Holland & Hart Healthcare Law Blog

THE GREAT NURSE ANESTHETIST “OPT OUT” DEBATE

 

 

Under Medicare rules Certified Registered Nurse Anesthetists (“CRNAs”) must be supervised by a physician, typically an anesthesiologists or perhaps by a surgeon in rural areas where anesthesiologists are not available.  Medicare has a state “opt out” provision which permits CRNAs to practice without supervision of a physician.  To date, 15 states have chosen to opt out and others like Colorado are considering doing the same.  Anesthesiologists are compensated for supervising CRNAs and can supervise up to 3 at a time because they are not required to be in the same room.

UNION LIABILITY FOR LAUNDERING HOSPITAL DIRTY LINEN IN PUBLIC?

    A California Court of Appeals struck down a $17 million dollar defamation judgment in favor of Sutter Health against a union, Unite Here, which was engaged in a labor dispute with a nationwide laundry company, Angelica Textile Services, Inc. Unite Here engaged in a type of secondary picketing, attempting to apply pressure on Sutter Health to pressure Angelica to submit to union demands.  Unite Here directed its fire on the lucrative birthing services of the Sutter Hospitals. It developed what was identified as the Sutter Escalation Plan,” mailing postcards to prospective clients of the Sutter birthing centers or “wealthier women between 25 and 40 who are registered to vote.” The postcards warned that the laundry service (Angelica) used by Sutter did not ensure its lines were free from harmful pathogens and urged potential Sutter Health patients to protect their newborns because Sutter may not be taking adequate precautions against potential infections. One side of the postcard stated: “EXPECTING? You may be bringing home more than your baby if you deliver at a Sutter birthing center.”

    

PHYSICIAN PRACTICE GROUP –COVENANTS NOT TO COMPLETE

 The enforceability of covenants not to compete in physician practice group employment

agreements vary from state to state. These covenants continue to develop legal angst as courts

try to balance the protection of legitimate practice group interests against an individual

physician’s right to practice his or her profession in a continuing location.  There is also

the rights of patients to continue access to their preferred physicians to be considered

(although patient interests are rarely identified as specific elements in court decisions). 

The Montana Supreme Court, in Dr. James Mungus et al v. Great Falls Clinic LLP, 2009 MT 426

(MT, December 15, 2009) reversed a summary judgment granted in favor of the physicians seeking

a declaratory judgment that their covenants not to compete were unenforceable.

 

COMPLIANCE CODE OF CONDUCT – CONTEXT OR PRETEXT

 In Mark Thompson v. Quorum Health Resources, Inc., 1:06-cv-001658, (W.D.Kentucky, Bowling Green Div , Dec. 7, 2009), the U.S. District Court rejected the Defendant Quorum’s motion for summary judgment in a retaliation action brought by a former Quorum hospital CEO, who claimed that Quorum terminated him in retaliation for his filing an earlier Qui Tam lawsuit against Quorum. Qui Tam suits are “private attorney general” cases brought to collect funds under the federal False Claims Act for fraud against the federal government.. In the Qui Tam case, Mr. Thompson asserted that Quorum fraudulently selected a Group Purchasing Organization for its hospitals which benefited Quorum to the detriment t of individual hospitals.  That case was dismissed with prejudice.

 

Supreme Court Holds Arbitration Agreement Under F.A.A.Cannot Be Reviewed For Erroneous Conclusion of Law

There is a growing tendency to incorporate mandatory arbitration clauses in employment and other agreements as an alternative mechanism to resolve disputes. Some arbitration agreements go so far as to self define the scope of judicial review of an arbitrator’s decision. Not infrequently, there is a tension in a case between the equities or basic fairness and the law. An arbitrator, after all, is supposed to be arbitrary. He or she is supposed to quickly and economically cut through the "Gordian knot" of a dispute and do what is right.

"Arbitrition"* In Healthcare Disputes.

           In 1991, the United States Supreme Court gave strong impetus to the enforcement of arbitration agreements in employment contracts when it held that unequal bargaining power between employers and employees was an insufficient reason to hold that arbitration contracts are never enforceable in the employment context.  In Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) the court held that an age discrimination act claim can be subject to compulsory arbitration. (*The overlay of cumbersome judicial like process on equitable decision making.)

Colorado Nurse Unable To Show Employer Violation Of Public Policy Based on Violations of Private Organization Code of Ethics.

      Todays posting is by Mark Wiletsky. For more information on this case or wrongful discharge claims generally, please contact Mark Wiletsky at (303) 473-2864 or mbwiletsky@hollandhart.com. 

     In Colorado, and many other states, it is unlawful to force “at-will” employees to choose between their job and violating an important public policy.  Thus, an employee who is terminated for refusing to perform an illegal act, or for exercising an important right or privilege, may be able to assert a claim for wrongful discharge in violation of public policy.  This type of claim, developed by the courts, can be difficult to anticipate because it is often unclear whether an employee’s actions or statements are protected by public policy.  A recent decision from the Colorado Court of Appeals, however, provides some useful guidance and limits when dealing with such claims.

“Coy” Hospital may be responsible for sexual discrimination against one of its nurses by independent Dr. Coy.

There is a scarcity of talented surgeons in Southern Illinois.  In the case of Dunn v. Washington County Hospital and Thomas J. Coy, No. 65-1277 ___ F.3d ___ (7th Cir. 2005), Dr. Thomas J. Coy was apparently an economic engine of the Washington County Hospital.  Though an independent surgeon on the medical staff he was in charge of the obstetrics and emergency services in the 59-bed county hospital in Nashville, Illinois.  Lisa Dunn, a nurse formerly employed by the County Hospital, brought an action against the hospital alleging liability under Title VII of the Civil Rights Act of 1964, violation of Constitutional Rights (Equal Protection), and retaliation, among others, all arising out of the alleged conduct of Dr. Coy, who if the evidence is to be believed is no Gentleman.  Ms. Dunn claimed that Dr. Coy made life miserable for she and other female nurses on the hospital’s payroll, while males experienced no similar problems.

Dumping In-House Counsel Can Be Hazardous.

Charlie Mattenson,, Esq. appears to be having the last laugh in his dispute with his former employer, Baxter Healthcare Corporation. Baxter fired Mattenson, a former in-house patent counsel, at Baxter allegedly based upon poor performance reviews. Mattenson sued Baxter based upon a claim of age discrimination in violation of the Age Discrimination Employment Act of 1967 ("ADEA"). In November of 2003 a jury awarded Mattenson backpay damages in the amount of $532,791.28. The award was increased to $1,065,582.56 based upon a determination that the violation was willful.