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From Health Law Daily, August 13, 2014

Hospitalist cannot resuscitate claims dismissed last year

By Melissa Skinner, JD

A hospitalist requesting that the court reconsider its dismissal of certain claims against his former employer hospital was not able to rescue the causes of action. The court rejected the hospitalist’s arguments that new evidence had been uncovered that would warrant the reconsideration of those dismissals, but certain original claims that survived prior court orders for dismissal remain (Elkharwily v Mayo Holding Company, August 11, 2014, Doty, D).

Background. After raising concerns about certain procedures at the hospital at which he was employed, Mayo Clinic Health Systems – Albert Lea (Mayo), a hospitalist, Alaa Elkharwily, was terminated from his employment. According to Mayo, the termination was not in retaliation for Elkharwily’s complaints regarding patient safety, fraudulent billing, unnecessary admissions, misdiagnoses, improper coding, and inaccurate billing, but instead were a result of an incident in which Elkharwily resisted the ordered transfer of a patient because the patient was not stabilized. Elkharwily brought suit against Mayo, its affiliates, and individual administrators and physicians claiming: (1) violation of the False Claims Act (FCA); (2) violation of the Emergency Medical Treatment and Active Labor Act (EMTALA); (3) violation of the Minnesota Whistleblower Act (MWA); (4) violation of the Minnesota Vulnerable Adults Act (MVAA); (5) breach of contract; (6) intentional infliction of emotional distress; and (7) defamation.

Prior actions. In July 2013, following a motion that was filed by Mayo and the accused entities and individuals, the court dismissed certain claims and allowed other claims to stand. Specifically, the court dismissed the EMTALA claim insofar as it was based on the “allegations that Elkharwily was terminated for refusing to transfer a patient.” The other aspect of the EMTALA claim remained, as did the claims of violations under the FCA, MWA, and one breach of contract claim. Earlier this year, the court entered another ruling that limited Elkharwily’s requests for documents supporting his remaining claims, finding this requests were overbroad and “unduly expansive.”

Reconsideration. Elkharwily filed a motion for reconsideration of the July 2013 ruling of the court that resulted in the dismissal of the certain claims against Mayo. In general, Elkharwily claimed that new evidence had been uncovered in the discovery process that warranted reconsideration by the court of the dismissal of those claims. According to the court, the earlier dismissal order had the effect of dismissing “all individual and entity defendants other than [Mayo].” Elkharwily argued in his motion for reconsideration that new evidence showed that certain affiliates controlled Mayo’s decision to terminate his employment. The court, however, rejected this argument and found that at most the new evidence reveals that the other entities were merely aware of Elkharwily’s complaints. Moreover, the court noted, “even if reconsideration were appropriate, the court is mindful of the obvious prejudice that would be caused to the dismissed parties if the claims against them were reopened.”

Elkharwily also argued that the dismissed aspect of the EMTALA claim should stand because “medical records produced during discovery corroborate his allegations that the patient was unstable when Elkharwily declined to transfer him.” The court refused to reconsider this dismissal because the new facts were contradicted by “Elkharwily’s own sworn and notarized statement made to the medical board shortly after the incident.” The court also determined that it would not reconsider the dismissal of the MVAA and defamation claimed because it found that Elkharwily presented no facts to undermine or show that the court’s previous order was made in error.

The case number is 12-3062 (DSD/JJK).

Attorneys: Richard T. Wylie (Richard T. Wylie, Attorney at Law) for Alaa E. Elkharwily. David T. Schultz (Maslon Edelman Borman & Brand, LLP) for Mayo Holding Co., Mayo Clinic Health System - Albert Lea, Mayo Foundation, and Mayo Clinic, Inc.

Companies: Mayo Holding Co.; Mayo Clinic Health System - Albert Lea; Mayo Foundation; Mayo Clinic, Inc.

MainStory: TopStory CaseDecisions EmploymentNews EMTALANews FraudNews FCANews MinnesotaNews

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