Budik v. Dartmouth-Hitchcock Med. Ctr. (Summary)

DUE PROCESS/EMPLOYMENT DISCRIMINATION

Budik v. Dartmouth-Hitchcock Med. Ctr., No. 12-329(RBW) (D. D.C. Apr. 5, 2013)

The United States District Court for the District of Columbia dismissed a lawsuit brought by a neuroradiologist against a hospital in New Hampshire and a retired army colonel alleging federal due process and employment discrimination violations as well as violation of certain army regulations.  The hospital defendant had ceased processing of the neuroradiologist’s application for medical staff appointment and clinical privileges after receiving a reference from the retired army colonel indicating that the plaintiff “had some problems with staff interactions” when she worked at Landstuhl Regional Army Medical Center.

The district court held that it did not have jurisdiction over the New Hampshire hospital, stating that the solicitation of business and employees from the D.C. area was not a sufficient enough link to warrant jurisdiction. Furthermore, the neuroradiologist failed to demonstrate that the hospital committed a tortious injury that required litigation in D.C.

The district court also held that the plaintiff’s claims against the retired army colonel were barred by the Federal Tort Claims Act.  Her constitutional claims were dismissed because she failed to show that she had a constitutionally protected property interest in her reputation or guarantee of employment at the defendant hospital.

OPIS Mgmt. Res. LLC v. Fla. Agency for Health Care Admin. (Summary)

HIPAA

OPIS Mgmt. Res. LLC v. Fla. Agency for Health Care Admin., No. 12-12593 (11th Cir. Apr. 9, 2013)

The United States Court of Appeals, Eleventh Circuit affirmed the lower court’s ruling that a Florida statute requiring nursing homes to release medical records to the spouse or attorney-in-fact of a deceased resident was preempted by the federal Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).

The suit was filed with the U.S. Department of Health and Human Services Office for Civil Rights (“OCR”) by spouses and attorneys-in-fact for deceased residents after several nursing homes refused to release the records because the parties requesting them were not “personal representatives” under HIPAA.  OCR concluded that the nursing homes’ actions were consistent with HIPAA.  Nonetheless, the Florida Agency for Health Care Administration fined the nursing facilities for violating Florida law by refusing to release the records.  The nursing homes filed a suit for declaratory judgment in federal district court seeking a ruling that HIPAA preempted the Florida law.  The district court issued the declaratory judgment and the Eleventh Circuit affirmed the district court’s ruling.  In doing so, the Eleventh Circuit observed that Florida law designating spouses and attorneys-in-fact as those who may demand access to a deceased resident’s medical records did not require that these individuals be acting “on behalf” of the resident to receive the medical records.  On the other hand, the HIPAA privacy regulations specifically required a personal representative to be acting on behalf of the deceased resident and that the protected health information to be released had to be relevant to such personal representation.  Based on this discrepancy, the court concluded that Florida law affords nursing home residents less protection than HIPAA and, thus, is preempted by HIPAA.

Colon-Ramos v. Clinica Santa Rosa, Inc. (Summary)

EMTALA

Colon-Ramos v. Clinica Santa Rosa, Inc., No. 12-1222 (JAF) (D. P.R. Apr. 10, 2013)

The United States District Court for the District of Puerto Rico granted a motion to dismiss an EMTALA suit brought against a hospital and others, including individual physicians and an insurance company, by the daughters of a patient who died after being examined in the hospital’s emergency room.  The plaintiffs claimed that the defendants violated the Emergency Medical Treatment and Active Labor Act (“EMTALA”) by failing to detect the patient’s acute coronary syndrome.  In granting the motion to dismiss, the court stated that “the clinic may have committed malpractice by failing to uncover an emergency condition, but such a failure to diagnose” does not violate EMTALA.  The court also noted that the non-hospital defendants could not be liable under EMTALA because EMTALA only applies to hospitals.  Lastly, the court noted that “[i]t is generally accepted that doctors are not liable under EMTALA.”

U.S. ex rel. Osheroff v. Healthspring, Inc. (Summary)

FALSE CLAIMS ACT

U.S. ex rel. Osheroff v. Healthspring, Inc., No. 3:10-1015 (M.D. Tenn. Apr. 5, 2013)

The United States District Court for the Middle District of Tennessee dismissed with prejudice a qui tam relator’s False Claims Act suit against a medical clinic and affiliated managed care organization.

The relator alleged that the medical clinic offered lavish inducements, such as free meals and rides in limousines, to encourage Medicare beneficiaries to patronize the clinic and enroll in Medicare Advantage plans offered by the affiliated managed care organization in violation of the federal Anti-Kickback and Anti-Inducement statutes.  The defendants filed a motion to dismiss, arguing that the court should reject the relator’s False Claims Act suit because the allegations in the relator’s complaint were substantially the same as allegations exposed by the Miami Herald and transactions found on the clinic’s website and thus were subject to the False Claims Act’s “public disclosure bar.”  The court agreed, noting that, to constitute a public disclosure bar to qui tam actions, publicly disclosed allegations “need only be sufficient to place the Government on notice about the possibility of fraud.”  The Miami Herald’s article and information on the clinic’s website did just that.  Moreover, the court ruled that the relator is not an original source of information under the False Claims Act because he does not have knowledge that is “independent of, and materially adds to, the publicly disclosed allegations or transactions.”

Love v. Permanente Med. Group (Summary)

HEALTH CARE WHISTLEBLOWER PROTECTION

Love v. Permanente Med. Group, No. 12-CV-05679 YGR (N.D. Cal. Apr. 5, 2013)

The United States District Court for the Northern District of California denied in part and granted in part a motion to dismiss several claims brought by a clinical social worker whose employment was terminated by the hospital defendant.

The social worker claimed that the hospital terminated her employment in violation of the state’s whistleblower protection law because she requested that the hospital obtain a restraining order on her behalf to protect her from a threatening patient. She also asserted claims for intentional interference with the right to practice her profession and intentional infliction of emotional distress.  The court dismissed the social worker’s retaliation claim under the whistleblower protection law, concluding that she failed to allege that she engaged in activity protected by the law.  The court also dismissed her intentional interference claims, holding that she did not allege that the defendants engaged in any conduct intended to prevent her from practicing her profession.  However, the court denied the defendants’ motion to dismiss with respect to the intentional infliction of emotional distress claim, concluding that whether defendants’ failure to obtain a restraining order from a patient who threatened to murder her and then retaliating against her for complaining was outrageous was an issue of fact that could not be resolved on a motion to dismiss. With respect to the claims that the court dismissed, the court gave the social worker 28 days to amend her complaint.

Cancel v. Sewell (Summary)

WRONGFUL TERMINATION

Cancel v. Sewell, Nos. A12A1950, et al. (Ga. Ct. App. Mar. 29, 2013)

Four anesthesiologists brought suit against their practice group after they were not selected for continued employment as part of a restructured anesthesiology department.  The anesthesiologists claimed that they were wrongfully terminated for reporting their concerns over fraudulent billing practices of their coworkers to both the practice group and the hospital involved. They filed suit against numerous individuals and entities.  And, as stated by the court:  “A barrage of summary judgment motions filed by the defendants challenged the plaintiff’s claims on various grounds.”

The appellate court ruled on the numerous decisions made by the lower court.  One principal outcome was that one of the lead plaintiffs could no longer be a part of the lawsuit, as both the lower and appellate court found against him in all rulings.  In addition, acting on the barrage of summary judgment rulings made by the lower court, the appellate court affirmed one, reversed in part the judgment of another, and also dismissed that case in part.

Tri-City Healthcare Dist. v. Young (Summary)

DISRUPTIVE PHYSICIAN

Tri-City Healthcare Dist. v. Young, Nos. D059573, et al. (Cal. Ct. App. Mar. 29, 2013)

The California Court of Appeal affirmed a lower court’s issuance of protective orders for four employees – including the CEO and in-house counsel – against a physician. The four employees had been harassed and threatened by the physician for over a year.  The physician would call the employees names and threaten the employees (and other employees in the hospital) with violence.

The court held that there was sufficient evidence to allow for the issuance of three-year restraining orders for all four individuals. The court determined that it was reasonable for the employees to fear for their safety based on the credible threats of violence that the physician had made against them.  The court directed that the physician could continue to participate in Board meetings, but only via conference call and e-mail.  He could no longer personally attend the meetings.

Zoellner v. St. Luke’s Reg’l Med. Ctr., Ltd. (Summary)

ANTITRUST

Zoellner v. St. Luke’s Reg’l Med. Ctr., Ltd., No. 1:11-cv-00382-EJL (D. Idaho Mar. 31, 2013)

The U.S. District Court for the District of Idaho granted in part and denied in part a hospital’s motion to dismiss an anesthesiologist’s suit alleging state and federal antitrust violations and state law tortious interference claims.  The anesthesiologist was allegedly forced to resign his employment with an anesthesiology group, which had an exclusive contract to provide anesthesia services at the hospital.  The anesthesiologist claimed that the hospital pressured the group to force his resignation because of his complaints that the neurosurgeons at the hospital were “scheduling surgeries at times that are not in the patients’ best interests.”

The hospital filed a motion to dismiss the anesthesiologist’s suit.  The court dismissed the anesthesiologist’s antitrust claims, concluding that he failed to allege “antitrust injury” through a showing of reduced competition in the market for anesthesiology services because of his alleged forced resignation.  The court also rejected the anesthesiologist’s state law intentional interference with contract claim because such claims are not recognized in Idaho when an employment contract can be terminated without cause, as was the case here.  However, the court allowed the anesthesiologist’s intentional interference with prospective economic advantage claim to go forward, finding that whether the hospital’s alleged interference with the anesthesiologist’s employment was “wrongful” was a question of fact that could not be resolved in a motion to dismiss.

U.S. ex rel. Hobbs v. MedQuest Assocs., Inc. (Summary)

FALSE CLAIMS ACT

U.S. ex rel. Hobbs v. MedQuest Assocs., Inc., No. 11-6520 (6^th Cir. Apr. 1, 2013)

In this False Claims Act case, the Sixth Circuit Court of Appeals reversed a lower court’s grant of summary judgment for the relators who had brought the action. An employee brought suit against a diagnostic testing company for Medicare fraud. The employee claimed that the company used supervising physicians who were not enrolled in Medicare and failed to enroll one of the company’s independent diagnostic testing facilities in Medicare and used another physician’s billing number.

The court held that the use of unapproved physicians did not constitute fraud. As for the supervision method used, the court stated that Medicare regulations require only that a physician be present in the office – the physician does not have to be in the room where the procedure is being performed. The court stated that the company provided this level of supervision, even though the physicians were not enrolled in the Medicare program. The court also noted that the False Claims Act does not govern this type of technical compliance with federal regulations.

The court also held that the failure to reregister the testing facility was not a legitimate claim under the False Claims Act. The court stated that this was nothing more than a failure to update enrollment information, which was not a violation of the conditions of payment. The federal government also failed to cite any regulation governing the diagnostic testing company’s conduct which showed wrongful action taken by the company under the Act.

U.S. ex rel. Keltner v. Lakeshore Med. Clinic, Ltd. (Summary)

FALSE CLAIMS ACT

U.S. ex rel. Keltner v. Lakeshore Med. Clinic, Ltd., No. 11-CV-00892 (E.D. Wis. Mar. 28, 2013)

The United States District Court for the Eastern District of Wisconsin granted in part and denied in part a multispecialty medical group’s motion to dismiss a False Claims Act suit under state and federal law brought by a former employee.  The former employee worked in the medical group’s billing department and alleged that the medical group violated the False Claims Act by, among other things, upcoding bills for evaluation and management services (“E/M services”) and submitting claims to Medicare with physicians’ stamped signatures.

The medical group filed a motion to dismiss.  With respect to the upcoding claims, the court denied the medical group’s motion, concluding that “[a]lthough [relator] does not allege that [the medical group] knew that specific requests for reimbursement for E/M services were false, she claims that [the medical group] ignored audits disclosing a high rate of up coding and ultimately eliminated audits altogether.”  Regarding the claim rooted in the use of stamped signatures, the court dismissed it, finding that “[t]he fact that [a physician] used a signature stamp does not mean that claims for payment for his services were fraudulent.”

Lastly, the court allowed the relator’s retaliation claim under the False Claims Act to go forward.  According to the court, the relator’s allegations that the medical group told her to stop “digg[ing] up problems,” required her to meet with a supervisor, and then discharged her in response to her reports of fraud were enough to suggest she had been fired because of the actions she took in furtherance of her False Claims Act suit.