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Association of American Physicians and Surgeons, Inc.
A Voice for Private Physicians Since 1943
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CONTACT: Kathryn Serkes (202) 333 3855 [email protected]

December 20, 2005

Dershowitz Authors Brief for Review of Secret Hospital Abuse of Power

Washington, D.C. -- In an extraordinary collaboration of parties more likely to be adversaries in a courtroom, doctors and trial lawyers have teamed with famed attorney Alan Dershowitz to urge the Supreme Court to consider a case that would protect physician whistleblowers and expose secret hospital abuses of power.

The Association of American Physicians and Surgeons (AAPS) has been joined by the Association of Trial Lawyers in America (ATLA) in filing a “friend of the court” brief asking that the Supreme Court hear the case of Gil Mileikowsky, M.D. of California, who was ousted from a hospital after agreeing to testify on behalf of a patient against the facility, owned by industry giant Tenet Healthsystem. (See www.aapsonline.org/mileikowsky.)

Also adding to the “odd couple” element of the case is that the attorney who filed the original petition for review for Dr. Mileikowsky is Andrew Schlafly. “I’m thrilled that Mr. Dershowitz is bringing his immense legal skills to shed some light on this abuse of power by hospitals,” said Mr. Schlafly. “I’m also glad that my fellow attorneys in ATLA are willing to expose these secret proceedings that rob patients of their most effective advocates through ‘sham’ peer review.”

Other parties joining AAPS in the amicus brief authored by Professor Alan M. Dershowitz, Amy Adelson and Nathan Z. Dershowitz are: the Union of American Physicians and Dentists (UAPD), the Semmelweis Society, the Consumer Attorneys of California (COAC), and the Government Accountability Project (GAP).

Mr. Dershowitz’s office released the following statement: “…Physicians who are entrusted with the care of their patients can see their professional careers destroyed if they dare to challenge a hospital’s practices. When a ‘whistleblowing’ physician is retaliated against, it threatens not only the physician’s livelihood, but the care of all patients. This is a case, therefore, that affects every patient and potential patient in America.”

“This case epitomizes why doctors are afraid to report medical errors and problems,” said Larry Huntoon, M.D., chairman of the AAPS Committee to Combat Sham Peer Review. “To bury their own mistakes, hospitals label doctors as ‘disruptive’ and file trumped-up charges of wrongdoing. Then they count on the ‘where there’s smoke, there’s fire’ perception to make the doctor the scapegoat.”

And it’s usually the most vocal critics and patient advocates who are thrown on the fire. “[Dr. Mileikowsky] was an outspoken member of the staff and was disliked by some administrators for that reason, as he did not shirk his responsibility to publicize administrative shortcomings at the Hospital that undermined patient care,” states the doctor’s petition to the Supreme Court.

Writing in the brief filed late Monday, Mr. Dershowitz et al. point out that an accused felon would have had more right to due process than do doctors: “Doctors, like the petitioner in this case, are required to defend themselves without counsel against charges that, as in this case, have been brought in retaliation for the doctor’s support of a patient claiming inadequate care.”

The brief explains the implications on patient safety:

The American public, as medical patients, will be the biggest loser if physicians are compelled to choose between their own livelihoods and speaking out when they witness dangerous or inadequate medical care. Few physicians will risk the dire consequences of a bad faith peer review to speak up on behalf of a single patient, and a critical prong in the checks and balances integral to a successful health care program will be silenced.”

Concluded Dr. Huntoon: “The game is over for these hospitals and their secret star-chamber hearings. Standing up for patients should not mean the end of a career.”

Mileikowsky v. Tenet Healthsystem et al.
128 Cal. App. 4th 531 (2nd App. Dist. 2005)

In 2000, Dr. Mileikowsky agreed to testify as an expert witness in a case against Tenet after both fallopian tubes of a patient were removed without her consent. Four days later, Tenet retaliated by requiring that security escort the doctor while on the premises. Dr. Mileikowsky subsequently provided the FBI healthcare fraud division with evidence of the loss and mishandling of embryos, eggs and sperms in the in-vitro fertilization laboratory at Tenet’s facility. He was summarily suspended without cause three days later, under allegations of “imminent danger.” There had been no previous actions against him.

When Dr. Mileikowsky attempted to appeal his case to the hospital board, he was denied legal representation, and then was denied due process when the hearings were terminated by the hospital. He has yet been unable to get a hearing to reinstate his privileges to this date.

Dr. Mileikowsky sued Tenet, but lost when the California court assumed that the state could maintain its "opt out" status with respect to the 1986 Health Care Quality Improvement Act (HCQIA) which requires that a physician be represented by counsel. However, in 1989, Congress deleted the opt-out provision from the statute.

Additional information:

Text of amicus brief, Petition for Writ of Certiorari, news clips: www.aapsonline.org/mileikowsky


Kathryn Serkes
(202) 333-3855
[email protected]