Synergy - May/June 2014 - 11
industry feature
be upheld and the board agreed. Brintley
filed a charge of race and sex discrimination
with the Equal Employment Opportunity
Commission and then went to federal court,
alleging discrimination and state law claims.
The court ruled that Brintley was not an
employee, noting that she never received
any wages or W-2s from the hospital. She
also paid all of her own professional dues,
malpractice premiums, and licensure fees,
and she indicated she was self-employed on
her tax returns. She did all of her own billing
and collections. This court found, unlike the
Salamon court, that the peer review process
did not give the hospital the requisite
control over Brintley's practice of surgery.
(The court did not cite Salamon.) Medical
staff committees made recommendations to
the board, which was theoretically free to
accept them.
As the law evolves, inconsistent results,
like the ones in Salamon and Brintley, can
be expected. Counsel should anticipate
uncertainty in the near term as they strive
to guide leaders. Another example of the
range of potential claims is Lewis v. UPMC
Bedford,4 in which an emergency-room
physician who requested an accommodation
to allow him to "batch" his medical charts
due to his attention deficit disorder sued
after he was placed on probation. His
suit was allowed to proceed based on
Menkowitz v. Pottstown Memorial Medical
Center,5 holding that medical staff members
could bring a suit under Title III, or the
"public accommodation" provision, of the
Americans with Disabilities Act (ADA).
HCQIA Immunity for
State Claims
Although the HCQIA does not apply to
civil rights claims, the Brintley court granted
summary judgment to the hospital and the
physician leaders on the state law claims.
Brintley failed to show by a preponderance
of the evidence that the actions were
not taken in the reasonable belief that
they were meant to further quality care.
Thus, she could not overcome the HCQIA
presumption. This court was convinced
that the steps taken were not a pretext for
discrimination. However, the HCQIA was of
limited benefit.
Peer Review Records of
Other Physicians
A concern in discrimination cases, which
are often rooted in claims of disparate
treatment, is the discovery of the peer
review of other physicians. The Brintley
opinion identified by name two other
physicians, a white female OB-GYN and
a white male orthopedic surgeon, who
had also been proctored, allegedly in
a more favorable manner. The opinion
described each of their proctoring to
support its determination that they were
not comparable and that there were
legitimate nondiscriminatory reasons for
the differences.
Continued on page 13
MAY/JUNE SYNERGY
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Synergy - May/June 2014
Table of Contents for the Digital Edition of Synergy - May/June 2014
Table of Contents
Synergy - May/June 2014 - Intro
Synergy - May/June 2014 - Cover1
Synergy - May/June 2014 - Cover2
Synergy - May/June 2014 - 1
Synergy - May/June 2014 - Table of Contents
Synergy - May/June 2014 - 3
Synergy - May/June 2014 - 4
Synergy - May/June 2014 - 5
Synergy - May/June 2014 - 6
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