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Caught Squealing

PHYSICIAN WHISTLBELOWERS VOICE CONCERNS ABOUT HOSPITAL CARE, OFTEN TO FIND THEMSELVES TARGETED INSTEAD.

The New Physician December 2004
Dr. Thomas Wieters was living the good life. A thriving, 15-year vascular surgery practice at Roper Hospital in Charleston, South Carolina, afforded him many perks: two houses—one at the beach—several trips to beautiful places each year and a comfortable nest egg.


But that was five years ago. Today, he has nothing: no house, no savings, no decorated career. “You don’t know how I’ve lived for the last five years…. Everything I’ve worked for my entire life is gone,” he says.


Left in its place is a listing in the National Practitioner Data Bank (NPDB) warning potential employers about his “disruptive behavior.” Destined to follow him wherever he goes, the listing has prevented him from getting hired at the major hospitals in Charleston—or anywhere else in the country. The only reason he now has patients waiting to see him, he says, is because of a benevolent relationship he cultivated for years, before falling out of Roper’s favor, with a local community hospital that continues to grant him privileges despite the black mark by his name.


Congress created the NPDB in 1986 to provide hospitals a way to track unprofessional physicians and dentists across state lines. Physicians can be on the list for several reasons: They lost a malpractice case, or even were simply forced to settle one out of court, they lost their medical license, or perhaps they were summarily suspended by their hospitals for unprofessional behavior. Physicians at the payment end of a malpractice case, because of either a court ruling or a settlement, account for more than 70 percent of the listings. So how did Wieters, who was sued just once in a case that was later dismissed, make the list? Roper administrators placed him there for “disruptive behavior,” punishment he says for blowing the whistle on substandard patient care.


It’s a road he’s not traveled alone, nor one that’s paved with success stories. But some physicians say the culture of silence in medicine that has been used to railroad whistleblowers is starting to lift, even if only slightly, and while their careers may be in shambles, the experience has not dampened the spirit of their intentions.


PAYING THE PRICE


Perhaps it was Dr. Troy Madsen who first put a face on the whistleblower label for many medical students when he took the internal medicine residency program at Johns Hopkins Hospital to task for violating residency work-hours regulations in July 2003. His complaint triggered a disciplinary action by the Accreditation Council for Graduate Medical Education (ACGME), which accredits residency programs. When he was outed as the anonymous whistleblower later that summer, he resigned largely because residents and administrators ostracized him for his actions (see “Monitor,” March 2004).


The upheaval in his career has caused Madsen, who soon after the incident said he would do it all over again to protect his patients from overtired residents, to rethink his decision. Now a second-year emergency medicine resident at Ohio State University School of Medicine, he says he would strongly caution others from speaking out because of the lack of protection the ACGME afforded him, after it assured him it would. He faults the ACGME for not having a stronger whistleblower policy. Proposed federal legislation would offer such protection, but the bill is mired in committee and not expected to move before Congress adjourns later this month.


ACGME’s director of field activities, Ingrid Philibert, admitted in August the council didn’t have a protection policy. “We don’t have anything that could be outright called whistleblower protection. We do, however, have fairly strong standards in our [accreditation guidelines] that have adverse consequences for programs or institutions that do retaliation or retribution against residents or to others who comment on deficiencies either internally within the organization or ultimately to the ACGME, so that has negative accreditation outcomes for the program. But we don’t have the kind of whistleblower provisions that are inherent in the [proposed] federal statutes,” she said on American University Radio’s the Kojo Nnamdi Show.


But others say it doesn’t matter what the consequences are; they’d blow the whistle all over again to protect their patients. Wieters is one of them. “This is a topic that begins to expose a conspiracy of silence that exists…since who knows when, but it also proves that there is a small group of people willing to put patient safety first,” he says.


Wieters’ problems began in 1999 when he complained to hospital officials about the care a patient on whom he was scheduled to operate received. The man, who needed surgery for an aortic aneurysm, waited four hours before hospital staff admitted him and then hours more before staff prepared a chart and began prepping him for the procedure. The only one of Wieters’ orders nurses did carry out, he says, was to administer a laxative—but at twice the dose he indicated. After a worrisome night monitoring the man’s falling potassium level, caused by diarrhea resulting from the double-dose laxative, Wieters operated the next day.


And while the tale has a happy ending—the man survived a successful surgery—Wieters says his patient’s treatment was just one example of the declining care in the hospital. He cites instances in which orders for immediate medications were ignored, and when medicine was administered, it was often not recorded in the patients’ charts. Each time, Wieters would ask the offending health-care worker to write up an incident report, a move he considered necessary to protect patient safety.


But Wieters says Roper’s risk manager reprimanded him for ordering his nurses to file the incident reports, saying they created a paper trail for future malpractice suits.


The Vietnam War veteran likens his actions to those of the armed forces. “A lot of those people live by a code that we will absolutely leave no man behind. If you practice medicine, the person in the bed does not look to the nurse. The person looks to the physician” for advocacy and care, he says.


But quality care was becoming more difficult in the face of what Wieters says were declining standards at Roper, which had been owned and operated by the physicians of the Medical Society of South Carolina from 1852 until 1998, when an outside corporation bought the hospital. And he says it’s no coincidence the term “disruptive physician” entered hospital vernacular during the mid-1990s, when for-profit companies increasingly bought physician-owned nonprofit hospitals.


“Disruptive physicians—well, they’re disrupting the flow of money to the hospitals,” says Dr. Verner Waite, a retired surgeon and the founder of the Semmelweis Society, which works to help unfairly disciplined physicians fight their legal battles. He acknowledges that physicians who speak up about unsafe practices put the hospital at risk for malpractice suits and lost business. “This is big business. We’re talking about billions of dollars” the hospitals lose, he says.


So instead of the squeaky wheel getting the grease, in this case it got the ax. After a year of internal committee investigations that determined Wieters’ behavior was disruptive and warranted a psychiatric evaluation and anger management counseling, hospital officials suspended him and added his name to the NPDB in January 2000. The listing is essentially permanent; only Roper officials have authority to remove him from the data bank.


Wieters sued, but the judge ruled in favor of the hospital, citing a 1986 federal law—the same Health Care Quality Improvement Act (HCQIA) that created the NPDB—that “gave hospitals a considerable amount of discretion, a great amount of authority in dealing with matters of discipline.”


The law allows hospitals to establish an internal peer-review system for judging patient safety and discipline issues. The HCQIA provides peer reviewers liability immunity from lawsuits filed by those they review. While this follows medicine’s longstanding commitment to using internal reviews to learn from mistakes, physicians who have been disciplined under the system say it’s unfair to essentially allow the competition—other physicians contracted by the hospital—to be judge and jury.


And therein lies the problem, many disciplined physicians say. The judge ruled in Wieters’ case that even though complaints about substandard care are in the patients’ best interests, the law makes that irrelevant. “It’s a license to kill,” Wieters says of the HCQIA. “The judge said, ‘I don’t care what you did. [The hospital has] complete immunity.’”


The law was actually meant to help physicians. When the U.S. Supreme Court ruled in favor of one Oregon physician who sued his hospital for firing him after an unfair peer review, the physicians on the peer-review board went bankrupt paying the judgment award, and Congress passed the HCQIA to prevent that from happening again, says Dr. Allen Tobias, a retired California urologist who also holds a law degree.


“Early on, [the law] worked. But I think it’s been flipped over 180 degrees,” Wieters says.


In addition to providing peer reviewers immunity and creating the NPDB, the HCQIA also prohibits physicians who have been disciplined under it from suing their hospitals for anything other than to get their jobs back, and then only if they can prove the peer-review committee improperly followed four procedural steps outlined in the law.


For their part, hospitals and their lawyers argue that disruptive physicians are rarely branded after one incident. “With a truly disruptive physician, leadership is more often faced with chronic complaints from employees, other physicians, and even patients. Even then, meaningful action often does not occur until there is a significant event like the resignation of a key employee, an adverse clinical outcome, or worse,” wrote Susan Lapenta, a lawyer with the Pittsburgh firm Horty, Springer and Mattern, in a recent issue of The Physician Executive.


Anesthesiologist and former president of the Pennsylvania Medical Society (PMS) and the Pennsylvania Society of Anesthesiologists (PSA), Dr. Edward Dench says his hospital would have used the peer-review system to get rid of him if there hadn’t been another anesthesiologist there who would have come to his defense. “It’s very difficult to railroad a doctor if there’s someone else there to defend them,” he says.


Difficult, but not impossible. Despite help from his friend, today Dench has no privileges at Mount Nittany Medical Center in State College, Pennsylvania, and instead makes his living by practicing anesthesiology in oral surgeons’ offices across several states.


Once a well-respected physician whom even the hospital CEO requested for his son’s wisdom-tooth extraction, Dench says his decline began in 1991 when he blew the whistle on a colleague. Dench says the physician was billing Medicare for simultaneous surgeries he was leaving in the hands of certified registered nurse anesthetists (CRNA). It was both fraud and a patient safety issue, Dench says. “There’s no way the doctor can come to the aid of the CRNA if something goes wrong [if he’s not in the operating room].”


At first, Dench said nothing. “Medicare was starting to crack down on fraud. I knew that the other doctor wasn’t practicing ethically, but I couldn’t do anything about it.” But as president of the PSA at the time, he says he was afraid someone would discover the fraud and accuse the medical organization of inaction. So, he wrote a letter asking hospital administrators to open an investigation.


“Well, they opened an investigation, but of me,” he says.
The hospital began reprimanding him for numerous infractions. In one instance, he says he upset hospital officials when he warned a patient about to undergo surgery that he had been awake for 36 hours and suggested they reschedule the nonemergency procedure. “So I told the truth, and they have a problem with that.”


By 1998 he was out, having lost his privileges when the hospital contracted exclusively with another anesthesiology group. Dench called it an antitrust violation and sued. He settled with the hospital for an undisclosed amount. He will say he requested one-day-a-week privileges to practice at the hospital at the request of a surgeon or patient, but the hospital refused.


And if his professional life has suffered, so has his personal life. Dench blames his divorce on the experience and says his story is just one example of how hospitals have strong-armed physicians into silence. “If the president of the Pennsylvania Medical Society can be gotten rid of, why would anyone else speak up?”


ALL'S WELL FOR SOME


But these stories, and others like them, don’t deter all physicians from speaking up. “We’re reaching a critical mass,” Waite says of the increasing numbers of physicians willing to take a stand against unsafe medical practices.


A neurosurgery resident at the University of Colorado Health Sciences Center (UCHSC) is a member of that critical mass. In July 2003, four residents there sent a letter to the university’s board of regents outlining concerns they had about their department chairman. “It was mostly selfish; it was more about how he was treating us, but some of it was about patient safety,” the resident, who has requested anonymity, says, declining to discuss specifics because of an ongoing legal dispute. “It was a concern among the residents that there was a problem.”


And while he says faculty support made it easier initially, the situation took a turn for the worse when the university opened an investigation, calling the resident to testify before a hospital committee. “I was guaranteed that everything I said would be confidential.” But he soon learned the extent of his whistleblower protection. “[The chairman] was handed a transcript of my testimony. I was no way protected by the university.”


Instead, he was reprimanded without an explanation or hearing. “I was hung out to dry. It was probably the worst year of my life.”


He says UCHSC’s handling of his disciplinary action was part of the reason the ACGME put the neurosurgery program on probation last summer. The council does not discuss specifics in its cases, but it reviewed the program in September and will consider reaccreditation in January. “The program now is great,” the resident says, crediting new residency program director Dr. Gary VanderArk with the improvements. The department chairman has since resigned his position, although he continues to practice in another city. “He’s still a prominent figure in neurosurgery,” the resident says.


But he isn’t worried that the experience will adversely affect his career, although he says it turned him off from academics. Before writing his fateful letter, he was planning a career in teaching and research. Now, he’s just not interested. “This has been a very enlightening experience as to the politics of academic medicine that most residents may never have.”


Despite the difficulties in getting to this point, he says he’s better for it and now has the strength to speak up in the future. “I’m glad for the experience. It’s made me a better person, which hopefully makes me a better physician.”
He says others weren’t so lucky; one of his colleagues developed an addiction, suffered a nervous breakdown and was eventually fired.


FIXING THE PROBLEM


So what’s the difference between the UCHSC resident’s metamorphosis and Wieters’ decent into what he calls five years of “abject poverty”? Some of it has to do with the circumstances of the situation, but part of it could be institutional differences.


Dench says it’s much harder for patient-safety issues to persist in a teaching hospital because of the scrutiny they’re subjected to under ACGME regulations. “You don’t get away with bad medicine for long in the academic world.”


But all hospitals are accredited by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO). Its compliance standard on due process and fair hearing, which is part of the leadership section of its guidelines, requires hospitals to have fair review systems for dealing with patient-safety concerns. “They must demonstrate a culture of patient safety from the top down,” says Dr. William Jacott, JCAHO’s special adviser on professional relations.


In his position, he spends much of his time listening to physicians talk about their work environments and says he’s increasingly hearing about conflicts between physicians and hospital administrations or governing boards but not necessarily because of patient-safety issues. “Mostly because of socioeconomic reasons, a physician wants privileges, but the hospital denies them because the physician is affiliated with another, competing hospital.”


JCAHO also has an anonymous reporting system into which physicians can tap, Jacott says. An evaluation team of physicians and nurses follow up on all complaints, possibly issuing a letter, a request for a report or even an unannounced site visit. But Jacott says of the 8,000 complaints last year, only 160 were from physicians; many physicians choose to go to their lawyers or specialty societies instead. And remember, he says, the commission deals only with patient safety—it doesn’t address complaints that peer-review systems may unfairly target whistleblowers because they allow physicians competing for business to pass judgment on one another. “We have no standards that deal with socioeconomic issues. We don’t tell a hospital how to deal with their financials.”


Dench says that’s part of the problem. Most surgeons he knows no longer have privileges in multiple hospitals, each instead settling for a contract with one health-care organization, which makes his employment contingent on his relationship with that one hospital. “It’s like they’re employees, but they’re not employees…. Remember, if you’re not on multiple medical staffs, [administrators] have the power to take away everything.”


Physicians’ employment agreements with hospitals are a serious problem for whistleblower wannabes, says Mary Louise Cohen, partner with the Washington, D.C., law firm Phillips and Cohen. “The False Claims Act contains a provision that’s supposed to protect employment. Of course, it only covers employees—physicians are often independent contractors. You’re not going to be covered.”


Cohen deals only with cases under the False Claims Act, which regulates billing processes and not the HCQIA. But she says a lot of times, fraudulent billing schemes are accompanied by patient-safety issues, which are an added concern to her physician–clients who then decide to blow the whistle.


And while protections beyond the False Claims Act do exist, she says it’s often a matter of state law. “Some states have very strong laws that protect whistleblowers from a public safety point of view, some even with punitive damages [for the violators].” She cites California’s law as one example, and Ohio’s, which is written to fiercely protect public employees, including physicians at public hospitals.


But the more pessimistic Waite says he doesn’t know of any state with strong whistleblower protections. He scoffs at the idea that physicians would make out better in California, which is the one state with more stringent peer-review immunity than the HCQIA provides, thanks to an opt-out clause in the federal law that permits states to approve more restrictive regulations.


Instead, Tobias and Dench advocate an independent peer-review system, in which disciplinary reviews would be overseen by an outside panel, not one of physicians from the same hospital. “The only way you’re going to get an unbiased jury is from another hospital at least 300 miles away,” Waite says.


“It’s not OK for us to make mistakes, but we’re all going to do it. You have to do better the next time and learn from it. [But] I’ve never learned anything from other doctors because it’s all secret. It’s all hidden behind peer review,” Dench says. “I believe statewide peer review is the solution to the problem…. If you could just get it up to a higher level of peer review, to an independent peer review, you’d get it out, and people would learn.”


He’s spent much of his time since leaving Mount Nittany fighting for a statewide system in Pennsylvania. Two years ago the state legislature passed a tort reform law that included some whistleblower protections, but more is still needed, he says. The state House passed a bill outlining a statewide, anonymous reporting system in June, but Dench says it has no chance in the Senate.


Tobias does see some progress throughout the country at the state level, though. In October, the PMS agreed to investigate the issue of unfair peer review, and the medical societies in Oregon and California have also taken similar ideas to their governing boards for consideration.


And until better laws are passed, Dench, like many physicians who have already brushed up against the system and lost, vows to continue to fight. “They need to speak up and make sure the hospital…has an outside group to review,” Waite says. “Become active in your medical staff. You get organized. You don’t just sit around like a bunch of cows and wait to be slaughtered.”
Jennifer Zeigler is a senior writer with The New Physician. Direct comments about this article to tnp@www.amsa.org.