Kahn v. Arizona Med. Bd (Summary)

MEDICAL BOARD ACTION

Kahn v. Arizona Med. Bd., No. 1 CA-CV 12-0267 (Ariz.Ct.App. Mar. 26, 2013)

The Court of Appeals of Arizona affirmed a lower court’s decision to uphold a letter of reprimand issued by a state medical board. The medical board’s investigation of a family practitioner revealed that his failure to meet the applicable standard of care caused harm to one of his patients. The medical board voted unanimously to issue a letter of reprimand, but the physician argued that the medical board was not authorized to vote because one of its members was missing and that the testimony offered at the meeting was inappropriate.

The appellate court held that the medical board was authorized to hold a vote, even though one member was missing. State law requires a minimum of seven members be present, and the unanimous vote was conducted by 11 members. This exceeded the majority vote required by law. Further, the appellate court also held that the expert testimony was appropriate, even if there was a difference in expertise between the expert and the physician. State law requires that expert witnesses be members of the same field as the accused only during actions for medical malpractice. The board’s disciplinary proceedings were not an action for medical malpractice and did not have to abide by the law. The court also noted that a professional regulatory board may rely on its own expertise to establish the standard of care. It is assumed that a board of professionals has knowledge of the standard of care and does not require the extensive knowledge of an expert to make a decision.

U.S. ex rel. v. Health Mgmt. Assocs., Inc. (Summary)

FALSE CLAIMS ACT/QUI TAM LAWSUIT

U.S. ex rel. v. Health Mgmt. Assocs., Inc., No. 2:11-cv-89-FtM-29DNF (M.D. Fla. Mar. 19, 2013)

In this false claims case, the United States District Court for the Middle District of Florida granted a motion to dismiss filed by a hospital operator and its subsidiary hospital. The federal government brought suit against the hospital after an employee raised concerns about Medicare and Medicaid fraud. The employee claimed that the hospital engaged in various kickback schemes, including overpayment for call coverage and using the corporate jet to fly physicians to a high profile golf tournament, in order to entice physicians to refer patients to its facilities.

The district court dismissed all of the employee’s claims, stating that none of the claims were specific enough to survive a motion to dismiss. The employee failed to demonstrate a link between the golf tournament and any false claims that the government may have paid. The employee’s complaint also failed to identify specific patients who were referred by the surgeons who allegedly were overpaid for call, thus failing the heightened pleading standards required to bring such a claim.

Shannon v. Roane Med. Ctr. (Summary)

WORKERS’ COMPENSATION AND ON-CALL

Shannon v. Roane Med. Ctr., No. E2011-02649-WC-R3-WC (Tenn. Workers’ Comp. Panel Mar. 13, 2013)

A Tennessee appellate court held that a surgical technician (“surgical tech”) was entitled to workers’ compensation benefits for an injury suffered during her commute home from the hospital while providing on-call services.  In addition to her regular hours, the surgical tech was required to work on-call shifts for the hospital for designated periods of time. The surgical tech had been called back to the hospital late at night following the end of her regular shift, performed her duties during a surgical procedure, and was traveling back to her home when she was seriously injured in an automobile accident.  She suffered extensive injuries, was eventually terminated by the hospital for exhausting her leave benefits, and sued to obtain workers’ compensation benefits.  The trial court denied recovery, finding that an injury sustained while traveling to or from a place of employment was not compensable.

On appeal, the only issue was whether being injured while on call constituted an injury arising out of and occurring in the course of employment.  The appellate court found that the injury certainly arose from the surgical tech’s employment, because she would not have been driving home at 2:30 a.m. but for answering a call.  The court also held that the nature of the on-call responsibilities that the surgical tech was providing were an exception from the general rule that an employee is not acting within the course of her employment when traveling to or from work.  In arriving at that conclusion, the court considered several factors:  (1) whether the surgical tech was compensated for time spent on call; (2) any restrictions imposed by the hospital during on-call hours; (3) the extent to which the hospital benefited from the on-call system; and (4) the extent to which the on-call system required additional travel that subjected the surgical tech to greater risk than that to which an ordinary commuter would be subjected.

In assessing these factors, the court held that the surgical tech was within the course of her employment during her commute noting that she was paid an hourly wage for the time spent on call, that the hospital placed several restrictions on the surgical tech during on-call service, requiring that she remain in contact via pager, that she stay within thirty minutes’ travel time of the hospital, and that she otherwise remain alert, and that the travel was mostly for the benefit of the hospital, allowing it to maintain operating room services on a full-time basis.  As a result, the court determined that the surgical tech was entitled to workers’ compensation benefits.

Reyes-Morales v. Hosp. Gen. Menonita, Inc. (Summary)

EMTALA

Reyes-Morales v. Hosp. Gen. Menonita, Inc., Civil No. 12-1018(JAF) (D. P.R. Mar. 15, 2013)

The United States District Court for the District of Puerto Rico partially granted a patient’s motion for reconsideration of his Emergency Medical Treatment and Active Labor Act (“EMTALA”) claims against a hospital after the trial court had granted the hospital’s motion to dismiss.  In the case, the patient presented at one hospital, and he was subsequently transferred twice.  He alleged that both transfers violated EMTALA because he was not stabilized prior to being transferred.  In its motion to dismiss, the first hospital argued that it was not subject to EMTALA because it was not a participating hospital and did not have a dedicated emergency department.  However, the first hospital did not argue that these same defenses extended to the second and third hospitals that the patient visited during the course of his treatment. 

Because the first hospital’s defense of lack of jurisdiction did not extend to the second and third hospitals, and taking the circuit court of appeal’s flexible approach to determining jurisdiction that permits such determinations to be made at the time of trial rather than merely on the pleadings, the court granted the patient’s motion for reconsideration and deferred its ruling on the jurisdictional question until after discovery.  Furthermore, the court noted that it had raised additional questions sua sponte in its opinion that granted the hospital’s motion to dismiss and, as such, decided to permit the patient to respond to these additional questions regarding whether the hospitals had satisfied EMTALA’s stabilization requirement.  Accordingly, the court partially granted the patient’s motion for reconsideration, and it ordered the parties to conduct discovery.

Byrne v. Cleveland Clinic (Summary)

EMTALA

Byrne v. Cleveland Clinic, No. 12-4033 (3d Cir. Mar. 19, 2013)

The United States Court of Appeals for the Third Circuit affirmed a trial court’s grant of summary judgment in favor of a hospital after a patient claimed that the hospital violated the Emergency Medical Treatment and Active Labor Act (“EMTALA”).  The case involved a patient who presented to the hospital’s emergency department with chest pains.  Within 20 minutes of the patient’s arrival, the hospital had drawn his blood and requested an EKG, and within the next 30 minutes, the hospital performed a chest x-ray.  The patient was later examined by an emergency department physician and a cardiologist, who gave the patient treatment options.  Based on the cardiologist’s advice, the patient decided to have an emergency stent implanted through a catheterization procedure which was completed roughly five and a half hours after he had presented to the emergency department.  The patient subsequently sued the hospital for a range of claims, but the Third Circuit in this instance considered the patient’s allegation that the hospital breached its EMTALA duties by not satisfying the Act’s screening requirement.

Noting that EMTALA does not serve as a federal malpractice statute, but rather, it is an anti-discrimination statute, the court noted that the hospital had two protocols for treating patients presenting with chest pains, and both protocols were administered to the patient indiscriminately.  Furthermore, the court noted that EMTALA’s screening requirement is not clearly defined, but the degree of care delivered to the patient clearly satisfied the screening requirement.  Accordingly, the court affirmed the trial court’s grant of summary judgment in favor of the hospital.

Loyd v. St. Joseph Mercy Oakland/Trinity Health (Summary)

PEER REVIEW PRIVILEGE

Loyd v. St. Joseph Mercy Oakland/Trinity Health, No. 12-cv-12567 (E.D. Mich. Mar. 18, 2013)

The United States District Court for the Eastern District of Michigan denied a former hospital security guard’s motion to compel discovery of an incident report involving her that had been documented as part of the hospital’s peer review reporting system.  The former security guard, a 52-year-old, African-American female, had been involved in an incident involving an emergency room patient in which she told the patient that she could leave the hospital premises. That advice was inaccurate and allegedly escalated the situation, causing the patient to become agitated, placing the staff at increased risk and resulting in the patient needing to be restrained.  A nurse involved in the matter completed an incident report, later testifying that she did so in order to improve patient safety and the hospital’s delivery of care.  The security guard had already been issued a final written warning, and the incident resulted in the termination of her employment.  The security guard sued the hospital for discrimination, intentional infliction of emotional distress, and interference with a contractual relationship. In connection with her termination and lawsuit, portions of the incident report were sent to the hospital’s human resources department, the Equal Employment Opportunity Commission (“EEOC”), and the Michigan Department of Civil Rights.  

In support for her motion to compel discovery, the security guard argued that the incident report was not entitled to peer review privilege because, as a security guard, she was not the type of healthcare professional who was subject to hospital peer review procedures.  Noting that the peer review privilege extends to all hospital incident reports that are compiled in order to improve health care, the court concluded that the report at issue in this case was entitled to peer review privilege because it was collected for the purpose of improving patient care.

The court also disagreed with the security guard’s argument that the hospital had waived its right to assert peer review privilege when portions of the report had been circulated to human resources and other state agencies, finding that Michigan courts had not yet ruled on the issue of whether the peer review privilege may be waived.  The court also noted that, unlike other statutorily created privileges that include a waiver provision, the Michigan peer review statute lacks such a waiver provision.  Accordingly, the court concluded that peer review privilege may not be waived.

Ke v. Drexel Univ. (Summary)

MEDICAL SCHOOL/DISCRIMINATION

Ke v. Drexel Univ., No. 11-6708 (E.D. Pa. Mar. 14, 2013)

A trial court denied a former medical student’s motion requesting a preliminary injunction that would mandate that his medical school reinstate him. The medical student initially was dismissed from the school for failing courses during his second year. He was later readmitted but required to repeat his second year. In his third year, the student participated in a family medicine clerkship.  After his supervising physician asked about the student’s nationality and found out that the student was originally from China, he allegedly began to treat the student condescendingly.  Later, the student received a negative evaluation of his performance, was required to repeat the clerkship, and was told that another unsatisfactory grade would result in dismissal.  He received a marginal grade in a subsequent OB/GYN clerkship and was dismissed. After unsuccessful attempts to appeal the decision, the student sued, alleging discrimination and retaliation based on race or national origin. 

The court refused to grant the student’s injunction, finding that the alleged discriminatory questions regarding his nationality were too far removed from his first family medicine clerkship evaluation and eventual dismissal from the school to establish discriminatory motivation.  And since all other allegedly discriminatory comments were made a month after the student’s dismissal, it found that discrimination was not likely the cause of the student’s dismissal.  The court also found the student was not likely to suffer irreparable harm if it did not grant him a preliminary injunction, because he had already been out of school for two years and had not applied to another medical school or sought alternative employment.  Finally, the court found that the balance of interests favored declining his motion to be reinstated as a third-year medical student, since the medical school likely would suffer harm by reinstating a student who had been out of school for two years and admitted to forgetting what he had previously learned.  Therefore, it declined to grant the student’s motion for preliminary injunction for reinstatement.

Ramirez v. Long Beach Mem’l Med. Ctr. (Summary)

CORPORATE NEGLIGENCE/APPARENT AGENCY

Ramirez v. Long Beach Mem’l Med. Ctr., No. B239125 (Cal. Ct. App. 2^nd Dist. Mar. 20, 2013)

A California Court of Appeal reversed a trial court’s grant of summary judgment to a hospital in a wrongful death action involving a patient with a gunshot wound who presented to the emergency department and later died during surgery.  The patient’s mother had signed a printed form entitled “Conditions of Admission,” which included a provision disclaiming any agency relationship between the hospital and its physicians, independent contractors, in an effort to limit liability.  Due to a delay in the arrival of a vascular surgeon, the patient had waited three hours before he went to the operating room and then died during the surgery.

The patient’s family sued the hospital for wrongful death, claiming that he unnecessarily bled to death.  The trial court granted summary judgment to the hospital as to the claims against the hospital that were based on the actions of its physicians, finding there to be a lack of an agency relationship with the physicians on the basis of the Conditions of Admission form which had disclaimed such a relationship.  The patient’s family appealed.

On appeal, the court found that whether the Conditions of Admission form signed by the patient’s mother was enforceable so as to preclude the family’s wrongful death claims against the hospital for the acts of the physicians was a question of fact and was not appropriate for summary judgment.  Even though the physicians were independent contractors, for which the hospital does not typically have liability, if the hospital acted in such a manner so as to make a reasonable person believe that the physicians were its agents and the patient relied on that representation, then the hospital could still be liable for their acts.

In this case, the court found that in the absence of evidence showing that the patient authorized his mother to act on his behalf, whether the patient acknowledged the non-agent status of the physicians was a question of fact.  The court also found that, under the stressful circumstances, the patient’s mother may not have freely consented to the non-agency relationship between the hospital and its physicians.  Therefore, the court held that such a form, where it was not signed by the patient or by an authorized agent of the patient, was insufficient to immunize the hospital from liability for the acts of its physicians and that summary judgment was not appropriate with respect to the hospital’s liability.

Phillips v. St. Mary Med. Ctr. (Summary)

ADA/REHABILITATION ACT DISCRIMINATION

Phillips v. St. Mary Med. Ctr., No.12-2363 (E.D. Pa. Mar. 19, 2013)

The United States District Court for the Eastern District of Pennsylvania granted in part and denied in part a hospital’s motion to dismiss a disability discrimination case based on the federal Rehabilitation Act and the Americans with Disabilities Act filed by the deaf children of a non-deaf patient.  The brother and sister had requested and been denied the services of an interpreter while visiting their non-deaf father who was a patient in the hospital.  During a subsequent visit, the siblings found their father in a coma, and he died later that day.  The siblings were unable to communicate with anyone involved in their father’s care and were not informed when their father was dying because no interpreter had been provided beyond a five-minute session on one afternoon.  The siblings sued the hospital for disability discrimination, requesting injunctive relief mandating that the hospital be legally required to provide interpreters to companions of their patients. 

The district court dismissed the request for injunctive relief, stating that the siblings were unable to show that there was an actual or imminent threat of injury if the injunctive relief of being granted an interpreter was not granted.  The court noted that there was no guarantee that the siblings would be returning to the hospital, a required element necessary to show that injury to the siblings was imminent.  Neither sibling had sought the services of the hospital before, nor was it indicated that the siblings would seek the assistance of this hospital in the event of an emergency.

Bennett v. Kaiser Permanente (Summary)

ADA/ADEA

Bennett v. Kaiser Permanente, No. 10-CV-2505 AW (D. Md. Mar. 20, 2013)

In this employment discrimination case, the United States District Court for the District of Maryland granted a managed care organization’s (“MCO”) motion for summary judgment in a lawsuit brought by a nurse who had been forced to resign.  After becoming confused and injecting a patient with insulin rather than giving the patient the TB test he or she was supposed to have received, the MCO requested the nurse see a physician, where he was diagnosed with multiple ailments, including PTSD, fibromas of the feet, and sleep apnea. The nurse was moved to a more sedentary position in a nurse call center to accommodate the pain in his feet.  However, while working in the call center, the nurse failed to recognize a patient’s possible stroke symptoms and scheduled her for a later appointment than her medical condition necessitated.  Following that occurrence, the MCO gave the nurse the option to resign or be fired. After resigning, the nurse sued, claiming that the forced resignation was based upon unlawful age and disability discrimination. 

The court granted summary judgment on the age discrimination claim because his age did not have a “determinative influence on the outcome,” finding that the MCO had not treated the nurse any differently from similarly situated employees.  The younger nurses that the plaintiff nurse alleged were treated less harshly had committed only one error, while he had committed two. In addition, the court noted that the MCO had disciplined another nurse, older than the plaintiff nurse, less harshly than he had been disciplined.

The district court also granted summary judgment on the nurse’s disability discrimination claim, stating that no reasonable jury could conclude that the organization’s nondiscriminatory reasons for termination were pretextual.  The nurse made two separate mistakes after being disciplined and reassigned.  The court determined that these mistakes were clearly the reasons for termination, not the nurse’s disability.