Cosby v. Vicksburg Healthcare, LLC (Summary)

TITLE VII AND ADEA

Cosby v. Vicksburg Healthcare, LLC, No. 5:11cv159-KS-MTP (S.D. Miss. May 16, 2013)

The United States District Court for the Southern District of Mississippi granted summary judgment in favor of a hospital in a lawsuit brought by a formerly employed 51-year-old, African-American phlebotomist alleging, among other things, age and race discrimination.  The hospital terminated the phlebotomist for accessing another employee’s medical records in violation of the Health Insurance Portability and Accountability Act (“HIPAA”) and not admitting the unauthorized access when confronted by her supervisors.  The phlebotomist sued, claiming, among other things, race discrimination under Title VII and age discrimination under the Age Discrimination in Employment Act (“ADEA”).

The district court held that the phlebotomist failed to show that the hospital discriminated against her based on race or age. Applying the McDonnell Douglas burden shifting approach to claims of discrimination, the court found that the phlebotomist did not rebut the hospital’s legitimate non-discriminatory reason for her termination.  That is, the hospital assertion that it terminated the phlebotomist because she violated HIPAA and because she refused to admit the violation even though there was documentation showing otherwise.  The district court also rejected the phlebotomist’s claims of retaliation under the ADEA, Title VII, and the Family and Medical Leave Act (“FMLA”).  According to the court, the ADEA and Title VII retaliation claims failed because the phlebotomist admitted during deposition testimony that she never complained about discrimination before her termination. Likewise, her FMLA retaliation claim failed because it was unclear whether she was actually opposing an employment practice made unlawful by the FMLA.

The court also granted summary judgment on all of the phlebotomist’s state law claims. The court rejected her breach of contract claim because she was an at-will employee with no employment contract and, thus, under state law, the hospital could terminate her employment at any time.  The court held that her intentional infliction of emotional distress claim was time-barred because she filed the claim outside the statute of limitations.

In re Methodist Dallas Med. Ctr. (Summary)

PEER REVIEW PROTECTION (INCIDENT REPORTS)

In re Methodist Dallas Med. Ctr., No. 05-13-00134-CV (Tex. App. May 9, 2013)

The Court of Appeals of Texas granted conditional relief to a hospital to protect documents that were subject to the medical committee privilege (the term used in pertinent Texas law). A visitor brought suit against the hospital after she slipped and fell on the premises. The hospital filled out an occurrence report immediately after the incident. The visitor claimed that this report was not subject to medical committee privilege and must be produced.

The appellate court held that the report was in fact subject to privilege and did not need to be produced.  The court stated that the employee who fills out the form is directed not to retain a copy and not to give the report to anyone other than risk management.  The hospital’s quality review committee receives these reports and investigates all incidents, even those involving visitors.  The reports and investigative materials used by the committee are confidential and do not become part of hospital public records.  The court rejected the visitor’s argument that the privilege did not apply because the case involved a non-patient.  State law dictates that the privilege is not limited to direct patient care.  The document was not prepared during the regular course of business and is therefore subject to the medical committee privilege.

Woody v. Covenant Health (Summary)

AGE DISCRIMINATION

Woody v. Covenant Health, No. 3:11-cv-62 (E.D. Tenn. May 8, 2013)

In this employment discrimination case, the U.S. District Court for the Eastern District of Tennessee granted in part and denied in part a medical center’s motion for summary judgment.  The motion concerned a nurse who had brought suit against the medical center, claiming that she was discriminated against based on her age. The nurse was one of four shift leaders who were told that the position of shift leader was changing, and that they would all have to reapply for the shift leader positions.  During that process, it was rumored that the nurse’s position would be given to a younger nurse, highlighted by the nursing supervisor’s flyers indicating that she was looking for “young rising stars.” The nurse lost her shift leader position to a younger individual, but maintained a job as a registered nurse in the medical center.

The district court held that the nurse had brought enough evidence of age discrimination to survive a motion of summary judgment.  The nurse’s supervisor advertised the position as one for “young rising stars,” and told the interview team that she was looking for a younger nurse to fill the position. Even though the supervisor was not a decision-maker in the hiring process, her influence on the interview team was material.  The court rejected the medical center’s argument that the nurse simply changed roles and did not go through a job change.  The court stated that the loss of title, prestige and salary that came with losing the shift leader position were all indications of a potentially discriminatory job change.  The court determined that summary judgment was inappropriate because it was possible that a reasonable jury could find that the nurse was discriminated against during the reapplication process.

The district court granted the medical center’s motion in regards to punitive damages.  The court stated that punitive damages are not normally recoverable in age discrimination cases.

Roger v. Corvel Healthcare Corp. (Summary)

CONTRACT BREACH

Roger v. Corvel Healthcare Corp., No. G045935 (Cal. Ct. App. May 16, 2013)  

The Court of Appeal for the Fourth District of California affirmed a lower court’s order in favor of a medical provider network as to an orthopedic surgeon’s breach of contract claim.  The surgeon joined a medical provider network that specialized in workers’ compensation injuries. The surgeon commonly used four nonstandard treatments for his patients, none of which were recommended by the medical treatment schedule of the state workers’ compensation division. In order to circumvent this issue, the surgeon began upcoding his patients to similar tests that were approved by the state, even though the unapproved procedure was in fact being performed. The surgeon was often unreachable to discuss his patient care with independent physicians, often refusing to return calls unless explicitly requested. The physician was eventually terminated after refusing to comply with his contract.

The appellate court held that the network had ample ground to terminate the surgeon’s contract. The court stated that, while the surgeon’s contract did not require him to compromise his judgment, it did lay out a procedure for physicians who may want to utilize treatments not approved by the state. The surgeon did not follow any of these procedures which, according to the court, inflicted administrative costs on the network that it did not have to bear under its contract.

The appellate court also affirmed the process of termination, even though the network failed to follow the “three offenses” termination procedure.  The court held that the termination process itself was not a cause of the surgeon’s decline in business. Based on the surgeon’s refusal to follow the network’s guidelines, his termination was inevitable regardless of the process.

Shenoy v. Charlotte-Mecklenburg Hosp. Auth. (Summary)

INTERFERENCE WITH CONTRACT

Shenoy v. Charlotte-Mecklenburg Hosp. Auth., No. 12-1786 (4th Cir. May 13, 2013)

A pathologist brought suit against a hospital after he was terminated by his medical group.  This followed after the hospital, pursuant to the hospital’s contract with the group, had requested the pathologist be removed from hospital practice.  The hospital’s action was the result of the pathologist’s loud outburst at a committee meeting in which he accused hospital administration of systematic failures.  The pathologist claimed that the hospital’s actions were a violation of his First Amendment rights, interfered with his medical group contract, and were taken in retaliation for a False Claims Act (“FCA”) action he had filed.  The United States Court of Appeals for the Fourth Circuit affirmed the lower court’s grant of summary judgment in favor of the hospital on all counts.

As for the First Amendment claim, the circuit court held that as the pathologist’s comments were made pursuant to his official duties as chair of the quality improvement committee, they were unprotected by the First Amendment.  The circuit court rejected the pathologist’s argument that since his committee position was voluntary and unpaid, it could not be part of his official duties.

The circuit court also rejected the pathologist’s claim that the hospital interfered with his group contract, leading to his termination.  The court stated that, under the hospital’s contract with the group, the hospital had the absolute right to request the pathologist’s removal.  The group had also tried to assign the pathologist to another setting, but the pathologist was unwilling to accept that reassignment.

The circuit court also held that there was no link between the pathologist’s FCA claim and the pathologist’s termination. Neither the group nor the hospital was aware of the filing, and the filing had occurred nearly three years before his termination.

Leon v. Watsonville Hosp. Corp. (Summary)

EMERGENCY DEPARTMENT

Leon v. Watsonville Hosp. Corp., No. H037288 (Ca. Ct. App. May 9, 2013)

The Court of Appeal for the Sixth District of California affirmed a lower court’s grant of summary judgment in favor of a hospital.  A couple brought suit against the hospital for, among many claims, breach of contract and breach of the implied covenant of good faith and fair dealing, after being billed for multiple visits to the emergency room.  The emergency room physicians who treated the couple were not hospital employees but were part of the group that had a contract with the hospital.  The emergency room physicians were non-participating providers under the couple’s health insurance.  The couple claimed that the hospital had a duty to warn them that the physicians in the emergency room were not participating providers under their health plan or had a duty to ensure that only participating providers staffed the emergency room.

The appellate court affirmed the trial court’s decision regarding the breach of contract claim, stating that the Conditions of Admission and Consent for Medical Treatment (“COA”) forms signed by the patient made a specific distinction between physicians who were hospital-employed personnel from those who simply treat patients at the hospital.  One paragraph specifically states that some services may be performed by independent contractors who are not hospital personnel.  The court also rejected the couple’s argument that the consent forms contained a promise that physicians would only charge regular rates.

The appellate court also upheld the lower court’s decision regarding the breach of the implied covenant of good faith and fair dealing.  The court stated that the implied covenant cannot impose upon the contracting parties – the patient and the hospital by the COA – additional duties that were not in the terms of the contract.  As the COA was unambiguous as to its terms, did not require the hospital to ensure that the physicians accept the couple’s health insurance or contain a promise to ensure that the physicians charged regular rates, the implied covenant could not be used to impose such a duty.

Cintron v. St. Joseph’s Hosp. (Summary)

SUMMARY JUDGMENT

Cintron v. St. Joseph’s Hosp., No. 2D12-494 (Fla. Dist. Ct. App. May 3, 2013)

The District Court of Appeal of Florida reversed a trial court’s grant of summary judgment in favor of a hospital.  A family brought suit against the hospital after its staff refused to treat their daughter for an asthma attack on two occasions.  The appellate court held that the grant of summary judgment was inappropriate because the hospital’s motion for summary judgment did not address the theory of the complaint: “Although the short complaint is not a model pleading, it obviously seeks to hold the hospital liable for the statutory violations committed by the hospital’s employees in the course and scope of their employment.”  The trial court never resolved the issue of whether or not the hospital can be liable for the actions of its employees, so the grant of summary judgment was reversed.

Barson v. Md. Bd. of Physicians (Summary)

LICENSURE ACTION – ENFORCEMENT OF CONSENT ORDER

Barson v. Md. Bd. of Physicians, No. 2673, Sept. Term, 2011 (Md. Ct. Spec. App. May 3, 2013)

The Court of Special Appeals of Maryland affirmed a lower court’s dismissal of an anesthesiologist’s petition for judicial review. The board of medicine began investigating the anesthesiologist after reports that she was sending prescriptions for painkillers through the mail without conducting appropriate examinations. The board issued an order suspending the physician’s license and declined to reinstate her at a hearing. Before proceeding to an evidentiary hearing, the board and the physician entered into a consent order in which the physician’s license remained suspended for 90 days and on probation for at least two years. After both parties had signed, the physician requested that the order be modified so that she might have access to DEA or CDS registration – she claimed that she was not aware these registrations would be forfeited upon signing the consent order.

The appellate court held that the lower court did not err in declining judicial review. The court stated that the anesthesiologist knowingly and voluntarily waived her rights to challenge the terms of the consent order. She agreed to the “no backsies” rule of the order and must be bound by it.

Dookeran v. Cnty. of Cook, Ill. (Summary)

DENIAL OF REAPPOINTMENT – FAILURE TO DISCLOSE PRIOR ACTION

CLAIM PRECLUSION

Dookeran v. Cnty. of Cook, Ill., No. 11-3197 (7^th Cir. May 3, 2013)

In this employment discrimination case, the United States Court of Appeals for the Seventh Circuit affirmed a federal district court’s grant of a motion to dismiss filed by the county. A surgeon filed suit against the county hospital after his application for reappointment was denied. The hospital began an investigation after the surgeon disclosed for the first time that he was reprimanded by his previous employer.  He certified on his earlier applications that he had not been reprimanded, when in fact he had received a formal reprimand for creating a hostile work environment and had been removed as director of surgical research and associate director of general surgery.  The Credentials Committee recommended that the surgeon’s reappointment be denied.  A hearing committee determined that he had falsified his prior reappointment application and recommended that his staff membership be suspended or revoked.  The MEC recommended only a 30-day suspension, but the joint conference committee voted to revoke his staff membership instead.  That recommendation was sent for final action to the Cook County Board, which formally denied the application.  The surgeon filed a petition for judicial review in the county court and then filed a charge of discrimination with the EEOC. The state court upheld the denial of reappointment.  The surgeon was then granted the right to sue by the EEOC.

The district court held that all of the surgeon’s claims were barred by claim preclusion.  The county court rendered a final judgment based on the same set of facts and including the same parties. Since the physician failed to raise the Title VII employment discrimination claims in the state court action, they were properly dismissed by claim preclusion.

Wayne Cnty. Hosp. v. Jakobson (Summary)

OSTENSIBLE AGENCY AND INDEMNIFICATION

Wayne Cnty. Hosp. v. Jakobson, Civil No. 09-44-GFVT (E.D. Ky. May 3, 2013)

The United States District Court for the Eastern District of Kentucky granted in part and denied in part a number of motions filed by a hospital.  The hospital brought suit against a physician for payment of damages paid to a patient.  The patient came to the radiology department for a mammogram, which was read as “normal/negative” by the physician, although a small mass was detected.  The next year, the mass had increased and the same physician determined that the mass was “abnormal,” leading to the diagnosis that the patient had Stage 1 cancer.  At trial, it was determined that the physician was negligent and that he was an ostensible agent of the hospital.  The hospital paid over $1 million in damages and sought indemnity from the physician.

The district court affirmed the ruling on vicarious liability for the physician’s negligence because there was no clear indication to the patient that the physician was not a hospital employee. It was reasonable for her to bring suit against both the hospital and the physician and for the trial court to hold that the physician was an ostensible agent of the hospital.

Even though the physician was an ostensible agent, the district court held that the negligence on the part of the hospital was passive, making an indemnity claim appropriate. The court stated that the negligence upon which the case was based were the mammogram readings by the physician, making him the actively negligent party. The district court rejected as irrelevant the physician’s argument that advertising or profiting from his services amounted to negligent misrepresentation. The court stated that the liability of the physician needed to be determined by a jury; if a jury found him negligent, the hospital would be entitled to indemnity.

The district court also granted the hospital’s motion to exclude one of the physician’s experts. The court stated that nothing in the expert’s report or testimony would be relevant in helping the jury understand the evidence. The expert’s report argued that an ostensible agency relationship existed between the parties and that the passive negligence of the hospital made it reasonable for the hospital to bear some of the burden of damages.  Since both of these issues were already decided by the court, the expert’s report and testimony were no longer necessary.