Two Plaintiff’s Lawyers Send You Their Best

By Anita Mazumdar Chambers and Tejal Garg

Dear Acme Corp. Compliance Department:

As the lawyers who just filed a retaliation complaint against Acme, we want to thank you for sending us another client. We think the case is a winner, and we’re grateful that you make our job so easy.

As you know, our client called your hotline to raise concerns about regulatory violations by her boss. Many companies handle such matters quickly and effectively, never requiring the employee to hire a lawyer. But like your slogan says, Acme does it differently!

We appreciate everything you did to help us here:

Your investigators offered no updates — and shared only a vague outcome at the end.

How better to suggest that your closed-door process is a sham?

After a rote acknowledgment of our client’s report, your department brushed off her requests for an update. You refused to say whether you would interview the people she suggested; or review the e-mails she forwarded; or look at the regulatory guidance she identified.

Then, at the end, you told her only that your investigation found her report to be “unsubstantiated.”

Zero details. No explanation of why her fears turned out to be unfounded. No changes to procedure, no education for managers — or at least, none that you’d share.

If not for the retaliation that followed, we wouldn’t even know that anyone at Acme read her report!

Oh, and you never thanked our client for making the report; never offered her any guidance on what to expect; never gave her the name of a contact person; and never described how to escalate her concerns.

No wonder she looked outside the company for help.

You revealed our client’s identity to her boss.

OK, maybe you never shared her actual name. But hey, you made it clear.

You asked her boss questions in such a way that the whistleblower’s identity was obvious. You quoted e-mails that were sent by her. You cited conversations where she and her boss were the only participants.

Our client saw an immediate difference in her boss’ attitude toward her: She was quickly given punitive tasks and shut out of meetings.

Our only note: If you want be even more certain that whistleblowers will hire a lawyer, try revealing their identity to more people. Why stop at their managers?

You didn’t watch out for retaliatory behavior — or follow up on reports of it.

Many compliance departments care about the retaliation that whistleblowers can face, and have solid procedures to monitor and stop such wrongdoing.

Acme does it differently!

Retaliation claims can be easy to prove in court, as any employee-side lawyer will tell you. So you really strengthened our client’s case not only by failing to shield her from reprisals, but also by ignoring her reports once the payback started.

A jury will be especially upset by your department’s complete disregard of her e-mail that flagged a big drop in her performance rating just one week after she made her hotline complaint — a punishment by her boss that paved the way for further retaliatory personnel actions.

Speaking of which …

You lost all credibility by pursuing discipline against our client.

Acme uses the same team to investigate compliance matters and disciplinary complaints. As a result, the person who was supposed to look into regulatory violations by our client’s boss also was asked to adjudge that same boss’ retaliatory claim that our client should be punished for breaking a company rule.

Not only did you fail to stop retribution against a whistleblower, in other words: You participated in it.

Compliance investigations are supposed to be conducted purely on their own terms, with the chips falling where they may. By handling a parallel H.R. matter that involved the same players — but with much different stakes — you destroyed the appearance of neutrality in either investigation.

How could our client believe that Acme was acting on her report, if its investigator also had the option to get her fired? Which action would be easier for Acme to take? Which action did it take, for that matter?

Of course she sought our counsel.

In short, you sent this client our way and gave us all the ammunition we need to win her case. Thanks! We’d prefer that Acme handled compliance properly, of course — but so long as you’re retaliating against people, we’re glad you make it so easy for them to get justice.

Our usual fruit basket is on the way.

Sincerely,
Anita Mazumdar Chambers
Tejal Garg

CC: Acme Corp. CEO

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Anita Mazumdar Chambers is a principal at The Employment Law Group, P.C. At the time of writing this article, Tejal Garg was an associate at the firm. “Acme Corp.” is an imaginary entity, but it shares characteristics with a company from which Ms. Chambers recently won a $2.4 million jury verdict for retaliation.

(Note: This version has been edited slightly from the version published by Corporate Compliance Insights.)

A Guide for Doctors and Other Medical Professionals

By Tom Harrington and Madeline Cook

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IMPORTANT: The following article is intended as a general summary of facts and law and not as individual legal advice upon which you should rely or act. Every case is unique and specific. This article represents our firm’s best knowledge as of May 2022.

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If you’re a licensed healthcare professional, you likely know about — and have a healthy fear of — the National Practitioner Data Bank. The NPDB is a federal clearinghouse for negative reports about doctors and other practitioners; getting named there can make you unemployable across the United States.

Hospitals and other entities must report certain adverse actions to the NPDB, including any revocation or suspension of a physician’s clinical privileges that lasts more than 30 days. The NPDB received more than 66,000 negative reports last year, and it responded to more than 10.6 million queries from employers, licensing bodies, professional societies, and the like. The database currently contains more than 1.6 million negative reports.

The NPDB exists for an important reason: to protect patients from bad medicine. During an employment dispute, however, it can be used unfairly. The threat of a disciplinary action that will trigger an NPDB report is a heavy cudgel against an employee — and if an NPDB report is filed for discriminatory or retaliatory reasons, it may be illegal.

How can you prevent, or even expunge, an unfair NPDB report against you? The key is to act quickly. Because the stakes are high, we recommend consulting with an experienced attorney as soon as you realize such an outcome is possible. Even without legal help, however, you have options.

In this article we outline steps you can take at three different stages:

• Before a disciplinary action is imposed;
• After the action is imposed, but before it’s reported to the NPDB; and
• After the action has been reported to the NPDB.

For simplicity, we will focus on a single scenario: the suspension of a physician’s clinical privileges for 45 days by a direct employer — specifically, by a hospital that must report the suspension to the NPDB. Such an action is likely reportable to a state licensing board and other bodies, too; the steps to avoid that outcome are similar.

We’re assuming here that the discipline is unjustified: that the accusation is trumped-up and your employer’s true motive is either discriminatory (targeting an older doctor to make room for a younger hire, for instance) or retaliatory (a reaction to your complaints about their Medicare billing practices, for instance).

As an aside: Sometimes a suspension might seem valid but still have been imposed in a discriminatory or retaliatory manner — so that you are punished but a colleague isn’t, for example, even though they did the same thing. An attorney may help you make that case.

But if you’re simply looking to avoid the consequences of your own failings, this article isn’t for you.

STAGE 1: BEFORE DISCIPLINE IS IMPOSED

The procedure to revoke or suspend a physician’s clinical privileges is governed by the Health Care Quality Improvement Act (HCQIA). In general terms, your hospital must give you adequate notice of proposed discipline; must allow you to request a hearing before imposing such discipline; must make a “reasonable effort” to get the facts; and must make a reasonable connection between those facts and the discipline it imposes. Its overall goal must be to promote “quality health care.”

Within these guardrails, hospitals may set their own rules, which often are found in the owner corporation’s bylaws. A lot of employers start with a behind-the-scenes investigation, notifying their physicians of a proposed disciplinary action only after they’ve reached a preliminary decision. As a result, the hearing that follows is basically an appeal — and your first chance to defend yourself in a meaningful way.

Like many lawyers, we believe such a front-loaded process is tilted against doctors, leaving them to play catch-up. Unfortunately, it is common.

If you request a hearing (which you should), the HCQIA requires it to take place before an independent intermediary, often an arbitrator or review board. You have certain rights: you can be represented by legal counsel, for instance; you will receive a statement of all charges against you; you can present your own evidence; you can call, examine, and cross-examine witnesses; and you can have a record made of the proceedings.

You should exercise all of these rights, ideally with the aid of an experienced lawyer. At the close of the hearing you may submit a written statement, which should restate your core arguments and evidence. If you can do it credibly, you should propose that you receive no suspension at all — or, at worst, a suspension that doesn’t require NPDB reporting.

Once a decision is made to finalize your suspension (or not), you have the right to receive the decision-maker’s explanation in writing.

Each hospital handles this process a bit differently, so you should study your employer’s bylaws and other documentation carefully. Pay strict attention to deadlines and don’t waive any rights by failing to act in a timely manner.

So what should you argue at your hearing?

First, you should present evidence that rebuts all charges of professional misconduct or incompetence. The best evidence is often the well-informed opinion of your peers — not only because they know your work and the relevant professional standards, but because their support shows your hospital what to expect in a courtroom, should your dispute end up there.

And second, if you believe that you’re being discriminated or retaliated against, now is the time to raise this concern, even if you haven’t previously flagged it to your employer. At a minimum, your narrative will help to frame the consideration of the decision-maker.

For example, in Levitin v. Northwest Community Hospital, 64 F. Supp. 3d 1107 (N.D. Ill. 2014), a hospital targeted the privileges of a female, Jewish surgeon of Russian descent after she complained about harassment based on these protected characteristics. The review committee took prominent note of the doctor’s harassment reports, among other problems and conflicts, and urged that her privileges not be reduced in any way.

One panel member described the surgeon’s purported errors as “typical clinical issues” that didn’t merit discipline at all — let alone “draconian … measures.”

(Our firm was not involved in the case.)

Depending on the facts, you may want to start litigating your discrimination or retaliation claims even as you cooperate in a hearing that threatens your clinical privileges. One consideration: Is the proposed suspension the only concrete action that’s been taken against you so far? Based on the law you intend to invoke, and on your location in the country, you may face different requirements for what previous events “count” as adverse — and different deadlines for legal action. But in general, filing a complaint could allow you to request an injunction and maybe stop the current hearing in its tracks.

We’ll talk more about injunctive relief below. In our opinion, you shouldn’t seek such action without the advice of an attorney.

Meanwhile, you or your attorney also should explore other, less dire options with your employer. Maybe you could stomach a shorter, non-reportable suspension, for example, or offer to get some extra education that would address your hospital’s issues.

Your discipline may be more negotiable than you imagine, and an early agreement (perhaps via voluntary mediation) will save time and money for both sides.

STAGE 2: AFTER DISCIPLINE IS IMPOSED, BUT BEFORE IT’S REPORTED

Let’s say your hearing is over and a 45-day suspension of privileges has been finalized. Your priority now is to prevent a career-damaging report to the NPDB. If you haven’t done it already, this likely means finding a lawyer, starting a legal action, and asking a court to put your discipline on hold.

You should have at least 30 days to get such an order: Based on NPDB guidance, your employer may report you only after a suspension has already run for 30 days.

Two main arguments can support legal action at this stage:

• My discipline didn’t follow the due-process requirements of the HCQIA; and/or
• My discipline was discriminatory or retaliatory, in violation of federal, state, or local law.

The due-process argument applies if your employer skipped steps or denied you certain rights — by blocking your access to a key witness, for example, or denying access to information about patient outcomes. Such facts might help to invalidate your suspension unless the hospital convinces a judge that extraordinary circumstances applied, like an imminent risk to patient safety.

The discrimination or retaliation argument, meanwhile, could arise under several laws: if your supervisor triggered the discipline process shortly after learning you are gay, for instance, or because of your age, race, disability or another protected characteristic — or if the investigation began shortly after you engaged in a protected activity such as requesting medical leave, complaining about discrimination, or reporting certain types of fraud.

Depending on where you live and work, you may find the broadest protection under state or local laws. As an example, it’s illegal to discriminate against employees in Washington, D.C. based on personal appearance or political affiliation — categories that aren’t protected under federal law.

As long as you make a viable argument here, you can ask a judge to issue an order to stop your employer from suspending your privileges and reporting the action to the NPDB and other bodies. If granted, such an order would likely remain in effect until you finish litigating the validity of your suspension.

In general, courts offer temporary injunctive relief only when four conditions are met. We’ll deal with them one by one.

First, the requested order must prevent an irreparable injury.

In our experience, judges understand the career devastation caused by an NPDB-reportable suspension. Many medical employers are required to check the NPDB when making initial hiring decisions, and regularly after that. Suspensions often are reported to your state licensing board, too — and in any case, the licensing board of every state has access to the NPDB. Depending on the reason for your suspension, the U.S. Drug Enforcement Agency and other bodies may also be alerted.

Being listed in the NPDB, in short, is a calamitous event. Various federal district courts have held that it can cause irreparable harm to a physician.

As a second factor, the potential harm to the hospital from complying with a restraining order can’t outweigh the potential harm of a suspension to the doctor.

Our firm has successfully argued that the hospital’s main risk here is monetary — continuing to pay a salary that might otherwise be suspended, for instance. Many judges view monetary harm as wholly reversible via litigation; it doesn’t usually outweigh irreversible career damage.

Third, the proposed order shouldn’t be against the public interest. This one can be tricky and is highly fact-specific. The U.S. Supreme Court has held that preserving the rights of victims of wrongful employment actions is a public good, but that the benefit must be balanced against concerns such as public safety.

In opposing an injunction, you can expect your hospital to argue that it needs to suspend your privileges to protect its patients or staff. If it has proof that you’ve caused actual harm to anyone, this argument could be difficult to overcome. But if the harm is purely theoretical or a matter of medical debate, you may prevail.

Meanwhile, if you were suspended for non-safety-related concerns such as poor billing practices, you should have an even easier time meeting the public-interest test — again, depending on the facts.

Finally, a judge must conclude that your underlying case has a substantial likelihood of success on its merits.

In other words, if you claim that the true reason for your suspension is retaliation, then your pleadings must contain enough credible facts that, in combination with the specific anti-retaliation laws you invoke, a judge can see how you’d win your case.

This obviously depends on the specifics of your situation. It also rides on the legal analysis, drafting ability, and possibly oral arguments of your attorney.

As an example, one of our firm’s clients, a doctor of internal medicine at the U.S. Department of Veterans Affairs, lost her privileges, was removed from her Chief of Staff position, and faced a termination she believed was retaliatory: The discipline had happened after she flagged improper practices at her VA facility.

In a Zoom hearing in the early days of the COVID-19 pandemic, we asked an administrative judge to stay her firing — and he found, based on the evidence and pleadings, “a substantial likelihood that [our client] will be able to demonstrate that her whistleblowing activities were a contributing factor in certain personnel actions taken against her.”

Not only did the judge order that our client couldn’t be fired until her case was resolved — he ordered that she be retroactively restored, with back pay, to her position as Chief of Staff while the case played out.

All cases are unique, of course. If you fail to win an injunction, your suspension will proceed and you’ll be reported to the NPDB. Your attention will turn to getting this action overturned, if that is possible.

One extra note: In addition to seeking an injunction, or perhaps as an alternative, you can try to negotiate the wording of a report to the NPDB so that it’s not as damaging. It’s not the same as preventing a report — but it may be your only practical option.

STAGE 3: AFTER AN ACTION HAS BEEN REPORTED TO THE NPDB

Once an adverse action has been recorded in the NPDB, it is very difficult to expunge. By this point, you’ll already have served at least 30 days of your suspension, so any action must apply retroactively. Your ideal outcome is a “void” or complete removal, but a void can be requested only by the entity that filed the report — the hospital that suspended your privileges, in our example — and only for a narrow set of reasons. Plus, even if your report is voided, you’ll have suffered reputational harm along the way.

Before we get there, though, let’s talk about a lesser option: the NPDB’s dispute process.

If you disagree with the accuracy of the report your hospital filed with the NPDB, you can dispute it and add a supplemental statement of up to 4,000 words. Whoever sees your record will also see your side of the story.

However, the NPDB says its dispute process can ultimately resolve only three questions — none of which addresses the justice you received from your hospital. Specifically, you can dispute:

• Whether the report was submitted in accordance with NPDB’s reporting requirements and eligibility rules;
• Whether the report accurately depicts the adverse action as it is reflected in the written record provided by the reporting entity; and
• Whether the basis for the adverse action is reflected in the written record provided by the reporting entity.

In short, did your reporting entity get all its paperwork right?

Disputing a NPDB report doesn’t automatically trigger any action. It just starts a 60-day period during which you’re supposed to work with your hospital, or whomever, to fix the problem. After that period ends, you must formally request escalation at the NPDB — where the most likely outcomes range from no action to a correction.

(We’re assuming that if the adverse action wasn’t reportable in the first place, you’d have prevented it at an earlier stage.)

If the dispute process doesn’t end to your satisfaction, you may be able to proceed in federal court under the Administrative Procedures Act, but your upside is limited. None of this means that you shouldn’t dispute an NPDB report; you just shouldn’t expect a great outcome.

In parallel, meanwhile, you should try to get your hospital to void its NPDB report — that is, withdraw it entirely. Voiding a report removes it from your disclosable record. The NPDB notifies everyone who queried your report in the past three years and tells them to destroy any copies. It also notifies the appropriate state licensing bodies.

Reports can be voided if they were filed in error; if they didn’t meet reporting requirements; or if the underlying action was overturned. As a practical matter, you’ll likely focus on the second or third reason, which means you’ll need to get the hospital to reduce or eliminate your suspension retroactively.

(Reports also can be corrected for errors or revised based on a change in the underlying action. That may help your reputation, but not by much.)

Assuming you started to litigate your case during Stage 2, above, you should insist that any settlement include a retroactive change to your discipline that knocks it below the NPDB’s reporting threshold, so the hospital can void its report.

Can you achieve this? It depends on the merits of your case. Plus, even if you have strong claims of discrimination or retaliation, your hospital may not get serious about negotiating until the eve of a trial — so you should be prepared for a long, draining fight. But your professional career is at stake; many doctors will view the cost as a worthwhile investment.

If you can’t reach a settlement, either a judge or a jury will decide whether your suspension was legal based on the law you have invoked. A favorable outcome will overturn your suspension and your hospital will void its NPDB report.

OTHER CONSIDERATIONS

In this article we’ve described a fairly straightforward scenario. In particular, as employment lawyers, we’ve assumed that you, the medical professional, are directly employed by the organization that is suspending or revoking your clinical privileges.

If you’re an independent contractor, however, you may have fewer legal options — and if your dispute is with your insurance carrier, which also must make reports to the NPDB, or with a professional licensing board, you may have a completely different set of concerns.

But no matter your situation, two basic rules apply.

First, when faced with the possibility of an unfair NPDB report, you must act immediately in your own defense. As with a serious medical condition, early action is better than later remediation.

And second, you should consult an experienced attorney early in the process — just as you’d recommend patients should consult a specialist.

Your prognosis could be better than you fear.

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Tom Harrington is a former principal at The Employment Law Group, P.C. At the time of publication, Madeline Cook was an associate at the firm.