Harmed Patients Given Unjust Solomon's Choice: Trust the Settlement is Best Option or Jury Trial

Additional information:

Plaintiffs’ Leadership Counsel Announce a Settlement Program for Wright Medical Metal-on-Metal Hip Implants

Anthonia Spencer | November 2, 2016

After a hard-fought, almost 5-year battle in federal court in Atlanta, Georgia and in California state court, we are pleased to announce a settlement program that will resolve a significant number of claims against Wright Medical.  Wright Medical has agreed to settle approximately 1,300 claims of certain Wright Medical metal-on-metal hip implant patient-claimants whose hips were revised at least 150 days and no more than eight years post-implant.  There are approximately 2,300 pending claims involving Wright Medical’s Conserve, Lineage, and Dynasty metal-on-metal hips.  Plaintiffs’ Leadership Counsel’s retained financial analysts have been evaluating Wright Medical’s ability to settle these cases for years. Based on that analysis, we believe that Wright Medical was not in a position to and therefore could not agree to settle the remaining claims involving revisions occurring after eight years or other cases that it deemed not qualified at this time.  During the negotiations with Wright Medical, it was made clear that claims for revised Wright metal-on-metal hips that are not included in this settlement will be part of subsequent settlement programs.

The Wright Conserve Multi-District Litigation (MDL) was consolidated in February 2012 in federal court in the Northern District of Georgia before the Hon. William S. Duffey, Jr., United States District Judge.  Additionally, a Judicial Council Coordination Proceeding (JCCP) petition was approved in May 2012 before the Hon. Jane Johnson, Los Angeles Superior Court Judge, consolidating California state-court cases involving Wright Medical hip replacement and revision matters, including Wright Medical’s Conserve, Lineage, and Dynasty hip implants.  The Hon. Diane M. Welsh (Ret.), led the extended settlement negotiations and tirelessly worked with the parties for several years to help facilitate the settlement.

Wright Medical’s hip and knee division (OrthoRecon) was sold in January 2014, and the successor corporation has a defense that it did not inherit the liability.  Our financial analysts’ review further indicated that Wright Medical’s ability to fund this settlement depended largely on insurance coverage and a bond issue used, in part, to raise money for this settlement.  Wright Medical has been engaged in litigation in Memphis with most of its insurance carriers and recently finalized an agreement with 3 of the carriers.  It remains in litigation or coverage disputes with its remaining carriers.  In light of our analysis of Wright Medical’s financial condition, this is a timely and meaningful settlement, offering $170,000 to claimants who had the monoblock Conserve Cup, the device with the most frequent failures, and $120,000 to those who had the metal-liner Dynasty and Lineage devices.  An additional, but capped, limited fund is also available for claimants who suffered discrete and defined claims of extraordinary injury.  More importantly, the settlement program calls for pre-qualification, without registration, coupled with a very simple administrative process for claimants not pursing extraordinary injury claims that will lead to expeditious payments expected to be largely complete by summer 2017.  Counsel for eligible claimants will be notified of their pre-qualification by February 3, 2017.

Plaintiffs’ Leadership Counsel consists of Michael L. McGlamry of Pope McGlamry, P.C. in Atlanta, Georgia, mmcglamry@pmkm.com / 404-523-7706; Raymond P. Boucher of Boucher LLP in Woodland Hills, California, ray@boucher.la / 818-340-5400; Helen Zukin of Kiesel Law in Beverly Hills, California; Peter Burg of Burg Simpson in Englewood, Colorado; Christopher Yuhl of Yuhl Carr, LLP in Marina del Rey, California; Sean Jez of Fleming Nolen & Jez, L.L.P. in Houston, Texas; and Ellen Relkin of Weitz & Luxenberg, P.C. in New York, New York.

http://www.pmkm.com/plaintiffs-leadership-counsel-announce-a-settlement-program-for-wright-medical-metal-on-metal-hip-implants/






PART 1

Wright Medical Group to settle over metal-on-metal hip implants for up to $240M: 5 things to know  

Written by  Eric Oliver Date created | Thursday, 03 November 2016 20:07

Amsterdam, Netherlands-based Wright Medical Group entered into a Master Settlement Agreement over litigation on its Hip Implant products.

Here's what you need to know.

1. Wright and the lawyers representing the plaintiffs agreed to settle 1,292 revision claims concerning its Conserve, Dynasty or Lineage hip implants

2. Wright will settle for up to $240 million with $180 million in cash and $60 million for insurance recoveries.

3. The settlement requires a 95 percent opt-in clause. Wright Medical will void the settlement if more than 5 percent of the plaintiffs opt out of it.

4. CEO Robert Palmisano said he was pleased to reach the settlement, and the company will now focus on "accelerating growth opportunities in its extremities and biologics markets."

5. Wright will "vigorously defend" any claims that were not settled. The company estimates there are 600 cases that will not be included in the settlement.

http://www.beckersspine.com/orthopedic-spine-practices-improving-profits/item/34049-wright-medical-group-to-settle-over-metal-on-metal-hip-implants-for-up-to-240m-5-things-to-know.html

PART 2:

Wright Medical Group N.V. Announces Entry Into Metal-On-Metal Hip Litigation Settlement AgreementPreviously Disclosed Agreement In Principle with Three Insurance Carriers Also Finalized Settlement In Line with Previously Disclosed Range of Loss

AMSTERDAM, The Netherlands, Nov. 02, 2016 (GLOBE NEWSWIRE) -- Wright Medical Group N.V. (NASDAQ:WMGI) today announced that on November 1, 2016, its wholly owned subsidiary Wright Medical Technology, Inc. (WMT) entered into a Master Settlement Agreement (MSA) with Court-appointed attorneys representing plaintiffs in the previously disclosed metal-on-metal hip multi-district litigation known as In Re: Wright Medical Technology, Inc., CONSERVE® Hip Implant Products Liability Litigation, MDL No. 2329 (MDL) and the consolidated proceeding pending in state court in California known as In re: Wright Hip System Cases, Judicial Council Coordination Proceeding No. 4710 (JCCP).  In addition, on October 28, 2016, the Company entered into a Settlement Agreement with three of its insurance carriers (Three Settling Insurers). 

Under the terms of the MSA, the parties agreed to settle 1,292 specifically identified CONSERVE, DYNASTY or LINEAGE revision claims which meet the eligibility requirements of the MSA and are either pending in the MDL or JCCP, or are subject to tolling agreements approved in the MDL or JCCP, for a total settlement amount of $240 million, of which approximately $180 million will be funded from cash on hand and $60 million will be funded from insurance recoveries.

Eligibility requirements of the MSA include that the claimant has a pending or tolled case in the MDL or JCCP, has undergone a revision surgery within eight years of the original implantation surgery, and that the claim has not been identified by WMT as having possible statute of limitation issues.  Claimants who have had bilateral revision surgeries will be counted as two claims but only to the extent both claims separately satisfy all eligibility criteria. 

The MSA includes a 95% opt-in requirement, meaning the MSA may be terminated by WMT prior to any settlement disbursement if claimants holding greater than 5% of eligible claims in the Final Settlement Pool elect to “opt-out” of the settlement.  No funding of any individual plaintiff settlement will occur until the 95% opt-in requirement has been satisfied or waived.

Robert Palmisano, president and chief executive officer, commented, “We are very pleased to have reached this settlement agreement, in particular the population of claims that the settlement covers as well as the required 95% opt-in rate for those claims.  With this clarity, we will continue to focus on accelerating growth opportunities in the extremities and biologics markets.  This settlement addresses approximately 85% of the known U.S. revision claims that do not have potential statute of limitations issues and removes a great deal of the uncertainty that has been associated with this litigation.”

Wright will continue to vigorously defend metal-on-metal hip claims not settled pursuant to the MSA.  As of September 25, 2016, the company estimates there were approximately 600 outstanding metal-on-metal hip revision claims that would not be included in the MSA settlement, including approximately 200 claims with an implant duration of more than eight years, approximately 300 claims subject to possible statute of limitations preclusion, approximately 30 claims pending in U.S. courts other than the MDL and JCCP, approximately 50 claims pending in non-U.S. courts, and approximately 20 claims that would be eligible for inclusion in the settlement but for the participation limitations contained in the MSA.  The company also estimates that there were approximately 700 outstanding metal-on-metal hip non-revision claims as of September 25, 2016.  These non-revision cases are excluded from the MSA.

The final MSA settlement amount (not to exceed $240 million), and the final number of claims settled under the MSA, will depend on, among other things, the number of claimants electing to participate in the settlement and the mix of products implanted in the settling claimant group.  Claims which do not meet the eligibility requirements of the MSA, new claims, and claims which have opted-out of the settlement will not be settled under the MSA and the company will continue to defend these claims. 

The company previously disclosed a loss range applicable to a substantial portion of revision cases of $150 million to $198 million and, in accordance with U.S. generally accepted accounting practices (US GAAP), recognized as a charge within discontinued operations in the second quarter of 2016 $150 million, the low end of the range of probable loss for these cases.  During the third quarter of 2016, the company recorded charges of approximately $39 million to increase its accrual from the low end of its previous range of probable loss to the amounts in line with the final agreements and to record accruals for certain other revision cases. Please refer to the disclosures in the company’s third quarter 2016 quarterly report on Form 10-Q for a full discussion of our accruals and disclosures related to this matter.   

WMT has agreed to escrow $150 million to secure its obligations under the MSA, and parent corporation Wright Medical Group N.V. has agreed to guaranty WMT’s obligations under the MSA.     

The MSA will help bring to a close significant metal-on-metal litigation activity in the U.S.  Some lawsuits, however, will remain and Wright will continue to defend against remaining claims and any future claims that could be filed.  The ultimate cost to entirely resolve these matters will depend on many factors that are difficult to predict and may be materially different than the amounts accrued to date, including future revision claims and additional insurance recoveries.  Further charges may need to be recorded in the future as additional information becomes available.  

Internet Posting of Information

Wright routinely posts information that may be important to investors in the “Investor Relations” section of its website at www.wright.com.  The company encourages investors and potential investors to consult the Wright website regularly for important information about Wright.

About Wright Medical Group N.V.

Wright Medical Group N.V. is a global medical device company focused on extremities and biologics products. The company is committed to delivering innovative, value-added solutions improving quality of life for patients worldwide and is a recognized leader of surgical solutions for the upper extremities (shoulder, elbow, wrist and hand), lower extremities (foot and ankle) and biologics markets, three of the fastest growing segments in orthopaedics.  For more information about Wright, visit www.wright.com.

™ and ® denote trademarks and registered trademarks of Wright Medical Group N.V. or its affiliates, registered as indicated in the United States, and in other countries.  All other trademarks and trade names referred to in this release are the property of their respective owners.

CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS 

This release includes forward-looking statements under the Private Securities Litigation Reform Act of 1995.  These forward-looking statements generally can be identified by the use of words such as “will,” “may,” “continue,” “anticipate,” “expect,” “could,” “believe,” “estimate,” “future,” other words of similar meaning and the use of future dates.  Forward-looking statements in this release include, but are not limited to, statements about the effects of the settlement agreements and the amount and funding of the settlement amounts. Forward-looking statements by their nature address matters that are, to different degrees, uncertain. Each forward-looking statement contained in this release is subject to risks and uncertainties that could cause actual results to differ materially from those expressed or implied by such statement.  Applicable risks and uncertainties include, among others, risks and uncertainties associated with the MSA and the settlement agreement with the Three Settling Insurers, including without limitation, the final MSA settlement amount and the final number of claims settled under the MSA,  the possibility that the 95% opt-in requirement may not be achieved, the resolution of the remaining unresolved claims, the effect of the broad release of certain insurance coverage for present and future claims, the resolution of the company’s dispute with the remaining carriers; and the other risks identified under the heading “Risk Factors” in Wright’s Annual Report on Form 10-K for the year ended December 27, 2015 filed by Wright with the SEC on February 23, 2016 and Wright’s Quarterly Report on Form 10-Q for the quarter ended September 25, 2016 anticipated to be filed by Wright with the SEC on November 2, 2016.  Investors should not place considerable reliance on the forward-looking statements contained in this release.  Investors are encouraged to read Wright’s filings with the SEC, available at www.sec.gov, for a discussion of these and other risks and uncertainties. The forward-looking statements in this release speak only as of the date of this release, and Wright undertakes no obligation to update or revise any of these statements.  Wright’s business is subject to substantial risks and uncertainties, including those referenced above.  Investors, potential investors, and others should give careful consideration to these risks and uncertainties. 

Investors & Media:

Wright Medical Group N.V.

Julie D. Tracy

Sr. VP, Chief Communications Officer

(901) 290-5817 (office)

julie.tracy@wright.com  

Wright Medical Group N.V.

http://ir.wright.com/phoenix.zhtml?c=129751&p=irol-newsArticle&ID=2218769

Settlement Gag Clause: 'Instance of Misconduct' 2005

Bill Would End Gag Clauses That Stifle Victims Who Sue

April 19, 2005|Jordan Rau | Times Staff Writer

SACRAMENTO — Wendy Conner asked a San Diego doctor to smooth over a forehead scar in 2000. But her plastic surgeon injected fat from her abdomen into an artery in her head, permanently blinding her right eye.

Conner sued and eventually settled for what she says was a small sum. As part of that legal agreement, she promised not to turn the doctor in to state authorities. "It's a horrible thing when somebody does something so terrible to you, and then you have to cover for them for the rest of your life," she said.

For decades, negligent doctors and other professionals in California have deterred their victims from reporting them to state regulators by making silence a condition of settling lawsuits. Regulators, consumer advocates and lawmakers say these legally dubious gag clauses are among the most troublesome gaps in California's consumer protection efforts.

They are pressing to ban the stipulations, even though Gov. Arnold Schwarzenegger refused to do so last year. The governor vetoed legislation that had passed with bipartisan support, saying that eliminating gag clauses "does not further the goal of making California more business-friendly."

"The whole practice is just unconscionable, and it deprives executive branch agencies of the information they need to do their job," said Julianne D'Angelo Fellmeth, the state-appointed independent monitor for the Medical Board of California. "I don't understand how the governor didn't see that the first time around."

Conner still will not publicly identify her surgeon even though the medical board in January forced the doctor, Richard M. Escajeda, to surrender his license. Investigators charged that the year after he blinded Conner, Escajeda botched a breast implant surgery in another woman and then failed to anesthetize her properly during a subsequent surgery, causing her to experience the entire painful operation.

There are other reasons besides gag clauses that regulators never learn of lawsuits that could be evidence of professional malfeasance. Court officials and hospitals, for instance, are required by law to report criminal convictions, disciplinary actions and civil judgments against doctors, but Fellmeth's evaluation of the medical board last fall found that many do not.

The problems are not limited to the medical profession. Under state law, attorneys and automobile makers are banned from trying to stop former clients from complaining to regulators, but there are no similar prohibitions for 230 other types of licensed professionals in California.

Democratic lawmakers have resurrected last year's proposal as AB 446, sponsored by the chairwomen of the two legislative panels that oversee the state's professional regulators, Assemblywoman Gloria Negrete McCloud (D-Chino) and Sen. Liz Figueroa (D-Fremont). An Assembly hearing is set for today.

The measure would still allow secret settlements in which plaintiffs promise not to reveal the nature of the case's resolution, including the amount of money paid out. But 2.3 million California professionals -- including accountants, architects and embalmers, as well as healthcare professionals such as doctors, psychologists and nurses -- would face discipline from California's regulatory boards if they were to insert gag clauses that dissuaded plaintiffs from making complaints to authorities.

"Gag clauses in malpractice settlements present unnecessary roadblocks which impede the medical board's investigators from their sworn duty to protect the public," the board president, Mitchell Karlan, said through a spokeswoman. State regulatory boards for 10 other professions endorsed last year's effort to outlaw the provisos.

The strongest opposition has come from builders, engineers and small contractors. They fought last year's proposal and are preparing another campaign to block this year's version.

Richard Markuson, deputy executive director of Consulting Engineers and Land Surveyors of California, a Sacramento-based association, said professionals already are required to report to regulators any large civil lawsuit settlements.

"This would eliminate some of the finality that a settlement could bring to parties in a dispute," Markuson said.

Schwarzenegger agreed, writing in his veto message that "even after the resolution of a civil suit, this bill could still require a licensee to [undergo] a second adjudication before a regulatory body."

It is far from clear that the gag clauses are enforceable. The attorney general's office last year told lawmakers that it believed such clauses cannot be imposed, citing several judicial rulings.

One was a 2000 appeals court ruling that voided a settlement that prohibited customers of a securities agent from reporting misconduct. The court ruled that the inclusion of the confidentiality clause was "not only directly connected to [the agent's] misconduct, but is an instance of misconduct in itself."

Still, advocates and plaintiffs say the pressure to consent to gag clauses often is intense.

• http://articles.latimes.com/2005/apr/19/local/me-gagorders19

How You Can Help ProPublica & Patient Safety

http://www.propublica.orgAs/article/how-you-can-help-propublica-cover-patient-safety

How You Can Help

ProPublica Cover

Patient Safety

by Marshall Allen
ProPublica, Jan. 4, 2013, 9:50 a.m.

Among the more active members of our Facebook group on patient safety, Veronica James stands out.

She joined soon after we started the group in May and shared the story of her mother, who suffered a bedsore and had her breathing tube accidentally dislodged in a long-term acute-care hospital. James believes poor care contributed to her 90-year-old mother's death.

James uploaded the complaints she had filed with regulators, as well as their responses validating some of her concerns. She urged others to sign a petition against gag orders that medical providers sometimes negotiate when settling with patients who have been harmed. And she's posted dozens of comments, asking questions and offering advice and encouragement to others in the group.

James, an actress from Paramus, N.J., said she's found the Facebook group to be invaluable. "It gives a voice to patients who have been silenced for too long," she said.

Not everyone in the ProPublica Patient Harm Facebook Community has been as energetic as James. But the group — among our efforts to use social media in the service of journalism — has grown into a robust forum for discussion and learning for participants and reporters alike.

Our goal was to reach out and open a dialogue with patients who've been harmed while undergoing medical care. It's a major problem affecting more than 1 million patients a year, and although the health care system has moved to address the issue, results have been slow in coming.

We've also invited participation from doctors, nurses and other medical providers, many of whom have contributed comments and shared expertise. As of now, we're up to 1,379 members in the Facebook group. Since May, 231 members have contributed more than 3,700 posts.

Because many of the group's members, or their loved ones, have been harmed while undergoing medical care, the discussions cover sensitive topics and are often passionately delivered. (Some highlights are archived on ProPublica's patient safety page.)

James' mother, Vera Eliscu, died in August 2009, about seven months after being admitted to recover from pneumonia in a New Jersey long-term acute-care hospital. During her stay, her breathing tube was accidentally dislodged, which James said deprived her of oxygen for about 15 minutes, causing brain damage. Eliscu also did not receive appropriate care, regulators found, for a bedsore that developed into a large wound.

James said she signed, under protest, a gag clause as part of her settlement with the facility. Typically such clauses prevent a patient or patient's family from speaking out about harm they suffered. But James said she refuses to be bullied. She is now advocating for a law in New Jersey that would ban gag clauses. Her hopes were boosted when, on Dec. 17, another member of the Facebook group posted an article about a new law against gag clauses in California.

Patients who suffer harm face the same obstacles across the country, James said, and the Facebook group helps her keep tabs on what's happening elsewhere.

Anyone who's followed the Facebook group knows we promote our Patient Harm Questionnaire, which allows us to track patient stories in a more detailed manner. So far, we've had 264 people complete the survey. Although the sample is self-selected, the responses have been provocative:

•               The medical facility or provider responsible for the harm only disclosed it voluntarily in about one in 10 cases.

•               Only one out of 10 patients received an apology for the harm they suffered.

•               Some said they spent tens of thousands of dollars on bills related to the harm they suffered.

We've used some of the findings to inform our articles. And with the consent of respondents, we've also shared some survey results with other journalists and with academics who want to conduct research for publication in medical journals.

Medical providers are invited to complete the ProPublica Provider Questionnaire. We've had 53 respond so far, including 16 doctors, 13 nurses and a smattering of administrators, case managers, techs and more. They are sharing story ideas and issues of concern, and we plan to turn to them for expert advice as we investigate patient safety issues in 2013.

COMMENTS                  

I encourage harmed patients & healthcare providers to "stalk" the ProPublica website.  As British author Catherine Aird said "If you can't be a good example, then you'll just have to be a horrible warning." Accounts of patient harm reflect our culture and our humanity that will inform you so that you can avoid pitfalls and help others..  If we do not share them we cannot improve.  Those who would quash this information are self-serving and short-sighted.  Try as they may "they can't stop the beat"!   Joleen Chambers  Today 3:37pm

Arlene Sterne

Today, 12:06 p.m.

Brava Veronica. It is time for someone to speak up against gag orders.
I have not experienced anything quite like this, but I feel your pain and 
wish that more of us have had the courage to take action against 
medical “accidents” like your mother’s. My husband died because 
a doctor refused to acknowledge that he had cancer, and I myself, against the doctor’s orders, drove him from Washington DC to Boston
 to a famous clinic where they immediately diagnosed lung cancer which had already metastasized. 
With affection and admiration. Arlene Sterne

Rui Geraldes

Today, 12:26 p.m.

I worked as an EMT for more than a decade. Nursing homes are the perfect example of malpractice. Understaffed and with nurses who don’t have any idea of what they are doing. It’s scary to see patients with 2 liters O2 on a non-rebreather mask, patients with nasal canulas fed by empty tanks, patients in positions that provoke choking, nurses calling EMS because respiratory levels are live threatening due to the fact that they are clueless how to suction a tracheostomy tube, patients completely high due to excessive medication. Failing to notice signs of stroke. Every place we went, they tried to cover up what happened and everything happened 15 minutes ago or during someone else shift. Then we go to the state website and see these places getting positive rankings. Its so bad we used to call this places “dumpsters”, and the general opinion was they don’t really care because there are more people on the waiting list, so they will never lose money. It’s sad the situation this patients are forced to endure.

Whistleblower Doctor as American Hero

http://makeitsafecampaign.org/news/?p=2661

Zero Hour – Victory in Atlanta: Profilein Courage

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.

November 1, 2012 at 7:40 pm

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.