Tuesday, January 29, 2008

Doctor with staff privileges may sue Hospital under Title VII

The Court of Appeals ruled that a gastroenterologist with staff privileges at Our Lady of Victory Hospital might be an employee for purposes of suing the Hospital under the employment discrimination laws even though she set her own hours and the Hospital did not pay her salary. The trial court has to resolve whether the Hospital exercised sufficient control over her employment to trigger the protections of Title VII of the Civil Rights Act.

The case is Salamon v. Our Lady of Victory Hospital, decided on January 29, 2008. The Court originally resolved this appeal last fall but withdrew the opinion. Today we receive the final opinion. Read my prior write-up here.

In some ways, as the Court of Appeals noted, Salamon was not under the Hospital's control:

Salamon was generally free to set her own hours and maintain her own patient load, subject to the availability of the endoscopy equipment, which the Hospital controlled, and to an on-call requirement discussed below. She determined which patients to see and treat, and whether or not to admit them to OLV (or another hospital). Salamon was allowed to maintain staff privileges at other hospitals, and she did so, although the “vast majority” of her practice was at OLV. OLV did not pay her a salary, wages, benefits, or any other monetary compensation. She billed patients (or their insurers) directly for her services, while OLV billed them separately for the corresponding use of its facilities.

But she also had to comply with Hospital policies and supervision, had to participate in staff meetings and handle "on-call" duties even if the patients were not her own. Most important, she was subjected to the Hospital's quality assurance department, no small potatoes:

Under the quality assurance program, different hospital practitioners, on a rotating basis, would review procedures that had been conducted during the quarter. Cases flagged as potentially problematic would be discussed at mandatory GI division meetings. OLV also had a peer review process for further examining the practice of doctors whose cases had been flagged through the quality assurance program. Finally, OLV also reported to the National Practitioner’s Data Bank (“NPDB”), a database that contains adverse information about doctors that would be queried when a doctor sought privileges at a hospital. According to Salamon, the quality assurance program included detailed requirements as to when and how her work was to be performed, requirements intended in some cases to maximize profits, not patient care.

So is Salamon an employee or independent contractor? If the former, she can sue for employment discrimination under Title VII. If she's the latter, she can't. The Second Circuit notes that "other courts of appeals have found that hospital peer review programs do not constitute exercises of control over the manner and means of physician practice." But this an issue that courts resolve on a case-by-case basis.

The multi-part test for resolving this issue tilts in Salamon's favor as an employee, at least for purposes of the Hospital's motion to dismiss the case on summary judgment. The Court of Appeals reasoned, "[t]aking Salamon’s allegations as true, OLV exercised substantial control not only over the treatment outcomes of her practice, but over the details and methods of her work. Members of the OLV administration were designated as her supervisors, with the job of “maintain[ing] continuing surveillance of [her] professional performance.” Specifically, Salamon argues that OLV’s application of its quality assurance standards constituted unwarranted and medically unsound interference with her professional practice."

In addition, she alleged that the Hospital sufficiently controlled her performance in mandating performance of certain medical procedures. The Hospital also had control over which medications Salamon had to prescribe, not in the interests of medical judgment but Hospital profit. "In short, whether the methods that the hospital required of Salamon merely reflect professional standards or demonstrate a greater degree of control sufficient to establish an employee-employer relationship is a factual issue that is not resolved by the current record."

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