Employment Law Daily Mayo Clinic doc fired for poor performance and safety concerns, not whistleblowing
Tuesday, May 24, 2016

Mayo Clinic doc fired for poor performance and safety concerns, not whistleblowing

By Lorene D. Park, J.D. Affirming summary judgment against a Mayo Clinic physician’s whistleblowing and other statutory claims under federal and state law, the Eighth Circuit found that the clinic properly investigated him once patient-safety concerns were raised and that his termination for poor performance (based on the investigation and an independent performance review) was not pretext for retaliation or motivated solely by his reports of alleged violations of applicable laws on providing emergency treatment or reporting mistreatment of vulnerable adults. His defamation claim also failed (Elkharwily v. Mayo Holding Co., May 20, 2016, per curiam). Poor reviews. The Mayo Clinic physician provided patient care and refined the “hand-off” for patients released to the care of their primary providers. At the end of his 90-day probationary period, an administrator evaluated him, pulling information from other doctors and staff. His evaluation noted many concerns, including that he: had difficulty prioritizing; seemed adversarial and resistant to admitting patients; unnecessarily generated work for emergency departments; and was not trusted by nursing staff. Despite the concerns, the hospital administrator and the department chair extended his probationary period by 90 days rather than terminating him. Meanwhile, the employee participated in Minnesota’s Health Professionals Service Program (HPSP) because he has bipolar disorder. The program requires a worksite monitor to submit reports on performance. Here, the monitor was a physician on the administrative team. In preparing the report, he interviewed five nursing supervisors, who reported the same concerns expressed in the employee’s review. The HPSP report was sent December 6, 2010. Termination. The next day, a nurse questioned the employee’s order to give intravenous (IV) Tylenol, which he insisted he gave another patient two days earlier. The nurse confirmed the hospital did not carry IV Tylenol and reported the incident. When the employee was questioned by an administrator, he first said he had used it for another patient; then changed his story, stating “It would have been the right medication to use had it been available.” Concerned about patient safety, the clinic put him on administrative leave pending investigation. Based on the magnitude of the concerns, and after consulting in-house counsel, the administrative team decided to terminate him or allow him to resign. He chose to resign on December 11. Lawsuit. The employee then filed suit, alleging defamation based on statements made about his job performance, and violations of the Minnesota Vulnerable Adults Act (MVAA), Emergency Medical Treatment and Active Labor Act (EMTALA), Minnesota Whistleblower Act, and False Claims Act (FCA). The district court dismissed and/or granted summary judgment on the employee’s claims and he appealed. MVAA claim fails due to manner of report. The MVAA provides that if a mandated reporter has reason to believe a vulnerable adult is being maltreated, he “shall immediately report the information” either to the facility’s common entry point or by following the facility’s internal reporting procedure. The employee claimed that on December 7, the clinic provided substandard care to two patients, which he reported to a member of the administrative team. However, he conceded that he did not report the alleged violations to a common entry point and he did not show compliance with the clinic’s internal reporting procedure. The Eighth Circuit therefore affirmed dismissal of this claim. Defamation claim fails due to qualified privilege. Dismissal of the employee’s defamation claim was also affirmed because the clinic’s statements about his performance were protected by qualified privilege—they were made in the course of evaluating his performance and stemmed from a proper motive as part of two mandatory reviews (the 90-day review and HPSP report). In the court’s view, Mayo’s motive and occasion for making the statements were proper and the criticisms were based on reasonable cause. EMTALA, MWA, and FCA claims fail, too. The EMTALA claim was based on two events between December 7 and 8, when an on-call physician allegedly refused to come in to treat two patients in a reasonable time, and when the employee refused to transfer a patient who was not stable—he claimed he was fired in retaliation for his refusal. The MWA claim stemmed from a September 15 incident in which he thought a treating physician engaged in “criminal negligence” by failing to admit a patient who might be having a heart attack. The FCA claim was based on an email the employee sent to supervisors suggesting the clinic establish an inpatient wound-care team because not having one was “a huge loss of revenue for the hospital.” He claimed he had reported that Mayo was providing unlicensed care and unlawfully billing patients. Affirming summary judgment on each of these claims, the Eighth Circuit first noted, as to the EMTALA claim, that the employee had signed a notarized statement that the patient he refused to transfer “had been stabilized.” Moreover, even assuming he established a prima facie case under the MWA and EMTALA, and engaged in protected conduct under the FCA, he failed to show the clinic’s reason for terminating him—poor performance—was pretext for retaliation or motivated solely by his reports of violations. Although he claimed the performance evaluation and IV Tylenol investigation were shams, his argument was not supported by the record. To the contrary, the evaluations were confidential, were based on feedback from numerous staff interviews, and were conducted independently of each other. The appeals court also found that Mayo’s investigation of the IV Tylenol incident was the proper protocol in response to the employee’s inconsistent version of events, which raised legitimate patient-safety concerns.

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