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Dr. Robert Ball v. Einstein Community Health Associates

February 28, 2012


The opinion of the court was delivered by: Joyner, C.J.


Before the Court are Defendants' Motion for Summary Judgment (ECF No. 26), Plaintiff's Response in Opposition thereto (ECF No. 30) and Defendants' Reply in further support thereof (ECF No. 31). For the reasons set forth in this Memorandum of Law, the Motion is GRANTED.


The case under consideration is an employment discrimination suit arising under the Americans with Disabilities Act, 42 U.S.C. §§ 12111-17, Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34, and the Pennsylvania Human Relations Act, 43 Pa. Stat. Ann. §§ 951-63. Dr. Robert Ball ("Plaintiff") sues his former employer, the Einstein Community Health Associates, Inc. ("ECHA"), Dr. Steven Sivak, the ECHA Medical Director who supervised Dr. Ball, and Luann Trainer, ECHA Vice President of Physician Services (collectively, "Defendants") for allegedly terminating his employment due to his age and physical disability.


Plaintiff Ball started working for ECHA in 1998 on a series of one- or two-year employment contracts. In 2005, Plaintiff was told by the former medical director that his contract would not be renewed for allegedly poor performance. In light of Plaintiff's protestations and the appointment of a new medical director, Dr. Steven Sivak, Plaintiff's contract was renewed that year and was renewed again for 2006, 2007 and 2008. In 2008, Defendants Sivak and Luann Trainer "became increasingly concerned about Dr. Ball's performance in several areas . . . ." (Defs.' Mem. Supp. Summ. J. 4, ECF No. 26.) In late 2008, Sivak and Trainer informed Plaintiff that his employment contract ending in March 2009 would not be renewed.

Plaintiff contends that he was fired due to his advanced age--he was 73 years old at the time of his termination--and his physically debilitating affliction, Chronic Inflammatory Demyelinating Polyneuropathy. Plaintiff alleges that Defendants targeted his medical documentation and the propriety of his drug prescription practices as a pretext for age and disability discrimination.

Defendants allege that part of Plaintiff's substandard performance dealt with his medical documentation and coding. Every patient's medical chart contains progress notes, written by the treating physician to document his or her medical decisionmaking.*fn1 A physician assigns a medical billing code, called a current procedure terminology ("CPT") code, which correlates to a dollar amount. These codes are used to submit reimbursement claims to health insurers and the progress notes must substantiate the CPT code assigned by the physician. A sample of Dr. Ball's charts were reviewed for compliance in March, May, September and November of 2008 and Dr. Ball failed each such audit.*fn2 (Hooten Dep. 69:16-20, June 28, 2011; Defs.' Mem. Exs. M, N, R, S.)

Plaintiff maintains his chart audit results were never shared with him prior to being notified his employment contract would not be renewed. Moreover, Plaintiff indicates that four other doctors---Akiwumi (age 47), Hoellein (age 55), Goldwein (age 47) and Manin (age 43)---failed a chart audit but were not terminated. (Pl.'s Mem. Resp. Summ. J. 7-8, ECF No. 30.) According to Plaintiff, Elizabeth Hooten, ECHA's Director of Quality and Compliance, spoke to the four other doctors about their progress note deficiencies but not to Plaintiff; instead, his audit results were allegedly reported directly to Dr. Sivak.

Plaintiff also contends that Dr. Hoellein and Dr. Akiwumi received one-on-one coding and documentation training from Ms. Hooten and Plaintiff did not.

Defendants point out that Plaintiff attended a training on billing and coding presented by Dr. Sivak in February 2008 and Plaintiff participated in a one-on-one training with ECHA Auditor Andrea McMillan in March 2008. (Defs.' Mem. Ex. M; Pl.'s Mem.

Ex. O.) Additionally, after Plaintiff failed the May 2008 audit, Shauna Henley, ECHA's Manager of Coding and Compliance, reviewed the results with Plaintiff and conducted a one-on-one training on coding. (Hooten Dep. 68-69; Defs.' Mem. Exs. M, O, P; Pl.'s Mem. Ex. O.) In August 2008, Ms. Henley conducted another one-on-one training with Plaintiff on documenting medical decisionmaking and diagnosis selection. (Defs.' Mem. Ex. M; Pl.'s Mem. Ex. O.) On November 7, 2008, Dr. Sivak met with Plaintiff to review some of Plaintiff's charts, which Sivak noted were disorganized and the handwriting was illegible, and told Plaintiff he had not yet passed a coding audit. (Ball Dep. 32, Jan. 10, 2010; Sivak Dep. 102-03, June 14, 2011; Defs.' Mem. Ex. T; Pl.'s Mem. Ex. Q.)

Plaintiff contends that he was singled out for his drug prescribing practices for writing more prescriptions for narcotics than other doctors. ECHA has a policy to identify and remove from its practice "drug-seeking patients" who pursue narcotics prescriptions for personal abuse or illegal resale. Nancy Donohoe, the ECHA Training and Call Center Director, initially requested a report of all prescriptions Plaintiff wrote for narcotics in June of 2008.*fn3 (Pl.'s Mem. Ex. P.) The ECHA Regional Practice Administrator, Tom Lubiski, then raised the potential "unfairness" of singling out Plaintiff and asked that the report include other doctors working at Plaintiff's office for comparison. (Id.; Donohoe Dep. 32-33, June 28, 2011.) The report revealed that 34.05% of Plaintiff's prescriptions were written for controlled substances, whereas other doctors had much lower proportions--anywhere from 6.3% to 19.57%. (Defs.' Mem. Ex. X.) Similar reports generated for the fourth quarter of the 2008 fiscal year and second quarter of the 2009 fiscal year indicated the same magnitude of disparity.*fn4 (See Defs.' Mem. Ex. Y.)

Defendants do not deny that Plaintiff was initially "singled out" for his narcotics prescribing practices but they assert a legitimate, nondiscriminatory reason for doing so. Maureen Finklestein, the office manager where Plaintiff worked, witnessed several of Plaintiff's patients exhibiting behaviors of drug-seeking patients. (Finklestein Certification ΒΆ 2, Defs.' Reply Mem. Ex. II, ECF No. 31.) Specifically, these patients were aggressively demanding narcotics prescription refills and causing disruptions in the office. Id. These events lead to Finklestein asking ...

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