9th Circuit Says Former Federal Nurse Can Proceed With Medical Malpractice Suit Against VA Hospital

George Indest HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On September 29, 2021, the U.S. Court of Appeals for the Ninth Circuit ruled that a former federal employee can sue the United States under the Federal Tort Claims Act (FTCA). The suit alleges medical negligence that occurred during psychiatric treatment for a non-workplace-related injury.

As a result, the three-judge panel of the appeals court said that U.S. Navy veteran and VA nurse S.H.s’ lawsuit against a Seattle VA hospital can proceed. (Please note: we are not providing the nurse’s name out of respect for her privacy.)

In 2019, the district court dismissed S.H.’s federal tort lawsuit because the alleged malpractice occurred when doctors were treating an injury she said she sustained at her workplace. The district court reasoned that all existing or exacerbated injuries stemming from a federal workplace injury must be dealt with through the Federal Employees Compensation Act (FECA), even malpractice claims.

Click here to view the district court’s order for the motion to dismiss in full.


Background Details.

The plaintiff in the suit is a veteran of the U.S. Navy who suffered a mental breakdown at work in October 2011. She sought follow-up psychiatric care at a VA hospital, where she allegedly received negligent treatment. At the time the treatment was sought, she was an employee of the federal government. She claimed years of workplace bullying and harassment by her supervisor caused her mental breakdown. She sued in 2016.

The FTCA authorizes plaintiffs to sue the U.S. for “personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). Any individual employee of the government acting within the course and scope of her job duties is immune from liability; the United States is substituted for that person in the suit.

The Big Question: Does the FTCA Authorize Suit by a Plaintiff in This Set of Circumstances?

Two factors complicate the answer in this case. First, when the plaintiff sought treatment, she was an employee of the federal government, working as a registered nurse at the VA hospital. Second, she claimed that her mental breakdown, the event that prompted her to seek medical care, was caused by workplace bullying and harassment at the hands of her supervisor. Hence, this would qualify as a work-related injury.

These facts bring into play another federal statute: the Federal Employees’ Compensation Act. FECA establishes a workers’ compensation blueprint that covers most federal employees. It is similar to state workers’ compensation laws.

When an employee sustains an injury covered by FECA, the remedy is to seek compensation under the act; they may not sue for damages under any other provision of law, including the FTCA. Therefore, had the plaintiff sued the U.S. under the FTCA to recover damages for workplace bullying and harassment, the district court would have been required to dismiss the action as barred by FECA.

In this case, however, the plaintiff is not suing for the injuries caused by workplace bullying and harassment. Instead, she is seeking to recover damages for the alleged medical malpractice by the individual doctors treating her.

Based on these facts, the appellate court reversed the district court’s judgment against the plaintiff in her Federal Tort Claims Act action. It held that the district court erred in dismissing the action on the grounds that it was barred by the FECA.

To view the ninth circuit court’s opinion in full, click here.

Consult a Health Law Attorney Who Is Familiar with Army, Navy, and Air Force Health Care Professionals and Their Problems.

The attorneys of The Health Law Firm have represented federal physicians, nurses, dentists, and other health professionals in the Army, Navy, and Air Force, active duty and retired, as well as physicians, nurses, and other health professionals working for the Veterans Administration (VA) in the U.S. and around the world. They represent physicians and other health professionals with the Indian Health Service (IHS) and the Public Health Service (PHS). Representation has included disciplinary action, investigations, peer review investigations, clinical privileges actions, fair hearings, National Practitioner Data Bank (NPDB) actions, and appeals.

To contact The Health Law Firm, please call (407) 331-6620 or toll-free (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Capriel, Jonathan. “9th Circ. Revives Psychiatric Med Mal Suit Against VA Hospital.” Law360. (September 29, 2021). Web.

Pazanowski, Mary Ann. “Former Federal Nurse Gets New Shot at Injury Suit Against US.” Bloomberg Law. (September 29, 2021). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2021 The Health Law Firm. All rights reserved.

2022-12-29T19:01:33-05:00December 31st, 2022|Categories: Nursing Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments

Walgreens Accused of Providing Insufficient COBRA Notices, Class Action Says

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On November 30, 2022, a group of former Walgreens workers filed a proposed class action in Florida federal court that accuses the pharmacy chain of sending confusing, incomplete COBRA notices. The former employees sued, saying the company purposely sent former employees “haphazard and piece-meal” information about their rights to continued insurance coverage under the federal COBRA law to save itself money.

As a result, they lost access to their medical coverage when terminated and therefore had to pay out of pocket to cover medical expenses.

Details of the Class Action.

The plaintiffs filed the class action complaint against Walgreen Co. in the United States District Court Middle District of Florida Tampa Division, alleging violations of the Employee Retirement Income Security Act (ERISA) and the Consolidated Omnibus Budget Reconciliation Act (COBRA).

They were all terminated from Walgreens between 2018 and 2020 for reasons not related to gross misconduct, they said in their complaint. After their termination, they received COBRA notices that needed to be written in a manner that an average plan participant could understand. However, rather than receiving one document outlining that information on COBRA, they received multiple separately mailed documents that lacked critical information, according to the complaint.

The first notice fails to include an address indicating where COBRA payments should be mailed. “It also fails to explain how to actually enroll in COBRA, nor does it bother including a physical election form,” the lawsuit alleges.

A second notice sent contains some but not all of the required information, the lawsuit states.

The insufficient COBRA notices confused and misled the plaintiffs and caused them economic injuries in the form of lost health insurance and informational injuries, they claim.

Similar Suits Against Walgreens.

Because similar lawsuits alleging deficient COBRA notices have been filed against Walgreens before, the pharmacy chain was aware that its notices were inconsistent with the Department of Labor’s model, alleged the workers. Therefore, they claim that its choice to use a non-compliant notice was in “deliberate or reckless disregard” to the workers’ rights.

The plaintiffs seek to represent a class of all Walgreens health care plan participants and beneficiaries who were sent similar COBRA notices during the applicable statute of limitations period and did not elect to continue coverage.

The plaintiffs seek reinstatement of their right to coverage, damages, fees, and costs. Click here to read the complaint.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm, we provide legal services for all health care providers and professionals. This includes pharmacists, pharmacies, physicians, nurses, dentists, psychologists and any other healthcare provider. We represent health facilities, individuals, groups, and institutions in contracts, sales, mergers and acquisitions, and in complex litigation. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent pharmacists accused of wrongdoing, patient complaints, and in Department of Health investigations.

To contact The Health Law Firm, please call (407) 331-6620 or Toll-Free (888) 331-6620 and visit our website at www.ThehealthLawFirm.com

 

Sources:

Edwards, Jesse. “Walgreens class action claims company fails to provide legal COBRA notices.” Top Class Actions. (December 5, 2022). Web.

Freedman, Emily. “Walgreens Provides Deficient COBRA Notices, Suit Says.” Law360. (December 1, 2022). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

Current Open Positions with The Health Law Firm. The Health Law Firm always seeks qualified individuals interested in health law. Its main office is in the Orlando, Florida, area. If you are a current member of The Florida Bar or a qualified professional who is interested, please forward a cover letter and resume to: PAlexander@TheHealthLawFirm.com or fax them to (407) 331-3030

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2022 The Health Law Firm. All rights reserved.

9th Circuit Court Rules Former Nurse Can Proceed With Med Mal Suit Against VA Hospital

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On September 29, 2021, the U.S. Court of Appeals for the Ninth Circuit ruled that a former federal employee can sue the United States under the Federal Tort Claims Act (FTCA). The suit alleges medical negligence that occurred during psychiatric treatment for a non-workplace-related injury.

As a result, the three-judge panel of the appeals court said that U.S. Navy veteran and VA nurse S.H.s’ lawsuit against a Seattle VA hospital can proceed. (Please note: we are not providing the nurse’s name out of respect for her privacy.)

In 2019, the district court dismissed S.H.’s federal tort lawsuit because the alleged malpractice occurred when doctors were treating an injury she said she sustained at her workplace. The district court reasoned that all existing or exacerbated injuries stemming from a federal workplace injury must be dealt with through the Federal Employees Compensation Act (FECA), even malpractice claims.

Click here to view the district court’s order for the motion to dismiss in full.


Background Details.

The plaintiff in the suit is a veteran of the U.S. Navy who suffered a mental breakdown at work in October 2011. She sought follow-up psychiatric care at a VA hospital, where she allegedly received negligent treatment. At the time the treatment was sought, she was an employee of the federal government. She claimed years of workplace bullying and harassment by her supervisor caused her mental breakdown. She sued in 2016.

The FTCA authorizes plaintiffs to sue the U.S. for “personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). Any individual employee of the government acting within the course and scope of her job duties is immune from liability; the United States is substituted for that person in the suit.


The Big Question: Does the FTCA Authorize Suit by a Plaintiff in This Set of Circumstances?

Two factors complicate the answer in this case. First, when the plaintiff sought treatment, she was an employee of the federal government, working as a registered nurse at the VA hospital. Second, she claimed that her mental breakdown, the event that prompted her to seek medical care, was caused by workplace bullying and harassment at the hands of her supervisor. Hence, this would qualify as a work-related injury.

These facts bring into play another federal statute: the Federal Employees’ Compensation Act. FECA establishes a workers’ compensation blueprint that covers most federal employees. It is similar to state workers’ compensation laws.

When an employee sustains an injury covered by FECA, the remedy is to seek compensation under the act; they may not sue for damages under any other provision of law, including the FTCA. Therefore, had the plaintiff sued the U.S. under the FTCA to recover damages for workplace bullying and harassment, the district court would have been required to dismiss the action as barred by FECA.

In this case, however, the plaintiff is not suing for the injuries caused by the workplace bullying and harassment. Instead, she is seeking to recover damages for the alleged medical malpractice by the individual doctors treating her.

Based on these facts, the appellate court reversed the district court’s judgment against the plaintiff in her Federal Tort Claims Act action. It held that the district court erred in dismissing the action on the grounds that it was barred by the FECA.

To view the ninth circuit court’s opinion in full, click here.


Consult a Health Law Attorney Who Is Familiar with Army, Navy, and Air Force Health Care Professionals and Their Problems.

The attorneys of The Health Law Firm have represented federal physicians, nurses, dentists, and other health professionals in the Army, Navy, and Air Force, active duty and retired, as well as physicians, nurses, and other health professionals working for the Veterans Administration (VA) in the U.S. and around the world. They represent physicians and other health professionals with the Indian Health Service (IHS) and the Public Health Service (PHS). Representation has included disciplinary action, investigations, peer review investigations, clinical privileges actions, fair hearings, National Practitioner Data Bank (NPDB) actions, and appeals.

To contact The Health Law Firm, please call (407) 331-6620 or toll-free (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Capriel, Jonathan. “9th Circ. Revives Psychiatric Med Mal Suit Against VA Hospital.” Law360. (September 29, 2021). Web.

Pazanowski, Mary Ann. “Former Federal Nurse Gets New Shot at Injury Suit Against US.” Bloomberg Law. (September 29, 2021). Web.


About the Author:
 Carole C. Schriefer is an attorney and former registered nurse. She practices with The Health Law Firm, which has a national practice. Its regional office is in the Northern Colorado, area. www.TheHealthLawFirm.com The Health Law Firm, 155 East Boardwalk Drive, Fort Collins, Colorado 80525. Phone: (970) 416-7456 or Toll-Free: (888) 331-6620. Its main office is in the Orlando, Florida area.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2021 The Health Law Firm. All rights reserved.

2021-10-27T10:20:22-04:00November 12th, 2021|Categories: Health Facilities Law Blog|Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , |0 Comments
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