As I said yesterday, this story has gotten away from UT Southwestern administration, and now, with the Chronicle of Higher Education's and Inside Higher Ed's reporting on the scandal, people are reading about UT Southwestern's resident woes from coast to coast.
The newspaper said its review of records and interviews with current and former staff members of the medical center and the hospital, Parkland Memorial, suggested a near reversal of power between residents and the faculty members who oversee them at Parkland.
The lawsuit Malveaux v. UTMB shows just how hard it is to pierce the shield of sovereign immunity and just how ready government entities like UTMB are to raise that shield. This decision looks a little twisted to me, but the plaintiff has to live with this recent decision anyway.
In 2003, as treatment for breast cancer, Cynthia Malveaux underwent a lumpectomy, chemotherapy, and radiation therapy. When she sought breast-reduction surgery in 2006, physicians told Mrs. Malveaux that the radiation rendered the tissue in her right breast inoperable. But Dr. Lisa Gould, a surgeon at UTMB, disagreed and maintained that she could operate on the irradiated tissue. On July 19, 2006, Dr. Gould performed a bilateral reduction mammoplasty on Mrs. Malveaux at UTMB. After the surgery, Mrs. Malveaux's right breast failed to heal, and she suffered extensive ulceration and fat necrosis. As a result, Mrs. Malveaux has undergone numerous procedures, including an unsuccessful skin graft and a total mastectomy of her right breast.
It seems to me that the law is pretty clear that residents must be supervised by faculty, by an attending physician. I would not necessarily gather that from the answers in this deposition, however.
8 Q. Dr. XXXX on February the 28th 2008, wrote to 9 his superior, Dr. Rege, and he included Dr. Minei. Dr. 10 XXXXX advised that as follows: I would like to bring to 11 your attention as chairman of the Department of Surgery 12 at UT Southwestern and as surgeon in chief of Parkland 13 respectively, that the issue of patient consent and the 14 attending's participation in operative procedures at 15 Parkland Hospital remains unresolved. 16 Attached is a PDF of my operative note from 17 2/23/08 when I was on call. This patient underwent an 18 open below knee amputation prior to my arrival in the 19 plating room and I never had any opportunity to meet the 20 patient preoperatively. 21 Per your previous advice at the beginning of my 22 shift I let the residents know that I wanted to meet 23 every patient preoperatively and examine them. I also 24 asked the residents to call me before starting any 25 operative procedure. In this particular case neither of
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1 my instructions were followed with the result that I 2 never had the opportunity to examine the patient 3 preoperatively and the amputation was completed before I 4 arrived in the operating room. In addition, the consent 5 form did not list me as the operating surgeon. 6 As both of you are aware from previous 7 discussions in several departmental and divisional 8 meetings, this is a recurrent systematic problem that 9 needs to be fixed. I would also like to mention that 10 this practice is not consistent with my standard of care 11 and places me in a very difficult situation ethically, 12 morally and legally. Please advise.
This news release on the Androvett Legal Media and Marketing website doesn't give a lot of new information, but it does provide a little different perspective. I think Larry Gentilello is making a lot more headway and a lot more publicity than UT ever thought he would.
“This is a case of a doctor standing up for patients and being shot down by the medical community,” says Ms. Aldous. “Dr. Gentilello wanted to make sure that all patients at Parkland received the best treatment, but UT Southwestern and Parkland officials apparently have a different view of the practice of medicine.”
The UT Southwestern and Parkland Hospital blogger is not letting UT Southwestern up for air. This particular post offers some documentation to back up the allegations.
Does UT Southwestern submit fraudulent bills? Is it widespread?
UT Southwestern's own internal audit was recently leaked. It indicated that lack of compliance with federal regulations was "systemic." Multiple departments and department chairs were involved. This was very recent. The audit report is dated February, 2010.
Back in May, a federal jury told UT Southwestern Medical Center to pay more than $3.6 million to a doctor who said he faced racial discrimination and retaliation after resisting pressure to commit billing fraud.
Now a state appeals court has put another doctor employed by the Dallas medical school, Larry Gentilello (right), a big step closer to getting similar allegations in front of jurors.
UT attorneys actually tried to claim that an employee or faculty member could not be protected by the Whistleblower Act if he or she reported an issue internally (never mind an internal policy prohibiting retaliation). Apparently, UT wants employees to go outside of any UT component to report an issue, which would seem to me to be shooting itself squarely in the foot. It would be much more advantageous for any outfit to find out about noncompliance issues internally so that the it could at least do some damage control before the Feds get involved. This astounding contention by UT would have the feds involved from the get-go. (Hey! Attorneys really will burn down a place in order to save it.) As the opinion below indicates, the court did not buy the UT notion in its motion. Gentilello's case is alive and well.
According to UT Southwestern, Rege could not "regulate under" or "enforce" Medicare or Medicaid rules and regulations because he could not himself write the rules or impose fines or criminal liability under those rules and regulations. However, unlike the DWI statute at issue in Needham, the statutes at issue here specifically charge UT Southwestern and its physicians with implementing the laws at the hospital level. While Rege may not have had the power to write the rules or assess fines or other criminal sanctions for a violation of the rules, he had both the power and the duty to enforce those rules and regulations at UT Southwestern. Rege specifically testified that he had the ability to decide whether UT Southwestern could bill Medicare or Medicaid or not. There was also evidence that he could immediately stop any procedure in violation of the applicable rules and regulations and discipline an offending physician. Rege conceded at the hearing that he enforced the laws insofar as he set policies and procedures for Medicare and Medicaid compliance. He also conceded that he had the ability to "regulate, enforce, and investigate any irregular billings." Rege also testified that he had the authority to enforce faculty supervision on residents.
The story about UT Southwestern's VIP Program broke in 2007. Apparently, the "special patient" featured in the deposition linked below, was so special that former President Wildenthal showed up at her house on the day of her death and went through her personal belongings to, he said, be of help.
The Chronicle of Higher Education has even noticed the Texas A&M whistleblower lawsuit recently filed. The Chronicles' readers have some pretty lively things to say, too. They are worth a read, not only for this case, but for other Texas A&M gaffes. For instance, one commenter claims that the A&M vice president who had to resign after falsely claiming a doctorate and service as a Navy seal departed with a "generous" severance package.
I agree with #s 6 and 7. Stripping one's administrative position is a lawful termination, but stripping tenure as well is termination with extreme prejudice. And don't think for a minute that this is the end. Hash is being dared to speak out again, at which point he will be terminated, period. Shared governance is in rough shape at TAMU, but what's really sad is that it is a situation not all that far from the norm.
I have to wonder what sort of "due process" Texas A&M administrators gave to this tenured professor before they took his tenure away. The article, linked below, says they got around to giving it back to him later.
Hash in 2008 became vice dean of academic affairs and associate professor with tenure. The suit says Hash later learned that "certain high level employees/officers of the defendants and/or their family members had financial interests" in the medical building.
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