By Greg Freeman
Executive Summary
A heart transplant patient’s family is suing the hospital and clinical team for malpractice, alleging they kept the patient alive to improve survival statistics. The transplant director would not allow the option of comfort care to the brain-damaged patient.
- The transplant director was recorded saying the move was unethical.
- Centers for Medicare & Medicaid Services declared “immediate jeopardy” after an investigation.
- The hospital could face False Claims Act allegations.
A New Jersey hospital and a medical team are facing a medical malpractice lawsuit from the family of a man who says they kept the brain-damaged patient alive for a year to boost the hospital’s metric on survival after heart transplant.
The nonprofit group ProPublica began investigating a pattern of failed heart transplants at the hospital in 2019, finding that the bad outcomes had resulted in the hospital’s percentage of transplant patients alive after one year had fallen below the national average. Six of 38 heart transplant patients had died in the first year after surgery, resulting in a survival rate of 84.2%. The national survival rate at that time was 91.5%.
Fearing the low mark would prompt an investigation from the Centers for Medicare & Medicaid Services (CMS), the hospital pressured medical staff to improve this key benchmark. ProPublica published audio recordings of meetings in which staff discussed keeping a patient named Darryl Young alive for that purpose, with the transplant director telling his team not to offer the family the option of switching from aggressive care to comfort care that would preclude any lifesaving efforts.
The meeting recordings include the transplant director admitting to the team that this approach was “very unethical.” (The ProPublica report is available online at https://bit.ly/3DanZsM.)
The ProPublica report prompted CMS to investigate the hospital’s heart and lung transplant program, concluding that it put patients in “immediate jeopardy” — the most severe level of violation. The hospital had identified multiple areas needing improvement after failed surgeries, but it failed to carry out its own recommendations, CMS said. CMS required a corrective action plan, and the hospital continues to perform heart transplants. (The CMS reports are available online at https://bit.ly/3Opj0H1 and https://bit.ly/3OvQzqA.)
The family’s recently filed lawsuit alleges errors in Young’s care that led to his brain damage and subsequent death and alleges the defendants intentionally misled the family about his prognosis and options for care. The audio recordings make clear that the motivation was improvement of the one-year survival statistics, the lawsuit says.
The transplant director told his staff in a meeting, “You can send him back to a rehab facility, but if you make him DNR [do-not-resuscitate] at the rehab facility — they will make him DNR — it’ll be a problem for us,” according to the lawsuit, quoting from an audio recording. “I don’t really know what to do except tell you that I recognize what I’m asking, I said myself I’m not sure that it is ethical, moral, or right, but for the global good of the future transplant recipients, the others who come along, this program can’t be put into an SIA.” An SIA is a systems improvement agreement, which is a legal agreement with CMS that might help a hospital avoid termination from Medicare.
Regarding the decision to aggressively treat Young and not offer the option of comfort care, the director said, “This is a very, very unethical, immoral but unfortunately very practical solution, because the reality here is you haven’t saved anybody if your program gets shut down.” (The family’s lawsuit against the hospital and clinical team members is available online at https://bit.ly/4eWy1uM.)
Many Specialties Affected
A hospital that manipulates patient care to boost metrics tied to reimbursement could be liable for this fraudulent behavior under the False Claims Act, says Paul F. Schmeltzer, JD, member with the Clark Hill law firm in Los Angeles. This would expose the hospital to a qui tam lawsuit brought by the U.S. government, which could result in significant penalties, including fines and damages for the hospital, he says. Pressuring staff to meet certain metrics could lead to violations of federal and state regulations, including Title VII of the Civil Rights Act, the Americans with Disabilities Act, and whistleblower protection laws, he says. The hospital also should be concerned with the lack of patient rights and informed patient consent.
“There are also ethical implications for the hospital. Instructing medical staff to prioritize statistics over a patient’s best interests could violate ethical standards set by medical boards and accrediting organizations,” Schmeltzer says. “Such behavior could lead to loss of accreditation and jeopardize licensure.”
This case should cause other hospitals to examine their own cultures and ensure that leadership prioritizes ethical care over metrics-driven incentives, he suggests. This would include embedding ethics in governance structures so that the hospital follows their own policies and procedures and adopts corrective actions and implements recommendations, he says.
“Hospitals should also consider revising their performance metrics so that they align with value-based care,” he says. “Although the hospital’s low percentage of patients still alive one year after surgery was below the national average, this should not influence the hospital to make unethical decisions as to patient case.”
Another takeaway for hospitals from this case is that they should strengthen their communication and transparency with patients and their families, Schmeltzer says. The medical malpractice lawsuit in this case might have been avoided if the hospital was more focused on ethics and not performance metrics and communicated more effectively with the patient’s family, he says.
“The patient’s family member acknowledged their understanding that mistakes can happen during medical procedures, but the hospital’s lack of candor contributed to the lawsuit,” he says.
Hospitals should ensure that their staff have clear, unbiased channels to report unethical behavior, Schmeltzer says.
“If hospital staff are aware of a patient being kept alive to raise the hospital’s performance metrics, there should be mechanism in place at the hospital for staff to report this to their compliance department and executive leadership without the fear of retaliation,” he says. “Otherwise, a hospital committing a transgression such as this could be facing a costly qui tam lawsuit brought by the U.S. government on behalf of the staff member.”
The case suggests a top-down pressure at the hospital to prioritize metrics over patient care, indicating a potential failure in leadership and governance, Schmeltzer says. This may create an environment where clinical judgment is overridden by administrative demands, he says.
“The decision not to offer palliative care as an option reflects a possible absence of a strong ethics committee or guidelines on handling complex, end-of-life cases,” he says. “This case could indicate weaknesses in quality assurance processes at the hospital and a lack of protective mechanisms for staff to report unethical behavior without fear of retaliation.”
Involve Ethics Committee
Schmeltzer says hospitals can take several actions to avoid this type of behavior. They should require their ethics committees to support clinicians in making patient-centered decisions, particularly in complex cases involving end-of-life care, he says.
“Importantly to this case, metrics should be one tool among many for assessing care quality, not the sole driver,” he says. “Hospitals must create transparent policies about how metrics will be used in decision-making and avoid attaching incentives to metrics that could lead to compromised care such as what transpired in this case.”
Periodic staff training is highly recommended as well, he says. Regular ethics training for all staff is essential, along with clear guidance on handling pressure from superiors to act unethically. This includes training on informed consent and communication with patients and families, Schmeltzer says. Hospitals also should establish means for staff to confidentially raise their concerns about unethical practices without fear of retaliation. This should be coupled with strong whistleblower protections, he adds.
“Like it or not, metrics are intertwined with healthcare reimbursement in the United States. Tying reimbursement to survival metrics can unintentionally create incentives for unethical practices such as what occurred with this hospital,” Schmeltzer says “Hospitals must ensure that performance metrics are balanced with qualitative measures that consider patient experience and outcomes holistically. The over-reliance on quantitative outcomes can lead a hospital to ‘gaming the system’ to meet targets.”
Hospitals need to advocate for value-based care models that do not prioritize numbers over actual patient health, he says.
“Unfortunately, many hospitals are obsessed with meeting metrics instead of providing value-based care, and their patients are the ones who suffer from this behavior,” he says. In addition to the lawsuit for malpractice from the deceased patient’s family, the hospital also may be subject to potential False Claims Acts violations and fines from regulatory bodies, Schmeltzer says. This could result in the hospital paying multi-million dollar settlements or awards to both the patient’s family and regulators, he says.
“This case is also likely to cause long-lasting harm to the hospital’s reputation, affecting patient trust and possibly leading to loss of contracts or partnerships. It appears that this hospital’s transplant program had some ethical issues that extend beyond this case, so the reputational harm cannot be overstated,” Schmeltzer says. “Regulatory bodies may also place the hospital under increased scrutiny, including audits and reviews of their practices, potentially leading to additional compliance costs.”
Unfortunately Not Uncommon
The emphasis on metrics and money over patient care is not uncommon, says Ned Barnett, owner of Barnett Marketing Communications in Las Vegas. He worked in healthcare for 25 years, much of it in senior management at different for-profit hospital chains.
“When I was the marketing director for 18 hospitals east of the Mississippi, plus Missouri, my counterpart in the far west’s boss passed around an edict that all Medicare deaths would be reported after midnight, giving the hospital one more billable day,” Barnett says. “My boss and I thought that was at least unethical and probably illegal, so we did not follow in his counterpart’s footsteps. If we’d been caught, shit would happen for sure.”
However, corporate management apparently turned a blind eye to this practice, neither rejecting it nor endorsing it, he says.
“Of course, that was about part of one day, not a full year. Do you know how many millions of billable services would be provided to a patient who was brain-dead and on life support? It would be a lot of millions of dollars,” Barnett says. “So, the temptation is huge, and not just for statistics, but for bottom-line revenues.”
Barnett calls the New Jersey hospital’s actions “reprehensible on a lot of levels” and says it must have been horrific for the family to have their loved one on a ventilator for 365 days or more.
“I also think that the nursing staff would resent being used like this when they know the patient cannot recover and should be allowed to die naturally, or at least give the family that option,” he says. “One hospital I worked at in senior management was heavily unionized, and in my opinion, the [intensive care unit] nurses would have threatened a strike in the face of this hospital mandate.”
Lessons to Learn
The New Jersey case holds a number of important lessons for healthcare providers, says Kevin Huffman, DO, a bariatric physician in Elyria, OH.
First, it shows just how dangerous it can be to set financial measures above the health of patients, he says. Pressure to overreport survival, likely fueled by reimbursement models, appears to have played a role in medical choices at this hospital, he says. Such actions not only fail to respect ethical standards, but also destroy patients’ confidence in medical professionals, Huffman says.
It is essential that hospitals focus on patient-centered care, with treatment decisions based on needs and prognosis rather than factors outside the hospital, he says.
“That the transplant program director discourages offering comfort care to the brain-damaged patient signifies a fearful and inhospitable culture. Public communication between healthcare providers and patients, including end-of-life care discussions, are essential to securing patient autonomy and morality,” Huffman says. “Hospitals need to provide an atmosphere where these conversations can be held and encouraged.”
Hospitals can avoid the unintended consequences of quality metrics by being open about performance indicators and how they drive patient care choices, he says. Hospitals should ensure that patients, families, and doctors communicate openly and collectively, he says, and they should build a strong culture of ethics and patient-centered care, where profit is not put above patient health.
“It will have massive legal and regulatory implications for the hospital. The lawsuit has ethical implications and might infringe patient rights,” Huffman says. “Furthermore, manipulating survival figures could be fraud, putting the hospital’s reputation and cash flow in jeopardy.”
Too Much Focus on Metrics
This case highlights how focusing too much on performance metrics can lead to serious legal and ethical problems for hospitals, says Paul Koenigsberg, JD, managing partner with Koenigsberg & Associates in Brooklyn, NY. Prolonging a brain-damaged patient’s life just to boost heart transplant survival statistics not only is unethical but also a violation of patient rights, he says. Families always should be informed of all care options, including comfort care. By denying that choice, the hospital likely breached informed consent laws and opened itself to malpractice lawsuits, Koenigsberg says. Regulators, like Medicare or state health departments, also may investigate and penalize the hospital for misrepresenting patient outcomes, which could be seen as fraud, he says.
“The situation reflects deeper issues within the hospital’s culture and leadership. Medical staff were reportedly pressured to prioritize survival rates over ethical care, suggesting that leadership valued numbers more than patients,” he says. “This kind of environment can erode trust and morale among healthcare workers. Additionally, the fact that the program’s director admitted the behavior was unethical raises questions about the effectiveness of internal oversight, such as the role of the hospital’s ethics committee in guiding decisions.”
Hospitals need strong, transparent systems to ensure patient care is never compromised for the sake of metrics, Koenigsberg says. Other hospitals can learn from this incident by focusing on creating a culture that values ethical, patient-centered care, he says.
“Hospitals must balance the use of metrics to improve quality with the responsibility to treat patients as individuals, not data points. Clear policies, robust training, and active ethics committees can help staff navigate complex decisions,” Koenigsberg says. “Policymakers should also rethink how performance metrics influence reimbursement, so they encourage better care rather than tempting hospitals to cut ethical corners. Ultimately, this case shows that putting patients first is not just the right thing to do; it’s also the best way to avoid serious legal and reputational consequences.”
Sources
- Ned Barnett, Barnett Marketing Communications, Las Vegas. Telephone: (702) 561-1167. Email: [email protected].
- Kevin Huffman, DO, Elyria, OH. Email: [email protected].
- Paul Koenigsberg, JD, Managing Partner, Koenigsberg & Associates, Brooklyn, NY. Telephone: (718) 690-3132. Email: [email protected].
- Paul F. Schmeltzer, JD, Member, Clark Hill, Los Angeles. Telephone: (213) 417-5163. Email: [email protected].
Greg Freeman has worked with Relias Media and its predecessor companies since 1989, moving from assistant staff writer to executive editor before becoming a freelance writer. He has been the editor of Healthcare Risk Management since 1992 and provides research and content for other Relias Media products. In addition to his work with Relias Media, Greg provides other freelance writing services and is the author of seven narrative nonfiction books on wartime experiences and other historical events.
A New Jersey hospital and a medical team are facing a medical malpractice lawsuit from the family of a man who says they kept the brain-damaged patient alive for a year to boost the hospital’s metric on survival after heart transplant.
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