Haley v. Cmty. Mercy Health Partners (Summary)

EMPLOYMENT TERMINATION:  AGE DISCRIMINATION, ADA AND FMLA

Haley v. Cmty. Mercy Health Partners, No. 3:11-cv-232 (S.D. Ohio Jan. 28, 2013)

In this FMLA case, the United States District Court for the Southern District of Ohio overruled a hospital’s motion for summary judgment. A nurse brought suit against the hospital after she received a number of disciplinary actions that resulted in her termination.  The nurse took leave due to sick parents, a hospitalized spouse and to undergo treatments for cancer. She claimed that the hospital discriminated against her based on age and disability.

The district court held that the age discrimination claims were not entitled to summary judgment. The court stated that the nurse had sufficiently demonstrated that she was terminated from a position that she was qualified for, and that she was replaced by someone younger than her.  The court also stated that a reasonable jury could conclude that two younger nurses were treated more favorably; one nurse accumulated more tardies but was not terminated.

The district court held that summary judgment was not appropriate for the disability discrimination claims or the FMLA claims.  The court stated that the nurse had met her burden of demonstrating that she was discriminated against based on her disability.  The court believed that a reasonable jury could conclude that her leave should not have been classified as unauthorized.

While the hospital did provide nondiscriminatory reasons for terminating the nurse’s employment, the court held that a reasonable jury could find these reasons to be pretextual. The court stated that there was a factual dispute over the attendance violations and the site marking violations that were provided as grounds for termination. There were contradicting testimonies from the nurse’s supervisor and the hospital itself over what did and did not qualify for disciplinary action.

Bell v. Methodist Healthcare Memphis Hosps. (Summary)

EMPLOYMENT TERMINATION:  ADA

Bell v. Methodist Healthcare Memphis Hosps., No. 2:11-cv-02755-JPM (W.D. Tenn. Jan. 28, 2013)

The United States District Court for the Western District of Tennessee granted summary judgment in favor of a healthcare company, doing business as a number of hospitals, on a nurse’s claim of employment discrimination on the basis of her fibromyalgia.  Years later, she was transferred to the same day surgery unit of one of the company’s hospitals. From 2002 to 2009, various incidents and performance evaluations indicated that the nurse was distracted, was making unprofessional personal phone calls, needed to focus on her work, and needed to improve her time management and timeliness.  In February 2010, the nurse received a final warning, after a case in which she seemed confused, was delayed, missed an abrasion on the operative site, and made inappropriate comments.  Her employment was terminated in September 2010, after another incident, in which she breached a sterilization technique by attempting to prepare a needle in the hallway, without gloves on.  After the termination, she sought only one other nursing job and applied for, and received, federal disability benefits.  In 2011, she sued the company under the Americans with Disabilities Act of 1990 (ADA) and the Tennessee Human Rights Act, alleging discrimination based on her fibromyalgia. (The state law claims, however, were dismissed by the court, since the nurse failed to pursue them.)

The ADA prohibits discrimination against qualified individuals on the basis of a disability. A qualified individual is a person who, with or without reasonable accommodation, can perform the essential functions of his or her job.

The court found that the nurse could not perform the essential functions of her job. First, it found that the essential functions of the nurse’s job were undisputed. They included the use of specialized skill and judgment to assess patients and the prompt retrieval and documentation of patient information. Second, it found that the nurse could not satisfy these essential functions, based on the repeated reprimands that she received, her own admission that she did not seek other nursing employment due to her disability, and the award letter of disability benefits by the federal government, which stated that she was unable to work due to her disability. Since the court found that the nurse had not shown any evidence that she was otherwise qualified for her position, it granted summary judgment to the company.

Ruday v. Shore Mem’l Hosp. (Summary)

NEGLIGENCE

Ruday v. Shore Mem’l Hosp., No. A-2586-11T1 (N.J. Super. Ct. App. Div. Jan. 30, 2013)

The New Jersey Superior Court reversed a trial court’s grant of summary judgment to a hospital, in a negligence case where a high-risk patient fell out of bed, while her bed alarm was not activated. The hospital assessed the patient, an 86-year old woman, to be at a high risk of falling.  Because of this, she was placed in a bed with a rail and a motion-detecting alarm to notify hospital personnel when she attempted to leave the bed. Because the alarm sounds when placing the person back in the bed, it is turned off during this process and must be turned back on by the staff member, before leaving the room. There was no evidence that the patient’s alarm malfunctioned.  The fact that the alarm is on is indicated by a light, which is visible from the hallway.  In addition, individuals who are assessed to be at a high risk of falling have their high-risk assessment indicated on the door to their room. Nevertheless, the patient climbed out of the bed, over the rail, when the alarm was turned off, and fell. She then sued the hospital for the injuries that she sustained in the fall. The trial court granted summary judgment in favor of the hospital on her claim.

The appellate court reversed. Negligence requires the breach of a duty. The appellate court found that a hospital can establish a duty for its employees through the implementation of a protocol. In this case, the appellate court found that the protocol for patients with a high risk of falling established a duty for hospital employees. If the staff failed to follow the precautions regarding the bed alarm, which were set forth in that protocol, then the staff would have breached its duty to the patient to prevent her from falling.

A breach of a duty can be established without direct knowledge of what the staff did or did not do, where the incident involved was the type of occurrence that would not normally occur in the absence of negligence on the part of hospital employees. The appellate court, applying this legal doctrine, found that it was not necessary that the patient point to any particular hospital employee to establish her case. Rather, a jury could infer from the fact that the patient fell, when her bed alarm was not on, and that the hospital was in control of the bed alarm at the time of the fall, that hospital staff had failed in ensuring that the alarm was on and in protecting the patient. Since the patient’s complaint tended to show that no one, other than hospital staff, could have turned off the patient’s bed alarm, the appellate court held that the hospital was not entitled to summary judgment and remanded the case back to the trial court for further proceedings.

Ex parte Moulton (Summary)

STATE ACTION IMMUNITY

Ex parte Moulton, No. 1111283 (Ala. Jan. 25, 2013)

The Supreme Court of Alabama granted a petition and entered an order of summary judgment in favor of a state university hospital based on state immunity and state agent immunity. A physician brought suit against the university after his position was eliminated from the hospital and he was terminated. The physician claimed that he was denied due process after his termination and that his supervisor deceived him when he took the position. Both the supervisor and the hospital argued that they were immune from the suit.

The supreme court held that the university was immune from liability because the physician could not demonstrate that he was entitled to any of the rights that would have granted an exception to state immunity. The physician was an at will employee who was not entitled to any due process rights and, even if he were, the employee handbook stated that layoffs were exempt from due process appeals. The court stated that there was no clear indication that the physician’s supervisor had any intention of employing him for life.

The court also held that claims brought against the physician’s supervisor were barred by immunity. The supreme court stated that the supervisor was acting within the functions of his job when making the decision to eliminate the physician’s post. Furthermore, there was a four-year gap between the physician’s employment and the elimination of his position, which the court stated clearly indicated that the supervisor had no intention of deceiving the physician by hiring him and then eliminating the job.

Kenyon v. Hosp. San Antonio (Summary)

EMTALA

Kenyon v. Hosp. San Antonio, Civil No. 11-1883(FAB) (D. P.R. Jan. 17, 2013)

The United States District Court for the District of Puerto Rico dismissed an Emergency Medical Treatment and Active Labor Act (“EMTALA”) and medical malpractice lawsuit brought against a physician and his practice group by a patient who alleged that, on two different occasions, she visited an ER and was not provided with appropriate or adequate stabilizing treatment.  The court held that since physicians cannot be held personally liable under EMTALA, it did not have jurisdiction over the suit against the physician by virtue of the suit raising a federal claim.  The court noted that it could exercise supplemental jurisdiction over the patient’s malpractice claims against the physician (which are based on state laws) if the patient could show that the malpractice claims shared a common nucleus of operative facts with the EMTALA claims being lodged against the Medical Center.  The court held, however, that in this case no such common nucleus of operative facts existed.  In support of its conclusion, the court observed that the physician alleged to have committed malpractice was not present in the ER on the second visit, when the alleged EMTALA violation occurred.  Further, the two visits were separated by 23 days and the patient received medical care on numerous other occasions, from a number of other providers, in the intervening period.

Sebelius v. Auburn Reg’l Med. Ctr. (Summary)

REIMBURSEMENT APPEALS

Sebelius v. Auburn Reg’l Med. Ctr., No. 11-1231 (U.S. Jan. 22, 2013)

In a suit brought by several hospitals against the Department of Health and Human Services (“DHHS”), seeking adjustment of disproportionate share payments that were incorrectly calculated over a period of several years, the Supreme Court of the United States (“Court”) held that the lawsuits were barred by the statute of limitations because they involved appeals of Medicare claims that were over 10 years old and, by statute and regulation, reimbursement appeals must be filed within 180 days following notification of the intermediary’s reimbursement calculation or, when good cause has been shown, within three years.

The hospitals in this case had filed appeals with the Provider Reimbursement Review Board (“PRRB”) after learning of the success of another hospital which challenged its disproportionate share payments.  Because CMS had previously released only the results of its calculations and not the underlying data, the hospitals did not have definitive evidence of the miscalculation until they learned of the success of the other hospital.  Accordingly, they argued that the 180-day/three-year limitations should be subject to equitable tolling and should begin to run only once the PRRB’s ruling in the other matter became available to the public.  The PRRB rejected the hospitals’ appeals, noting that it had no authority to extend the statute of limitations, by equitable tolling or otherwise.  Accordingly, the hospitals filed suit.

Several such lawsuits made their way through federal trial and appellate courts, with a number of appeals courts divided on whether equitable tolling could apply in Medicare reimbursement appeals to the PRRB.  Accordingly, the Court decided to hear one such case and issue a ruling.

The Court held that the statute which sets a 180-day statute of limitations for appeals to the PRRB is not “jurisdictional” by nature and, accordingly, it does not serve as a complete bar to extensions of the statute of limitation for such appeals.  In turn, the Court held that the DHHS was entirely within its discretion to promulgate a regulation allowing the PRRB to extend the statute of limitations to three years upon a showing of good cause by the party requesting the appeal.

The Court rejected the notion that equitable tolling should apply to appeals to the PRRB, however.  In reaching this conclusion, the Court noted that equitable tolling has never been applied to an agency’s internal appeal deadline (as opposed to claims in courts of law).  Perhaps more importantly, the Court noted that equitable tolling is a concept that is generally applied because it is consistent with legislative intent.  But, in the case of the Medicare Act, it was never the legislature’s intent to allow expansive administrative or judicial review.  In fact, the Court noted, until 1972, the Act provided no avenue for such review and only after Congress ordered the PRRB was such review available and, at that time, the review was specifically subject to a 180-day filing deadline.  Lastly, the Court made it clear that the statutory scheme that allows Medicare reimbursement reviews through the PRRB was never intended to be unusually protective of provider claimants.  The Court noted that Medicare-participating providers tend to be sophisticated organizations with legal counsel and resources sufficient to internally identify errors in reimbursement and timely file challenges to such errors.

Disability Rights N.C. v. Moses H. Cone Mem’l Hosp. Operating Corp. (Summary)

PEER REVIEW PRIVILEGE

Disability Rights N.C. v. Moses H. Cone Mem’l Hosp. Operating Corp., No. 1:11CV812 (M.D. N.C. Jan. 17, 2013)

The United States District Court for the Middle District of North Carolina denied a hospital’s motion to dismiss a lawsuit that had been brought by a state-designated disability advocacy organization, which was seeking injunctive and declaratory relief from the court, to force the hospital to provide it with the medical and peer review records involving a mental health patient who died while restrained.  The advocacy organization was conducting an investigation of the patient’s death pursuant to the authority granted to it by the federal Protection and Advocacy for Individuals with Mental Illnesses Act (“PAIMI”).  The Act provided the advocacy organization with the authority to access records in the course of investigating allegations of abuse or neglect of individuals with mental illness.

The hospital supplied some of the requested records to the advocacy organization, but refused to provide internal investigation reports, claiming the peer review privilege provided under state law protected such reports from discovery and that privilege was not preempted by the PAIMI.  The court rejected the hospital’s arguments, holding that the peer review privilege did not apply at all in this circumstance since it involved an investigation by a federally-authorized agency, rather than a civil action against the hospital.  Second, the court noted that a number of federal appeals courts had interpreted the PAIMI to preempt state peer review statutes and there was no reason for this court not to follow suit.  Noting the unambiguous statutory language of the PAIMI, the court held that it preempted the state peer review statute.  Accordingly, peer review records would be discoverable and, in turn, the hospital’s motion to dismiss was denied.

Zawaideh v. Neb. Dep’t of Health and Human Servs. (Summary)

STATE LICENSING ACTIONS

Zawaideh v. Neb. Dep’t of Health and Human Servs., No. S-12-069 (Neb. Jan. 18, 2013)

The Supreme Court of Nebraska affirmed summary judgment in favor of Nebraska’s Attorney General (“AG”) and Department of Health and Human Services’ Regulation and Licensure Department (“DHHS”) in a case brought by a physician who claimed that the AG duped him into agreeing to an “assurance of compliance” agreement by emphasizing that it was not disciplinary in nature, despite the AG having knowledge that such agreements were being interpreted as disciplinary by outside sources and that entering into such an agreement could have negative effects on the physician.

This case involved a physician against whom a disciplinary licensure action was proposed following an investigation of his obstetrical care of a particular patient. After the physician repeatedly refused proposed settlements that included disciplinary actions, the AG offered the physician an “assurance of compliance,” emphasizing that this was not a disciplinary procedure.  The assurance of compliance document required the physician to agree not to practice obstetrics.  Since the physician had already given up obstetrics, he agreed.  As a result of this action becoming part of his profile, the state of Washington (where he also held a license) entered a disciplinary order against the physician and reported him to the National Practitioner Data Bank.  The physician alleged that, as a result, his board certification was terminated.

The physician filed suit against the Nebraska AG and DHHS alleging fraudulent and negligent misrepresentation.  The lower court dismissed the suit, finding that the claim was a contract claim subject to the state Contract Claims Act and, due to the physician’s failure to follow that Act, the AG and DHHS were entitled to sovereign immunity.  On appeal, the Supreme Court of Nebraska affirmed summary judgment, but for a different reason.

First, the court noted that the state (and, in turn, its agencies) is immune from suit unless it has specifically waived its sovereign immunity through some statutory scheme.  Notably, individuals may sue the state of Nebraska under the State Contract Claims Act and the State Tort Claims Act.  In this case, the court found the State Contract Claims Act to be inapplicable, holding that fraudulent and negligent misrepresentations claims are tort claims, rather than contract claims.  The court also found the State Tort Claims Act to be inapplicable since it applied to claims for money only – and the physician in this case was seeking declaratory relief (removal of the assurance of compliance from his record).

Unable to fit the physician’s claims within any other exception to the state’s sovereign immunity, the court upheld summary judgment in favor of the AG and DHHS.

Hasbun v. United States (Summary)

NEGLIGENT SUPERVISION

Hasbun v. United States, No. 12 C 2543 (N.D. Ill. Jan. 17, 2013)

The United States District Court for the Northern District of Illinois dismissed a lawsuit brought against a Medical Center and the United States Public Health Service (“the U.S.”) by a patient who alleged inappropriate touching during a gynecological examination and, in turn, negligence and negligent supervision by the Medical Center and the U.S. due to their failure to require physicians to have chaperones present during such examinations.

In dismissing the patient’s claims, the court noted that a claim of negligent supervision under Illinois law requires the patient to allege that the employer (in this case the U.S.) knew or should have known that the physician had a particular unfitness for his position so as to create a danger of harm to third persons.  The patient in this case failed to make any allegations that the Medical Center or U.S. had knowledge of the physician’s propensity to commit sexual assault.

In dismissing the negligence claim, the court noted that duty is an essential element of any such claim.  In this case, the patient’s only allegation of duty was that the Medical Center and U.S. should have had a policy requiring chaperones to be present.  But the patient failed to cite any authority for such a duty, other than an AMA guideline stating that chaperones should be available on request.  And even if the AMA guideline created a duty, the patient failed to allege that she requested a chaperone.  Accordingly, the court dismissed the patient’s complaint for failure to plead facts sufficient to state a claim, but gave leave for the patient to amend her complaint.

Ahmed v. Tex. Tech Univ. Health Sci. Ctr. — Jan. 2013 (Summary)

WHISTLEBLOWER

Ahmed v. Tex. Tech Univ. Health Sci. Ctr.
No. 07-11-00176 (Tex. App. Jan. 23, 2013)

The Court of Appeals of Texas dismissed a lawsuit brought by a physician against the medical school where he had served as an assistant professor of surgery and his supervisor, alleging that he was forced to resign in retaliation for reporting his concerns regarding a new surgeon’s credentials.  The court noted that the medical school, as a state institution, was entitled to sovereign immunity from suit, unless a specific exception to the immunity applied.  The court rejected the physician’s claim that he fell within the protections of the Texas Whistleblower Act, which provides an exception to sovereign immunity.  In support of its conclusion, the court noted that the physician could not have reasonably believed he was reporting a violation of the law to an appropriate law enforcement authority when he alerted two private hospitals and his supervisor of his concern that the new surgeon was misrepresenting her credentials.  The court also rejected the notion that hospital credentials and peer review committees were extensions of the state board of medicine because they were required to make certain reports to the board.