A Beleaguered Georgia Physician Fights for Patients and Jobs – and Wins
By Tom Nugent
After spending “twelve years in the wilderness” as one of America’s most determined medical whistle blowers, Dr. James Murtagh achieves a legal victory that could change the way U.S. hospitals manage their physicians . . . while also helping to protect the American economy (think jobs) by protecting due process in court-ordered arbitration proceedings.
ATLANTA – At first glance, the recent decision by the Georgia Court of Appeals seemed innocuous enough.
After more than 12 years of continuing litigation, the Court’s finding of last July 26th simply pointed out that an Atlanta-area physician named James Murtagh was not in contempt of a lower Georgia state court, after all.
As the Court noted in typical legalese: “The plaintiff’s Emergency Motion for supersedeas is granted. The plaintiff’s motion for Expedited Appeal is denied, and it is ORDERED that the trial court reconsider its order of July 18, 2012. . . .”
Translation: Jim Murtagh, M.D., had just won a major legal victory in his decade-long struggle to prove that officials at highly regarded Emory University had inflicted illegal reprisals on him for daring to blow the whistle on alleged research-funding fraud. In addition, the Appeals Court lectured Fulton County Superior Court Judge Wendy L. Shoob by informing her that she didn’t understand the term “contempt” . . . and that she had been legally harassing Dr. Murtagh from the bench for years.
Dr. Murtagh’s hugely controversial whistle blowing had disclosed alleged violations at both Emory and its teaching hospital, Grady Memorial of Atlanta, starting way back in 1999.
The court battle that followed – surely one of the great legal struggles of recent years which can be expected to affect medical practice at American hospitals – has often focused on a crucially important question: whether or not hospital authorities can continue the practice of requiring their doctors to submit to unregulated and often fraudulent “peer review” evaluations by outside physicians who are sometimes encouraged by the hospitals to find against the doctors whose performance they are scrutinizing.
A bit of background: the record shows clearly that many managed care hospitals have been using such trumped up, “sham” peer review proceedings as a method for protecting profits rather than patients. These ersatz reviews often punish docs who stand up for their patients in disputes with hospitals . . . or who dare to criticize hospital decision-making by blowing the whistle on fraud, waste and abuse.
That’s exactly what Jim Murtagh did in 1999, when he agreed to testify about alleged research funding-fraud at Emory and Grady (and abuse of patients at Grady), to federal investigators from the National Institutes of Health (NIH) who were looking into allegations of fraud at both institutions. Soon after Dr. Murtagh – a University of Michigan School of Medicine graduate who’s won numerous awards and citations in his fields of pulmonary and sleep medicine – confirmed that he was cooperating with the NIH investigators, he received two rude shocks.
First, he was told that a bogus peer-review committee at Grady would be looking into charges that he’d been ignoring “Do Not Resuscitate” orders (a grave medical offense) during his daily shifts in the Intensive Care Unit at the large urban hospital.
Second, Dr. Murtagh was ordered to take a sham “psychiatric fitness for duty” examination by Emory’s own chosen psychiatrist. That psychiatrist reportedly wrote up such exams for his clients without even examining the targeted doctors or gathering factual evidence. Even more startlingly, Murtagh later testified that he’d never been told what the hearings were about – and that he wouldn’t be allowed to attend the review procedures or respond to accusations against him.
Instead of submitting to the findings of the peer review and taking the psychiatric exam, he sued the university and claimed that he had been illegally subjected to reprisals as a result of his whistle blowing about alleged research fraud.
What followed was an astonishing, 12-year-long odyssey trough the Georgia court system.
Remarkably enough, however, that tumultuous court case – a staggeringly convoluted legal tangle that makes Jarndyce v Jarndyce (the celebrated and endlessly strung out legal case that forms the heart of Charles Dickens’ immortal novel of British jurisprudence, Bleak House) read like a dispute over a parking ticket – seemed to have ended only a couple of years after it got started.
The end appeared to be in sight when mighty Emory University, one of America’s most highly regarded institutions of higher learning, reviewed the entire record in detail and then agreed to pay Dr. Murtagh an eye-catching $1.6 million settlement, in return for his promise to remain silent about the alleged reprisals.
Soon after agreeing to pay out this enormous sum, however, Emory decided that Dr. Murtagh was not remaining silent about the alleged reprisals . . . and went to court to get its money back.
The ensuing legal dust-up – now entering its 13th year – wound up costing Dr. Murtagh dearly. In addition to paying hundreds of thousands of dollars in attorneys’ fees in recent years, the sleep specialist often found it difficult to find hospital employment as a physician, according to his attorney, noted Atlanta defense lawyer and arbitration expert Mark Spix.
“Jim Murtagh has spent many years in the wilderness,” says Spix, who crafted the elegantly simple legal argument that prevailed in the Georgia Appeals Court last July. “He was essentially blacklisted by the university for his whistle blowing, and he soon discovered that when potential employers called Emory for references, they were either ignored for months a time . . . or they were told things that prevented Dr. Murtagh from working as a hospital doctor.
“I really don’t know how he managed to hang on through so many legal defeats and through so many long stints of unemployment. But he did – and now, at long last, he has gained a toehold on justice. In my opinion, his legal victory last July is going to help protect hospital patients, taxpayers and jobs in the future.
“This is a huge victory for hospital patients everywhere.”
Like Mark Spix, veteran whistle blower counselor and expert Donald R. Soeken, LCSW-C, Ph.D., says he continues to be amazed by Dr. Murtagh’s tenacity and his “willingness to put his entire life on the line” as a truth-teller who insisted on speaking out about the alleged research-funding fraud at Emory University and Grady Hospital.
“The remarkable thing about Jim Murtagh is that he didn’t just survive,” says Dr. Soeken, the founder of Integrity International and the Whistleblower Support Fund and a professional counselor whose efforts to help U.S. whistle blowers have been written about in the New York Times and many other national publications since the 1970s. “While enduring a series of setbacks that would have disabled or destroyed many people, Murtagh actually found the strength to assist other truth-tellers.
“As a founder and current leader of the International Association of Whistle Blowers [along with tobacco industry whistle blower Jeff Wigand, aka “The Insider”],” for example, Dr. Murtagh has been absolutely tireless in fighting to reform peer review practices in hospitals. In my view, his continuing advocacy in that arena alone qualifies him as an authentic American hero.”
While the ongoing legal battle in Murtagh v. Emory University, et al seems certain to have a major impact on hospital physician peer review, it could also play a key role in helping to protect due process in legal disputes that involve formal arbitration, according to attorney Spix.
Describing the lengthy arbitration hearings that have accompanied the case (which has so far seen more than five years of arbitration-wrangling), Spix calls it “perhaps the most egregious example of manipulating and distorting the arbitration process in the history of the U.S. legal system.”
Make no mistake, says attorney Spix, a nationally recognized expert on arbitration: because maintaining a reliable and even-handed means of dispute resolution is essential to commerce, protecting due process during arbitration is “absolutely vital” to the economic well-being of the entire nation.
In Murtagh’s case, argues Spix, two hugely powerful Atlanta institutions – its flagship university and its major urban hospital – “have dragged out the arbitration process interminably, and quite obviously in a continuing effort to exhaust both Murtagh’s patience and his financial resources.”
Concludes the attorney who helped win the intrepid whistle blower his greatest legal victory to date: “When you look at how Jim Murtagh has stood up to two of the most politically powerful institutions in Georgia, and when you consider that he did it in an effort to help reform them both, you have to conclude that he’s actually a pretty heroic figure – one of those undaunted truth-tellers who refuses to stop telling it like it is, regardless of personal cost.”
[Editor’s Note: Investigative journalist Tom Nugent has reported for the New York Times, Washington Post, Chicago Tribune and many other publications. He is the author of Death at Buffalo Creek (W.W. Norton), a book of investigative journalism about the U.S. coal industry and its impact on Appalachia.]