Epstein Becker Green Obtains Dismissal of Action Against Health Insurance Plan
On February 5, 2016, Epstein Becker Green litigators obtained summary judgment dismissing an Amended Complaint in its entirety on behalf of client The New York State Catholic Health Plan, Inc., d/b/a Fidelis Care New York (“Fidelis Care”), one of the largest government programs-based health insurance plans in New York State. The case was brought by Ahmed Elkoulily, M.D., P.C., a medical provider, challenging Fidelis Care’s decision to terminate the provider’s health services contract on the basis of a finding that the provider presented a danger of imminent harm to patient care.
After extensive discovery, the New York State Supreme Court (Nassau County) reviewed the submissions of the parties and found that “Fidelis made a searching inquiry of a sample of Dr. Elkoulily’s files, and that its conclusion to terminate him was far from arbitrary,” the standard of review for a determination under New York Public Health Law § 4406-d. On an earlier motion to dismiss, the court had dismissed the provider’s three other claims for breach of contract, intentional infliction of economic harm, and violation of New York Public Health Law § 230(11)(b).
This case is one of the few reported decisions in which a health plan has invoked the right to terminate a provider’s contract without a hearing. The court’s two decisions on the subject present a sound analysis of the proper use of such extreme measures.
The Epstein Becker Green litigators representing Fidelis Care included Peter L. Altieri and Jennifer M. Horowitz.
10-Year Retaliation Litigation Ends with Trial Victory—and Counsel Fees—for Hospital
After a decade-long battle, including two trips to the New York State Supreme Court, Appellate Division, Second Department, Epstein Becker Green assisted a client, North Shore – Long Island Jewish Health System (“Hospital”), in obtaining a dismissal in July 2014 of a health care worker’s retaliation suit.
Plaintiff, a highly rated registered nurse manager, alleged that she was fired in 2004 for alerting Hospital management to systemic failures in the Hospital’s surgical instrumentation sterilization department, which she claimed put patients at risk of serious injury or death. She alleged violations of the New York whistleblower law, Lab. Law §740. The Hospital countered that, even though there were documented but isolated instances of unsterile instruments, plaintiff was let go because of her documented inability to “interact” effectually with doctors, Hospital executives, co-workers, and New York State Nurses Association (NYSNA) union representatives.
In a two-week bench trial in Nassau Supreme Court, Epstein Becker Green, on behalf of the Hospital, proved that, notwithstanding several nurses’ testimony regarding unsterile instruments, the Hospital’s procedures complied with New York Department of Health regulations governing surgical services and that plaintiff was fired for reasons unrelated to her reports. Plaintiff tried to bolster her case with the testimony of the former CEO of a Massachusetts hospital group, an MD whom plaintiff claimed was an expert as to the appropriate standards for hospital operations, including addressing issues relating to surgical instruments. Rather than calling its own expert, the Hospital discredited plaintiff’s expert.
In a rarity in employment litigation, the Court awarded the Hospital its attorneys’ fees incurred in defending the case. The Hospital’s fee application was filed with the Court in August 2014.
Epstein Becker Green attorneys Kenneth J. Kelly and Jennifer M. Horowitz represented the Hospital at trial, working with Steven M. Swirsky, who represented the Hospital through discovery, successful motions for summary judgment and to dismiss for failure to prosecute, and the two appeals to the Second Department.
Second Circuit Affirms Dismissal of Defamation/Breach of Contract Suit Against Epstein Becker Green Medical School Client
In a decision having significance for universities and medical schools, the U.S. Court of Appeals for the Second Circuit upheld the dismissal of a complaint for defamation, discrimination, and breach of contract brought by a medical doctor whose employment was terminated by Mt. Sinai School of Medicine. The plaintiff, a Chinese medical doctor who primarily engaged in cancer research, was accused by one of his subordinates of improperly manipulating research data. After a lengthy formal investigation conducted by a panel of his peers confirmed the allegations, the Dean discharged him, and the dismissal was upheld by a different peer review panel.
The doctor alleged that he was defamed by both the subordinate and the peers, but the court held that all statements made before or during the investigation were qualifiedly protected under the "common interest" privilege, and that the plaintiff had failed to sufficiently allege malice overcoming the privilege. Also, the court held that the plaintiff failed to offer sufficient proof that the dismissal was motivated by anti-Chinese animus, despite comments made about the plaintiff's Chinese medical school training, culture, and background.
Most important for academic institutions, the court reaffirmed the rule in New York that a professor cannot bring a breach of contract law suit arising from discipline, termination, or denial of tenure when such decisions involve peer review decisions under university policies, since such decisions involve weighing the institution's values as well as the individual's contractual rights. Such claims may be brought only by a mandamus-type proceeding where court review of the determination is based on an "arbitrary and capricious" standard.
The Epstein Becker Green team included Kenneth J. Kelly and Jennifer M. Horowitz of the New York office. Chao v. The Mount Sinai Hospital, et al., Index No. 11-1328-cv (2d Cir. 4/17/12).
Epstein Becker Green Succeeds in Appeal of Contract Case
Epstein Becker Green successfully represented Aramarine Brokerage, Inc., a wholesale insurance broker, for the appeal of a trial court's judgment that dismissed Aramarine's complaint and awarded more than $1.3 million on the insurer's counterclaim in a breach of contract case. Aramarine was represented by another law firm at the trial court level. On January 23, 2009, the U.S. Court of Appeals for the Second Circuit held in Aramarine Brokerage, Inc. v. OneBeacon Insurance Co. that: (i) the trial court applied the wrong law; and (ii) under the applicable Pennsylvania law, although Aramarine's oral agreement was not performable within one year, the agreement did not need to be set forth in a written and signed document as is required in New York. The Court of Appeals reinstated the complaint, vacated the judgment for damages, and remanded the case for trial.
The Epstein Becker Green team representing Aramarine on the appeal included New York Litigation attorneys Kenneth J. Kelly and Jennifer M. Horowitz.