The following posting from our colleagues on the Jackson Lewis P.C. website, as part of the Workplace Privacy, Data Management & Security Report, regarding privacy concerns related to Enterovirus and Ebola may be of particular interest to healthcare employers. Click here to be transferred directly to the link.

The following posting from our colleagues on the Jackson Lewis P.C. website, as part of the Workplace Privacy, Data Management & Security Report, regarding data breach notification requirements for healthcare providers in California may be of particular interest. Click here to be transferred directly to the link.

A hospital owed no duty of care to future patients of a physician who had left its employ and resumed practicing medicine with another employer, the Massachusetts Supreme Judicial Court has ruled.  Robert Roe, et al. v. Children’s Hospital Medical Center, SJC-11533 (Mass. Oct. 1, 2014).

From 1966 until 1985, Melvin Levine, a pediatric physician, was employed by Children’s Hospital Medical Center (the “Hospital”), a hospital in Boston, Massachusetts.  He relocated to North Carolina in 1985 and began working for the University of North Carolina School of Medicine (“UNC”).  In 2009, amid allegations that he performed medically unnecessary genital examinations on a number of patients at UNC, Dr. Levine signed a consent order surrendering his medical license and agreeing not to practice medicine in any jurisdiction.

Two years later, 11 former patients of Dr. Levine when he worked at UNC filed suit, alleging the Hospital failed to properly train, supervise or discipline Dr. Levine while he was employed by it.  They also claimed the Hospital knew or should have known Dr. Levine conducted inappropriate genital examinations of minors while in its employ, and that it failed to report Dr. Levine’s conduct to the licensing authorities and his new employer (UNC).  A Massachusetts Superior Court Judge dismissed the claims, ruling the Hospital did not owe a recognized duty of care to the plaintiffs since the alleged abuse occurred after (in some cases, many years after) Dr. Levine left the Hospital’s employ.

The Massachusetts Supreme Judicial Court affirmed, holding that no special relationship existed between the Hospital and individuals who became patients of Dr. Levine after his employment with the Hospital ended.  The Court noted that “while the protection of children from sexual abuse is of great importance, an employer’s duty to prevent such harm cannot extend to a duty to prevent the actions of a former employee later employed by an unrelated entity in another State in the decades following his departure from the employer’s employ.” 

In reaching this holding, the Court pointed out there was no allegation that Dr. Levine ended his employment with the Hospital because of any complaints brought against him, and Plaintiffs did not allege that the Hospital misrepresented Dr. Levine’s employment history in response to reference checks or professional qualification inquiries from UNC.  In the circumstances, the Court expressly left open the question of what duty, if any, the Hospital might have had with respect to inquiries from prospective employers about allegations of abuse during the doctor’s employment with the Hospital. 

Despite the heinous nature of the conduct alleged, the Court refused to create a duty of care that would expose hospitals to liability to a potentially limitless class of unknown parties for acts committed by a former employee long after the hospital had any ability to supervise the former employee.  Employers, however, should not read this decision as absolving them of any duty to disclose information about the bad acts of current or former employees during their employment.  Health care employers still should exercise care in determining what information they will share with prospective employers regarding physicians and other health care providers they previously employed.  Courts in other states also may find that a former employer has a duty under their laws to disclose such information to prospective employers.

A physician may proceed with her hostile work environment claims after a hospital revoked her clinical privileges, but may not continue with her antitrust claims because she failed to plead an antitrust injury, a federal district court ruled.  Levitin and Chicago Surgical Clinic, Ltd v. Northwest Community Hospital, et al., No. 13 C 5553 (N.D. Ill. August 12, 2014). 

The plaintiff is a general surgeon in an independent surgical practice.  In 2008 and 2009, she complained to Northwest Community Hospital (NCH) that a physician working for a competitor of the plaintiff’s surgical practice harassed her verbally and physically at the hospital because of her gender, ethnicity and religion.  NCH assured the plaintiff that it had instructed the physician to refrain from this conduct.  In 2010, this physician and colleagues from his surgical practice took steps to cause the Medical Executive Committee to initiate a review of the plaintiff’s cases over a six-year period.  An investigative committee subsequently recommended that no corrective action be taken against the plaintiff.  In 2011, acting on a separate complaint about the plaintiff’s care, the NCH Board terminated her clinical privileges notwithstanding a recommendation from a Medical Staff committee to take no corrective action against her.

The plaintiff filed suit against NCH, the competing surgical practice and three of its surgeons alleging federal antitrust violations, hostile work environment under Title VII of the Civil Rights Act of 1964 and various state law claims.  The defendants moved to dismiss the suit.  

The defendants argued the federal Health Care Quality Improvement Act and a similar Illinois law provided them immunity from the suit.  The Court rejected this argument, finding that the allegations that the defendants did not act with a reasonable belief that they acted in furtherance of quality health care and that they engaged in willful and wanton misconduct were sufficient to deprive the defendants of immunity. 

The Court denied the motion to dismiss the plaintiff’s Title VII claims, finding the plaintiff’s allegations, including that NCH controlled which facilities, equipment and staff she could use, controlled which general surgeries and procedures she could perform, and determined her surgery schedule, provide plausible grounds to conclude that the plaintiff was an employee of NCH for purposes of Title VII.  The court found these allegations could demonstrate that NCH exercised sufficient control over the plaintiff to establish an indirect employer-employee relationship even though NCH argued it did not employ her.

The Court also found that while the alleged harassment was not explicitly anti-Russian, anti-Semitic or anti-woman, the allegations provide plausible grounds to conclude the conduct was motivated by hostility to her protected classes.  Finally, the court concluded that the harasser’s allegedly “relentless conduct,” if true, would allow a reasonable jury to conclude that the conduct was sufficiently severe or pervasive to create an unlawful hostile environment.  The court retained supplemental jurisdiction over the state law claims because the defendants did not make any substantive challenge to them.

The Court dismissed the antitrust claims because the plaintiff failed to plead an antitrust injury, which must involve an injury to consumers.  The Court concluded the plaintiff failed to allege an antitrust injury because the complaint showed that her services remained available to consumers through her clinical privileges at other local hospitals.  Although the antitrust claims were dismissed, this case highlights the potential risk for hospitals when disputes arise among members of their medical staff who work in competing practices.

This week, the NLRB issued a long-awaited decision in Macy’s, Inc., 361 NLRB No. 4 (July 22, 2014).  The Board had invited and considered amicus briefs from interested parties.  In the case, the Board considered the application of Specialty Healthcare in a retail setting.

The union filed a petition with the NLRB to represent only those employees working in the cosmetics and fragrance departments, which are located on two different floors of Macy’s Saugus, MA store, excluding all other salespeople.  All salespeople at the store are subject to the same policies, same benefits plans, same staffing patterns, same employee entrances, same time clocks, same break rooms, and same dispute resolution program.  They attend the same daily meetings, receive the same performance evaluations, and sales employees have transferred in and out of the cosmetics and fragrance departments to other departments.  Despite this, the Board found the unit appropriate because, in large part, the employer organized these employees along departmental lines.

The decision demonstrates that the current Board sees very few scenarios in which a union’s petition will be found inappropriate even where, as discussed in the case’s dissent, differences exist between groups of employees that the union has petitioned for.  If the Board continues to apply Specialty Healthcare in the same manner, micro units are here to stay.

A hospital’s newly implemented dress code policy was a material, substantial, and significant change to union employees’ terms and conditions of employment that required bargaining with the union, the NLRB has ruled.  Salem Hospital Corp., 360 NLRB No. 95 (Apr. 30, 2014).

The hospital maintained a dress code policy, which allowed employees wide latitude to determine the color and type of scrubs they wear.  Employees also were permitted to wear hoodies, sweatshirts, and fleece jackets.

Wanting to improve the professional image of its employees, the hospital decided to revamp its dress code policy.  Included in the revisions was a color-coded uniform system designed to help staff, patients, and visitors more easily identify and distinguish employees.  The hospital did not inform the union about the revisions to the policy.

Once it found out about the changes, the union sent a letter to the hospital demanding bargaining over changes to the dress code policy. The union did not receive a response. It filed a charge against the hospital for unilaterally implementing the new dress code policy.

The NLRB held that the hospital violated the NLRA by imposing a new dress code policy without bargaining with the union.  An unlawful change, the NLRB explained, is one that is “material, substantial, and significant” to employees’ terms and conditions of employment.  The NLRB reasoned the new color-coded uniform requirements “rendered useless most, if not all, of their personal scrub inventories containing other colors and styles.” The NLRB found “the hospital must have recognized this adverse financial impact because it provided three free sets of scrubs to reduce the initial monetary cost to employees of complying with the new policy.”  The hospital’s offer to provide free uniforms did not make the dress code any less of a financial burden on the employees, the NLRB said, because the dress code also banned outerwear such as hoodies, sweatshirts, and fleece jackets if they did not match the new color-coded uniforms.

The NLRB ordered the hospital to make employees who were adversely affected by the “major workplace policy change” to the dress code policy whole by reinstating employees who were terminated for dress code-related infractions and paying employees for any loss wages, as well as any out-of-pocket expenses incurred as a result of complying with the dress code policy.

This ruling affirms an Administrative Law Judge’s decision that we reported in September 2013.  

A nursing home’s policy prohibiting off-duty employees from remaining on its premises after their shift “unless previously authorized by” their supervisor interfered with the labor rights of employees, the NLRB has ruled.  Piedmont Gardens, 360 NLRB No. 100 (May 1, 2014).

The union filed unfair labor practice charges against the employer, alleging among other things, that the policy was unlawful under the NLRA.

The NLRB explained that “a rule restricting off-duty employee access is valid only if it (1) limits access solely with respect to the interior of the facility and the other working areas, (2) is clearly disseminated to all employees, and (3) applies to off-duty employees seeking access to the plant and not just to those employees engaging in union activity.”  (Citing Tri-County Medical Center, 222 NLRB 1089 (1976)).  Finding the employer violated the third prong, the NLRB held that while the policy prohibited off-duty access in general,  it “contains an exception, indefinite in scope, under which off-duty access is permitted with supervisor authorization.” This “unlimited” discretion, the NLRB said, is why the rule was overbroad under the NLRA.

In its defense, the employer argued its policy was lawful because, in practice, it permitted only off-duty employees to enter the nursing home in three limited circumstances: when an off-duty employee picked up his or her paycheck, attended a scheduled meeting with HR, or arrived early for the night shift.  The NLRB rejected this defense, stating that the employer’s assertions were unsupported by the record and that, in any event, this practice was not memorialized in the off-duty access rule itself or in any other memorandum concerning the rule.  Accordingly, the NLRB held that it need not pass on whether a violation would remain had the policy clearly provided that off-duty employees would be granted access only in the three circumstances described by the employer.