanted” phone calls to the nurse.  According to the court, an unwanted telephone call was too subjective of a standard because it could only be “determined by the ears of the recipient,” and in this case, the physician claimed the calls were made to apologize to the nurse, not to threaten her.  The court could determine no reasonable interpretation of unwanted telephone call that would give a physician fair warning that such conduct was prohibited.  Other portions of the medical board’s holding were upheld and, as such, the case was remanded to the state medical board to determine a more appropriate disciplinary action.

Nathan v. Ohio State Univ. (Summary)

FEDERAL DISCRIMINATION/PROVISION OF DOCUMENTS

Nathan v. Ohio State Univ., No. 2:10-cv-872 (S.D. Ohio June 14, 2013)

The United States District Court for the Southern District of Ohio denied a university-affiliated hospital’s motion for reconsideration of an order to compel the provision of protected documents, finding that the university had continuously failed to produce all performance-related documents pertinent to an anesthesiologist’s termination after being compelled by the court to do so.  In the underlying case, a female anesthesiologist sued the university alleging that her termination was discriminatory.  The university disagreed, claiming it was legitimately based on a number of significant performance deficiencies involving her interpersonal relationships and disruption of hospital operations.  In order to show that her termination was pretextual, the anesthesiologist sought all performance-related documentation for the other anesthesiologists practicing at the hospital, which the court upheld with an order to compel.  Initially, the university refused to comply at all, arguing that the request was burdensome and overbroad, then the university only provided those documents in the possession of the department chair, that the chair had actually relied upon in his performance evaluations of other anesthesiologists.  In this third review of the order to compel, the court determined that the order needed no further clarification and that the university simply refused to construe the term “performance-related” in a commonsense manner and refused to complete a reasonable inquiry in locating the relevant documents.

Miller v. Huron Reg’l Med. Ctr. Inc. (Summary)

NATIONAL PRACTITIONER DATA BANK

Miller v. Huron Reg’l Med. Ctr. Inc., No. CIV 12-4138 (D. S.D. June 13, 2013)

The United States District Court for the District of South Dakota left pending a physician’s motion to compel a hospital to provide a copy of an external review obtained by the hospital’s insurer that involved the physician’s care of a specific patient, holding that whether the hospital had to provide her with a copy of the review depended upon whether the hospital reported the physician to the National Practitioner Data Bank or took other adverse action on the physician’s appointment or privileges on the basis of the care rendered to that patient.  The court reasoned that if the hospital had filed a report with the NPDB or took other adverse action against the physician in reliance on the external review, she should be provided with a copy of the review in order to satisfy the “fair procedures” portion of the Health Care Quality Improvement Act.  Alternatively, if a report was not made to the NPDB and no other adverse action was taken in reliance on the review, then the hospital did not have to produce the review and the physician would be left to her own resources to subpoena the report.  Interestingly, language in the opinion indicated that the court viewed a report to the NPDB itself to be an adverse action, which could be problematic in cases in which hospitals are required to report surrenders of clinical privileges while under investigation or in order to avoid a professional review action – reporting obligations triggered by the action of the affected physician rather than action by a medical executive committee and/or a board.

Wagner v. Ohio State Univ. Med. Ctr. (Summary)

PHYSICIAN EMPLOYMENT

Wagner v. Ohio State Univ. Med. Ctr., No. 12AP-399 (Ohio Ct. App. June 13, 2013)

The Court of Appeals of Ohio affirmed a lower court’s grant of summary judgment in favor of a medical center, holding that the medical center was not liable for a patient’s injury because the injury suffered was not foreseeable and the physician who had caused it had acted outside his scope of employment.  A patient sued the medical center after a pain management physician who had been employed by the medical center came to the patient’s home and began siphoning medication from the patient’s pain pump for his own personal use.  The physician had been dealing with a substance abuse problem for several years and the medical center had recently terminated his employment following the suspension of his medical license.  The physician had made regular visits to the patient’s home, under the guise of doing pain management research, and would remove medication from the patient’s pain pump, causing him to suffer from an infection and other complications.  The medical center discovered what the physician was doing after he diverted pain medication from a second patient’s pump and that patient notified the medical center.  The medical center alerted law enforcement and sent a notice to all pain clinic patients that the physician was no longer affiliated with the medical center.  The court held that no special relationship existed in this case that would have required the medical center to protect this particular patient above all others.  The medical center never approved the research the physician claimed to be conducting.  Furthermore, the risk of pain pump theft was not apparent to the medical center until it started occurring at the second patient’s home, and it was immediately after that discovery that the medical center took reasonable steps to protect additional patients.  The court also considered the medical center’s steps of limiting the physician’s access to drugs and patients even while he still had a partial faculty appointment at the medical center, determining that they were reasonable as well.

Alloush v. Physician Cardiovascular Venture, LLC (Summary)

CONTRACT DISPUTE

Alloush v. Physician Cardiovascular Venture, LLC, No. 2011-T-0112 (Ohio Ct. App. June 10, 2013)

The Court of Appeals of Ohio reversed and remanded a lower court’s grant of summary judgment in favor of a cardiologist, holding that a jury must decide whether the cardiologist actually retired from the practice of medicine before the court can determine whether there was a material breach of the operating agreement governing his practice with a limited liability corporation (“LLC”).  The cardiologist at issue had purchased membership units in an LLC that owned and operated cardiac catheterization labs, the terms of which were controlled by an operating agreement.  One of the terms of the operating agreement required all members to maintain appointment and clinical privileges at a local hospital.  After the cardiologist resigned from the staff of the hospital, the LLC determined that the cardiologist’s resignation violated the terms of the operating agreement and thus his interest in the entity was paid out at a punitive rate per the terms of the agreement.  However, the cardiologist claimed that he had not just resigned from the hospital, but had retired from the practice of medicine altogether, which should be considered a “triggering event” under the agreement which would give him a payout at a much higher rate.  The lower court had determined that the cardiologist had not breached the agreement and that the LLC should have purchased his units pursuant to the higher formula amount.  The appellate court disagreed, finding that whether he had actually retired was a question of fact especially considering that he had taken affirmative steps to maintain his medical license and had written prescriptions for various family members following the date of his alleged retirement.

Univ. of Tex. Sw. Med. Ctr. v. Nassar (Summary)

FEDERAL DISCRIMINATION/RETALIATION

Univ. of Tex. Sw. Med. Ctr. v. Nassar, No. 12-484 (U.S. June 24, 2013)

The U.S. Supreme Court vacated a lower court judgment and remanded a case involving a physician who alleged Title VII retaliation claims, holding that such claims must be proven according to the principles of but-for causation rather than the lessened motivating-factor test used in Title VII discrimination claims.  The physician, who was of Middle Eastern descent, had been a faculty member at a university and claimed that the university-affiliated medical center rescinded a job offer as retaliation for his allegations that a supervisor had engaged in racially and religiously motivated harassment.  Those allegations had been detailed in the letter he submitted resigning his faculty position at the university.  The lower courts found in favor of the physician, concluding that the physician had met the motivating-factor test (as used in Title VII discrimination claims) which only required that individuals alleging a Title VII retaliation claim show that the retaliation was only one motivating factor for the adverse action.  The Supreme Court examined the federal Age Discrimination in Employment Act of 1967 (“ADEA”) and case law and found there to be no difference between that body of law and Title VII claims, concluding that like the ADEA, Title VII retaliation claims require plaintiffs to establish a heightened degree of proof, showing that the retaliation was the “but-for” cause of the employment action.  The Court added that this standard would strike a balance in protecting the rights of both employees and employers, especially as the frequency of retaliation claims increases.

Knapp Med. Ctr., Inc. v. Grass (Summary)

RIGHT TO KNOW LAW

Knapp Med. Ctr., Inc. v. Grass, No. 13-12-00099-CV (Tex. App. June 6, 2013)

The Court of Appeals of Texas (“appellate court”) reversed a lower court’s judgment and held that a medical center was exempt from a state’s disclosure requirements. The disclosures were sought by an attorney who requested a number of documents, including a copy of the medical center’s bylaws and federal tax returns. The medical center claimed that it was not required to comply with this requirement based on an exemption to the state disclosure law that exempted any entity that did not solicit contributions from the public in excess of $10,000.

The appellate court held that medical center was exempt from the disclosure requirement.  While an affiliated foundation was formed for the sole purpose of soliciting funds from the public and providing financial support to the hospital, the court ruled that the foundation was a separate entity from the medical center.  The fact that the foundation then made grants to the medical center did not affect the medical center’s exemption from the financial disclosure law.

Dissenting Opinion