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.

Kirkland v. Siglove (Summary)

PHYSICIAN-PATIENT PRIVILEGE

Kirkland v. Siglove, No. 11 C 7285 (N.D. Ill. Feb. 26, 2013)

The United States District Court for the Northern District of Illinois denied a medical group’s request that it be permitted to speak with other physicians who were employed by the group and who had treated a patient who was suing the group for alleged malpractice.

The patient argued that granting such a request would invade the physician-patient privilege established with the other treating physicians.  The district court held that state law prohibited such “ex parte” communication, even when the other treating physicians are employed by the same clinic. The ethical obligations of a physician to safeguard patient confidentiality take precedent. Filing a lawsuit only implies that a patient has consented to the release of his or her medical information through discovery, not to third-party discussions in an ex parte conference.

The district court also stated that it was not an automatic conclusion that the trial court would allow the patient to change his allegations in an amended complaint.  The court held the discretion on whether or not to allow this. The district court gave the patient 60 days to amend his complaint if he intended to do so, agreeing to give the medical group additional time for discovery.

Settle v. Basinger (Summary)

VICARIOUS LIABILITY

Settle v. Basinger, No. 11 CA 1342 (Colo. Ct. App. Feb. 28, 2013)

The Colorado Court of Appeals affirmed a trial court’s grants of summary judgment and trial verdicts in favor of an emergency department physician and her employer hospital.

In the case, a patient presented at the hospital’s emergency department with severe injuries from a vehicle accident.  The physician stabilized the patient and then arranged for him to be transferred to another hospital.  The receiving hospital arranged for the patient to be transported by a third party.  The third party’s nurses arrived at the hospital and attempted to intubate the patient.  These attempts allegedly caused tracheal lacerations that required multiple surgeries to repair.

The patient sued the emergency department physician, her employer hospital, the third-party transportation company, and the transportation company’s nurses that had attempted to intubate him.  In the complaint, the patient alleged that the transportation nurses had inflicted the tracheal lacerations and that their improper intubation of him had been caused by the emergency department physician’s negligent failure to examine, observe, treat, and administer the medical care given to the patient.  All of these allegations failed either at summary judgment or with a negative jury verdict.

The appellate court affirmed the trial court’s grants of summary judgment and jury verdicts.  The court based its conclusions on its holding that the patient had failed to allege facts that could have led the court to find that the emergency department owed a duty to supervise the third-party nurses when they attempted intubation.  Furthermore, the court endorsed the trial court’s reasoning that the emergency department physician was not vicariously liable for the negligent intubation because the captain of the ship doctrine does not render an emergency room physician vicariously liable for negligent acts committed in the emergency room by non-hospital employees.  Finally, the court affirmed the trial court’s grant of summary judgment against the patient’s allegation that the employer hospital had negligently credentialed the emergency department physician.  Because the court concluded that the patient had failed to allege a causal connection between the alleged negligent credentialing (of the physician) and the negligent intubation (by the third-party nurses), the court affirmed the summary judgment against the negligent credentialing claim.  Accordingly, the appellate court affirmed the trial court’s holdings and verdicts.

Lucas v. County of Cook (Summary)

EMPLOYMENT TERMINATION

Lucas v. County of Cook, No. 1-11-3052 (Ill. App. Ct. Mar. 5, 2013)

The Appellate Court of Illinois affirmed a trial court’s grant of summary judgment against a public health employee who was employed by her county and subsequently terminated for refusing to treat male patients and failing to acquire training required by her employer.

The employee was a board-certified OB/GYN, and she worked in her county’s public health department.  When the department informed the employee that she would be terminated from her job unless she attended a ten-day training session for providing clinical services to male patients with STDs and provided STD services to male patients afterward, the employee stated that ten days of training would be inadequate, and she notified the state office of professional regulations that her department had violated the state’s Medical Practices Act by requiring her to perform services as a physician without adequate training.  The employee refused to attend the training and her employment was terminated.  The employee filed suit, alleging that the department had taken adverse action against her for reporting the department’s violation of the Medical Practices Act and that this adverse action violated a state whistleblower statute and the common law for retaliatory discharge.

The appellate court affirmed the trial court’s grant of summary judgment in favor of the department.  With regard to the first allegation, the appellate court concluded that the employee had failed to establish that the activity that the department wanted her to engage in (i.e., treating male patients after obtaining training to treat them) violated any rule, law or regulation.  Likewise, the court concluded that the second allegation failed because the employee failed to articulate a clear public policy that would support her common law claim of retaliatory discharge.  Accordingly, the appellate court affirmed the trial court’s grant of summary judgment against the employee.

Wulff v. Sentara Healthcare, Inc. (Summary)

EMPLOYMENT DISCRIMINATION

Wulff v. Sentara Healthcare, Inc., No. 12–1262 (4th Cir. Mar. 4, 2013)

In this disability discrimination case, an appellate court affirmed summary judgment in favor of a health care corporation on a nurse’s claims for failure to accommodate, discriminatory termination, and retaliatory termination under the Americans with Disabilities Act (“ADA”).

The nurse worked at one of the corporation’s hospital’s emergency departments. In September 2009, she presented her employer with a doctor’s note, which restricted her from lifting more than ten pounds with her left arm for six weeks. The corporation accommodated this restriction. In December 2009, another doctor’s note extended the lifting restriction for an additional six weeks.

In March 2010, the corporation asked the nurse to update her restrictions. She returned a form with far stricter restrictions than before, including restrictions on pushing, pulling, climbing, and stretching and working above her shoulders. The corporation could not accommodate these restrictions and removed the nurse from the work schedule until the restrictions dissipated. Months later, the nurse informed the corporation that the restrictions had been lifted. It offered her an opportunity to return to work, but she never responded.

She then filed this lawsuit. However, the trial court granted summary judgment in favor of the corporation, because it found that the nurse could not perform the essential functions of her position.

The appellate court affirmed. With respect to the failure to accommodate claim, the nurse had to show that, with reasonable accommodation, she could perform the essential functions of the position. The nurse admitted in her deposition during discovery that her position required her to lift, push, or pull some amount of weight. Thus, her March 2010 form revealed that she could not perform some of the essential functions of her job, and summary judgment was appropriate on her claim.

As to the nurse’s discriminatory termination claim, the nurse had to establish that she fell within the ADA’s protected class, in other words, be “a qualified individual” with a disability. A “qualified individual” is someone who “with or without reasonable accommodation, can perform the essential functions of the employment position.” Because the court found that the nurse was unable to perform the essential functions of her position, as discussed above, she could not maintain a discriminatory termination claim.

Finally, with respect to the nurse’s retaliatory termination claim, the nurse had to produce evidence that (1) she engaged in protected activity, (2) Sentara took adverse action against her, and (3) there is a causal connection between the protected activity and the adverse employment action. Afterwards, the corporation had to articulate a legitimate, non-retaliatory reason for the termination of her employment. Even assuming that the nurse established a prima facie case of retaliatory discrimination, the corporation had a legitimate, non-retaliatory reason for the termination of her employment, because she was unable to perform the essential functions of her job. For those reasons, the appellate court affirmed summary judgment in favor of the corporation on all of the nurse’s ADA claims

United States v. Fadul (Summary)

FALSE CLAIMS ACT

United States v. Fadul, No. DKC 11–0385 (D. Md. Feb. 28, 2013)

A federal district court granted summary judgment to the government on its claim for payment by mistake of fact against a cardiovascular center, but denied the motion with respect to other claims under the False Claims Act (“FCA”).

The cardiovascular center provided mobile diagnostic services to residents of nursing homes. After completing a test, a technician electronically transferred the results to a radiologist who had been assigned by the cardiovascular center to read the test and produce a report. The mobile technicians and radiologists received compensation on a per-test basis.

The facility used billing software which required software-specific, non-CPT codes that were automatically translated to two CPT codes to bill insurers. This case involved two particular software-specific codes, which billed combination CPT codes automatically. First, the software-specific code for abdominal ultrasounds automatically generated CPT 76700 (abdominal ultrasound) and CPT 76770 (retroperitoneal ultrasound) codes. The government argued that these codes represented tests that require separate orders and are rarely performed on the same patient at the same appointment.

Second, the software-specific code for bilateral lower extremity venous studies automatically generated CPT 93970 (venous duplex ultrasound, bilateral) and CPT 93965 (non-invasive physiologic study of extremity veins) codes for billing. CPT 93965 was also billed when a technician reported that she had performed a unilateral lower extremity venous study. The government represented that these also were different tests. In fact, some of the center’s technicians admitted that they never performed CPT 93965 tests.

The cardiologist agreed that the tests were different and that automatic billing occurred, but disputed his knowledge of the practice and the extent of his involvement in the billing operations.

The government sought summary judgment on all of its claims.  As to its FCA claims, while it was undisputed that false claims were submitted to Medicare and Medicaid due to the automatic combination billing previously described, the claims had to be submitted “knowingly.”  Under the FCA, this can mean that a person actually knows that claims are improperly submitted, acts in deliberate ignorance of that fact, or acts in reckless disregard of whether false claims are being submitted.  In addition, the collective knowledge of employees cannot be used to prove knowledge on the part of a facility.  Rather, an individual employee must act knowingly to attribute the knowledge to the entity.  Because of disputes as to the cardiologist’s knowledge and involvement with the billing practices of the entity, the court denied the government’s motion for summary judgment as to its FCA claims.

However, the government also asserted a claim for payment by mistake of fact to recover claims that were improperly paid.  Because knowledge was not a requirement for that claim and the cardiologist did not dispute that claims were improperly paid, the court granted summary judgment to the government on the mistake of fact claim against the center in the amount of $682,947.74.