All,

Have you seen this series of articles about doctors who actually speak out?
If you would like to receive the series of articles, please send an email
request to Helen Hask at: HHask@...

Regards,
Diana


----Original Message Follows----
From: HHask@...
To: tcm.taylor@...
Subject: The Cost of Courage 10/26/03: How the tables turn on doctors
Date: Sat, 1 Nov 2003 15:51:59 EST

http://www.post-gazette.com/
Pittsburgh Post-Gazette
Sunday, October 26, 2003

The Cost of Courage: How the tables turn on doctors

First of a series

By Steve Twedt, Post-Gazette Staff Writer

America's physicians, sworn to protect their patients from harm,
increasingly
face a surprising obstacle -- their own hospitals.

In medical centers as small as Centre Community Hospital in State College
and
as prestigious as Yale and Cornell, doctors who step forward to warn of
unsafe conditions or a colleague's poor work say they have been targeted by
hospital administrators or boards.


Dr. Tom Kirby, a surgeon, stands in his home that is now in foreclosure
after
he was suspended from University Hospitals in Cleveland. Kirby has not
operated on a patient in nearly 18 months while he fights charges of being
"disruptive and abusive." View larger image. (John Beale, Post-Gazette)
Also in Day One:
Dispute over treatment of heart patients derails career
Doctors who spoke out
About the team
Audio Clips: Steve Twedt talks about the series

------------------------------------------------------------------------------
--

Instead of receiving praise or even support for trying to improve care,
they're disciplined or dismissed for being "disruptive" or for violating
patient
confidentiality. Frequently, the hospital turns the tables on the
whistleblowers
and accuses them of poor care. They also threaten internal investigations
that could result in listing the complaining doctors in the National
Practitioner
Data Bank, which can make finding a similar position at another hospital all
but impossible.

Not even whistleblower laws, designed to give legal protection to those
trying to report wrongdoing, safeguard the doctors in many cases. And all
too
often, state and federal agencies and national accrediting groups do little
to
protect these physicians or make sure patient care problems are corrected.

During the past 10 months, the Pittsburgh Post-Gazette has examined cases
across the United States in which physicians who spoke up about poor care
faced
reprisals, including peer review hearings, demotions, temporary loss of
credentials, involuntary transfers or outright dismissal. In one Missouri
case, a
physician was cited for violating patient confidentiality after he pushed
for
further investigation into possible serial murders at the hospital.

While it's unknown exactly how often physicians are targeted for patient
advocacy, a 1998 survey of 448 emergency physicians across the United States
found
that 23 percent had either lost a job, or were threatened with it, after
they'd raised quality-of-care concerns. Ed Kabala, a lawyer with the
Downtown law
firm Fox Rothschild, which represents physicians, said he had noticed a
recent
increase locally in physicians being accused of disruptive conduct.

"We might have seen two or three in a year, then all of a sudden, we had
five
in 60 days. Some of them were bona fide and some were not," he said.

"There are cases where physicians have raised legitimate concerns about
other
physicians, or hospital staffing, and in retaliation they have been
subjected
to threats that they are disruptive. It's a technique to be used when other
disciplinary reasons could not be justified."


Isolated incidents?

Hospital attorneys, not surprisingly, take a different view.

"I don't see it as a large problem," said John Horty, of Pittsburgh's Horty
Springer and Mattern, one of the leading health care law firms in the United
States.

Horty's firm has represented 400 to 500 hospitals, and is on retainer with
about 30, and "we may have one of these [whistleblower physician] cases," he
said.

While acknowledging that relationships between physicians and hospitals "are
the worst I've ever seen" because of economic and other outside pressures,
Horty said that "most disruptive physicians are, in fact, disruptive. If
it's
nothing but whistleblowing, the hospital almost never acts."

But the Post-Gazette's investigation has shown that while such incidents may
not happen at most hospitals, doctors who question quality standards or
practices can pay a steep personal and professional price, including:

Loss of patients and their practice. After he was summarily suspended for
complaining about poor care received by his patients, vascular surgeon Dr.
Thomas
Wieters of Charleston, S.C. had 48 hours to find another physician to tend
to
his hospitalized patients. Dr. Gil Mileikowsky, an obstetrician-gynecologist
in Encino, Calif., had to tell longtime patients that someone else would
have
to deliver their babies. Similarly, transplant surgeon Dr. Thomas Kirby of
Cleveland's University Hospitals has not operated on a patient in nearly 18
months while he fights charges of being "disruptive and abusive."

Prolonged investigations. Kirby waited more than a year for his hearing, and
Mileikowsky has had two hearings abruptly stopped after procedural
disagreements arose, such as whether he could question his accusers. Both
sought court
intervention, only to be told their wrongful termination lawsuits could not
be
addressed until their administrative appeals within the hospital were
completed.

Financial ruin. Wieters estimates he's lost about 80 percent of his income
since his dismissal and is considering filing for personal bankruptcy.
Kirby's
Cleveland Heights home is now in foreclosure.

Lack of relief from courts. Almost uniformly, courts have given hospitals a
wide berth in handling staff credentialing matters. When kidney specialist
Dr.
Linda Freilich sued a Maryland hospital that terminated her privileges after
she complained about substandard care, the courts declined "to enmesh
themselves in hospital governance." Wieters was told by one federal court
that the fact
that he'd uncovered substandard care was irrelevant.

A Conversation
with
Steve Twedt
Audio excerpts from a discussion of "The Cost of Courage" with Post-Gazette
Staff Writer Steve Twedt

The project began with a call from a physician.
(1MB MP3)

Across the country patients should be worried about whether doctors are
afraid to criticize poor health care practices at hospitals.
(1MB MP3)

Hospitals have been able to threaten doctors with being listed as
"disruptive" on a national database originally developed to identify
dangerous or
incompetent physicians.
(500K MP3)

Powerful and secretive peer review boards can make doctors afraid to speak
out.
(1.7MB MP3)

Physicians do not receive the same due process safeguards before a review
board that they would expect in court.
(1.2MB MP3)

Hospitals are under intense economic pressure to avoid public criticism from
doctors who practice there.
(884K MP3)

Physicians who want to blow the whistle on practices at a hospital face a
real threat from physician review boards and an adverse listing in a
national
databank.
(614K MP3)

There is a high cost for physicians labeled as being "disruptive."
(546K MP3)

Visit the following sites to download MP3 players:

Real Player
Microsoft Windows Media Player
WinAMP


------------------------------------------------------------------------------
--

Targeting reformers

Those who have witnessed reprisals against physicians or were targets
themselves are troubled that advocating for better patient care can be seen
as
disruptive and lead to serious professional consequences. Some say it's like
arresting a person who yells "A man's been shot!" for violating a noise
ordinance.

"We're the only people who can stand up for patients," said Dr. Scott
Plantz,
an emergency medicine specialist who headed the survey of emergency
physicians. "The nurses can't, because they're employees of the hospital.
But doctors
aren't, or at least they weren't in the past. With managed care, and doctors
working for hospitals, it gets worse and worse and worse."

The silencing of whistleblower physicians hasn't received the kind of
intense
publicity malpractice reform arguments have. But because many of the
doctors'
complaints involve the basic standards of care being used at hospitals, it
could have just as big an impact on the quality of care patients receive.

The targeted whistleblowers include some of the best of the best: chiefs of
staff, board-certified specialists, highly regarded transplant surgeons and
the
president of the Pennsylvania Medical Society.

"There's an attitude that it's better to cover [a problem] up than to let it
be known and correct it, because [a hospital] cannot afford the consequences
of letting anybody find out that it went wrong," said Dr. Edward Dench, who
just completed his year at the reins of the medical society. Dench said he
became
a target at Centre Community Hospital after questioning procedures there.

"If a nurse or physician speaks up and says, 'This is wrong,' they are the
ones most likely to be punished."

And that's only counting the ones who have the courage and conviction to
speak up. Many others weigh the professional and financial cost and do not
come
forward, thus silencing the patient's best and most knowledgeable advocate.

"If you want your life to go on without disruption, then that's what you
do,"
said John Blum, a Loyola University of Chicago professor who's written
extensively on hospital credentialing. "There is a real public health threat
there.
There has to be some kind of immunity to those who are presenting
allegations
of quality problems."

While retaliating against whistleblower physicians does not happen at most
hospitals, some say it appears to be on the increase.

"It is clear that we are hearing of more cases of these kind of really
difficult conflicts occurring between hospitals, and, in some instances,
hospital
boards, and the medical staff," said Dr. Paul M. Schyve, senior vice
president
of the Joint Commission on Accreditation of Healthcare Organizations, which
accredits most U.S. hospitals. Schyve said one factor driving these disputes
is
the economic pressure hospitals face to keep costs down and maintain a good
image.

The American Medical Association, while stipulating that there is no clear
definition, says physician behavior is disruptive when it interferes with
patient care. But the AMA code also notes, "Criticism that is offered in
good faith
with the aim of improving patient care should not be construed as disruptive
behavior."

The whistleblowers at hospitals are not always physicians.

Nurses and other health care workers have come forward, at risk of being
fired, having their work hours cut back or being reassigned to an
undesirable
shift. Occasionally, they've successfully fought back.

Last year, a jury awarded three nurses $275,000 from a Bradenton, Fla.,
hospital for retaliating against them after they complained about poor
nursing
care. In Naperville, Ill., nurse Reem Azhari sued Edward Hospital after she
was
the only staff member let go because of "budget cuts" in March 2000, not
long
after she had reported several health and safety violations, including
uncertified medical students being allowed to perform surgery.

But whistleblower physicians face a unique vulnerability, one that can make
disagreeing with their hospital administrators a career-ending move. Once
they've been labeled disruptive, doctors may face sanctions and effective
banishment from the profession. That gives hospitals considerable leverage
when
conflicts occur.

The irony of this growing trend is that hospitals are silencing doctors by
using a piece of federal legislation that was meant to protect patients.

Hospital peer review, typically involving a panel of physicians who review
patient cases, is an integral part of the Health Care Quality Improvement
Act,
which Pittsburgh's Horty co-authored and which Congress passed in 1986. The
law
sets out a framework for discreetly investigating a physician's performance
and ensuring he's meeting accepted standards of care.

The shroud of immunity and confidentiality over internal hospital
investigations of physicians is intended to protect both the patient's and
the doctor's
privacy, and allow for open discussion of the details.

But it also means that physicians who are wrongly or maliciously accused may
be pulled into a hearing where they have no legal representation and no
opportunity to face their accusers. Or, in some cases, their accusers sit on
the
panel investigating them.


"The assumption that peer review is always only about quality and not about
economic or intra-professional political struggles is less and less
realistic
as the economics of the health care industry become more competitive," said
Sallyanne Payton, a University of Michigan health law professor.

Historically, physicians have supported the confidentiality of peer review
proceedings, seeing it as a protection.

But that is changing.

"I'm hearing from more and more doctors that peer review really represents,
in too many institutions, physicians who are either employed by the hospital
or
are linked to the hospital, so they're doing the hospital's bidding," said
Dr. John C. Lewin, executive vice president and CEO of the California
Medical
Association.

Lewin would like to see a "renaissance" of peer review, refashioning it by
using outside specialists instead of staff members beholden to the hospital.
"We're concerned that some hospital facilities are less interested in
objectivity
than in using peer review for their own purposes."

In some cases, those purposes include retaliating against whistleblower
physicians who jeopardize the daily flow of patients and reimbursements.

The none-too-subtle warning to doctors: If you value your career, report no
harm.

>>>>>>>>>>>>>>>>

Dispute over treatment of heart patients derails career

By Steve Twedt, Post-Gazette Staff Writer

CLEVELAND -- When University Hospitals of Cleveland recruited Dr. Thomas
Kirby to head up its cardiothoracic surgery and lung transplant divisions in
1998,
he saw it as an opportunity to raise a fledgling program to national
prominence.

John Beale/Post-Gazette
Dr. Thomas Kirby stands outside University Hospitals of Cleveland, which
suspended him more than a year ago for "disruptive and abusive" behavior. He
had
been recruited by the hospital in 1998 to head up its cardiothoracic surgery
and lung transplant divisions.

Kirby, 51, had directed lung transplant programs at two highly renowned
hospitals -- Columbia Presbyterian Medical Center in New York and the
Cleveland
Clinic -- when he got the intriguing offer to run his own program at
University
Hospitals, which is affiliated with Case Western Reserve University.

"I told them, 'I'm not moving over here to run some second-rate program,' "
Kirby recalled. Hospital officials assured him they wanted a premier
program,
too, and they were eager to have him direct it. His starting salary was
$800,000 a year.

In the ensuing years, the number of lung transplants at UH went from zero to
15 per year, solidly establishing the program as a player in the state.

But, even as more patients received life-saving surgeries, the story took a
turn neither Kirby nor the hospital expected.

Today, nearly six years after he was hired, Kirby is out of work. He was
suspended more than a year ago by UH for "disruptive and abusive" behavior.

Kirby says the only thing he was trying to disrupt was the high mortality
rate among the hospital's heart patients, which was two to three times the
national average.

But being right has not prevented the derailment of Kirby's promising
surgical career. For the past two months, he has lived among packed boxes
and unhung
pictures in his expansive Cleveland Heights home, which is now in
foreclosure
proceedings.

The divorced father of three -- his oldest started college this fall -- is
considering filing for personal bankruptcy.

Last month, the hospital upheld Kirby's suspension, putting the final stamp
on his removal. He's now looking for work outside of Cleveland, but is
likely
to end up at a much smaller program.

"I'm in a state of shock," Kirby said. "I can't believe it. I feel like I've
been trashed and mauled."

Pushing for change

Not long after he joined UH, Kirby started pressing hospital executives
about
program changes, particularly for open heart procedures. Kirby said he was
alarmed by mounting deaths and complications among intensive care patients
after
heart surgeries, and took his concerns to hospital administrators and board
members.

Among the troubling examples of questionable care Kirby cited at UH:

*After a 60-year-old lung transplant patient died, it was discovered that a
monitoring alarm had not been turned on.

*A man admitted for a routine heart bypass ended up needing a heart
transplant because of a surgical mistake.

*A man scheduled for surgery the following Monday died after surgeons did
not
respond to warnings from weekend staff that the patient was bleeding
internally.

*A 52-year-old man died 10 days after heart valve replacement surgery which,
for undisclosed reasons, took 24 hours to complete and involved transfusion
of
120 pints of blood.

*A woman, 46, admitted for heart bypass, died of a massive heart attack
after
post-operative bleeding went untreated.

Eric Sandstrom, a spokesman for University Hospitals, would not confirm or
deny Kirby's accounts.

"This has been in the courts for a long time and just the fact that it's a
legal matter means we cannot comment on it," he said. He did confirm that
Kirby's privileges had been suspended.

Thinking back, Kirby believes UH officials began gathering information about
him in late 2000, after he had proposed to the hospital administration that
they bring in two new surgeons. That move, Kirby believes, made him "a
target of
the older surgeons in the group" who felt threatened by the proposal.

When he returned from a five-day vacation in January 2001, Kirby learned
he'd
been demoted and the two colleagues he'd recruited to the program had been
told their services were not needed.

During the subsequent months, acrimony within the department boiled up and
eventually led to Kirby filing a slander suit against a fellow surgeon, who
Kirby says had made disparaging remarks to other staff members about his
clinical
competence. That suit is still pending.

No one has disputed that the program had troubles -- at one point, UH
temporarily suspended its heart transplantation service after four
consecutive
patients died. Yet even though the hospital never accused him of poor
medical care,
it was Kirby who lost his job in April 2002.

Caught in crossfire

Kirby believes he got caught in a political crossfire, with staff surgeons
who felt threatened by the changes targeting him from one side and, from the
other, hospital administrators, who were upset that Kirby had been speaking
directly to hospital board members.

The suspension letter from the medical chief of staff accused Kirby of being
"abusive, arrogant and aggressive" with other hospital staff, including use
of
profanity and "foul and/or sexual language." Accusers were not named, dates
were not supplied and Kirby was not offered the chance to continue
practicing
surgery.

"He made people mad because he didn't settle for mediocre," said Lisa
Sorenson, 39, a nurse who followed Kirby from Cleveland Clinic to UH and is
now back
at the clinic.

"He really believed that to make a program good and keep patient safety at
its highest, you had to do things, even if it makes people unhappy."

Kirby sued University Hospitals for wrongful termination, but the judge said
the suit could not go forward until Kirby's internal UH appeal was resolved.

At one point, when talk of a possible resolution surfaced, Kirby's attorney
sent a letter to the hospital's law firm, insisting that "any settlement of
this case will require the institution of reforms in the hospital that, in
the
future, will prevent careless and fatal medical practices."

Adding fuel to the fire was the fact that Kirby gave a sworn affidavit for a
family suing the hospital.

Terry Mullin, 58, received a new heart at UH on May 23, 2001, but died the
next day after a second surgery failed to stop internal bleeding. The Mullin
family sued in November 2002, accusing the hospital of negligence. The
family's
attorney knew from news articles that Kirby had been suspended and asked him
to
testify. He agreed because he thought the hospital was stonewalling the
family.

In his affidavit, Kirby said he'd warned key administrators since 1999 "of
numerous deficiencies relative to medical care complications and surgical
outcomes, which existed in the division of cardiothoracic heart surgery at
University Hospitals." Despite those warnings, he added, "no remedial and/or
curative
action was instituted."

Hospital attorneys have tried to quash Kirby's statement, as well as
subpoenas issued for top administrators and the board chairman at UH.

In January, eight months after he'd been summarily removed, Kirby faced a
panel convened to consider his suspension. But three days into the
proceeding,
the panel was abruptly disbanded after Kirby's attorney learned that two of
the
three panelists were on the clinical council that had ordered his
suspension.
A second panel was convened in July, leaving Kirby's status in limbo for
months longer.

His finances are shot

With last month's final ruling, Kirby faces the challenge of looking for a
new hospital, but now his name is included in the National Practitioner Data
Bank as a physician who lost his credentials because of professional
misconduct.
He has not decided whether to appeal the data bank report.

Kirby has not collected a paycheck in more than a year and has attorney fees
"in the hundreds of thousands of dollars," he said. His savings and his
retirement nest egg are both gone. Kirby, a classical pianist, has had to
sell his
piano to help cover the mounting bills.

University Hospitals and its patients have suffered, too. After Kirby's
departure, the lung transplant program had been inactive until recently.

The hospital received high marks for its heart surgery program from U.S.
News
and World Report this year, but Health Grades Inc., a Colorado company that
rates health care quality at more than 5,000 U.S. hospitals, has described
UH's
survival rates for valve replacements and in-hospital deaths as "poor."
Health Grades spokeswoman Sarah Loughran said 10 percent to 12 percent of
the
hospitals reviewed get that ranking.

Last year, the Accreditation Council for Graduate Medical Education revoked
UH's authority to train cardiothoracic surgery medical residents, saying the
program no longer met council standards.

Although the hospital accused Kirby of being abusive, several staff members
testified otherwise at his hearing.

The employees, including his transplant coordinator, several nurses and
residents and his secretary, described Kirby as professional and respectful.
A
surgical assistant for Kirby said the surgeon "had great behavior" and had
never
been abusive in the 100 or so surgeries they'd done together. He also was
nominated as surgical teacher of the year at Case Western Reserve's School
of
Medicine in 2002.

Kirby does not dispute that he has exacting clinical standards, or that he
has used profane language. But he believes he was fired and labeled
disruptive
for insisting on improvements to the UH program that he thought would save
lives.

At the time of his suspension, Kirby said, he did not have a single
accusation of poor care against him.

His career aspirations may be so much vapor now, but Kirby said he would not
turn his back or compromise on patient care.

"How much is one person's life worth?" Kirby asked. "If I were to prevent
even one death as a result of this, it will have been worth it."

*************************

Doctors who spoke out

Sunday, October 26, 2003

All over the nation, physicians who have spoken out about dangerous hospital
practices or poor performance by colleagues have been punished. Here are a
few
examples.

Dr. John Paul Schulze, Corpus Christi, Texas

Schulze, a longtime family practice doctor, criticized Humana Health Care in
1996 for its decision to have its own doctors care for all patients once
they
were admitted to Humana hospitals. He refused to use the so-called
hospitalists, and was then dropped from the plan. Humana cited a malpractice
case he had
settled years before as its reason. After Schulze sued, a jury awarded him
$19.95 million, later reduced to $14 million, and said Humana had acted with
malice and committed fraud. Schulze later reached an undisclosed settlement
with
the for-profit firm. Humana denies to this day that Schulze was targeted
because of his criticisms.

Dr. John Flynn, Anadarko, Okla.

After Anadarko Municipal Hospital administrators failed to act on Flynn?s
report of a colleague abandoning a patient in 1993, he reported them to
state and
federal authorities, who threatened to remove the hospital?s operating
license. The hospital then denied admitting privileges for Flynn, and it
took him
seven years to win reinstatement to the hospital staff. ?They put me through
hell,? Flynn said of hospital officials. ?You speak up against the system,
you
just put yourself up as a target. ? I?m not sorry I did it. It?s just that
it
took something from me that I?ll never get back, emotionally and
physically.?
The hospital is now under new ownership.

Dr. Gil Mileikowsky, Encino, Calif.

Mileikowsky, a board-certified obstetrician-gynecologist, questioned his
hospital?s failure to review certain cases he believed demonstrated
substandard
care, including one where a colleague removed the wrong fallopian tube. He
also
agreed to testify as an expert witness for a family suing the hospital for
malpractice. Within days, the hospital suspended Mileikowsky?s privileges
without
a hearing, saying he had ?exhibited a pattern of disruptive, threatening and
non-cooperative behavior.? Nearly two years later, two hearings have been
started, then stopped, in disagreements over whether Mileikowsky would be
allowed
to question his accusers, among other things. ?How did I work in hospitals
for
14 years without ever a suggestion of anything like this, then, all of a
sudden, this pops up?? Mileikowsky asked. The hospital declined to comment.

*****************************

The Team

Sunday, October 26, 2003

Steve Twedt

Steve Twedt, 49, is a special projects writer who has written extensively
about patient safety issues for the Post-Gazette. His 1993 series on
hospital
medication errors won the Associated Press Managing Editors national Public
Service Award and a 1996 series about hospitals? use of technicians to
perform
nursing tasks was awarded the American Academy of Nursing?s national media
award.
His most recent series, about mentally ill juveniles trapped in the juvenile
justice system, was honored with the Casey Medal for Meritorious Journalism
and
Amnesty International USA?s Newspaper Journalism Award.

John Beale

John Beale, 45, has been a staff photographer for the Post-Gazette since
1984. His work has been recognized with numerous state and national awards.
In
2001, Beale was the recipient of the first "Community Service
Photojournalism
Award" from the American Society of Newspaper Editors. In August, he was
honored
by the Pro Football Hall of Fame for the "Photo of the Year" from the
2002-2003 NFL season. His last project, "History Brought to Life,"
documented the
Amendments to the U.S. Constitution.

Tomorrow: A South Carolina surgeon is blackballed
------------------------------------------------------------------------------
--
(Steve Twedt can be reached at stwedt@... or 412-263-1963.)
------------------------------------------------------------------------------
--
Copyright ©1997-2002 PG Publishing Co., Inc. All Rights Reserved.

_________________________________________________________________
Concerned that messages may bounce because your Hotmail account is over
limit? Get Hotmail Extra Storage! http://join.msn.com/?PAGE=features/es