Part 6 — The Sword and the Shield
It’s been said that English is one of the most difficult languages to learn because over the centuries it has absorbed and adopted an eclectic mix of words from other tongues. Which has resulted in a huge variety of different ways for us to express ourselves – we can describe our feelings, distinguish one another’s emotions, or characterize the mood.
See what I mean?
Take the subtle nuances in the words duplicity, double-dealing, and underhandedness. All are minor variations of the same basic theme – the act of being deceitful, or dishonest.
Yet another slight linguistic deviation of dishonesty – with a twist of course – is hypocrisy, which has been defined as “the behavior of people who do things that they tell other people not to do.”
And although we are all undoubtedly familiar with how illogical and frustrating hypocrisy can be, a fascinating form of the notion can be found in the “sword and shield” concept, as used – sometimes successfully – within the law.
Think of it as a scenario where one party wishes to shield itself with something that it can then turn around and use to strike at the opposition. One example is the case of Harry Barko, who in 2005 filed a whistleblower lawsuit against his former employer (KBR) for overcharging the government (gasp!) to construct laundry facilities and provide cleaning services to three military bases in Iraq.
After conducting its own internal investigation though KBR determined that it had – surprisingly – done nothing wrong, and used the resulting information to say as much at trial. But when Barko asked to review the very documents KBR had used to defend itself, he was told he couldn’t – because they were protected by privilege.
So Barko argued that KBR shouldn’t be allowed to use the same “privileged” information as both a sword – to attack the allegations made by him – and as a shield, to assert its innocence.
The original trial judge agreed with him, and ordered KBR to turn over all 89 documents that were a product of the company’s self enquiry. The whistleblower never got to review those documents however. Because after a lengthy legal battle, in June 2014 that decision was reversed by an appellate court, and Barko’s lawsuit came to its end when the US Supreme Court declined to hear his appeal last year.
KBR’s ability to investigate itself and find no evidence of any corporate wrongdoing is eerily echoed in the Peer Review process. And the power – protected by the privilege of legal immunity – that hospitals possess can also be used as a Sword and a Shield against friend or foe, to achieve desired goals and outcomes. With impunity, as well as immunity.
Which makes it difficult in health care for those who, like Barko would take a stand for what’s right. Because when confronted by the clash of one’s duty to the patient vs one’s loyalty to an employer, the world of corporate medicine can be a hostile place indeed for physicians who pick the wrong side.
And sometimes the only chance of professional survival involves taking the facts to the public – the ultimate court of appeal.
Part 6 of Proof of Death
“I CANNOT BELIEVE she got away with it,” I said to my fellow physician David Cooke as we stood in the JPS ER ambulance bay. Chain smoking was Dr. Cooke’s official vice which would lead to his untimely death ten years later, but he enjoyed the habit with the same zest he had for snow skiing.
It was April 14, 2001, and we were taking a break during the first ER shift we had worked together since I had gotten word from the Fort Worth Police that they weren’t going to investigate – much less prosecute – Dr. Lydia Grotti for her actions in the death of Lettie McGhee.
Dr. Cooke was twenty five years older than me (almost to the day), and ever since the year after my birth he had practiced Emergency Medicine all over the world – from Chicago to Europe to Southeast Asia. A decade earlier David had finally settled in the Metroplex to finish his career, and he had been on staff at the JPS ER ever since. During his tenure he had established a near-legendary reputation for his combination of clinical acumen, dry humor, and gritty ability to tell it like it was.
None of which necessarily make for the best doctor-boss relationship in the hierarchy of corporate medicine though, and by the time we were having our conversation that morning Dr. Cooke was working on thin ice. A couple of years before he had ran afoul of the hospital and NTAMG big shots by reporting the previous JPS Emergency Room medical director Nat Baumer to the Texas State Board of Medical Examiners for incompetence. After Dr. Baumer had been investigated – and acquitted – through the hospital’s Peer Review process.
Shortly after filing his complaint about Baumer however, David began to be persecuted by the JPS Peer Review system – the same one that had cleared Dr. Baumer, and then Dr. Grotti. I remember it well, too; it seemed that every time Dr. Cooke showed up late, or didn’t wash his hands, or even farted without saying “excuse me,” the brass would haul him in for yet another round of defending his actions.
By his count David had been “investigated” more than twenty times since contacting the medical board, and the year before he had filed a lawsuit against the hospital for harassing him. Suffice to say that his was a tense relationship with the administrators, particularly Ramin Samadi, the freshly appointed new ER Medical Director who was Baumer’s successor.
But Dr. Cooke was a great physician who didn’t (at least in my experience) commit many clinical errors, and that made it tough for the suits to pin anything real on him. So at the same time his every action was being watched with a microscope, his work shone brilliantly. Never one to be humble, David would proudly – yet privately – brag that as long as he did his job right, he could sue his employer and yet have his position protected. It was widely known that Dr. Cooke could walk between the raindrops only on account of the fact that he had the balls to stand up to the corporate yahoos.
I admired the hell out of him for that, and for many other reasons too. When I first met him Dr. Cooke had come off as the “old curmudgeon” he always referred to himself as, and my first impressions of him were not good ones. But once I got to know him and chipped through his hard coating of bluff and bluster, I saw a mature, caring physician who truly wanted to make a positive difference in people’s lives.
So David had quickly become my mentor; I even called him my second father. It wasn’t just because he was one of the smartest physicians I’ve ever met. He was also wise in the ways of the world, and his experiences working abroad had given him a deep insight into corporate politics. As well as individual human nature.
“Ahhh, she’ll kill again” David calmly opined, as he stared out into the distance, and gingerly rolled a freshly lit cigarette back and forth between his front teeth. Dr. Cooke was the only other soul at JPS whom I had trusted enough to tell about turning Grotti into the police. And he had been just as curious as me to know what the outcome of that investigation was. He was also just as surprised and disappointed as I was that the police had dropped the case, which meant that more patients would be exposed to Grotti’s care.
“She won’t stop, especially now that she’s gotten away with it. She’ll just be a lot more careful from now on.” The man sure did have a knack for understanding people. Only in this case he was both right, as well as wrong – dead wrong in fact, because Grotti had already gotten her hands on Woody O’Keefe a little over a week earlier. But she hadn’t been too careful, what with a signed autopsy that listed acute morphine intoxication as the official cause of death.
“Maybe,” I replied, “but it’s a shame she has the chance to in the first place. I just cannot understand why they never relieved her of her clinical duties. I mean, if you so much as sign your name wrong, they’re threatening yours.” “True, true,” David grunted. “But they couldn’t take her out of the lineup just like that and leave the ICU only half-covered. They had to keep her there.”
He was right, of course. The ICU at John Peter Smith had only two staff physicians; one being Grotti, who after her residency had gone on to complete a three year fellowship in Critical Care Medicine and was actually board certified in the specialty. The other doctor working in the ICU was Gus Krucke, a physician who like Grotti had finished a residency in Internal Medicine but then worked in various ER’s. Unlike Grotti, Dr. Krucke had no formal training in Critical Care, but that didn’t matter to NTAMG. To staff the unit Grotti and Krucke took turns, each rotating a week off and then a week on, and the loss of the trained half of the talent would have put NTAMG in a bind for sure.
My mind was still reeling. “I wonder how many other times Grotti’s made a snap decision and pulled the plug on patients?”
“You’ll never find out,” said Dr. Cooke. “But if you want to stop her, you need to go to the Texas Medical Board. And since the Tarrant County DA won’t do anything, report her and the DA’s office to the Texas Rangers. Maybe these local politics don’t reach all the way down to Austin. Turn her in to everybody,” he said matter of factly.
“Yeah,” I said “That’s a great idea. I will.” But unbeknownst even to my friend and colleague David, I already had. At least, partly.
My meeting with the NTAMG honchos that they had called the previous October had really pissed me off. Fearing for my job when I received the summons, I contacted a Dallas firm specializing in employment law and hired attorney Molly Parsons to represent me. Like David Cooke, I figured that if it took a lawsuit to make these turkeys understand that I wasn’t to be jacked around with, then so be it. The very next day after I retained her, Molly drove to Fort Worth and went with me to that meeting. And although the brass more or less treated me with kid gloves because of her presence, afterward I think even she was surprised by what went down.
I was furious though. How dare these health care “leaders” brush off the insubordination of a resident doctor who had carelessly – and needlessly – put a patient’s life at risk? How dare they call me into their office, to give me a spanking instead? How dare they lecture me on how important it was to avoid writing anything that “might be too sensitive” about a coworker’s medical care in a patient’s chart, and instead put it in a private, privileged memo to my “supervisor” Ramin Samadi, so that it might be protected under Peer Review?
Which Ramin Samadi by the way, had just relocated to Fort Worth from upstate New York, where he had been in charge of a hospital ER in Buffalo. And who was now sitting there grilling me as the JPS “Chairman of Emergency Medicine” – even though he hadn’t worked a single hour or seen one patient in the hospital’s ER. He couldn’t have at that point; because Samadi hadn’t even received his license to practice medicine in Texas yet. In fact, to my recollection that was the first time I’d ever laid eyes on him.
So when he got snippy about my patient “turnaround times,” and coached me on how to work more efficiently I cut Samadi off: “Pardon me, but it offends me that you’ve never worked in the environment. It’s complete chaos.” He shut up. It was an inauspicious beginning to what would turn out to be a rocky relationship between us, and it wouldn’t be our last dance together.
As the accusations being made against me that morning piled up, I asked for proof. I wanted documents, statements, or anything specific that the NTAMG executives had to back up their claims. But the only thing they gave me – besides the letter outlining the charges I was being asked about – was a printout from the newly installed electronic patient tracking system which showed my patient “turnaround times,” as compared to the other physicians.
This report showed that over the last eleven days of September, 2000 I had seen a total of 120 patients, with an average time in the ER of 8 hours and 45 minutes. I was third from the top (or bottom); my times were only exceeded by a couple of other doctors who took an average of 9:03 and 8:58 to send patients packing, respectively. The three other staff physicians who, like me saw over 100 patients during those eleven days had times in the 7 – 7.5 hour range. Interestingly, the 769 patients who were labeled as “Unassigned” to any particular physician by the charting system had a turnaround time of only 4 hours and 17 minutes. Probably because those were the waiting room folks who got frustrated and just left without ever being seen.
Although you could have seen the steam coming from my ears, after the meeting was over it didn’t take too much of a stretch for both my attorney and I to agree that a warning shot had just been fired over my bow. That I was in danger of being “Cooked.” That the people in that room had been, as my mother would have put it, trying to pick gnat shit out of pepper, what with all their attempts to trump up a bunch of hooey charges for me to answer. But answer them I was expected to do, so a few days later I responded, without answering. I sent a letter back in which I said I had turned the matter over to my attorney, and would let her handle it going forward.
But in the meantime though, I promised the NTAMG corporate gaggle that I looked forward to “contributing to the necessary changes which will make emergency medical care at John Peter Smith Hospital the best in Tarrant County.”
And from that day forward I did everything I could to make good on my promise.
So although I planned to stay out of the spotlight, lay low, and just do my job, that didn’t stop me from seeking the input of higher authority. Quietly. Secretly.
Well before I first reported Grotti to the police in March of 2001, shortly after that October fiasco I had filed a formal complaint to the Texas Department of Health (TDH) about the general state of patient care being delivered at JPS. But as fall turned into winter I received no reply, so right after I heard about Grotti’s handling of McGhee, in late December I amended my complaint, with a phone call.
The response this time was swift and sure, and less than a week later, in early January TDH arrived on site to conduct a facility-wide survey at JPS. There must have been a behind the scenes urgency applied to the process too, because just a few weeks passed before the previously sedate state agency took definitive action. On January 26th, 2001 TDH handed a twelve-page summary of its findings – along with its recommendations for correction – to the JPS administration.
And although the lone investigator assigned to the task could not have had the time, much less the resources, to do anything other than scratch the surface of the problems at that facility, nevertheless the report found several policy and practice deficiencies involving inadequate nursing care, the improper restraint of patients, and the availability – as well as the correct administration – of certain drugs.
Also included in the TDH findings was the fact that in her treatment of Lettie McGhee Dr. Grotti had violated Texas state law, which allowed that “the patient or his or her representative…has the right to make informed decisions regarding his or her care.” The report was clear that in McGhee’s case, “There was no discussion of removing the patient from the ventilator and discontinuing life-sustaining drugs with the patient’s husband according to physician and nursing staff interviews.”
On February 5, 2001 Roberta Landrum, the nurse in charge of the JPS Health Network Compliance Division, sent a six-page response to the Texas Department of Health. One by one, Landrum outlined the hospitals’ intended plans on how it was going to address the problems that had been identified. All of the proposed remedies were detailed out in several bullet points.
All except one –Tag no. A79 that concerned Grotti’s violation of Texas state law by her inappropriate removal of Lettie McGhee from life support. Regarding that little tidbit Landrum’s report simply said that “This issue was referred to the medical staff Peer Review committee on 1/10/01.”
January 10, 2001. It had taken a full fifteen days after she had first been accused of inappropriately causing a patient’s death, before Grotti was put under the Peer Review microscope like Dr. Cooke. It couldn’t possibly have been the same microscope however, since the corporate leadership’s preconceived outcomes for Cooke compared to Grotti couldn’t have been more different.
In an ironic footnote to the whole TDH investigative endeavor, it would eventually turn out that the toothless Texas Department of Health was all bark and no bite in these matters anyway. They came, they saw, they recommended. The rest, as they say, could be swept under the rug and consigned to history. Privileged history, that is.
But thank goodness I didn’t know that yet.
As we wrapped up our chat about Grotti and the general state of medical care at our chosen hospital Dr. Cooke finished his cigarette and expertly flicked the still burning butt into the flower bed. He turned to me with a very serious look on his face, “You’re a known quantity to administration, and boy you must really be on their radar now. If law enforcement or one of these health regulating agencies doesn’t come through, you may be screwed.”
He was speaking from experience. In Texas an employee can be terminated without cause, and without much recourse. Especially if they haven’t already locked horns with their employer like David had. And at that point NTAMG hadn’t harrassed me – at least not directly – enough for me to cry foul. But rumors were flying that they were on the lookout for me to screw up.
“If none of those take the case” he continued, “then the only way to stop Grotti would be to go to the media. Get on TV. That’s the only way to really protect yourself.”
Once again, David was both right – and wrong – at the same time.
Because I knew that a television appearance wouldn’t necessarily protect my job, even though a news reporter I’d been working with behind the scenes had already asked me several times for an on camera interview. Instead, I figured I could do the next best thing without endangering my position by telling the Texas Department of Health about what was happening at JPS.
And I had originally filed my TDH complaint at the suggestion of that reporter, Valeri Williams.
Coming Soon! Part 7 – What to do? What to do…