Huang v. Rector & Visitors of the Univ. of Va. (Summary)

FALSE CLAIMS ACT

Huang v. Rector & Visitors of the Univ. of Va., 3:11-cv-00050 (W.D. Va. Mar. 7, 2013)

The United States District Court for the Western District of Virginia denied defendants’ motion for judgment as a matter of law in a False Claims Act (“FCA”) retaliation case.

A researcher at a university obtained a federal research grant, and after he noticed and reported that his funding was being misallocated within his research group, he was terminated from the group. The researcher filed an FCA retaliation claim and a jury awarded him lost wages and compensatory damages against the individual defendants. After the verdict, the individual defendants moved for judgment as a matter of law.

The court denied the individual defendant’s motion for judgment as a matter of law because it concluded that the defendants waived their right to so move. The court found that although defendants sought judgment on the issue that the FCA does not provide for individual liability, the defendants failed to raise this issue during the trial, and the court therefore concluded that the defendants had waived their argument that the FCA does not provide for individual liability.

United States v. Alpharma, Inc. (Summary)

FALSE CLAIMS ACT

United States v. Alpharma, Inc., No. ELH-10-1601 (D. Md. Mar. 5, 2013)

The United States District Court for the District of Maryland granted a pharmaceutical corporation’s motion to dismiss in this False Claims Act (“FCA”) case.

An employee of the corporation filed a qui tam action against the corporation for fraudulent submissions to Medicaid, claiming that the company was marketing a topical pain medication in ways that were not approved by the FDA, and that these off-label prescriptions were submitted to Medicaid for reimbursement.

The district court held that the employee did not provide sufficient evidence to support his claims of fraud. It stated that the FCA requires that specific instances of fraud be alleged in the complaint, and since the employee’s complaint relied on the inference that some of the prescriptions filled by the marketing scheme must have been reimbursed by government entities, these were general allegations provided by the employee.

Goldberg v. Rush Univ. Med. Ctr. (Summary)

FALSE CLAIMS ACT

Goldberg v. Rush Univ. Med. Ctr., No. 04 C 4584 (N.D. Ill. Mar. 6, 2013)

The United States District Court for the Northern District of Illinois denied in part and granted in part motions to dismiss submitted by a medical center, a surgery center and a physician group, among others, all defendants in this False Claims Act (“FCA”) case.

The relators filed a qui tam action against the medical center, surgery center, a physician group and individual physicians for fraudulent claims billed to Medicare and Medicaid. The relators alleged that for nine years the defendants were billing for surgeries performed by residents who were improperly supervised or by surgeons performing overlapping surgeries, in violation of the Medicare and Medicaid rules and regulations.

The district court held that the relators alleged sufficient facts to survive the motion to dismiss against the surgery center and physician group. The court stated that each of the paragraphs in the complaint alleged specific instances of claims that were submitted to Medicare, and the fact that the relators did not have information on whether or not the claims were actually submitted was not relevant because that information was inaccessible to the relators. The district court also held that the relators’ complaint sufficiently alleged the “who, what, when, where, and why” necessary to allege fraud, since the relators specifically named certain physicians who engaged in the surgery scheme as well as detailed the fact that the surgery fraud was taking place in the medical center and the surgery center during the nine years indicated. The district court found that the details of the surgery schedules sufficiently demonstrated how the overlapping and unsupervised surgeries were being carried out.

The district court dismissed the medical center from the action, finding that the relators failed to allege that the medical center was knowingly submitting fraudulent claims, and the fact that the medical center allowed doctors to schedule concurrent surgeries was not a cause of action under the FCA.

Cisneros v. Metro Nashville Gen. Hosp. (Summary)

EMTALA

Cisneros v. Metro Nashville Gen. Hosp., No. 3:11-0804 (M.D. Tenn. Mar. 5, 2013)

A magistrate judge for the United States District Court for the Middle District of Tennessee recommended that a hospital’s third-party complaint for indemnification against a physician group and individual physicians be dismissed for failure to state a claim.

A patient brought suit against the hospital and two physicians, among others, under the Emergency Medical Treatment and Active Labor Act (“EMTALA”) after he came to the emergency department alleging that he did not receive an appropriate medical screening examination when he sought treatment for pain in his right eye. The district court granted a motion to dismiss filed by the two physicians, finding that EMTALA does not provide for a private right of action against physicians. The hospital then filed a third-party complaint for indemnification against the physicians for any amount it may be required to pay under EMTALA.

The district court stated that since EMTALA does not provide a private cause of action for violations of EMTALA against the physicians, allowing the hospital to be indemnified by the physicians would essentially allow a hospital to accomplish indirectly what patients are unable to accomplish.

Macharia v. City of Revere (Summary)

IMMUNITY

Macharia v. City of Revere, No. 2009 10391 RBC (D. Mass. Mar. 7, 2013)

The United States District Court for the District of Massachusetts denied an attending emergency room physician’s motion for summary judgment against a patient who sought to hold her liable for providing medical care below the standard of care.

The physician was employed by a hospital that the court had previously found to be a public employer within the meaning of the Massachusetts Torts Claims Act. The physician argued that, as an employee of the hospital, she was a public employee and therefore entitled to immunity under the Act.

Under Massachusetts law, a court determines whether a physician is a public employee by applying the same principles used to determine the existence of a principal-agent relationship.

Thus, the court considered evidence proffered by the physician that indicated that she was in a principal-agent relationship and therefore a public employee, which was: the physician did not treat private patients, nor did she decide which patients she would treat; the physician’s employment contract terms stated that she worked under the direction and control of the hospital and its Chief of Emergency; and the physician did not bill her patients directly, nor was her pay from the hospital directly tied to her billings.

The court noted that courts tend to conclude that residents, not attending physicians, are servants of hospitals.  Also, the court found that although the physician’s pay was not directly tied to her billings, her compensation did include a component based upon her productivity. Finally, and most significantly, the court concluded that the physician had failed to provide evidence that at the time of the alleged negligence, she did not exercise her own discretion and independent medical judgment. Accordingly, the court concluded that a question of fact existed as to whether the physician was a public employee, and it denied the physician’s motion for summary judgment.

Alsager v. Bd. of Osteopathic Med. and Surgery (Summary)

IMMUNITY

Alsager v. Bd. of Osteopathic Med. and Surgery, No. 13-5030 RJB (W.D. Wash. Mar. 8, 2013)

The United States District Court for the Western District of Washington granted a state and two state agencies’ motion to dismiss a lawsuit filed by a physician for injunctive relief and a declaration that certain state statutes governing disciplinary proceedings violate the Fourth, Fifth and Fourteenth amendments to the U.S. Constitution.

The state board of medicine began conducting an investigation into allegations of unprofessional conduct by the physician after it received a complaint that the physician inappropriately touched a patient and later began a sexual relationship with her. The physician filed a lawsuit against the state, the board of medicine, and the department of health, among others, seeking injunctive relief and a declaration that certain state statutes governing disciplinary proceedings violate the Fourth, Fifth and Fourteenth amendments to the U.S. Constitution.

The state and its two agencies filed a motion to dismiss based on immunity under the Eleventh amendment to the U.S. Constitution, and the district court granted the motion, finding that the claims against the state and its agencies were barred by the Eleventh Amendment, since there was no evidence that the state or agencies consented to a suit.

Craig v. Yale Univ. School of Med. (Summary)

EMPLOYMENT DISCRIMINATION

Craig v. Yale Univ. School of Med., No. 3:10cv1600 (JBA) (D. Conn. Mar. 4, 2013)

The United States District Court for the District of Connecticut granted a hospital’s motion for summary judgment against a former OB/GYN resident’s allegations of discrimination and hostile work environment.

In the case, the resident, who is an African-American male, entered the hospital’s OB/GYN residency program and, within a month of beginning the program, his substandard clinical performance had raised concerns with the program’s directors to the point that they intervened and met with the resident to discuss specific weaknesses in his clinical skills.  These weaknesses did not improve over time, and the resident’s reviews from the attending physicians and senior residents were uniformly critical and raised serious concerns about patient safety.  The resident was dismissed from the residency program after six months, but a grievance panel subsequently reinstated him for a probationary period.  The resident then failed the probationary period and was terminated from the residency program.  He filed suit, alleging race and gender discrimination and hostile work environment.

The court granted the hospital’s motion for summary judgment for the race and gender discrimination allegations.  For these claims, the resident sought to create a prima facie case for inferring discriminatory intent.  Although the court applied a lenient standard for the “qualification” element of the prima facie test – it only required the resident to show that he possessed the basic skills necessary for the job – the court nevertheless concluded that the resident failed to establish a prima facie case because the resident failed to present evidence that could permit a finder of fact to infer a discriminatory motive.  Furthermore, the court concluded that the hospital had established nondiscriminatory reasons for dismissing the resident that obviated the resident’s allegation of intentional discrimination.

The court granted the hospital’s motion for summary judgment for the hostile work environment claim because it concluded that the resident had failed to present sufficient evidence to support a conclusion that the pressure, inhospitality, and humiliation that the resident experienced at the hospital were the product of discriminatory intent.

Master v. LHC Group, Inc. (Summary)

FALSE CLAIMS ACT

Master v. LHC Group, Inc., No. 07-1117 (W.D. La. Mar. 1, 2013)

The United States District Court for the Western District of Louisiana ruled that the False Claims Act’s anti-retaliation provision only applies to current employees.  In this case, a consulting firm hired a nurse to work on a compliance audit of a health care provider.  The nurse left the employment of the consulting firm, then allegedly used information obtained during her employment to bring a qui tam suit under the False Claims Act against the health care provider she had audited.

The consulting firm sued her, claiming that she improperly used confidential information she obtained during her employment.  In response, the nurse claimed that the consulting firm’s lawsuit constituted retaliation under the False Claims Act.  The court ruled that the False Claims Act does not provide a remedy for post-employment retaliation.

Park v. Mem’l Health Sys. of E. Tex. (Summary)

EMPLOYMENT TERMINATION

Park v. Mem’l Health Sys. of E. Tex., No. 12-11-00257-CV (Tex. App. Mar. 4, 2013)

The Court of Appeals of Texas granted summary judgment in favor of a hospital that was sued by an emergency room physician who was terminated by his group for missing work.  The physician had been required to obtain a consultation for pediatric patients after concerns were raised about his care of three patients.  The physician did not show up to work after being informed of the consultation requirement, so he was terminated by his group.

He sued the hospital, claiming that he had been summarily suspended and that the hospital’s actions constituted a breach of contract and interference with his business relationship with his group.  The appellate court ruled that the medical staff bylaws did not constitute an enforceable contract in this instance, so the hospital could not have breached the contract.  The appellate court also ruled that the physician had not been summarily suspended and that his own actions in failing to come to work caused his damages.

Sternberg v. Nanticoke Mem’l Hosp. (Summary)

ATTORNEY’S FEES

Sternberg v. Nanticoke Mem’l Hosp., No. 219, 2012 (Del. Feb. 28, 2013)

The Supreme Court of Delaware affirmed a lower court’s decision to award a hospital attorney’s fees and costs based on release and immunity language in the hospital’s Credentials Policy.

A physician who was known for disruptive outbursts sued the hospital after being precautionarily suspended.  The hospital prevailed in the lawsuit, then sought attorney’s fees from the physician based on language in its Credentials Policy.

The physician claimed that the attorney’s fee provision in the Credentials Policy was against public policy.  He also argued that the policy did not apply to him because the hospital had not complied with its requirements.  Finally, the physician claimed that the lower court abused its discretion in determining the amount of fees and costs to award.

The supreme court held that the hospital’s Credentials Policy was not against public policy. Although the Health Care Quality Improvement Act sets a higher standard for the payment of attorney’s fees, private parties are free to agree to broader standards to protect the peer review process.  The court also noted that the Credentials Policy does not give the hospital’s CEO free rein.  Rather, it releases the hospital from liability “to the fullest extent permitted by law.”

The supreme court also held that the hospital did not violate the Credentials Policy and did not abuse its discretion in awarding attorney’s fees.