How One Hospital Lost Two Of Its Best Neurologists
Whidden Hospital. Everett, Massachusetts.
When Dr. Bharanidharan Padmanabhan put the finishing touches on his letter to the Office of the Inspector General of the US Department of Health and Human Services, on December 25, 2011, the timing seemed perfect.
Nearly one year earlier – in November 2010 – the Office of the Inspector General had cast the issues of “preventable events” and “never events” into the public spotlight by releasing a report entitled “Adverse Events In Hospitals: National Incidence Among Medicare Beneficiaries.”
As the Office of the Inspector General’s online summary explains it:
Patients admitted to the hospital generally expect that the medical care they receive will improve their health, not worsen it. Unfortunately, that isn’t always the case. In some instances, patients are harmed as a result of their medical treatment. For example, a patient may contract an infection associated with the use of a catheter or experience a surgical complication. According to an OIG report, these types of events – termed “adverse events” – affect a significant portion of Medicare beneficiaries.
Using a random sample of Medicare beneficiaries discharged from hospitals during a 1-month period, OIG found that “13.5 percent experienced adverse events and that for 1.5 percent of beneficiaries, these adverse events contributed to their deaths.” An additional 13.5 percent of beneficiaries “experienced temporary harm as a result of their medical care, bringing the total percentage of beneficiaries experiencing instances of care-related harm to 27 percent.”
The report also revealed that 44 percent of the adverse or temporary harm events were preventable. Such startling numbers naturally attracted national news coverage, with Kelly Kennedy of USA Today explaining in an article that: “Hundreds of serious errors go unrecorded, the report found, because the inspectors who find problems at hospitals don’t tell the national agencies that accredit hospitals.”
Missouri’s Springfield News-Leader ran an article based on the report that cited a patient’s rights advocate as saying that when it comes down to the reporting of adverse medical events, “Basically, they’re swept under a rug.”
On June 01, 2011, the federal government let it be known in no uncertain terms that it was taking the matter seriously. The Centers for Medicare & Medicaid Services issued a press release announcing a new rule that would reduce or prohibit payments to doctors, hospitals, and other health care providers for services that result from certain preventable healthcare acquired illnesses or injuries.
As Kaiser Health News writer Phil Galewitz explained it:
Medicaid will stop paying for about two dozen “never events” in hospitals, such as operations on the wrong body part and certain surgical-site infections, federal officials said today.
Emily P. Walker, Washington Correspondent for MedPage Today elaborated on some of the new rule’s provisions, explaining the differences between events that are deemed “reasonably preventable” and those that are considered as “never events”:
The Medicaid list of what is preventable mirrors the Medicare list, which includes transfusing the wrong blood type; falls that result in dislocation, fractures, or head injuries; burns and electric shocks; catheter-associated urinary tract infections; surgical site infections after bariatric surgery or coronary artery bypass; and manifestations of poor glycemic control.
In addition, CMS has issued National Coverage Decisions stating that Medicare won’t pay for certain so-called “never events” — those which should never happen — including performing the wrong procedure; performing the procedure on the wrong body part, or performing the correct procedure, but on the wrong patient.
Dr. Padmanabhan painstakingly detailed a series of “never events” that not only had taken place in his own hospital, but went unreported as well. Because reporting procedures had been sidestepped, the result was that billings to the federal government necessarily involved fraudulent claims.
These events put patients lives at genuine risk, and Dr. Padmanabhan wouldn’t stand for that. Believing that the United States offered a system of checks and balances against fraud and corruption, he followed his conscience and filed reports – first through the chain of command, which found some of its links replaced along the way – and then to federal officials.
The Boston area lost two of its best neurologists as a result.
Dr. Padmanabhan is a Board-Certified Neurologist with a Ph.D. in Multiple Sclerosis who was subspecialty-trained in Neurology and Multiple Sclerosis in Boston at Tufts and Harvard. He is one of a small handful of people in the United States to have completed two fellowships in Multiple Sclerosis, making for a total of 4 years as a fellow following his training in residence in Neurology.
According to his Curriculum Vitae, his medical education began at Semmelweis University of Medicine, Budapest, Hungary, where he graduated as an MD summa cum laude in 1995.
In 2007, he was recruited to work in a hospital in Everett owned by the Cambridge Health Alliance, which is a trade name used by the Cambridge Public Health Commission.
Dr. Padmanabhan was such a well-liked physician that when he accepted his position with the Cambridge Health Alliance, of the 750 patients with Multiple Sclerosis that he was treating in in 2007, 250 of them chose to stay with him, even if it meant that they had to travel a greater distance to see him. That one-third of his patients would choose to travel, rather than be treated by another doctor, is, by any measure, a remarkable accomplishment.
A Professor of Neurology at Harvard and Chief of Neurology at the Cambridge Health Alliance at the time, Dr. Thomas Glick, recruited Dr. Padmanabhan to provide daily neurological care to the residents of Everett, Chelsea, Revere, Malden, and Winthrop, as at the time the facility serving their area, Whidden Hospital, lacked daily access to an in-house neurologist.
By that time Dr. Glick had distinguished himself as something of a pioneer in the area of providing quality patient care. He sought out new methods to improve the accuracy of the initial diagnosis, to improve radiological interpretations, as well as to improve the crucial doctor-patient relationship.
In 1997, Glick and colleagues published “Neurologic education for the future: a decade of curricular reform at Harvard Medical School,” which described a variety of methods that had been employed toward the end of attaining the two broad goals “of preparing for competency in neurologic clerkships and for career-long learning in clinically relevant neuroscience.” In this article, published in the European Journal of Neurology, Glick and colleagues reviewed the results over a decade of time, articulated “specific ways of elevating the level of intellectual inquiry, involving multi-disciplinary faculty more productively, and vertically integrating the learning experience through the years of medical school.”
By 2004 – long before “adverse events” and “never events” became industry buzzwords – Dr. Glick was frequently cited as an expert on providing high quality care by medical publications, including Neurology Today1
Dr. Glick’s “catchment area” (an industry term for area served) was federally designated as an Medically under-served Area, and was officially recognized as an economically poorer area as well. To Dr. Glick, bringing Dr. Padmanabhan on board meant providing a higher quality of medical care to an historically under-served population.2.
Indeed, many community residents today pride themselves on the quality of hospital care that they receive, seeing the Cambridge Health Alliance as one of the few tangible benefits that those among the more impoverished in the Cambridge may rely on. Saul Tannenbaum of NeighborMedia – Cambridge Community Television’s community service – notes in a recent article that over the last 30 years, the average income of a Cambridge resident had more than doubled, while the percent of the population living in poverty remained unchanged. Yet Cambridge lacks a formalized anti-poverty campaign. Tannenbaum explains:
A review of the City current budget, a 600 page document, shows that the word “poverty” appears nowhere. “Low income” appears 13 times, with multiple mentions of low income senior housing in Riverside, low income fuel assistance, and the Cambridge Health Alliance’s service to low income patients.
Much of the credit goes to Dr. Glick. As a June 2010 writeup on the annual inaugural Thomas H. Glick, MD, Lecture on Neurology explains it:
Over a span of nearly 40 years, Dr. Glick forged a resonant and memorable career, significantly impacting medical care in Cambridge and its surrounding communities. After graduating from Harvard Medical School and completing his residency at Massachusetts General Hospital, he joined the Cambridge Hospital in 1972 as Chief of Neurology and, two years later, was named Associate Director of the hospital’s Department of Medicine, a position he held for over 20 years.
In addition to establishing a reputation as one of the region’s leading neurologists, Dr. Glick exhibited a keen commitment to the community, co-founding the Cambridge Medical Care Foundation, whose mission is to improve the health of the people of Cambridge through research, education, and service. He also acted as a consulting neurologist at Massachusetts Institute of Technology Health Services and Harvard University Health Services for more than 30 years.
In 2007 through 2008, neither Dr. Padmanabhan nor Dr. Glick remotely suspected at that their ties to Cambridge were to be permanently severed.
THE SMOKING GUN
Dr. Padmanabhan distinguished himself as a professional early on. Within 8 months of joining the Cambridge Health Alliance, he was given the Quality Circle Award for Excellent Interpersonal Skills and Quality Care. He was selected by the nurses at the facility, and the Award was signed by the CEO.
p>Dr. Padmanabhan worked long and hard to attain his status, and he had little tolerance for incompetence when it came to the treatment of his patients. To the extent that a “problem” arose during his tenure, it all came to the boiling point when he brought to Dr Glick’s attention “severe problems with the way Dr. Carol Hulka’s Radiology Department was handling MRI brain scans.”
On May 12, 2008, Dr. Glick sent Dr. Padmanabhan an e-mail congratulating him for the fine work he’d performed in ferreting out this particular problem by preserving and comparing e-mails between departments. Dr. Glick’s reply to Padmanabhan’s e-mail report exclaimed, “Now you have a smoking gun, nicely documented.”
The message concerned one of a series of scans where Padmanabhan had proven that “the official Radiology Report had little to do with the actual scan, meaning a generic template was issued rather than a report specific to what the patient’s scan actually revealed.”
Dr. Padmanabhan had documented an ongoing pattern of generic MRI reports that had little diagnostic value – if indeed any at all. These were a critical part of the diagnostic process.
FORCED TO RETIRE
In 2009, Dr. Glick informed Dr. Padmanabhan that he was being pushed to retire and that a new Chief would be appointed. Dr. Rachel Nardin was brought in from the Beth Israel Deaconess Medical Center in August 2009, and by December she had been elevated to the role of Chief of Neurology at Cambridge Health Alliance. Padmanabhan explains what happened thereafter:
I continued to discover serious errors in the quality of care delivered to the historically under-served patients in CHA’s catchment area as well as official reports from Dr Carol Hulka’s Radiology Department which had no connection to reality.
I raised this matter with the new Chief, Dr. Rachel Nardin, who informed me that Dr Carol Hulka’s Radiology Department were completely professional and that it was I who did not know how to read MRI brain scans. Dr. Nardin also stated that she did not think I knew anything about MS given that I come from India, where MS is thought to be uncommon (though with the spread of MRI we now know that is not true).
Dr. Nardin also declared that diagnosing patients early with MS increased healthcare costs to the system as the patients were then on treatment for longer and that I was wrong to focus on the individual patient rather than on the greater good to society.
THE NEVER EVENT
In May of 2010, one of Dr. Padmanabhan’s patients with a diagnosis of MS was brought in via ambulance to the Cambridge Hospital ER with paralysis of his right leg and right arm. “He was still able to speak and clearly told the ER team that he had MS, this was his third major attack and that they should call me at once,” Dr. Padmanabhan explains. What happened then is shocking:
CHA’s ER team called Dr. Nardin instead who told my patient that as a Third World doctor I did not know anything about MS, that I had misdiagnosed MS, that in reality he had had repeated strokes all along, that he was in the middle of one now and that she was going to administer tPA to dissolve the clot. My patient was stunned to hear all this and asked her if she was sure. Dr Nardin told him that she knew what she was doing as she had gotten her MD from Harvard. By this time the attack had worsened and my patient was unable to speak clearly.
Despite the fact that the electronic medical record system at CHA clearly documented that he has MS, despite the fact that the MRI done at the time proved that he had not suffered an acute embolic stroke and in conscious contravention of NIH Guidelines, Dr Nardin gave him intravenous tPA which, him being a patient in the midst of a massive MS attack, exposed him to a high risk of death from bleeding within the brain.
Luckily for my patient he was immediately transferred to Massachusetts General Hospital where the tPA was stopped and he was begun on steroids for his MS attack. An MRI repeated at MGH again failed to show a fresh embolic stroke.
“I asked that this event, classified by the Joint Commission and the National Quality Forum as a ‘Never Event,’ meaning one that should never ever happen just as chopping off the wrong leg or operating on the wrong eye, be formally reviewed by CHA’s Morbidity and Mortality Committee,” he explains.3.
As Dr. Padmanabhan’s explains it, “They did not. This ‘Never Event’ was never reported to the Joint Commission or the Massachusetts Department of Public Health or the Board of Registration in Medicine.”
In August 2010, Dr. Padmanabhan once again documented evidence of what he describes as an “egregious case” involving Dr. Carol Hulka’s Radiology Department. In this case, the MRI staffers “had not even viewed a middle-aged black gentleman’s MRI brain scan before issuing a report.” Padmanabhan explains:
I proved again that the reports were deliberately generic and simply went by the patients’ age group. They are not specific to the patient being scanned. The radiologist who signed the report confessed in writing that he did not even eye-ball the entire scan, exactly what I had been alleging for 3 years.
Dr. Padmanabhan brought this error to the attention of Dr. Carol Hulka directly. “I pointed out that issuing a report that had nothing to do with the patient condemned him to an entirely preventable decline and death even though treatment was available for his real diagnosis, just like the black men in the Tuskegee Syphilis Study,” he explains.
The e-mail that Dr. Padmanabhan sent to Dr. Hulka was preserved for the record, along with related evidence of the continuing problems with the hospital’s MRI staff.
Once again, this qualified as a “Never Event” as defined by the National Quality Forum, the Joint Commission and the Federal Agency for Healthcare Research and Quality, according to Dr. Padmanabhan.
Dr. Carol Hulka responded to these legitimate complaints with an e-mail addressed to the leadership at CHA, including Chief Medical Officer Gerald Steinberg, suggesting that he be retaliated against using the excuse of “disruptive behavior.”
As it turned out, the Medical Executive Committee had summarily suspended his privileges some days earlier, on November 9. This followed immediately upon the Medical Executive Committee receiving a Request for Corrective Action from Dr. Nardin.
According to the official meeting record, the meeting lasted a total of 29 minutes, during which Dr. Padmanabhan’s was one of three cases discussed.
The record reflects that Dr. David Bor, Chief of Medicine, presented the request for corrective action to the Committee, and that Dr. Rachel Nardin, as Chief of Neurology, also participated in what is described as a “presentation” to the Committee.
The record also reflects that following the presentation, the Medical Executive Committee “voted to summarily suspend Dr. 3835 from the medical staff and recommend termination of medical staff membership.”
The Medical Executive Committee did not investigate at all, and there was no Peer Review process provided. Neither was the doctor provided with notice of the meeting, or a meaningful opportunity to defend his position. That notice of a hearing and the opportunity to be heard “must be granted at a meaningful time and in a meaningful manner” to satisfy due process did not appear to matter to the Medical Executive Committee.4.
The Medical Executive Committee apparently did not feel compelled to implement the discharge for an additional 48 hours, during which time the ostensibly “dangerous” Dr. Padmanabhan provided care for about 30 patients at the Hospital.
THE FAIR HEARING
Dr. Padmanabhan requested a Fair Hearing, which was scheduled to take place on January 5th, 2011. This presented an obvious problem, as the letter that was hand-delivered to the doctor informing him that he’d been fired listed December 27th, 2010 as his last day of employment. As a result, his work visa would require that he leave the country before the Fair Hearing could even be held.
His attorney, however, managed to convince his employer to declare that his status as a CHA employee would continue until the end of January 2011, by which time the Fair Hearing process would be complete.
To be sure, the CHA let it be known that allowing him to remain in the same country that his hearing was set to be held in was a concession that it had reluctantly meted out. CHA stated in a letter that the end of the Fair Hearing in January 2011 would be the end of the evidentiary process affiliated with this summary suspension.
The Fair Hearing Committee heard extensive testimony taken under oath, and examined the evidence on January 5th, 6th and 24th. These hearings were conducted with a Hearing Officer, a Court Reporter, as well as sworn testimony from expert witnesses.
Cambridge’s Chief Dr. David Bor conceded on the record that though his care meets the Board’s standard, he personally wishes to throw him out of medicine completely and permanently
According to procedures outlined in the legally-binding Fair Hearing Plan, the Committee had 30 days to issue its Report. It did so precisely 30 days later, on February 24th, 2011. The Committee declared that there was no credible evidence to support Dr. Padmanabhan’s permanent termination from the medical staff at CHA.
One may well imagine that this result would provide the end of the story, but Dr. Padmanabhan’s opponents were determined to do everything in their power to rid themselves of the “disruptive” physician.
The Fair Hearing Plan specified a chronological series of steps that should be followed from beginning to end with clear and mandatory deadlines. Dr. Padmanabhan filed a timely Request for Appellate Review by the Board of Trustees, as that step was clearly specified in the legally-binding Fair Hearing Plan. He did so within the 10 day window allowed after the release of the Fair Hearing Committee’s Report. Although no decision is final until a Review by the Board of Trustees takes place, as of August 2014, the Board of Trustees has yet to hear the case.
THE HIRED GUNS
Determined to prevail at any cost, the Cambridge Health Alliance hired The Greeley Company in July of 2011 to produce an anonymously-authored report in support of its position against Dr. Padmanabhan.
The Greeley Group provides a wide array of services to hospitals. A 2003 press release entitled “HCPro and Kroll Launch Physician Screening Services, Worldwide Background Investigations of Physicians and Allied Health Professionals” provides this morsel of information concerning the development of The Greeley Company. “Hugh Greeley, an expert on medical staff issues and the founder of HCPro’s consulting division, The Greeley Company, spearheaded the development of Physician Screening Services. Greeley has been a faculty member in more than 2,500 seminars on the subjects of credentialing, medical staff organization, quality improvement, trustee responsibility, antitrust, accreditation, and other related subjects.”
The Greeley Company’s products come at a price. For example, on February 27, 2014, the Riverside County Board of Supervisors approved a request for $115,0000 payable to the Company for the Riverside County Regional Medical Center so that it could attain complete compliance for purposes of drawing down federal Medicaid reimbursements.
Similarly, on January 14, 2012, Santa Clara County entered into a 33-page contract with The Greeley Company to provide similar services for the Santa Clara County Medical Center. One year latter, the County Board of Supervisors ratified an agreement with Greeley for a sum not to exceed $200,000 for work performed from December 14, 2012 through June 11, 2013.5.
In addition to polishing paperwork to ensure near-complete Medicaid compliance – one form of federal revenue maximization – the Greeley Company offers a broad array of services to the medical profession. Among them is “outside peer review,” an area that has resulted in litigation in the courts.6.
In Klaine v. Southern Illinois Hospital Services, 2014 IL App (5th) 130356 – a case posted in August 2014 – an Illinois Appellate court described the Company’s role in the case, writing: “According to affidavits contained in the record, the Greeley Company is a medical consulting company that the defendant retains to conduct external peer reviews of its physicians when it is deemed appropriate by the defendant’s medical staff quality oversight committee or other committees.”
By no means does Greeley have a corner on the market. The medical industry is huge, and offers many opportunities for those entrepreneurs seeking to carve out a lucrative niche for themselves. The National Peer Review Corporation proudly boasts of being “Specialists in External Medical Peer Review.” The company markets itself through trade shows and seminars, and it provides glossy handouts describing their services. Among their handouts is the 28-page “Hospital Peer Review Guide III: Handling the Disruptive Physician.”
SHAM PEER REVIEWS
As the 2008 study “Comprehensive Study of Peer Review in California: Final Report” explains:
It is not surprising that the question of whether peer review and restriction of hospital privileges are used to exclude “undesirables” remains. The phrases “sham peer review” or “peer review injustice” refer to the use of the peer review process to eliminate “mavericks, whistleblowers, rivals, and nonconformists.”7.
The problem became so widespread that the Center for Peer Review Justice was formed to assist physicians who may find themselves targeted by a hospital for being “disruptive” enough to blow a whistle. As the Center explains, the odds strongly favor the proverbial house over the physician:
Sham peer review is routinely used by hospital corporations and is currently at epidemic proportions. We know of many outstanding, good, ethical physicians who are currently no longer practicing his profession and support their families. Corporations use lawyers, the physician’s personal enemies and economic competitors, and even legislators and law enforcement officials to help them in this bastardization of the peer review process. Sham peer reviewers are often successful if their financial resources dwarf the monetary resources of the physician they are trying to destroy.
Even in those instances in which physicians take their appeal outside of the administrative process and into the courts, they very seldom prevail.8.
As Lawrence R. Huntoon, M.D., Ph.D., F.A.A.N., Chairman, Association of American Physicians and Surgeons Committee to Combat Sham Peer Review rather succinctly explains it:
Ladies and gentleman we have a serious epidemic in our nation today. It isn’t the swine flu and it isn’t mad cow disease. It is neither bacterium nor virus. It is a disease of moral character that has infected too many of our hospitals and physicians. It is an insidious and spreading evil which threatens to destroy not only the integrity of the medical profession but quality care for all patients.
This spreading evil is known as sham peer review. And, I am here to tell you that it is eliminating some of the most competent, ethical and caring physicians from our hospitals.
Huntoon further explains: “Although thousands of patients die every year from preventable errors which occur in hospitals, many physicians today are afraid to come forward to report problems in hospitals out of fear that their careers will be ended by a retaliatory sham peer review. Fewer and fewer physicians are willing to risk their career and livelihood to protect patients in hospitals. It is easier and far safer for physicians to simply look the other way and remain silent.”
The service of outside peer review is not without its fair share of vocal critics. Writing in Medscape Multispecialty, Charles Bond, Esq. explains:
There is an epidemic of sham peer review sweeping the country. The pattern is hard to see because it crops up individually in the confidential setting of medical staff committees from hospital to hospital, but the incidence and severity are increasing at such alarming rates that it is undeniable that the peer-review system, originally meant to resolve quality problems in a collegial and confidential manner, is being converted into a weapon to shatter the careers of targeted physicians.
Sham peer review is characterized by Draconian discipline — usually summarily imposed — that is founded upon little or no basis in fact. Often, charges are based on nebulous “psychological” or personality issues — eg, the so-called “disruptive physician.” Notably, a major national hospital law firm is now featuring a seminar for medical staffs on how to distinguish “whistleblowers” from “disruptive physicians.” The fact that they link advocacy for good patient care and hospital discipline in the same seminar speaks volumes.
“Summary suspension or revocation of privileges is like firing an employee without notice: It is a means of intimidation through a direct threat to the doctor’s livelihood. Hospital and hospital lawyers know that sham peer review can be economically devastating to the targeted physician — both from loss of hospital admitting privileges and from the inevitable damage to the doctor’s reputation,” Bond explains.
Bond notes that it is not coincidental that this “sham peer review epidemic” is accompanied by a resurgence of economic credentialing, that is the use of selection criteria for medical staff membership related to the hospital’s financial well-being rather than to the physician’s qualifications. Those who control review panels at medical facilities are wined and dined by the private companies. As Bond explains it:
Medical staff leaders are being bundled up and shipped off to retreats at fancy resorts to hear hospital lawyers such as Horty Springer & Mattern and consultants such as the Greeley Company espouse these policies that are unmistakably designed to advance the strategic objectives of hospitals.
While the executives at the Cambridge Health Alliance may not have been shipped off to a fancy resort, they knew just who to call when the going got rough. CHA hired The Greeley Company to produce an anonymous “peer review” report, knowing full well that it was within Greeley’s field of expertise to produce a damaging document with the trappings of detached and professional neutrality. Dr. Padmanabhan was now in the position of having to defend himself against an accuser that he could neither confront nor cross examine.
The Cambridge Health Alliance had already circumvented his due process rights both substantive and procedural under the Fourth and Fourteenth Amendments, so why the heck not just go for broke and eliminate the confrontation clause under the Six Amendment as well?
But there is more. The Cambridge Health Alliance knowingly misrepresented both to the Board of Registration in Medicine and to the United States that Dr. Padmanabhan had “voluntarily resigned” his privileges at CHA in October of 2011. This is reflected in his online publicly accessible database entry for disciplinary actions against doctors in the Commonwealth of Massachusetts.
THE INCREDIBLE VANISHING AUDIT
The system has other ways of making life difficult for whistleblowers. Imagine the delight in opening an envelope only to find an audit request from the Provider Compliance Office of MassHealth, the agency that administers Medicaid in the state of Massachusetts. Imagine also having to provide “complete copies of your medical records, including but not limited to progress notes, orders, prescriptions, and certificates of medical necessity for durable medical equipment, orthotics, and/or incontinence supplies” for a specified list of patients spanning the period of January 1, 2008 through October 31, 2009. Imagine also having to provide this information within 15 days of the date on the letter, which in this case was November 7, 2011.
Now, try to imagine what your chances of making it go away simply by writing a letter informing the agency that it “would be terribly unseemly and illegal for MassHealth to be seen as assisting CHA in retaliating against a physician who proved repeated cases of substandard care and insurance fraud at a publicly-funded hospital that claims millions in tax support by professing a great commitment to improving healthcare quality.”
The audit went away. Imagine that. Sometimes the truth actually does prevail, although I find myself inclined to believe that it did so only because retreat under this particular set of circumstances was strategically the sound course of action to take.
It bears mention that on June 01, 2011, the Patrick administration appointed Dr. Julian Harris as Director of the Office of Medicaid. At that time, according to a press release, Harris “currently practices primary care at the Southern Jamaica Plain Community Health Center and hospitalist medicine at the Cambridge Health Alliance, both of which serve populations with high levels of participation in MassHealth and other state health programs.”
To describe Julian Harris as being well-connected would be something of an understatement; he also formerly served at the World Bank, as well as having “worked on national health payment and delivery system reform for an international client at McKinsey & Company.”9
“By reporting this egregious malpractice towards this patient I automatically qualified for statutory protection under MGL Chapter 149 Section 187,” he explains, adding that according to public records requests made of the Commonwealth Attorney’s Office, the Office had never sought to enforce the whistleblowing protection law.
A letter from the Attorney General’s Office would clearly appear to indicate that throughout the entirety of Martha Coakley’s term in office, not so much as a single record could be produced to indicate that a prosecution had been brought by her office for violations of the whistle-blowing statutes.
Almost exactly one year after the good doctor had sent off his detailed letter of complaint to the Office of Inspector General, some measure of vindication arrived in the form of a press release from John Hopkins University that provided details about the first-of-its-kind analysis of malpractice claims, laying bare for all to the see true extent of the problem; surgical “never events” occur at least 4,000 times per year in these United States. As the release explains:
After a cautious and rigorous analysis of national malpractice claims, Johns Hopkins patient safety researchers estimate that a surgeon in the United States leaves a foreign object such as a sponge or a towel inside a patient’s body after an operation 39 times a week, performs the wrong procedure on a patient 20 times a week and operates on the wrong body site 20 times a week.
The researchers, reporting online in the journal Surgery, say they estimate that 80,000 of these so-called “never events” occurred in American hospitals between 1990 and 2010 – and believe their estimates are likely on the low side.
Things are likely to get worse before they get any better, as the private consulting industry continues to emphasize technical compliance for purposes of federal revenue enhancement over patient safety, and as the large corporations that have come to own and manage so many hospitals continue to put revenue maximization before quality of care. To the extent that some cost containment measures may be necessary, when the deliberate failure to provide an accurate diagnosis serves as the means toward attaining that end, the system is clearly in need of repair. When MRI technicians – central to the diagnostic process – are encouraged to produce generic, cookie-cutter reports that lack diagnostic specificity, the system is in need of a major overhaul.
Dr. Padmanabhan reported these events in detail, extending himself so far as to write the Office of the Inspector General of the US Department of Health and Human Services. What do you suppose may have come of that effort?
On February 3, 2012, Jennifer Trussell, Acting Director of the Investigative Branch of OIG, sent the good doctor a letter on HHS letterhead informing him that his concerns should first be addressed to the regional office of the Centers for Medicare and Medicaid Services in Boston.
As for the allegations of fiscal improprieties, he was assured that his concerns would be forwarded to the CMS Boston Regional Office for further review.
Trussell closed out her letter, writing, “We are deeply committed to ensuring the integrity and effectiveness of all the programs of HHS and would like to thank you for bringing this matter to our attention.”
Dr. Padmanabhan tried his best to work through the regional offices, but it was to no avail. He describes an encounter with an FBI agent whose “voice quivered when he informed me that Boston CMS, to whom he deferred on healthcare fraud investigations, had decided there was no point in pursuing my allegations.”
“It was an interesting experience to chase after an FBI Agent and have him run away from you,” he added.
I’m sure that must indeed have been a very interesting experience. In any event, no agency offered any protections whatsoever to this whistleblower.
There is some modest hope that things may eventually improve. In Fahlen v. Sutter Central Valley Hospitals, the California Supreme Court recently ruled:
1. A physician is not required to first exhaust his administrative remedies through the medical appeals process in order to challenge a sham peer review as whistleblower retaliation; and
2. The doctor qualified as a whistleblower for purposes of the California Whistleblower Act.
As Michael Cassidy explains on the JDSUPRA Business Advisor’s Med Law Blog: “The California Medical Association and attorneys for physicians have hailed this decision as a landmark victory, allowing physicians to seek whistleblower protection against sham peer review, before exhausting their administrative remedies. Requiring the physician to prevail at a medical staff proceeding not only significantly delayed the opportunity to seek protection and risked irreversible damages to a physicians career, requiring the physician to actually prevail also stacked the deck against the physicians because medical staff hearings are not the most neutral venues for physicians.”
In July 2013, the California Medical Association and the American Medical Association together filed a legal brief in support of the doctor arguing that there is a “continuing great need to have whistleblower protections for medical staff physicians who face adverse peer review decisions.”
That the American Medical Association has taken a clear stand on this issue is certainly a promising development.
FALSE CLAIMS ACT
An increasing number of physicians are familiar with the problem of retaliation, and are turning to the whistleblower protections offered by the False Claims Act.
The law firm of Crowell & Moring LLP maintains a very comprehensive list of False Claims Act settlement dating from 2000 through the present. Even a cursory look at the list reveals that the category of health care provides the substantial majority of the cases.
Among the more recent settlements is an Alabama case. On July 21, 2014, the U.S. Justice Department announced that Alabama Hospital System and Physician Group agreed to pay $24.5 million to settle a lawsuit alleging illegal Medicare referrals.
The lawsuit was originally filed by Dr. Christian Heesch, a physician formerly employed by Diagnostic Physicians Group P.C. The False Claims Act authorizes private parties to sue on behalf of the United States and to receive a portion of any recovery. The act permits the United States to intervene and take over the lawsuit, as it did in this case with respect to some of Dr. Heesch’s allegations. Dr. Heesch will receive $4.41 million as his share of the settlement.
“Today’s settlement represents a single but significant step towards achieving integrity in the administration of public health programs in this region,” said U.S. Attorney Kenyen Brown for the Southern District of Alabama in a prepared release. “Physicians, physician groups and other medical entities operating illegally within public health programs will be held accountable. I also commend whistle blowers like Dr. Christian Heesch, who helped bring this particular case to light.”
On August 5, 2014, The Charlotte Observer ran a headline story entitled: “National hospital chain settles whistleblower lawsuits for $98 million.”
“The nation’s largest operator of acute care hospitals has agreed to pay $98.15 million to resolve seven whistleblower lawsuits, including one by the former medical director of the emergency department at Lake Norman Regional Medical Center in Mooresville,” the Observer explains.
The government contended that Community Health Systems, a company that has 206 affiliated hospitals spread out over 29 states, engaged in “a deliberate, corporate-driven scheme” to increase inpatient admissions of Medicare, Medicaid and Department of Defense TRICARE program beneficiaries at its hospitals.
In 2010, Dr. Thomas Mason and Dr. Steven Folstad filed their lawsuit in U.S. District Court in Charlotte against Lake Norman Regional Medical Center, Davis Regional Medical Center and the then-owner of the hospitals, Health Management Associates of Naples, Fla. The doctors claimed their group’s longstanding contracts to provide emergency care at the hospitals were terminated in 2010 because they refused to accept “illegal cash inducements” and resisted pressure to meet “corporate benchmarks” to maximize profits.
On August 8, 2014, South Carolina’s The Island Packet reported that a former Hilton Head Hospital executive pleaded guilty to federal charges stemming from an alleged scheme to pay kickbacks and increase Medicaid reimbursements.
The accusations stem from a “whistleblower” lawsuit that contended that the prenatal clinic, Clinica de la Mama, “was paid to refer clients to Hilton Head Hospital and four Georgia hospitals for Medicaid-paid deliveries,” the article reports.
For over two years, the caring and compassionate Dr. Padmanabhan has been treating his patients without charge. Just how he manages to afford this without the benefit of the paying job that he should have eludes me. What does not elude me about him is the immense depth of his compassion for the afflicted patients that he has the ability to heal. I am convinced that given a choice between the riches that a successful False Claims Act filing may bestow on him, and the opportunity to find the means of just getting by on a day-to-day basis while being allowed to continue to heal, he would choose and humbly accept the later of these two paths as the one that he is called to follow.
Professor Glick stayed on board until the last of the fair hearings, and he used the occasion to take the resignation that was being pushed on him as a meaningful opportunity to resign in protest over his colleague’s maltreatment. After 40 years of service to the community, he announced that he was turning in his beeper.
While the last of the Fair Hearings took place on January 24th of 2011, Rachel Nardin had Professor Glick’s name removed from the hospital’s web site on November 11, 2010 – the very same day that Dr. Padmanabhan was physically ejected from his office. Such was her level of confidence in Professor Glick’s eventual departure.
The kind gesture of backing his colleague until the final hour came from a highly-respected man who built the neurology department from the ground up. His days were numbered by neither ill-health or fatigue. Rather, he had become something of an anachronism; a living remnant of a bygone era in which providing optimal health care for the afflicted was not so much an avocation as it was a calling.
In May 2013, the Boston Business Journal reported that “Cambridge Health Alliance and Beth Israel Deaconess Medical Center have inked an agreement to affiliate in a deal that will give the financially troubled community hospital operator a deep-pocketed partner, in exchange for access to the alliance’s network of hospitals and health care centers.” Reporter Galen Moore explains that the deal had been in the works since at least October of 2012.
On July 29, 2013, the United States Attorney’s Office announced in a prepared release that Beth Israel Deaconess Medical Center had agreed to pay $5.3 million to resolve improper Medicare claims. The payment to the United States was “to settle allegations that it violated the False Claims Act by billing Medicare for inpatient admissions that should have been billed as lower reimbursed outpatient or observation services.
Beth Israel Medical Center is no stranger to legal actions under the False Claims Act. In June 2004, the Boston Business Journal reported that Harvard University and Beth Israel Deaconess Medical Center have agreed to pay $2,404,270 to settle allegations that false claims were made to the National Institutes of Health in connection with four federal grants.
In October 2002, the Boston Business Journal reported that “Beth Israel Deaconess Medical Center, a Boston teaching hospital for Harvard Medical School, agreed last week to pay $3.2 million to settle charges that it improperly billed Medicare for medical procedures involving experimental cardiac devices.”
According to an article in False Claims Act and Qui Tam Quarterly Review, in April 1999, Beth Israel Deaconess Medical Center agreed to pay the Government $920,000 to settle a False Claims suit alleging that it knowingly accepted federal research funds in violation of the terms of its grant.
The new breed is in charge at Whidden Hospital today. This new breed holds among its unique abilities the fine arts of cost containment, triage based on ability to pay, diagnosis meted out on what insurance companies may bear, and, to be sure, the art and craft of federal revenue maximization.
Dr. Padmanabhan awaits the day the justice will ultimately prevail. Imagine the disillusionment that follows the realization that the great nation to which you traveled on the promises of justice and equality for all had slowly faded away, only to be replaced by a new kind of accountability that is measured only in terms of the dollars and cents that it can produce. Imagine learning that the skills you’d worked so very hard to hone and polish don’t fit the latest computer-generated cost containment model.
Add to that mix the realization that due process has become so very expensive a commodity in these United States that not even doctors can afford it anymore.
1. See Glick, Thomas H. “Malpractice claims: Outcome evidence to guide neurologic education?” Neurology 56, no. 8 (2001): 1099-1100. See also Laino, Charlene. “More Open Communication Needed to Avoid Preventable Errors.” Neurology Today 4, no. 8 (2004): 27 (Dr. Glick commenting at length on study concerning error prevention); Avitzur, Orly. “Understanding Our Risks: What We Can Learn From Medical Malpractice Data Involving Neurologists.” Neurology Today 4, no. 9 (2004): 42-47 (Dr. Glick commenting at length on findings by the Physician Insurers Association of America); Johnston, James C. “Preventing Malpractice Claims.” Neurology Today 4, no. 11 (2004): 3 (Noting that Dr. Glick “suggests more second opinions and more imaging studies for the most prevalent neurological misadventure – diagnostic error”); Avitzur, Orly. “Why An Apology Goes A Long Way When Medical Errors Occur.” Neurology Today 6, no. 22 (2006): 16-19 (“If patient-centeredness is to be taken seriously, it has to include openness on all issues to the extent that a sensitive mutual appraisal of patient and family preferences permits”); Glick, Thomas H., Lee D. Cranberg, Robert B. Hanscom, and Luke Sato. “Neurologic patient safety: an in-depth study of malpractice claims.” Neurology 65, no. 8 (2005): 1284-1286. Glick, Thomas H., Matthew Rizzo, Barney J. Stern, and Daniel M. Feinberg. “Neurologists for patient safety Where we stand, time to deliver.” Neurology 67, no. 12 (2006): 2119-2123.
2. That economically disadvantaged areas generally endure a lower quality of health care is beyond dispute. For a comprehensive analysis of this and the related issues, see David Mechanic, “Disadvantage, Inequality, And Social Policy.” Health Affairs, 21, no.2 (2002):48-59.
3. The National Quality Forum “is a not-for-profit, nonpartisan, membership-based organization that works to catalyze improvements in healthcare.” The organization’s more relevant publications would include “Serious Reportable Events in Healthcare – 2006 Update,” March 2007; “Safe Practices for Better Healthcare – 2010 Update,” April 2010; “Serious Reportable Events in Healthcare 2011,” December 2011; and “National Voluntary Consensus Standards for Patient Safety: A Consensus Report,” March 2012. The Joint Commission is an independent, not-for-profit organization that accredits and certifies more than 20,500 health care organizations and programs in the United States. The Joint Commission’s stated mission is: “To 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.”
4. Armstrong v. Manzo, 380 U.S. 545 (1965). See also Mathews v. Eldridge, 424 U.S. 319 (1976) (“Parties whose rights are to be affected are entitled to be heard”); Grannis v. Ordean, 234 U. S. 385 (1914) (“The fundamental requisite of due process of law is the opportunity to be heard”); Goldberg v. Kelly, 397 U.S. 254 (1970) (“In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses”). See also Karen J. Kruger. “When Does an Employment Disciplinary Action Violate the Fourteenth Amendment’s Protection of the Liberty Interest?,” The Police Chief. March 2008; Gene A. Blumenreich, JD. “Due Process,” AAMA Journal. American Association of Nurse Anesthetists, December 2003. (Examining case law specific to employment in medical settings); Katharine Van Tassel, “Hospital peer review standards and due process: moving from tort doctrine toward contract principles based on clinical practice guidelines.” Seton Hall Law Review 36 (2005): 1179.
5. According to Santa Clara’s agreement of January 15, 2013, “The company serves provider clients in all 50 states, and has served over 500 clients within the past year alone.” The company appears to be doing well enough in California alone, and it appears to experience no difficulty in renewing contracts from one year to the next. For example, the Contra Costa County Board of Supervisors approved a request to pay Greeley “an amount not to exceed $350,000 to provide consultation services with regard to regulatory compliance at Contra Costa Regional Medical Center and Contra Costa Health Centers, for the period from July 1, 2010 through June 30, 2011.” A year later, the Board of Supervisors agreed to pay Greeley “an amount not to exceed $375,000 to provide consultation services with regard to regulatory compliance on-site nursing management and data analysis at Contra Costa Regional Medical Center and Contra Costa Health Centers, for the period from July 1, 2011 through June 30, 2012.” On July 28, 2014, the Contra Costa County Board had an agenda item that would allow “the Health Services Director, or designee, to execute an contract amendment with The Greeley Company, Inc., effective August 31, 2014, to increase the payment limit by $149,800 to a new total payment limit of $244,800, to provide additional consultation services to Contra Costa Regional Medical Center and Contra Costa Health Centers, and extend the term from September 1, 2014 through March 31, 2015.”
6. See for example Talwar v. Catholic Healthcare Partners, et al., US District Court, N.D. Ohio, Western Division. Case No. 3:05 CV 7437, (Mem. Op. December 6, 2006) (St. Rita’s Medical Center Medical Executive Committee hired third-party Greeley Company “to review Plaintiff’s entire practice”); Patrick v. Floyd Med. Center, 255 Ga.App. 435, 565 S.E.2d 491 (2002) (Surgery Quality Assurance Committee unanimously recommended that doctor “be denied staff privileges upon chart reviews of patient case files performed internally and externally by the Greeley Company”); Williams v. University Medical Center of Southern Nevada, 688 F.Supp.2d 1111 (D.Nev.2010) (Greeley Company produced an external peer report reviewing incident with patient); Sahlolbei v. Providence Healthcare, Inc., 112 Cal.App.4th 1137 (2003) (“The Greeley report identified possible problems with some of plaintiff’s cases but stopped short of recommending any action against him”); Gordon v. Lewistown Hosp., 714 A.2d 539 (Pa. Cmwlth. 1998) (noting “that the hospital also submitted an expert witness affidavit in this regard, that of Hugh Payne Greeley, chairman of The Greeley Company, a private hospital/medical staff consulting firm”).
7. Lumetra. “Comprehensive Study of Peer Review in California: Final Report.” July 31, 2008. p.8. See also Huntoon, Lawrence R. “The psychology of sham peer review.” Journal of American Physicians and Surgeons 12, no. 1 (2007): 3; Edwards, Marc T. “The objective impact of clinical peer review on hospital quality and safety.” American Journal of Medical Quality 26, no. 2 (2011): 110-119; Lauth, Leigh Ann. “The Patient Safety and Quality Improvement Act of 2005: An Invitation for Sham Peer Review in the Health Care Setting.” Indiana Health Law Review. 4 (2007): 151; Rosen, Pauline Martin. “Medical Staff Peer Review: Qualifying the Qualified Privilege Provision.” Loyota Law Review 27 (1993): 357.
8. See Yarnell v. Sisters of St. Francis Health Servs., et al., 446 N.E.2d 359 (Ind. 1983); Ladenheim v. Union County Hospital District, 394 N.E.2d 770 (1979); Kiracofe v. Reid Mem. Hosp., 461 N.E.2d 1134 (Ind. 1984); Bryan V. James E. Holmes Reg’l. Med. Ctr., 33 F.3d 1318 (11th Cir. 1994); Manasara v. St. Francis Med. Ctr., Inc., 764 So.2d 295 (La. Ct. App. 2000); Landefield v. Marion Gen. Hosp., 994 F.2d 1178 (6th Cir. 1993); Cipriotti v. Board of Directors of Northridge Hosp., 147 Cal. App. 3d 144, 148; 196 Cal. Rptr. 367, 368 (1983); Morgan v. Peace Health, Inc., 14 P.3d 773 (Wash. Ct. App. 2000); Nieto v. Kapoor, 268 F. 3d 1208 (10th Cir. 2001); Gordon v. Lewistown Hosp., 423 F.3d 184 (3rd Cir. 2005); Brader v. Allegheny Gen. Hosp., 167 F.3d 832 (3d Cir. 1999); Robbins v. Ong, et al., 452 F. Supp. 110 (D. Ga. 1978); Catipay v. Humility of Mary Health Partners, No. 2005-T-0030 (Ohio Ct. App. Mar. 31, 2006); Curtsinger v. HCA Inc.,, No. M2006-00590-COA-R3-CV (Tenn. Ct. App. Apr. 27, 2007); Blau v. Northridge Hospital Medical Center, No. A111845 (Cal. Ct. App. Aug. 22, 2007); Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116 (9th Cir. 2008); Gekas, M.D. v. Seton Corporation, No. 04-2185-IV (Tenn Ct. App. March 28, 2008); Arunasalam v. St. Mary Med. Ctr., No. E044186 (Cal. Ct. App. Feb. 27, 2009); Pourzia v. St. Mary Med. Ctr., No. B207394 (Cal. Ct. App. June 29, 2009); Straznicky v. Desert Springs Hosp., No. 2:09-cv-00731-LDG (RJJ) (D. Nev. July 1, 2009); Leal v. Secretary, U.S. Department of Health and Human Services, 2010 WL 3667020 (11th Cir. September 22, 2010); Guier v. Teton County Hosp. Dist., No. S-09-0259 (Wyo. Feb. 24, 2011); Sternberg v. Nanticoke Mem’l Hosp., Inc., No. 47, 2010, C.A. No. 07C-10-011 (Del. Mar. 15, 2011); Jablonsky v. Sierra Kings Healthcare Dist., No. CV F 06-1299 AWI GSA (E.D. Cal. July 15, 2011); Welchlin v. Fairmont Med. Ctr., A10-2295 (Minn. Ct. App. July 25, 2011); Mahmoodian v. United Hosp. Ctr. 404 S.E.2d 750 (W. Va. 1991); Silver v. The Queen’s Hospital 629 P.2d 1116 (Haw. 1981); Miller v. Eisenhower Medical Center, 614 P.2d 258 (Cal 1980).
9. On March 12, 2013, the White House issued a press release announcing that Dr. Julian Harris was among the appointees for Membership on the Commission on Long-Term Care. For a fascinating read on McKinsey & Company see John Huey, Joyce E. Davis, and Jane Furth, “How McKinsey Does It.” Fortune. (November 1, 1993). See also Andrew Hill, “Inside McKinsey,” Financial Times (November 25, 2011); The Observer, “The firm that built the house of Enron,” (March 23, 2002); John A. Byrne, “Inside McKinsey,” BusinessWeek (July 8, 2002)(“The bad news, however, is that Enron, which was paying McKinsey as much as $10 million in annual fees, is just one of an unusual number of embarrassing client failures for the elite consulting firm. Besides Enron, there’s Swiss-air, Kmart, and Global Crossing–all McKinsey clients that have filed for bankruptcy in relatively short order”); Edward Taylor and Andreas Cremer. “Unions force VW to axe consultants in clash over cost cuts – sources,” Reuters (August 7, 2014).