Doctors sue Yale over free expression

Three doctors who were professors at the School of Medicine in the 1990s say that Yale intimidated them when they alleged that cost-cutting measures at the school threatened patient safety.

And that intimidation, those doctors say, continues to this day.

Morton Burrell, Arthur Rosenfield and Robert Smith, who were all doctors at the Department of Diagnostic Radiology, claim in a lawsuit filed last year that members of the department, including Chairman Bruce McClennan, committed Medicare fraud and instituted practices that were potentially harmful to patients.

After speaking out against these practices, they claim McClennan and his colleagues retaliated against them by stripping their titles and issuing pay cuts. Complaints by the doctors to University administrators led to a medical school investigation that found no wrongdoing, and the doctors sued Yale.

Almost two years later, the plaintiffs are saying that whether their complaints were valid, they should not have been persecuted for voicing their concerns. This legal battle that has questioned Yale’s policies concerning freedom of expression now awaits trial in a Connecticut Superior Court.

Tension at the Radiology Department

Cost cutting became the mantra of hospitals in the ’90s, but Smith said he believes Yale went too far.

“We have no objection to trying to save money, but it should not be done beyond the point where patients could start to be harmed,” said Smith, now a professor at the Cornell Graduate School of Medical Sciences.

Smith said McClennan, named chair of the medical school’s Department of Radiology in 1995, began to institute policies in 1996 reducing the quality of patient care, which included understaffing in the Abdominal Imaging Section and assigning fellows to interpret radiology studies without sufficient supervision.

In early 1997, Smith, Burrell and Rosenfield protested these changes and a number of other cost-cutting measures, including decreased nursing coverage in the gastrointestinal, cat scan and MRI departments. Smith also questioned a decision to reduce the size of images on radiology film that would make analysis difficult and resisted changes in faculty scheduling that he felt would allot less personnel to cat scan and MRI services.

The three also said that doctors were asked to sign off on reports they had never seen and less trained personnel were approving Emergency Room studies.

Beverly Kidder of the South Central Agency on Aging said these allegations, if true, are examples of Medicare fraud.

“Medicare makes contracts with medical facilities establishing the rate of reimbursement based on the fees that an attending physician would be entitled to,” Kidder said. “But if a resident is doing the work and [facilities] are billing at the rate of an attending physician, then it is Medicare fraud.”

But Yale General Counsel Dorothy Robinson said Yale hired legal counsel to investigate the accusations of Medicare fraud and found that none had taken place.

“The evidence did not show that radiologists were being asked to sign off on reports of images they did not view,” Robinson said. “They were expected to, and, as far as our investigators could determine, actually did view the images.”

Repercussions

The three plaintiffs allege that when they started complaining vocally to McClennan about the cost-cutting measures in the department, they were summarily admonished and received unfair treatment.

McClennan declined to comment.

After Smith’s numerous disagreements in 1997 concerning department policy, Smith said McClennan removed him from his administrative appointments a few days after Smith complained that a medical fellow did not show up to monitor an MRI.

“My belief is McClennan removed me because I had spoken out,” Smith said.

After protesting the directives concerning faculty not reading radiology studies, Burrell said he received his 1998 salary letter without a bonus.

Smith said his salary situation following his protests was even worse since he initially received a letter stating his 1998 salary would be $157,500, but did not mention a bonus. After asking why he received no bonus, McClennan’s office said the first letter was in error and gave Smith the correct version. The letter said Smith was to receive $150, 550 and a bonus of $8,000.

“Your consistently adversarial positions and attitudes and your reluctance to cooperate in the evolutionary process of change were considered,” McClennan wrote in his July 7, 1998, letter. “I have urged you, and do so again, to — refrain from your critical public and private activism.”

Robinson declined to discuss salary issues.

Upon receiving this letter, Smith, who left Yale in 1999 after his salary was cut for the second consecutive year under what he calls questionable circumstances, began to seriously consider leaving Yale.

“I had intended to spend the rest of my career at Yale as a full professor and this shattered my dream,” Smith said. “I never intended to leave until the salary letter.”

As another example of unfair treatment, Smith said McClennan ordered him back early from a year-long sabbatical approved by the School of Medicine, which is against University regulations. McClennan later rescinded the request, but Smith said McClennan was attempting to further retaliate against him.

In September 1998, Rosenfield protested to McClennan that residents were reading CT scan and ultrasound studies without proper supervision. Rosenfield was then removed from his position as head of clinical CT scan services in December. He began a sabbatical in March 1999, but was called back three weeks later, a move which he called “unconscionable.”

The University gets involved

On May 16, 1999, Smith wrote to Yale President Richard Levin regarding the alleged cost-cutting and employee-management practices of his supervisors.

“I have witnessed a systematic disintegration of — the radiology department’s long standing traditions of — integrity,” Smith wrote. “I am gravely concerned that failure to act swiftly — may result in harm to our patients as well as to the lives and careers of many Yale faculty.”

Two days after a meeting in which Burrell got into a tangential disagreement with McClennan, Burrell was removed as director of Abdominal Imaging and received a substantial pay cut tied to his “departmental citizenship.”

Robinson said the allegations of malpractice and retaliation by McClennan are not founded.

“It appears that the three doctors misinterpreted and misunderstood data, events and the motivation of their colleagues,” Robinson said. “These doctors disagreed with the department leadership about the wisdom of [the departmental] changes.”

Burrell and Rosenfield, who remain at the medical school, met with Levin in July 1999 to address their concerns. Burrell showed Levin computerized tracking forms showing the studies had not been moved from storage as well as a list of X-ray reports bearing Burrell’s name but with which he had no involvement. They said Levin promised to take swift action.

School of Medicine Dean David Kessler headed an investigation. Officials said the inquiry did not verify the allegations.

Levin declined to comment for this story and Kessler did not return phone calls.

Ruth Katz, associate dean of the Medical School, said the investigation was comprehensive.

“The review that we undertook was done as quickly as possible and was extensive and thorough,” Katz said. “We of course take strenuous issue with the allegations they have made and believe that they are false.”

But Jonathan Levine, a resident at the medical school from 1995 to 1999, said Medicare fraud did occur.

“I would be on call with one of the fellows who had finished their residency but was not always attending level status in the hospital,” Levine said. “In order to adhere to Medicare standards, [a faculty radiologist] would have to look at the films and sign off on them. I had no reason to believe that [a faculty member] was signing them.”

But the lawsuit states that on Aug. 7, 1999, Robinson told Rosenfield that Levine did not confirm the accounts of Medicare fraud. Levine said the University is lying.

“I find that hard to believe, because I did corroborate what happened,” Levine said. “They probably said that to protect their own interests.”

Kessler informed the plaintiffs in October 1999 that the investigation was progressing, but the doctors filed suit shortly thereafter.

Freedom of expression

An interesting issue that has emerged in this imbroglio is that of freedom of expression.

The plaintiffs claimed that both the medical school and the University have violated their freedom of expression guaranteed by Yale in the Faculty Handbook and by federal law.

Robinson said the plaintiffs have not been denied these rights.

“There have been no reprisals taken against any of the three doctors because of their having lodged the complaints they did or because of the lawsuit,” Robinson wrote in an e-mail. “There was no violation of their rights of free expression. This situation is not about that.”

But Smith said freedom of expression is precisely the reason he and his colleagues filed suit.

“We’re suing because we have the right to speak out about these things when we feel our patients are at risk,” Smith said. “To retaliate against us in this way is un-American.”

Yale officials are mystified that the plaintiffs have filed their suit based on freedom of expression. Deputy General Counsel Susan Carney said the doctors have inappropriately labeled an internal department dispute.

“Freedom of expression is at the core of the University’s character,” Carney said. “No principle is more carefully guarded.”

Carney said the University has never been sued before for limiting an employee’s freedom of expression.

But Jim Parenteau, a lawyer representing the plaintiffs, said the Medical School continues to intimidate its staff.

“When we made a motion to access witnesses, it appeared that Dr. Kessler had made remarks saying if employees cooperated with the lawsuit, there was no place for them at Yale,” Parenteau said.

In April, Robinson sent out a memorandum to the Department of Diagnostic Radiology discouraging cooperation with the plaintiffs’ lawyers. Parenteau said the letter was in violation of a court order stating that any such letter must say that employees will not be subjected to retaliation. Robinson later sent a second letter correcting the omission.

The lawsuit will be tried in Connecticut Superior Court in spring 2002. Smith said that after years of vexation he hopes the trial, regardless of its outcome, will teach an important lesson.

“If someone thinks something is wrong, they should not be intimidated to stand up against it, even against a powerful organization that will stop at nothing to vindicate itself,” Smith said. “These institutions must learn they cannot behave in this fashion and get away with it.”

The Yale School of Medicine is in the center of a lawsuit concerning free expression at the University. Three doctors who were professors at the school in the 1990s accused the school of Medicare fraud in 1997.
Jared Savas
The Yale School of Medicine is in the center of a lawsuit concerning free expression at the University. Three doctors who were professors at the school in the 1990s accused the school of Medicare fraud in 1997.

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