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.

Guerrero v. Total Renal Care, Inc. (Summary)

FALSE CLAIMS ACT/WRONGFUL TERMINATION

Guerrero v. Total Renal Care, Inc., No. EP-11-CV-449-KC (W.D. Tex. Mar. 18, 2013)

In a wrongful termination case brought under the False Claims Act, the United States District Court for the Western District of Texas denied competing requests for summary judgment made by the defendant dialysis treatment center as well as the plaintiff nurse who had been terminated by the center.  The nurse had sued the dialysis center, claiming that he was terminated in retaliation for an internal report that he made to a senior staff member concerning Medicare and Medicaid fraud that he alleged had been committed by another nurse.  The center claimed that no such report was ever made and that the nurse’s termination was due to a patient complaint following multiple disciplinary actions that had been taken during the nurse’s six-year employment. 

With regard to the nurse’s motion, the court stated that there was a factual controversy over whether or not the nurse had actually made the internal report regarding the false record of treatments. The nurse did not have any support of his claims that he made explicit statements to his supervisors regarding the fraud; no transcript existed and the supervisors denied discussing the potentially false Medicare submissions with the nurse. Since it was possible that a reasonable jury would believe the supervisors over the nurse, it would be improper to grant summary judgment.

The district court also denied the dialysis center’s motion for summary judgment, citing the factual dispute over whether the nurse engaged in “protected activity” under the FCA by making the internal report. It was irrelevant that the center did not bill Medicare or Medicaid directly; if the center knowingly caused a fraudulent payment to be submitted then it could be held liable. The district court also stated that the basic requirements of notice and adverse action were met – within a week of the nurse’s alleged internal report to his supervisors he was terminated by those same supervisors with little explanation.  The court was also wary of the lack of documentation that the center maintained in connection with the disciplinary actions taken against the nurse, with particular emphasis on the center’s review of the patient complaint that they claimed triggered the nurse’s termination.

U.S. ex rel. Howze v. Allied Physicians, Inc. (Summary)

FALSE CLAIMS ACT

U.S. ex rel. Howze v. Allied Physicians, Inc., No. 1:11cv35 (N.D. Ind. Mar. 11, 2013)

The United States District Court for the Northern District of Indiana granted one motion to dismiss and denied two others filed by a physician group and a sleep center. A former employee sued a physician group and a sleep center alleging violations of the state and federal false claims act as well as wrongful discharge in retaliation for the protected activity of filing a qui tam lawsuit.  These claims had followed earlier causes of action that the employee had filed alleging race discrimination and retaliation.  After filing those claims, the employee had entered into a settlement agreement with the physician group and sleep center which purported to settle claims related to his separation from employment. 

The district court dismissed the claim of retaliatory discharge.  The court stated that the claims being alleged in the case were the same claims and facts that were dismissed in the settlement agreement. The agreement released both corporations from any liability to claims arising out of the employee’s employment or termination.

With the retaliatory discharge claim dismissed, there were no further claims pending against the physician group, so it was dismissed from the case. The false claim causes of action proceeded against the sleep center.

U.S. ex rel. Health Dimensions Rehab., Inc. v. Rehabcare Group, Inc. (Summary)

FALSE CLAIMS ACT

U.S. ex rel. Health Dimensions Rehab., Inc. v. Rehabcare Group, Inc., No. 4:12CV00848 AGF (E.D. Mo. Mar. 13, 2013)

The United States District Court for the Eastern District of Missouri denied motions to dismiss made by defendants in a false claims lawsuit that involved rehabilitation services provided to skilled nursing facility patients.  The government sued on the basis of a five-year subcontract agreement between two contract providers of rehabilitation therapy services which involved a one-time payment of $600,000 followed by a percentage of the profit from the therapy services that would be performed, an arrangement that the government alleged resulted in over $10 million in kickbacks. 

The district court held that the motions to dismiss were without merit and that there were no logical inconsistencies between the government’s allegation that the contracting rehab services provider ceased operations shortly after receiving its $600,000 payment and its allegation that the provider continued to receive a percentage of remuneration for such services, finding that the government pled sufficient facts to state a claim under the False Claims Act.

U.S. ex rel. Assocs. Against Outlier Fraud v. Huron Consulting Group, Inc. (Summary)

FALSE CLAIMS ACT

U.S. ex rel. Assocs. Against Outlier Fraud v. Huron Consulting Group, Inc., No. 09 Civ. 1800 (JSR) (S.D. N.Y. Mar. 5, 2013)

In this False Claims Acts (“FCA”) case, the United States District Court for the Southern District of New York granted summary judgment in favor of a consulting firm hired to revitalize a hospital’s revenue cycle, and its fiscal intermediary.

The hospital’s board retained a consulting firm, which recommended that the hospital increase its pricing, which the hospital did, and which also increased the hospital’s outlier reimbursements from Medicare. A hospital administrator contacted its fiscal intermediary and disclosed that she was concerned that the hospital may have received excessive outlier payments after the price increases.

While the court found that raising the hospital’s charges while benefitting from a stale cost-to-charge ratio may have been a bad practice, it found that it was not forbidden. Therefore, it granted summary judgment to the consulting firm on the FCA claims against it.

The relator also alleged that the fiscal intermediary violated the FCA by recklessly authorizing the payments in violation of its contract with the government. The trial court also found that no statute or regulation expressly requires a fiscal intermediary to refuse to forward any outlier charge that is calculated based on a stale cost-to-charge ratio. Instead, the reconciliation process, through which excessive reimbursements are recovered, only requires fiscal intermediaries to flag potential excess reimbursement, which it did. Therefore, the court granted summary judgment to the fiscal intermediary on the FCA claim against it as well.

U.S. ex rel. Upton v. Family Health Network, Inc. (Summary)

FALSE CLAIMS ACT

U.S. ex rel. Upton v. Family Health Network, Inc., No. 09 C 6022 (N.D. Ill. Mar. 4, 2013)

In this False Claims Act (“FCA”) case, the United States District Court for the Southern District of Illinois denied a managed care organization’s (“MCO”) motion to dismiss the federal and state FCA claims against it.

The MCO contracted with the state and federal governments, agreeing not to discriminate based on health status, and certified quarterly that it would not participate in such discrimination. However, the relator alleged that the MCO routinely submitted claims to Medicare and Medicaid, while discriminating based on health status by refusing to enroll high-cost individuals.

The court found that the relator had stated FCA claims against the MCO and denied its motion to dismiss.