The 3rd Circuit Court of Appeals in Philadelphia upheld a lower court's
award of nearly $1 million, including $25,000 in punitive damages, to David
Springer, M.D., on February 15, for the Delaware Psychiatric Center's
violation of his First Amendment rights (Psychiatric News, May 21,
Springer's claim was against Renata Henry, director of the state's Division
of Alcoholism, Drug Abuse, and Mental Health, who declined to reinstate his
contract after he wrote memos that cited numerous problems at the facility,
including serious staffing shortages and demeaning treatment of patients.
"Having a physician lose his employment and potentially lose his
ability to obtain employment anywhere as a punishment for speaking out will
have a chilling effect on doctors' willingness to do so, to the detriment to
patients' health," said Jane Orient, M.D., executive director of the
Association of American Physicians and Surgeons (AAPS), which follows national
physician whistleblower issues.
Springer, head of the medical staff and director of residency training at
the state's only public psychiatric hospital, filed suit in October 2000,
after Henry told him his independent contractor agreement would not be renewed
because he did not apply for it. His contract had been renewed automatically
for each of the nine previous years.
The order from Henry to reapply followed revelations by Springer that
serious problems at the hospital were compromising patient safety. Prominent
among his concerns were inadequate supervision of patients on suicide watches
that led to preventable suicide attempts, extreme overcrowding, and escapes of
civilly committed patients.
After he and others protested to state officials, Springer said, the staff
was intimidated by threats from Henry's department.
"The evidence supports the jury finding that Henry acted at least
recklessly or callously, if not intentionally or maliciously, with respect to
Dr. Springer's constitutionally protected rights," Judge Dolores
Sloviter, wrote for the three-judge panel in David T. Springer, M.D., v.
Renata J. Henry.
Springer's suit against Henry in her capacity as director of the mental
health division contended he was terminated because he spoke out about his
"The First Amendment's protection of an employee's right to speak on
matters of public concern extends to independent contractors," wrote
Sloviter. "Henry has not seriously disputed that the contents of Dr.
Springer's speech (i.e., a physician's critique of patient safety and unsafe
working conditions) constitute matters of public concern."
The $998,895 jury award includes $285,464 for lost earnings, $588,431 for
lost future earnings, and $100,000 for injury to his reputation.
Springer, now in private practice, has urged the state legislature to hold
hearings on the treatment of patients at the hospital.
Orient said physician whistleblowers are in a precarious position because
hospitals may place an adverse action against them in the National
Practitioner Data Bank, which allows few appeals for physicians and can make
them unemployable and unable to obtain privileges at hospitals. The law under
which the data bank operates contains a bad-faith clause, but bad faith is
extraordinarily difficult to prove, Orient said.
"That is what makes Dr. Springer's win so fantastic, because so many
others have tried and failed to withstand hospital pressure," Orient
Andrew Schlafly, an AAPS attorney who filed an amicus brief in the case,
said such punitive moves by hospitals against physicians who raise patient
safety concerns are increasingly common.
"Part of the reason is that hospitals are getting more adversarial in
their approach to physicians," he said. "It's an `us versus them'
He said the increasingly litigious approach of hospitals stems in part from
legal advice they receive from their attorneys.
Recently courts have come to view retaliation against physicians through
its adverse impact on patient care, which has led to judges increasingly
ruling against hospitals and administrators that take action against
whistleblowers, Schlafly said.
In one recent case, Poliner v. Texas Health Systems, a federal
jury in Dallas awarded $366 million to a cardiologist who claimed that his
practice was ruined when three fellow doctors and a hospital worked together
to suspend his privileges to perform heart procedures. The August 2004 jury
award was against the three doctors, who were held individually liable for
breach of contract, defamation, interference with contractual relations, and
intentional infliction of emotional distress.
[David T. Springer, M.D., v. Renata J. Henry, United States Court
of Appeals for the Third Circuit, No. 04-4124]