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When Yale University School of Medicine hired new radiology department chair Bruce McClennan in 1995, it started a steady decline in patient safety at the teaching hospital, claim three accomplished radiologists. They say their efforts to improve matters were met with harsh personal attacks against their careers, and they’re suing. One of the three, Robert C. Smith, says his concerns got him constructively fired — harassed into leaving — for criticizing practices he deemed unsafe. Two other career Yale radiology professors, Morton Burrell and Arthur Rosenfield, claim their quality concerns were ignored — and punished with cuts in salary and perks. “This case doesn’t belong in court,” says William J. Doyle of New Haven, Conn.’s Wiggin & Dana, Yale’s lead defense lawyer for the case. The administration won’t flinch here, he vows. “We’re confident that at the end of the day it will be seen for what it is; an irresponsible attempt by disgruntled employees to bludgeon Yale into doing it their way. Well, it’s not going to work,” says Doyle. From the doctors’ point of view, it’s not an employment issue. Their case, they say, is about patient safety. For example, they claim untrained and overworked doctors were required to interpret X-rays without having adequate proficiency, and as a result have missed life-threatening conditions. In violation of Medicaid rules, they charge, some doctors were pressured to sign off on readings they’d never actually seen — even old reports never moved out of storage. All three have invoked a 1983 workplace whistle-blower statute and claim that Yale’s administration violates principles of academic freedom contrary to the school’s own personnel handbook. In response, Yale contends the doctors’ complaints were carefully investigated and found baseless, and amount to shockingly disloyal pressure tactics to oust X-ray department head McClennan. “What these guys are trying to do is use irresponsible claims about patient safety and Medicaid fraud to bludgeon Yale with their demands that this new department chairman be gotten rid of,” says Doyle. “We’re just not going to cede the running of this institution, or any part of it, to these people,” he adds. Peter B. Prestley, of Hartford, Conn.’s Madsen, Prestley & Parenteau, represents the doctors. He says Doyle unfairly trivializes their principled stand. At personal cost, the three radiologists are “fulfilling their legal and moral duties by reporting patient safety and illegality issues,” Prestley says. DELAYING TACTICS? His 60-page complaint in Burrell et al. v. Yale University alleges that doctors were pressured to sign off on X-rays they had never seen, in violation of Medicaid rules. When the plaintiffs complained to Yale authorities, they began at the departmental level, then went to the dean of the medical school, and finally to the president of the university. “Instead of an independent and effective investigation,” Prestley said, “they were met with distort, distract and delay. This is what forced the lawsuit.” The complaint was filed Jan. 3, and is currently before Superior Court Judge Michael R. Sheldon, in the complex litigation court in Waterbury, Conn. Yale is seeking an amendment of the complaint, and to narrow the scope of discovery. Says Doyle: “They’ve just served massively abusive and irrelevant discovery requests, and noticed 25 depositions, with a warning that more are to come.” This dispute, he says, is “an abuse of the system and an abuse of the statute they say they’re relying upon.” In Doyle’s view, the doctors’ concerns do not fit within the public policy exception to the general rule that employers can dismiss employees at will, for any reason or for no reason at all. That 1983 statute, C.G.S. Sec. 31-51(q), allows an employee to sue for damages if fired or disciplined for exercising free speech rights on the job, “provided such activity does not substantially or materially interfere” with the employee’s job performance or “working relationship between the employee and the employer….” Doyle emphasizes that last year the Connecticut Supreme Court, interpreting that statute in the case of Cotto v. United Technologies Corp. said the law applies only to “public concerns that are motivated by an employee’s desire to speak out as a citizen.” The majority warns that it doesn’t “transform every dispute about working conditions into a constitutional question.” As Prestley sees it, the case is about physicians’ concerns with the lives and safety of patients — and their first amendment and academic freedom to try to get problems corrected. “It’s squarely under the statute,” he says. Additionally, Yale has a handbook rule which states that Yale faculty, in coming together, have “affirmed their commitment to a philosophy of mutual tolerance and respect. Physical restriction, coercion, or intimidation of any member of the community is contrary to the basic principles of the university.” On repeated occasions over the five years of McClennan’s chairmanship of radiology, the doctors were both denied raises, and in some cases had salaries cut due to their complaints, or “lack of departmental citizenship.” Prestley says the overall conduct of the administration was a breach of a handbook promise not to harass or intimidate faculty members. His adversary, Doyle, has a sharply different view. “There are always workplace disputes. The arrogance of what these guys are doing, and to me, the institutional disloyalty, is absolutely remarkable,” he says. STATUTE OR HANDBOOK? The language of the faculty handbook, or other internal fairness procedures, may be the main focus of the case. Doyle says Connecticut’s Supreme Court has severely restricted how far it will inquire into the administration of a hospital or educational institution. In two modern cases, Gupta v. New Britain Hospital and Owens v. New Britain Hospital, the high court said it would only look into the fairness of a school or hospital’s own rules, as applied. Doyle says the Supreme Court is on record as squarely opposed to functioning as an appeals court for internal disputes about the basic administration of such institutions. On the contrary, says Prestley, even though his clients had to resort to law, their case is about good medicine — physicians placing their patients first, and tirelessly fighting to get their institution to heal itself. “Ultimately,” he says, “I believe this case will vindicate what Yale is all about.”

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