Every quarter we provide our readers with an update on select health care and medical malpractice developments. These updates are generally helpful as a quick reference for recent developments or practice pointers for those involved with and/or employed by the health care industry. In these updates, we will note statutory or regulatory changes, and report on health care and medical malpractice litigation and judicial decisions that influence related cases in these areas. Guy C. Curry, Managing Partner
HEALTH CARE UPDATES FALSE CLAIMS ACT AND MEDICAID
False Claims Act and Medicaid .............................. Page 1
Susan E. Henning. Partner
Current Issues Regarding Mammography/Breast Cancer: An Interview with Daniel G. Rupley, M.D. ............... Page 2
Recent False Claims Act cases brought by the Department of Justice (DOJ) against two hospitals have highlighted the interest of the DOJ in pursuing False Claims Act (FCA) remedies against providers who submit claims to Medicaid where prohibited referrals under the Stark Law were alleged to have occurred. The DOJ has taken the position that a Medicaid claim that results from a financial relationship that would violate the Stark Law constitutes a false claim under the FCA when it is submitted to the Medicaid program, and the Medicaid program in turn submits a claim to CMS for federal financial participation payment.
HEALTH CARE UPDATES
MEDICAL MALPRACTICE UPDATES Jurisprudential Updates ........................................ Page 4
LEGISLATIVE UPDATE Louisiana Legislature Amends Article 966 of the Code of Civil Procedure ............................... Page 6
FOCUS ON THE FIRM .................................. Page 7 PRACTICE TIPS AND PROCEDURAL UPDATES A Primer on eDiscovery - Part II .........…............….. Page 8
LABOR AND EMPLOYMENT LAW CORNER
The federal self-referral law (often referred to as the “Stark Law”) prohibits Supreme Court Holds That Unlawful Retaliation is Harder to Prove than Discrimination .................. Page 9 a physician (or a physician’s immediate family member) who has a financial relationship with an entity, from referring patients to the entity for designated health services that are paid for by Medicare or Medicaid. Except This update is intended for general informational purposes only. The contents contained herein should not be construed as formal in circumstances where specific statutory exceptions are met, the entity legal advice nor the formation of a lawyer/client relationship. The performing the services is prohibited from submitting a claim for payment reader is urged to consult his or her personal attorney concerning specific legal questions and/or situations. This is an advertisement. for the services to the Centers for Medicare and Medicaid Services (CMS). While on its face, the Stark Law might seem to be applicable to prohibited referrals paid for only by the Medicare program, most attorneys have advised providers that the Stark prohibitions against selfreferrals should be followed across the board and should also be applicable to services that might only be paid for by Medicaid. (continued on page 2)
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Since most health care providers have a mix of Medicare and Medicaid patients, recent financial arrangements between entities and persons in a position to make referrals to the entity, have likely been structured to meet exceptions to the prohibited ownership and compensation arrangements, regardless of whether the referred services were to be paid in whole or part by Medicare or by Medicaid. Historically, the federal government has enforced the Stark Law through FCA suits based on the theory that the providers engaged in a financial arrangement that was prohibited under the Stark Law, received referrals for designated services from the prohibited referral arrangement, and then received Medicare reimbursement for the services provided to the improperly referred patients. The FCA requires full return to CMS of any payments made by Medicare for services rendered as a consequence of a prohibited referral, and imposes significant penalties for violations of the FCA. Pursuant to Section 6409 of the Patient Protection and Affordable Care Act, CMS established a Self-Referral Disclosure Protocol (SRDP) that authorizes CMS to permit resolution of Stark Law violations for less than the full value of the improperly submitted Medicare claims. Thus, upon discovery by a provider that an existing arrangement with a physician (or a physicianâ€™s immediate family member) failed to comply with the Stark Law, particularly when there has been a technical non-compliance, the provider can utilize the process for self-reporting to resolve violations for a fraction of the value of the submitted Medicare claims. However, this SRDP is apparently available only for the resolution of Medicare overpayments that result from violations of the Stark Law, and the statutory provision that authorizes CMS to compromise such claims is limited to Medicare, not to Medicaid claims. With the DOJâ€™s relatively new emphasis on pursuing FCA enforcement against providers who have submitted claims for payment by Medicaid that have involved referrals resulting from a physician with whom the provider has engaged in a prohibited financial relationship, providers should be aware that at least at the present time, the SRDP offers no assistance in trying to resolve those violations for a fraction of the value of the claims that have been submitted. Since penalties for having violated the FCA can be significant (treble damages and penalties up to $11,000 per claim, and possible exclusion from federal programs), providers who may not have carefully examined all compensation and financial arrangements with physicians who could be in a position to refer patients to the provider for services that may be paid for by Medicaid, should do so. n
CURRENT ISSUES REGARDING MAMMOGRAPHY AND BREAST CANCER: An Interview with Daniel G. Rupley, M.D. Lucie E. Thornton, Partner Dr. Dan Rupley, a radiologist at the St. Tammany Parish Breast Center, recently discussed medical-legal issues regarding breast cancer and its detection through mammography with Lucie Thornton of Curry & Friend, PLC. He first noted that The Mammography Quality Standards Act requires all certified mammography facilities to meet uniform quality standards. These standards include annual certification of facilities, minimum reading requirements for those practicing mammography and requirements as to the communications that patients receive from the mammographer. According to Dr. Rupley, the advent of digital radiology has had a tremendous impact on the practice of mammography, as well as any cases that may arise out of the treatment of a breast cancer patient. With digital radiology, all images are archived. Moreover, the PACS, (Picture Archiving and Communication System), contains a record of any deleted films, along with user name, times and dates. During investigation of a case, or during discovery, it is important to ask for the digital log or audit manager on the patientâ€™s file. Radiographic records, including ultrasounds, of the breast are maintained for the lifetime of a patient. For example, images on a digital film may be marked with an arrow or a circle, often by a technician who may have a question for the radiologist. Later, when the film is being archived, and the question resolved, the images with the markings on it may be deleted. If the audit manager is discovered during a claim, this would show up, and it may (continued on page 3)
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be construed that records were intentionally destroyed, to cover up evidence, giving rise to a potential spoliation claim. It is important for technicians to recognize that metadata is part of the medical records and any alteration or deletion of metadata is the same as an alteration or deletion of the medical record. It is also important to note that most PACS have their own proprietary name and counsel may need to be familiar with the system used by the facility, or physician, they are representing, and ask for the audit manager or log by the name assigned by that system to ensure that an accurate response to the request is received. Another issue that counsel should be aware of is hanging protocols. Each facility most likely has its own hanging protocol, and within that protocol, each radiologist may also have an individual hanging protocol. When investigating a claim, this should be an area of inquiry by counsel to verify that all of the images relevant to the claim were viewed and not missed, due to an assumption as to the hanging protocol. It is important to note the particular sequence of the images at issue, as a radiologist may be able to read the images differently if the protocol is different. With failure to diagnose breast cancer being one of the leading causes for malpractice claims, it is important for mammographers to demand that the images they are going to interpret are of good quality. If the image is of poor quality, additional imaging must be requested, and this request documented. When reading images, the radiologist must ensure an adequate viewing environment and search pattern for reviewing mammograms. Likewise, the report of the exam is very important, and must be clear and accurate, and any abnormalities addressed, with appropriate recommendations and classifications included. The results of the mammogram must be communicated to the referring physician, as per MQSA guidelines. Direct communication, not just the issuing of the report, is required, and documentation of such communication is also necessary. It is not advised to simply leave a voice mail message on a telephone; likewise, faxing is not advised. In Dr. Rupleyâ€™s practice, all patientsâ€™ risks of breast cancer are calculated and those patients with a risk of greater than 20%, not only have a screening mammogram, but also undergo a screening MRI. There are a large number of women who have a high risk for breast cancer, but it does not reach the 20% level, so their screening process must be tailored to them, and based on medical indications.
When a patient does not have prior mammograms for comparison, it naturally makes reading the current mammogram less reliable in determining whether any changes have occurred that may raise the suspicion of breast cancer. Mammographers must make a reasonable effort to obtain prior mammograms, and these efforts must be documented. It has been suggested that the new digital radiology has an increased sensitivity for mammograms of dense breasts, as well as increased sensitivity for breasts of younger women. An area of concern regarding instances of failure to diagnose breast cancer relates to younger women, who are not subject to yearly screenings as a norm, but who tend to develop more aggressive types of breast cancer. While it is not the standard of care in Louisiana, some states, including California, Texas and Connecticut, have enacted legislation that requires women who have dense breasts to be notified of the same by their physicians when they are given the results of their mammogram. Dr. Rupley expects that federal legislation will likely be passed to make this a national requirement. In summary, with the large number of claims that relate to the failure to diagnose breast cancer, it is important for the radiologists who treat these patients to be aware of the potential medical-legal issues, and counsel defending such claims likewise need to be aware of the issues unique to the defense of these claims to be more effective advocates for their physician-client. n
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MEDICAL MALPRACTICE UPDATES
JURISPRUDENTIAL UPDATES Meredith M. Miceli, Partner The following are synopses of notable holdings, some published and some not, rendered since April 2013 by Louisiana appellate courts.
Fanguy v. Lexington Ins. Co., 13-0114 (La. 4/1/13), 2013 WL 1297612: The Supreme Court, in a per curiam opinion, granted writs to determine whether the Louisiana Fifth Circuit Court of Appeal properly granted plaintiff’s Motion in Limine to exclude the medical review panel opinion and testimony of a panelist whom, it was discovered, failed to disclose a financial relationship with the defendant-physician. The Supreme Court, while “unable to say the lower courts committed error in finding that the undisclosed financial relationship between [the panelist and defendant] presented the appearance of impropriety, which vitiated [the panelist]’s oath of impartiality and thereby tainted the MRP proceedings, held that “justice would be best be served by ordering the re-constitution of the MRP and allowing the new panel to deliberate and issue an opinion on the issues presented in patient’s medical malpractice case.” Benjamin v. Zeichner, 12-1763 (La. 4/5/13), 2013 WL 1363725: In a per curiam opinion, the Louisiana Supreme Court held that the expert qualifications provision of La. R.S. 9:2794 requiring that a proffered expert “is” licensed to practice medicine or is a graduate of an accredited medical school, requires that the expert be licensed to practice medicine at the time the witness is presented at trial, not merely when the alleged malpractice occurred, or be a graduate of an accredited medical school. Further, a faxed letter from the expert’s medical school that purported to establish accreditation status was not sufficient for qualification.
Watkins v. Lakes Charles Mem. Hosp., 12-1320 (La. App. 3 Cir. 4/17/13), 2013 WL 1628719: The Third Circuit held that Louisiana R.S. 40:1299.43(E)(1) and (2) give the district court continuing jurisdiction over disputes regarding future medical expenses filed before the PCF, including the authority to award attorney’s fees if the court finds the PCF fails to pay the claim within thirty days. Under these provisions, while the trier of fact determines both the need and amount of future medicals due, future medical expenses are not made executory until review and approval by the PCF or, if denied, upon subsequent order of the court under its continuing jurisdiction. Bolton v. Willis-Knighton Med. Ctr., 47,923 (La. App. 2 Cir. 4/24/13), --- So.3d --- (2013 WL 1748543): In this wrongful death case involving an alleged failure to diagnose an infection by emergency room personnel, the Second Circuit reiterated that where the evidence could support either a theory of wrongful death—that the defendant’s conduct caused the decedent’s death and, thus, making full wrongful death damages appropriate—or a theory that the defendant’s conduct caused the decedent only a loss of a chance of survival, Louisiana law is clear that only one kind of damages or the other may be awarded. The court affirmed the jury’s finding, based on expert medical testimony, that plaintiff here had a greater than 50% chance of survival upon presentation, which she lost as a result of the malpractice. Consequently, her death could be attributed to the malpractice. The jury’s damage award was affirmed. Jackson v. Suazo-Vasquez, 12-1377 (La. App. 1 Cir. 4/26/13), --- So.3d --- (2013 WL 1786431): In this nephrology malpractice matter, the Louisiana First affirmed summary judgment in favor of defendants due to plaintiffs’ lack of an expert. The Court found that plaintiff’s expert nurse was not qualified to give expert testimony on whether defendants’ actions reduced patient’s chance of survival, as that issue was not a nursing issue, but rather, a complex medical determination of the cause of the patient’s death to be addressed by a physician. Monroe v. State, 12-1683 (La. App. 1 Cir. 4/26/13), 2013 WL 1791022 (unpublished): Plaintiff, pregnant at the time, was allegedly misdiagnosed with breast cancer and underwent a radical mastectomy. Subsequently, it was discovered that she in fact did not have cancer. The Louisiana First Circuit affirmed the bench trial damage award in the amount of $475,000 for physical pain, (continued on page 5)
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mental anguish, and loss of enjoyment of life. Ward v. Vivian Healthcare and Rehab. Ctr., 47,649 (La. App. 2 Cir. 5/15/13), --- So.3d --- (2013 WL 1980020): Is a medical malpractice action prescribed when the medical review panel request was filed within one year of the victim’s death but the Patient’s Compensation Fund (“PCF”) determined that the request did not satisfy the minimum descriptive requirements set forth in La. R.S. 40:1299.47(A) (1)(b)? No, says the Second Circuit, because the legislature did not provide any penalty in the statute for the failure of a request to contain all of the minimum requirements. The Court nevertheless also found that the panel request met the statutory requirements, as it identified the date of occurrence as the date of death, it identified the sole defendant, and the statement that the defendant “did not provide proper care for [nursing home resident] which caused his death,” adequately provided defendant with a “brief description of the alleged malpractice.” Cannatella v. Cougle, 12-610 (La. App. 5 Cir. 5/16/13), --So.3d --- (2013 WL 2122680): Plaintiffs in an obstetrical malpractice case were granted summary judgment on liability, causation, and multiple caps. Thereafter, the parties settled for the statutory limit of $100,000. The PCF answered the plaintiffs’ petition for settlement approval, but also filed a devolutive appeal of plaintiffs’ summary judgment, arguing that the judgment could be construed as establishing that the malpractice caused all of plaintiffs’ injuries, leaving the PCF unable to contest causation of damages above the $100,000 statutory limit. While the Louisiana Fifth Circuit agreed that the PCF has the right to contest causation of damages in excess of the $100,000 limit, it did not believe that the summary judgment here, as written, could be construed as the PCF argued. Causation for and damages above $100,000 were issues simply not before the trial court on the summary judgment motion. Albers v. Vina Family Medicine Clinic, 12-1484 (La. App. 4 Cir. 5/22/13), --- So.3d --- (2013 WL 2250766): The Fourth Circuit affirmed summary judgment in favor of defendant physician whose treatment allegedly led to the addiction to pain medication and death of his patient. The Court held that the affidavit of plaintiffs’ expert witness was insufficient to create an issue of fact as to whether there was a violation of standard of care when it merely stated conclusions that the medication at issue was addictive and subject to abuse and did not establish that the seven
prescriptions allegedly written by the defendant were enough to establish a breach in standard of care owed to patient or opine that the alleged prescriptions caused or contributed to death of patient. Nichols v. Patwardhan, 48,170 (La. App. 2 Cir. 6/26/13), --- So.3d --- (2013 WL 3197475): A panel of the Second Circuit, with a dissent, affirmed maintenance of defendant neurosurgeon’s prescription exception, finding that the operative date for application of the continuous representation rule was when the physician actually saw or spoke to the patient. The Court rejected the argument (accepted by the dissent) that treatment was continuing for such purposes when plaintiff continued to follow the defendant’s recommendations to seek steroid injections from another physician, “obviously still trusting [the defendant’s] judgment in the continuing quest for relief.” Milbert v. Answering Bureau, Inc., 13-0022 (La. 6/28/13), --- So.3d --- (2013 WL 3285852): A patient brought a general negligence suit against a physician answering service for allegedly failing to promptly and accurately forward the requests of the patient for emergency care. The lower courts found that the claim had prescribed. The Louisiana Supreme Court granted writs to determine whether a non-health care provider could be a joint tortfeasor with health care providers against whom a medical malpractice complaint had been filed, such that the suspension of prescription provision of La. R.S. 40:1299.47(A)(2)(a) would apply to the filing of a general negligence suit against the non-health care provider. It found that “the legislative intent in this provision to be clear, express and unambiguous, and the statute should be applied as written. If a non-health care provider is a joint tortfeasor with a health care provider, the rules which suspend the running of prescription against the health care provider, qualified or not qualified, will be applied to the non-health care provider.” n
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LEGISLATIVE UPDATE F.
*** (2) Only evidence admitted for purposes of Evidence cited in and attached to the motion for summary judgment shall or memorandum filed by an adverse party is deemed admitted for purposes of the motion for summary judgment unless excluded in response to an objection made in accordance with Subparagraph (3) of this Paragraph. Only evidence admitted for purposes of the motion for summary judgment may be considered by the court in its ruling on the motion.
LOUISIANA LEGISLATURE AMENDS ARTICLE 966 OF THE CODE OF CIVIL PROCEDURE WITH REGARD TO SUMMARY JUDGMENT MOTION PRACTICE Meredith M. Miceli, Partner The Louisiana Code of Civil Procedure’s directive on motions for summary judgment, article 966, was substantively amended recently by 2013 La. Acts No. 391, § 1 (H.B. 589), to make summary judgment motion practice easier for both practitioners and courts on rule day. The bill was introduced to clarify confusion as to the article’s apparent requirement of formal admission of exhibits on the motion or opposition thereto. Despite this noble intention, it is already clear from internet commentary and discourse among practitioners that confusion yet reigns on this issue. The amendments, effective August 1, 2013, are as follows, with new language in bold and removed language stricken through: B.
*** (2) The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. If the motion for summary judgment is denied, the court should provide reasons for the denial on the record, either orally upon rendition or in writing suasponte or upon request of a party within ten days of rendition. ***
(3) Objections to evidence in support of or in opposition to a motion for summary judgment may be raised in memorandum or written motion to strike stating the specific grounds therefor. Rep. Neil Abramson’s comments at the May 21, 2013, hearing before the Senate’s Judiciary A Committee on the legislation demonstrate thatHouse Bill 589 was introduced to “clean up” the article by clarifying an ambiguous amendment to article 966 made in 2012. That amendment added language, stating: “E(2) Only evidence admitted for purposes of the motion for summary judgment shall be considered by the court in its ruling on the motion.” This addition to the article created much confusion among practitioners, who interpreted it to require painstaking formal introduction and admission of each exhibit in support of or in opposition to a motion for summary judgment at the hearing thereon. At least one Louisiana court agreed, finding that the 2012 amendment meant that “only evidence formally admitted into evidence during the summary judgment hearing can be considered by the court.” Marengo v. Harding, 13-47 (La. App. 5 Cir. 5/16/13), ---So.2d ---, 2013 WL 2122053, at p. 5. According to Rep. Abramson, that was not the intent of the 2012 amendment. Consequently, House Bill 589 was introduced to remedy this confusion and clarify that such exhibits need not be introduced and admitted at the hearing. Instead, exhibits cited in and attached to the parties’ memoranda are deemed admitted by virtue of their citation and attachment, without need for formal admission, unless they are excluded in response to a written objection thereto. Rep. Abramson testified as follows: We had a bill on last year, and we used the word “admitted, and it caused some problems. So, we’re (continued on page 7)
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back here to fix that. . . . The problem with the language we used last year had to do with “admitted for purposes of summary judgment.” As lawyers know, you don’t actually always appear at a hearing and offer, file, and introduce exhibits. The exhibits are attached to a pleading and those are deemed admitted unless somebody has an objection to it. What this really clarifies and expresses is that anything attached to the motion for summary judgment or the opposition is deemed admitted, unless somebody files an objection to it. . . . So
you don’t have to have a hearing, you don’t have to formally introduce it at a hearing. (See video of the hearing at www.senate.la.gov/Video/2013/May/052113JUDA.asx beginning at 2:03.) The bill subsequently passed both chambers unanimously, without further amendment to this section. It was signed into law by Governor Jindal on June 18, 2013. n
Focus on the Firmin the community Since its founding in 1978, Curry & Friend, PLC has been a proud supporter of numerous civic and charitable organizations. The firm’s time, resources and talents are regularly contributed to charities and non-profit organizations that do so much to strengthen our communities and enrich the lives of those less fortunate. We strongly encourage our lawyers and staff to participate in community activities, including fundraising, charity drives and volunteering with legal service, social service, environmental, educational, civic, religious and other community organizations. We also sponsor programs and events that highlight the causes important to both the firm and our clients. Past and present civic activities of our attorneys include leadership positions and Board of Directors memberships with the following organizations:
Christoffer Friend NOCCA Institute Guy Curry Daughters of Charity Foundation New Orleans Susan Henning Louisiana Watercolor Society Gerald Huffman Harvey Canal Industrial Association Tall Timbers Owners Association
Susan Laporte Bancroft Park Civic Association Forum for Equality Foundation Lake Oaks Subdivision Improvement District Project Home Again Lucie Thornton Lagniappe Lewisburg Civic Association Junior League of New Orleans Parents Council of New Orleans Save Our Cemetaries Southeast Louisiana Legal Services Youth Service Bureau
Guy Curry with Daughters of Charity CEO Michael Griffin and Gala Co-Chair Julio Rodriguez at the Daughters of Charity Gala on March 9, 2013. Curry & Friend, PLC was proud to be a Presenting Sponsor of the event. Photo by Daniel Erath c/o nola.com
Terese Bennett Greater New Orleans Youth Orchestra Greater New Orleans NSBE-Jr. Chapter Healthy Futures Program Metairie Park Country Day School Parents’ Association Volunteer Arts Council of Greater New Orleans
Meredith Miceli ALS Association Lauren Godshall Down Syndrome Association of Greater New Orleans The Pro Bono Project East Jefferson YMCA
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PRACTICE POINTERS 4. Emphasize that the Hold is “Mandatory”; 5. Provide detailed instruction for “HOW” the ESI is to be preserved; 6. Require suspension of normal data deletion practices until completion of the litigation; and 7. Designate a contact person for dealing with the Litigation Hold.
A PRIMER ON EDISCOVERY – PART II Susan R. Laporte, Partner In this issue, we continue a series of short articles on eDiscovery. We hope you find these discussions informative and useful.
In the first part of this series on eDiscovery, we reviewed the first two steps in managing eDiscovery: “Locate” and “Identify” the possibly relevant discoverable electronically stored information (“ESI”), by assembling an eDiscovery Response Team and identifying your document Custodians. This article addresses the next critical step: “Preserve” the ESI. The first step in the preservation of ESI is to stop its destruction. Destruction of ESI may happen on a daily basis as routine document management systems delete or archive e-mail, or as users log-in and alter, modify, or delete documents. HOW: The first tool in your preservation arsenal is the LITIGATION HOLD. The “Litigation Hold” is a written order issued to all possible custodians of potentially relevant ESI to cease the destruction of that ESI and to consciously and actively preserve it. You can write an effective Litigation Hold by following these steps: 1. Clearly describe the subject matter or matters of the Hold; 2. Identify the sources of ESI to be affected and the relevant ESI to be included; 3. Address the Hold to (a) all the individuals who are the Custodians of the ESI, (b) all members of the “E-Discovery Response Team” (discussed in our first eDiscovery article), and (b) the IT department;
In addition, the Litigation Hold should ensure that changes are not made to software or hardware that would make “discoverable” ESI “inaccessible.” Remember that many Custodians store your ESI, including some third parties. In framing your Litigation Hold, you may need to request that your outside counsel, accountants, application service providers and contractors preserve all ESI in their possession, and provide them with the same direction that you provide your in-house employee custodians in the Litigation Hold. DOCUMENT YOUR EFFORTS: Document all steps you take to preserve ESI: document the issuance of the Litigation Hold, keep records of the individuals receiving copies of the Litigation Hold, the steps taken to implement the Litigation Hold, and all searches made for ESI. When ESI is transferred (by copying or other means) from an original custodian to a member of the E-Discovery Litigation Team, a careful “chain of custody” record should be maintained about the origin of the ESI, the specific custodian(s) of the ESI, the various searches made to identify applicable ESI, and location and storage of the ESI. WHEN: The Duty to Preserve arises upon “anticipation” of litigation, and the duty to locate and preserve ESI is ongoing. Counsel and client have an on-going duty to monitor the compliance of the Custodians with the Litigation Hold, and to ensure that relevant ESI is retained on an ongoing basis. Moreover, as litigation develops, claims and defenses also develop, and the scope of the document retention efforts may also change with the developing litigation. For this reason, and to continually remind custodians of their duty to retain ESI, the Litigation Hold should be reviewed periodically, updated as necessary, and re-circulated as appropriate. It should also be issued to additional individuals as the litigation team becomes aware of additional individuals who are potentially custodians of (continued on page 7)
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ESI. Revisions or amendments and re-circulations of the Litigation Hold should be fully documented. PROVIDE TECHNICAL ASSISTANCE: In addition to providing all identifiable custodians with the Litigation Hold, counsel and client must work together to provide these custodians with necessary technical assistance to enable them to comply with the Litigation Hold. If the Hold requires that the custodians preserve digital copies of their active files, or retain an archive of their e-mail as of the date the hold is issued, then these custodians should be given express instructions as to exactly what is expected of them, and they should be provided with the proper technical support and contact names and information of one or more individuals who can help them perform the tasks expected of them. Another reason technical assistance may be required is
that the “data” your custodians must maintain is also associated with “metadata,” and IT personnel may be the only individuals technically capable of preserving both “data” and “metadata” as of the date that the Litigation Hold becomes effective. The failure to adequately perform any of the foregoing steps can lead to the destruction of ESI, and that, in turn, can possibly lead to sanctions in litigation. These first two articles in our eDiscovery Primer have helped you put an “E-Discovery Response Team” in place, identify the Custodians who have relevant ESI and where that ESI is located, and pro-actively manage the on-going Preservation of that ESI through a Litigation Hold. Our next eDiscovery article will discuss the Production of the ESI that you have now located, identified, and preserved. n
LABOR & EMPLOYMENT LAW CORNER
In this section, we will summarize recent developments in labor and employment law matters of interest to the health care community.
is a case study in how employment discrimination cases have engendered so much passion, as well as misinformation, among the media and in the political world. While favorable to employers in a narrow sense, the ruling does not foretell the end of retaliation claims or provide carte blanche to employers who want to terminate complaining employees. Retaliation cases, which have been on the rise in the last few years, will continue to present issues for employers.
SUPREME COURT HOLDS THAT UNLAWFUL RETALIATION IS HARDER TO PROVE THAN DISCRIMINATION Gerald “Jerry” J. Huffman, Jr., Partner Lawyers can argue the fine points of law such that it sometimes looks like they are dancing on the head of a pin. That is what happened in the last week of this year’s Supreme Court term when the Court ruled in a 5-4 decision that a plaintiff claiming that he was retaliated against by his employer after he complained about discrimination had to show that “but for” the intention to retaliate, his offer of employment would not have been withdrawn. The decision
The case arose in a hospital affiliated with a medical school. Briefly, the plaintiff Dr. Nassar, of Middle Eastern descent, was both a teaching and practicing physician for the University of Texas and Parklane Medical Center in Dallas. He claimed that his supervisor, a Dr. Levine, was biased against him because of his religion and ethnic heritage. He lodged a complaint with Dr. Levine’s supervisor, a Dr. Fitz. Ultimately, Parklane agreed to hire Dr. Nasser to work under a different supervisor, allowing him to resign his teaching post. Thereafter, in his resignation letter sent to several colleagues, he stated he was leaving his teaching position because of Dr. Levine’s harassment. This upset Dr. Fitz, who persuaded Parklane to withdraw their job offer to Dr. Nasser. Dr. Nassar filed suit against the University alleging that Levine’s race and religious discrimination resulted in his (continued on page 10)
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constructive discharge from the University. Secondly, he claimed that Fitz retaliated against him by preventing the Hospital from hiring him after he complained about Levine’s harassment. Parklane claimed that it withdrew its’ offer of employment on the basis that all of its’ practicing physicians also had to be teaching physicians affiliated with the University under an Affiliation Agreement – such that Dr. Nasser’s retention was unrelated to his complaints. The Dallas jury found for Nassar on both claims. The case was appealed to the Fifth Circuit, where the court vacated the judgment as to the constructive-discharge claim, but affirmed the retaliation finding. The Fifth Circuit held the Dr. Nasser only had to show that retaliation was a motivating factor for the adverse employment action, rather than its “but-for” cause. The court further held that the evidence supported a finding that Dr. Fitz was motivated, at least in part, to retaliate against Nassar for his complaints against Levine.
On Appeal, the Supreme Court reversed the Fifth Circuit, holding that the anti-retaliation statute makes it unlawful for an employer to take adverse employment action against an employee “because” of certain criteria, thus a plaintiff must prove that the desire to retaliate was the “but-for” cause of the challenged employment action. The case was remanded back to the district court for re-trial. The dissent, consisting of four justices, strongly disagreed, noting that in 1991 Congress had amended the statute to provide that in discrimination cases, a plaintiff need only show that discrimination figured into the decision in any part, no matter how small, to win his case. As it had done in previous cases, the dissent suggested that Congress might consider amending the law to set in place the lower burden
Risks in retaliation cases can be prevented or at least minimized. First, employers should always take discrimination complaints seriously by conducting a prompt and thorough investigation and documenting and notifying the complaining employee of the results. Second, managers should be trained to treat employees who complain about discrimination the same way they treat any other employees. Negative references about the complaining employee in emails and other documents should be strongly discouraged. Finally, if there is going to be adverse action taken against such an employee, be sure that it is thoroughly investigated and reviewed by Human Resources personnel and/or counsel for an objective viewpoint on whether the adverse action is merited. n
While drawing criticism from many portions of the media and academia, the decision’s implications for the real world are probably minor. Judges and lawyers go to great length and complexity to tell jurors just what the law compels them to do. Yet experience suggests that most jurors decide cases on the simpler basis of what seems fair to them. Whether an employment decision would have been made absent a desire to retaliate, or was in any way influenced by such a desire, will pale in significance to a lay juror’s sense of whether the plaintiff was treated fairly or not. Despite the seemingly harder standard to prove retaliation, studies have shown that jurors identify more with the human desire to strike back when attacked or criticized. Not every juror can identify with a person of a particular race, ethnicity, disability, age or religion, but most can understand reflexive anger.
Health Care Legal Team Contributors Guy C. Curry Managing Partner, New Orleans firstname.lastname@example.org
Gerald “Jerry” J. Huffman, Jr. Partner, Covington email@example.com
Lucie E. Thornton Partner, Covington firstname.lastname@example.org
Susan E. Henning Partner, New Orleans email@example.com
Susan R. Laporte Partner, New Orleans firstname.lastname@example.org
Meredith M. Miceli Partner, New Orleans email@example.com
Every quarter we provide an update on select health care and medical malpractice developments. These updates are generally helpful as a quic...