TMA, AMA Support Physicians Who Sue
Law Feature – October 2011
Tex Med. 2011;107(10):45-50.
By Crystal Conde
There comes a time in many physicians' careers when they need legal reinforcement. One physician or a small group of doctors may battle a large private or governmental entity with robust financial resources in court, or organized medicine may need to fight scope-of-practice battles. Physicians need to know they can count on strong allies to defend their profession and their individual rights.
The Texas Medical Association regularly collaborates with the Litigation Center of the American Medical Association and State Medical Societies to present a united front in legal cases that might affect the practice of medicine in Texas and even the nation. The Litigation Center has been the medical profession's voice in legal proceedings across the country for 16 years by providing physicians with assistance and expertise. (See "Litigation Center Stands Up for Physicians, Medicine.")
Most recently, the AMA Litigation Center collaborated with TMA and the American Association of Physicians of Indian Origin (AAPI) to support three Victoria cardiologists who held medical staff privileges at Citizens Medical Center (CMC), a county-owned hospital in Victoria. All of the cardiologists are of Asiatic Indian origin, and all are American citizens. They regularly admitted patients and exercised their privileges at CMC until 2007. At that time, however, CMC contracted with a new cardiovascular surgeon. The physicians refused to refer their patients to the cardiovascular surgeon, contending he had a high mortality rate and performed unnecessary surgeries.
The same year, CMC signed employment contracts with five other cardiologists who referred virtually all of their cardiology surgery patients to the contracted cardiovascular surgeon.
In February 2010, the CMC Board of Directors closed the cardiology department to the three noncontracted cardiologists. The department was open only to physicians under contract on the CMC staff.
A CMC resolution removing the three physicians from the hospital says it "is not in fact, and should not be interpreted to be, a determination or finding by the [CMC] Board of incompetent or unprofessional conduct."
One week after CMC closed the cardiology department, Ajay Gaalla, MD; Harish Chandna, MD; and Dakshesh "Kumar" Parikh, MD, sued CMC, its Board of Directors, its chief executive officer, and one of the contracted cardiologists. The physicians allege in Gaalla et. al. v. Citizens Medical Center et. al. among other things that the resolution violated their federal constitutional rights to substantive due process.
In a brief to the U.S. Fifth Circuit Court of Appeals, the hospital and other defendants claimed the physicians suing them "became a significant disruptive force within CMC, interrupting meetings with shouting and name-calling, clashing with staff, and disseminating false information to patients about … a cardiovascular surgeon who eventually left CMC and Victoria to escape [p]laintiffs' harassment."
Drs. Parikh, Chandna, and Gaalla maintain that CMC never mentioned their alleged disruptive conduct before they filed the suit.
"It is unfortunate that CMC now claims that our raising concerns regarding inappropriate procedures or poor patient outcomes is somehow 'disruptive,'" Dr. Parikh said.
Before he and his colleagues sued, Dr. Parikh says, CMC sent them letters asking why they weren't referring patients to its exclusive cardiac surgeon.
"CMC's only concern was the best interest of the business of CMC, in other words, CMC's profit," he said.
In August 2010, Drs. Parikh, Chandna, and Gaalla filed a second suit alleging that the reduction of their medical staff privileges was motivated by ethnic discrimination, as well as economic reasons. They claim constitutional violations of due process, equal protection of the laws, and various common law rights.
"Prior to working at CMC, we never had a need to reflect on our nationality, ancestry, or ethnicity in a professional environment. Before our experience at CMC, we had always been treated as well-trained and competent physicians, residents of Victoria, Texas, and proud American citizens," Dr. Parikh said.
TMA, AMA, and AAPI filed an amicus curiae brief [PDF] in Brown v. Gaalla in June. The brief argues medical staff privileges are valuable rights, protectable under federal law against ethnic origin discrimination. TMA believes the hospital board passing a resolution shouldn't override hospital medical bylaws.
Dr. Parikh says he and his colleagues appreciate the support and assistance TMA, AMA, and AAPI have provided.
"It is organizations like TMA, AMA, AAPI, and others that can truly make an impact by highlighting this type of injustice at public hospitals so that others may avoid similar situations. We are also most grateful that these organizations have put forth the time and effort to file supporting briefs in the appellate court on our behalf," he said.
Hospital, Physician Interests Don't Align
Dr. Gaalla describes CMC's treatment of him and his two colleagues as hurtful. He says that CMC employees refused to call them when their patients asked for them at CMC's emergency department, leaving the patients perplexed.
"Knowing that your own county hospital administration does not want physicians of certain nationalities at the hospital is difficult. However, the most important concern is that these actions compromise our patients' care," he said.
The plaintiff physicians obtained a temporary injunction that prevented CMC from implementing its resolution. CMC appealed, and the Fifth Circuit reversed the lower court ruling.
A second CMC appeal in Brown v. Gaalla asked for summary judgment on the basis of governmental immunity. The court denied the motion, in part, finding evidence of ethnic discrimination.
The evidence included a 2007 memo from the CMC chief executive officer stating, "I feel a sense of disgust but am more concerned with what this means to the future of the hospital as more of our Middle Eastern born physicians demand leadership roles and demand influence over situations that are hospital issues. … [This] will change the entire complexion of the hospital and create a level of fear among our employees."
Austin attorney Monte James, JD, of Jackson Walker LLP, represents the physicians in the case.
"In my opinion, Drs. Parikh, Chandna, and Gaalla have faced rampant racial discrimination at CMC. More importantly, however, what has been most disturbing to these three physicians is that CMC's actions have deprived cardiac patients in the Victoria area of the right to have their cardiologist called when they present to CMC's emergency room complaining of chest pains, which in the opinion of these physicians has resulted in some patients suffering bad outcomes," Mr. James said.
Dr. Chandna says CMC's claims are "a clear attempt to divert attention from their discriminatory misconduct."
"CMC's own documents prove the pervasiveness of the discrimination at CMC. In light of the derogatory emails and memo from CMC's leadership and the deposition testimony of CMC's employees, executives, board members, and even the Victoria County Commissioners, it is difficult to understand how anyone could attempt to deny that discrimination is rampant at CMC," Dr. Parikh said.
Houston attorney Daniel M. McClure, JD, of Fulbright & Jaworski LLP, represents CMC. He disputes allegations of racial discrimination by the hospital.
"The hospital and its board members acted reasonably and properly and did not violate any constitutional rights of the plaintiff physicians. There is no evidence that the actions of this county-owned hospital and its board in adopting a resolution to close the cardiology department was the result of any racial discrimination or was motivated by anything other than a desire to provide quality medical services to the community. The allegations of racial discrimination are simply not true," Mr. McClure said.
The case will go to trial once the appeals of the rulings on pretrial motions are completed.
"We are confident that a jury will recognize that the hospital has acted inappropriately," Dr. Chandna said.
Organized Medicine to the Rescue
AAPI Vice President Jayesh Shah, MD, of San Antonio, says Brown v. Gaalla will pave the way for physicians to seek help when their interests in patient care don't align with the interests of hospitals. AAPI serves to facilitate and enable Indian-American physicians to excel in patient care, teaching, and research and to pursue their aspirations in professional and community capacities.
He says the case is an unfortunate reminder that some international medical graduates aren't treated fairly or equally. A 2009 AMA survey provides some insight into the discrimination experiences of those graduates. Of the 3,211 international medical graduates who responded, 49 percent indicated they'd experienced discrimination when applying for residency. More than 25 percent reported discrimination against them when seeking employment.
Dr. Shah adds that this case illustrates the importance of physician involvement in organized medicine.
"Backing from organized medicine gives individual physicians some standing. Anytime a single physician is having a problem, he or she may feel powerless. It's comforting for physicians to know they can turn to their state and national organizations for help," Dr. Shah said.
Stephen R. Permut, MD, a Delaware family physician on the AMA Board of Trustees, is a member of the Litigation Center Executive Committee. He stresses the most important aspect of the case is that the physicians involved, regardless of their ethnicity, were trying to do what was best for patients.
"The physicians involved in Brown v. Gaalla were uncomfortable doing what the hospital wanted them to do. As the hospital tried to circumvent clinical decisions, it became an ethnic issue," he said.
Dr. Permut compares the Victoria physicians' lawsuit with CMC to the biblical battle between David and Goliath.
"TMA and AMA can come to the aid of a group of physicians like this and provide them with legal expertise to protect the delivery of medical care and quality of care. Without this type of assistance, large organizations would just run roughshod over the entire practice of medicine and health care delivery," Dr. Permut said.
AMA, TMA Collaboration
TMA and the AMA Litigation Center have collaborated many times on behalf of physicians. In Aldridge v. Texas Health and Human Services Commission, both organizations gave Milissa Aldridge, MD, a financial grant to offset her legal expenses.
The case examined whether the Texas Health and Human Services Commission (HHSC) wrongfully excluded Dr. Aldridge from the Medicaid program, causing her to lose her job with a San Antonio radiology practice. Dr. Aldridge's San Antonio pediatric radiology practice halted suddenly in 2009 when she learned she was a target of the Office of Inspector General (OIG). (See "Dr. Aldridge's Nightmare," July 2009 Texas Medicine, pages 29-32.)
OIG told her an administrative sanction she'd received 15 years earlier when she gave up her career as a pharmacist to become a physician had made her ineligible to participate in Medicaid all those years. The agency demanded that she repay more than $800,000 in Medicaid claims. The sanction stemmed from inadvertently reporting that she met pharmacy continuing education requirements in renewing her pharmacy license while she was in medical school. Dr. Aldridge ultimately settled the case with the state pharmacy board and allowed her pharmacy license to become inactive. She says she never was notified she'd been excluded from Medicaid.
Kicked out of Medicaid and unable to find work in the United States, Dr. Aldridge spent 2010 as a radiologist in New Zealand under a government contract. Dr. Aldridge settled her case against HHSC and is awaiting a new Texas provider identifier number while looking for a new job in Texas. She says TMA and the AMA Litigation Center gave her much-needed support when her spirit was crushed.
"It was comforting to know I wasn't alone in this process. Someone actually had a clue what was going on and was willing to help me. I had someone on my side who understood what I was going through."
Besides providing legal assistance on behalf of individual physicians, the AMA Litigation Center has intervened to help TMA in its scope-of-practice cases.
Texas Medical Association v. Texas Board of Chiropractic Examiners dealt with the Texas Board of Chiropractic Examiners' attempt to expand chiropractors' scope of practice to include needle electromyography (EMG) tests, manipulation under anesthesia (MUA), and diagnosis. The Litigation Center has contributed to TMA's legal expenses in the case.
TMA sued the chiropractic board in 2006 to block its rules on MUA, EMG, and diagnosis because, the association said, they constitute the clinical and legal practice of medicine. In 2010, Austin State District Judge Stephen Yelenosky declared the rules invalid. The Chiropractic Board and the Texas Chiropractic Association appealed. The Court of Appeals set oral arguments in the case for Sept. 14.
TMA maintains that only the Texas Legislature may expand chiropractors' scope of practice.
The AMA Litigation Center contributed to the Texas Orthopaedic Association's (TOA's) legal expenses in Texas Orthopaedic Association v. Texas State Board of Podiatric Medicine. The center also filed amicus curiae briefs, along with the American Academy of Orthopaedic Surgeons and the Texas chapters of several specialty medical societies, to support TOA and TMA in the Texas Court of Appeals and the Texas Supreme Court.
In 2010, TMA and TOA prevailed in an eight-year legal battle stemming from podiatrists' definition of the foot. (See "Foot Fight," October 2010 Texas Medicine, pages 20-24.)
The case examined whether the Texas State Board of Podiatric Medical Examiners could define the foot as including the ankle and various soft tissue.
The case concluded when the Texas Supreme Court decided not to review a lower court ruling that rejected the podiatry board's rule allowing podiatrists to treat ankle injuries and conditions.
TMA maintained that expanding the scope of podiatry requires legislators to amend the state law governing the podiatric medical treatment and diagnosis of diseases and disorders of the foot.
Crystal Conde can be reached by telephone at (800) 880-1300, ext. 1385, or (512) 370-1385; by fax at (512) 370-1629; or by email.
Litigation Center Stands Up for Physicians, Medicine
Stephen R. Permut, MD, a Delaware family physician on the American Medical Association Board of Trustees, is a member of the Litigation Center of the American Medical Association and State Medical Societies Executive Committee. He says the Litigation Center learns of legal cases by contact from patients, physicians, and state or specialty medical societies, as well as national media attention.
"The AMA's Litigation Center can bring considerable financial resources and legal expertise to bear through the strength of all the state medical organizations it collaborates with across the country," he said.
Since the center's inception in 1995, it has participated in nearly 200 cases by providing physicians with legal assistance and expertise. All 50 state medical societies and the Medical Society of the District of Columbia are members.
The Litigation Center's docket of cases includes physician payment problems, medical staff privileges, medical liability issues, peer review, and scope-of-practice matters, among other topics. Forums range from administrative proceedings to cases before the U.S. Supreme Court. At any given time, the Litigation Center has about 25 active cases.
Generally, the Litigation Center acts in three types of cases:
Additional selection criteria may include whether the legal issues extend or clarify the case law on a matter of interest to physicians generally; the precedential value of the case; or the likelihood of succeeding on the merits of the case.
Find more information about the Litigation Center online. To inquire about whether AMA would consider getting involved in a case, call (312) 464-4110.