Tucked into accountability provisions for the $878 billion stimulus is a breakthrough for medical whistleblowers. Congress closed a legal rights loophole that has left many defenseless against a nonfiction version of Kafka’s The Trial. Medical peer review is intended as and often is a valuable self-policing device for the medical industry. But it is so unstructured that it has been vulnerable to abuse. Medical whistleblowers can not even learn the charges, witnesses or other evidence in secretly-conducted, bad faith peer reviews that too often ended their careers. Carefully tailored provisions of new whistleblower rights for stimulus recipients allow doctors, nurses or even volunteers to challenge removal or other peer review actions taken in reprisal for whistleblowing. Now, they have the right to defend themselves before a jury.
IAW by James Murtagh
GAP legal director Tom Devine was enthusiastic. “For once the fine print was written to favor accountability. Medical whistleblowers risk their careers for the highest stakes, often with life and death consequences. For decades, though, they have been defenseless against knee jerk harassment that ends their careers. Corrupt hospital bureaucracies have a blank check to pack peer review panels operating in total secrecy that can and do banish at will doctors or nurses who defend patient safety at the institution’s expense. Now medical whistleblowers have best practice free speech rights, enforceable through full access to juries in court.” Devine added, “Taxpayers and medical whistleblowers can thank Senator Claire McCaskill (D.-MO.). This free speech and accountability breakthrough will save hundreds of careers, and thousands of lives. It only occurred, because her office took the extra effort to add accountability into every clause of the stimulus law’s contractor whistleblower section.” Here’s how the McCaskill amendment works: The contractor provisions also cover recipients of grants or any other federal payments, and apply to anyone who performs institutional services, regardless of whether or how paid. It is not limited to traditional employment contexts. Section 1553(g)(4) defines a covered employer to include:
(I) the contractor, subcontractor, grantee, or recipient, as the case may be, if the contractor, subcontractor, grantee, or recipient is an employer; and
(II) any professional membership organization, certification or other professional body, any agent or licensee of the Federal government, or any person acting directly or indirectly in the interest of an employer receiving covered funds...."
Congress added the specificity, since hospitals often try to avoid liability by classifying themselves as professional organizations that certify their members, not employers.
GAP legislative director Adam Miles cautioned that the new rights only last as long as stimulus spending continues. He reassured, however, “The McCaskill amendment has been accepted by all congressional offices and political parties as the permanent model for contractor whistleblower rights. The reform will become permanent if and when Congress includes it in and finally passes the Whistleblower Protection Act.”