CASES
The Oklahoma Supreme Court reversed a lower court's grant of summary judgment in favor of a hospital, finding that questions remained regarding whether the hospital breached its duty of care to a nurse who was abducted from its parking garage. Monica Bray was employed by a nursing service and was working at St. John Hospital when she was abducted from St. John's parking garage at knifepoint and raped. Bray and her husband sued St. John Health System Inc and St. John Medical Center Inc for negligence. The trial court granted summary judgment for St. John, and the appeals court affirmed the trial court's decision. Bray appealed. Here, the high court held that the trial court must inquire whether evidence was presented to establish that St. John knew or had reason to know from past experience that it should reasonably anticipate criminal conduct in its parking garage. The high court noted that the evidence showed St. John's knowledge of several incidents occurring in its parking lots or garages, "[t]hus, the place and character of St. John's parking garage and St. John's past experience with a high rate of crime on its property gave rise to a duty to provide adequate precautions against criminal activity in its parking garage." Finding that questions remained regarding whether St. John breached its duty and whether the precautions St. John undertook were adequate to provide reasonable protection to its business invitees, the high court reversed the lower court's grant of summary judgment and remanded the case for further action by the trial court. [Bray v St. John Health System Inc, No. 103839 (Okla May 27, 2008).]
A federal district court in Michigan has refused to dismiss a lawsuit brought against 8 Detroit-area health systems alleging that they unlawfully conspired to depress nurses' wages. The complaint alleges that the hospitals conspired, in violation of federal antitrust law, to keep wages low by agreeing to exchange detailed nonpublic information about the compensation that hospital each is paying or will pay to its registered nurse employees. The complaint asserted that absent the alleged conspiracy, hospitals in the Detroit area would have responded to the national nursing shortage by substantially increasing registered nurse compensation. The court indicated that although the nurses' allegations were not specific to each defendant, they were sufficiently specific as to the common course of conduct to alert each defendant as to the factual basis underlying their claims. [Cason-Merenda v Detroit Med. Ctr No. 06-15601 (ED Mich March 31, 2008).]
An appeals court in Louisiana has ruled that a defendant-nurse staffing agency in a malpractice action involving one of its nurses was not precluded from asserting that the nurse was "dually employed" by the hospital where the alleged negligence occurred. The appeals court highlighted the "conflicting factual questions" in the case, noting that the nurse whose care was in question was an employee of the agency and paid by the agency but that she was controlled by the hospital at the time of the alleged incident and was instructed by the hospital's supervisory nurse in caring for the patient. [Lecroy v Interim Health Care Staffing of North Louisiana Inc, No. 43,080-CA (La App Ct April 2, 2008).]
The Oklahoma Supreme Court has held that the state wrongful death statute applicable in plaintiff parents' medical malpractice action affords a cause of action for the wrongful death of a nonviable, stillborn fetus. The underlying case arose after Amy Pino gave birth in September 2003 to a 20-week stillborn fetus at the Carl Albert Indian Health Care Facility (hospital). Amy and her husband (the Pinos) went to the hospital when Amy began experiencing severe cramping and vaginal bleeding. After receiving a urinary tract infection diagnosis, the Pinos returned home. Hours later, Amy arrived back at the hospital by ambulance and was diagnosed with a placental abruption. The treating physician ruptured the amniotic sac and delivered a stillborn fetus. The Pinos then brought a medical malpractice action, alleging that the medical care provided by the hospital and the treating physician deviated from acceptable standards. The Pinos alleged that the treating physician's diagnosis was erroneous and that the fetus was alive with a detectable heartbeat when the physician ruptured the amniotic sac. The trial court granted summary judgment in defendants' favor, concluding that Oklahoma law does not recognize a wrongful death action for a stillborn, nonviable fetus. The Pinos appealed. The high court ultimately concluded that such actions are clearly recognized under the Oklahoma Wrongful Death Statute. The Oklahoma Wrongful Death Statute, Okla Stat tit 12 [S] 1053, which took effect in 2003, provided that "[w]hen the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action [horizontal ellipsis] against the latter." The legislature amended the statute in 2005 to explicitly state that Section 1053 applied to "the death of an unborn child," which is defined as "the unborn offspring of human beings from the moment of conception." The high court determined that the 2005 amendment was a clarification of the law, not a substantive change. [Pino v United States, No. 105223 (Okla April 1, 2008).]
A California nurse's "vague" report to a hospital official about Medicare billing fraud is enough to support her retaliation counts under the False Claims Act and related state laws, according to the Ninth Circuit. The court found that the nurse's statement to her employer about "civil violations" at the hospital adequately disclosed that she was investigating the alleged billing fraud, a protected activity under the False Claims Act. (Mendiondo v Centinela Hospital Medical Center, 13 No. 10 Andrews Health Care Fraud Litigation Reporter 9, April 23, 2008).
A Texas appeals court has held that a nurse was entitled to pursue her negligent misrepresentation claim against her health system employer after she was investigated and reassigned for following the system's alleged unwritten policy allowing physicians to delegate certain duties to nurses. Plaintiff worked as a registered nurse in the endoscopy unit at Christus Spohn Health Systems Corporation d/b/a Christus Spohn Hospital Shoreline (Spohn). According to plaintiff, the hospital's unwritten policy permitted nurses, without the presence of a physician, to sedate a patient and, with the assistance of an endoscopic technician, observe the insertion of a colonoscope. On January 17, 2002, plaintiff was the nurse in charge of a colonoscopy to be performed by Dr Fred Brackett. The nurse prepped the patient and then learned that the physician could not be present to perform the procedure. The physician instructed plaintiff by telephone to continue with the procedure and begin removing the scope. She complied and advised the physician that she and the technician had discovered a small polyp. In accordance with the physician's instructions, a second, more experienced technician removed the polyp. The doctor then instructed plaintiff to continue removing the scope and complete the procedure. After the procedure, when plaintiff's supervisor learned what had transpired, plaintiff was placed on administrative leave and the matter was referred to the State Board of Nurse Examiners. The board concluded its investigation without taking any adverse action against plaintiff; however, she was told not to return to work in the endoscopy unit and instead was assigned to a position reviewing charts in the quality assurance department. Plaintiff sued the hospital alleging fraud, negligent misrepresentation, violation of her procedural due process rights, and intentional infliction of emotional distress. The appeals court found evidence that the hospital was aware that physicians were ordering nurses to start procedures without the physician being present, that there were no clear and precise policies and procedures within the unit as to what duties could be delegated, and that the hospital did not attempt to clarify the delegation policy until after it began investigating the incident. Thus, the court held that there was a question of fact regarding whether the hospital negligently communicated its delegation policy. [Wedgeworth v Christus Spohn Health Sys Corp, No. 13-05-446-CV (Tex Ct App April 10, 2008).]
An Alabama appeals court has held that a hospital was entitled under state law to the reimbursement of "reasonable" charges incurred in treating patients who were later compensated by the third-party responsible for their injuries. The appeals court found that testimony heard by the trial court was sufficient to establish the reasonableness of the charges sought by the hospital. [Roberts v University of Alabama Hospital, No. 2070256 (Ala Civ App April 18, 2008).]
The parents of a 14-year-old Texas child claim that a Houston hospital botched her care after brain surgery and "arranged for her demise" when she slipped into a coma. The parents allege that Memorial Herman Children's Hospital ignored their requests to continue curative treatment and entered 2 do-not-resuscitate orders in "flagrant disregard" of their wishes. (Lopez v Memorial Hermann Hospital System, 15 No. 12 Andrews Health Law Litigation Reporter 6, April 23, 2008).
A federal district court in Tennessee has held that certain incident reports and other documents requested by the estate of a deceased nursing home resident in a medical malpractice action are not privileged under state peer review and health data reporting laws. The US District Court for the Eastern District of Tennessee also ordered defendants to produce an amended privilege log identifying the documents that it claimed were still privileged and to describe how each document qualified as privileged. The patient's estate sued Maplewood Healthcare Center of Jackson Inc, a nursing home owned and operated by Sun Healthcare Group Inc. The medical malpractice action alleged that Brown received substandard care while he was a resident at the nursing home. The district court rejected defendants' "overbroadness" argument with respect to plaintiff's request for copies of all incident reports and other investigative documents relating to alleged lapses in Brown's care. The district court also concluded that reports prepared in the normal course of business by defendants relating to Brown's care were not protected under Tennessee Peer Review Law, Tenn Code, [S] 63-6-219, merely because they were provided to a peer review committee. The district court held that to the extent that some alternate source for responsive documents exists, the documents are not protected under the state's peer review statute and it cannot bar discovery. The district court also rejected defendants' claim of privilege under the Tennessee Health Data Reporting Act, Tenn Code [S] 68-11-211. Health Data Reporting Act requires the filing of "unusual event" and "corrective action" reports with the Tennessee Department of Health and states that such reports "shall be confidential and not subject to discovery." The district court found that reports filed with the Tennessee Department of Health are protected under the Health Data Reporting Act but only as to "those specific documents" and not to internal incident reports or other documents prepared by defendants. Finally, the district court rejected defendants' argument that discovery of the requested documents was barred by provisions in the Social Security Act, 42 USC [S] 1395i-3(b)(1)(B) and [S]1396r(b)(1)(B), relating to quality assurance committees and prohibiting a state from requiring disclosure of internal committee records. The court found that this privilege applies only to the committee's own records and not to documents generated outside the committee and submitted to the committee for its review. [Brown v Sun Healthcare Group In., No. 3:06-CV-240 (ED Tenn April 14, 2008).]
NEWS
A Los Angeles woman has been indicted for accessing the private medical records of celebrity patients at the University of California Los Angeles Medical Center and selling information obtained from those files to the media. The woman, an administrative specialist at the University of California Los Angeles Medical Center from 2006 until she was terminated on May 21, 2007, allegedly received at least $4,600 from the media outlet in exchange of providing the private medical information. She faces a potential sentence of 10 years in prison if she is convicted of the charge. (US Department of Justice. Press Release, April 29, 2008).
SETTLEMENTS/VERDICTS
A hospital system and a healthcare billing consulting company have agreed to pay more than $8 million to settle separate New Jersey federal court whistle-blower suits alleging Medicare fraud. [US ex rel Monahan v (Under Seal) 13 No. 10 Andrews Health Care Fraud Litig Rep 7, April 23, 2008.]
JCAHO
The Joint Commission on the Accreditation of Healthcare Organizations (JCAHO) has issued Sentinel Event Alert Issue 39, preventing pediatric medication errors, on April 11, 2008. The JCAHO notes that errors associated with medications are felt to be the most common type of medical error and are a significant cause of preventable adverse events. Experts agree that medication errors have the potential to cause harm within the pediatric population at a higher rate than in the adult population; the potential for adverse drug events in the pediatric inpatient setting is about 3 times as high as those for adults. According to JCAHO, a new study, which is the first to develop and evaluate a trigger tool to detect adverse drug events in an inpatient pediatric population, identified an 11.1% rate of adverse drug events in pediatric patients. This rate is far bigger than those described in previous studies. The study also showed that 22% of those adverse drug events were preventable, 17.8% could have been identified earlier, and 16.8% could have been mitigated more effectively. The JCAHO notes that children are more prone to medication errors and resulting harm because of several factors:
* Most medications used in the care of children are formulated and packaged primarily for adults. As a result, medications often must be prepared in different volumes or concentrations within the healthcare setting before being administered to children. The need to alter the original medication dosage requires a series of pediatric-specific calculations and tasks, each significantly increasing the possibility of error.
* Most healthcare settings are primarily built around the needs of adults. Many settings lack trained staff oriented to pediatric care, pediatric care protocols and safeguards, and/or up-to-date and easily accessible pediatric reference materials, especially with regard to medications. Emergency departments may be particularly risk-prone environments for children.
* Children are usually less able to physiologically tolerate a medication error because their renal, immune, and hepatic functions are still developing.
* Many children cannot communicate effectively to providers regarding adverse effects that medications may be causing.
According to JCAHO, the most common types of harmful pediatric medication errors are improper dose/quantity, omission error, unauthorized/wrong drug, and prescribing error, followed by wrong administration technique, wrong time, drug prepared incorrectly, wrong dosage form, and wrong route. Medication errors involving pediatric patients were most often caused by performance deficit, knowledge deficit, procedure/protocol not followed, and miscommunication, followed by calculation error, computer entry error, inadequate or lack of monitoring, improper use of pumps, and documentation errors. The JCAHO notes the following strategies to reduce the risk of medication errors in the pediatric setting:
* Standardize and identify medications effectively and the processes for drug administration.
* Ensure full pharmacy oversight-as well as the involvement of other appropriate staff-in the verifying, dispensing, and administering of both neonatal and pediatric medications.
* Use technology judiciously.
LEGISLATION
The Cincinnati Enquirer (4/10, O'Farrell) reports that the Ohio legislature is considering HB 355, legislation that would allow the state to pursue civil suits against providers who fraudulently bill Ohio's Medicaid program. The bill mirrors federal regulations, including a whistle-blower clause that allows private individuals to file complaints in the name of the state related to violations. The law would also provide protections for whistle-blowers against harassment or job loss and would entitle them to get 25% to 30% of any settlement awarded plus legal fees.
The New York Senate has approved a bill intended to provide protection to nurses in the workplace, reports the Binghamton Press & Sun-Bulletin. According to the US Department of Justice, approximately 430,000 nurses each year are victims of violent crimes in the workplace. Furthermore, a recent survey by the American Nurses Association found that 17% of registered nurses had been physically assaulted at work during a 1-year period; 25% listed physical assault as one of the top safety concerns on the job. This legislation would make it a class C felony to assault or cause physical injury to an on-duty nurse.
Section Description
This column provides executive summaries of developments in legal and regulatory issues related to healthcare, lists a bibliography of pertinent healthcare law-related articles, and discusses interesting health law court decisions.