This article recently appeared in Medscape. It is presented today because the premise is both disturbing and controversial.

Can Doctors Speak Their Minds Without Getting Into Trouble?

 By Leigh Page

When physicians speak their minds in exam rooms, committees, and the courts, they are expected to have a strong opinion and advocate forcefully on behalf of patients. But in a number of cases, doctors who speak out have met with harsh retribution that has cost them their jobs and hospital privileges, and permanently marred their reputation.

According to these doctors and the lawyers and consultants representing them, hospitals and other healthcare entities use several powerful tools against them. These include peer-review panels that have sweeping powers over disciplined physicians; nonspecific charges, such as labeling them “disruptive” physicians; and, when doctors are employed by the hospital, firing them without having to state a reason.

“Hospitals are run more and more like corporations, where earning money has become more important than human relationships,” said Derek Kerr, MD, an internist in San Francisco who was fired for speaking out and sued his hospital.

Speaking Truth to Power

According to Dr. Kerr, physicians can get into trouble when they challenge people who are more powerful than they are. Nabbing a low-level employee on the take might even make you a hero, he said, “but if you go after someone in a position of a power, you’ll find you’re no longer welcome.”

In 2009, while employed at a public hospital in San Francisco, Dr. Kerr claims  “If you go ahead and look into it, you could be damaged professionally, but if don’t, you’d be dodging your responsibility.”

Challenging powerful individuals is “career suicide,” he said. He says he won’t return to the hospital, because he feels that many people there view him as a troublemaker. “When you turn somebody in, there is an element of perceived disloyalty, because you’re not acting like you’re part of the team,” he said. It will also be hard to move on and find a new job, because for many potential employers, “there is the feeling that you might tell on them, too,” he said. Currently, he spends his time helping other whistleblowers.

Risks to Physicians Who Speak Up

Allan Tobias, MD, JD, a California consultant who holds a law degree and advises physicians who are in trouble with hospitals, said risks to physicians for speaking out have been rising in recent years.

Not so long ago, if a physician defied hospital administrators or powerful colleagues, an administrator “would put his arm around your shoulder and say, ‘Let’s have a little talk,’ and the matter could be settled,” he said. But now, hospitals want to lawyer up, restrict contact with the physician, and litigate endlessly, until the doctor gives in.

Dr. Tobias traced this change back to passage of the Healthcare Quality Improvement Act (HCQIA) in 1986, which was meant to protect hospitals from doctors who threaten quality of care. In recent years, he said, this federal law is being applied more broadly to physicians who are threatening hospital leadership but have not done anything wrong.

The HCQIA gives unusually broad powers to hospitals and their handpicked peer review committees, made up of physicians, which decide on the disciplined doctor’s case, Dr. Tobias said. The law states that peer review is immune from legal actions if it meets 4 broad requirements. For instance, the hospital must have “a reasonable belief” that it’s promoting “furtherance of quality healthcare” and make “a reasonable effort” to obtain the correct facts.

Sham Peer Review

Hospitals’ misuse of these powers is often called “sham” peer review, said Richard Willner, DPM, a podiatrist who heads the Center for Peer Review Justice in New Orleans, which advises physicians caught up in these decisions.

Dr. Willner said targeted physicians don’t get the basic due process rights that anyone else can get in a court of law. “There is no federal statute that requires peer review committees to observe due process,” he said, adding that the panels are not required to provide notice of allegations or a list of witnesses, or allow for legal representation, which are all due process rights. This makes peer review a highly effective way to silence physicians. Although they can appeal their case to the courts, no more than 5% of these lawsuits are successful, he said.

When physicians’ privileges are limited or withdrawn, this becomes a permanent mark against them, according to Dr. Tobias. They are automatically reported to the National Practitioner Data Bank (NPDB), which prospective employers or hospital credentialing committees are required to consult. Even if the physician is later exonerated, it’s extremely difficult to expunge the NPDB listing, he said.

Dr. Tobias said the pressure to remain silent is greatest for employed physicians, because typically their contracts say they can be fired at any time, without cause. Generally, these physicians “don’t want to rock the boat,” he said. “They want their want to get their paycheck and go home.” 

Bad to Be Targeted as “Disruptive”

Hospitals have found a way to target physicians who are a thorn in their side, according to Dr. Tobias. Physicians who get into arguments may be disciplined for being “disruptive.” Concerned about incidents usually involving doctors who physically abused or humiliated staff, the Joint Commission issued a Sentinel Event Alert[4] in 2008 that requires hospitals to develop “a code of conduct” that defines disruptive behavior and a “process” for managing it.

Mark Fahlen, MD, a nephrologist, was targeted as a disruptive physician while employed at a hospital in Modesto, California, run by Sutter Health, a large hospital system in northern California. As he tells it, in 2007 and 2008, several nurses refused to follow his clinical orders. “I was shocked,” he recalled. “If something goes wrong, the doctor is the one who’s to blame.”

On several occasions, he said he confronted these nurses, raising his voice but did not physically threaten them. Each time, they reported him to hospital authorities, and he received a disciplinary notice in the mail. Dr. Fahlen sent in his version of the incidents. (Asked about Dr. Fahlen’s version of events, a representative of Sutter Health said the organization had no comment.)

Dr. Fahlen said that when the nurses refused to admit a patient of his to the intensive care unit, and she became seriously ill and “almost died,” he reported the incident to hospital authorities. He was told he was to blame, not the nurses, and he was later fired. As an employee, he had no legal basis to challenge the firing, but he asked to keep his hospital privileges so he could practice in the area.

The hospital refused Dr. Fahlen’s request for privileges, so he asked for a peer review hearing to dispute the charges. The peer review panel, though handpicked by the hospital, sided with Dr. Fahlen, but the administration overruled the panel’s decision and denied his request.

Heartened by the peer review panel’s support, Dr. Fahlen sued Sutter Health under California’s whistleblower law, charging that his loss of hospital privileges was in retribution for his complaint. Sutter Health challenged his lawsuit, arguing that that he first needed to exhaust other legal remedies, which would have been a very high legal hurdle under HCQIA.

Realizing that doctors would be harmed if this hurdle were allowed to stand, the California Medical Association and American Medical Association submitted a legal brief[5]supporting Dr. Fahlen’s right to sue. In February, after 3 years of litigation, the California Supreme Court upheld his interpretation of the law, allowing his lawsuit to move forward and establishing a precedent for all physicians in the state.

“The ruling will unshackle doctors so they can protect patients without fear of retribution,” said Stephen Shear, Dr. Fahlen’s attorney. Few other states, however, come close to matching the kind of protections doctors have under the California law, according to a report[6] on state whistleblower laws. (There are federal whistleblower laws, but they cover another matter: identifying doctors and other providers who overcharge Medicare or Medicaid, Shear said.) 

Speaking Out Irresponsibly

Whereas many physicians have been effectively stopped from speaking out, other physicians speak out all too readily and should have held their tongue, according to Dr. Tobias. For example, one of his clients regularly wrote criticisms of colleagues in the patient’s medical record, prompting complaints from colleagues that remarks in the formal record might later be used against them in a malpractice lawsuit.

The physician “was brought up [for hospital disciplinary action] for it, and he said he would not do it anymore,” Dr. Tobias recalled. “Then he did some other stuff against the administration, and they wanted him off the staff.” Dr. Tobias helped settle the issue. “I got him to see [that] maybe there is a better way of doing things, and I got them [the administration] to see that you don’t want to get into a tug of war with this guy,” he said.

Many doctors are surprisingly willing to badmouth their colleagues. In a recent study,[7] actors playing patients with advanced lung cancer contacted physicians, saying they had moved to the area and were seeking a new doctor. When discussing care under their previous doctor, they only brought up accepted standards of care, but in 40% of visits, the new physicians offered unsolicited opinions on the previous doctor’s work. The great majority of them were disparaging, including, “This guy’s an idiot!”

Doctors can get into trouble for being careless in what they say. For example, in an Illinois court decision[8] from 2012, cited on Dr. Tobias’ Website,, an anesthesiologist was working with a plastic surgeon in an ambulatory surgery center. He thought he saw the surgeon giving the patient a tummy tuck while performing a hernia repair. Suspecting the surgeon of improperly billing for uncovered cosmetic surgery, he brought his suspicions to the center’s board. The surgeon sued him for defamation, and the judge upheld the surgeon, finding that the anesthesiologist didn’t bother to confirm his suspicions before making his complaint.

A Duty to Speak Out

Physicians in leadership positions often feel a greater sense of duty to speak out, owing to the weight of their responsibilities. “When you see something you think is wrong,” Dr. Tobias said, “it’s really your duty to speak out.” He said physicians should generally be encouraged to speak out, because there is far too much pressure on them to keep silent, especially if they’re employed.

Dean Winslow, MD, was Chair of the Department of Medicine at a California hospital that was losing money. When the hospital began pressuring physicians to see more patients to make up for the losses, he decided to investigate the hospital’s billings, according to his attorney, John McBride.

Dr. Winslow says he found a pile of claims that had never been processed, and he estimated the hospital was collecting only a small percentage of its billings, McBride said. The doctor brought the matter to the administration’s attention, which is “appropriate for the chairman of a department to do,” his attorney said, adding, “He took all the proper steps. There wasn’t anything he did that I would have advised him to do differently.”

Dr. Winslow, an employed physician, was abruptly fired last August and escorted out of the building. No reason was given for the action. More than 1000 people, including many doctors and staff at the hospital, signed a petition[9] stating he had been fired for challenging the administration and asking for his reinstatement. He filed a lawsuit challenging the firing, which is still in its early stages.

In some cases, you can get into trouble for not speaking out if you are aware of information that could lead to harm or damage. In a 2011 court decision,[10] a Louisiana anesthesiologist wrote a letter of recommendation for a colleague without mentioning the man had a drug problem.

Thanks to the letter, the colleague won hospital privileges but then lost a multimillion-dollar malpractice judgment. The hospital refused to pay, claiming that the anesthesiologist intentionally misrepresented the doctor. Citing similar grounds, his malpractice insurer also refused to pay, and the anesthesiologist was stuck paying damages out of his own pocket.


The thing is, now that more physicians are becoming hospital employees and fewer are going into private practice alone, doctors will increasingly be practicing with this noose over their head.  Is the system promoting dishonesty and membership into the “good ole boys’ club”?  Should doctors be honest?