Lawsuit claims RM acted appropriately

The lawsuit filed recently by Margaret O'Connor, RN, the risk manager at Jordan Hospital in Plymouth, MA, until she was fired recently after reporting an EMTALA violation, outlines what she says was an act of retaliation by hospital leaders.

After her dismissal, O'Connor sued the hospital, the board of directors, President and CEO Peter Holden, Vice President of Organizational Development William Kirkwood, and Head of Clinical Reliability Harvey Kowaloff, MD. Healthcare Risk Management obtained a copy of the complaint filed against the hospital, and this is how she describes the events that she says led to her firing:

• About 8 a.m. on March 26, 2010, a patient came to the emergency department. She was six months pregnant with twins, diabetic, and considered a high-risk pregnancy. She complained of abdominal pain and nausea. A nurse practitioner diagnosed a "stomach bug" and ordered intravenous fluids but no further testing, observation, treatment, or diagnosis. The patient actually was in active labor.

• After two hours, during which the patient continually complained of abdominal pain, the nurse practitioner determined that the patient was in labor. At this time, the patient asked to be transferred to South Shore Hospital in Weymouth, MA. She was transferred at 10:20 a.m. without approval from an attending physician. No physician had determined she was in stable condition and safe to transfer.

• The leg of one her twins was protruding into the patient's vagina when she arrived at South Shore. Both premature babies were delivered by emergency caesarian section. The mother suffered a partial abruption of the placenta. The second child experienced significant complications, including ingestion of blood into the lungs, and required intubation and a respirator.

• Two days later, O'Connor received a phone call from the South Shore risk manager, who said she was very concerned with the transfer. She said "Do you people have doctors over there? I hope this isn't an EMTALA violation." O'Connor had no knowledge of the incident at that point, but she told her South Shore counterpart that she would investigate and get back to her.

• O'Connor investigated the incident and determined that the transfer violated EMTALA. She reported the violation to senior management.

• O'Connor consulted Jordan Hospital's legal counsel, who advised her to self-report the violation as mandated by the CMS Conditions of Participation. Counsel also advised that it would be better to report the violation before South Shore reported it.

• She met with Kowaloff, Holden, and Deborah Sullivan, senior director of clinical reliability and patient safety officer. O'Connor discussed the incident, why it was reportable, and the potential penalties. During the meeting, Kowaloff went on the Internet and determined that the hospital would face a $50,000 fine. Holden, the president and CEO, told O'Connor that he was "not telling you not to report it, but let's make sure we need to."

• O'Connor explained that the hospital was required by law to report the violation, and the hospital attorney advised reporting it. She also explained that the hospital would be at greater risk if South Shore reported it first.

• O'Connor then solicited help from the hospital attorney to summarize the events and complete the report. She then met with Sullivan and Kowaloff to complete the action plan and obtain senior management's approval before making the report. Then O'Connor contacted the South Shore risk manager to advise that Jordan Hospital was self-reporting.

• O'Connor submitted the report to CMS. Three days later, Jordan Hospital was visited by the Department of Public Health, which investigates EMTALA violations on behalf of CMS. The department's five-day investigation found multiple violations in obstetrics and the emergency department. The investigators concluded that there had been as many as four prior EMTALA violations, in addition to the one reported. The potential penalty would be $250,000.

• The report also outlined major deficiencies in education of staff regarding EMTALA, hospital policies not in place or not followed, signage not available, and failure to educate patients about the risks of transfers. O'Connor began working on remedies to the problems cited.

• CMS informed Jordan Hospital that the EMTALA violation required the hospital to complete a validation survey from CMS, which senior management knew would be intensive and likely to result in more citations and penalties.

• Before that survey began, a department director asked O'Connor why she had to report the violation when the mother and twins were doing well. O'Connor informed senior management that she planned to also inform the patient of the violation after the CMS validation survey was complete.

• On May 19, 2010, 12 CMS investigators arrived to conduct the validation survey. The same day, shortly after their arrival, O'Connor was called to a meeting with Kirkwood and Kowaloff, where she was fired. Kowaloff told her the reason was "regulatory."

Editor's note: Healthcare Risk Management summarizes here the points made in a risk manager's case against her former employer, Jordan Hospital, which vehemently denies that her firing earlier this year was related to whistleblowing. However, we provide this information to offer one person's view into the inner workings of hospitals.