Tag: 2024 News

Dignity Health dba French Hospital Medical Center filed its suit against Troy I. Mounts, M.D. and Troy I. Mounts, M.D., Inc., an orthopedic surgeon, to recover an advance paid to him under their Physician Recruitment Agreement.

Dr. Mounts filed a cross-complaint alleging Dignity retaliated against him for complaining about the quality of patient care, interfered with his prospective economic opportunities and engaged in unlawful business practices.

Dignity filed an anti-SLAPP motion to strike the cross-complaint. (Code Civ. Proc., § 425.16.) The trial court denied that motion. In an unpublished February 2022 opinion, the court of appeal reversed the trial court’s order and remanded the matter for the trial court to determine whether Mounts had demonstrated a probability of prevailing on the merits of his claim.

On remand the trial court concluded Mounts had not demonstrated a probability of prevailing because Dignity’s actions were subject to the litigation privilege, the common interest privilege, and barred by the statute of limitations. It therefore granted the motion to strike Mounts’ cross-complaint and ordered him to pay Dignity’s attorney fees and costs.

The court of appeal affirmed the cross-complaint dismissal in the published case of Dignity Health v. Mounts – A167089 (September 2024). The Opinion provides information about the internal disciplinary system within hospitals that are not well known by the workers’ compensation industry.

Dignity hired Dr. Mounts to work in a spine surgery practice at the San Luis Obispo French Hospital Center. Dignity contends that concerns regarding his clinical competence arose almost immediately. At the same time, Mounts complained that he was not getting staff support or adequate time in the operating room to perform complex surgeries. Dignity put his complex surgeries “on hold” and required him to complete a previously scheduled surgery with a second surgeon he had not worked with before.

Disputes regarding Mounts’ practice continued. In December 2015, Dignity’s Chief of the Medical Staff, Chief of Anesthesiology, Vice President of Medical Affairs and the Chair of the Surgery Department requested that Dr. Mounts refrain from operating until they completed a Focused Professional Practitioner Evaluation (FPPE) review. He agreed to this restriction.

Two days later, Dignity’s Medical Executive Committee (“MEC”) sent Mounts a letter notifying him that Dignity would be required to submit a report to the Medical Board of California under Business & Professions Code section 805 (“805 Report”) if the voluntary restriction of privileges lasted longer than 30 days. When Mounts attempted to rescind his voluntary restriction of privileges, the Chief of Staff responded that he could do so, but Dignity could respond by summarily suspending his privileges. A suspension that lasted longer than 14 days would also require an 805 Report.

By the time Mounts’ attorney notified Dignity that he wanted to lift his voluntary restriction, it had already lasted 30 days. Dignity filed an 805 Report with the Medical Board and a report with the National Practitioner Data Bank (NPDB). The NPDB report stated that the “basis for action” was “IMMEDIATE THREAT TO THE HEALTH OR SAFETY.” (Capitalization added.)

After a meeting, the hospital chief of staff called Mounts to advise him that, although nothing was final yet, the committee’s decision was probably not going to be favorable to him. He encouraged appellant to resign his position. Mounts resigned on February 10, 2016. He subsequently lost privileges at two hospitals in California. He was considered for employment at a hospital in Montana and another in Tennessee but lost both employment opportunities

In the Anti-SLAPP motion filed by Dignity in response to his cross-complaint, Mounts did not present evidence that Dignity acted with malice when it engaged in these communications. Unless they were malicious, Dignity’s communications in this category were privileged. Privileged communications cannot form the basis of a claim for retaliation. The trial court’s orders granting the motion to strike and the motion for attorney’s fees were affirmed.

In recent years, California law has moved to increase the use of remote technology in court proceedings. While the pandemic spurred significant advancements in online teleconferencing technology, the use of remote technology in court proceedings has proved to be highly contentious in the Legislature.

As a result of compromises by all stakeholders, the use of remote technology in Superior Courts now generally requires the consent of the various parties and the court reporter’s physical presence in the courtroom to protect the accuracy of the record.

However, utilizing technology to develop court transcripts remains far less settled. Due to the potential for critical errors or failure in the technology used to develop transcripts, the Legislature must proceed with extreme caution in authorizing the use of technology for developing court records.

Indeed, the Legislature has indicated a strong preference for a person to continue to play a role in the development of a record, as utilizing recording technology without some form of human oversight may result in large segments of proceedings being omitted from the record as a result of an error by a recording system.

California courts are rarely able to provide court reporters in civil matters. To this end, starting in 2021, the Legislature allocated $30 million per year to the Judicial Council to increase the number of court reporters available in family and civil law cases. (SB 170 (Skinner), Chapter 240, Statutes of 2021.) Notwithstanding the Legislature’s infusion of funding, and although stakeholders dispute the underlying causes, the Judicial Council has been unable to hire enough court reporters to ensure the availability of accurate records for all litigants.

Recognizing that technology may exist to enable a court reporter to record the official transcript of proceedings in Superior Courts from a remote location, and a new law, AB 3013, just signed by Governor Newsom, authorizes a remote court reporting pilot program to be deployed in 11 superior courts across the state.

The new law establishes the minimum technological standards necessary for remote court reporting to ensure that any record produced by a court reporter working remotely is accurate and functional for use in potential appeals.

Given the often contentious relationship between California’s courts and court reporters, this new law clarifies that court reporters working remotely cannot be treated differently than their peers who physically are working in courtrooms.

Finally, this law requires a report to the Legislature at the conclusion of the pilot program to enable the Legislature to evaluate the program’s success and determine if remote court reporting is a viable option for assisting in the recruitment and retention of qualified court reporters.

The superior courts of the Counties of Alameda, Contra Costa, Los Angeles, Mendocino, Monterey, Orange, San Bernardino, San Diego, San Joaquin, San Mateo, Santa Clara, Tulare, and Ventura are authorized to conduct pilot projects to study the potential use of remote court reporting to make the verbatim record of certain court proceedings.

The WCAB is not part of this pilot project. Nonetheless, it can probably benefit from the results of the study sent to the legislature. There will no doubt be technologies that work better than others, and thus guide further regulation of the WCAB adjudication system.

Justin W. Webster was a San Francisco police officer who was injured in the course of his employment. After a full evidentiary hearing, the administrative law judge denied Mr. Webster’s application for Industrial Disability Retirement (IDR). The administrative law judge found the retirement system’s medical expert more persuasive than Mr. Webster’s medical expert. Specifically, the administrative law judge found Mr. Webster’s medical expert did not rely on “objective evidence.” After the decision, Mr. Webster filed a petition for writ of administrative mandate.

Additionally, Mr. Webster sought to return to work as a police officer. Before Mr. Webster could return to work, he was required to complete a medical examination. After completing this examination, the medical doctor found Mr. Webster was “not fit for duty.”

In a companion workers’ compensation case, another medical doctor found Mr. Webster was not capable of performing his job duties. Mr. Webster filed a second IDR application. The retirement system declined to process his second IDR application.

The superior court granted in part Mr. Webster’s petition for writ of mandate, setting aside the denial of his IDR application. The court rejected the retirement system’s argument that Mr. Webster had failed to exhaust all administrative remedies. The court ruled that requesting a rehearing based upon the same facts and law would have been futile. Finally, the court, relying on the two new medical reports, remanded the case for reconsideration.

The court of appeal affirmed the trial court in the unpublished case of Webster v. S.F. Employees’ Retirement System -A168995 (September 2024).

San Francisco Employees’ Retirement System appeals from the superior court order setting aside an administrative agency’s denial of respondent’s Industrial Disability Retirement (IDR) application and remanding the case to be reconsidered in light of new evidence pursuant to Code of Civil Procedure section 1094.5, subdivision (e). It argues the superior court erred in finding that respondent’s writ was not barred by failing to exhaust all administrative remedies and admitting two new medical reports.

“While it is true the superior court did not reverse or affirm the agency’s decision, the court decided all issues presented to it. The court set aside the agency’s decision denying respondent’s IDR application. Under section 1094.5, the court exercised its discretion to consider the two new medical reports and remand the case back to the agency to reconsider its decision in light of the new evidence. At that point there was nothing left for the superior court to do. Moreover, dismissing the appeal now could moot the issue of whether respondent had exhausted all administrative remedies before he sought a petition of writ of administrative mandate. We therefore conclude the challenged order is appealable.”

“Because the two additional medical reports were not available within 30 days after the hearing officer’s decision had been served, both sides appear to agree the only basis respondent had for requesting a new hearing was ‘that the evidence did not justify the decision.’ “

“Here, the applicable charter section designates the review hearing as permissive not mandatory. Respondent had no new evidence or legal arguments to present at a review hearing where the same judicial officer would be presiding. Requesting a duplicative hearing on the same facts and law would have been meaningless, costly, and inefficient.“

Appellant also contends the superior court erred by admitting two additional medical reports and remanding the matter back to the agency to consider the new reports.

When the Legislature granted the superior court the discretion to receive “relevant evidence which, in the exercise of reasonable diligence, could not have been produced at the administrative hearing,” it reasonably may be inferred that it meant to authorize the receipt of evidence of events which took place after the administrative hearing. (Curtis v. Board of Retirement (1986) 177 Cal.App.3d 293, 299 (Curtis).)

“Here, the court did not err by considering the two medical reports that were prepared after the hearing. Moreover, section 1094.5 gives the court the option to remand the case in light of the new evidence or admit the evidence and proceed with the court’s independent review.”

“Contrary to Appellant’s argument, the court here merely considered the new medical reports in deciding to remand the matter back to the agency; the court did not admit the medical reports into the record.”

“The superior court made a reasonable determination that the new evidence was sufficient to require the agency to reconsider its decision. Indeed, it is preferred ” ‘that the administrative agency should have the first opportunity to decide the case on the basis of all the evidence’ ” and that the better practice is to remand the action in light of the new evidence.

Congress passed the Ryan Haight Online Pharmacy Consumer Protection Act in 2008, which requires the DEA, in conjunction with HHS, to promulgate permanent rules to allow practitioners to prescribe certain controlled medications via telehealth through a special registration pathway.

As of today, the agency still had not done so. In the advent of the Public Health Emergency, the DEA allowed DEA-registered practitioners to issue prescriptions for certain controlled substances to patients via telemedicine without requiring an in-person medical evaluation. The DEA authorization was temporary and is set to expire at year-end.

The American Telemedicine Association reports that these flexibilities have been a lifeline for countless individuals across the country, ensuring uninterrupted access to essential mental health care, substance use treatment, end-of-life care, and many other crucial treatments during a time when in-person visits were impossible or unsafe.

The ongoing challenges in accessing mental health and substance use treatment services, particularly in rural and underserved areas, underscore the importance of maintaining these flexibilities. More than half of U.S. counties do not have a psychiatrist. The shortage is even more prominent in rural areas, with nearly three quarters of rural counties lacking a psychiatrist. Telemedicine has proven to be an effective tool in bridging the gap between patients and providers, reducing barriers to care, and supporting those most in need. At its pandemic peak, telehealth represented 40% of mental health and substance use outpatient visits, and still remains strong, representing 36% of outpatient visits currently.

Given the widespread provider shortage across medical professions and specialties, this flexibility has been essential in ensuring that patients receive timely and necessary care. Continuing these practices is vital to sustaining access to treatment and addressing the ongoing healthcare challenges in underserved areas.

For these reasons, this week, more than 330 stakeholder organizations asked Congress and the White House to intervene to ensure ongoing access to remote prescribing of controlled substances. The letters were co-led by the American Telemedicine Association (ATA) and ATA Action alongside other like-minded partners and organizations. Stakeholders anticipate, based on current reporting, that the Drug Enforcement Administration (DEA) will dramatically limit virtual prescribing, either through new regulations or by allowing the existing flexibilities to expire at year-end.

“This is a predictable and preventable crisis that is looming come January 1 and we are quickly running out of time to save countless patients from being abandoned, left without lifesaving clinically appropriate care,” said Kyle Zebley, the ATA’s senior vice president, public policy, and executive director, ATA Action. “With each day, we are losing precious time the DEA needs to properly develop a rule that appropriately permits and regulates the prescribing of controlled substances through telehealth without jeopardizing the health and safety of Americans, especially those in underserved communities.”

Specifically, the letters to House and Senate leaders urge Congress to include a two-year extension of pandemic-era remote prescribing flexibilities for controlled substances in an end-of-year legislative package.

The letter to the White House recommends that the Biden Administration work with the DEA and other relevant agencies to use existing authorities to extend these flexibilities for two years, providing the DEA with additional time to fulfill its congressional mandate to establish a special registration pathway that balances access to medically necessary care with appropriate enforcement.

“President Biden has already pledged to do all he can to protect all Americans, especially those who are vulnerable, from losing access to vital healthcare services, and we are grateful for the Administration’s longstanding commitment to establishing telehealth as a permanent part of care delivery,”

Zebley added. “It’s in the hands of our policy champions in the Administration and Congress to safeguard the American people, create predictability for our providers, and modernize our healthcare system to make sure patients receive timely and necessary care. We continue to stand ready to work with policymakers to make telehealth a permanent option in a modernized healthcare system.”

On March 8, 2018, Tatyana Litvinova filed a putative collective-action complaint against the City and County of San Francisco alleging that the City violated the Fair Labor Standards Act by not paying staff nurses time-and-a-half for overtime work, including per diem shifts. Litvinova v. City and County of San Francisco, No. 3:18-cv-1494-RS (N.D. Cal.). She moved to certify a collective action under 29 U.S.C. § 216(b), and the district court granted the motion.

On October 22, 2020, Kristen Silloway, Christa Duran, and Brigitta van Ewijk filed a similar complaint on behalf of themselves and “similarly situated dual-status registered nurses.” Silloway v. City and County of San Francisco, No. 3:20-cv-7400-RS (N.D. Cal.). Given the factual similarity between the two cases, the district court issued an order treating them as related. Between the two separate collective actions, a total of about 353 plaintiffs opted in.

On cross-motions for summary judgment, the district court granted summary judgment in favor of the City, concluding that the staff nurses were paid on a “salary basis” and therefore exempt from the FLSA overtime requirements. Litvinova v. City and County of San Francisco, 615 F. Supp. 3d 1061, 1069 (N.D. Cal. 2022). The district court treated the published salary ordinance, which referred to staff nurses as salaried employees, as “dispositive evidence” that the nurses were compensated on a salary basis. The district court found the nurses’ hourly pay rates to be a mere “accounting fiction” used for administrative purposes, and it rejected plaintiffs’ allegations of improper pay deductions by finding that the City’s expert report provided adequate explanations for those discrepancies.

Silloway timely appealed the district court’s decision. Litvinova filed a Motion for Reconsideration under Federal Rules of Civil Procedure 59 and 60 and then, after it was denied, timely appealed as well.

The United States Court of Appeals for the 9th Circuit consolidated the two appeals for argument and decision. It reversed the grant of the summary judgment motion in favor of the City in the published case of Kristen Silloway, et.al. v City and County of San Francisco  22-16079 (September 2024).

The City of San Francisco employs staff nurses in its hospitals, jails, and clinics. Many work more than 40 hours in a week. The Fair Labor Standards Act provides that employees should generally receive time-and-a-half pay for working overtime, but one of the Act’s exemptions from that requirement applies to employees working in a bona fide professional capacity. The City claims that staff nurses fall into that exemption. The plaintiffs disagree.

The 9th Circuit concluded that the district court erred in granting summary judgment to the City. The salary ordinance, which the district court found to be dispositive evidence that the staff nurses were paid on a salary basis, is neither the starting point nor the ending point for that inquiry. Rather, the salary basis test asks whether an employee actually receives a predetermined amount of compensation on a weekly or less frequent basis as a matter of practice. In this case, the parties dispute several factual issues that are material to answering that question.

The most significant is whether staff nurses are guaranteed the opportunity to work the hours corresponding to their full-time equivalency every week. According to an expert report submitted by the City itself, the City recorded staff nurses as working or being credited for fewer hours than their full-time equivalencies in at least 72 employee pay periods out of more than 2,200 reviewed.

Because staff nurses are paid according to the number of hours they are recorded as working or otherwise credited, it is uncertain whether staff nurses received their predetermined amounts of compensation during these irregular pay periods.

Additionally, the FLSA’s “actual practice” and “window of correction” provisions offer the City no refuge, at least on summary judgment. Assuming that the 72 abnormal pay periods represent improper deductions – as must be done in reviewing a grant of summary judgment against the plaintiffs – the City made improper deductions much more frequently than in cases where courts have found that no “actual practice” existed.

Questions about the propriety of these 72 deductions leave material factual issues in dispute as to whether the City maintained an “actual practice” of making improper deductions. As for the “window of correction” defense, the City has not provided evidence showing that the staff nurses were reimbursed for any of these possibly improper deductions, so summary judgment cannot be granted or affirmed on that ground, either.

The panel reversed the district court’s summary judgment for the City and County of San Francisco, and remanded, in both cases.