Whistleblower Protection Blog : Whistleblower Lawyer & Attorney : National Whistleblower Legal Defense and Education Fund : Whistleblower Protection, Fraud Claims : Washington DC

Florida nurses rallied at their state capitol this week to call for minimum staffing ratios and whistleblower protection. The Miami Herald was there to report on the rally. The nurses cite research showing that improving nurse-to-patient ratios saves lives and costs less than alternative safety procedures that would cost more. The bill would also provide employee protection for nurses who refuse unsafe assignments or file complaints against the hospital or clinic. These protections would drastically improve their right of free speech within the workplace. The march was sponsored by the National Nurses Organizing Committee which is organizing nurses in Arizona, California, Florida, Illinois, Maine, Missouri, Nevada, Ohio, Pennsylvania and Texas.

Intern Quinn McCall contributed to this blog entry.

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A jury in Andrews, Texas, has acquitted an experienced nurse of charges that she misused official information when she sent an anonymous letter to a state medical board to complain about a doctor's malpractice.  Anne Mitchell had been a nurse at the Winkler County Memorial Hospital for 25 years. In April 2008, Dr. Rolando G. Arafiles Jr. arrived. At the trial, other nurses confirmed that Mitchell had good grounds to be concerned about Dr. Arafiles' malpractice, and the hospital administration had not done enough. The New York Times reports that the jury foreman questioned why Mitchell had ever been arrested. “We just didn’t see the wrongdoing of sending the file numbers in, since she’s a nurse,” Harley Tyler, a high school custodian, told the paper. Mrs. Mitchell, who did not testify in her defense, said after the verdict that she had been trying only to protect her patients. “It’s a duty to every nurse to take care of patients,” she said, after wiping away tears of relief. Rebecca Patton, president of the American Nurses Association, told the Times that the verdict is “a resounding win on behalf of patient safety.” Mitchell's lawyer, John H. Cook IV, said “there was great damage done in this case, and this [acquittal] does not make them whole.” Cook has now filed a wrongful discharge case on behalf of Mitchell and her co-worker. This case is a good example of why whistleblowers need access to jury trials.  The jury could tell when the nurse was acting properly in reporting medical malpractice, even when the sheriff, the prosecutor and the judge could not.

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My friend Paul Taylor of the Truckers Justice Center shares this beautiful quote that I will be using in briefs for my clients:

"Today’s employers, even those with only a scintilla of sophistication, will neither admit discriminatory or retaliatory intent, nor leave a well-developed trail demonstrating it. ... It is a simple task for employers to concoct plausible reasons for virtually any adverse employment action ranging from failure to hire to discharge."

Raymond v. U.S.A. Healthcare Center-Fort Dodge, LLC, 468 F. Supp.2d 1047, 1054 (N.D. Iowa 2006).

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Yesterday, I blogged about a pending multi-million dollar False Claims Act (FCA) lawsuit agains Pharm giant Wyeth. Today's news brings another example of how the FCA can be used to bring gross misconduct to light. This case, involving a western Pennsylvania psychiatric institution has settled for far less money than many of the more highly publicized FCA cases, but the shocking allegations are what really caught my attention.

The whistleblower in this case, Dr. Stefan Kruszewski, was a psychiatrist reviewing records of the Southwood Psychiatric Hospital. Southwood is a private facility that houses over 100 juvenile boys who are wards of the state. For the care of these kids, Southwood is paid through state and federal contracts. Dr. Kruszewski reported that Southwood, in order to inflate their government payments, "...held juveniles who did not require hospitalization, prescribed and administered unnecessary medication to increase government reimbursements, and billed the government for care that was not provided." (Pittsburgh Tribune Review)

The Department of Justice has settled this lawsuit and Southwood is paying $150,000 and is being forced to make necessary changes to raise its standard of care and clean up its act. Under the settlement, Southwood is not admitting any wrongdoing, but it is unthinkable that a hospital would take advantage of, indeed abuse,  vulnerable young children in order to make a quick buck off of the taxpayers. The story also shows how valuable the False Claims Act can be in bringing to light all kinds of misconduct when government money is involved. Congress should continue to work to pass current legislation which is designed to strengthen the FCA.

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The United States Government, along with the governments of 15 states and the District of Columbia, have joined with two whistleblowers who allege that drug manufacturer Wyeth bilked US taxpayers out of hundreds of millions of dollars. As reported in the Wall Street Journal and the FierceHealthcare website, Wyeth is accused of overcharging Medicare and Medicaid programs nationwide for purchases of it's acid-reflux drug Protonix. Under federal law, drug companies are required to offer prescriptions to federal aid programs at the lowest possible price. Wyeth, however, the suit alleges, was offering Protonix at a 90% discount to private hospitals, while charging the federal government much higher rates.

The lawsuit was filed under the False Claims Act, which has its roots in the civil war era, and remains  the United States' most powerful tool for rooting out fraudulent government contracts. President Obama's administration has recently expressed its support for strengthening the law, and legislation to do so is currently pending in Congress.

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Did you know that whistleblowers reporting under the False Claims Act have accounted for over $1 Billion in recovered federal and state taxpayer dollars this (fiscal) year alone?  This Marketwatch.com article details the biggest fraud recoveries in '08, including hundreds of millions of dollars from companies such as Amerigroup, Merck, Bechtel, CVS, and Pratt & Whitney. 

Despite these results, the False Claims Act (a civil war-era law that was last amended in 1986) is in need of some retooling. Senators Grassley and Leahy are pushing an amendment package (Bill # S. 2041) that would close the loopholes created by destructive Supreme Court decisions, such as Allison Engine Co. v. U.S. . this legislation should be enacted immediately. Further, because we know that the DOJ is letting hundreds of FCA cases languish without investigation, the DOJ needs to hire more civil fraud attorneys and focus more resources on ferreting out government contractor fraud.

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Many of our readers (and certainly those who attended Whistleblower Week in Washington 2008) may have heard about the case of Dr. Gil Mileikowsky. Dr. Mileikowsky is a California Obstetrician who, in 2000, began blowing the whistle on some very disturbing issues at a hospital that was operated by Tenet Healthcare. Among other things, Dr. Mileikowsky, who has been practicing in the US since 1979, reported negligence by his coworkers and a lack of willingness by the hospital to investigate medical errors. Because of these reports, he suffered unrelenting retaliation, and has been stripped of his clinical priveleges. (for more information on Dr. Mileikowsky, see his homepage and the Alliance for Patient Safety website, which details his struggle).

Dr. Mileikowsky has filed suit against HCA and Tenet Healthcare, and the case is currently being appealed in the Supreme Court of California. 20 Public Interest Groups, including the National Whistleblower Center, have signed on to an Amicus Curaie brief in support of this brave physician.

Click Here to read the brief.

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