HOSPITAL LITIGATION REPORTER CASES IN THIS ISSUE: Volume 25 Number 4 April 2014

Transcription

1 Volume 25 Number 4 April 2014 HOSPITAL LITIGATION REPORTER In The News In The Courts In The Law Journals Jurisdiction Index Cases Index Topical Index Back Page Certificate of Need CASES IN THIS ISSUE: Hospital has standing to challenge issuance of CON to competing institution 51 Employment Employment discrimination claim by nurse against hospital inadequately alleged 51 Physician seeks information hospital considered in withdrawing employment offer 52 Hospital demonstrates non-pretextual reason for termination of employee 52 Terminated medical resident s action against hospital dismissed 53 Expert Testimony Medical expert report not required in premises liability action brought against hospital 53 Patient s expert report in negligence action against hospital is sufficient 54 Immunity State hospital is immune from liability as to patient s healthcare liability claims 54 Malpractice Claim alleging patient injured during move from bed must be submitted to review panel 55 Hospital is not liable for death of infant absent evidence of causation 55 Negligence claim against hospital following death of premature infant may proceed 56 Patient sufficiently raised triable issues of fact in medical malpractice action 56 Hospital s counsel may communicate ex parte with nonparty employees 56 Negligence Patient discharged against medical advice files negligence lawsuit against hospital 57 Patient s negligence claim against hospital arising from slip and fall dismissed 57 Premises Liability Non-patient slip and fall claim against hospital requires expert report 58 Privacy Rights Patient s Privacy Act claims against medical center may proceed to trial 58 Staff Privileges Hospital enjoined from restricting oncologists access to radiation treatment facilities 59 Physician not required to prevail administratively before filing whistleblower suit 59 Standing to Sue Qui tam action against hospital alleging Medicare overbilling adequately supported 60 Statute of Limitations Mother s medical malpractice damages action against hospital is prescribed 60 Workers Compensation Injured doctor s suit against hospital not precluded under workers comp statute 61 Statute limits employer s liability for injuries to workers occurring in hospital 61 Strafford Publications 590 Dutch Valley Road, P.O. Box 13729, Atlanta, GA (800)

2 25 Hosp.Lit.Rep. 50 Hospital Litigation Reporter April 2014 In The News New Medicare rule requires doctors to authorize inpatient admissions A newly clarified Medicare rule requires doctors to sign off on all inpatient hospital admissions before discharging patients. In 2013, the Centers for Medicare and Medicaid Services (CMS) issued a final rule clarifying that certain surgical and diagnostic services are only appropriate when a physician expects a patient to require a hospital stay lasting through two midnights. CMS recently further clarified that although nurses, medical residents and physician assistants can write orders to admit patients, a doctor s authorization is required in order to bill for inpatient status. If the doctor does not approve the admission before the patient is discharged, the hospital can only bill the government for outpatient care. Hospital association challenges new CON rules A Washington hospital association filed a lawsuit seeking to invalidate new rules adopted by the state health department concerning the state s certificate of need (CON) requirements. Under the old rules, hospitals needed a CON in order to complete the sale, purchase or lease of a healthcare facility. Under the department s new CON rules, it will review relatively small decisions such as changes to billing or human resources and determine whether a CON is awarded. The lawsuit seeks to challenge the new rules as going beyond protecting patient care and outside the department s authority. Each application for review under the rules requires a $40,000 filing fee. Healthcare company to pay $85 million in whistleblower case A Florida healthcare company that runs multiple medical facilities agreed to pay $85 million to resolve allegations that its compensation agreements with physicians violated the False Claims Act and the Stark Law. The Stark Law limits physician referrals in order to avoid conflicts of interest and prohibits hospitals from submitting Medicare claims for certain services based on patient referrals from physicians having a financial relationship with the hospital. The suit alleged that Halifax Health violated the Stark Law by entering into compensation agreements with physicians that included compensation based on physician referrals. The case was about to begin trial when the settlement was reached. The lawsuit was originally filed in U.S. ex rel. Baklid-Kunz v. Halifax Hosp. Med. Ctr., No (M.D. Fla. notice of settlement filed Mar. 10, 2014 ) Wrongful death suit filed against hospital following patient's fall The family of a man who died in a Wyoming hospital filed suit alleging negligent medical care and wrongful death. According to the lawsuit, Ed Bindl presented to Evanston Regional Hospital in February 2012 with complaints of nausea, vomiting and alcohol dependence. During his stay, Bindl became dizzy and fell, striking his head on the ground. The family s lawsuit claims doctors failed to order any studies of his head or brain. Bindl fell again and hit his head a second time, again with doctors failing to order studies of his head. Bindl ultimately died of a head injury. The lawsuit seeks damages for medical negligence and wrongful death. Bindl v. Evanston Hosp. Corp., No (D. Wyo. complaint filed Mar. 5, 2014) Lawsuit claims hospital discharged a woman suffering an active stroke A Kansas woman alleges that a hospital discharged her despite signs that she was suffering from an active stroke at the time. According to the lawsuit, Melissa Hadley presented to Hays Medical Center in February 2012 with difficulty speaking, dizziness and inability to focus her eyes. The hospital failed to perform adequate testing and discharged her that day. Hadley continued to suffer the stroke, resulting in permanent injuries. The lawsuit seeks more than $15 million in damages for negligence and violation of the Emergency Medical Treatment and Labor Act. The lawsuit also names as a defendant the chiropractor whose treatment Hadley alleges caused a blood clot to dislodge, causing the stroke. Hadley v. Hays Med. Ctr., No (D. Kan. complaint filed Feb. 20, 2014) Hospital Litigation Reporter is published monthly by Strafford Publications, Inc., 590 Dutch Valley Road, N.E., P.O. Box 13729, Atlanta, GA , (404) custserv@straffordpub.com. Web site: One year: $497 + $24.95 S&H. Two years: $894 + $49.90 S&H (a $100 savings). Back issues are available. Multiple subscription discount rates on request. For assistance or to renew your subscription: Call: (800) , ext. 10, Fax: (404) , custserv@straffordpub.com, or Online: Executive Editor: Amy K. Davis, Esq. Research/Database Editor: Plua Vue. Editorial Production Manager: Christina Sacco. Publisher: Richard M. Ossoff. Vice President: Jennifer F. Brown, Esq. Copyright 2014 by Strafford Publications, Inc. All rights reserved. REPRODUCTION IS PROHIBITED. No part of this publication may be reproduced or transmitted in any form, by any means, electronic or mechanical, including photocopy, recording or any information storage or retrieval system, without prior written permission from the publisher. Making cover-to-cover copies or faxes of this newsletter or forwarding it via or other electronic means to any person without our prior written permission is not fair use. Such copying, faxing and forwarding are all illegal under Federal Copyright law (17 USC 101 et seq.). ISSN Cite as [Vol. No.] Hosp.Lit.Rep. [Page No.]. References to HLawWk refer to Health Law Week, also available from Strafford Publications, Inc. IMPORTANT NOTICE: This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. 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3 April 2014 Hospital Litigation Reporter 25 Hosp.Lit.Rep. 51 In The Courts Certificate of Need Standing Civil Procedure Hospital has standing to challenge issuance of CON to competing institution W. Creek Med. Ctr. Inc. v. Romero, No (Va. Ct. App. Feb. 4, 2014) The Virginia Court of Appeals reversed a trial court s dismissal for lack of standing of an action brought by a hospital against a state health commissioner challenging the commissioner s issuance to a competing hospital of a certificate of public need (CON) permitting a hospital expansion. West Creek Medical Center Inc. submitted an application to the Virginia State Health Commissioner to establish a new hospital with 97 acute care beds in Doochland County, Va. Acknowledging the underutilization of existing beds in planning district 15, West Creek proposed relocating 97 beds from another hospital in the district. St. Francis Medical Center separately submitted an application for 54 additional beds to its existing hospital in Chesterfield County, Va., which was also in planning district 15. The commissioner issued a CON to St. Francis only. West Creek sought judicial review, and a trial court found West Creek was not an aggrieved party and, therefore, did not have standing to appeal the commissioner s decision. West Creek appealed. The court of appeals found that based on the state statute governing the issuance of CONs, the state legislature intended to allow access to parties who were in the position of West Creek. Under the statute, West Creek was required to show it had some direct interest in the subject matter of the proceeding. The court found West Creek had no obligation to present evidence of potential harm arising from the granting of a CON to St. Francis, but was only tasked with presenting evidence that its proposed hospital would reasonably meet a public need. The court noted that if the law were as the trial court stated, the commissioner could purposely immunize herself from appellate review by failing to find any potential harm. Based on a review of the record, the court of appeals held West Creek had an immediate, pecuniary and substantial interest in the commissioner s decision to grant a CON in favor of St. Francis. Accordingly, West Creek had standing to pursue judicial review. The court of appeals accordingly reversed the trial court s judgment of dismissal and remanded the action for further consistent proceedings. Employment Nurses Family & Medical Leave Employment discrimination claim by nurse against hospital inadequately alleged Mecca v. Fla. Health Servs. Ctr. Inc., No (M.D. Fla. Feb. 3, 2014) The U.S. District Court for the Middle District of Florida granted summary judgment in favor of a hospital in an action brought by a nurse formerly employed by the hospital alleging employment discrimination. Daniel Mecca was employed with Tampa General Hospital as a peripherally inserted central catheter (PICC) nurse from 2004 through Mecca informed the hospital he suffered from panic attacks and an anxiety condition, which he claimed was a disability for which he was entitled to accommodation under the Americans with Disabilities Act (ADA). Mecca took Family and Medical Leave Act (FMLA) leave on numerous occasions for that condition during his employment. Health & Hospital Law Advisory Board Alan D. Bloom, General Counsel Care1st Health Plan Monterey, California Lynda Faldmo, R.N., JD, Executive Director for Health System Risk Management University Health Care Salt Lake City, Utah Edward S. Kornreich, Partner Health Care Law Group, Proskauer Rose, LLP New York, New York Winifred Carson-Smith, Esq. Nursing Law Consultant Washington, D.C. Herb Ford, JD, Director of Professional Compliance University Physicians, University of Missouri Columbia, Missouri Glen Reed, Partner Chair - Healthcare Practice Group King & Spalding Atlanta, Georgia Guy Collier, Partner Health Law Department McDermott, Will & Emery Washington, D.C. Donald H.J. Hermann, Prof. of Law & Philosophy Director, Health Law Institute DePaul University College of Law Chicago, Illinois Penny G. Westfall, RN, JD Legal Counsel Department, Sutter Health Sacramento, California

4 25 Hosp.Lit.Rep. 52 Hospital Litigation Reporter April 2014 On May 8, 2010, Mecca returned to work after several consecutive weeks on FMLA leave but did not respond to requests to assess a patient and insert a PICC line. After several communications between the hospital and Mecca indicating that he would be subject to discipline, he resigned. Mecca then sued the hospital, alleging violation of the ADA arising from the hospital s failure to accommodate his disability and asserting claims of employment discrimination and retaliation. The hospital moved for summary judgment. Following a review of the record, the district court found Mecca received FMLA leave whenever he requested it and that he could not identify one instance when he was not granted leave upon request. Moreover, despite having taken leave on numerous occasions, the leave did not improve Mecca s ability to have regular attendance and there was no indication that it would do so at any point in the near future. The court found that under applicable precedent, an employer is not required to wait indefinitely for an employee s medical condition to improve or to be corrected, especially where, as here, the record contains no suggestion the condition will improve. The court held that under those circumstances, the continued provision of leave was not a reasonable accommodation under the FMLA and Mecca failed to show that provision of such leave would allow him to perform the essential functions of a PICC nurse. Accordingly, Mecca failed to establish he was a qualified person with a disability. After further holding that even if Mecca were a qualified person, his complaint failed to establish the hospital discriminated against him based on his disability, the district court granted the hospital s motion for summary judgment. Physicians Records Physician seeks information hospital considered in withdrawing employment offer Davis v. Kewanee Hosp., No (Ill. App. Ct. Feb. 25, 2014) The Illinois Appellate Court affirmed the dismissal of a physician s lawsuit seeking disclosure of the information a hospital considered in connection with the decision to withdraw an offer of employment. The exceptions to the confidentiality provisions in two statutes were inapplicable. Dr. Albert R. Davis, a licensed anesthesiologist, sought a full-time position at Kewanee Hospital. He received an offer of employment that was contingent on credentialing. Kewanee withdrew the offer of employment weeks later. Davis requested in writing that Kewanee provide him with copies of all information used in reaching the decision to withdraw the employment offer. Kewanee refused to provide the information. Davis sued Kewanee. The complaint alleged the hospital withdrew its employment offer based on defamatory remarks by one or more individuals at Davis prior place of employment. Davis claimed Kewanee s refusal to disclose the requested information violated the Medical Studies Act (MSA) and the Health Care Professional Credentials Data Collection Act (Credentials Act). Kewanee moved to dismiss, arguing the exception to the rule of confidentiality for data upon which an employment decision is based did not apply. The trial court dismissed the complaint. Davis appealed. The court of appeals held the MSA did not give Davis a private right of action. First, the statute s purpose is to ensure that medical professionals effectively engage in the evaluation of their peers in the interest of advancing the quality of healthcare. The court of appeals found the MSA was enacted to benefit the public. Davis was not within the class of people the statute was intended to benefit. Second, the loss of an employment prospect was not the type of injury the MSA was designed to prevent. The injury the legislature sought to prevent was the increased rates of death and illness that could occur without candid review and evaluation. Third, a private right of action was not consistent with the MSA s purpose of ensuring honest peer evaluation. Davis goal of identifying the individual or individuals whom he believed defamed him would discourage the sharing of information. The Credentials Act did not mandate disclosure, as Davis claimed. The statute required healthcare entities to use a uniform form in the credentialing process in order to standardize and regulate the collection of credentials data. Davis was not a member of the class the statute was designed to benefit. The correct assessment and validation of medical professionals qualifications benefits the general public. The statute was not enacted to prevent the injury of loss of employment. Giving Davis access to confidential information would not promote honest peer evaluation. Handicapped Persons Hospital demonstrates non-pretextual reason for termination of employee Ketchum v. St. Cloud Hosp., No (D. Minn. Jan. 30, 2014) The U.S. District Court for the District of Minnesota granted summary judgment in favor of a hospital in an employment discrimination action brought by a former employee arising from the employee s termination for misconduct. Rae Ketchum began working for St. Cloud Hospital as a registered polysomnographer, or sleep technician, in October Ketchum received satisfactory work reviews, but her reviews noted she had difficulty working with other sleep center employees and patients. Ketchum s employment file included incidents of her raising her voice with coworkers and included numerous patient complaints.

5 April 2014 Hospital Litigation Reporter 25 Hosp.Lit.Rep. 53 After a work incident in which Ketchum reportedly became upset and acted with hostility toward coworkers who were helping her troubleshoot a technical problem, Ketchum was placed on probation for that and other similar misconduct. After additional incidents involving threatening behavior toward coworkers, including Ketchum s reference to a kill list she maintained that included some of their names, St. Cloud terminated her employment. Ketchum sued St. Cloud for disability discrimination and marital status discrimination, and St. Cloud moved for summary judgment. The district court found the evidence presented by Ketchum failed to undermine the conclusion that St. Cloud had a good faith belief Ketchum engaged in misconduct warranting her termination. Multiple coworkers informed St. Cloud management that Ketchum spoke about her kill list and being involved in motorcycle gangs, and that the gangs included people who knew how to make people disappear. Moreover, Ketchum was placed on probation for different forms of employee misconduct three months prior to the reports concerning those statements. As a result, the district court found St. Cloud demonstrated it had a good faith, non-pretextual reason for terminating Ketchum and granted St. Cloud s motion for summary judgment. Medical Schools Terminated medical resident s action against hospital dismissed Nayyar v. Mt. Carmel Health Sys., No (S.D. Ohio Feb. 18, 2014) The U.S. District Court for the Southern District of Ohio denied a motion for reconsideration of an order dismissing an action brought by a terminated medical resident against the hospital that terminated him. In July 2007, Sunil Nayyar transferred into Mount Carmel Health Systems Internal Medicine Residency Program. Nayyar s supervisor was Dr. John Weiss. During his residency, Nayyar made three unsuccessful attempts to insert an arterial line into a comatose patient, and thereafter asked nurses to insert the A-line, which was beyond the scope of the nurse s practice. Weiss began an investigation of the incident and instructed Nayyar not to discuss the incident until it was completed. Weiss subsequently terminated Nayyar on the ground that he discussed the events surrounding the A-line placement in violation of that instruction. Nayyar sued Mt. Carmel, alleging his termination was in violation of the Ohio whistleblower protection statute. In a prior ruling, the district court granted summary judgment in favor of Mt. Carmel, and the case came before the court on Nayyar s motion for reconsideration. The district court found Nayyar did not identify any intervening change of law, nor did he present any evidence that was not previously available. Nayyar also did not cite any binding case law that established the court made an error. The court concluded Nayyar did no more than reargue his case by claiming the court misinterpreted the applicable facts and law. The court further held Nayyar misconstrued the court s opinion, and argued incorrectly that the court required Nayyar to show he had a correct belief that there was criminal conduct. Instead, the court previously found that even making every favorable inference for Nayyar, his deposition testimony failed to ascribe any statements to the defendants, which could reasonably be construed to demonstrate intent to harm parties. Accordingly, and after finding no merit to Nayyar s remaining arguments, the court denied his motion for reconsideration. Expert Testimony Civil Procedure Premises Liability Medical expert report not required in premises liability action brought against hospital Methodist Healthcare Sys. of San Antonio Ltd. v. Dewey, No (Tex. App. Feb. 5, 2014) The Texas Court of Appeals affirmed a trial court s denial of a hospital s motion to dismiss a personal injury action for failure to comply with statutory requirements relating to healthcare liability claims. Thomas Dewey, who walked with the aid of crutches, went to Northeast Methodist Hospital to visit his mother, who was a patient there. As Dewey was entering the hospital, an electronic door closed on him, knocking him to the ground and fracturing his hip. Dewey required immediate surgery after the fall. Dewey sued the hospital, alleging premises liability. He did not file a medical expert report under a statute governing healthcare liability claims. The hospital moved to dismiss for failure to file an expert report pursuant to the statute. The trial court denied the hospital s motion, and the hospital filed an interlocutory appeal. The court of appeals found Dewey alleged a simple premises liability claim or a garden-variety, slip-and-fall claim. Dewey s safety contention did not involve healthcare, directly or indirectly. He was not a patient of the hospital, was not seeking medical or healthcare, was not assisted by healthcare personnel and was not an employee of the hospital. Instead, Dewey was merely a visitor to an establishment that happened to be a hospital. The court held Dewey alleged breaches of the standard of ordinary care applicable to a visitor present in a common area of the hospital and that duty was no different from the duties imposed on other businesses that allowed visitors to be pres-

6 25 Hosp.Lit.Rep. 54 Hospital Litigation Reporter April 2014 ent on their premises. Moreover, Dewey s claim did not implicate a standard of care that required medical or medical safety expert testimony to prove or refute its merits. Accordingly, and after finding no merit to the hospital s remaining arguments, the court of appeals affirmed the trial court s denial of the hospital s motion to dismiss and remanded for further consistent proceedings. Negligence Patient s expert report in negligence action against hospital is sufficient Standard of Care Columbia N. Hills Hosp. Subsidiary L.P. v. Bowen, No CV (Tex. App. Jan. 30, 2014) unpublished The Texas Court of Appeals held a trial court did not abuse its discretion in overruling a hospital s objections to a patient s expert report and dismissing the hospital s motion to dismiss the patient s negligence action. The patient s expert was qualified and his report was sufficient and adequately established causation. Dr. Dustin Ray performed surgery on Larry Bowen s left elbow at Southwest Surgical Hospital. During the surgery, Bowen s ulnar nerve was severed. Thereafter, Bowen began experiencing numbness and weakness in his left hand. Ray decided to perform an ulnar decompression surgery of Bowen s left elbow. He admitted Bowen to North Hills Hospital and performed the procedure. When the symptoms did not improve, Bowen consulted neurologist Dr. Stephen Troum for a second opinion. After performing some tests, Troum advised Bowen the ulnar nerve was dead and that in his opinion, Ray had cut the nerve during the prior elbow surgery. Bowen consulted a second neurologist who reached the same conclusion that the nerve was dead. Brown then sued Columbia North Hills Hosp. Subsidiary L.P., d/b/a North Hills Hospital, Ray and others alleging various acts of negligence. However, Bowen did not specify which defendants committed what negligent acts. The trial court subsequently granted Bowen s nonsuit of his claims against Ray. Thereafter, Bowen served North Hills Hospital with an expert report from Dr. William J. Van Wyk, a hand and upper extremity specialist who was board certified in orthopedic surgery. North Hills Hospital filed objections to Van Wyk s report and a motion to dismiss. The trial court overruled North Hills Hospital s objections and denied its motion to dismiss. North Hills Hospital appealed. The appeals court affirmed the trial court s judgment. Contrary to North Hills Hospital s argument, Van Wyk was qualified to opine on the standard of care applicable to the hospital, his report fairly summarized the applicable standard of care for the hospital and explained how the hospital failed to meet that standard, and the report adequately discussed causation so as to inform the hospital of the conduct that Bowen called into question and to provide a basis for the trial court to conclude Bowen s claims had merit. Immunity Negligence Jurisdiction State hospital is immune from liability as to patient s healthcare liability claims Cervantes v. McKellar, No CV (Tex. App. Feb. 19, 2014) The Texas Court of Appeals held a trial court properly granted a state hospital s plea to the jurisdiction, where the hospital was entitled to governmental immunity from suit under the Texas Tort Claims Act (TTCA) as to a patient s healthcare liability claims. Maria Cervantes was admitted to Titus Regional Medical Center during the course of her high-risk twin pregnancy with suspicion of preeclampsia. Approximately 28 hours after her admission, a nonstress test was initiated at 5:43 p.m. The test indicated that one of the fetus heart rate patterns was nonreassuring, indicating fetal distress. At 6:20 p.m., the administering nurse contacted Cervantes physician to inform him of the nonreassuring fetal heart rate tracings. When the twin Alek was delivered via caesarian section at 7:28 p.m., he was diagnosed with encephalopathy. Cervantes brought an action, asserting healthcare liability claims against Titus, among others. Specifically, Cervantes alleged Titus was negligent in monitoring the external fetal heart rate monitor... overseeing the external fetal heart rate monitor... interpreting the external fetal heart rate monitor, and... responding to the external fetal heart rate monitor. Titus, a governmental unit of the state of Texas, filed a plea to the jurisdiction, alleging Cervantes failed to demonstrate a use or misuse of property that caused the complained of injuries, as required for a waiver of governmental liability from suit under the TTCA. The trial court agreed and granted Titus plea. Cervantes appealed. The appeals court affirmed the trial court s judgment. Cervantes allegations of negligent interpretation and delayed response to information did not involve the use of tangible personal property and, thus, did not fall within the TTCA s waiver provisions.

7 April 2014 Hospital Litigation Reporter 25 Hosp.Lit.Rep. 55 Malpractice Negligence Claim alleging patient injured during move from bed must be submitted to review panel Andrews v. Our Lady of the Lake Ascension Cmty. Hosp., No CA-1237 (La. Ct. App. Feb. 18, 2014) The Louisiana Court of Appeal affirmed a trial court s judgment in favor of a hospital in a negligence claim brought by a former patient arising from an injury that occurred when the patient was being moved from her bed to a wheelchair. On Nov. 26, 2011, Patricia Andrews was admitted to St. Elizabeth Hospital for an apparent seizure she suffered earlier that day. Andrews later alleged that following treatment and discharge, hospital staff attempted to move her from her bed to a wheelchair, despite Andrews being asleep and unable to ambulate on her own. The hospital staff allegedly dropped Andrews, causing multiple fractures to her foot and ankle. Andrews and her husband sued the hospital and other medical service providers for negligence. The defendants raised an exception, contending the suit was premature because the Andrews had not submitted their claims to a medical review panel as required under the state Medical Malpractice Act (MMA). The trial court granted the exception, and the Andrews appealed. The court of appeal held the allegation that hospital staff dropped Andrews when they attempted to move her from her bed to a wheelchair clearly fell within the definition of malpractice provided in the MMA. The court rejected the Andrews contention that the alleged acts did not satisfy the six-factor test applicable to determining whether an act is malpractice for purposes of the MMA. Under applicable precedent, claims alleging the mishandling of a patient, including loading and unloading, were covered by the MMA and required to be submitted to a medical review panel. The court found it was immaterial that Patricia might have been discharged at the time of the incident, and further held the Andrews allegations that the bed and/or wheelchair were defective did not remove her claim from the penumbra of the MMA given that her allegations separately included a claim for medical malpractice. Accordingly, the court of appeal affirmed the trial court s judgment. Standard of Care Hospital is not liable for death of infant absent evidence of causation Washington v. Waring, No CA 0078 (La. Ct. App. Feb. 18, 2014) The Louisiana Court of Appeal held a trial court erred in entering a medical malpractice judgment against a hospital stemming from the death of an infant given the absence of evidence establishing a causal link between the nursing staff s deviations from the standard of care and the infant s death. Shantell Washington went into premature labor and gave birth to her son, Alex, at a gestational age of 35 weeks and 6 days at Slidell Memorial Hospital and Medical Center on Wednesday, Oct. 11, 2000, at 8:41 a.m. Dr. Phyllis Waring was the attending pediatrician, providing coverage for Washington s chosen pediatrician, Dr. Helen Stevenson. Waring examined Alex on Thursday morning and he appeared to be doing well. On Thursday night at 9:00 p.m., an attending nurse noted that Alex, for the first time, was jaundiced, a condition causing a yellowing of the skin. The nurse did not notify Waring of the jaundice. Waring examined Alex on Friday, Oct. 13, 2000, at 9:00 a.m., the day he was discharged from the hospital. She conducted a head to toe examination and found no abnormalities, but noted mild jaundice. Alex and Washington were discharged with instructions to make a follow-up appointment with Stevenson and to contact Stevenson if Alex s condition changed. After discharge, Alex s physical condition appeared fine until Monday afternoon, Oct. 16, 2000, when Washington noticed Alex developed yellow spots in his eyes. Concerned, she called the hospital nursery and spoke to a nurse who advised her to keep a previously scheduled appointment the following morning with the lactation nurse and to call if anything changed. The next morning, the lactation nurse noted Alex was jaundiced all over and told Washington to take Alex to Stevenson s office. Although Stevenson performed a lumbar puncture and attempted an exchange transfusion, Alex died on Oct. 20, Washington and Alex Ducre Sr. brought a medical malpractice action against Slidell and Waring, asserting breaches of the standard of care in the treatment of Alex that caused or contributed to his death. The trial court rendered judgment against both defendants, and the defendants appealed. The court of appeal reversed the trial court s judgment as to the hospital. In so ruling, the court of appeal agreed with the hospital that the trial court erred in finding causation because the record contained no evidence that the nursing staff s failure to report the jaundice and increased respiration to Waring caused or contributed to Alex s death. The plaintiffs failed to offer any proof that such notifications to Waring would have changed anything in the course of the infant s treatment.

8 25 Hosp.Lit.Rep. 56 Hospital Litigation Reporter April 2014 However, the court of appeal affirmed the trial court s judgment as to Waring. In so ruling, the court of appeal rejected Waring s argument that the trial court erred in failing to assign any comparative fault to Washington. Waring contended Washington should have contacted her pediatrician when Alex s condition appeared to change. The fact that Washington first contacted the hospital as opposed to her pediatrician did not give rise to any fault on her part. The record established that Washington complied with the healthcare provider s instructions and acted in a reasonably prudent manner in monitoring her child s condition and reporting that condition to the providers. Standard of Care Negligence claim against hospital following death of premature infant may proceed Robinson v. Bronx-Lebanon Hosp. Ctr., No (N.Y. App. Div. Jan. 28, 2014) The New York Supreme Court, Appellate Division, held summary judgment was inappropriate in a mother s action against a hospital stemming from the death of her premature infant. A triable issue of fact existed as to whether the hospital departed from good and accepted practice in its treatment of the infant. Koran Robinson was born prematurely at Bronx-Lebanon Hospital Center with a gestational age of 25 weeks and birth weight of one pound, nine ounces. Koran had low Apgar scores and his respiratory rate was irregular. Despite treatment and monitoring, he exhibited complications and was pronounced dead 30 days after he was born due to necrotizing enterocolitis. Robin Robinson, Koran s mother, sued the hospital. The trial court denied the hospital s motion for summary judgment, and the hospital appealed. The appellate division affirmed the trial court s judgment. The plaintiff raised a triable issue of fact as to whether the hospital departed from good and accepted practice in failing to recognize Koran s hyperglycemia and treat him, including performing a sepsis workup four days before he died. The plaintiff presented expert testimony based on the infant s medical records that the baby s hyperglycemia was a sign of sepsis, which, in turn, is a sign of necrotizing enterocolitis. The expert s testimony was supported by the deposition of a resident and attending doctor who treated the infant. Accordingly, the appellate division concluded the plaintiff presented evidence supporting the conclusion that the baby was developing necrotizing enterocolitis as early as Nov. 3, Expert Testimony Patient sufficiently raised triable issues of fact in medical malpractice action Walcott v. N.Y. & Presbyterian Hosp., No (N.Y. App. Div. Feb. 13, 2014) The New York Supreme Court, Appellate Division, held a trial court did not err in denying summary judgment to a hospital and physician in a patient s medical malpractice action. The hospital and physician failed to make out their prima facie entitlement to summary judgment and the patient sufficiently raised triable issues of fact. Mizpeh Walcott brought a medical malpractice action against New York and Presbyterian Hospital and Dr. Eva Fischer. The action was based on testimony that Walcott and her daughter saw Fischer remove foul-smelling gauze from Walcott s abdomen, where Fischer performed surgery several weeks earlier at the hospital, suggesting that her postoperative infection was caused by material negligently left in her abdomen. The trial court denied the defendants motion for summary judgment, and they appealed. The appellate division affirmed the trial court s judgment. The defendants failed to make out their prima facie entitlement to summary judgment since their expert did not address the testimony of Walcott and her daughter that they saw foreign material being removed from Walcott s abdomen weeks after her surgery. In any event, the same deposition testimony, together with Walcott s expert, sufficiently raised triable issues of fact in opposition to the motion. Discovery Patient Confidentiality Hospital s counsel may communicate ex parte with nonparty employees Youngs v. PeaceHealth, No (Wash. Jan. 23, 2014) Upon review of orders regarding ex parte contact in consolidated medical malpractice cases, the Washington Supreme Court held that a defendant hospital s attorney client privilege trumps state law prohibiting defense counsel in a malpractice case from engaging in ex parte communications with a claimant s nonparty treating physician when that physician is an employee of the hospital. Marc Youngs developed sepsis that resulted in the loss of his legs and hands after undergoing lung surgery at PeaceHealth s St. Joseph Hospital. Youngs sued PeaceHealth for malpractice. The trial court entered an order permitting PeaceHealth s counsel to have ex parte contact with its nonparty employees who provide care to Youngs. Aolani Glover had several cardiac arrests at Harborview Medical Center. Doctors had to insert a pacemaker and balloon pump to repair damage to Glover s coronary artery. Glover was subsequently transferred to the University of

9 April 2014 Hospital Litigation Reporter 25 Hosp.Lit.Rep. 57 Washington Medical Center (UWMC) where she underwent heart transplant surgery. Glover sued Harborview, alleging her injuries resulted from the treating physicians failure to timely recognize her cardiac symptoms. The trial court entered a protective order precluding Harborview s counsel from having ex parte contact with any of Glover s treating physicians at UWMC. The trial court certified its order in Youngs and Glover for discretionary review. The court of appeals consolidated the cases and transferred them to the supreme court. The Washington case Loudon v. Mhyre prohibits defense counsel in medical malpractice actions from communicating ex parte with the plaintiff s nonparty treating physicians. In the consolidated cases before it, the supreme court concluded the Loudon rule must yield to the corporate attorney client privilege where the ex parte contact enables corporate counsel to determine what triggered the litigation. Accordingly, a hospital s defense counsel can have privileged ex parte communications with the plaintiff s nonparty treating physicians, who are also the hospital s employees, when the communications are with a physician who has direct knowledge of the events underlying the lawsuit and the communications concern the facts of the alleged negligent incident. The Loudon rule would still bar ex parte interviews about prior and subsequent treatment. The supreme court affirmed the trial court s order prohibiting defense counsel in Glover from having ex parte contact with Glover s treating physicians at UWMC. The physicians were not present when the alleged negligence occurred at Harborview. In Youngs, the supreme court affirmed the trial court s order permitting defense counsel to communicate ex parte with Youngs nonparty treating physicians. However, those physicians were required to have firsthand knowledge of what triggered the lawsuit and communications were limited to the facts of that incident. Negligence Informed Consent Patient discharged against medical advice files negligence lawsuit against hospital Ingutti v. Rochester Gen. Hosp., No (N.Y. App. Div. Feb. 14, 2014) The New York Supreme Court, Appellate Division, affirmed a trial court s grant of summary judgment in favor of a hospital in an action brought by a former patient and his wife arising from injuries sustained by the patient following his discharge against medical advice. Mary and Frederick Ingutti sued Rochester General Hospital for medical negligence, alleging Frederick sustained injuries when he left the hospital against medical advice and was found approximately two hours later by the police, disoriented and with frostbitten fingers that required partial amputation. The hospital moved for summary judgment on the Inguttis negligence claim. The trial court denied the hospital s motion, and the hospital appealed. The appellate division concluded that pursuant to an applicable New York Court of Appeals precedent, the hospital did not have a duty to prevent Frederick Ingutti from leaving the hospital against medical advice. As a result, the hospital had no concomitant duty to ensure his safe return home. The court cited with approval an applicable precedent that stated there were few principles more basic than that the members of a free society may, with limited exceptions, come and go as they please. The appellate division further held that to restrain the plaintiff under the facts alleged would have exposed the hospital to liability for false imprisonment. The appellate division held that although Frederick was admitted to the hospital for medical treatment, there was no statute or principle of common law that would permit the hospital to force him to remain in the hospital when he decided to leave. Accordingly, the appellate division reversed the trial court s judgment and remanded the action with instructions to grant summary judgment in favor of the hospital on the Inguttis negligence claim. Premises Liability Patient s negligence claim against hospital arising from slip and fall dismissed Currin v. Rex Healthcare Inc., No. COA (N.C. Ct. App. Feb. 18, 2014) The North Carolina Court of Appeals affirmed a trial court s judgment on the pleadings in favor of a hospital in a negligence action brought by a former patient arising from a slip and fall accident occurring on the hospital grounds. Donna Currin underwent surgery to treat her breast cancer on Nov. 30, Currin thereafter underwent radiation therapy at Rex Hospital. On Dec. 9, 2009, as Currin, accompanied by her daughter, was leaving the hospital after receiving radiation treatment, she suddenly fell and landed on her face. Currin s daughter, Donna Lynn Currin, observed a plastic object in plain sight on the pavement. The object was later identified as the plastic base into which traffic stanchions were sometimes inserted. Currin was taken to the emergency room and treated for a broken nose. She sustained facial scarring as a result of the incident. Currin sued the hospital for negligence. A trial court granted summary judgment in favor of the hospital, and Currin appealed. The court of appeals found the record indicated the stanchion base that Currin alleged caused her to fall was six inches in diameter and approximately two inches tall. At the time of the accident, the weather was clear and no leaves or other ob-

10 25 Hosp.Lit.Rep. 58 Hospital Litigation Reporter April 2014 jects concealed the base, which was of a different color than the surrounding pavement. The court found that based on applicable precedent, the object qualified as an apparent hazard for purposes of North Carolina negligence law. The cases relied on by Currin involved the presence of a factor that could have obstructed the plaintiff s ability to see an apparent hazard or operated to distract the plaintiff s attention from an apparent hazard. Because the record contained no evidence of any such obstruction or potential distraction, the court of appeals concluded Currin failed to raise a fact issue as to the hospital s negligence. The court of appeals accordingly affirmed the trial court s judgment. Premises Liability Expert Testimony Non-patient slip and fall claim against hospital requires expert report Negligence Mem l Hermann Hosp. Sys. v. Galvan, No CV (Tex. App. Jan. 28, 2014) The Texas Court of Appeals held a non-patient slip and fall claim against a hospital is a healthcare liability claim under the Texas Medical Liability Act requiring an expert report. Sylvan Galvan brought an action against Hermann Hospital System, d/b/a Memorial Hermann Southwest Hospital, asserting a slip and fall negligence claim. According to Galvan s petition, she sustained personal injuries as a result of a fall that occurred in a hallway at the hospital. She alleged that while visiting a relative who was a patient at the hospital, she slipped and fell on water in a hospital hallway that was coming from a men s restroom. The hospital moved to dismiss, asserting Galvan s claim was a healthcare liability claim and she failed to timely serve an expert report in an attempt to satisfy Texas Civil Practice and Remedies Code (a). The hospital asked the trial court to award it reasonable attorneys fees and court costs. In response, Galvan pointed out that at the time of the occurrence underlying her claim, she was not a patient of the hospital or on its premises seeking to become a patient; rather, she was visiting a relative who was a hospital patient. Thus, she argued, she was not required to file an expert report under (a) because her slip and fall claim was not a healthcare liability claim. The trial court denied the hospital s motion to dismiss, and the hospital appealed. The appeals court reversed and remanded with instructions that the trial court dismiss Galvan s claim with prejudice and award the hospital reasonable attorneys fees and court costs. Under binding precedent from the Texas Supreme Court and the appeals court, Galvan s slip and fall claim was a claim based upon an alleged departure from accepted standards of safety and, thus, was a healthcare liability claim. Therefore, Galvan was required to comply with (a) s expert report requirements. Because she failed to make any attempt to do so, the trial court erred in denying the hospital s motion to dismiss. Privacy Rights Records Patient s Privacy Act claims against medical center may proceed to trial Babatu v. Dallas Veterans Affairs Med. Ctr., No (N.D. Tex. Feb. 18, 2014) Jurisdiction The U.S. District Court for the Northern District of Texas held a medical center was not entitled to summary judgment as to a patient s claim under the Privacy Act regarding disclosure violations. The court also ruled dismissal of the patient s privacy claim against the medical center under the Texas Occupations Code was appropriate for lack of subject matter jurisdiction. Aaron Babatu sued the Dallas Veterans Affairs Medical Center (DVAMC) and Rebeakh Jackson, alleging claims against the medical center for disclosure violations under the Privacy Act and the Texas Occupations Code. The complaint also included Texas common law claims against Jackson for invasion of privacy by intentional intrusion on seclusion, invasion of privacy by public disclosure of private facts and intentional infliction of emotional distress. The basis for Babatu s privacy claims against the medical center was that his private information contained in the medical center s computer database and patient inquiry menu, including information regarding his participation in drug treatment, was accessed, viewed and disclosed by Jackson to medical center police officers, even though Jackson and the medical center police officers did not need the information to perform their job duties. Babatu alleged that as a result of Jackson s accessing his records, he suffered both emotional and economic damage. The medical center moved for summary judgment on Babatu s privacy claims against it under the Privacy Act and the Texas Occupations Code. The district court sua sponte dismissed with prejudice Babatu s privacy claim under the Texas Occupations Code for lack of subject matter jurisdiction. The United States, as sovereign, is immune from suit unless it consents to be sued. Thus, unless Congress consented to a cause of action against the United States, no court has jurisdiction over such claim. Here, there was no indication or evidence that Congress consented to a cause of action against the United States in any capacity under the Texas Occupations Code. The district court also denied the medical center s motion for summary judgment as to Babatu s claim under the Privacy Act. Genuine disputes of material fact existed as to whether the medical center s disclosure adversely affected Babatu and whether the disclosure was intentional or willful.

11 April 2014 Hospital Litigation Reporter 25 Hosp.Lit.Rep. 59 Staff Privileges Civil Procedure Physicians Hospital enjoined from restricting oncologists access to radiation treatment facilities Pac. Radiation Oncology L.L.C. v. Queen s Med. Ctr., No (9th Cir. Feb. 24, 2014) The Ninth U.S. Circuit Court of Appeals affirmed a district court s grant of a preliminary injunction sought by certain radiation oncologists in an action challenging a hospital s restriction on the plaintiffs use of the hospital s radiation oncology facilities. Certain Hawaii-based radiation oncologists (plaintiffs) had their privileges to perform certain medical procedures at the Queen s Medical Center revoked when the medical center decided to move to an employment-based business model, permitting only employees to use its radiation oncology facilities. The plaintiffs sued the medical center, alleging violations of their due process rights and seeking injunctive relief. A district court granted the plaintiffs motion for a preliminary injunction, and the medical center appealed. The Ninth Circuit concluded the district court correctly determined the plaintiffs were likely to succeed on the merits of their due process claim. Under an applicable Hawaii Supreme Court precedent, a private hospital s decision to refuse to extend staff privileges to a licensed doctor without proper procedural due process could violate the state constitution if the hospital were quasi-public. The supreme court precedent held that a private hospital was quasi-public if it received more than nominal government involvement in the form of funding. The Fourth Circuit took judicial notice of the fact that Hawaii appropriated to the medical center $1.5 million to operate an organ transplant center. Based on that funding as well as the medical center s historic ties to the state, the Fourth Circuit found it was likely the plaintiffs would succeed on their claim that the medical center qualified as quasi-public. Moreover, the record contained evidence that the medical center based its decision to revoke the plaintiffs privileges, at least in part, on concerns about the competence of the plaintiff physicians who were members of practice group Pacific Radiation Oncology L.L.C. The Fourth Circuit noted that the revocation of privileges on the basis of professional competence or conduct triggered due process rights under the medical center s bylaws, and as a result, concluded the plaintiffs were likely to succeed on their claim for denial of due process. Accordingly, the Fourth Circuit affirmed the district court s judgment. Jurisdiction Administrative Law Physician not required to prevail administratively before filing whistleblower suit Fahlen v. Sutter Cent. Valley Hosps., No. S (Cal. Feb. 20, 2014) The California Supreme Court held a physician need not prevail in an administrative mandate action challenging the termination of his staff privileges in order to sue the hospital for retaliating against him in violation of the healthcare facility whistleblower statute. Dr. Mark Fahlen had staff privileges at Memorial Medical Center, which was operated by Sutter Central Valley Hospital. Fahlen had several heated exchanges with nursing staff after nurses allegedly failed or refused to follow his patient care instructions. Fahlen reported the substandard or insubordinate nursing activity to nursing supervisors or by written complaint to the hospital administration. The hospital allegedly responded by terminating Fahlen s staff privileges. Instead of filing a petition for administrative mandate challenging the termination, Fahlen sued Sutter and others for retaliation in violation of Health & Safety Code That section prohibits any health facility from retaliating against members of its medical staff because the member presented a complaint or report concerning quality of care, services or conditions at the facility. The defendants moved to dismiss the action on the grounds that Fahlen could not bring a civil suit under unless he first succeeded by administrative mandamus in overturning the hospital s action. The trial court denied the motion. The court of appeal reversed (see 23 Hosp.Lit.Rep. 156, October 2012), holding Fahlen could pursue those claims based on , rather than on the common law, even though he had not previously sought and obtained a mandamus judgment against the hospital s decision. The court of appeal s holding conflicted with that of another appellate decision, Nesson v. Northern Inyo County Local Hospital Dist., 204 Cal.App.4th 65 (2012). The supreme court granted the defendants petition for review for the sole purpose of resolving the conflict. The supreme court concluded that when a physician claims, under , that a hospital s quasi-judicial decision to restrict or terminate his staff privileges was itself a means of retaliating against the physician because he reported concerns about the treatment of patients, the physician need not first seek and obtain a mandamus judgment setting aside the hospital s decision before pursuing a civil suit. Section declares a policy of encouraging workers in a healthcare facility to report unsafe patient care. The statute implements that policy by forbidding a healthcare facility to retaliate or discriminate in any manner against such a worker because he engaged in such whistleblower action. Accordingly, the supreme court affirmed the court of appeal s judgment. To the extent Nesson was inconsistent with its conclusion, the supreme court disapproved that decision.

12 25 Hosp.Lit.Rep. 60 Hospital Litigation Reporter April 2014 Standing to Sue Statute of Limitations Medicare Fraud Malpractice Damages Qui tam action against hospital alleging Medicare overbilling adequately supported United States v. Halifax Hosp. Med. Ctr., No (M.D. Fla. Feb. 6, 2014) The U.S. District Court for the Middle District of Florida denied a hospital s motion for summary judgment in a qui tam action brought under the False Claims Act (FCA), alleging overbilling for Medicare services. Elin Baklid-Kunz brought a qui tam action as a relator and on behalf of the United States against Halifax Hospital Medical Center, alleging violation of the FCA arising from actions taken to overbill Medicare. Halifax contended Baklid-Kunz lacked standing under Article III of the U.S. Constitution to seek a civil penalty under the FCA. Halifax further argued the FCA s delegation of civil law enforcement authority to seek civil penalties to vindicate public rights violated the Appointments Clause of Article II of the Constitution. The case came before the court on Halifax s motion for summary judgment. The district court noted it was settled law under U.S. Supreme Court precedent that Congress could not erase the standing requirements of Article III by statutorily granting the right to sue to a person who would not otherwise have standing. Under separate precedent, the Supreme Court found a qui tam relator under the FCA had Article III standing based on the well-established principle that the assignee of a claim had standing to assert the injury in fact suffered by the assignor, and the long tradition of qui tam actions in England, the American colonies and the early United States. Accordingly, and after finding no merit to Halifax s related arguments, the district court denied its motion for summary judgment as to its Article III standing claim. The district court separately rejected Halifax s argument that the Appointments Clause of Article II permitted civil litigation vindicating public rights only where conducted by Officers of the United States, and that the FCA was unconstitutional insofar as it permitted non-appointed private parties to conduct such litigation. Under applicable U.S. Supreme Court precedent, because qui tam relators do not satisfy the definition of an officer, they were not officers within the meaning of Article II and, as a result, the FCA s qui tam provisions did not run afoul of the Appointments Clause. As a result, Halifax s motion for summary judgment on that basis was also denied. (For earlier decisions in this case, see 20 HLawWk 406, July 8, 2011; 21 HLawWk 212, Apr. 6, 2012: and 23 HLawWk 10, Jan. 31, 2014.) Mother s medical malpractice damages action against hospital is prescribed Kitchens v. Northshore Reg l Med. Ctr., No CA 1193 (La. Ct. App. Feb. 14, 2014) unpublished The Louisiana Court of Appeal held the applicable statutory prescriptive period barred a mother s action against a hospital for medical malpractice damages allegedly due to the hospital s failure to inform her of her infant daughter s hearing impairment after a newborn screening test. Jessica Kitchens daughter, Alexis Laing, was born on Dec. 13, 2006, at Northshore Regional Medical Center. Although hearing screenings performed on the baby on the same or next day showed further testing was required, Kitchens alleged she was not informed of those results and the need for follow-up appointments. In November 2009, testing showed the child had moderate to severe hearing loss in both ears. After filing a successful complaint with the medical review panel on Apr. 9, 2010, Kitchens sued Northshore on Dec. 8, 2011, seeking damages due to Northshore s alleged negligence, which Kitchens asserted caused her daughter to develop a severe communication disorder affecting her speech and language development and cognition. The trial court granted Northshore s exception of prescription and motion to dismiss, and Kitchens appealed. The court of appeal affirmed the trial court s judgment. La. Rev. Stat. 9:5628 provides a maximum prescriptive period of three years from discovery of the malpractice to file suit. The court of appeal noted that the alleged malpractice was based on Northshore s failure to inform Kitchens of her daughter s hearing test results and to schedule a follow-up appointment, which occurred on December 13 and/or 14, Kitchens learned of her daughter s hearing impairment in November 2009, within the three-year period for filing her claim, but she did not file her claim with the medical review panel until Apr. 9, 2010, which was beyond the three-year period from the date of the alleged malpractice. Moreover, the court of appeal noted Kitchens allegations showed she brought her medical malpractice action more than three years after the date of the alleged medical malpractice and, therefore, her action was prescribed.

13 April 2014 Hospital Litigation Reporter 25 Hosp.Lit.Rep. 61 Workers Compensation Employment Injured doctor s suit against hospital not precluded under workers comp statute Jurisdiction Wabash County Hosp. Found. Inc. v. Lee, No. 85A CT-291 (Ind. Ct. App. Feb. 13, 2014) unpublished The Indiana Court of Appeals held a trial court acquired subject matter jurisdiction over an anesthesiologist s action alleging assault or battery against a hospital and nurse employed by the hospital on the ground that injuries sustained by the anesthesiologist did not fall within the exclusive jurisdiction of the Indiana Worker s Compensation Act. Dr. Hai Lee was an 89-year-old anesthesiologist, who had surgery privileges at Wabash County Hospital. In April 2010, medical personnel at the hospital initiated an investigation into Lee s ability to continue practicing anesthesiology based on some concerns raised by her coworkers. Lee was offered a leave of absence by the hospital, which suspended her surgery privileges, while her fitness to practice medicine was evaluated. On June 18, 2010, Carol Riley, a nurse employed by the hospital, received a phone call from an individual in human resources, advising her that Lee was in the recovery room area. As Riley approached the surgery area, she noticed Lee exit the physician s lounge and enter the surgery area. As Lee was checking her blood pressure, Riley accosted her, inquiring why she was there and asking her to leave. Riley reached out and touched Lee s left arm to physically remove her from the area. As a result, Lee s arm required arthroscopic repair. Lee sued the hospital and Riley seeking damages for injuries sustained as a result of Riley s assault or battery. The defendants moved to dismiss for lack of subject matter jurisdiction, claiming the complaint fell within the province of the act. The trial court granted the defendants motion. Subsequently, the trial court granted Lee s motion to correct error and vacated its prior order in the defendants favor. The defendants appealed. The appeals court affirmed the trial court s judgment. At the time of the injury, Lee was not performing services for the hospital or caring for patients, but was merely tending to her own health. As such, her injury was not incidental to her employment but rather, a risk personal to her for which there was no recourse under the act. Thus, the court of appeals concluded the act was not applicable and the trial court acquired subject matter jurisdiction over Lee s cause. Damages Statute limits employer s liability for injuries to workers occurring in hospital N.Y. Hosp. Med. Ctr. of Queens v. Microtech Contracting Corp., No. 1 (N.Y. Feb. 13, 2014) The New York Court of Appeals affirmed a lower court s dismissal of an action brought by a hospital against the employer of two illegal aliens who were injured while performing work on the hospital s premises, seeking indemnification for any damages the hospital might incur in related underlying litigation. In early 2008, New York Hospital Medical Center retained Microtech Contracting to undertake demolition in a basement room that housed an incinerator at the hospital s Flushing, Queens location. Microtech hired Luis and Derardo Lema, two illegal aliens who were not legally employable in the United States to perform that work. While performing the demolition, vibrations caused by the demolition tools caused a metal chimney or flue to dislodge and fall, injuring both workers. The Lemas received workers compensation benefits, which were paid by Microtech s insurer. The Lemas sued the hospital for violations of the state labor law. After a trial court granted summary judgment in favor of the Lemas on liability, the hospital sued Microtech for common law and contractual contribution and indemnification to recover any damages the hospital incurred in the labor law litigation. Microtech moved to dismiss the action on the grounds that 11 of the state Workers Compensation Law barred the hospital s action because the Lemas did not suffer a grave injury, as required to support such a claim. A trial court granted Microtech s motion to dismiss, and the appellate division affirmed. The court of appeals granted certiorari. The court of appeals noted that 11 explicitly limited an employer s exposure to third-party liability to those situations where the employee suffered a grave injury or the employer entered into a written contract of contribution or indemnification with a third party. Here, the record clearly supported a finding that the Lemas did not suffer grave injuries and there was no preexisting agreement for contractual contribution or indemnification. As a result, Microtech was entitled to the safe harbor provided by 11, and the court of appeals therefore affirmed the appellate division s judgment.

14 25 Hosp.Lit.Rep. 62 Hospital Litigation Reporter April 2014 In The Law Journals How the FDA can help manage the health information explosion Ryan Abbott, Big Data & Pharmacovigilance: Using Health Information Exchanges to Revolutionize Drug Safety, 99 Iowa L. Rev. (2013) Our society creates a huge amount of information each day, including health information, more of which is increasingly stored electronically. It is nearly impossible to keep up with the flow of information, even for those whose job it is to analyze that information. In addition, it is unclear where the division of responsibilities lies with respect to who must analyze the information. Government, private industry and academia play roles in processing the information created by the healthcare industry. According to Ryan Abbott, the government should play the central role in structuring the healthcare information system, but should take a flexible, creative approach in doing so. The federal Food and Drug Administration (FDA) has principal responsibility for regulating the pharmaceutical industry. The FDA plays a key role before drugs or medical devices reach the market by requiring a rigorous preapproval process, and the FDA, under the Food, Drug, and Cosmetic Act, requires pharmaceutical manufacturers to continue to monitor the pharmaceuticals for potential risks. Because it is impossible for manufacturers to identify all potential risks prior to a drug s introduction to the market and clinical trial populations are different from the general population, the post-approval requirements may be more important than the preapproval requirements. The trials the FDA requires at the preapproval stage are called randomized controlled trials. The trials are randomized in order to eliminate selection bias and reduce the risk of confounding variables. However, like any sort of study, the randomized controlled trials have drawbacks, as well. For example, the randomized controlled trials require a great deal of resources and human capital, and studies have shown that bias creeps into randomized controlled trials despite efforts to eliminate bias. For post-approval monitoring, the FDA has an adverse event reporting system. The system consists of reports made by healthcare providers and healthcare consumers, as well as other third parties, regarding adverse events that accompany the use of pharmaceuticals. The FDA may follow up on information reported in the system. In addition, the FDA created the Sentinel System in 2008, which provides additional opportunities to track and monitor safety concerns regarding pharmaceuticals and medical devices in the marketplace. The task of regulating pharmaceuticals is a difficult job, and many of the problems the FDA does not find during the preapproval process could not have been found because of the many variables at play. In addition, the FDA faces staff shortages and budget shortfalls, which makes its job even more difficult. A number of high-profile disasters, such as Vioxx, raised criticism of the FDA, as well. Despite the shortcomings in the regulatory environment, there is a continued push to create more information related to the provision of healthcare services. As more electronic health records are created, more concerns about privacy and unauthorized uses of the health information arise. While the FDA s shortcomings may raise concerns about the proliferation of information related to pharmaceutical use, the increased information may make the FDA s monitoring efforts more effective because of the increased data to analyze. The author suggests that both the government and the pharmaceutical manufacturers will benefit significantly from the growth of the health information exchanges.

15 April 2014 Hospital Litigation Reporter 25 Hosp.Lit.Rep. 63 Jurisdiction Index NINTH CIRCUIT Pac. Radiation Oncology L.L.C. v. Queen s Med. Ctr. 59 CALIFORNIA Fahlen v. Sutter Cent. Valley Hosps. 59 FLORIDA U.S.D.C. MIDDLE DISTRICT Mecca v. Fla. Health Servs. Ctr. Inc. 51 U.S. ex rel. Baklid-Kunz v. Halifax Hosp. Med. Ctr. 50 United States v. Halifax Hosp. Med. Ctr. 60 ILLINOIS Davis v. Kewanee Hosp. 52 INDIANA Wabash County Hosp. Found. Inc. v. Lee 61 KANSAS U.S.D.C. Hadley v. Hays Med. Ctr. 50 LOUISIANA Andrews v. Our Lady of the Lake Ascension Cmty. Hosp. 55 Kitchens v. Northshore Reg l Med. Ctr. 60 Washington v. Waring 55 MINNESOTA U.S.D.C. Ketchum v. St. Cloud Hosp. 52 NEW YORK Ingutti v. Rochester Gen. Hosp. 57 N.Y. Hosp. Med. Ctr. of Queens v. Microtech Contracting Corp. 61 Robinson v. Bronx-Lebanon Hosp. Ctr. 56 Walcott v. N.Y. & Presbyterian Hosp. 56 NORTH CAROLINA Currin v. Rex Healthcare Inc. 57 OHIO U.S.D.C. SOUTHERN DISTRICT Nayyar v. Mt. Carmel Health Sys. 53 TEXAS Cervantes v. McKellar 54 Columbia N. Hills Hosp. Subsidiary L.P. v. Bowen 54 Mem l Hermann Hosp. Sys. v. Galvan 58 Methodist Healthcare Sys. of San Antonio Ltd. v. Dewey 53 U.S.D.C. NORTHERN DISTRICT Babatu v. Dallas Veterans Affairs Med. Ctr. 58 VIRGINIA W. Creek Med. Ctr. Inc. v. Romero 51 WASHINGTON Youngs v. PeaceHealth 56 WYOMING U.S.D.C. Bindl v. Evanston Hosp. Corp. 50 Cases Index Andrews v. Our Lady of the Lake Ascension Cmty. Hosp. 55 Babatu v. Dallas Veterans Affairs Med. Ctr. 58 Bindl v. Evanston Hosp. Corp. 50 Cervantes v. McKellar 54 Columbia N. Hills Hosp. Subsidiary L.P. v. Bowen 54 Currin v. Rex Healthcare Inc. 57 Davis v. Kewanee Hosp. 52 Fahlen v. Sutter Cent. Valley Hosps. 59 Hadley v. Hays Med. Ctr. 50 Ingutti v. Rochester Gen. Hosp. 57 Ketchum v. St. Cloud Hosp. 52 Kitchens v. Northshore Reg l Med. Ctr. 60 Mecca v. Fla. Health Servs. Ctr. Inc. 51 Mem l Hermann Hosp. Sys. v. Galvan 58 Methodist Healthcare Sys. of San Antonio Ltd. v. Dewey 53 N.Y. Hosp. Med. Ctr. of Queens v. Microtech Contracting Corp. 61 Nayyar v. Mt. Carmel Health Sys. 53 Pac. Radiation Oncology L.L.C. v. Queen s Med. Ctr. 59 Robinson v. Bronx-Lebanon Hosp. Ctr. 56 U.S. ex rel. Baklid-Kunz v. Halifax Hosp. Med. Ctr. 50 United States v. Halifax Hosp. Med. Ctr. 60 W. Creek Med. Ctr. Inc. v. Romero 51 Wabash County Hosp. Found. Inc. v. Lee 61 Walcott v. N.Y. & Presbyterian Hosp. 56 Washington v. Waring 55 Youngs v. PeaceHealth 56

16 25 Hosp.Lit.Rep. 64 Hospital Litigation Reporter April 2014 Topical Index AMERICANS WITH DISABILITIES ACT (ADA) Employment discrimination 51 BIRTH-RELATED INJURIES Failure to diagnose infant s sepsis 56 Nursing standard of care 55 CERTIFICATE OF NEED 51 Standing 51 DISCOVERY Malpractice, ex parte communication with nonparty treating physician 56 EMPLOYMENT FMLA retaliation 51 Hospital tech, termination 52 Medical residents, termination 53 Nurses, disability discrimination 51 Physicians, withdrawal of employment offer 52 EMTALA Discharge of patient suffering stroke 50 EXPERT TESTIMONY Negligence 54 Premises liability Non-patient slip and fall 58 Visitor fall 53 FAMILY AND MEDICAL LEAVE ACT Retaliatory claim 51 FRAUD False Claims Act, standing to seek civil penalties 60 Stark Law 50 False Claims Act 50 IMMUNITY Negligence 54 State hospital, failure to allege misuse of property 54 INFORMED CONSENT Patient discharged against medical advice 57 MALPRACTICE Birth-related injuries 55, 56 Discovery, ex parte communication with nonparty treating physician 56 Medical review panel, claim alleging injury to patient being moved 55 Postoperative infection, gauze left in patient 56 Statute of limitations, discovery of newborn s hearing impairment 60 MEDICAL SCHOOLS Employment, medical resident termination 53 NEGLIGENCE Discharge of patient suffering stroke 50 Expert testimony 54 Immunity, state hospital 54 Informed consent 57 Patient discharged against medical advice 57 Patient fall at hospital 57 NURSES Employment, disability discrimination 51 Standard of care, birth-related injuries 55 PHYSICIANS Employment, withdrawal of offer 52 Staff privileges, revocation 59 Workers compensation 61 PREMISES LIABILITY Expert testimony Visitor fall 53 Non-patient fall at hospital 58 Patient fall at hospital 57 PRIVACY RIGHTS Medical center employee access of patient records 58 RECORDS Privacy, medical center disclosure of patient records 58 STAFF PRIVILEGES Physicians, termination 59 Revocation, medical center s move to employment-based model 59 STANDING TO SUE False Claims Act, civil penalties 60 STATUTE OF LIMITATIONS Malpractice, discovery of newborn s hearing impairment 60 WORKERS COMPENSATION Limit of employer s liability for hospital injuries 61 Physician injured at hospital while off duty 61 WRONGFUL DEATH Patient hospital fall 50 Subscribe To Hospital Litigation Reporter To receive your own copy or additional copies for your staff, fill out a copy of this form and mail it to Strafford Publications. One year $497; Two Years $894 (a $100 savings). Bill me. P.O. # Check enclosed. Charge VISA / MC / AMEX / DISC Name Title Company Card # Address Exp. Date Phone City/State Zip Fax Mail to: Strafford Publications, Inc. Call: (800) Fax: (404) P.O. Box custserv@straffordpub.com Atlanta, GA USA Website: HLRQIA Site Licenses Available Every attorney in your office can receive Hospital Litigation Reporter each week at very low cost. Print, electronic or both we ll tailor the arrangements to fit your specific needs. Site licenses, customized to your requirements, are available for individual offices, whole departments, or entire firms. Call Customer Service at , ext. 10, for details and a price quote (or custserv@straffordpub.com).