Doctor Fired for Taking FMLA Leave

May 17th, 2018

Case Survives Summary Judgment

This article appeared in Law 360

 

Steward Must Convince Jury Doc Fired For HIPAA Violation

By Chris Villani

 

Law360, Boston (May 16, 2018, 3:54 PM EDT) — Steward Healthcare System LLC will need to convince a jury it fired a psychiatrist for violating the Health Insurance Portability and Accountability Act and not because, as the doctor claims, he took disability leave after getting pneumonia, a Massachusetts federal judge ruled Wednesday in denying part of a summary judgment bid.

Dr. Alexander Lipin sued Steward, Steward Medical Group Inc. and Holy Family Hospital in a case removed to federal court in November 2016, nine months after he was fired. Lipin claims the hospital canned him wrongfully after he needed to extend his time off under the Family Medical Leave Act due to a bout with pneumonia, but the hospital said it decided he had to go before they knew he was sick after he passed along patient information to the police in violation of HIPAA.

SMG President Dr. George Clairmont said he was waiting for Lipin to come back from leave to officially show him the door but went ahead with the dismissal when he learned Lipin was doing work at another hospital, Anna Jaques Hospital, while supposedly out sick. In denying part of Steward’s motion for summary judgment, U.S. District Judge Leo T. Sorokin wrote Wednesday that a trial will be needed to sort out some of the issues around the prickly firing.

“A genuine issue of material fact exists as to whether Steward made its decision to terminate Lipin (1) before he took leave on January 26 and (2) before Clairmont learned of Lipin’s continued work for Anna Jaques on February 13,” Judge Sorokin wrote.

Although Judge Sorokin said nothing directly contradicts Clairmont’s description of the firing, he said finders of fact could choose to disregard his account because the hospital never actually fired Lipin or made arrangements to cover his patient workload until learning of his work for Anna Jaques.

“These circumstances could support a reasonable inference that Steward decided to fire Lipin only after Clairmont learned of Lipin’s work at Anna Jaques,” Judge Sorokin wrote. “Thus, Steward’s primary argument — that there was no causal connection between Lipin’s FMLA leave and his termination — fails for purposes of summary judgment on Lipin’s FMLA-based claims.”

The hospital said the decision to fire Lipin came after investigating a November 2015 incident during which Lipin allegedly called Methuen police and conveyed information about a patient to find out if the patient had any outstanding warrants. The police declined to speak with him about the matter, citing HIPAA, and the hospital began probing the incident over the course of the next several weeks, according to court records.

Kavita M. Goyal of the Rosen Law Offices, an attorney for Lipin, told Law360 on Thursday the HIPAA violation was “no big deal” and an excuse concocted by the hospital to drum up grounds for Lipin’s termination. Clairmont’s report characterized the offense as “minor” and Lipin would show a jury it was not the reason for the firing, Goyal said.

The judge did allow a win for Steward on separate claims by Lipin that the hospital violated the Americans With Disabilities Act by firing him on Feb. 23, 2016, after extending his FMLA leave until March 2 of that year. The judge said continuing to engage with Lipin about his illness after deciding to fire him would only have served to delay the inevitable.

“Whereas Steward had reached an employment decision without regard to any disability asserted by Lipin,” Judge Sorokin wrote, “Steward was not obligated to initiate an interactive dialogue with Lipin toward an accommodation that would have served only to forestall his termination.”

Both Goyal and Emily L. Grossman, another Lipin attorney, said they were pleased that Judge Sorokin is allowing the FMLA part of the suit to proceed, but were disappointed to see the ADA claims tossed.

“I disagree with the judge’s decision, he suggests an employer may no longer be obligated to participate in the interactive process if a decision is made to terminate, even if that decision is unlawful,” Goyal said. “In this case, he was working a second job and we believe he was protected under FMLA.

“The reason they terminated him was because they were mad he had worked at Anna Jaques and believed he was not entitled to the time off because he was working somewhere else,” Goyal added. “At the very least, the employee is entitled to a conversation.”

The parties are due back in court May 30 for an initial pretrial conference. Judge Sorokin also directed lawyers for both sides to determine whether mediation to avoid trial altogether might prove fruitful.

Counsel for Steward did not immediately respond to requests to comment Wednesday afternoon.

Lipin is represented by Kavita M. Goyal and Emily L. Grossman of Rosen Law Offices. Steward is represented by Anne S. Bider and Barry J. Miller of Seyfarth Shaw LLP.

The case is Lipin v. Steward Healthcare System LLP et al., case number 1:16-cv-12256, in the U.S. District Court for the District of Massachusetts.

–Editing by Orlando Lorenzo.

posted by: joelrosen in ADMINISTRATIVE LAW, BUSINESS ADVICE & LITIGATION, EMPLOYMENT & DISCRIMATION | No Comments

Dental Board to Start Random CEU Audits

June 10th, 2015

dentThe Board of Registration in Dentistry is going to start doing random audits to make sure dentists and hygienists have met their continuing education requirements (“CEUs).  

In the past, the only way the Board knew if someone was up to date on their CEUs was if there was a complaint.  In the course of the investigation, they would routinely request proof of attendance at the various required courses.  Starting in the fall, the Board will do random audits.  The goal is to hit 5 percent of the licensed dentists and hygienists every year.  

When dental professionals renew their licenses, they have to certify that they have satisfied their CEU requirements.  Dentists have to take 40 CEUs every two years; hygienists need 20 units.  Dentists are required to include courses in infection control and pain management.  It’s easy to miss the pain-management requirement, because it’s not in the regulations.  You can find it here.  The dentist or hygienist should also take a CPR course. 

Dentists who fall short are in double-trouble.  They’ve violated the CEU requirement, and they’ve also lied on their license renewal form.  If there are no other violations, the Board will often impose “stayed probation.”  That’s a nondisciplinary sanction.  If the dentist makes up the missing credits and stays out of trouble for a year, there won’t be any indication of public discipline when someone looks up the license, and there won’t be any report to the national data bank.  But the investigators may find some other concern, and when the issues start to add up, the sanction can be more severe.

The current license renewal cycle runs from April 1, 2014-March 31, 2016.   The Board is going to be more conscientious in checking CEUs than it was in the past, so make sure you are more conscientious about taking all your courses.

posted by: joelrosen in ADMINISTRATIVE LAW, Announcements, BUSINESS, BUSINESS ADVICE & LITIGATION, For Medical Professionals | No Comments

The Dental Board’s First Look at Your Case

May 12th, 2015

Here’s an article Joel wrote for the Journal of the Massachusetts Dental Society in the summer of 2014. Since then, the Board has decided to schedule cases in advance, and you’re told where your case will fall in the order. But otherwise this is a fair summary of what you can expect at your first trip to the Board of Registration in Dentistry.

 

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Let’s say a patient has complained. You’ve received a letter from the Board of Registration in Dentistry (BORID). Your lawyer has responded with a complete explanation, and you’ve kind of forgotten about the whole thing. Then one day, you get this letter telling you that in one week the Board will meet in executive session to consider the complaint.

There’s no reason to panic. The letter is not necessarily bad news, and at worst, the Board’s new procedure will give you a better understanding of your case.

When the Board gets a complaint, it generally asks the dentist to respond and provide relevant documents. After the dentist replies, it can be months before anything happens. But eventually, the Board has to decide what to do about the complaint, and that’s when the letter will come.

In the past, the Board dealt with most complaints in open session. These would be listed on the agenda. But dentists don’t always consult the Board’s website and might not have known their case was on. The next thing the dentist would hear was either that the case was dismissed or that the Board was taking it further.

Things are different these days. Now, you are more likely to get a letter saying that the Board is going to consider the complaint against you in “executive session”—a closed hearing. You have the right to be present, to speak on your own behalf, and to make a recording or transcript. You may bring a lawyer. The lawyer is not entitled to participate actively. His or her main job is to prepare you, observe the proceedings, and advise you about your rights.

The open meeting law allows the Board to meet in executive session to discuss “the discipline or dismissal of, or complaints or charges brought against . . . [an] individual.” You would think, from this, that the Board is concerned with protecting the reputation of a dentist who may not have done anything wrong. And the closed sessions do serve that purpose. But the main goal is to preserve patient confidentiality.

It’s impossible to discuss your treatment of a patient without a risk that protected health information will be disclosed. When a specific patient isn’t involved—let’s say your dental hygienist forgot to renew her license—the Board will discuss the matter in open session.

What to Expect at the Board Meeting

The meeting opens at 8:30 a.m. at BORID’s headquarters at 239 Causeway Street in Boston. Cases are called in the order that people sign in, so get in line early and try to sign up about 15 minutes before the proceedings begin. The Board meets first in open session to discuss general business. After an hour or two, there will be a motion to enter executive session, and the public will leave the room. Depending on when you signed in, you may have an hour or more to wait.

When your case is called, you and your lawyer will sit at a desk near the Board’s conference table. You will have discussed in advance what you will say, if anything. The Board investigator will make a presentation about what regulations you may have violated and what evidence there is.

Although you’ve already received some indication of what your case is about, the investigator may have discovered facts that will come as a surprise to you. The executive sessions are recorded, so if you choose to speak, those words may come back to haunt you. If something surprises you, it’s probably better to remain silent than to blurt out an ill-considered explanation.

Although an appearance before a licensing board can be nerve-wracking—try not to worry. The large majority of cases don’t result in public discipline. Dentists frequently are in and out of the boardroom in a few minutes, smiling and shaking hands with their lawyers.

By the Number

Jeffrey Mills, the Board’s assistant executive director, was kind enough to provide the following statistics from the Board’s files regarding the period between June 1, 2013, and May 31, 2014. The Board closed 170 complaints during that time. Of these:

• 26 were dismissed

• 22 were dismissed with an advisory letter

• 69 resulted in stayed probation (non-disciplinary)

• 10 resulted in a reprimand

• 35 resulted in probation

• 5 resulted in suspension (one was summary suspension)

• 3 resulted in voluntary surrender

Only 32 percent of the complaints resulted in public discipline, which is reportable to the National Practitioner Databank. Fewer than 5 percent of the complaints resulted in the temporary or permanent loss of a license. There was only one summary suspension. That happened to be my case, and it was dismissed after a hearing, so really there were only four suspensions, or a little more than 2 percent of the cases.

Four Reasons to Show Up

With few cases resulting in serious discipline, you may wonder whether you should even bother to show up. I think you should, for four reasons.

First, the complaint you responded to may not have given you all the information about your case. The investigator may have discovered something more troubling than whatever was bothering the patient. So a complaint that seems frivolous may result in a serious charge.

Second, and perhaps most important, the investigator’s presentation is your best chance to understand what regulations you may have violated and to hear and see the supporting evidence. This information will help you inform your expert witness and prepare for a hearing. You can also see what the Board thinks of your case. The members may not agree whether there really was a violation and how serious it was. If the Board thinks it’s appropriate to impose a sanction, you will hear why they chose the particular discipline they did. You will have a sound basis to discuss with your lawyer whether to accept the discipline offered or ask for a hearing.

Third, even the Board’s investigators are capable of making a mistake. If there’s an obvious error in the investigator’s presentation, this is your chance to correct it before things progress—if your lawyer thinks that’s wise.

Fourth, and one of the best reasons to attend, is that you don’t have to wait to find out what happened. Many times, the investigator will say a couple of sentences, and the chair will ask, “Does anybody want to open a case?” If no one responds, there will be a motion to dismiss the complaint. It’s worth being in the room to hear the words, “The motion carries.”

 

 

Download a printable version here:

Journal Summer 2014_Risk Management(click to download)

posted by: joelrosen in ADMINISTRATIVE LAW, BUSINESS, BUSINESS ADVICE & LITIGATION, For Medical Professionals | No Comments

Rosen Law Victory Limits the Power of Licensing Boards

December 13th, 2011

          State licensing boards can no longer interpret or enforce OSHA regulations to discipline dentists or other professionals, the Supreme Judicial Court ruled.  

 

          Our client was a dentist who received a surprise inspection by investigators from the Massachusetts Board of Registration in Dentistry. They cited him for 31 deficiencies in the way he ran his practice. After a hearing, the Board found no basis for 25 of those allegations but did find that the dentist had violated six regulations and suspended him for six months. 

          Five of the six infractions were alleged violations of federal workplace regulations under the Occupational Safety and Health Act (“OSHA”). The dental board argued that it had incorporated OSHA into its own regulations. Therefore, it was entitled to enforce federal law. 

          The court found the Board’s position untenable. It noted that the Board possibly interpreted OSHA regulations differently than the federal agency would have done. In fact, we argued, if federal investigators had come to the dentists’ office, they would not have found anything wrong.

          The court went on to say, “The focus of our inquiry, however, does not require us to decide whether the board correctly interpreted these OSHA standards. Our point in referencing the potential misinterpretation is to show that, in invoking the OSHA standards, the board necessarily interpreted, applied, and enforced them. In doing so, the board exposed [this dentist] to the exact danger Congress sought to avoid through the act: that the State would subject workers and employers to duplicative regulation.”

          The decision changes the way state licensing boards do business. It is fundamentally unfair to subject doctors, dentists, and nurses to an inconsistent set of standards. They should know in advance what they are required to do. Now, thanks to the court’s decision in Chadwick v. Board of Registration in Dentistry, they will.

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