MD 1, New York Times 0

September 23, 2002

The game isn't over, but troubling allegations against the newspaper may answer the question: Must you be loyal to your patients or your employer?

 

M.D. 1, New York Times 0

Jump to:Choose article section...Doctors have a higher ethical calling The newspaper should have known better Stiffening the resolve of all industry doctors

The game isn't over, but troubling allegations against the newspaper may answer the question: Must you be loyal to your patients or your employer?

By Wayne J. Guglielmo
Senior Editor

Fighting the good fight on behalf of patients and company-employed doctors everywhere—that's how Sheila Horn sees herself.

Two and a half years ago, the physical medicine and rehabilitation specialist sued The New York Times for wrongful discharge after it dismissed her as associate medical director of its in-house medical department.

Horn alleged that the newspaper's labor relations, legal, and human resources departments had directed her to "provide them with confidential medical records of employees without [their] consent or knowledge," and that a human resources official instructed her to "misinform employees regarding whether injuries or illnesses they were suffering were work-related so as to curtail the number of workers' compensation claims."

Horn queried the New York State Department of Health and was told that doing so would violate her legal and ethical duties to her patients and could result in the revocation of her license to practice medicine. When she refused to comply with the newspaper's demands, her position was terminated, the lawsuit alleges. The termination, Horn said, breached an implied contract with the Times that she be allowed to conduct her in-house practice in keeping with the ethical and lawful standards of the medical profession.

"Dr. Horn was terminated, not for protesting just any provision of the code of ethics, but for provisions that are fundamental to a physician's ability to practice—maintaining confidences and giving patients accurate diagnoses," says her attorney Pearl Zuchlewski.

In its motion to dismiss, the Times called Horn "an at-will employee whose employment could thus be terminated at any time."

The case—which has survived challenges at the trial court and appellate levels—has been closely observed for several reasons. First, it's against The New York Times, typically a champion of patients' right to privacy. Second, it raises significant questions about New York's strict employment-at-will doctrine, which gives employers wide latitude in dismissing employees. And third, it raises important issues for physicians employed in industry, in New York and elsewhere.

"I don't think any doctor's employment should depend on playing ball with employers doing things they know to be illegal," says Horn.

Donald R. Moy, general counsel of the Medical Society of the State of New York, agrees: "Physicians in an employment setting shouldn't have to choose between violating core ethical rules and keeping their jobs." Moy supported Horn's claim in a brief signed by the medical society, the AMA, and the American College of Occupational and Environmental Medicine. (Neither The New York Times nor its attorney would comment on the pending suit.)

We took a look at this interesting case to see what it could mean to you.

Doctors have a higher ethical calling

Horn's attorney, Pearl Zuchlewski, has always been cautious about challenging New York's "strictly construed" employment-at-will doctrine. That rule grants New York employers nearly unfettered rights in terminating noncontract workers.

But like 37 other states, New York recognizes an exception to its employment-at-will doctrine. That exception arose from a case that's similar to Horn's. In the case—Wieder v. Skala—New York's highest court found that a law firm had wrongfully discharged one of its attorneys after he insisted that the firm report a fellow attorney's misconduct to the appropriate disciplinary authority.

Since the plaintiff's service as an attorney was at the very core of his employment at the firm, the court concluded, he should be able to fulfill that service ethically, as defined by the codes of his profession. In firing him for doing precisely that, the firm breached a contract that was so fundamental to his employment that it didn't need stating.

For years, New York courts have been reluctant to extend the principles of the Wieder case to other professions. But Zuchlewski saw an opportunity to do just that when Horn approached her. "I really felt we could state a claim for her that would be within the parameters of the Wieder case," she says. "The reasons Dr. Horn was giving for why she was terminated were ones that a court would listen to."

Zuchlewski's hunch proved right, despite the Times' argument that the Wieder decision "applies only to attorneys who work for other attorneys." Horn's claim that she was discharged for refusing to comply with the Times' demands, said trial court judge Edward H. Lehner in a decision handed down in late 2000, "is sufficient to state a cause of action for breach of an implied contract of employment. I have reached this conclusion because the strictures imposed upon the profession and the resulting responsibility to the public warrants an extension of the principles set forth in Wieder to physicians."

The newspaper should have known better

The Times appealed the decision. In March, in a 3-2 split, an appeals court sided with Horn.

"Any employer who hires a physician to provide medical care knows, or should know as a matter of common knowledge, that the physician is bound by the patient confidentiality provision of the ethical code of the medical profession," the majority wrote. "That the employer [The New York Times] is not a medical entity . . . does not negate the implied understanding in their relationship that the employer will not impede or discourage the physician's compliance with those particular rules and standards."

Not so, replied the dissenters. Precisely because the employer in this case is not a medical entity and thus not engaged "in a common professional enterprise" with the plaintiff, no implied understanding can be assumed. Such an understanding is possible only when, as in the Wieder case, both parties are engaged in the same pursuit and thus share "understandings or expectations [that] are so fundamental that they need not even be negotiated." To adopt a looser standard, concluded the dissenters, "would be to expand application of the Weider exception" well beyond what the court in that case "ever contemplated."

The New York Times asked the appeals court to consider this argument, among others, in seeking permission to appeal to the state's highest court. On July 2, the appeals court granted the Times permission to take its case to the state's highest court.

Before the high court, says Zuchlewski, the most important issue will almost certainly be that The New York Times is not a medical entity. But she's cautiously optimistic that the high court won't be swayed: "Surely it can't claim that, because the Times is a newspaper, it doesn't have to comply with the sanitation requirements of running a cafeteria. Similarly, they can't say, as a journalistic enterprise, they don't have to comply with the requirements of staffing and running a medical facility."

Stiffening the resolve of all industry doctors

The legal wrangling surrounding the Horn case is, in some ways, a uniquely New York phenomenon. In states with multiple exceptions to employment-at-will (Alaska, Arizona, California, Idaho, Massachusetts, Nevada, and Wyoming), Horn may have had her day in court sooner. "I think in other states she'd definitely have a claim," says Zuchlewski.

Meanwhile, the Horn case raises fundamental issues for all physicians, whatever state they practice in. Indeed, if her allegations against the Times prove true, and the court upholds her refusal to act in the name of a higher ethical duty, Horn will have strengthened the primacy of the doctor-patient relationship for doctors everywhere.

"It will especially strengthen the resolve of physicians who work for industry," says Katherine Benesch, a health care attorney in the Princeton, NJ, offices of Duane Morris, and vice chair of the Labor and Employment practice group of the American Health Lawyers Association.

Says Horn herself: "I'll probably never be hired to work in another corporation because I have this scarlet 'T' on my forehead—for 'troublemaker.' But I just won't let them get away with it."

Few who know her doubt her resolve.

 

Wayne Guglielmo. MD 1, New York Times 0. Medical Economics 2002;18:52.