Cardiologist Daniel West, MD, had practiced at Trinity Health Muskegon Hospital in Muskegon, Michigan, since he finished medical school. His mother worked at that hospital as a lab technician, and West and his brother were born there.
The hospital was his “forever job,” said West, who is 66. He had risen through the ranks to become chief of cardiology and planned to finish his career at the same place he started.
But West’s plans were stymied when he was abruptly fired by Trinity this fall after he reported patient safety concerns about another physician, according to a whistleblower lawsuit filed by West.
West claims Trinity retaliated against him after he shared evidence that another cardiologist was misinterpreting test results and performing unnecessary heart procedures on patients. He was terminated “without cause” on October 28, according to a legal complaint issued on November 19 in US District Court for the Western District of Michigan, Southern Division.
“I poured my heart and soul into caring for my patients and supporting my community, my practice, and the hospital for over 35 years,” West told Medscape Medical News. “I feel betrayed and humiliated by the very institution for which I dedicated my entire career.”
The case offers lessons for other physicians considering reporting wrongdoing to their employers or government officials, experts say.
Trinity Health Muskegon does not comment on the specifics of active litigation, but the hospital will “vigorously defend ourselves against any allegations which are inaccurate,” a hospital spokesman told Medscape Medical News.
“We remain dedicated in our efforts to uphold high standards and integrity in all aspects of our healing ministry,” the spokesman said in an emailed statement. “We will continue to ensure that our actions are in the best interest of the patients and community we serve.”
Concerns Mount Over a Cardiologist’s Care An echocardiography technician first shared his concerns about the other cardiologist with West in 2021, court documents show.
The tech raised questions about the physician’s interpretation of echocardiographic studies on patients being considered for implantable cardioverter-defibrillators (ICDs). The cardiologist frequently documented reports of ejection fractions (EFs) of 0.35 or less, when it appeared clear that patients’ hearts were much stronger, the tech told West. Ejection fractions measure the heart’s ability to pump oxygenated blood through the body.
The tech showed an example of the cardiologist’s reading to West, who convened three other cardiologists in the practice to review the results, according to court documents. All three concluded the EF was closer to 0.45.
Results of EFs of 0.35 or less indicate that an ICD is appropriate and necessary, according to the complaint, noting that “intentional underestimation of EF leads to unnecessary, expensive, and risky implantation of ICDs in patients who do not require them, with a subsequent need to replace the devices every 8-10 years when the batteries would become depleted.”
When confronted by West, the cardiologist in question allegedly claimed his interpretation was accurate and proceeded with the ICD surgery.
West expressed his concerns about the cardiologist to the chief medical office for Trinity Health in Muskegon, who asked West to show proof of his allegations, the lawsuit claims.
West and his fellow cardiologists then spent nearly 2 years scrutinizing the cardiologist’s ICD procedures, including requesting data from the medical device provider that supplied ICDs to the Muskegon cardiology practice, according to West’s complaint.
In May 2024, West received a list from the medical device provider that detailed devices, including ICDs, supplied to the practice with notation on the implanting cardiologist.
West and his colleagues reviewed the data and started a comprehensive review of the cardiologist’s patient files where ICDs were surgically implanted. They believed they had found a troubling pattern suggesting allegedly fraudulent implantation of ICDs on patients whose imaging did not support the procedure. With support from the other physicians, West presented the evidence to Trinity executives.
Three weeks later, on June 17, 2024, West claims he was suspended, with administrators giving only “a vague explanation” about some concerns related to his office behavior.
Fearing the evidence would be buried, West and the group of reviewing cardiologists authored a letter to Trinity administrators about their concerns and also reported their findings to the US Attorney’s Office in Grand Rapids, according to court documents.
A Trinity administrator later contacted West and the physicians who signed the letter and accused them of violating Health Insurance Portability and Accountability Act (HIPAA) privacy laws by their email transmission of the information. The administrator demanded the physicians destroy their copies of the data.
West proceeded to destroy his copies of the information after providing the evidence to the US Attorney’s Office and confirming that Trinity’s counsel had preserved the material. He was allowed to return to work in August 2024, but was subsequently terminated on October 28.
Grand Rapids attorney Shoran Reid Williams, who representing West, said Trinity gave no reason for firing West, and that it was clearly in retaliation for reporting the unnecessary surgeries.
The other physicians who signed the letter weren’t fired; they continue to work at the hospital. After West was terminated, the hospital offered his position to the other cardiologists in the group, Williams said, but none of the doctors would accept it because they felt what happened to West was wrong.
West’s lawsuit accuses Trinity of violating the retaliation provision of the False Claims Act (FCA) and the Michigan Whistleblowers’ Protection Act. Both statutes protect from retaliation employees who report suspected law violations.
“It is incredulous that you would have a group of physicians sign off on a letter to tell the administration, ‘This doctor is a problem, and here is what the problem is,’ and the response from the hospital is to fire the head of the practice group,” Williams said in an interview with Medscape.
Trinity has not yet responded to the complaint. A summons was issued on November 20.
A spokeswoman for the US Attorney’s Office for the Western District of Michigan said she could not confirm if there is an investigation involving West’s report. The office does not discuss details or share status updates about investigations, she wrote in an email.
Retaliation Protections for Physicians Differ All physicians are protected by the retaliation provision of the False Claims Act. The provision prohibits retaliation against employees who report violations or suspected violations of federal laws. But state protections can vary widely, said Clayton Wire, a Denver-based whistleblower attorney.
New Jersey has one of the strongest whistleblower statutes, he said. The state’s Conscientious Employee Protection Act bans an employer from taking any retaliatory action against an employee who has reported an employer’s law violation of the law, a rule or regulation issued under the law, or other workplace activities that are potentially harmful to the public and/or the environment.
Other laws, like Colorado’s statute, are less stringent, Wire said.
“But generally speaking, whether it’s through a statutory protection or some sort of common law wrongful discharge type protection, most physicians and medical care providers are going to be able to find some sort of protection under state law,” Wire said in an interview.
Advice For Whistleblower PhysiciansThe National Whistleblower Center provides a variety of online educational resources about whistleblowing issues, including information on state rights.
In recent years, Wire has seen a rise in whistleblower cases involving allegations of medically unnecessary procedures. This has been an evolving area of law, he said. Some courts have disagreed on whether medical judgement can be the basis of a FCA claim.
In Polukoff v St. Mark’s Hospital, Gerald Polukoff, MD, filed an FCA action on behalf of the government that alleged another physician had performed thousands of unnecessary heart surgeries and fraudulently billed Medicare for them. Polukoff claimed the physician’s employer was complicit in and profited from the doctor’s fraud. A district court granted the defendant’s motions to dismiss, reasoning that a medical judgment could not be false under the FCA.
The 10th US Circuit Court of Appeals however, reversed the decision, holding that a doctor’s certification to the government that a procedure is “reasonable and necessary” is false under the FCA “if the procedure was not reasonable and necessary under the government’s definition of the phrase.”
Courts now generally accept that the exercise of medical judgment cannot insulate a medical provider from a FCA violation, Wire said.
“For doctors, that means if they report a fellow physician who they believe is engaging in medically unnecessary care in a way that is potentially defrauding government insurers, even if the necessity of that care is arguably subject to ‘medical judgment,’ the physician whistleblowers are protected from retaliation under state and federal laws,” he said.
Physicians who believe they’ve been retaliated against by their employer for reporting wrongdoing must prove it in court on a number of fronts, Wire said.
They must show they engaged in protected reporting and reported illegal conduct that falls under a statutory or common law protection, he said. The whistleblower must also prove the employer knew of the protected reporting, and that the whistleblower suffered an adverse employment action of some kind. They must also prove a connection between the protected reporting and the eventual adverse action.
Advice For Would-Be WhistleblowersWire recommends that physicians consult an attorney as soon as they believe they’ve identified illegal conduct, even before reporting the problem internally. This can help physicians understand both their rights and how best to frame their internal reports to protect themselves from retaliation, he said.
Attorneys also can help physicians understand what’s necessary to successfully report illegal conduct to the government, he said. For example, successful whistleblower lawsuits must allege the fraud with “specificity,” which in some jurisdictions can mean providing specific examples of patients whose services were improperly billed for, Wire said. Under HIPAA, there is an exception that allows whistleblowers to gather and disclose protected health information to the government in order to satisfy the specificity requirement.
Without an attorney’s guidance, physicians’ fear of a HIPAA violation may prevent successful whistleblowing, Wire said.
Cardiologist Hopes Lawsuit Will Help Other DocsWest hopes to return to practicing soon, with another medical group. He was able to exit a noncompete clause in his Trinity contract that would have forced him to move from his hometown in order to work, he said.
West hopes his legal case will discourage hospital administrations from firing clinicians who identify fraud or questionable patient care, he said.
“I hope that my case will help expose flaws in our medical system that allow unscrupulous physicians and hospitals to put profits ahead of patient care,” West said.
Alicia Gallegos is a freelance healthcare reporter based in the Midwest.
Source : Medscape