Sayeth The US Supremes: Eat Your Whistle

I've blogged a little bit on my (loose) association with the Semmelweis Society . . . more accurately, my acquaintance with several of the military physicians (burned) in its ranks. I count Drs. Henry Butler and Eric Gluck among my good friends . . . the best kind of friends . . . who help you bail water out of the boat in bad weather.

Of course, they're US Navy.

Alas, about two years ago, in a leadership coup d'etat, Semmelweis was hi-jacked (my opinion) by a group of physicians convinced that litigation (using the "Qui Tam" concept behind the False Claims Act) was the way to go to "fix" medical peer review. It was all tied up in Medicaid & Medicare fraud & abuse . . . on the theory that many "bad-faith" peer review cases have their basis in economics and eliminating competition.

The False Claims Act (put very simply) allows a private citizen (i.e., the whistle-blower) who knows of fraud committed against the government to hire his/her own lawyers and file a lawsuit (in federal court) in order to recover the losses caused by the government fraud. The whistle-blower then is awarded a piece of the pie that the government recovers from the fraud. It sounds simple. It's not. Cases like these are very expensive to pursue (like the ambulance-chasing taken to an art form by John Edwards, it's actually a cottage industry for lawyers), and plaintiffs have all kinds of time limits, restrictions and hoops to jump through.

And to prevail in such a claim, when you make an allegation, you cannot just suspect, you must KNOW. Because the government is only going to go through the most minimal of motions unless you KNOW. Long before the NC State Auditor "discovered" the "disproportionate share" fiasco (in which NC hospitals bilked Medicaid out of millions of - if not a billion - taxpayer dollars), I chatted up state and federal officials about suspicions I had about the financial goings-on at RMA and Randolph Hospital. I simply could not figure out where the money could be coming from that paid the big salaries and incentives to executives & doctors immediately after I left. I mean, you simply do not go from being "nearly bankrupt" to making a profit in a matter of months. I was ultimately blown off because I could not provide a lot of specifics (being a lowly doctor not involved in the business side of the business).

But when the scandal hit the papers, I knew exactly where the money had come from. And Randolph wasn't even on the state's list of evil-doing hospitals (a list that featured some of the biggest and best)! But it was crystal clear that serving the under-served is a gold-mine. It's also perfectly clear that my notion of "non-profit" public service was very different than that of Bob Morrison's "team", and I was just a bug in their way to be squashed.

Suffice it to say, the lawyers are the ones who really make the money on these "Qui Tam" lawsuits.

Anyway, in the Semmelweis (SW) coup d'etat, a number of us (we call ourselves "the federal contingent") were pushed to the sidelines. Unfortunately, in the pushing, the new Semmelweis leaders often employed the same kinds of tactics that many of us had already experienced in our medical and legal battles . . . the most despicable of which was to question our character and/or sanity because we dared question the decisions and actions of SW leadership.

Of course, we've seen this tactic used in the local blogs too.

My argument (both two years ago and now) is that there are many cases of "bad-faith medical peer review" out there that prove litigation in our current medico-legal environment simply does not work.

The military and public service docs were essentially told that our cases were too complicated for the leadership to pursue in any kind of legislative or PR agenda. Things had to be kept very simple as spoon-feeding is required. You see, lawmakers and journalists have very short attention spans, don't really care unless it affects their money flow or power base, and are generally too stupid and/or too lazy to follow stories like ours.

I actually agree with that last part.

The other thing members were told was that, in order to get attention on Capitol Hill we had to network with a half-dozen (or more) organizations, and/or support legislation that did not specifically further Semmelweis goals (i.e. the reform of medical peer review and the vindication of doctors wrongfully injured by or through the process) . . . on the theory that our goodwill and cooperation might eventually be repaid in the scraps legislative aides and lobbyists threw.

It's just politics. Jim Black style. I hate politics.

I disassociated myself from Semmelweis after the leadership change. I asked to be taken off the e-mail list and have my website de-linked from theirs. Only recently have I allowed Dr. Butler to re-link my website/blog on the SW pages he edits (apparently frequently).

Lately, the Walter Reed and VA scandals have put military medicine back in the spotlight. There is some small hope that the federal legislators who have blown off medical whistle-blowers burned in military & public service in the past, will start paying attention and hold some Congressional hearings.

I'm not holding my breath.

Well, the USA Today hanging on my hotel door-knob this morning cheerfully reported that the Supreme Court of the United States, in its infinite wisdom, dealt whistle-blowers employed by the government a crushing blow this week. For all of the blather about "ethics: the Supreme Court really doesn't like whistle-blowers.

I guess you could call us "trolls".

Of course, I think the US Supremes are a bunch of trolls in dresses . . . especially since they ruled that my house is not really my house if a bunch of respectable hoodlums wants to build a Walmart on the land where it sits.

From the USA Today's AP story: The Supreme Court left an 81-year-old retired engineer without a penny to show for his role in exposing fraud at a former nuclear weapons plant in a ruling that makes it harder for whistle-blowers to claim cash rewards.

James Stone stood to collect up to $1 million from a lawsuit he filed in 1989 against Rockwell International, now part of aerospace giant Boeing, over problems with environmental cleanup at the now-closed Rocky Flats nuclear weapons plant northwest of Denver.

A court eventually ordered Rockwell to pay the government nearly $4.2 million for false claims the company submitted. Stone could have received up to a quarter of Rockwell's payment, under the False Claims Act.

Justice Antonin Scalia, writing in the 6-2 ruling Tuesday, said Stone was not entitled to recover any money because he lacked "direct and independent knowledge of the information upon which his allegations were based." Scalia said Stone had little connection to the jury's verdict against Rockwell.

The company must pay the entire penalty anyway. The only question before the court was whether Stone would get a share.

James Stone is 81 years old. I wonder what his legal bill is.

Sen. Chuck Grassley, R-Iowa, a leading congressional supporter of whistle-blower claims, said lawmakers should consider changes to the False Claims Act to make sure people are rewarded when they uncover wrongdoing.

"The Supreme Court has made it even more difficult to get to the bottom of waste, fraud and abuse of taxpayer money," Grassley said.

The Bush administration sided with Stone (even though it meant less money for the government), arguing that it was in the government's interest to encourage whistle-blowers.

More details on the story here.

I don't know what this ruling is going to do for the plans and litigatory schemes of the current Semmelweis leadership. The Supremes have spoken. And my argument has been proven right once again.

Litigation did not work for James Stone.

And litigation did not work for me.

"Non-profit" Randolph Hospital administrators, Bob Morrison and Steven Eblin violated contracts and federal agreements, they threatened and retaliated against a doctor (in public service) who reported bad care, and they lied repeatedly under Oath about the confidentiality of public (IRS) records (to save themselves some money at settlement). It's perjury. It's contempt. And it's fraud.

No one has held them accountable.

The legal system, especially where doctors are concerned, is a joke. A warped lottery. A game of chance. I'm not sure even legislation can fix it.

But legislation is the only thing left. And its time the Semmelweis leadership started cataloguing physician's stories . . . not just the ones with the great "Qui Tam" cases . . . but ALL of the stories . . . and telling them . . .

. . . instead of shoving them to the side in the mad dash for cash.