Do doctors have a right to speak about patient safety problems in hospitals and not have it used as a basis for termination? Do they have the same right to free speech as everyone else? That’s the question being raised in a court battle between Dr. R.V. Rao and Washington Hospital.
Dr. Rao is a general and vascular surgeon and a long-time member of UAPD’s private practice division. After completing medical school in his native India, he moved to the United States in 1976 to do surgical training at Mt. Sinai Medical Center in Miami Beach, Florida. He gained privileges at Washington Hospital upon moving to California in 1982, and eventually served as both Chairman of the Surgery Department and the Co-Director of the ICU there.
In 2002, Dr. Rao says, Washington Hospital began marketing itself as an orthopedic and joint surgery specialty center; many hospitals in the last decade have sought to create specialties in these profitable surgical services. The hospital reserved two of its five operating rooms for elective orthopedic surgery, which meant that a vascular/general surgeon like Dr. Rao had a hard time finding space in the surgical schedule to perform dialysis access surgery, fistula repair and other life-saving interventions. He was forced to perform surgeries later and later at night, and had an increasingly difficult time finding medical staff to assist. It is probably not coincidental that Dr. Rao often treated the medically complicated, uninsured patients who entered through Washington’s busy emergency department, making his work far less profitable for Washington Hospital than the sort of elective orthopedic procedures that now took up a large share of OR space. Dr. Rao believed that the medically acute cases he and other surgeons were treating needed to take precedence over elective surgeries.
So Dr. Rao spoke up. Over several years Dr. Rao made a log of problems, which he communicated to his peers and to administrators in every hospital forum that existed. When that didn’t work, he reported some of the issues he had logged to outside agencies, following the correct protocol for doing so. The outside agencies, including JCAHO, agreed with Dr. Rao’s assessments. JCAHO hit Washington Hospital with a conditional accreditation, citing among other problemsthe quality of care in the operating room, just as Dr. Rao had reported.
Soon Washington Hospital began pushing back on Dr. Rao, encouraging some of his colleagues to label him a “disruptive physician” and challenge his clinical skills through the peer review process. An investigation of Dr. Rao was conducted by three outside physicians, only one with any knowledge of vascular surgery, and another who has become famous on the legal circuit for the sheer volume of civil and criminal cases in which he served as witness, and his tendency to espouse his client’s position. Dr. Rao was not allowed to see the complaints against him during the investigation, which he believes relied on testimony from only a small subset of his colleagues who were hand-picked by the administration. He later discovered documents that proved that the chairman of the supposedly independent investigatory committee had corresponded with the hospital attorney throughout the investigation, settling on a strategy for labeling Dr. Rao disruptive.
During the peer review process, Dr. Rao continued to speak up about problems in the medical system. Along with other physicians, he was interviewed for an independent film called “Life for Sale”; made by a cardiologist at Washington Hospital, the movie examines the problems that arise when medical care and the profit motive mix. Though Dr. Rao did not identify himself or the hospital by name, the filmmakers identified him in a caption as a physician practicing at Washington Hospital. Soon after the movie was released, the Washington Township Health Care District Board of Directors voted to terminate Dr. Rao. Equally problematic, he had been labeled a “disruptive physician” by the peer review process, and was reported to the state medical board for behavioral and clinical deficiencies.
It should come as no surprise that Dr. Rao decided to keep fighting, this time in court. “I want to make a point,” he says, about doctors having the same right as everyone else to speak up when there are lives at stake. “I feel my constitutional rights were violated repeatedly, and I feel the rights of my fellow physicians are often violated as well.”
His case against the Washington Township Health Care District is now being heard by the Superior Court of California in Alameda County. The court is being asked to overturn the termination order made against him. Though the legal process moves slowly, Dr. Rao has already had some significant victories. Washington Hospital used multiple court motions including a “SLAPP motion” to keep sealed one of Dr. Rao’s peer review cases, which Dr. Rao wants to use in court because much of it proves his point that the hospital violated the law throughout the process. The judge in the case has ruled in Dr. Rao’s favor on the issue. The hospital also tried to obtain a protective gag order to keep Dr. Rao from speaking about the case, but the judge ruled against them.
Dr. Rao says that his 40 years of experience as a physician have given him the determination to do what he thinks is right, rather than expedient, in this case. “I don’t know if I would have had the guts to do this when I was 30 years old. Or when I was 40 years old, and had a young family.” He is taking a stand not only to correct the patient care problems at Washington Hospital and the mistreatment he received there, but to draw attention to a larger problem that affects all physicians in this country. Physicians who see patient safety problems and want to speak up about them need robust free speech rights. UAPD wholeheartedly supports Dr. Rao in his fight.