Elkharwily v. Mayo Health System - Southeast Minnesota Region

Filing 242

ORDER denying as moot #193 Motion to Exclude Expert Testimony; granting #200 Motion for Summary Judgment; overruling plaintiff's objections to #213 ORDER RE: APPEAL/OBJECTION OF MAGISTRATE JUDGE DECISION to District Judge (Written Opinion). Signed by Senior Judge David S. Doty on 2/5/2015. (PJM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 12-3062(DSD/JJK)
Alaa E. Elkharwily, M.D.,
Plaintiff,
ORDER

v.
Mayo Holding Company, a corporation,
d/b/a Mayo Health System, d/b/a
Mayo Clinic Health System, d/b/a
Albert Lea Medical Center - Mayo
Health System, Mayo Clinic Health
System - Albert Lea, a corporation,
Mayo Foundation, Mark Ciota, M.D.,
John Grzybowski, M.D., Dieter
Heinz, M.D., Robert E. Nesse, M.D.,
Steve Underdahl, and Stephen Waldhoff,
Defendants.

Richard T. Wylie, Esq., 222 South Ninth Street, Suite
1600, Minneapolis, MN 55402, counsel for plaintiff.
David T. Schultz, Esq., Charles G. Frohman, Esq. and
Maslon, Edelman, Borman & Brand, LLP, 90 South Seventh
Street, Suite 3300, Minneapolis, MN 55402; Joanne L.
Martin, Mayo Clinic, 200 First Street S.W., Rochester, MN
55905, counsel for defendants.

This matter is before the court upon the motions for summary
judgment and to exclude expert testimony by defendant Mayo Clinic
Health System - Albert Lea (MCHSAL).

Also before the court is

plaintiff Alaa Elkharwily’s objections to the order of Magistrate
Judge Jeffrey J. Keyes denying his request for sanctions. Based on
a review of the file, record, and proceedings herein, and for the
following reasons, the motion for summary judgment is granted, the
expert motion is denied as moot, and the objections are overruled.

BACKGROUND
This employment dispute arises out of the termination of
Elkharwily by MCHSAL. Elkharwily held a hospitalist position - his
first post-residency job - at MCHSAL from September 7, 2010,
through December 10, 2010.
83:24-85:1.

Elkharwily Dep. Vol. I at 19:19-20:10,

Elkharwily was MCHSAL’s first full-time hospitalist.

Frohman Decl. Ex. 3, at 1; Heinz Dep. at 8:5-13.

Elkharwily’s

duties included providing “care from admission to discharge for
patients referred from Family Medicine and Internal Medicine,
unattached medical patients, and hospitalized patients of medical
and surgical specialties.”

Frohman Decl. Ex. 3, at 3. Among other

duties, Elkharwily was specifically charged with helping refine the
“hand-off” process by which patients are released to the care of
their primary providers or consultants “when hospitalization has
ended, a transfer is required or care is being shifted to another
physician.”

Id.; see also id. Exs. 4-10.

Elkharwily reported directly to Dr. Dieter Heinz, chair of the
division of medicine, and indirectly to an administrative team
including

Dr.

Mark

Ciota,

CEO;

Dr.

John

Grzybowski,

medical

director; Steve Underdahl, hospital administrator; and Lori Routh,
nurse executive. Heinz Dep. at 8:17-18; Grzybowski Dep. at 8:7-12,
9:6-15; Routh Dep. at 6:22-7:8; Underdahl Dep. at 9:21-10:3.
Elkharwily’s

employment

was

governed

by

a

contract

that

contemplated sixty days’ notice for termination without cause or

2

sixty days’ pay in lieu of notice.

Stark Decl. Ex. A., ¶ 12.

Additionally, under MCHSAL policy, Elkharwily was on probationary
status during the first ninety days of his employment.1
Frohman Decl. Ex. 16.

See

The policy states that new employees will be

evaluated in writing before the ninetieth day of employment and
that the evaluation will include a recommendation as to whether
(1) the employee will be accepted for continued employment, (2) the
probationary period will extend for up to thirty additional days,
or (3) the employee will be terminated.
Elkharwily,
required

to

who

suffers

participate

in

from
the

Id. at 1.

bipolar
State

of

disorder,

was

Minnesota’s

also

Health

Professionals Services Program (HPSP) while employed at MCHSAL.
Frohman Decl. Exs. 19-20. HPSP required Elkharwily to have a worksite monitor who would supervise him and submit quarterly reports
assessing his work performance.

Id. Ex 20, at 1-2.

as Elkharwily’s work-site monitor.
In
Underdahl

preparation
gathered

for

physicians, and other staff.
4.
of

Id. Ex. 18.

Elkharwily’s

information

Ciota served

from

ninety-day

evaluation,

nursing

supervisors,

Underdahl Dep. at 32:18-33:22, 36:1-

Through that process, Underdahl identified the following areas
concern:

(1)

Elkharwily

had

difficulty

organizing

and

prioritizing his work; (2) staff was unable to reach him at times;

1

Elkharwily denies that MCHSAL told him that he would be on
probationary status. Elkharwily’s knowledge of his probationary
status is immaterial.
3

(3) emergency room physicians found him adversarial, resistant to
admitting patients, and perceived that he unnecessarily generated
work for the emergency department; (4) nursing staff did not trust
his

instructions

or

his

interpretation

of

events;

(5)

he

incorrectly told nursing staff that he could only care for twelve
patients

at

any

given

time;

and

documentation in a timely manner.

(6)

he

did

not

complete

Frohman Decl. Ex. 15, at 1-2.

On November 29, 2010, Underdahl drafted the review, which set
forth

the

above-stated

concerns

and

extended

Elkharwily’s

probationary status for an additional ninety days. Id. The report
also noted that staff members who had early praise for Elkharwily
had “begun to sound much more pessimistic” about his performance.
Id. at 2.
While Underdahl prepared Elkharwily’s evaluation, Ciota - with
the

help

of

physician

services

coordinator

Diane

Clark

-

independently prepared the HPSP report.

Clark Dep. at 47:6-48:22,

50:1-9,

information

51:3-24.

Clark

solicited

from

nurse

supervisors and compiled the responses in a confidential report.
See Frohman Decl. Ex. 22.

The information received was similar to

that gleaned during the performance evaluation.

Specifically,

staff reported that Elkharwily (1) was sometimes difficult to
locate; (2) did not manage his time well and was disorganized;
(3)

was

difficult

to

work

with

regarding

end-of-life

care;

(4) became easily frustrated; and (5) did not communicate orders

4

effectively to nursing staff.

Id. at 2-3.

Ciota sent the report

to the State of Minnesota on December 6, 2010.

Id. at 1.

Underdahl planned to discuss the performance evaluation with
Elkharwily along with his supervisor Heinz, when Heinz returned
from out of town.

Underdahl Dep. at 32:8-17.

On December 7, 2010,

before that meeting could take place, Elkharwily ordered nurse
Brooke Thiele to give a patient IV Tylenol.

Frohman Decl. Ex. 23.

Unfamiliar with that form of Tylenol, Thiele questioned the order
and Elkharwily confirmed that he wanted IV Tylenol administered.
Id.

Thiele then asked whether Tylenol came in IV form.

Id.

Elkharwily responded that IV Tylenol was available because he
recalled giving it to a patient two days prior.
contacted the hospital pharmacy.

Id.

Id.

Thiele then

The pharmacist confirmed

that the hospital formulary did not carry IV Tylenol.2

Id.

When

presented with that information, Elkharwily told Thiele to give the
patient Tylenol via NG tube.

Id.

On December 8, 2010, Thiele reported the Tylenol incident to
the Nurse Executive, Lori Routh, who in turn reported it to
Underdahl.
discussed

Routh Dep. at 46:1-48:7.
the

incident

with

Routh and Underdahl then

Elkharwily.

Id.

at

48:14-50:8;

Elkharwily Dep. Vol. I at 61:18-62:18. Elkharwily insisted that IV
Tylenol was available and maintained that he had given it to a

2

IV Tylenol was newly approved by the FDA at that time, but
was not yet available at MCHSAL. See Underdahl Dep. at 111:4-14.
5

patient just days before.
at 111:2-7, 112:7-15.
medication

was

not

Routh Dep. at 51:7-52:5; Underdahl Dep.

When Underdahl told Elkharwily that the
available

in

the

formulary,

Elkharwily

immediately changed his story by saying that he believed that IV
Tylenol would have been a good choice had it been available.
Underdahl Dep. at 112:15-25.

Elkharwily admits that he ordered IV

Tylenol and that he believed he had given that medication to a
patient a few days before, but he denies that the incident was
significant.

Elkharwily Dep. Vol. I at 53:24-56:4, 61:3-8.

Concerned with Elkharwily’s response, MCHSAL placed him on
paid administrative leave until it could fully investigate the
incident. Underdahl Dep. at 118:22-119:4. MCHSAL was specifically
concerned about patient safety and Elkharwily’s reliability, which
was already in question given the comments elicited during the
evaluation process. Id. at 116:5-10, 122:4-123:4; see also Frohman
Decl. Exs. 15, 22.
Underdahl and Routh conducted nursing staff interviews on
December 9, 2010, to assess Elkharwily’s patient safety and care.
Underdahl Dep. at 123:22-125:14; Routh Dep. at 65:11-19, 67:2-68:7.
Comments derived from this process match those made in connection
with the performance evaluation and HPSP report. See Frohman Decl.
Ex. 24.

On December 10, 2010, Underdahl sent a memorandum to

Grzybowski cataloging the many concerns about Elkharwily.

Id. Ex.

25. Underdahl concluded the memorandum by stating, “[b]ased on the

6

volume and magnitude of concerns about Dr. Elkharwily and his
performance as a hospitalist, it appears that a majority of team
members

have

lost

confidence

in

his

ability

pessimistic about his ability to improve.”
day,

the

administrative

team,

in

and

Id. at 4.

consultation

with

are

very

The same
in-house

counsel, recommended that Elkharwily’s employment end and that he
be offered the opportunity to resign in lieu of termination.
Underdahl Dep. at 17:16-18:20.
action.

Ciota approved this course of

Ciota Dep. at 39:2-4; 46:22-47:8.

Later that day, Grzybowski, Underdahl, and a human resources
representative
decision.

met

with

Elkharwily

to

MCHSAL’s

Elkharwily Dep. at 6:20-7:2. 68:17-21; see also Frohman

Decl. Ex. 32.

Elkharwily disagreed with the decision and its

basis, but agreed to consider resignation.
at 5.

communicate

Engelstad Decl. Ex. A,

Elkharwily announced his resignation on December 11, 2010.

Frohman Decl. Ex. 33.
On December 14, 2010, apparently regretting his resignation,
Elkharwily sent emails to Ciota challenging the basis for his
termination

and

intimidating him.

accusing

Grzybowski

Id. Ex. 34, at 2.

of

blackmailing

and

Elkharwily also accused

Grzybowski and others of “malpractice, [f]raud and unprofessional
misconduct.”

Id. at 3.

He further stated that he was subject to

a hostile work environment and that he had complained to MCHSAL
“over and over again.”

Id.

7

Elkharwily claims that he verbally reported patient safety
concerns

and

negligence

for

months

before

being

placed

on

administrative leave, but provides only vague, rambling details
regarding the content of the alleged reports and when and to whom
they were made.

See, e.g., Elkharwily Dep. Vol. I at 32:8-33:25;

id. Vol. II at 94:21-99:25.

Elkharwily also claims that he

submitted the following written reports of negligence and fraud to
MCHSAL.
First, on September 15, 2010, Elkharwily sent a text to Ramona
Anderson, the utilization review manager, mentioning a patient
“with alcoholic intoxication and no thiamine or bana [sic] bag
given” and stating “I think something was clearly wrong with the
admissions from the E[R] today.”

Frohman Decl. Ex. 62, at 2.

Anderson simply responded, “OK good to know thanks.”

Id.

In his

deposition, Elkharwily testified in more detail about his text,
explaining that he believed another doctor had engaged in “criminal
negligence” in failing to admit the patient, who was having a heart
attack.

See Elkharwily Dep. Vol. II at 75:25-76:10, 87:10-88:8.

Despite describing the incident as “shocking and terrifying,”
Elkharwily admits that he did not immediately report it to Heinz,
Ciota,

Grzybowski,

or

Underdahl.3

Id.

at

86:1-23;

88:6-8.

Elkharwily claims that he verbally reported the incident to Ciota,

3

Elkharwily reported his concerns to Anderson and a nurse
supervisor, neither of whom were his supervisor or decision-makers
with respect to his employment.
8

Grzybowski, and Underdahl approximately one week later, but no
document

substantiates

this

claim.

See

id.

at

90:22-91:7.

Further, Elkharwily’s own seven-page discharge summary for the
patient fails to mention any irregularity in the patient’s care and
belies his claim that the patient was not admitted.

See Frohman

Decl. Ex. 37.
On September 20, 2010, Elkharwily sent an email to Anderson,
Dr. Sandra Birchem, and Clark, noting that two patients needed to
be transferred to the Rochester facility over the weekend because
the hospital did not have the resources to handle their surgeries.
Id. Ex. 38, at 1.

Elkharwily stated that it was “a big loss in

terms of [r]evenue.”

Id.

Elkharwily did not indicate that either

of the patients received poor care.

See id.

Elkharwily concluded

the email by saying “our ER department needs serious attention!
Some serious cases over the weekend were almost missed.” Id. at 2.
Elkharwily

did

not

provide

any

details

regarding

his

last

statement, nor is there evidence that he shared this information
with his superiors or that he reported it to MCHSAL via any
official reporting mechanism.
On October 11, 2010, Elkharwily sent an email to several
people, including Heinz, Grzybowski, and Underdahl, discussing
hand-off issues from the previous shift and recommending ways to
improve the process going forward.

9

Id. Ex. 39, at 3.

On November 9, 2010, Elkharwily sent an email to Anderson and
nurse

Donna

Henesteg

setting

communication issues in the ER.

forth

examples

Id. Ex. 63.

of

alleged

Elkharwily explained

that the communication issues justified his practice of questioning
ER doctors before they admitted patients.

Id. at 2.

Elkharwily

expressly stated that his email was “not a complaint.”

Id.

On November 22, 2010, Elkharwily sent an email to Underdahl,
Grzybowski, Heinz, Ciota, and others suggesting that the hospital
establish an inpatient wound-care team.

Id. Ex. 40.

He explained

that not having such a team was “a huge loss of revenue for the
hospital.”

Id.

Elkharwily claims that this email constituted a

complaint that the hospital was engaging in fraudulent billing.
Elkharwily Dep. Vo. I at 241:7-242:1.
Elkharwily also claims that he reported possible malpractice
relating to the care of three patients between December 7 and 8,
2010. As to the first patient, L.H., Elkharwily alleges that there
was an undue delay in admitting L.H. and that the on-call doctor,
Dr. Cory Boyce, refused to treat L.H.
no

record

of

Elkharwily

Id. at 11:18-12:4.

complaining

about

L.H.’s

There is

treatment.4

Moreover, medical records show that L.H. was evaluated soon after

4

Elkharwily sent an email to Anderson with the patient’s
name and nothing more. Frohman Decl. Ex. 64. He later explained
that he called Anderson and complained about Boyce and she asked
him to send her the patient’s name.
Elkharwily Dep. Vol. I at
21:23-22:25, 23:9-14. There is no evidence that Anderson reported
his concerns to anyone.
10

arriving at the ER and admitted in a timely manner thereafter.
Frohman Decl. Ex. 42, at 2-4.
Elkharwily alleges that Grzybowski, who was on call, refused
to come in to treat the second patient, F.J., who was already
admitted to the hospital.

Elkharwily Dep. Vol. I at 15:17-16:5.

Elkharwily now admits that Grzybowski was not needed because
Elkharwily was caring for F.J.

Id. at 47:23-49:1, 63:2-64:11.

Further, there is no evidence in the record that anyone asked
Grzybowski to come in and treat F.J.

Indeed, as the hospitalist,

Elkharwily was charged with caring for admitted hospital patients
such as F.J.

See Frohman Decl. Ex. 3, at 3.

The last incident involved B.C., a patient who arrived at the
ER at 11:00 p.m. on December 7, 2010.

See id. Ex. 44, at 8.

Grzybowski was not at the hospital, but was on call.

The ER doctor

and nursing staff conferred with Grzybowski by telephone as B.C.’s
condition deteriorated.

See id.

There is no evidence that anyone

asked Grzybowski to come in to treat B.C.

See id. at 6-7.

there evidence that Grzybowski refused to treat B.C.

Nor is
Medical

records show that B.C. was admitted the morning of December 8, and
transferred to the Special Care Unit at 6:30 a.m.

See id. at 6.

Elkharwily claims that he reported Grzybowski for failing to
treat B.C. on the morning of December 8, after he was placed on
administrative leave.

Elkharwily Dep. Vo. I at 52:2-53:4.

are no documents to substantiate this claim.

11

There

Elkharwily also

claims that

he

instructed

nurse

Stephanie

Grzybowski for failure to treat B.C.

Low

to

report

Dr.

On December 9, Low sent an

email to her supervisor complaining that Grzybowski should have
come in sooner to see B.C.5

Christensen Decl. Ex. A.

Low did not

indicate that she sent the email at Elkharwily’s behest.
Christensen Decl. ¶ 9.

See id.;

Low acknowledged that Grzybowski never

refused to come in to see the patient and, in fact, disclosed that
Grzybowski repeatedly told her that she should have asked him to
come in sooner.

Id. Ex. A.

As to each claimed instance of fraud or malpractice, it is
undisputed that Elkharwily did not document his concerns through
any of the hospital’s reporting mechanisms, including Safety Zone,
which is available at each computer terminal in the hospital.
Clark Dep. at 62:14-63:3.
contact the

compliance

Elkharwily also admits that he did not
office,

legal

department,

confidential

compliance hotline, or any outside agency regarding any of his
concerns before his termination.

Elkharwily Dep. Vol. I at 65:1-

12, 172:9-174:5, 285:3-8; see Frohman Decl. Ex. 41, at 8-9, 18, 20,
25.
After Elkharwily resigned, he claimed that he had witnessed
systemic fraud and malpractice and that he was terminated for
reporting such misconduct.

Elkharwily appealed his termination to

5

Christensen did not read the email until December 10 and
did not consider the matter urgent because the patient had been
stabilized. Christensen Decl. ¶ 4.
12

MCHSAL’s chief administrative officer, Stephen Waldhoff.

Frohman

Decl. Exs. 45-46.

He then

The appeal was denied.

Id. Ex. 47.

appealed to an ad hoc committee, which also upheld the termination
decision.

Id. Exs. 48, 52.

Throughout the appeal process,

Elkharwily maintained that he had been the subject of retaliation
based on his reports of fraud and malpractice.

On December 6,

2012, Elkharwily filed suit, alleging violations of the False
Claims Act (FCA), Emergency Medical Treatment and Active Labor Act
(EMTALA), Minnesota Whistleblower Act (MWA), Minnesota Vulnerable
Adults Act (MVAA), breach of contract, intentional infliction of
emotional distress (IIED), and defamation.
defendants filed a motion to dismiss.

On December 20, 2012,

Thereafter, on February 1,

2013, Elkharwily filed a motion to amend the complaint.

The court

held oral argument on February 22, 2013, where it granted the
motion to amend and took the motion to dismiss under advisement.
See ECF Nos. 29-30.

The court ultimately dismissed Elkharwily’s

claims for IIED, defamation, violations of the MVAA, and the
portion of the EMTALA claim based on allegations that Elkharwily
was terminated for refusing to transfer a patient.
at 14, 23-24.

See ECF No. 42,

The court also dismissed all individual and entity

defendants other than MCHSAL.

Id. at 23-24.

summary judgment on the remaining claims.

MCHSAL now moves for
Elkharwily moves for

additional discovery and objects to the magistrate judge’s denial
of his motion for sanctions.

13

DISCUSSION
I.

Rule 56(d)
Elkharwily first argues that MCHSAL’s motion is premature

because he needs additional discovery to meaningfully respond.
Elkharwily

specifically

requests

leave

to

take

four

more

depositions and also seeks the production of certain medical
records.

“A party opposing summary judgment who believes that she

has not had an adequate opportunity to conduct discovery must seek
relief pursuant to Federal Rule of Civil Procedure 56[d], which
requires the filing of an affidavit with the trial court showing
what specific facts further discovery might unveil.”

Stanback v.

Best Diversified Prods., Inc., 180 F.3d 903, 911 (8th Cir. 1999)
(citation and internal quotation marks omitted).
As

an

initial

matter,

the

court

has

already

denied

Elkharwily’s requests for the depositions and documents he now
seeks under Rule 56(d).
222.

See ECF Nos. 101, at 8-9, 141, at 6-7,

Having previously resolved the issues, the court will not

revisit them.

Further, Elkharwily has not argued - nor can he -

that he has not been given an adequate opportunity to conduct
discovery.

During the more than two years since this case was

filed,

parties

the

have

engaged

in

exhaustive

discovery

and

contentious and repeated non-dispositive motion practice. The time
for dealing with discovery issues has long passed.

See ECF No. 49,

at 1-2 (setting the discovery deadline as March 1, 2014, and the

14

non-dispositive motion deadline as April 1, 2014).

Elkharwily has

had ample opportunity to explore facts relevant to his case and has
offered no legitimate reason to explain his failure to do so within
the deadlines imposed by the scheduling order.
Elkharwily

hopes

to

elicit

through

Finally, the facts

additional

discovery

tangential, at best, and would not yield a different result.
result,

Elkharwily’s

request

is

baseless,

and

the

court

are
As a
may

properly consider summary judgment at this time.6
II.

Standard of Review
“The court shall grant summary judgment if the movant shows

that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”

Fed. R. Civ.

P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material only when its resolution affects the outcome of
the case.
(1986).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

A dispute is genuine if the evidence is such that it could

6

Elkharwily also requests permission to move to reconsider
the court’s order striking his 51-page narrative affidavit, which
he sought to incorporate by reference into his already over-length
memorandum. See ECF No. 223. In making this request, Elkharwily
fails to show the “compelling circumstances” required for a motion
for reconsideration. D. Minn. LR 7.1(j). Elkharwily complains
that his affidavit is necessary to respond to MCHSAL’s motion, but
the record is complete without the affidavit.
Among other
evidence, the court has received Elkharwily’s two-volume deposition
transcript, in which he details his version of events.
An
additional, lengthy affidavit is unnecessary and would not further
assist the court.
15

cause a reasonable jury to return a verdict for either party.

Id.

at 252.
On a motion for summary judgment, the court views all evidence
and inferences in a light most favorable to the nonmoving party.
Id. at 255.

The nonmoving party, however, may not rest upon mere

denials or allegations in the pleadings but must set forth specific
facts sufficient to raise a genuine issue for trial.
U.S. at 324.

Celotex, 477

A party asserting that a genuine dispute exists — or

cannot exist — about a material fact must cite “particular parts of
materials in the record.”

Fed. R. Civ. P. 56(c)(1)(A).

If a

plaintiff cannot support each essential element of a claim, the
court must grant summary judgment because a complete failure of
proof regarding an essential element necessarily renders all other
facts immaterial.
III.

Celotex, 477 U.S. at 322-23.

False Claims Act
Elkharwily first alleges retaliatory discharge in violation of

the FCA.

The FCA protects a whistleblower who is “discharged ...

because of lawful acts done ... in furtherance of [a civil action
for false claims].”

31 U.S.C. § 3730(h).

An FCA retaliation claim

has four elements: “(1) the plaintiff was engaged in conduct
protected by the FCA; (2) the plaintiff’s employer knew that the
plaintiff engaged in the protected activity; (3) the employer
retaliated against the plaintiff; and (4) the retaliation was
motivated solely by the plaintiff’s protected activity.” Schuhardt

16

v. Wash. Univ., 390 F.3d 563, 566 (8th Cir. 2004) (citation
omitted).
MCHSAL argues that Elkharwily has not established that (1) he
engaged in protected conduct, (2) MCHSAL was aware of the alleged
protected activity, or (3) his termination was motivated solely by
the protected activity.
A.

The court agrees.

Protected Activity

To establish protected activity, Elkharwily must show that
(1) his conduct was in furtherance of an FCA action and (2) the
conduct was aimed at matters that are calculated, or reasonably
could lead, to a viable FCA action.

Schuhardt, 390 F.3d at 567.

“An employee engages in protected activity where (1) the employee
in good faith believes, and (2) a reasonable employee in the same
or similar circumstances might believe, that the employer is
possibly committing fraud against the government.”

Id. (quoting

Wilkins v. St. Louis Housing Auth., 314 F.3d 927, 933 (8th Cir.
2002)).
Elkharwily
Medicaid,

alleges

including

conduct

unnecessary

in

violation

emergency

of

room

Medicare
and

and

hospital

admissions, improper wound-care coding, and the overbilling of
patient contact time.

Such violations, if substantiated, could

create viable causes of action under the FCA.

See U.S. ex rel.

Quirk v. Madonna Towers, Inc., 278 F.3d 765, 768 (8th Cir. 2002)
(noting that fraudulent Medicare billing can establish claim under

17

FCA).

Elkharwily has failed to establish that any such conduct

occurred, however, let alone that he made a report in furtherance
of an FCA action.
Turning first to the alleged billing fraud, which is the most
concrete aspect of Elkharwily’s FCA claim, the record shows that
Elkharwily had no basis to conclude, even subjectively, that MCHSAL
was

defrauding

the

government

through

its

billing

practices.

Elkharwily relies on unspecified billing codes he claims to have
seen on certain patient charts, but fails to explain why he
believes they were false.

Elkharwily Dep. Vol. I at 322:8-323:4.

Even if he saw questionable codes on a chart, he admits that he was
unaware of what was ultimately billed to Medicare. Id. at 323:2-4.
Indeed, Elkharwily admits that he (1) never saw the billing records
for any patient, (2) did not know the billing codes were provided
to the billing department, (3) did not know what billing codes were
used to support charges submitted to Medicare, (4) did not see the
bills MCHSAL sent to Medicare for reimbursement, and (5) did not
see what reimbursement MCHSAL received from Medicare.

Id. at

179:10-182:19. In other words, Elkharwily has no specific facts or
information on which to base his suspicion of billing fraud. Under
these circumstances, Elkharwily lacks a good faith belief that
fraud occurred.

See Green v. City of St. Louis, 507 F.3d 662, 668

(8th Cir. 2007) (finding that plaintiff had no reason to believe
there was a false or fraudulent claim because he was unable to

18

“point to any case in which he even suspected that [defendant’s]
practice had led to a false statement”); see also Lang v. Nw.
Univ., 472 F.3d 493, 494-95 (7th Cir. 2006)(“[A]n employee ... who
just imagines fraud but lacks proof, legitimately may be sacked.”).
Elkharwily

next

claims

that

improperly coding wound care.
this aspect of the claim.
2010,

email

reports

MCHSAL

violated

FCA

by

The record also fails to support

Elkharwily argues that his November 22,
“unlicensed

service.”

interpretation of the email is unreasonable.

Elkharwily’s

The email does not

even hint at improper conduct or unlicensed activity.
Decl. Ex. 40.

the

See Frohman

To the contrary, the email suggests ways in which

MCHSAL could increase revenue.

See id.

Thus, it cannot fairly be

read to have put MCHSAL on notice of a potential FCA action.

This

allegation is without any factual basis.
Elkharwily’s vague claims of fraudulent hospital admissions
and

other

unspecified

FCA

violations

are

similarly

lacking.

Elkharwily argues that he complained about hospital admissions at
the termination meeting on December 10, but he provided no coherent
explanation as to why certain admissions violated the FCA.
Engelstad Decl. Ex. A, at 12, 14-15.

See

As a result, Elkharwily has

failed to articulate an actionable FCA violation.
B.

Knowledge of Protected Activity

Even if the record supported Elkharwily’s allegations of
possible FCA violations, there is no evidence that MCHSAL was aware

19

that Elkharwily was engaged in protected activity.

“[A]n employee

has the burden of presenting enough evidence to demonstrate that
the defendant was on notice that plaintiff was either taking action
in furtherance of a private qui tam action or assisting in an FCA
action brought by the government.”

Schuhardt, 390 F.3d at 568

(internal quotation and citation omitted).
utterly lacking.

Here, such evidence is

Although internal complaints can suffice to

support a finding of knowledge by the employer, see id., Elkharwily
has pointed to no complaints that, even generously read, notified
MCHSAL of activity taken in furtherance of an FCA claim.

At most,

Elkharwily’s “reports” constitute generalized grievances falling
far short of allegations of fraud against the government.7
C.

Causation

Elkharwily argues that he was terminated in retaliation for
reporting

FCA violations.

As

noted,

he

must

establish

that

MCHSAL’s decision to end his employment was “motivated solely by
[his] protected activity.”

Id. at 566.

Elkharwily cannot meet

this burden. Even assuming he made FCA-viable reports, there is no
evidence that Elkharwily’s termination was anything other than

7

To the extent Elkharwily relies on post-termination events,
his claim fails for the additional reason that FCA claims are
limited to adverse treatment in the “terms and conditions of
employment” and do not apply to allegations of post-termination
retaliation.
31 U.S.C. § 3730(h)(1); see also Bechtel v. St.
Joseph Med. Ctr., Inc., No. 10-3381, 2012 WL 1476079, at *9 (D. Md.
Apr. 26, 2012) (collecting cases).

20

performance based.

The record is replete with consistent and

repeated concerns about Elkharwily’s performance in several key
areas.

Even crediting his theory that his whistle-blowing played

a role in his termination, it plainly was not the sole basis for
MCHSAL’s decision.

As a result, there is no causal connection

between Elkharwily’s reports of fraud and his termination. Because
Elkharwily has failed to establish the elements required to prove
an FCA claim, MCHSAL is entitled to summary judgment.
IV.

Emergency Treatment and Active Labor Act
Elkharwily next alleges that MCHSAL retaliated against him for

reporting EMTALA violations.

EMTALA prohibits a hospital from

taking adverse action against a hospital employee who reports a
violation of its provisions.

42 U.S.C. § 1395dd(i). EMTALA was

enacted to “address a distinct and rather narrow problem - the
‘dumping’ of uninsured, underinsured, or indigent patients by
hospitals who did not want to treat them.”

Summers v. Baptist Med.

Ctr. Arkadelphia, 91 F.3d 1132, 1136 (8th Cir. 1996). Relief under
EMTALA is properly limited to “instances of ‘dumping,’ or improper
screening of patients for a discriminatory reason, or failure to
screen at all, or screening a patient differently from other
patients perceived to have the same condition.”

Id. at 1139.

EMTALA has been roundly rejected as a federal medical malpractice
statute.

See id. at 1137 (“EMTALA is not a federal malpractice

statute and it does not set a national emergency health care

21

standard; claims of misdiagnosis or inadequate treatment are left
to the state malpractice arena.”)
Courts

examine

jurisprudence.

EMTALA-retaliation

claims

under

Title

VII

See Ritten v. Lapeer Reg’l Med. Ctr., 611 F. Supp.

2d 696, 715-16 (E.D. Mich. 2009); Lopes v. Kapiolani Med. Ctr. for
Women & Children, 410 F. Supp. 2d 939, 947 (D. Haw. 2005).

Where,

as here, no direct evidence of retaliation exists, the court
applies the burden-shifting analysis of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).

See Dirden v. Dep’t of Hous. & Urban

Dev., 86 F.3d 112, 114 (8th Cir. 1996) (Title VII analysis).

To

establish a prima facie case of retaliation, Elkharwily must show
that “(1) he engaged in a protected activity; (2) an adverse
employment

action

was

taken

against

connection exists between the two.”

him;

and

(3)

a

causal

Barker v. Mo. Dep’t of Corr.,

513 F.3d 831, 835 (8th Cir. 2008) (citation omitted).

The burden

then shifts to MCHSAL to provide a legitimate, non-discriminatory
reason for the adverse action.

Id. at 834.

The burden then

returns to Elkhawrily to show that MCHSAL’s reason was pretext for
retaliation.

Id.

Elkharwily argues that Boyce and Grzybowski failed to treat
two patients while on-call on December 7 and 8, respectively in
violation of EMTALA.

MCHSAL argues that EMTALA was not triggered

because both patients were admitted and stabilized.
§ 1395dd(a)-(c).

The court agrees.

22

See 42 U.S.C.

The evidence does not support

Elkharwily’s allegation that either Boyce or Grzybowski refused to
come to the hospital to treat the patients.

The record also

establishes that both patients were admitted, stabilized, and
treated at the hospital.

See Frohman Decl. Exs. 42, 44.

Under

these circumstances, Elkharwily has no viable EMTALA claim. See 42
C.F.R. § 489.24(a)(1)(ii)(“If the hospital admits the individual as
an inpatient for further treatment, the hospital’s obligation ...
ends.”).

Elkharwily may quibble with the quality of the patients’

care, but his concerns, even if well-founded, do not support an
EMTALA claim.
Elkharwily also has not demonstrated that he timely reported
the alleged EMTALA violations to any of the people involved in the
decision to end his employment.

As a result, Elkharwily cannot

establish a prima facie claim under EMTALA, and summary judgment is
warranted.

Further, as discussed above, Elkharwily cannot show

that MCHSAL’s legitimate, non-discriminatory basis for ending his
employment was pretext for retaliation.
V.

Minnesota Whistleblower Act
Elkharwily next alleges that MCHSAL violated the MWA.

As

above, the court analyzes MWA claims under the burden-shifting
framework of McDonnell Douglas.

See Chial v. Sprint/United Mgmt.

Co., 569 F.3d 850, 854 (8th Cir. 2009) (applying Minnesota law).
To establish a prima facie case, a plaintiff must “demonstrate
statutorily

protected

conduct

by

23

the

employee,

an

adverse

employment action by the employer, and a causal connection between
the two.”

Gee v. Minn. State Colls. & Univs., 700 N.W.2d 548, 555

(Minn. Ct. App. 2005) (citation omitted).

A whistleblower engages

in protected conduct when he,
in good faith, reports a [violation or suspected
violation] of any federal or state law ... [or] reports
a situation in which the quality of health care services
provided by a health care facility, organization, or
health care provider violates a standard established by
federal or state law or a professionally recognized
national clinical or ethical standard and potentially
places the public at risk of harm.
Minn. Stat. § 181.932, subd. 1(1), (4).
For the reasons already stated, Elkharwily did not engage in
protected conduct under either the FCA or EMTALA.

To the extent

Elkharwily relies on the alleged “criminal negligence” on September
15, 2010, his version of events is unsubstantiated and therefore
insufficient to sustain his claim.

See Pony Computer, Inc. v.

Equus Computer Sys. of Mo., Inc., 162 F.3d 991, 997 (8th Cir.
1998)(“Summary

judgment

is

appropriate

where

there

is

no

independent evidence, other than the petitioner's unsubstantiated
allegations.”).

Elkharwily’s

reports

process are similarly unavailing.

regarding

the

hand-off

Even assuming such reports

constitute protected activity, MCHSAL was well-aware of the issue
and, in fact, hired Elkharwily to help refine and improve the handoff process.

See Pederson v. Bio-Med. Applications of Minn., 992

F. Supp. 2d 934, 940 (D. Minn. 2014) (noting that liability under
the MWA may exist despite the employer’s prior knowledge when:
24

“(i) an employee reports the violation to an outside government
official or law enforcement entity, or (ii) an employee reports the
violation to her employer without knowledge that the employer
already was aware of it”).
Elkharwily also may not rely on his post-termination reports
because “[r]eports made after his employment ended cannot form the
basis for a[n] [MWA] claim.”

Anderson v. Graybar Elec. Co.,

09-251, 2010 WL 2545508, at *9 (D. Minn. June 18, 2010).

No.
As a

result, Elkharwily has failed to establish a prima facie claim
under the MWA, and summary judgment is warranted.8
VI.

Breach of Contract
In Minnesota, a breach of contract claim has three elements:

“(1) the formation of a contract, (2) the performance of conditions
precedent by the plaintiff, and (3) the breach of the contract by
the defendant.”

Zinter v. Univ. of Minn., 799 N.W.2d 243, 245

(Minn. Ct. App. 2011) (citation and internal quotation marks
omitted).

Elkharwily alleges breach of contract based on unpaid

work shifts.
MCHSAL submitted evidence that it issued checks to Elkharwily
to

cover

all

hours

worked

during

his

employment,

Elkharwily has refused to accept and cash those checks.
Decl. ¶¶ 9, 12.

and

that

See Stark

Elkharwily has conceded this claim by not

8

Elkharwily’s inability to establish pretext is also fatal
to this claim.
25

responding to that evidence.

See Pl.’s Mem. at 57.

As a result,

summary judgment is warranted.
VII.

Objection to Denial of Sanctions
Elkharwily

objects

to

Magistrate

Judge

Jeffrey

Keyes’s

determination that he is not entitled to sanctions, arguing that
MCHSAL failed to obey the court’s April 18, 2014, discovery order.
See ECF No. 212, 213. Magistrate Judge Keyes concluded that MCHSAL
complied in all respects with the discovery order.

Elkharwily has

presented no information to undermine that conclusion, nor has he
established that the order is clearly erroneous or contrary to law
in any respect.

See 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P.

72(a); D. Minn. L.R. 72.2(a).

As a result, the court overrules

Elkharwily’s objections.

CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1.

Defendant’s motion for summary judgment [ECF No. 200] is

granted;
2.

Defendant’s motion to exclude expert testimony [ECF No.

193] is denied as moot;
3.

Plaintiff’s objections to the order of Magistrate Judge

Jeffrey Keyes’s

December

17,

2014,

overruled;

26

order

[ECF

No.

213],

are

4.

Plaintiff’s

request

for

leave

to

file

a

motion

to

reconsider the court’s January 6, 2015, order [ECF No. 232] is
denied; and
5.

This matter is dismissed in its entirety with prejudice.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated:

February 5, 2015
s/David S. Doty
David S. Doty, Judge
United States District Court

27