The Risk of Speaking Up
By Joey Berlin Texas Medicine April 2018

When physicians have the guts to do the right thing, they may pay the price.

They may speak up about shady hospital practice or misconduct, or on patient care issues that can lead to preventable errors, harm, and death. But they may do so at their own risk, sometimes facing malicious, career-debilitating retribution from a hospital system more concerned about corporate interests.

Law_VanBovenEven when whistleblowing doctors fight back against hospitals – as Houston cardiothoracic surgeon Miguel Gomez, MD, or Lakeway neurologist Robert Van Boven, MD, (left) did – they find that any victory can carry plenty of personal and professional damage.

The Texas Medical Association has repeatedly pushed hard for protections that allow doctors to exercise their medical judgment and advocate for patient care – and to do so without fear of retaliation. Many of those important protections have become law. Still, accusations of retaliation against Texas physicians continue to emerge, suggesting there’s more work left to do.

“The culture of silence – a lack of transparency and disclosures in hospitals, borne of fear and reprisals, exerts a chilling effect on learning from and correcting deadly errors. A multi-faceted approach, including improved legal safeguards for reporting, [is] needed,” said Dr. Van Boven, whose own complaints about patient care at the former Lakeway Regional Medical Center led to a years-long legal battle that continues.

Battling to clear their names

A 2016 paper in The BMJ underscores the importance of avoiding medical errors in hospitals and the ramifications of leaving them unaddressed. For the paper, researchers at Johns Hopkins University tried to estimate the number of deaths in the United States per year from medical error. Their extrapolated estimate using past studies and 2013 hospital admissions: 251,454 deaths per year. Comparing that estimate to Centers for Disease Control and Prevention death data, the researchers said, suggested medical error was the third-leading cause of death in the United States. (One of the authors of that report, Marty Makary, MD, was a general session speaker at TexMed 2016 in Dallas. See “Transparency: Disruptive Innovation,” April 2016 Texas Medicine, pages 43-49, or visit www.texmed.org/DisruptiveInnovation.)

The staff who report adverse events at hospitals, though, tend to be nonphysicians; nurses most commonly make the reports, according to a 2010 survey. (See “Physician Reporting,” page 46.) 

Dr. Gomez, though, was one of the doctors who spoke up – and persisted when he faced damage to his reputation. 

Dr. Gomez sued Memorial Hermann Memorial City Medical Center for defamation in 2012, saying the hospital ran a smear campaign against him involving sham peer review after he made plans to move to a competing hospital. With TMA’s help in compelling the release of key peer review documents, Dr. Gomez eventually won a judgment of nearly $6.4 million. 

(See “A Victory for the Underdog,” June 2017 Texas Medicine, pages 24-30, or visit www.texmed.org/victoryunderdog.)

Memorial Hermann has defended its quality review process and denied it intended to hurt Dr. Gomez. The case is now on appeal.

Dr. Gomez’s attorney, Mike Doyle, says the biggest mistake he sees physicians make when they find themselves a target for retaliation is reaching out for help too late.

“They don’t realize that if there’s a bad-actor hospital or anybody else who has a plan to abuse the system, you need to be fully armed,” he said. 

Dr. Van Boven’s protracted legal battles with Lakeway Regional Medical Center stem from 2012, when he says he began internally reporting numerous alleged issues with patient care involving “death, harm or significant risk thereof,” according to one of his court filings. He says after those internal reports went nowhere, he went to regulatory agencies. Each of the six reports Dr. Van Boven made to the Texas Department of State Health Services (DSHS) in 2015 and 2016 resulted in investigations that found one or more violations, according to letters Dr. Van Boven received from DSHS. And in 2015, the federal Centers for Medicare and Medicaid Services issued a “statement of deficiencies” for Lakeway Regional requiring the hospital to outline its plans to correct those deficiencies.

That same year, Dr. Van Boven filed suit against the hospital alleging retaliatory activity. He has alleged that Lakeway retaliated against him by engaging in bad-faith reporting to the Texas Medical Board (TMB) in 2014, leading to a board complaint over a file of 15 cases that he says Lakeway misrepresented as a peer-review file.

Although the hospital settled with him three different times, Dr. Van Boven says it continued to retaliate against him. He says his other troubles with the hospital included:

• A 2016 email from an attorney representing Lakeway, between the second and third settlements, that appeared to suggest that in order to reach a settlement, Dr. Van Boven would have to “identify and withdraw any complaints he has” with regulatory agencies, and “agree to cease and desist from making further such reports.” Dr. Van Boven says he refused the request for silence.

• A September 2016 arrest when he says he tried to visit a friend at the hospital. Charges stemming from the arrest were ultimately rejected, and the City of Lakeway paid Dr. Van Boven $55,000 in a settlement.

Last year, a State Office of Administrative Hearings (SOAH) judge’s order exonerated Dr. Van Boven regarding a TMB-filed complaint that included one of the 15 cases from Lakeway’s original report to TMB (the other 14 cases had been dropped) and two allegations of patient boundary violations. The SOAH judge concluded TMB failed to prove the allegations. Following the SOAH decision, TMB dismissed its case.

Litigation between Dr. Van Boven and the hospital continues. 

An attorney for the former Lakeway Regional declined comment for this story. 

Dr. Van Boven has also sued TMB, alleging, among other things, the board violated his due process and failed to consider allegations of unlawful activities by the hospital, including false representation. In a statement, TMB president Sherif Zaafran, MD, said the board has no comment on pending litigation.

“Everything he could to hurt this doctor’s business”

Law_tewBrian Tew, MD, (left) a Houston attorney who represents fellow physicians in peer review litigation and disciplinary matters, has learned many times what can happen when a doctor gets too ethical for the hospital’s taste.

One physician Dr. Tew represented more than a decade ago found out emergency physicians at a hospital where the doctor was admitting patients were acting as a “big profit center for the hospital.” Dr. Tew says his client discovered the emergency room doctors were overusing ultrasound, X-rays, and CT scans for patients who didn’t need them. Dr. Tew said his client also learned hospital administrators were receiving monthly reports on how much money each emergency doctor was generating from each treatment modality.

“When confronted, the administrator did everything he could do to try to hurt this doctor’s business,” Dr. Tew said. “In other words, they intentionally took him off their doctor referral list [and] they wouldn’t give his name out to anybody.”

He says the physician wanted to file a whistleblower case at first, but decided the hospital administrator would remain “toxic.” He instead decided to admit his patients to a different hospital.

Another more recent case of alleged retaliation involves Houston obstetrician-gynecologist Eric Haufrect, MD, who sued Houston Methodist Hospital in June 2017. According to the lawsuit, in October 2016 Dr. Haufrect learned that phones at Methodist were “being electronically altered to record conversations between members of the staff and patients, without either’s consent.” Administration told Dr. Haufrect the recordings were hospital policy, that they had been taking place hospital-wide for eight years, and that his department could not opt out, Dr. Haufrect’s suit claims. 

Although the hospital claimed the recordings were legal, according to the suit, Dr. Haufrect continued to voice his concerns. The chair of the hospital’s OB-gyn department accused him of a code of conduct violation in November 2016, but the accusation was “without merit” and immediately terminated, the suit claims. But the following month, after Dr. Haufrect declined a request to resign, the CEO of the Houston Methodist Physician Organization removed him from his position as vice chair of the department of obstetrics and gynecology, according to the suit. Dr. Haufrect’s suit seeks damages for defamation, among other grounds. It claims his supervisors used “a whisper campaign to damage or impair his reputation and/or future employment at the hospital.”

An attorney for Dr. Haufrect did not respond to Texas Medicine’s request for comment. A Methodist spokesperson declined comment on the case. 

Paths to improvement?

Protecting physicians who find their professional judgment clashes with the hospital’s interests is a priority for TMA, which has pushed for several key statutory and regulatory changes in the past decade. (See “TMA: Working for Your Protection,” below.)

TMB, for its part, says there’s a protection in place for any accusation against a physician: Its own investigations. Dr. Zaafran said in a statement that while there are concerns over hospitals retaliating against doctors who report patient care issues or other improprieties, “TMB’s historical experience indicates very few complaints being received.”

“The most important aspect to remember is that hospital care issues and physician violations are not mutually exclusive,” Dr. Zaafran said. “In some instances there may be concurrent violations occurring by both the facility and the physician. Cases involving whistleblower, breach of contract, and/or wrongful termination issues are civil matters left to the appropriate court and are outside of the TMB’s jurisdiction.”

Because peer review is a ripe and thickly veiled avenue for angry hospital administrators to smear whistleblowing physicians, having more circumstances for peer-review transparency could be one way to address the problem. 

Mr. Doyle says two exceptions allow peer review documents to come out from under the cloak of confidentiality and shed light on what a hospital medical staff actually did. One is the exception that came into play in the Gomez case: Showing the peer review documents are related to anticompetitive activity. The other exception is showing that they’re related to racial discrimination.

As it has done with Dr. Gomez and other physicians, TMA filed a friend-of-the-court brief on Dr. Van Boven’s behalf. In that 2016 brief, TMA argued that doctors “must be able to speak out in the interest of patient care without fearing facing protracted litigation defending statements made in the reasonable belief of truthfulness.”

“The TMA’s legal staff have transfused me with intellectual and moral support to sustain a fight for a cause greater than myself,” Dr. Van Boven said. “Without the TMA, I would have been eviscerated and in a state of oblivion by now. Period.”

SIDEBAR

Physician Reporting

Physicians are less likely to report adverse events at hospitals than nurses, techs, and other staff, according to a 2010 research paper by RAND Health titled “Adverse Event Reporting Practices By U.S. Hospitals.” The paper examined survey results in which risk managers estimated the types of staff members who submit adverse reports. Some of the 2009 survey’s findings:

Physicians in training submit

  • All or most adverse reports at 1 percent of hospitals
  • Some reports at 14 percent
  • Few or none at 85 percent. 

Attending physicians submit:  

  • All or most adverse reports at 1 percent of hospitals
  • Some reports at 15 percent
  • Few or none at 84 percent. 

Nursing staff submit:  

  • All or most adverse reports at 93 percent of hospitals 

 SIDEBAR

TMA: Working for your protection

Recent sessions of the Texas Legislature have yielded key, TMA-backed protections for physicians whose professional judgment may clash with corporate interests, as noted in a new white paper recapping the Texas Medical Association’s advocacy efforts for academic and/or employed physicians.

In 2011, TMA was part of the successful push for Senate Bill 1661, prohibiting nonprofit health corporations from controlling, interfering with, or directing a physician’s professional judgment.

Other TMA-backed legislation the same year introduced added protection for physicians employed by rural hospitals. Among other things, Senate Bill 894 requires rural hospitals to appoint a chief medical officer recommended by the medical staff; to enforce policies protecting a physician using independent medical judgment; and to prohibit discipline for speaking up about patient care.

TMA’s advocacy in 2011 and 2013 helped ensure that non-profit health corporations leave credentialing, utilization review, peer review policies, and quality assurance up to an all-physician board of directors. 

In 2017, TMA fought for increased protections again when it supported Senate Bill 833 by Sen. Bryan Hughes (R-Mineola). That bill would have protected employed physicians who blow the whistle on corporate employers over issues involving patient health care quality by requiring TMB to investigate complaints against the entities it certifies, such as nonprofit health corporations. SB 833 passed the Senate but died in the House.

To learn more about what TMA has done for academic and employed physicians, view the white paper at tma.tips/advocacyefforts.

Tex Med. 2018;114(4):44-47
April 2018 Texas Medicine Contents
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Last Updated On

February 04, 2019

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Joey Berlin

Associate Editor

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Joey Berlin is associate editor of Texas Medicine. His previous work includes stints as a reporter and editor for various newspapers and publishing companies, and he’s covered everything from hard news to sports to workers’ compensation. Joey grew up in the Kansas City area and attended the University of Kansas. He lives in Austin.

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