Elkharwily v. Mayo Holding Co., 955 F. Supp. 2d 988

Background

Elkharwily, a hospitalist, was terminated from Mayo Clinic Health System–Albert Lea after administrative leave following December 2010 events.
His employment contract contemplated sixty days’ notice for termination without cause or sixty days’ pay in lieu of notice.
He alleged reporting of patient-safety concerns and fraudulent billing to HR, Utilization Department and supervisors, including issues with unnecessary admissions and improper coding.
December 7–8, 2010 events involved Grzybowski’s alleged failure to report to the hospital and an attempted transfer of a patient; Elkharwily allegedly opposed the transfer and later was placed on administrative leave.
Elkharwily refused to resign on December 10, 2010 and was terminated; he later reported violations to Mayo officials and the Minnesota Board of Medicine and appealed administratively.
He filed suit on December 6, 2012 alleging FCA, EMTALA, MWA, MVAA, breach of contract, IIED and defamation; motions to amend and to dismiss followed, with partial grants and denials.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Elkharwily’s FCA retaliation claim is pled with protected activity and causation	Elkharwily engaged in protected FCA activity by reporting violations.	No protected activity or causation shown; retaliation lacking.	Plaintiff pleaded protected activity and causation; FCA claim survives against MCHSAL.
Whether FCA retaliation against institutional/individual defendants is cognizable at this stage	Institutional defendants caused discharge; individuals may be liable.	FCA retaliation cannot be asserted against certain defendants or individuals were not liable.	FCA retaliation claims dismissed as to Institutional Defendants and to individual defendants.
Whether EMTALA retaliation claim is actionable against MCHSAL	Grzybowski’s on-call failure and reporting constitute EMTALA retaliation.	No EMTALA violation connected to the conduct at issue.	EMTALA claim viable against MCHSAL for the on-call/response context; some on-call-related claims against others dismissed.
Whether EMTALA retaliation claims against Institutional Defendants survive	Institutional Defendants participated in or caused EMTALA violations.	No factual basis tying Institutional Defendants to EMTALA violations.	EMTALA claims dismissed as to Institutional Defendants.
Whether MWA claim is viable against MCHSAL and Mayo Clinic entities	Protected whistleblower conduct supports MWA claim.	MWA claims fail for lack of viable protected conduct or causal link.	MWA claim viable against MCHSAL; dismissed as to Mayo Clinic entities.

Key Cases Cited

Schuhardt v. Wash. Univ., 390 F.3d 563 (8th Cir. 2004) (protected activity elements for FCA retaliation)
Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097 (9th Cir. 2008) (FCA retaliation not require Rule 9(b) specificity)
U.S. ex rel. Karvelas v. MelroseWakefield Hosp., 360 F.3d 220 (1st Cir. 2004) (fraud in Medicare billing can support FCA claim)
Norbeck v. Basin Elec. Power Coop., 215 F.3d 848 (8th Cir. 2000) (dual-motive defense in FCA context)
Ring v. First Interstate Mortg., Inc., 984 F.2d 924 (8th Cir. 1993) (prima facie standard not required at pleading stage)
Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49 (1st Cir. 2013) (prima facie standard is evidentiary, not pleading)
Morrison Enters., LLC v. Dravo Corp., 638 F.3d 594 (8th Cir. 2011) (avoid superfluous statutory interpretation)
Guimaraes v. SuperValu, Inc., 674 F.3d 962 (8th Cir. 2012) (good-faith/obj. belief exception in Title VII contexts)
Pope v. ESA Servs., Inc., 406 F.3d 1001 (8th Cir. 2005) (defamation defences and qualified privilege consideration)
Bahr v. Boise Cascade Corp., 766 N.W.2d 910 (Minn. 2009) (qualified privilege in defamation for internal communications)
Doan v. Medtronic, Inc., 560 N.W.2d 100 (Minn. Ct. App. 1997) (employer conduct not extreme/outrageous for IIED)
Pine River State Bank v. Mettille, 333 N.W.2d 622 (Minn. 1983) (contractual offer principles in implied contracts)