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Oct 02

Complain. Get Fired. Get $17.5 Million.

The next thing you know she was fired.

Unfortunately, it’s an all too uncommon experience.

A physician raises honest criticism or files a heartfelt complaint concerning another member of the medical staff or another member of her group. She’s fired.

The lead surgeon in a hospital-supported cardiac clinic questions the impact on patient care of a decision by hospital administration. He’s replaced.

The group negotiating for the renewal of an exclusive contract questions a hospital demand as violative of the federal Anti-Kickback Statute. They’re terminated.

Suck it up and go home? Or say “$%^& it” and go sue?

Last month, the Seattle Times feature a story concerning David Newell, M.D., a neurosurgeon once employed by Swedish Health of Seattle.

In 2016, Swedish Health fired Dr. Newell, allegedly because he didn’t notify the employer that he had been arrested in a prostitution sting.

Newell didn’t deny his brush with the law. In fact, he pleaded guilty to the charges, paid a fine, and performed community service.

But Newell alleged that that wasn’t the actual cause of his termination.

In a claim filed against Swedish Health, he alleged that the real reason behind his termination was that he was one of several hospital staff who had filed internal complains regarding star Swedish Health surgeon Johnny Delashaw, M.D. who later resigned from Swedish Health and had his Washington medical license suspended. In complaints to Swedish Health, Newell said that Delashaw was trying to marginalize him, steal his cases, and get him fired on flimsy grounds.

Newell alleged in arbitration that Swedish and its parent organization, Providence, engaged in a pattern of targeting and interfering with his and other neurosurgeons’ practices, retaliatory behavior relating to his reporting of Delashaw, and a disregard for patient safety. He alleged that they “stole” his practice by firing him.

The arbitrator agreed, awarding him $16.5 million in compensatory damages and $1 million for emotional distress.

Swedish Hospital and its parent, Providence, are challenging the arbitrator’s award in court.

Although we know what the arbitrator found, neither you nor I know the actual reasons behind Newell’s termination. That said, the situation serves as a flashpoint to discuss the situation of retaliatory termination and of claims of retaliation.

The arbitrator’s award to Newell signals the significant damages that can result from a finding of retaliatory termination. Does this mean that employers or hospitals will simply “dress up” termination to make it appear as if it were for a valid reason? If Swedish Hospital’s prostitution sting rationale were a “pig in a dress”  excuse, it was still a pig, at least up to and including the arbitrator’s award.

Does it mean that employees or even contracting parties will take strategic action to create a history of complaints and reports to block future termination? We’d have to be lying to ourselves if we didn’t admit that hospitals and medical staffs have engaged in that sort of behavior in the reverse for years, even decades.

Retaliation is real. So, too, are false claims of it. No arbitrator or court has a laser beam into “the truth” of the situation, if purity of cause even exists in the absolute sense.

From a practical standpoint, this means that individuals and entities on the receiving end of retaliation must make the tough choice about whether to take a stand against it, knowing that the individuals and entities on the delivering end will themselves claim, rightly or wrongly, a legally valid reason for their action.

From a practical standpoint, it also means that the circumstances can and will be “gamed.” No system is perfect.

Comment or contact me if you’d like to discuss this post.

Mark F. Weiss

www.advisorylawgroup.com

 

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