Sunday, March 25, 2012

Massachusetts health care 5-year lobbying topped $51M

AP: Mass. health care 5-year lobbying topped $51M
March 25, 2012

A review of Massachusetts lobbying records finds hospitals, insurers and other health care providers spending tens of millions of dollars lobbying Beacon Hill lawmakers.

During the five years since the state passed its landmark 2006 health care overhaul, the amount spent on lobbying by the industry topped $51.6 million.

The spending comes as lawmakers weigh sweeping changes to rein in soaring health care costs.

The Associated Press review finds that nine of the top 10 health care groups broke the $1 million lobbying mark during the past five years.

The top spender was Partners HealthCare. It spent more than $2.9 million from 2007 to 2011.

Partners is followed by Blue Cross Blue Shield of Massachusetts, the Massachusetts Association of Health Plans, the Massachusetts Nurses Association and Harvard Pilgrim Health Care.

Saturday, March 24, 2012

Man fatally stabbed in Woodland Hills by Kaiser Foundation Hospital employee

Man fatally stabbed in Woodland Hills by Kaiser Foundation Hospital employee ID'd
Daily News Wire Services

A man whom police said was fatally stabbed by a Kaiser Foundation Hospital employee ouside the Woodland Hills Medical Center was identified Tuesday as a 48-year-old transient.

Michael Joseph Vizkelety, 48, was stabbed about 3 a.m. Monday after being ordered by the employee to get off the hospital grounds, officials said.

Vizkelety struck the employee, identified as Solomon Lee Washington, 58, who then stabbed the man. Vizkelety was taken to the hospital's emergency room, where he was pronounced dead.

Washington, who was not a security guard, was arrested Monday on suspicion of murder. He was being held in lieu of $1 million bail.

Friday, March 23, 2012

Kaiser Sued in Medical Malpractice Lawsuit

Kaiser Sued in Medical Malpractice Lawsuit
Sokolove Law
23 Mar, 2012

Health care company Kaiser Permanente faces a medical malpractice lawsuit brought by a woman with stage IV ovarian cancer who claims her disease would have been treatable if she received appropriate testing when she first sought treatment.

According to Courthouse News, Yin Meng Liu Flato and her husband allege that Yin Meng went to a Kaiser Permanente hospital in 2006 with symptoms of cancer but that no tests was ordered by the medical staff. Their suit further claims that a chest CT scan in June 2010 showed nodules on her lungs but doctors still did not order testing.

The Flato’s medical malpractice lawsuit also alleges that it was not until March 2011 that diagnostic testing was performed, revealing Yin Meng had stage IV ovarian cancer. This failure to diagnose Yin Meng’s condition “resulted in plaintiff suffering high-risk cancer and resulting damages to the plaintiff," the complaint states.

Thursday, March 22, 2012

Lawmakers probe pharmacy ties to drug shortages

...the number of pharmacies that were licensed but did not open for business seemed to increase alongside the growing number of shortages...

Lawmakers probe pharmacy ties to drug shortages
By Anna Yukhananov
Mar 22, 2012

Lawmakers are investigating three pharmacies in Maryland and North Carolina accused of passing critical drugs in short supply directly to wholesalers, who are likely to profit from the scarcity of life-saving medicines, rather than to the patients that need them.

Elijah Cummings, the top Democrat on the influential House Committee on Oversight and Government Reform, began a probe in October to discover why certain companies were peddling cancer drugs at more than a hundred times their normal cost, while hospitals and patients were scrambling to receive any.

The Food and Drug Administration has said the number of drugs in short supply, which include cancer, anesthesiology and nutrition medications, had risen to 220 in 2011 from 56 in 2006, the year a clear trend started emerging.

Many of the drugs are generic, sterile injectable medications, such as cytarabine, a key treatment for leukemia, or fluorouracil, for colon and other cancers.

According to details of the investigation made public on Wednesday, some wholesalers opened up their own phony pharmacies simply to get their hands on drugs in short supply and re-sell them to patients at possibly higher prices. In some cases, the pharmacy and wholesaler were headed by the same person, or by a husband and wife pair.

State officials say pharmacies may be able to get access to scarce drugs when smaller wholesalers can't, on the assumption the drugs will go directly to patients who need them.

The findings illuminate gaps in the patchwork of state legislation that governs this sometimes shady network of pharmaceutical distribution known as the “gray market." And state officials are sometimes a step behind new scams -- hobbled by tight budgets, slow bureaucracies and inefficient communication with fellow regulators in other jurisdictions.

President Barack Obama made drug shortages a national priority in October, and also directed regulators to report cases of price gouging in the “gray market" to the Federal Trade Commission.

“It appears that some of these individuals essentially established 'fake pharmacies' ... What remains unclear is exactly how much they profited from this activity," Cummings said in a statement.

Cummings is investigating the gray market suppliers along with Senator John Rockefeller, chairman of the Senate Committee on Commerce, Science, and Transportation, and Senator Tom Harkin, chairman of the Senate Committee on Health, Education, Labor, and Pensions.


In one situation described by the lawmakers, Jessica Hoppe, the president of a drug wholesaler called International Pharmaceuticals Inc, applied to get a pharmacy license to sell drugs to long-term care facilities and infusion clinics.

But during a routine annual inspection, state regulators discovered Hoppe was operating the LTC Pharmacy from a “back corner" of her wholesaler office in Durham, North Carolina.

Instead of serving patients, she was funneling drugs like fluorouracil -- a treatment for colon and other cancers -- to her wholesale business within a day or two of purchasing them for the pharmacy, the documents show.

A pharmacist hired to run the pharmacy surrendered her license in September, and North Carolina officials declined to renew International Pharmaceuticals' wholesaler license at the end of 2011. Under state law, it is illegal for pharmacies to sell the bulk of their prescription drugs to wholesalers without a license, and for wholesalers to purchase drugs from unlicensed sellers.

But it is still unclear whether International Pharmaceuticals can still distribute drugs in 23 other states where it had a license. In a brief interview, a company representative said it was no longer operating, and that it surrendered its license voluntarily.

Dan Ragan, director of the Food and Drug Protection Division in North Carolina's Department of Agriculture, which oversees wholesaler licenses, said the information about International Pharmaceuticals was posted on the state's website.

“But there's not a great way to get the information out there," he said in an interview. “We should be able to notify our parties in other states that this is happening."


Most of the nation's drug supply passes from manufacturers like Hospira Inc and Teva Pharmaceuticals to three leading wholesalers -- AmerisourceBergen Corp, Cardinal Health Inc and McKesson Corp -- who distribute them to doctors, hospitals, clinics and pharmacies.

Smaller distributors have helped fill in the gaps in areas where larger companies may not operate, or may not always satisfy the entire demand.

But some of these more established companies have been joined by a bevy of new ones in recent years, as the problem of drug shortages has gotten worse.

“Any time there's a severe shortage of some critically needed good, invariably there are going to be folks who seek to exploit that," said Jay Campbell, executive director of the North Carolina Board of Pharmacy.

In tracing several scarce cancer drugs, Cummings' investigation found a convoluted supply chain, with drugs going from wholesalers to pharmacies and then back to wholesalers.

The lawmakers on Wednesday sent letters to three pharmacies and wholesalers in North Carolina, Maryland and New Jersey, asking them to reply by April 11 with detailed records about their operations and profit, and if any manufacturers had authorized them to sell the drugs.

They also sent letters to 19 other pharmacies that appeared to be selling drugs directly to wholesalers.


While the pharmacies in Maryland may not have been selling drugs to patients, the state's hands were also tied in terms of what they could do to stop it. Although the state tightened its wholesale laws in 2007, the pharmacy laws still leave some loopholes, officials said.

By law, many states allow pharmacies to sell up to five percent of their supply to other distributors, but only in rare or emergency circumstances.

But in practice it is hard to figure out when they're doing it, or how much of their supply is going elsewhere, said LaVerne Naesea, executive director of the Maryland Board of Pharmacy.

Maryland has no law that sets a timeline for how long a pharmacy can keep a license without operating, though its legislature recently passed a law that sets the limit at 60 days, which will take effect in July, Naesea said.

She said the number of pharmacies that were licensed but did not open for business seemed to increase alongside the growing number of shortages...

Wednesday, March 21, 2012

Kaiser Permanente Dr. Paul Phinney Simple Doctor Extraordinaire!

Kaiser Permanente Dr. Paul Phinney Simple Doctor Extraordinaire!
Youtube video
Mar 21, 2012

Consumer Watchdog is a nonprofit organization dedicated to providing an effective voice for taxpayers and consumers in an era when special interests dominate public discourse, government and politics.


Carmen Balber is the director of Consumer Watchdog's new Washington, D.C. office, and its eyes, ears and voice on national public policy. She is also point person for research and advocacy that exposes the corrupting influence of cash and corporation on politicians. She coordinates Consumer Watchdog's public education efforts on medical malpractice and is a legislative advocate on issues ranging from financial system and healthcare reform to protecting the civil justice system and corporate accountability.

Tuesday, March 20, 2012

Hawaii: bill excludes health insurers and providers from a board to oversee a federally mandated health insurance exchange

Health insurance panel to be 6 short
March 20, 2012
By Dave Segal
The Honolulu Star-Advertiser
McClatchy-Tribune Information Services

A House committee amended a bill Monday to immediately exclude health insurers and providers from a board appointed by Gov. Neil Abercrombie to oversee a federally mandated health insurance exchange.

Consumer advocates testified that allowing Hawaii Medical Service Association, Kaiser Permanente Hawaii and Hawaii Dental Service to remain on the 11-member exchange board would be a conflict of interest because they will have a direct financial stake in decisions of the exchange, known as the Hawaii Health Connector.

The federal Affordable Care Act, signed into law by President Barack Obama in March 2010, requires all states to set up a health insurance exchange that will match uninsured individuals to subsidized health care plans. The Hawaii Health Connector could be used by as many as 100,000 uninsured Hawaii residents to select their health care coverage.

Harris Nakamoto, who represented the Ohana Health Plan, withdrew as a Hawaii Health Connector board nominee Monday after accepting a position at Kaiser. The amended bill also would apply to the Hawaii Primary Care Association and the Maui Medical Group, leaving Abercrombie with the task of replacing six of his 11 appointees. Those board members removed could remain as nonvoting members in an advisory capacity.

Monday's amendment to SB 2434 by the House Committee on Consumer Protection and Commerce sets up a conflict Friday in which the Senate Committee on Commerce and Consumer Protection is scheduled to hold a confirmation hearing on all of Abercrombie's nominees to the exchange.

"If they confirm the nominees and the law passes, they would have to be removed because then the law would be in effect and they could not serve," said Barbara Kim Stanton, state director of AARP Hawaii.

"The consumer advocates were very pleased that the Consumer Protection and Commerce Committee heard the concerns of the consumers and made the significant amendments to protect consumer interests," Stanton said.

Consumer groups and community organizations held a news conference Monday in the Capitol Rotunda to voice their objection to insurance company representatives serving on the Hawaii Health Connector board, which they said presented a conflict of interest. The consumer advocates said the exchange, due to begin in January 2014, would represent a new market valued at an estimated $300 million.

"We say have a level playing field," Stanton said. "Have all the health plans compete fairly, but you shouldn't have some in on the board determining what the rules of competition will be. You should have them all out, and if you need information, have a technical advisory panel."

Beth Giesting, health care transformation coordinator for the Abercrombie administration, said she respects the consumer advocates' viewpoint about the potential for conflict.

"I also respect there is another side to it, and that is the insurers have been with us as important stakeholders and constituents and have helped us a lot," she said.

Rep. Ryan Yamane (D, Mililani-Waipio Gentry) chairman of the House Health Committee and vice chairman of the Consumer Protection panel, said the recommendations were made to address the concerns of various entities.

"What we wanted to do is protect the intent of the law, which is to offer these programs to consumers," he said.


Sunday, March 11, 2012

Kaiser Permanente CEO Robert Pearl Talks About Medical Errors--and inadvertently admits he deceived the court

Kaiser has had serious problems with medical errors, but prefers to point the finger at others.

There are some serious problems with Dr. Pearl's story (below) about his father's death. As proven by The Kaiser Papers, Dr. Pearl's father died in Florida, apparently a considerable time AFTER Dr. Pearl says he found his father on the living room floor in California. Why didn't Dr. Pearl investigate the cause of his father's sepsis during that time? Why did he wait until after his father was dead to look into his care?

Another problem is that Dr. Pearl apparently lied in court about the cause of his father's death. He sued the woman who caused a car accident long before his father's death, and forced the woman to pay for Dr. Pearl's pain and suffering at the loss of his father. But Dr. Pearl now admits that the accident was survivable, and the cause of death was actually a medical mistake.

Why didn't Dr. Pearl bother to check on his father's care BEFORE he died?

Dr. Pearl says his father visited him in California after the car accident, at which time his father collapsed from sepsis. The older man apparently recovered enough to return to Florida, but Dr. Pearl didn't bother to make sure his father had received the proper immunizations against infection.

I seems that Dr. Pearl may have invented the story about his father's visit to California. Is this a terrible thing for Dr. Pearl to have done? No, I don't think that it matters much where things happened.

I think it does matter, however, that Dr. Pearl gave one reason in court (in an effort to achieve financial gain) regarding his father's death, and then gave another reason to the media to attract patients to Kaiser Permanente (also to achieve financial gain)!

The place doesn't matter. The reason for, and the time of, the death are extremely important. If doctors killed him, then the much-earlier car accident was survivable. If the old man would have survived except for improper medical care, then the car accident was not the proximate cause of death. But that's NOT what Dr. Pearl said in court.

Kaiser CEO Talks To ABC7 About Medical Errors
December 03, 2005
By Karina Rusk

The man at the helm of Kaiser-Permanente speaks to ABC7 about a series of deadly medical mistakes and his personal connection to medical tragedy.

Dr. Robert Pearl is not only the CEO of the Permanente Medical Group, he is a son who lost his father to a medical error.

After an operation on the East Coast, Dr. Pearl's father did not receive a common and necessary vaccine.

Robert Pearl, M.D., Permanente Medical Group CEO: "As a consequence, one day when he was visiting me in California he was found unresponsive on the living room floor early in the morning with pneumococcal septicemia."

Dr. Pearl says that post operative infection took his father's life two years ago. The Institute of Medicine says such medical errors result in as many as 98,000 preventable deaths each year.

Dr. Pearl says that 1999 report is important to him professionally and personally.

Dr. Pearl: "If you use the national numbers, he is but a statistic. As a family member it is a tragedy."

The case of Chris Wibeto is another tragedy. He died in August at Kaiser Santa Teresa in San Jose after receiving the wrong cancer medication.

At Kaiser Santa Clara, three patients died within the last year due to medical error.

Dr. Pearl wants people to keep in mind Kaiser Permanente serves 3.2 million members in Northern California.

Dr. Pearl: "So no, I don't think there is a problem at all. In fact, I really believe Kaiser Permanente is a national leader in patient safety and Kasier Santa Clara is a facility that is exceptional."

Dr. Pearl says he and his own family are treated at Kaiser Santa Clara.

Despite occasional human error, Dr. Pearl maintains Kaiser has aggressive systems in place to prevent deadly mistakes like his fathers.

Dr. Pearl: "Had he been as member of Kasier Permanente, he would be alive today."

To find out why Dr. Pearl says Kaiser is being unfairly singled out and what he's doing to prevent future medical mistakes, watch the entire, unedited interview by clicking on the Video link above.

Friday, March 9, 2012

Research shows pay gap exists between female and male physicians

Research shows pay gap exists between female and male physicians,
and female hospitalists need to be aware and be prepared.
by Lisa Ryan
The Hospitalist
March 2012

A 2011 study published by Health Affairs showed that male physicians newly trained in New York state made on average $16,819 more than newly trained female physicians in 2008.

Roberta Gebhard, DO, thought that her 20 years of experience as a physician in the U.S., 10 of them as a hospitalist, would mean she would get paid more than a new graduate just out of residency would.

She was wrong.

Dr. Gebhard was working at a hospital run by the U.S. Department of Veterans Affairs when she learned that the less experienced doctor—a man—was making $10,000 more a year than she was.

“After that, the job was no longer interesting to me,” says Dr. Gebhard, who left the hospital over the pay discrepancy and now works as a hospitalist at WCA Hospital in Jamestown, N.Y. “Women think that things should be fair, so they assume that they are. I’m a good negotiator, and when that happened to me, I was like, ‘Wait a minute! I didn’t just take what they offered me.’ I pushed a few times and was basically told it was a government position, there was no wiggle room, and I couldn’t get more salary...

Wednesday, March 7, 2012

U-T: Scripps Mercy Cited In State Probe; 4 Fired

U-T: Scripps Mercy Cited In State Probe; 4 Fired
Investigators Say Workers Took Gifts, Steered Patients Into Certain Nursing Homes
Janet Lavelle, U-T San Diego
March 7, 2012

SAN DIEGO -- Scripps Mercy Hospital has fired four case managers and overhauled operations after state investigators found the employees broke state and federal laws by taking gifts from a nursing home owner and by steering patients into certain homes instead of giving them a choice when they left the hospital.

The California Department of Public Health launched an investigation in mid-November and two state Department of Justice investigators also participated.

Health department officials issued a deficiency report detailing the violations and last week approved a Plan of Correction that Scripps Mercy filed in response.
The state Department of Justice has filed no charges and “there is nothing we’re actively doing with this,” said Lynda Gledhill, press secretary for state Attorney General Kamala Harris.
Officials at the five-hospital Scripps Health system released a lengthy statement Tuesday, which said in part, “Scripps does not condone this type of behavior by employees. We work to ensure patients have a voice in their care. We regret this happened and have taken steps to prevent it from happening again.”
Those steps included demoting one supervisor and reorganizing the case management leadership, tightening auditing and conflict-of-interest procedures, and holding employee training classes.
Scripps spokeswoman Janice Collins said, “We started implementing a lot of the changes in January.”
Scripps Mercy, which employs 15 case managers, started its own investigation in October after getting a complaint from a patient who hadn’t been given a choice in nursing homes, Collins said.
State law requires hospitals to give a patient being transferred to a skilled nursing facility a list of options, without offering a recommendation, and then honor the patient’s choice.
In November, state and hospital investigators looked at medical records for 108 patients referred to nursing homes between May and October 2011. Interviews with patients and their families were compared with medical records and discrepancies were found involving five case managers who gave patients few or no choices among nursing facilities but documented that they had.
The five case managers told investigators they had gotten a free dinner boat cruise from one nursing home owner, and one case manager, who also received a $50 gift card, said “an established relationship” with that operator influenced her, according to the state report. One case manager also failed to disclose that her son worked at the nursing home, a violation of state conflict-of-interest laws.
The report didn’t name any nursing home facilities or operators. State Department of Public Health officials could not say Tuesday whether any nursing home has been cited as part of the investigation, department spokesman Ralph Montano said.

Friday, March 2, 2012


Stamper v. Kaiser Foundation Health Plan of the Northwest


Official citation and/or docket number and footnotes (if any) for this case available with purchase.

July 2, 2010


The opinion of the court was delivered by: Michael R. Hogan United States District Judge



Plaintiff Judy Stamper brings this employment discrimination claim against her former employer, Kaiser Foundation Health Plans of the Northwest (Kaiser), alleging that her rights under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2602 et seq., were violated. [#1]. Plaintiff seeks injunctive relief; economic damages from March 12, 2007 and reinstatement of her job and her seniority or alternatively, an award of future lost wages and fringe benefits; non-economic damages; punitive damages; attorney fees and reasonable costs aa well as any other legal or equitable relief the court deems proper. [#1-pp.8-9].

Defendant Kaiser moves for summary judgment on all plaintiff's claims or alternatively for summary judgment on plaintiff's claims for compensatory and punitive damages. [#20]. Kaiser argues that it did not violate plaintiff's statutory rights; that plaintiff exhausted all her FMLA leave before she was released to work on March 12. 2007; and that Kaiser did not violate her rights under the ADA but rather, went "above and beyond its legal obligations to try to help plaintiff find a position." [#22-p.2].

During oral argument on June 1, 2010, plaintiff agreed to dismiss her ADEA claim. Defendant's Motion for Summary Judgment is therefore considered only against plaintiff's remaining ADA and FMLA claims.


1. Standard for Summary Judgment

Summary Judgment is not appropriate if a reasonable jury viewing the summary judgment record could find by a preponderance of the evidence that the plaintiff is entitled to a verdict in his/her favor. Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1027-28 (9th Cir. 2006). A plaintiff alleging employment discrimination "need produce very little evidence in order to overcome an employer's motion for summary judgment. This is because the ultimate question is one that can only be resolved through a searching inquiry - one that is most appropriately conducted by a fact-finder, upon a full record." Chuang v. Univ. Cal. Davis, 225 F.3d 1115, 1123-24 (9th Cir. 2000)(quoting TX Dept. of Cmty Affairs v. Burdine, 450 U.S. 248, 256 (1981)).

In evaluating motions for summary judgment in the context of employment discrimination, the Ninth Circuit has emphasized "the importance of zealously guarding an employee's right to a full trial, since discrimination claims are frequently difficult to prove without a full airing of the evidence and an opportunity to evaluate the credibility of the witnesses." McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112 (9th Cir. 2004).

2. Undisputed Facts

Plaintiff was hired by Kaiser as a Nurse practitioner (NP) on November 11, 1985, and worked at Kaiser's Skyline Center (Skyline), in Salem, Oregon, where she provided medical care for Kaiser member patients. [#21-p.1; #36-p.1; #37-Ex.8 and Ex. 14; #47-p.2]. Plaintiff held an exempt, salaried position designated as a 0.9 Full Time Equivalent (FTE) or a four 9-hour-days per week position, the terms of which were covered by a Collective Bargaining Agreement (CBA). Id.

Beginning April 2005, plaintiff began suffering from Cramp Fasciculation Syndrome, Type 2 Muscle Fiber Atrophy, an unspecified neuromuscular condition that caused muscular pain, cramping, fasciculation (involuntary twitching) and fatigue sufficient to make walking difficult. [#21-p.2; #36-p.2; #39-p.2; #47-p.3]. Plaintiff took her first medical leave of absence (MLOA), for this condition from May 4 to July 4, 2005. Id. Plaintiff returned to work July 4, 2005 on a part-time basis although she was paid her full time salary. Id.

When plaintiff took her second MLOA under FMLA, on May 6, 2006*fn1, her supervisor was Hal McMillan*fn2. [#21-p.2; #36-pp.2-3; #47-pp.3-4]. Although plaintiff planned to return to her position upon her medical release to work, Mr. McMillan sent out a letter to plaintiff's patients stating that her last day at Skyline was May 1, 2006, because plaintiff was "phasing out her primary care practice". [#21-p.2; #36-pp.2-3; #37-Ex.3; #39-p.3; #47-pp.3-4]. Plaintiff's treating physician released her to return to work on March 12, 2007, however, at that time plaintiff's position no longer existed. [#21-p.2; #36-p.3; #47-pp.4-5].

In March, 2007, Ms. Wideman explained to plaintiff that her position at Skyline was no longer available and provided plaintiff with a list of available Kaiser jobs including two available NP positions in Portland. [#21-p.3; #36-p.8; #47-p.10]. There were no NP positions available with Kaiser until February, 2008, when Ms. Wideman informed plaintiff by letter of the positions and encouraged her to apply for them. [#21-pp.3-4; #36-pp.8-9; #47-p.10].

Northwest Permanente PC (Permanente) credentials Kaiser health care providers, hiring those properly credentialed as Kaiser health care providers. [#21-p.3; #36-pp.7-8; #47-p.9]. Because Permanente had 'closed' plaintiffs credentials in May, 2007, she was not re-credentialed to work as a NP for Kaiser until late October, 2007, subsequent to the regularly scheduled credentialing committee meeting. [#21-p.4; #36-pp.9-10; #47-p.11-12].

Plaintiff filed a complaint with the Bureau of Labor and Industries (BOLI) on August 17, 2007 alleging disability and age discrimination. [#37-Ex.14]. She filed this federal action on October 24, 2008. [#1].

3. Family Medical Leave Act Claim

The FMLA creates two interrelated substantive rights for employees of covered employers. Xin Liu v. Amway Corp., 347 F.3d 1125, 1132 (9th Cir. 2003). First, an employee has the right to take up to twelve weeks of leave during any twelve-month period for reasons specified by the statute. 29 U.S.C. § 2612(a). Second, an employee who takes FMLA leave has the right, upon return from leave, to be restored to his or her original position or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. 29 U.S.C. § 2614(a). To protect these rights and the exercise of them, the FMLA prohibits an employer from interfering with, restraining or denying exercise of or the attempt to exercise any right provided by the FMLA. 29 U.S.C. § 2615(a)(1).

Defendant claims that plaintiff's position was eliminated in August, 2006. Plaintiff claims Mr. McMillan effectively eliminated her job in June, 2006, when he sent out the letter to her patients. Thus the parties disagree on whether her position was eliminated while she was on FMLA protected leave.

Under the FMLA, it is unlawful for an employer to use taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions. Bachelder v. Am. W. Arlines, Inc., 269 F.3d 1112, 1122 (9th Cir. 2001); see also 29 C.F.R. § 825.2209(c). It is well established in the Ninth Circuit that an employer basing an adverse employment decision upon an employee's use FMLA leave, interferes with the employee's exercise of FMLA rights in violation of section 2615(a)(1). Id. at 1122-23. Indeed, close temporal proximity between protected leave and a decision to eliminate a position may alone be enough to ward off summary judgment. Reid v. Smithkline Beecham Corp., 366 F.Supp.2d 989, 998 SD Cal. 2005).

The parties do not dispute that plaintiff's protected leave under the FMLA ended July 31, 2006. This action was filed on October 24, 2008. An FMLA violation action must be brought not later than 2 years after the "date of the last event constituting the alleged violation for which the action is brought". 29 U.S.C. § 2617(c)(1). However, 29 U.S.C. 2617(c)(2) provides for a 3-year statute of limitations for willful violations of section 2615 rights.

Given the factual disputes that exist with regard to the material circumstances surrounding the elimination of plaintiff's position, I find that summary judgment is inappropriate for this claim at this time.

4. Americans with Disabilities (ADA) Claim

In order to establish a viable ADA claim, a plaintiff must establish that she is a qualified individual*fn3 with a disability as defined by the ADA and suffered an adverse employment action because of that disability. 42 U.S.C §12112(a).

Plaintiff argues that Kaiser violated her rights under the ADA by failing to engage in a good faith interactive process of accommodation as envisioned by the statute. [#1-p.7]. Plaintiff argues that this lack of good faith is demonstrated by: (1) Kaiser failing to tell her (or her union representative), that her position was eliminated until more than 8 months after the fact, despite multiple discussions between the parties about her job status; (2) Kaiser offering her a job in the North Lancaster clinic that either failed to materialize or was never a reality; and (3) constructively discharging plaintiff when she was not called back to work after her supervisor sent her home on October 5, 2007*fn4. [#1-p.7]. Plaintiff requests economic damages, non-economic damages and punitive damages as a result of Kaiser's alleged violations. Id.

Kaiser does not dispute that plaintiff is disabled or qualified*fn5. Kaiser essentially argues that plaintiff cannot establish any adverse employment action by Kaiser which violated the ADA because there was no accommodation available or possible since plaintiff's job was already gone; her position was eliminated, subsumed by Skyline budgetary changes.

The elements of handicap discrimination are (1) a handicap, (2) a qualified employee, and (3) failure of the employer to take affirmative measures to make known suitable job opportunities to the plaintiff and to determine whether he or she is qualified for those positions. Nada-Rahrov v. The Neiman Marcus Group Inc., 166 Cal.App.4th 9522, 964 (2008). A defendant moving for summary adjudication of a discriminatory discharge cause of action has the burden of showing that the cause of action lacks merit because one or more elements cannot be established - either the plaintiff was not discharged because of a disability or the plaintiff could not perform the essential functions of the job with or without accommodation - or there is a complete defense to the cause of action.

Kaiser had a duty to provide plaintiff with a reasonable accommodation. This means taking affirmative steps to move plaintiff, a disabled worker, into existing vacancies or open positions by informing plaintiff of future jobs, performing any relevant capabilities testing for those open positions, encouraging her to apply for vacant positions that she could perform and affirmatively assisting her in applying for those positions. Curtis v. Security Bank of Washington, 69 Wash. App. 12, 16-17 (1993). Id. Kaiser cannot avoid those responsibilities by simply eliminating her position even for reasons unrelated to plaintiff's disability.

I find there are sufficient factual disputes about the course of events and the parties' actions particularly involving the accommodation meetings, what was proposed to plaintiff as well as what she represented to her employers about her availability, her request(s) for accommodation and the circumstances around the elimination of her position, to preclude summary judgment for this claim.

E. Punitive Damages Claim

Kaiser moves alternatively for summary judgment on plaintiff's claims of compensatory and punitive damages, arguing that her acceptance of a job with Salem Hospital was conduct that would have resulted in termination had Kaiser known of it and therefore cut off any right she might have had to damages at that point. [#22-pp27-28]. Kaiser further argues that because there is no valid evidence of malice or reckless indifference on Kaiser's part, plaintiff's claim for punitive damages should be dismissed. [#22-pp.28-29].

Plaintiff's pleadings in opposition to defendant's Motion for Summary Judgment are unfortunately silent on this topic. Her complaint does seek compensatory and punitive damages. [#1-pp.7-9].

Damages in intentional discrimination in employment are defined in 42 U.S.C. §1981a(b). The statute states that "[a] complaining party may recover punitive damages under this section against a respondent (other than a government, government agency or political subdivision), if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual." 42 U.S.C. §1981a(b)(1). Those damages are limited to an aggregate of $300,000 for an employer of over 500 employees such as Kaiser. 42 U.S.C. §1981a(b)(3).

Case law makes clear that retaliation is, by definition, a form of discrimination because the complainant is subjected to differential treatment. Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173-74 (2005). The Ninth Circuit has established that ADA retaliation claims are treated similarly to Title VII retaliation claims and therefore a claim of employment discrimination under the provisions of Title I of the ADA entitle a prevailing plaintiff to the remedies available under Title VII of the Civil Rights Act of 1964, as amended by the Act of 1999. See 42 U.S.C. §12117; see also Kotewa v. Living Independence Network Corp, 2007 WL 676681 (D.Idaho)(adopting as its own the "well-reasoned analysis" of Edwards v. Brookhaven Science Assoc., 390 F.Supp. 2d 225, 235-36 (E.D.N.Y. 2005)).

Thus, in an employment discrimination case where the employer displays malice or reckless indifference, compensatory and punitive damages are available under the ADA. Kotewa v. Living Independence Network Corp., 2007 WL 676681, *3 (D.Idaho). An employer must at the least, discriminate in the face of a perceived risk that its actions will violate a federal law to be liable in punitive damages. Kolstad v. American Dental Assoc., 527 U.S. 526, 536 (1999).

Plaintiffs may be awarded compensatory damages for the following injuries: "future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses." 42 U.S.C § 1981a(b)(3). A victim's testimony alone is a sufficient basis on which to award compensatory damages for emotional pain and suffering. Chalmers v. City of Los Angeles, 762 F.2d 753, 761 (9th Cir. 1985). The statutory cap for compensatory and punitive damages is $300,000 per claimant for an employer (such as Kaiser), with more than 300 employees. 42 U.S.C.1981a(b)(3)(D).

The purpose of awarding damages in employment discrimination cases is to make the victim whole for injuries suffered on account of unlawful employment discrimination. Albemarle Paper Co. V. Moody, 422 U.S. 405, 418 (1975). Accordingly compensatory damages are subject to the limitations set forth in 42 U.S.C. §1981a(b)(2) and (3), may be allowed by the court based on the evidence presented.

Viewing the evidence in the light most favorable to plaintiff, the nonmoving party, I find it highly unlikely that plaintiff will provided evidence sufficient to show intentional discriminatory malice or reckless indifference on the part of Kaiser. However, given both the parties disagreement over the material facts surrounding plaintiff's position elimination, and the letter sent to plaintiff's patients by her supervisor almost immediately upon plaintiff taking her second MLOA, I find these factual disputes are more appropriately decided by a trier of fact than by a blanket denial of punitive and compensatory damages at this stage of litigation.


For the reasons detailed above, defendant Kaiser's Motion for Summary Judgment on all claims and it's alternative motion for summary judgment on plaintiff's damage claims is DENIED.


California orders Kaiser to stop denying physical, occupational and speech therapy to certain patients

California orders Kaiser to stop denying physical, occupational and speech therapy to certain patients
By Sandy Kleffman
Bay Area News Group

State regulators on Monday ordered Kaiser Foundation Health Plan to stop denying physical, occupational and speech therapy to certain patients.

Kaiser has declined such therapy to members who lack a "physical condition," according to documents filed by the state Department of Managed Health Care.

That means that people who may stutter or lisp or who have developmental delays don't receive speech therapy, for example, said Anthony Manzanetti, chief of enforcement for the state agency.

It also excludes those who have mental illnesses.

A Kaiser executive, who said he was surprised and disappointed by the state action, disputed the agency's description of Kaiser policies.

"The department appears to have misunderstood or mischaracterized Kaiser Permanente's approach to providing speech, physical and occupational therapy to our members," said John Nelson, Kaiser vice president, in a written statement.

"These therapies are not limited only to patients with physical conditions," he said.
Nelson said Kaiser will continue discussions with the state agency with the goal of "reaching a shared understanding. In the interim, we will continue to cover medically necessary health care services."

Since 2009, more than 100 Kaiser members have filed complaints with the Department of Managed Health Care after being denied physical, occupational and speech therapy, the state agency reported.

Consumers can appeal a health plan's refusal to provide services. They also have the right to receive an independent medical review if they disagree with their plan's decision.

Thursday, March 1, 2012

Judge Rejects Most Kaiser Defenses in Scorching Suit

Carrie Harris-Muller, Senior VP of Managed Care Initiatives

Judge Rejects Most Kaiser Defenses in Scorching Suit
Courthouse News Service(CN)
March 01, 2012

A judge rejected most of Kaiser Foundation Health Plan's objections to a wrongful termination and libel suit brought by one of its chief administrative officers who complained that Kaiser was funneling money to for-profit entities.

Carrie Harris-Muller sued Kaiser in Alameda County Superior Court in October 2011. Harris-Muller claimed she had been fired for protesting that the nonprofit foundation was funneling money to related for-profit Kaiser entities, rather than focusing on care and services to the community, as required by its tax-exempt status.

Harris-Muller said in her complaint that Kaiser's Mid-Atlantic subsidiary used only 2.5 percent of its revenue to provide community benefits in 2010, that the regional branch provided no care to indigent or uninsured people, and was not a Medicaid-participating health plan.

"Kaiser's intentional deficiency in charitable expenditures resulted in surplus profits exceeding $5 billion," Harris-Muller said in her complaint. "Although Kaiser failed to come anywhere near the threshold level of community benefits provided by other hospitals, Kaiser still compensated its executives, who were responsible for overseeing the provision of community benefits, at approximately 110 percent of their target bonuses," she said.

Harris-Muller claimed that the issue came to a head in February 2011, when several employees sent a lengthy "bullying letter" to Kaiser Foundation's top management. According to Harris-Muller, the content of the letter "focused on the 'hostile, harassing environment' employees were subjected to on a daily basis."

Harris-Muller's supervisor accused her of writing the letter, which she denied, according to her complaint. She said she was "mentally and physically destroyed by the humiliating allegations and fell deeper into isolation from her colleagues, which made coming into work each day painful and agonizing."

Harris-Muller claimed that her objections to Kaiser's profit-motivated decisions led to her termination. Since then, she has been informed that her supervisor told her staff that the decision to terminate her "was made by the highest levels of the organization," according to her complaint.

Kaiser Foundation filed a demurrer in November 2011. In it, Kaiser said that Maryland law, not California law, must apply to Harris-Muller's claims, and that she has no standing in a California court.

Harris-Muller lives in Maryland, according to her complaint.

Judge Robert Freedman disagreed.

"The argument that Maryland law should apply to all causes of action, even if successful, does not establish that plaintiff Carrie Harris-Muller has failed to state facts sufficient to constitute a cause of action," Freedman wrote.

"The first, fourth, and fifth causes of action [wrongful termination, negligent supervision, and intentional infliction of emotional distress] are not premised solely on violations of California statutes but instead are in the nature of torts that are recognized in both Maryland and California, as Kaiser acknowledges," Freedman found.

"Although the labels of the second and third causes of action include citations to California statutes, those labels also include the theories 'slander' and 'libel' which Kaiser acknowledges are recognized torts under Maryland law. ...

"Standing turns on whether the plaintiff has alleged harm from the defendants' conduct, not on the court in which the action is brought. California courts may adjudicate causes of action involving Maryland law, just as Maryland courts may adjudicate causes of action involving California law," Freedman wrote in rejecting the first element of Kaiser's objection.

"Second, plaintiff has alleged sufficient facts, for pleading purposes, regarding the alleged nexus between her termination and conduct that could be considered 'protected activity,' Freedman wrote. "Whether a sufficient 'nexus' exists is a factual matter that is not properly resolved at the pleading stage. Kaiser has not cited sufficient authority to the effect that California or Maryland law precludes a cause of action for wrongful termination in violation of public policy where the employee's duties include monitoring the employer's compliance with the law. Although Kaiser may be correct that the allegations regarding the 'bullying letter' cannot, in themselves, support this cause of action in light of plaintiff's allegations that she did not author the letter, there are allegations regarding other conduct." (Citations omitted.)

Freedman also rejected Kaiser's objections to the slander and libel counts, stating that "for pleading purposes, plaintiff has sufficiently alleged that there were false and defamatory communications published to persons other than plaintiff that were made with malice and thus outside the qualified 'common interest' privilege" in California civil code.

Freedman sustained Kaiser's demurrer in the negligent supervision action, with leave for Harris-Muller to file an amended complaint within 14 days. But he rejected Kaiser's final objection, to the intentional infliction of emotional distress charge.

"Although plaintiff will bear the evidentiary burden of establishing that the conduct at issue falls within such exceptions and was sufficiently outrageous to support the cause of action, the court will not resolve such factual matters on demurrer," the judge wrote.

The next hearing is set for April 5.

Carrie Harris-Muller, Senior VP of Managed Care Initiatives
Sept. 8, 2011

Carrie E. Harris-Muller Appointed Senior Vice President of Managed Care Initiatives, and Accountable Care Organization President at the Detroit Medical Center

Detroit Medical Center (DMC) has appointed Carrie E. Harris-Muller to Senior Vice President of Managed Care Initiatives, and Accountable Care Organization (ACO) President, effective Tuesday, September 6, 2011.

In this role, Harris-Muller will be responsible for driving key revenue initiatives and establishing the framework for future reimbursement strategies. She will provide system-wide administration of Managed Care Services including administration of the DMC Care Health Plan and management and negotiation of third party payor contracts. Additionally, Harris-Muller will provide executive leadership and administration for the ACO being developed by DMC in cooperation with physician partners.

“DMC is very pleased to welcome Carrie to the leadership team. We know that her experience and knowledge will be a great asset to DMC’s strategic vision to continue as a premier healthcare system in our region and beyond,” said Michael Duggan, President & CEO, Detroit Medical Center.

Most recently, for nearly ten years, Harris-Muller was the Chief Administrative Officer of Kaiser Foundation Hospitals and Health Plan of the Mid-Atlantic States, Inc. in Rockville, Maryland. She was responsible for the Mid-Atlantic Region which is licensed in three states: Maryland, Virginia, and the District of Columbia, and has revenues of $2.5 Billion, and membership of 500,000 commercial, 30,000 Medicare, and 10,000 Medicaid.

As the Chief Administrative Officer, Harris-Muller was also responsible for providing strategic leadership for the overall Health Plan. Her specific areas of responsibility included: Care Delivery, including strategic oversight of the physician network made up of 12,000 community practitioners, and partnering with The Permanente Medical Group, an 1,800 multi-specialty group practice , Health Plan Operations (Product Development, Benefits Administration, Claims Administration, Data Management/Analytics, Provider Contracting/Relations, Member Services, and Membership Administration), and Government Programs and Policy.

Prior to Kaiser, she held leadership positions with SelectCare, Inc., St. John Health System, OmniCare Health Plan, and Cigna Healthcare. Harris-Muller is a native of Michigan where she received her Master’s degree in Health Care Administration and Public Health from Central Michigan University. She earned her Bachelor’s degree in Business Administration from Madonna University.

She is also certified by the American Association of Health Plan’s as a Managed Care Executive and was named one of Maryland’s Top 100 Women in 2008 and 2011. For the past five years, she has been a featured adjunct lecturer on managed health care in the military at the National Defense University, Department of Defense, Washington D.C.