http://makeitsafecampaign.org/news/?p=2661
A Beleaguered Georgia Physician Fights for Patients and
Jobs – and Wins
By Tom Nugent
November 1, 2012 FiDA highlight
After spending “twelve years in the wilderness” as one of
America’s most determined medical whistle blowers, Dr. James Murtagh achieves a
legal victory that could change the way U.S. hospitals manage their physicians
. . . while also helping to protect the American economy (think jobs) by
protecting due process in court-ordered arbitration proceedings.
ATLANTA – At first glance, the recent decision by the Georgia
Court of Appeals seemed innocuous enough.
After more than 12 years of continuing litigation, the Court’s
finding of last July 26th simply pointed out that an Atlanta-area physician
named James Murtagh was not in contempt of a lower Georgia state court, after
all.
As the Court noted in typical legalese: “The plaintiff’s
Emergency Motion for supersedeas is granted. The plaintiff’s motion for
Expedited Appeal is denied, and it is ORDERED that the trial court reconsider
its order of July 18, 2012. . . .”
Translation: Jim
Murtagh, M.D., had just won a major legal victory in his decade-long struggle
to prove that officials at highly regarded Emory University had inflicted
illegal reprisals on him for daring to blow the whistle on alleged
research-funding fraud. In addition, the Appeals Court lectured Fulton
County Superior Court Judge Wendy L. Shoob by informing her that she didn’t
understand the term “contempt” . . . and that she had been legally harassing
Dr. Murtagh from the bench for years.
Dr. Murtagh’s hugely controversial whistle blowing had disclosed
alleged violations at both Emory and its teaching hospital, Grady Memorial of
Atlanta, starting way back in 1999.
The court battle that followed – surely one
of the great legal struggles of recent years which can be expected to affect
medical practice at American hospitals – has often focused on a crucially
important question: whether
or not hospital authorities can continue the practice of requiring their
doctors to submit to unregulated and often fraudulent “peer review” evaluations
by outside physicians who are sometimes encouraged by the hospitals to find
against the doctors whose performance they are scrutinizing.
A bit of background: the record shows clearly that many managed care hospitals have been
using such trumped up, “sham” peer review proceedings as a method for
protecting profits rather than patients. These ersatz reviews often punish docs who stand
up for their patients in disputes with hospitals . . . or who dare to criticize
hospital decision-making by blowing the whistle on fraud, waste and abuse.
That’s exactly what Jim Murtagh did in 1999, when he agreed to
testify about alleged research funding-fraud at Emory and Grady (and abuse of
patients at Grady), to federal investigators from the National Institutes of Health (NIH) who
were looking into allegations of fraud at both institutions. Soon after
Dr. Murtagh – a University of Michigan School of Medicine graduate who’s won
numerous awards and citations in his fields of pulmonary and sleep medicine –
confirmed that he was cooperating with the NIH investigators, he received two
rude shocks.
First, he was told that a bogus peer-review committee at Grady
would be looking into charges that he’d been ignoring “Do Not Resuscitate”
orders (a grave medical offense) during his daily shifts in the Intensive Care
Unit at the large urban hospital.
Second, Dr. Murtagh was ordered to take a sham “psychiatric
fitness for duty” examination by Emory’s own chosen psychiatrist. That
psychiatrist reportedly wrote up such exams for his clients without even
examining the targeted doctors or gathering factual evidence. Even more
startlingly, Murtagh later testified that he’d never been told what the
hearings were about – and that he wouldn’t be allowed to attend the review
procedures or respond to accusations against him.
Murtagh balked.
Instead of submitting to the findings of the peer review and
taking the psychiatric exam, he sued the university and claimed that he had
been illegally subjected to reprisals as a result of his whistle blowing about
alleged research fraud.
What followed was an astonishing, 12-year-long odyssey trough the Georgia court system.
Remarkably
enough, however, that tumultuous court case – a staggeringly convoluted legal
tangle that makes Jarndyce v Jarndyce (the celebrated and endlessly strung out
legal case that forms the heart of Charles Dickens’ immortal novel of British
jurisprudence, Bleak House) read like a dispute over a parking ticket – seemed
to have ended only a couple of years after it got started.
The end appeared to be in
sight when mighty Emory University, one of America’s most highly regarded
institutions of higher learning, reviewed the entire record in detail and then
agreed to pay Dr. Murtagh an eye-catching $1.6 million settlement, in return
for his promise to remain silent about the alleged reprisals.
Soon after
agreeing to pay out this enormous sum, however, Emory decided that Dr. Murtagh
was not remaining silent about the alleged reprisals . . . and went to court to
get its money back.
The ensuing legal dust-up – now entering its 13th year – wound
up costing Dr. Murtagh dearly. In addition to paying hundreds of thousands of
dollars in attorneys’ fees in recent years, the sleep specialist often found it
difficult to find hospital employment as a physician, according to his
attorney, noted Atlanta defense lawyer and arbitration expert Mark Spix.
“Jim Murtagh has spent many years in the wilderness,” says Spix,
who crafted the elegantly simple legal argument that prevailed in the Georgia
Appeals Court last July. “He was essentially blacklisted by the university for
his whistle blowing, and he soon discovered that when potential employers
called Emory for references, they were either ignored for months a time . . .
or they were told things that prevented Dr. Murtagh from working as a hospital
doctor.
“I really don’t know how he managed to hang on through so many
legal defeats and through so many long stints of unemployment. But he did – and
now, at long last, he has gained a toehold on justice. In my opinion, his legal victory last July is
going to help protect hospital patients, taxpayers and jobs in the future.
“This
is a huge victory for hospital patients everywhere.”
Like Mark Spix, veteran whistle blower counselor and expert
Donald R. Soeken, LCSW-C, Ph.D., says he continues to be amazed by Dr.
Murtagh’s tenacity and his “willingness to put his entire life on the line” as
a truth-teller who insisted on speaking out about the alleged research-funding
fraud at Emory University and Grady Hospital.
“The remarkable thing about Jim Murtagh is that he didn’t just
survive,” says Dr. Soeken, the founder of Integrity International and the
Whistleblower Support Fund and a professional counselor whose efforts to help
U.S. whistle blowers have been written about in the New York Times and many
other national publications since the 1970s. “While enduring a series of setbacks that would have
disabled or destroyed many people, Murtagh actually found the strength to
assist other truth-tellers.
“As a founder and current leader of the International
Association of Whistle Blowers [along with tobacco industry whistle blower Jeff
Wigand, aka "The Insider"],” for example, Dr. Murtagh has been
absolutely tireless in fighting to reform peer review practices in hospitals.
In my view, his continuing advocacy in that arena alone qualifies him as an
authentic American hero.”
While the ongoing legal battle in Murtagh v. Emory University,
et al seems certain to have a major impact on hospital physician peer review,
it could also play a key role in helping to protect due process in legal
disputes that involve formal arbitration, according to attorney Spix.
Describing the lengthy arbitration hearings that have
accompanied the case (which has so far seen more than five years of
arbitration-wrangling), Spix calls it “perhaps the most egregious example of
manipulating and distorting the arbitration process in the history of the U.S.
legal system.”
Make no mistake, says attorney Spix, a nationally recognized
expert on arbitration: because maintaining a reliable and even-handed means of
dispute resolution is essential to commerce, protecting due process during
arbitration is “absolutely vital” to the economic well-being of the entire
nation.
In Murtagh’s case, argues Spix, two hugely powerful Atlanta
institutions – its flagship university and its major urban hospital – “have
dragged out the arbitration process interminably, and quite obviously in a
continuing effort to exhaust both Murtagh’s patience and his financial
resources.”
Concludes the attorney who helped win the intrepid whistle
blower his greatest legal victory to date: “When you look at how Jim Murtagh
has stood up to two of the most politically powerful institutions in Georgia,
and when you consider that he did it in an effort to help reform them both, you
have to conclude that he’s actually a pretty heroic figure – one of those
undaunted truth-tellers who refuses to stop telling it like it is, regardless
of personal cost.”
[Editor's Note: Investigative journalist Tom Nugent has
reported for the New York Times, Washington Post, Chicago Tribune and many
other publications. He is the author of Death at Buffalo Creek (W.W. Norton), a
book of investigative journalism about the U.S. coal industry and its impact on
Appalachia.]
Joleen Chambers says:
Your comment is awaiting moderation.
Thank you, Dr. James
Murtagh for standing up for your patients. Our judicial system is the basis of
trust between citizen and government. Corruption by powerful interests can
bring down democracy and destroy legitimate commerce.
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