A federal court in Michigan denied a hospital summary judgment on a physician?s retaliation claim under the Emergency Medical Treatment and Labor Act (EMTALA) that it summarily suspended his privileges after he argued against transferring a patient he believed was in labor.
This material originally appeared in the March 27, 2009, issue of Health Lawyers Weekly, a publication of the American Health Lawyers Association (www.healthlawyers.org).
A federal court in Michigan denied a hospital summary judgment on a physician’s retaliation claim under the Emergency Medical Treatment and Labor Act (EMTALA) that it summarily suspended his privileges after he argued against transferring a patient he believed was in labor.
The court also found the hospital defendant Lapeer Regional Medical Center (LRMC) and its chief executive officer and president Barton P. Buxton were not entitled to immunity under the Health Care Quality Improvement Act (HCQIA) for obstetrician/gynecologist Gary M. Ritten’s initial suspension.
Immunity also did not extend to the board of trustees’ (board’s) decision to reinstate that suspension after the Medical Executive Committee (MEC) had determined Ritten’s privileges should be reinstated, but that his work should be monitored.
The court did conclude, however, that HCQIA immunity applied to a hearing committee’s decision to suspend Ritten’s privileges following a lengthy review process.
Buxton summarily suspended Ritten’s clinical privileges in September 2005 citing preliminary reports that Ritten had a high rate of vacuum delivery compared to other physicians and that his patients’ medical records failed to justify use of this technique.
MEC concluded a few days later that Ritten’s privileges should be reinstated, but that a preceptor should be appointed to supervise his deliveries.
At Buxton’s urging, the board then called a special meeting and voted to reinstate the suspension.
Following an extensive hearing process where Ritten was allowed to present testimony and expert evidence, a hearing committee voted 3-2 to suspend Ritten permanently.
A few weeks before his initial summary suspension, an incident arose with a patient identified as Patient “L.” Patient L arrived at LRMC’s emergency department (ED) and was promptly sent to the hospital’s labor and delivery unit. She was 20 weeks pregnant and experiencing vaginal bleeding and light cramping.
Ritten saw Patient L and concluded she was in labor and that the proper course was to evacuate the uterus since the baby was not viable at 20 weeks. Another physician, however, disagreed and concluded Patient L was not in labor.
Buxton suggested transferring Patient L to another facility. According to Ritten, Buxton threatened Ritten that he would lose his job unless he transferred the patient. Ritten said he protested the transfer, because he believed she was not stable and could deliver at any time. Before the transfer was arranged, Patient L delivered her baby.
EMTALA Retaliation Claim
In his complaint against LRMC and its parent company, Ritten alleged his staff privileges were suspended in retaliation for his refusal to transfer a patient with an emergency condition that had not been stabilized in violation of EMTALA, 42 U.S.C. § 1395dd(i).
The U.S. District Court for the Eastern District of Michigan refused to grant summary judgment to LRMC on Ritten’s EMTALA claim.
Although Patient L was admitted to the hospital’s labor and delivery unit shortly after she presented to the ED, this did not end the hospital’s EMTALA obligations, the court said.
In so holding, the court cited “clarifying policies” issued by the Department of Health and Human Services that caution against treating pregnant women, who are routinely sent from the ED to the labor and delivery unit for admission, as inpatients.
The question of whether Patient L in fact had an emergency medical condition, as Ritten contended, or was not in labor, as defendants argued, was irrelevant to the EMTALA retaliation claim, the court said.
Moreover, “[a] hospital is not free to discount a physician’s reasonable evaluation and then retaliate against the physician with impunity, on the ground that it did not accept or agree with the physician’s stated finding of an emergency medical condition,” the court observed.
Direct Evidence of Retaliation
The court also cited direct evidence that could support an inference of retaliation-i.e. Ritten’s allegations that Buxton threatened to fire him unless he transferred Patient L.
The court found significant the closeness in time (three weeks) between the incident and the point when Buxton summarily suspended Ritten. According to the court, taking the allegations as true, “no inferences would be required to conclude that Plaintiff’s refusal to transfer the patient ‘was a motivating factor’ in Buxton’s decision to suspend his privileges.”
The court also rejected defendants’ argument that Ritten’s direct evidence of retaliatory motive only extended to Buxton’s decision to suspend Ritten’s privileges, saying a reasonable jury could conclude Buxton influenced the board’s subsequent decision to reinstate the suspension.
The final hearing process took over a year and defendants offered no authority that such an extended suspension of privileges would not qualify as a “penal[ty]” or “adverse action” under EMTALA’s anti-retaliation provision.
The court held Buxton’s initial decision to suspend Ritten’s privileges was not entitled to HCQIA Immunity.
The court noted evidence that Buxton’s decision was motivated by Ritten’s refusal to transfer Patient L and was imposed before a review of Ritten’s patient files had been completed.
The court likewise found the board’s decision to reinstate the suspension of Ritten’s privileges was not protected by HCQIA. While the factual record may have been somewhat more developed at that time, the court said the board still failed to conduct any further inquiry into potential explanations for Ritten’s higher rate of vacuum deliveries.
Nor did the board describe its rationale for rejecting the MEC’s recommendation that a preceptor be appointed to monitor Ritten’s cases. The court also cited as significant the lack of evidence that Ritten posed a substantial risk to patients.
Although a “close call,” the court concluded the hearing committee’s decision to suspend Ritten’s privileges was entitled to HCQIA immunity.
Specifically, the court said, Ritten had a chance to present facts and witnesses and argue his side.
The court emphasized that whether Ritten did in fact provide deficient care was irrelevant; rather, the key inquiry was whether an objective view of the record disclosed a sufficient basis for the committee’s decision.
Based on its ruling regarding HCQIA immunity, the court dismissed some of Ritten’s state law claims regarding tortious interference and defamation related to the hearing committee’s decision.
The court said Ritten could still pursue equitable relief-i.e. reinstatement of his privileges-in connection with his EMTALA retaliation claim, but damages would be limited to any harm suffered as a result of the summary suspension of his staff privileges, first by Buxton and then by the board.
Ritten v. Lapeer Reg’l Med. Ctr., No. 07-10265 (N.D. Mich. Mar. 11, 2009).