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Wisconsin District Court Extends EMTALA Whistleblower Protections to Non-Employee Physicians – Muzaffar v. Aurora Health Care Southern Lakes, Inc.

Published online by Cambridge University Press:  06 January 2021

Nicholas Falcone
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Type
Recent Case Developments
Information
American Journal of Law & Medicine , Volume 40 , Issue 1 , March 2014 , pp. 164 - 166
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2014

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References

1 No. 13-CV-744, 2013 WL 6199233 (E.D. Wis. Nov. 27, 2013).

2 Id. at *2. EMTALA also specifies that “active labor” is an emergency medical condition. See 42 U.S.C. § 1395dd(e)(2)(B)-(C) (2006).

3 42 U.S.C. §§ 1395dd(a)-(c) (2006).

4 See Muzaffar, 2013 WL 6199233, at *2 (citing Beller v. Health & Hosp. Corp. of Marion Cnty., 703 F.3d 388, 390 (7th Cir. 2012)).

5 42 U.S.C. § 1395dd(d)(2)(A).

6 Id. §1395dd(i).

7 Muzaffar, 2013 WL 6199233 at *4 (quoting O'Connor v. Jordan Hosp., No 10-11416-MBB, 2013 WL 3105647, at *5 (D. Mass. Jun. 17, 2013)) (internal quotations omitted).

8 Muzaffar, 2013 WL 6199233, at *1.

9 Id.

10 Id. at *3.

11 Muzaffar v. Aurora Health Care Southern Lakes, Inc., No. 13-CV-744, 2013 WL 5506173, at *2 (E.D. Wis. Oct. 4, 2013).

12 Id.

13 Id.

14 Id.

15 Id. Specifically, Dr. Muzaffar alleged that the MEC retaliated by issuing him a critical letter and denying his private practice the ability to purchase access to Aurora's medical record's system. Sturges, Peyton M., EMTALA Protections Apply to Physician Who Wasn't Hospital Employee, Court Says, 22 BLOOMBERG HEALTH L. REP. 1745 (Dec. 3, 2013)Google Scholar, http://www.bna.com/health-law-reporter-p6785/ (login required; accessed by searching Health Law Reporter News Archive; select 2013; select 12/05/2013; select Lead Report).

16 Muzaffar, 2013 WL 6199233, at *1.

17 42 U.S.C. §1395dd(i) (2006).

18 Muzaffar, 2013 WL 6199233, at *2.

19 Id. at *3. The court cited decisions from two federal district courts that used Title VII jurisprudence to evaluate EMTALA retaliation claims, but noted that neither court addressed the definition of “employee” under the whistleblower provision. Id. at *4. See Elkharwily v. Mayo Holding Co., 955 F. Supp. 2d 988 (D. Minn. 2013); O'Connor v. Jordan Hospital, No. 10-11416-MBB, 2013 WL 3105647 (D. Mass. Jun. 17, 2013).

20 Muzaffar, 2013 WL 6199233, at *3. In the Seventh Circuit, the common law agency test includes five factors:

(1) the extent of the employer's control and supervision over the worker, including directions on scheduling and performance of work, (2) the kind of occupation and nature of skill required, including whether skills are obtained in the workplace, (3) responsibility for the costs of operation, such as equipment, supplies, fees, licenses, workplace, and maintenance of operations, (4) method and form of payment and benefits, and (5) length of job commitment and/or expectations.

Knight v. United Farm Bureau Mut. Ins. Co., 950 F.2d 377, 378-9 (7th Cir. 1991).

21 Muzaffar, 2013 WL 6199233, at *2.

22 Id.

23 Id. Physician-employees are often subject to restrictive non-compete agreements. See Beh, Hazel G. & Ross, H. Ramsey, Non-Compete Clauses in Physician Employment Contracts Are Bad for Our Health, 14 HAW. B.J. 79, 86 (2011)Google Scholar (“Medical employers regard non-competes as essential to protect their investment in physicians and in their businesses, including recruiting, referral relationships, goodwill, and training.”).

24 Muzaffar, 2013 WL 6199233, at *3.

25 Id. at *3, *4.

26 Id. at *3.

27 Id. at *4.

28 Id. at *5.

29 Id. The court also noted Dr. Muzaffar's claim was not barred merely because he did not have privileges at the hospital where the EMTALA violations actually occurred. The court characterized its reading of the whistleblower provision as more patient- and physician-protective, and also more clearly in line with the purpose of EMTALA.

30 See Hylton, Maria O'Brien, The Economics and Politics of Emergency Health Care for the Poor: The Patient Dumping Dilemma, 1992 B.Y.U. L. REV. 971, 1021 (1992)Google ScholarPubMed.

31 Id. at 1011.

32 See, e.g., Zawislak v. Mem. Hermann Hosp. Sys., No. H-11-1335, 2011 WL 5082422 (S.D. Tex. Oct. 26, 2011) (extending EMTALA whistleblower protections to physician with staff privileges on the grounds that excluding them would undermine the statute's purpose); Salamon v. Our Lady of Victory Hosp., 514 F.3d 217, 226-32 (2d Cir. 2008) (extending Title VII protections to a contracted physician because the hospital exerted significant control over the physician's work).