City of Charleston v. Joint Comm'n, Civil Action No. 2:17-cv-04267

• Court: United States District Courts. 4th Circuit. Southern District of West Virginia
• Writing for the Court: John T. Copenhaver, Jr., Senior United States District Judge
• Citation: 473 F.Supp.3d 596
• Parties: CITY OF CHARLESTON, WEST VIRGINIA, City of Huntington, West Virginia, City of Kenova, West Virginia, and Town of Ceredo, West Virginia, municipal corporations, and other municipal corporations similarly situated, Plaintiffs, v. The JOINT COMMISSION f/k/a The Joint Commission on Accreditation of Health Care Organizations, a not-for-profit organization, and its wholly-owned affiliate, Joint Commission Resources, Inc. d/b/a Joint Commission International, a not-for-profit organization, Defendants.
• Docket Number: Civil Action No. 2:17-cv-04267
• Decision Date: 20 July 2020

473 F.Supp.3d 596

CITY OF CHARLESTON, WEST VIRGINIA, City of Huntington, West Virginia, City of Kenova, West Virginia, and Town of Ceredo, West Virginia, municipal corporations, and other municipal corporations similarly situated, Plaintiffs,
v.
The JOINT COMMISSION f/k/a The Joint Commission on Accreditation of Health Care Organizations, a not-for-profit organization, and its wholly-owned affiliate, Joint Commission Resources, Inc. d/b/a Joint Commission International, a not-for-profit organization, Defendants.

Civil Action No. 2:17-cv-04267

United States District Court, S.D. West Virginia, at Charleston.

Signed July 20, 2020

473 F.Supp.3d 602

Charles R. Webb, The Webb Law Center, Paul D. Ellis, City of Charleston Office of the City Attorney, W. Jesse Forbes, Forbes Law Offices, Charleston, WV, Debra C. Price, Taylor & Price, Winfield, WV, Dennis C. Taylor, Talcott Franklin, Scott A. Damron, Damron Law Offices, Huntington, WV, Matthew Browne, Pro Hac Vice, Shannon W. Conway, Pro Hac Vice, Talcott J. Franklin, Pro Hac Vice, Talcott Franklin, Dallas, TX, for Plaintiffs.

Allen M. Lopus, Robert J. Ridge, Thorp Reed & Armstrong, Wheeling, WV, for Defendants.

MEMORANDUM OPINION AND ORDER

John T. Copenhaver, Jr., Senior United States District Judge

Pending are (1) defendant The Joint Commission's motion to dismiss plaintiffs’ complaint, or in the alternative, strike

473 F.Supp.3d 603

class action allegations, filed January 29, 2018; (2) defendant Joint Commission Resources, Inc.’s motion to dismiss, filed January 29, 2018; and (3) defendants’ motion for scheduling order for submission of amicus curiae briefs, filed March 14, 2018.

The three-count complaint consists of Count I negligence, gross negligence, reckless and willful conduct; Count II unjust enrichment; and Count III equitable relief.

I. The Parties

Plaintiffs in this case are the City of Charleston, City of Huntington, City of Kenova, and Town of Ceredo, West Virginia, on behalf of themselves and other similarly situated municipalities across the nation ("the Municipalities"). Defendant The Joint Commission f/k/a The Joint Commission on Accreditation of Health Care Organizations ("TJC")¹ is a not-for-profit organization that accredits and certifies approximately 21,000 public and private health care organizations ("HCOs") and programs in the United States. In addition to accrediting hospitals, as was its purpose when founded in 1951, TJC provides accreditation for other types of HCOs as well including home care organizations, long term care, behavioral health care, ambulatory care, and laboratory services.² The HCOs include several hospitals where plaintiffs’ residents receive health care.³ Compl. ¶ 14.

TJC was founded in 1951 by the American College of Physicians, the American Hospital Association, the American Medical Association, and the Canadian Medical Association with the American College of Surgeons.⁴ With offices in Illinois and Washington, D.C., TJC is the "oldest and largest health care standards setting and performance improvement organization" in the United States. TJC's Mem. Supp. Mot. Dismiss & Mot. Strike 2, ECF No. 20 ("ECF No. 20"). Today, TJC describes its mission as "continuously improve health care for the public, in collaboration with other stakeholders, by evaluating health care organizations and inspiring them to excel in providing safe and effective care of the highest quality and value." Compl. ¶ 14; see also Niven v. Siqueira, 109 Ill.2d 357, 94 Ill.Dec. 60, 487 N.E.2d 937, 941 (1985) (summarizing TJC's basis purpose, as described in its Accreditation Manual for Hospitals, "to establish standards for the operation of health care facilities, to conduct survey and accreditation programs that encourage and assist health care facilities

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in the task of promoting efficient, high quality patient care, and to recognize compliance with their standards by issuance of certificates of accreditation").

TJC is governed by a 29-member Board of Commissioners, including physicians, administrators, nurses, quality experts, and educators as well as representatives from each of the Joint Commission's five Corporate Members: American Hospital Association, American Medical Association, American College of Physicians, American College of Surgeons, and American Dental Association.⁵ Part of TJC's work involves promulgating standards based on extensive literature review, input from national experts and other stakeholders in the industry, and after conducting public field reviews. ECF No. 20 at 2. TJC also conducts on-site accreditation surveys of HCOs, for which its standards serve as a guide. In addition to its accreditation services, TJC offers certification options for HCOs that meet standards in disease specific categories of care, such as stroke and heart failure. Id. ⁶ According to the complaint, TJC "has assets of roughly $190 million and receives over $150 million in revenue each year, largely from its certification programs." Compl. ¶ 14. Moreover, because TJC accredits "99% of health care organizations in the United States," most HCOs deem losing TJC accreditation "as disastrous to their continued operation." Id. ¶ 16.

Both the federal and state governments rely on TJC's accreditation process. HCOs that receive accreditation by TJC, as an approved national accrediting organization, are statutorily "deemed" in compliance with federal requirements and eligible to participate in Medicare and Medicaid programs without a separate government inspection. 42 U.S.C. § 1395bb(a) ; 42 C.F.R. §§ 488.5, 488.6 ;⁷ see also U.S. ex rel. Ortega v. Columbia Healthcare, Inc., 240 F. Supp. 2d 8, 19 (D.D.C. 2003) ("[W]hile [TJC] accreditation automatically confers eligibility to participate in Medicare, it is not a prerequisite."). Courts may also rely on TJC accreditation in determining whether HCOs complied with Medicaid's standard of care. See

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Evelyn V. v. Kings Cty. Hosp. Ctr., 819 F. Supp. 183, 189 (E.D.N.Y. 1993) (citing Woe by Woe v. Cuomo, 729 F.2d 96, 106 (2d Cir. 1984) ) ("Although courts generally accord considerable deference to the findings of the Joint Commission, its accreditation serves only as ‘prima facie’ evidence of compliance with Medicaid standards.").

Many states rely on TJC's accreditation process to help evaluate HCOs. For instance, West Virginia exempts hospitals from periodic licensure inspections if they received accreditation by TJC or the American Osteopathic Association in the preceding year. W. Va. Code § 16-5B-5a ;⁸ Compl. ¶ 19. Most states contain similar provisions that allow hospitals that have received accreditation from TJC, or another nationally recognized accrediting organization, to receive exemptions from the state's periodic licensure inspections.⁹

TJC's wholly owned subsidiary, Joint Commission Resources, Inc. d/b/a Joint Commission International ("JCR"), is a not-for-profit organization formed in 1998 "that provides training, consulting, publications, and support for health care organizations seeking to comply with [TJC's] standards." Id. ¶ 15. In addition to publishing TJC's standards, JCR provides a supporting role to TJC as a consultant, educator, and "personal certification provider that administers examinations" at various test centers. Id. ¶¶ 18, 90. In 2015, JCR reported nearly $60,000,000 in total revenue. Compl. ¶ 15.

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II. Background

The complaint alleges that in December 2001, TJC collaborated with Purdue Pharma L.P. and its affiliates ("Purdue") and other opioid manufacturers to issue Pain Management Standards ("PM Standards"), as set forth in the accompanying "Comprehensive Accreditation Manual for Hospitals: The Official Handbook," and "other related documents" as part of TJC's certification program. Compl. ¶¶ 1, 32. According to plaintiffs, the PM Standards and related materials "grossly misrepresented the addictive qualities of opioids and fostered dangerous pain control practices, the result of which was often inappropriate provision of opioids with disastrous adverse consequences." Id. ¶ 1.

For instance, The Official Handbook and 2001 Standard RI.1.2.7¹⁰ instructs that HCOs "address[ ] care at the end of life" and that "[e]ffective pain management is appropriate for all patients, not just dying patients (see Standards RI.1.2.8 and P.E.1.4)." Compl. ¶¶ 33-34. The 2001 Standard RI.1.2.8 further provides that "[p]atients have the right to appropriate assessment and management of pain" and requires that an HCO "plans, supports, and coordinates activities and resources to assure the pain of all patients is recognized and addressed appropriately." Id. ¶ 35. The first example of "Implementation of Standard RI.1.2.8," in The Official Handbook provides, "Pain is considered the ‘fifth’ vital sign in the hospital's care of patients" along with, in no particular order of importance, temperature, pulse, respiration, and blood pressure. Id. ¶ 36. The 2001 Standard P.E.1.4 adds, "Pain is assessed in all patients." For example, "All patients at admission are asked the following screening or general question about the presence of pain: Do you have pain now?" Id.

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