Chicago Whistleblower Fracas
Two court dramas involving orthopedic surgeons are playing out in Chicago this summer. One is taking place in a court of law. The other, in the court of public opinion.
In the finest tradition of brawling Chicago-style politics, an orthopedic surgeon named Robert Goldberg—and June Beecham, a former director of real estate at Rush—filed an original whistleblower (qui tam) lawsuit in 2004 against Goldberg’s former colleagues at Midwest Orthopaedics and Rush University Medical Center. Goldberg originally alleged improper patient referrals.
It was not the first legal fight between Goldberg and his colleagues.
Last month, Goldberg’s original 2004 whistleblower lawsuit was unsealed. In an amended suit, Goldberg now accuses six of his colleagues and Rush of cheating Medicare by billing for surgeries where the attending surgeon was not present for critical elements of the surgery.
In June, some of Goldberg's accusations, related to the use of office space in return for patient referrals, were settled by the Justice Department, with the medical center agreeing to pay more than $1.5 million but not admitting to wrongdoing.
But now, in the amended suit, Goldberg launches another haymaker and says that the defendants scheduled multiple surgeries in various operating rooms to pump up procedure volumes to curry favor with Zimmer Holdings. The defendants say their surgery scheduling is common and complies with Medicare reimbursement rules.
They also insist this is just another chapter in a long line of fights with Goldberg.
In the Name of the King
What does Medicare, through the Justice Department say about this alleged cheating?
Qui tam is a Latin phrase meaning, "in the name of the King." Goldberg is alleging that the King was cheated. However, the King's men, through the Justice Department, have not only been silent about the new allegations of cheating and settled the previous charges, but have declined to join Goldberg in the amended suit. Their silence is deafening.
When the well-informed victim of the alleged cheating doesn't agree that he's been cheated, the hurdles for the accuser become exponentially higher.
In fact, the hurdles are so high, that the statistics of settled whistleblower lawsuits demonstrate that the prospect of a successful suit without government participation is staggeringly low.
The 6% Case
Between 1986 and 2008, according to the Justice Department, there were about 4, 600 qui tam cases settled or dismissed. When the government participated, the success rate for the whistleblower was about 95%. When the government stayed silent, the success rate was a measly 6%.
Goldberg's allegations of improper Medicare payments will be settled in a court of law as the arcane rules governing Medicare payments in teaching hospitals get dissected and adjudicated. His past rocky relationship with his colleagues is largely irrelevant to the question of proper or improper Medicare billings.
Court of Public Opinion
However, Goldberg’s relationship with his colleagues is important in the court of public opinion as other teaching hospitals and surgeons around the country read about this case and have to wonder if they are in a similar situation.
Charles Bush-Joseph, M.D., the managing partner at Midwest told OTW in an interview on July 14 that when the news of Goldberg's amended suit was reported in the Chicago Tribune and Wall Street Journal, other administrators, gathering for an annual meeting, wanted to know what the "bleep" was going on. The suit is being watched carefully by large teaching hospitals all over the country because many have surgical schedules similar to those at Rush.
Our conversations with other medical facilities showed that Rush’s surgery schedules were a common practice.
Bush-Joseph told us that all a physician has is his reputation. He said Goldberg has a vendetta against his former colleagues and they will defend themselves vigorously.
Goldberg/Midwest: A Rocky Marriage
Goldberg has had a litigious relationship with his colleagues. Midwest Orthopaedics is one of the largest orthopedics practices in the country. Rush is a highly respected and regarded teaching hospital. In fact, Goldberg earned his medical degree at Rush Medical College and has been a member of the Rush medical staff since 1995.
Goldberg has had a series of claims, allegations, grievances, and lawsuits against the medical center and his colleagues going back over a decade.
An Illinois Supreme Court decision over a previous Goldberg suit against his partners noted that Goldberg had repeatedly voiced complaints about his assignments and treatment at Rush. He complained that he had not been assigned an equitable share of calls in the emergency room, did not have access to orthopedic residents and, among other things, had not been given the opportunity to perform teaching duties.
In 2003, Goldberg initiated a formal grievance raising these issues. A five-member grievance committee, with two members selected by Goldberg heard the complaints. Several of Goldberg's complaints were dismissed because they were not alleged to have affected his practice.
Round One: Midwest/Rush
Goldberg was unsatisfied and sued Midwest and Rush in 2004 for, "tortious interference with contractual relations, tortious interference with prospective economic advantage, and breach of contract." That case went all the way to the Illinois Supreme Court. The court ruled against Goldberg.
In February 2005, the defendants filed a motion to dismiss the suit. In April 2005, the court agreed and dismissed the case. Subsequently, on March 10, 2006, the Circuit Court denied Goldberg’s appeal.
On April 7, 2006, Goldberg appealed that decision in the Appellate Court of Illinois. That court affirmed the Circuit Court’s order of dismissal. On March 27, 2007, Goldberg appealed to the Illinois Supreme Court. By the end of May, the court had denied his appeal.
Psychology of Whistleblowing
What motivates a whistleblower? In the now famous case of Mark Whitacre, former president of the BioProducts Division of Archer Daniel’s Midland (ADM) in the mid-90s, the whistleblower himself proved to be an extraordinarily complex psychological study. In that case, the whistleblower was so profoundly conflicted that he served eight years in federal prison. The entire story was the subject of the Steven Soderbergh movie The Informant starring Matt Damon.
In a study titled Science and Engineering Ethics, author Joan E. Sieber, Professor Emerita of Psychology at California State University, writes that there are seven “psychological processes involved” in whistle blowing:
Fundamental attribution error – the whistleblower assumes that someone is engaged in a willful act of fraud or harm
False consensus – when the whistleblower assumes that others agree with their interpretation of events
Self-serving bias – the whistleblower takes credit for praise-worthy actions, but rejects responsibility for blame-worthy ones
Self-presentational concerns – the whistleblower tries to “recoup lost ground by making claims that favor him even if the evidence turns out to be shaky or nonexistent”
Motivation – a complex mix of need for love, revenge, material advantage, prestige and so on.
Control – need for a sense of control
Belief – the “irrational” belief in a just world
And when those conditions exist in sufficient force, a whistleblower is created.
Goldberg Tries Again
After Goldberg's 2004 whistleblower suit was settled with the feds last March, Goldberg amended the now unsealed suit and charged six of his colleagues at Midwest and Rush with the Medicare billing cheating allegations.
The surgeons named in the suit include Richard A. Berger, who helped develop products for Zimmer and once ranked among its highest-paid consultants, along with Brian J. Cole, Aaron G. Rosenberg, Craig J. Della Valle, Wayne G. Paprosky and Mitchell B. Sheinkop.
The allegations were a bombshell in the press. Stories highlighting surgeons not present at critical moments of surgery, monitoring residents by video hook-ups caught the public's attention. Even web sites such as InsideSurgery.com, run by a physician, erroneously reported that Goldberg's "inside information" had been used by the feds to file fraud charges against the surgeons. The feds of course declined to join Goldberg.
The Wall Street Journal reported, “According to the suit, financial ties with device maker Zimmer Holdings Inc., spurred bad behavior."
The surgeons "knew that in order to maintain their celebrity status with Zimmer, they would have to continue to be among Zimmer's biggest customers, and they accomplished this goal by scheduling and billing Medicare for hundreds, if not thousands, of joint replacements surgeries annually that did not comport with the Medicare Rules and Regulations, " the complaint alleges.
The complaint continues, "To obtain the incredibly high volume of orthopedic surgeries…doctors would schedule as many as five or six orthopedic surgeries in a morning in two (and occasionally three) different operating rooms."
Specific allegations in the complaint center on Medicare rules that requires the teaching physician to "be present during all critical portions of the procedure and immediately available to furnish services during the entire service."
On April 22, 2004, for instance, the complaint alleges, “Sheinkop never entered operating room 9 to perform a knee replacement on a 67-year-old patient. He performed another procedure in operating room 7.”
According to the complaint, one of the residents who performed the surgery, “admitted that Sheinkop had never been present for any of a particular patient's surgery, but stated that he had been instructed by Sheinkop to falsify the medical record."
In another allegation, the complaint states, “On Oct. 21, 2004, Cole had five surgeries scheduled; two at 7:30 a.m., another at 8 a.m., another at 8:30 a.m. and another at 9:30 a.m. The 8 a.m. operation was in Rush's operating room 5, while the others were in the outpatient SurgiCenter.”
When Cole had concurrent surgeries, the complaint states he would, "remain physically present in one operating room, while 'monitoring' a second operating room through an electronic video link that projected images through the fiber optic arthroscopy camera onto a large monitor."
Midwest Slugs Back
Jeffrey Rogers, Midwest's attorney, said the video system was used "to determine room readiness, such as when it was clean for another patient and sometimes also for teaching purposes.'' Rogers said it wasn't used to remotely manage surgeries.
"It's a big mistake" to rely on a schedule to determine when "critical portions" of a surgery took place, said Rogers.
Rogers also said, "We note that the government has declined intervention in these allegations (regarding patient safety), and we also want to point out that we had no participation in the settlement (involving office space) whatsoever."
Midwest: Where’s the Proof?
"I don't know what their proof is or where they get this. It's too early to tell; we've only had this complaint a week. But we would deny that there were any overlapping surgeries that violated applicable rules and regulations, or threatened the health or safety of any patient, " added Rogers.
With a 94% chance of success, it appears likely that Rush/Midwest will prevail in court. But now the case is also being played out in the court of public opinion and here Goldberg has an advantage. In many ways, and as we have seen repeatedly, in the court of public opinion the rules of evidence and fair play don’t exist. All-in-all, there is no winner here and perhaps most unfortunately, the sterling reputation of one of this country’s great teaching hospitals is on the line.