Henderson v. Montefiore Med. Ctr. (Summary)

DISCRIMINATION AND RETALIATION CLAIMS

Henderson v. Montefiore Med. Ctr., No. 12 CV 1468(HB) (S.D. N.Y. Mar. 21, 2013)

The United States District Court for the Southern District of New York partially granted and partially denied a medical center’s motion for summary judgment against a former employee’s allegations of discrimination and retaliation.  In the case, the employee is a black woman who suffers from multiple sclerosis.  She is board certified in Obstetrics and Gynecology and Maternal-Fetal Medicine.  She served as the Chief of Maternal-Fetal Medicine (“MFM”) at a hospital that was subsequently acquired by the medical center.  After this acquisition, the medical center eliminated the employee’s Chief of MFM position.  In the two years after the medical center acquired the local hospital, the employee was cited for 11 deviations from the standard of care.  The medical center ultimately intervened with a meeting between the employee and the medical center’s Senior Medical Director.  The Director’s notes from this meeting included comments about the employee’s slow movements – these movements were the result of the employee’s MS.  During the meeting, the employee raised concerns that she was the victim of disability and racial discrimination, but the Director did not follow the medical center’s protocol that required him to report such complaints to the medical center’s administrators.  The medical center then retained an outside consultant to review the employee’s conduct, and he concluded that the employee required at least temporary supervision if she were to continue to practice medicine.  Rather than adopting this suggestion, the medical center terminated the employee.  The employee then sued for racial and disability discrimination and retaliation.

In its evaluation of the employee’s discrimination claims, the court began by concluding that the employee had established a prima facie case for discrimination.  The court then concluded that the medical center’s negative appraisals of the employee’s work provided legitimate reasons for terminating her employment.  However, the court concluded that questions of fact remained as to whether the termination was at least partially motivated by a discriminatory animus.  For the court, these questions of fact emerged from the Director’s notes about the employee’s slow movements – these notes indicated to the court that the employee’s disability was on the Director’s mind when he terminated her employment.  Furthermore, the Director’s failure to address the employee’s complaints of discrimination suggested a possible discriminatory animus.  Finally, the medical center’s replacement of the employee with nonblack and nondisabled physicians could allow a fact finder to infer a discriminatory animus.  Accordingly, the court denied the medical center’s motion for summary judgment of the discrimination claims.

With regard to the employee’s allegation of retaliation, the court looked for a causal nexus between a protected activity and an adverse employment action.  Here, the protected activity was the employee’s complaint to the Director that she had suffered from racial and disability discrimination.  The adverse employment action was her termination four months later.  The court concluded that a finder of fact might conclude that these two events were close enough in time to infer a causal nexus.  Accordingly, the court denied the medical center’s motion for summary judgment of the employee’s retaliation claim.

Finally, the court addressed the employee’s discriminatory demotion and failure-to-promote claims.  Here, the court cited the medical center’s non-discriminatory justifications for demoting the employee – the demotion was necessary to ease the integration process after the medical center acquired the hospital where the employee served as Chief of MFM, and the Chief of MFM position was redundant after the integration.  Thus, the court concluded that the employee had failed to present any evidence that her demotion and failure to be promoted were tainted with a discriminatory animus.  Accordingly, the court granted the medical center’s motion for summary judgment for these claims.

Dookeran v. County of Cook (Summary)

DEFAMATION

Dookeran v. County of Cook, No. 1-11-1095 (Ill. App. Ct. Mar. 22, 2013)

The Appellate Court of Illinois affirmed a trial court’s grant of summary judgment against a physician’s allegation of defamation and held that res judicata barred the physician’s remaining claims against a county in Illinois that conducted business as a hospital.  In the case, a physician was denied reappointment to a hospital because the hospital discovered that the physician had willfully failed to disclose a letter of reprimand that a prior employer had issued and that he had a history of verbally abusing hospital personnel.  The physician contested the denial of reappointment through the hospital’s administrative procedures.  While the hospital’s administrative review was pending, the physician filed a civil complaint.  The appellate court’s decision here addresses the allegations of this civil complaint.

The court concluded that res judicata applied to the physician’s retaliatory discharge and breach of contract claims.  For both of these allegations, the court concluded that the issues had been fully tried via the administrative process, had involved the same parties, and had achieved a final verdict.  Here, the court applied a transactional test that considered whether the allegations arose from a single group of operative facts.  Because the court concluded that the claims in the civil action satisfied the transactional test, the court concluded that the claims were barred under res judicata.

Furthermore, the court sustained the grant of summary judgment based on its review of the record that led the court to conclude that the allegedly defamatory statements were in fact true.  Accordingly, the court affirmed the grant of summary judgment.

Hagen v. Siouxland Obstetrics & Gynecology, P.C. – March 2013 (Summary)

GROUP EMPLOYMENT TERMINATION

Hagen v. Siouxland Obstetrics & Gynecology, P.C., No. C 11-4047-MWB (N.D. Iowa Mar. 20, 2013)

The United States District Court for the Northern District of Iowa partially denied a medical group’s motion to strike evidence submitted by a physician (and former equity owner, president and director of the group) and denied the medical group’s motion for partial summary judgment.  However, the court also cautioned the physician from taking his claims to trial, because the court anticipated that the physician would come across to the jury as an “arrogant jerk” and would be unlikely to recover alleged damages from a jury verdict.

The following facts spurred the court’s biting evaluation of the physician and his dim prospects for success in this legal proceeding.  The physician was a shareholder in a medical group that eventually had four physician shareholders.  He had a long history of berating and threatening nurses, being intoxicated while on call, and conducting himself in an unprofessional manner.  When the physician asked a staff member of the medical group to fill out his medical license applications for the various state medical licensing boards, the staff member filled out the forms incorrectly and forged notarized signatures on the applications, and because of the inconsistencies in the applications, one state eventually requested that the physician withdraw his application for medical licensure.  In addition, the physician stated that he believed that one of the medical group’s shareholders and a hospital where the medical group practiced had committed malpractice, and he threatened to report the malpractice.

The three remaining shareholders of the medical group lost all tolerance for the physician’s bad behavior, and they held a secret meeting during which they decided to terminate the physician’s employment with the medical group.  The physician then sued for a host of claims that can be categorized into the three general categories of negligence, licensure application (vicarious liability) claims, and wrongful termination claims.  The medical group moved for summary judgment of the licensure application and wrongful termination claims.

The court denied the motion for summary judgment of the licensure application claims on the basis that factual questions still existed as to whether the medical group was vicariously liable for the allegedly fraudulent conduct of the employee who filled out the physician’s application forms.  Likewise, the court denied the motion for summary judgment of the wrongful termination claims because the court concluded that genuine issues of material fact existed.  Thus, although the court’s opinion discouraged the physician from taking his case to trial, the opinion itself concluded that all of the physician’s claims had issues of material fact that had to be resolved by a jury.

U.S. ex rel. Simms v. Austin Radiological Assoc. (Summary)

Discovery – Compliance Officer Privilege

U.S. ex rel. Simms v. Austin Radiological Assoc., No. A-10-CV-914-AWA (W.D. Tex. Mar. 18, 2013)

In this false claims case, the United States District Court for the Western District of Texas granted in part and denied in part multiple motions to compel discovery. A former employee brought suit against a radiology group alleging that the company wrongfully retained millions of Medicare/Medicaid overpayments and fraudulently billed the government for bone density scans that were interpreted by technicians instead of physicians. The employee claimed that her investigation led to a retaliatory termination. The relator filed motions to compel discovery and the radiology group filed objections, claiming, in part, that documents maintained by its compliance officer were privileged under state law and not subject to discovery.

The district court held that the compliance officer’s documents were not privileged and were subject to discovery. The court interpreted the state statute regarding compliance officers as not creating a “new” privilege; rather, it found the statute cited by the radiology group merely incorporated protections already in existence, but that these protections did not affect the scope of discovery. Furthermore, the district court rejected the radiology group’s argument that the state’s peer review protection extended to compliance officers, noting that compliance officers are purposefully excluded from discovery protection.

Patterson v. St. Dominic-Jackson Mem’l. Hosp. (Summary)

SEX DISCRIMINATION (NURSE)

Patterson v. St. Dominic-Jackson Mem’l. Hosp., No. 3:11-cv-623-CWR-FKB (S.D. Miss. Mar. 19, 2013)

The United States District Court for the Southern District of Mississippi denied a hospital’s motion for summary judgment on a nurse’s sex discrimination and retaliation claims. The nurse applied and was interviewed for one of four “RN Team Lead” positions in the emergency department at the hospital. However, all four positions were filled by men, and there was a rumor that the supervisor was not interested in hiring women because she thought they were too emotional and could not deal with the stress of the job. After the nurse filed a complaint, her supervisor brought forward a list of over 100 medical charts that the nurse had accessed in violation of the hospital’s privacy policy. At the supervisor’s suggestion, the nurse was terminated from her position.

The district court held that the nurse was within the statutory period to file the complaint. It was reasonable for the nurse to assume that she was in the running for the job up until she was informed that all four positions had been filled. The court considered rumors of the supervisor’s desire to not hire females as nothing more than office gossip.

The district court also held that the nurse demonstrated a causal link between her complaint and her eventual termination. The nurse had received excellent evaluations and had no history of disciplinary problems. Although the supervisor argued that accessing unassigned patients was inappropriate, other nurses in the emergency department claimed to access unassigned charts for a number of legitimate reasons. These nurses were never disciplined for violating the hospital’s privacy policy. The district court felt that this dispute over the reason for reporting the privacy violation was enough to survive the motion to dismiss.

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.