Cover Story

Can you speak your mind and keep your job?

The tales of two St. Louis doctors illustrate why you can't take freedom of speech for granted when you're somebody's employee.

By Robert Lowes
Midwest Editor

St. Louis ob/gyn David Gearhart is no stranger to the news media. When he chaired the state chapter of his ob/gyn society, local reporters routinely rang him up for quotes on women's health issues. "Medical expert says such-and-such." Normally, it's good press.

In 1998, however, a television interview cost Gearhart his job at St. Luke's Hospital.

Gearhart thought he was merely standing up for his patients. He claimed that staffing changes in the hospital's obstetrics department had resulted in less-qualified nurses—even non-nurses—helping doctors perform cesarean sections. The hospital contends that Gearhart sullied its reputation by falsely implying St. Luke's was a dangerous place to have a baby.

So what happened to Gearhart's constitutional right to free speech? Wake up to one of the first lessons about working for somebody else. The First Amendment prohibits only the government from gagging you. Employers have more leeway to police what you say.

On one level, this is understandable. "Every employer has the right to an employee who doesn't disparage him," says health care attorney Daniel Bernick with The Health Care Group in Plymouth Meeting, PA.

On the other hand, there are laws that prevent employers from unduly silencing employees. Those who engage in collective bargaining—even if they're not technically unionized—can publicly criticize their employers within limits and get away with it. Whistle-blowers who expose malfeasance are shielded, as well.

A jury may decide whether Gearhart is a whistle-blower who should have kept his job. In a lawsuit scheduled to reach court in June, Gearhart argues that the hospital wrongfully fired him after he'd brought a potential health hazard to the public's attention.

Cases like Gearhart's may become more common as doctors increasingly choose to be somebody else's employee. Just a few miles away, at St. John's Mercy Medical Center in St. Louis, internist Farrin Manian almost lost his part-time job over a letter to the local newspaper about the evils of corporate medicine. The hospital later rescinded its decision not to renew his contract, but could have let him go if it had really wanted to play hardball.

The upshot of all this? Choose your words very carefully.

How an outspoken quarterback got sacked

When St. Luke's Hospital bought David Gearhart's practice in April 1997, it acquired a doctor known for his excellent clinical skills, a sweet but blustery personality, and a tendency to speak impulsively when he was upset. "Dave sometimes needs to take a deep breath and think for a minute," says one colleague. Gearhart and St. Luke's current and former officials declined to be interviewed for this story.

Within months of joining St. Luke's, Gearhart encountered a controversy that revved his motor. The hospital wanted to revamp how it staffed its obstetrical department, in particular, the C-section unit.

At the time, a team of eight RN surgical assistants (sometimes called first assistants) worked 24-hour shifts, two nurses per shift, helping ob/gyns with C-sections. The hospital announced that it was going to switch to 12-hour shifts covered by a single RNSA, cut back the number of RNSAs to five, and complement them with patient technicians. Furthermore, RNSAs once dedicated to C-sections would have to help with normal vaginal deliveries.

The nurses protested, saying the new get-by-with-less arrangement would lower the quality of patient care. Complicating matters, the RNSAs said they'd be practicing outside the scope of their training if they functioned as labor and delivery nurses.

Only one of the eight RNSAs signed up for the new shifts. The rest opted to transfer to other surgical duties in the hospital, but several agreed to help train replacements first. The trainees lacked operating room experience, however, according to RNSA Carol Hollowood and others.

Many ob/gyns on St. Luke's medical staff—Gearhart included—also found fault with the changes in the hospital's obstetrics department. They voiced their complaints in meetings with the hospital's then-president, George Tucker, a general surgeon. Some even threatened to stop sending patients to St. Luke's.

Meanwhile, more trouble was brewing with the nurses. The C-section controversy spurred several to join a catchall union called the Textile Processors, Service Trades, Health Care, Professional and Technical Employees. Gearhart cheered them on. In April 1998, he and 12 other doctors wrote a letter to St. Luke's nurses supporting their "movement towards collective bargaining to promote quality working conditions to insure safe patient care."

The fateful television interview of June 1, 1998, was another display of physician-nurse solidarity. Gearhart appeared on the air with Carol Hollowood and another nurse to discuss the staffing policies that had triggered the union campaign. According to Gearhart's suit, he was only responding to a reporter's invitation to speak. And he claims to have gotten permission from Lee Rigg, then chair of the ob/gyn department, to be interviewed on the RNSA issue. (Rigg's only comment on the incident: "It wasn't permission.")

"I'm not going to be as good a quarterback with seven rookies as I was with seven all-star offensive linemen," Gearhart said in the broadcast, referring to the seven RNSAs who were leaving the unit. "We are seeing nurses replaced with patient care technicians, less than an optimal situation, and . . . we've seen great surgical nurses being replaced with nurses that are not trained to do the job they have."

Four days later, the hospital fired Gearhart and Hollowood, who was the more outspoken of the two on-air nurses. Gearhart hired a lawyer and sued, as did Hollowood.

In response to Gearhart's suit, St. Luke's asserted in court filings that he was canned because he had breached three provisions of his employment contract: not following the hospital's quality improvement and risk management processes, disclosing confidential information, and engaging in outside activities that conflicted with the hospital's interests.

In a message to St. Luke's employees, President George Tucker called the protesters' charges baseless and insulting. "That a couple of people [would] do such a thing . . . should make all of us angry."

Is talking to a reporter protected speech?

Gearhart was angry, too. His lawsuit against St. Luke's mounts several legal attacks. Gearhart not only denies breaching his contract, but pins that charge on the hospital. He also accuses the hospital of spreading falsehoods about him to patients (such as "We don't know if Dr. Gearhart is still practicing medicine") and keeping collections that were rightfully his. But the central charge involves Gearhart's free-speech rights.

To legally sanctify the television interview, Gearhart's suit repeatedly uses the phrase "public policy." It's public policy, for example, that doctors must not participate in any practice that's harmful to patients. Missouri law says so. It's against public policy when a hospital doesn't deploy enough properly trained nurses. And finally, public policy encourages a doctor such as Gearhart to report such health care misconduct to a third party—to be a whistle-blower, in other words.

Normally, this concept of public policy surfaces in lawyerly discussions of "at will" employees. By definition, they don't work under a contract and can be summarily dismissed for any reason—or for no reason at all. Many states, however, prohibit employers from firing an at-will employee for doing something that public policy encourages—serving on a jury, for example, or joining a labor union, or whistle-blowing.

St. Luke's has tried to undercut Gearhart's public-policy argument by pointing out that he wasn't an at-will employee, but under contract. Such an employee, the hospital asserts, has no right under Missouri law to public-policy protection. Not surprisingly, Gearhart counters that this legal doctrine applies equally to contractual and at-will employees. He may win that point, says health care attorney Daniel Bernick.

"If an employee was reporting something really egregious, a court might protect the good guy, even if he was contractual," says Bernick.

But Gearhart's employment status raises a question: Does giving a television interview make you a whistle-blower? Here, some experts say Gearhart may be on thin ice, because whistle-blowing normally means reporting illegal conduct to a government agency.

"You couldn't fire a doctor for reporting Medicare fraud to Medicare, but talking to the press falls way short of invoking public policy," says labor attorney Brian Clemow in Hartford, CT. "That's generally not considered whistle-blowing."

St. Luke's hasn't brandished Clemow's argument in the Gearhart litigation so far. However, it pops up in the hospital's response to Hollowood's wrongful-discharge suit. St. Luke's emphasizes that public-policy protection in Missouri applies only to employees who are fired for reporting serious misconduct to "superiors or public authorities."

Labor law may help a dissident doctor

A judge dismissed Hollowood's civil suit at St. Luke's request. His ruling anticipated that she would file an amended suit, but it hadn't surfaced as of early April. Nevertheless, she already has won a measure of vindication under a federal labor law. Her story is instructive, because that law can help an outspoken physician, too.

Three days after Hollowood's dismissal, her union filed an unfair-labor-practice charge against St. Luke's with the National Labor Relations Board. NLRB administrative law judge George Aleman heard the case, and in May 1999 ordered St. Luke's to reinstate Hollowood and pay her lost wages. He noted that the National Labor Relations Act, the sweeping 1935 law that created the NLRB as part of Franklin Roosevelt's New Deal, forbids employers to hassle employees who publicly discuss ongoing labor disputes. Hollowood's televised comments qualified for that safe harbor, according to Aleman.

St. Luke's has fought Hollowood's reinstatement, however. Last summer, it appealed Aleman's decision to the NLRB, only to lose again. Then it asked a federal appeals court in St. Louis to overturn the NLRB ruling. That's where the case stands now. Meanwhile, Hollowood's working at an outpatient surgery center.

Her saga can be viewed as one more reason for employed doctors to join unions—at least the NLRB will stand behind them when they speak their mind. But guess what? You needn't belong to a traditional labor union to enjoy the protections of the National Labor Relations Act. According to Ralph Tremain, a regional NLRB director in St. Louis: "For us to get involved, an employee's public remarks would have to meet the test of concerted activity and protected activity. 'Concerted' means the employee is not just talking about his own situation, but speaking on behalf of a group, or at least trying to drum up support from others.

"To be protected, the remarks would have to address terms and conditions of employment. If a doctor complained about hospital staffing, that would probably qualify. If he said he was being asked to do something that would jeopardize his medical license, that might qualify, too."

This legal armor is merely an extension of the right of employees to take their grievances about terms and conditions of employment to management. "They don't even need a collective bargaining agreement," says Tremain. "Let's say a group of doctors presents its demands to an employer. The employer is unresponsive. The doctors then hold a news conference to gain public support. And the employer fires several of them in retaliation. At that point, the doctors can ask the NLRB to intervene."

One big taboo governs what an employee can tell the world about a labor-management tiff. Employees lose NLRB protection if they knowingly make false or malicious statements intending to harm the employer. "If you say, 'Our medical center is a dangerous place for patients,' that's going over the line," notes Chicago labor attorney Mark Nelson. The NLRB, he adds, probably would consider Gearhart's comments acceptable.

In fact, last year's NLRB ruling lumps Gearhart's remarks together with Hollowood's. Did Gearhart have a chance of getting his job back through the NLRB? He apparently thought so. When Hollowood's union filed its unfair-labor-practice charge, it included Gearhart as an employee it was attempting to defend.

Gearhart withdrew from Hollowood's case to pursue civil litigation, which, unlike an NLRB action, would give him a shot at punitive damages. However, Hollowood's lawyer, Michael Waxenberg, thinks Gearhart might have prevailed in an NLRB hearing.

"If you review the NLRB's statements about Hollowood," says Waxenberg, "you could argue that they apply to Gearhart, too."

A letter to the editor cuts too close to home

While Gearhart got in trouble for talking, St. Louis internist Farrin Manian got in trouble for writing.

Easily identified by his bushy black mustache and beard, Manian works between 10 and 20 hours a week at St. John's Mercy Medical Center, directing its infectious disease program and teaching residents. That's in addition to his private practice. Colleagues describe him as bright, caring, introverted, earnest, and honest.

Add one more adjective to the list: disgruntled. Like many doctors, he accuses the nation's health care system—hospitals, insurers, employers, and government—of putting cost control before patient care. He's vented that discontent in articles appearing in The New England Journal of Medicine and other publications.

"Should we be more vocal," he asked in one piece, "and shout the famous line from the movie Network, 'I'm mad as hell and I'm not going to take it anymore'?"

As they did with Gearhart, nurses played a role in Manian's employment crisis. In the summer of 1999, the United Food and Commercial Workers Union was organizing nurses at St. John's—and polarizing the St. Louis health care community. Amid the usual back and forth of the opposing sides, the president of the Missouri Hospital Association wrote an opinion piece for the St. Louis Post-Dispatch saying unions don't serve the best interest of patients.

Manian considered the article misleading and responded with a lengthy letter to the editor. Hospitals, he wrote, were fueling the union movement with on-the-cheap policies that undermined patient care, such as the use of high school graduates to assess patients' health status. "If hospitals continue to operate like big businesses, then they should be prepared to deal with the challenges that come with the territory—one of which is union activity among employees," Manian stated.

As in past writings, Manian didn't mention St. John's, nor did he identify himself as a St. John's employee. But the letter cut a little too close to home, especially a reference to hospitals' "lavish corporate headquarters." St. John's parent had just moved into a new building earlier that year.

Two months after the letter was published, Manian found himself in the office of the hospital's then-president, Mark Weber. The hospital wouldn't renew Manian's contract when it expired in March 2000, Manian quotes Weber as saying. The reason? Manian's letter had criticized St. John's.

Once word of the decision leaked out, the hospital's medical staff and employees launched a petition drive to reinstate Manian. "Doctors objected to the hospital's move on two counts," says urologist Micheal Chehval, the medical staff president. "They felt a physician should be able to speak out on patient care issues. And they worried that our quality would slip if we lost good doctors like Manian."

Manian wins, but remains vulnerable

Under pressure, the hospital rescinded its decision not to renew Manian's contract. But the firestorm didn't abate. Manian wrote a letter to St. John's saying he wouldn't be satisfied until the hospital amended his employment contract to allow him to discuss health care issues publicly as long as he didn't mention his employer.

The St. Louis Post-Dispatch obtained a copy of the letter and splashed Manian's story on the front page. Now St. John's had more public criticism than it could ever imagine. A Post-Dispatch editorial cautioned the hospital not to mess with Manian's First Amendment rights. Letters to the editor poured in supporting the internist.

In the end, Manian got what he wanted. The hospital revised its physician contracts—including Manian's—to include a freedom-of-expression clause that had been drafted by a medical staff committee.

"This freedom of expression," the clause states, "includes the right to comment publicly, or publish materials related to the quality of health care and the organization of the health care system in which Medical Center participates." The clause is more liberal than what Manian had in mind; an employee may even mention St. John's by name in an article or a public comment, according to spokesperson William McShane. The only stipulation is that he or she may not make inaccurate, incomplete, libelous, or defamatory statements.

The new language is fine with Manian, whose contract was renewed. "I feel more secure," he says. "In one sense, though, I've gained nothing. I thought I had the right to speak freely all along."

Manian may feel more secure, but his contract arguably allows St. John's to cut him loose if it dislikes his next letter to the editor, according to attorneys who reviewed his case. Consider this: Manian would have had a hard time contesting the hospital's initial decision in court. For one thing, the hospital didn't fire him on the spot. It merely decided not to renew his contract. Employers aren't obligated to renew employment contracts, and they don't need to give a reason for their decision (though St. John's did in Manian's case).

"Failure-to-renew lawsuits are typically impossible to win," says health care attorney Steve Kern in Bridgewater, NJ. "Legally, you have no right to another contract."

Brian Clemow notes that an employee might win in court if he could prove his contract wasn't renewed on account of whistle-blowing. Manian doesn't fit that bill, though. "Writing a letter to the editor critical of an entire industry is not whistle-blowing," says Clemow.

Manian's contract also contains a no-cause provision, meaning the hospital can terminate him at any time without explanation. In that respect, he resembles an at-will employee with no contract. Some of the same sticky questions in Gearhart's case apply here. Would a court grant public-policy protection to an employee with a contract? And would it view Manian's letter as whistle-blowing?

In the end, Manian may owe his reinstatement more to supportive colleagues and favorable publicity than to any legal argument he could have mustered.

"I think he lucked out because his co-workers raised a big stink on his behalf," says Brian Clemow.

Should your conscience come before your job?

The stories of Manian and Gearhart illustrate how difficult it's been for doctors to work as employees instead of self-employed professionals. Medical training encourages the free exchange of ideas, not to mention an inquiring, even skeptical, spirit. Bosses, however, expect subordinates to obey orders—no back talk, no questions.

The culture shift is rougher on employed doctors who were once independent. "They're not used to being held accountable for their actions and remarks," says Steve Kern. "And when they were self-employed they never had to think in terms of loyalty, except to their own practices. But as employees, they owe allegiance to their employers."

Hospitals and other employers, in fact, spell out their loyalty demands in contracts, employee handbooks, and job descriptions. Such documents may contain a nondisparagement clause or, in Gearhart's case, a provision that the doctor will do nothing counter to his employer's interests.

Employers clearly have the means to enforce these expectations: nonrenewal of an employment contract, a no-cause termination, or termination for cause. It behooves doctors, then, to think twice before they speak or write publicly, especially about a grievance with an employer. "You can't say just anything and not expect repercussions," warns Daniel Bernick.

If the beef is about the patient care that the employer provides, would-be protesters need to size up the severity of the problem. "You have to prove the problem is pretty flagrant—something is so bad that people are dying—to qualify for public-policy protection," says Bernick.

And remember, if the situation's that bad, you're obligated to report it to your employer and stop working in that environment in the meantime, adds Kern. "If the employer doesn't correct the problem, you then can become a true whistle-blower and go to the authorities. The press should be your last resort."

The National Labor Relations Act can shield you from retaliation if your comments occur in the course of collective bargaining. While you don't need to belong to a traditional union to benefit from the law, membership bestows this advantage: A paid union staffer can speak on your behalf, taking you off the hot seat. Consult with a labor attorney to explore your collective bargaining options with or without a union.

Still, it's possible that no law or judge can save your job in the event an employer objects to your public statements. If your conscience nevertheless compels you to speak out, remember this standard bit of financial planning: Stash away three months' salary to tide you over in case you receive a pink slip.

In some circles, that's called a go-to-hell fund.

 

Robert Lowes. Can you speak your mind and keep your job?. Medical Economics 2001;8:138.