After losing at arbitration, as well as in federal court and partially on appeal, Tenet Healthcare is refusing to comment on whether it will continue to battle two Detroit-area cardiologists whom the hospital corporation fired from leadership positions in 2018.
The cardiologists were awarded $10.6 million from an arbitrator, who found that Detroit Medical Center (DMC) and its parent, Tenet, retaliated against Amir Kaki, MD, and Mahir Elder, MD, when the doctors repeatedly reported concerns about patient safety and potential fraud.
The award was made public when it was upheld in federal court in February 2021 and was partially upheld on appeal days later by the Sixth Circuit Court of Appeals.
The Sixth Circuit Court of Appeals denied Tenet's motion to bar Kaki and Elder from returning to work with full privileges but said it would continue to consider the overall appeal. Tenet argued that it needed to keep the cardiologists out of DMC because of "behavioral issues."
Those allegations are "complete nonsense," said the cardiologists' attorney, Deborah Gordon, of Bloomfield Hills, Michigan. The alleged problems regarding Kaki and Elder were examined by an arbitrator, who "found that all of those complaints were unsubstantiated," Gordon told Medscape Medical News.
In her final ruling, arbitrator Mary Beth Kelly wrote, "Both Kaki and Elder testified credibly regarding the humiliation, the emotional distress and the reputational damage they have suffered to their national reputations.”
A spokesperson for Tenet and DMC said the organizations had no further comment.
Gordon said she believes it's unlikely Tenet will prevail in the Sixth Circuit Court of Appeals, noting that the court already had examined the merits of the case to determine whether Kaki and Elder could go back to work. In the court's opinion, shared with Medscape Medical News, nothing substantive in Tenet's appeal prevented the doctors from returning to the hospital, she said.
As of now, both cardiologists have 1 year of privileges at the DMC-affiliated hospitals. Only Kaki has returned to work, said Gordon. Neither is speaking to the media, she said.
From Respected to Reviled
Both Kaki and Elder were respected at DMC, according to court filings.
Kaki was recruited from Weill Cornell Medical College by a Detroit mayor because of his expertise in interventional cardiology. He had staff privileges at DMC beginning in 2012 and was a clinical associate professor and assistant program director of the interventional cardiology fellowship program at Wayne State University School of Medicine. He became director of the Cardiac Catheterization Services Unit at the new DMC Heart Hospital at Harper-Hutzel Hospital in 2014, and 4 years later was appointed director of the facility's anticoagulation clinic. Kaki was nominated for and completed Tenet's Leadership Academy.
Elder was a clinical professor and assistant fellowship director at Wayne State and was a clinical professor of medicine at Michigan State University. Beginning in 2008, he held directorships at DMC's Cardiac Care Unit, Ambulatory Services Program, Cardiac CT Angiogram, PERT Program, and carotid stenting program. Elder was voted Teacher of the Year for 10 consecutive years by DMC cardiology fellows.
The two doctors aimed high when it came to quality of care and ethics, according to legal filings. Over the years, Kaki and Elder repeatedly reported what they considered to be egregious violations of patient safety and of Medicare and Medicaid fraud laws. The clinicians complained about unsterile surgical instruments and the removal of a stat laboratory from the cardiac catheterization unit, noting that the removal would cause delays that would endanger lives.
At peer review meetings, as well as with administrators, they flagged colleagues who they said were performing unnecessary or dangerous procedures solely to generate revenue. At least one doctor falsified records of such a procedure after a patient died, alleged Kaki and Elder.
Tenet hired outside attorneys in the fall of 2018, telling Kaki and Elder that the legal team would investigate their complaints. However, the investigation was a sham: filings allege that the investigation was used instead to build a case against Kaki and Elder and that Tenet leadership used the inquiry to pressure the cardiologists to resign.
They refused, and in October 2018, they were fired from their leadership positions. DMC and Tenet then held a press conference in which they said that Kaki and Elder had been dismissed for "violations" of the "Tenet Standards of Conduct."
Cardiologists Push Back
Kaki and Elder, however, were not willing to just walk away. They sought reinstatement through an internal DMC appeals panel of their peers. The clinicians who participated on that panel ruled that neither firing was justified.
But DMC's governing board voted in April 2020 to deny privileges to both cardiologists.
Tenet continued a campaign of retaliation, according to legal filings, by not paying the clinicians for being on call, by removing them from peer review committees, and by prohibiting them from teaching or giving lectures. DMC refused to give Kaki his personnel record, stating that he was never an employee when he was in the leadership position. Kaki sued, and a Wayne County Circuit Court judge granted his motion to get his file. DMC and Tenet appealed that ruling but lost.
Eventually, Gordon sued DMC and Tenet in federal court, alleging the hospital retaliated against the cardiologists, interfered with their ability to earn a living by disparaging them, refused to renew their privileges in 2019, and committed violations under multiple federal and state statutes, including the False Claims Act and the Fair Labor Standards Act.
Tenet successfully argued that the case should go to arbitration.
Arbitrator Mary Beth Kelly, though, ruled in December 2020 that the vast majority of the complaints compiled against the two physicians in the external investigation were not verified or supported and that Tenet and DMC had retaliated against Kaki and Elder.
For that harm, Kelly awarded each clinician $1 million, according to the final ruling shared with Medscape Medical News.
In addition, she awarded Kaki $2.3 million in back pay and 2 years of front pay (slightly more than $1 million). She awarded Elder $2.3 million in back pay and $2.1 million in front pay for 4 years, noting that "his strong association with DMC may make it more difficult for him to successfully transition into the situation he enjoyed prior to termination and nonrenewal."
The clinicians were also awarded legal fees of $623,816 and court costs of $110,673.
To secure the award, Gordon had to seek a ruling from the US District Court for Eastern Michigan. Tenet asked that court to overturn the arbitrator's award and to keep it sealed from public view.
In his February ruling, Judge Arthur J. Tarnow wrote that Tenet and DMC "not only attempt to relitigate the legal issues, but also endeavor to introduce a factual counternarrative unmoored from the findings of the Arbitrator and including evidence which the Arbitrator specifically found inadmissible.
"By seeking a wholesale retrial of their case after forcing plaintiffs to arbitrate in the first place," Tenet and DMC basically ignored the goal of arbitration, which is to relieve judicial congestion and provide a faster and cheaper alternative to litigation, he wrote.
Tarnow also warned Tenet and DMC against taking too long to reinstate privileges for Kaki and Elder. If they "continue to delay the restoration of plaintiffs' privileges in the hopes of a different result on appeal, they will be in violation of this Order," said the judge.
Tenet, however, tried one more avenue to block the cardiologists from getting privileges, appealing to the Sixth Circuit, which again ordered the company to grant the 1-year privileges.
Alicia Ault is a Lutherville, Maryland-based freelance journalist whose work has appeared in publications including Smithsonian.com, the New York Times, and the Washington Post. You can find her on Twitter @aliciaault.
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Cite this: Detroit Cardiologists Prevail in Retaliation Suit Against Tenet - Medscape - Mar 30, 2021.