Gender discrimination leads to a $7 million settlement

Guest Column

Pain clinic to be named in the plaintiff’s honor

By Jonathan D. Rubin, Esq.
Partner
Kaufman Borgeest & Ryan
New York, NY

Christopher U. Warren, Esq.
Associate
Kaufman Borgeest & Ryan
Parsippany, NJ

Leilani Kicklighter, RN, ARM, MBA, CHSP, CPHRM, LHRM
The Kicklighter Group
Tamarac, FL

In 1980, a female doctor joined the medical staff of a hospital. Over the next 20 years, she wrote two books, expanded the hospital’s pain clinic into an internationally known program, was promoted to a full professor, and in 2000 became the first woman to head the hospital’s anesthesia department. A year after she became the head of anesthesiology, the hospital appointed a new chief of surgery.

The female doctor claimed that the new chief was abusive and demeaning toward her. She claimed that he let doors shut on her when she was following him and that he replied to her male colleagues when she spoke to him. She also claimed that she had compiled emails, internal hospital memos, and testimony from other doctors and nurses which confirmed that the chief was uncomfortable working with women generally and that he preferred to hire residents who were "tall, light skinned Western-taught men."

The female doctor claimed that when she complained to the hospital’s CEO, he did nothing. Instead, the female doctor claimed that the CEO accused her of "playing the victim" and that he viewed the situation as a problem between her and the chief. She additionally claimed that he told her that she created a "culture of whining" and on another occasion told her that "Joe can’t help himself." Lastly, the female doctor claimed that the chief tried to have her fired for incompetence while she was on sabbatical in 2007. She stated that shortly before her return, the CEO demoted her as anesthesiology chairwoman by email. When the CEO met with her colleagues the next day, the female doctor claimed that he told them she was demoted because she was too aggressive and had failed to maintain a good relationship with the chief.

As a result, the female doctor filed a lawsuit against the hospital, the chief of surgery, the CEO, and the hospital’s physicians group in 2008. ¹She alleged that she had been discriminated against based on her gender, and she cited her claims above. The defendants sought to move her claims to arbitration based on an employment arbitration agreement; however, the courts ruled that she could proceed with her claims. The parties agreed on a settlement in which the female doctor would collect $7 million. As part of the settlement agreement, the hospital also agreed to name its pain clinic after her, to "reaffirm and clarify its policies and procedures" for employees reporting discrimination and retaliation, and to sponsor an annual lecture series on women’s health and the academic contributions of women in surgery.

The chief executive asked the chief of surgery to resign in June 2008, after the lawsuit was filed, and he was told his management style wasn’t appropriate for the hospital. The chief of surgery doesn’t perform surgery at the hospital, but he has an endowed professorship, and the hospital provides him an office. The chief executive resigned from the hospital in 2011.

What this means to you

Human capital is an important aspect of any business. In healthcare, it is the human factor that provides direct patient care. Stressful work environments can negatively influence efficiency and safe patient care, among other outcomes, such as increased absenteeism and high turnover rate.

This case should be a wake-up call for all businesses, not just healthcare. In healthcare organizations, CEOs, administrators, deans, department and division chairs of medical staffs, and management at all levels should be aware of the factors in this case and undertake assessments to identify hostile workplace environments. Staff responsible for human resources (HR) should study this case and provide education to all staff from the top administrators to all rank-and-file employees. Such educational sessions should be ongoing, as staff and environmental changes occur. The organization’s board members should be included in these educational sessions, as the board ultimately is responsible for HR issues such as discrimination, harassment, and wrongful termination. Directors’ and officers’ insurance brokers or carriers might have specialists within their organizations who can intervene when such an individual hostile workplace situation is identified or suspected or in developing processes to prevent such a situation.

Legal counsel with expertise is this area also can play a role in developing preventive and intervention practices. Not all leaders are good managers of personnel. This area is one that should be assessed by management at all levels, with the assistance of HR staff. Educational courses can be developed to include basics of management styles; legal aspects of human resources; budgeting; basics of finance; basics of oral, written, and social media communication; and other pertinent aspects of successful business and personnel management.

Staff responsible for risk management and HR should collaborate to monitor employee complaints, formal and informal, to identify trends or issues. While gossip is always discouraged, monitoring gossip in an organization often can identify areas of employee discontent. Legal counsel, and staff responsible for risk management and HR, should review the employee handbook, especially the section relating to reporting hostile workplace situations, and revise it as necessary. If revisions are undertaken, all employees should be provided a copy of the revised handbook or section and return a written acknowledgement of receipt and understanding. This acknowledgement should be maintained in the individual employee’s personnel file or physicians’ medical staff file. While all members of the medical staff probably are not employees of the organization, they should be included in the distribution and acknowledgment of receipt of the policy and procedure and expected behavior while in that respective organization.

Bullying and harassment are social issues affecting schoolchildren of all ages, workers, and even the elderly and disabled. In healthcare, the disruptive physician is a frequent issue addressed with varying degrees of success. An increasing number of hospitals are employing physicians and buying physician practices. The ongoing changes to healthcare delivery settings will continue to reflect the changes in employment practices of physicians and physician extenders/allied health professionals.

The medical staffs of hospitals, ambulatory surgery centers, and other healthcare organizations are made up of independent practitioners, contracted physicians, and employed physicians. Members of the medical staff serve as members of committees, and in such capacity, they are agents of the organization. In many states, physician professional liability insurance policies exclude coverage for claims for activities arising from participation in medical staff peer review and other types of hospital/organizational committees. This exclusion puts the appropriateness of these activities squarely in the lap of the organization to monitor or oversee.

This case is a sad commentary on the negative relationships between some physicians and in particular between any person of power and a subordinate. Such negative relationships often are played out between physicians and nurses and are frequently under-reported and unreported.

In this case, others were aware of the interactions between the principle parties, and the claimant actually made a formal complaint that was disregarded. One wonders how many others were treated in this hostile manner by this chief of surgery. In reading the facts of this case, the female head of anesthesiology reported this information directly to the CEO, who also exhibited gender bias rather than initiating a referral to the dean, if appropriate, and to the hospital’s HR department to initiate a full HR investigation. The CEO should have been sensitive to the ramifications of this situation, engaged risk management to collaborate with HR in this investigation, and set out a directive to control and intervene so it would not escalate.

Had this organization instituted a policy of zero tolerance for harassment at any level and a culture of valuing its employees at ALL levels, and had all levels of the organization "walked the talk," this situation might never have occurred, or it would have been identified early and addressed in a positive way to benefit all employees. (For more information, see package of stories on sexism among physicians, Same-Day Surgery, June 2012.)

Reference

1. SJC-10375 (Mass 2009).