Category Archives: Health Law

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Handbook’s prohibition on “negative comments” about team members found to have violated the NLRA.

Like many employers, Hills and Dales General Hospital’s employee policies included provisions prohibiting “negative comments” about fellow team members, and precluded engaging in “negativity or gossip.” The policies further included a requirement to represent the hospital within the community “in a positive and professional manner in every opportunity.”  Recently, a three-member panel of the National … Continue Reading

Staffing company is not liable for employee’s act of poisoning a coworker.

The increased use of staffing agencies to place employees into the workforce has led to a growing number of court decisions regarding the responsibility of such agencies for the actions of the individuals placed. Recently, a California Court of Appeals granted summary judgment in favor of a staffing agency sued by an individual whose drinking … Continue Reading

Physician not required to exhaust hospital’s administrative review process before suing hospital under state’s whistleblower statute.

California’s Supreme Court has ruled that a physician who reported concerns related to patient treatment and subsequently was fired did not have to first seek and obtain a mandamus judgment setting aside the hospital’s decision before suing the hospital in state court. Fahlen v. Sutter Central Valley Hospitals, Supreme Court of California, No. S205568, February … Continue Reading

Sexual innuendos and demeaning comments cost employer $1.6 Million.

In gender discrimination cases under Title VII, a jury can award back pay and front pay, but also can award compensatory damages if it believes that an employee was harmed emotionally or psychologically by the alleged harassment or hostile work environment. The 1st U.S. Circuit Court of Appeals recently affirmed a $1.6 Million damages award … Continue Reading

The Affordable Care Act: Something to Think About While Waiting for the Courts of Appeals to Rule

As the first anniversary of the Patient Protection and Affordable Care Act approaches on March 23, five district courts have issued final judgments on the issue of whether the Act itself is constitutional. The score is 3-2 in the federal government’s favor, but all five cases are on appeal at this time. The principal issue in those cases … Continue Reading

Down the Rabbit Hole Again: OFCCP Continues to Expand Jurisdictional Thresholds for Health Care Providers and Insurers

Written by Leigh M. Nason, Esquire (Ogletree Deakins, Columbia, SC)   Despite ongoing litigation with health care providers and insurers, the Office of Federal Contract Compliance Programs (OFCCP) recently issued an extensive administrative directive to provide “comprehensive guidance for assessing when health care providers and insurers are federal contractors or subcontractors.” The December 16 directive … Continue Reading

Patient’s preference for white aides does not trump health care employer’s duty to its employees to abstain from race-based work assignments.

The 7th U.S. Circuit Court of Appeals has ruled that a nursing home’s policy of complying with patients’ wishes to be treated only by white health care workers can form the basis of a racially hostile work environment for non-white employees. Chaney v. Plainfield, 7th Cir., No. 09-3661, 7/20/10. Brenda Chaney was employed as certified … Continue Reading

Physician’s constructive discharge claim required only that a protected characteristic played a “motivating part” in hospital-employer’s conduct.

It is generally understood that employees can bring claims for hostile environment, wrongful termination, or even “constructive discharge” – where an employee claims that an employer made working conditions so intolerable that a reasonable employee would feel compelled to resign. What is less clearly understood is the extent of the economic damages for which a … Continue Reading

Medical intern unable to perform the essential functions of a first-year resident could not support ADA claim.

A medical intern who misdiagnosed patients (including mistakenly identifying a patient as deceased), prescribed inappropriate medications or incorrect dosages, and who was “extremely argumentative” with his supervisors and co-workers was unable to perform the essential functions of his job and therefore, according to the 4th U.S. Circuit Court of Appeals, was not a qualified individual … Continue Reading

9th Circuit rules that Rehabilitation Act covers discrimination claim by an independent contractor.

The Rehabilitation Act of 1973 was the first major federal statute to focus on the rights of individuals with medical impairments. Section 504 of the Act creates a private right of action for individuals claiming to have been discriminated against in any “program or activity” receiving federal financial assistance. Courts have included federally funded employment … Continue Reading

Is your business ready for H1N1?

If so, you’ve done the following things:  Created a pandemic flu plan and educated your employees on that plan;  Have become aware of current CDC recommendations, and will stay alert for upgrades;  Reviewed and (if necessary) revised attendance policies;  Educated yourself on confidentiality issues and concerns;  Checked with HR or … Continue Reading

Sarbanes-Oxley’s 90-day statute of limitations not triggered by conditional firing.

An employee alleging a violation of the Sarbanes-Oxley Act (SOX) must file a complaint within 90 days from the date of that alleged violation. That 90-day period begins to run from the date on which the complainant knows or reasonably should know that the complained-of act has occurred. In whistleblower cases under SOX, the 90-day … Continue Reading
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