Jury found Dr. Raess guilty of battery, awarded plaintiff Doescher $325,000

Expert witness:  Dr. Gary Namie, WBI

Appellate Court reversal

2008 Indiana Supreme Court restoral of trial verdict and award for plaintiff

Read the entire story and view the Supreme Court hearing

This type of conduct is what I read as an expert witness in court cases involving bullying physicians. Similar things happened in the trial dubbed the “first bullying trial” in Indianapolis, IN in March, 2005 in which I testified.

How rare were angry, hostile, bullying rants by Castro-Moure? Was this the first and only time that an otherwise respectful, gentle man exploded? Not likely. The statement by the chief medical officer about Castro-Moure’s normalcy means little. He probably never works directly with him in the OR, the workplace that bully surgeons terrorize. He only sees him through an administrative lens and as a fellow physician, a club member deserving protection.

The aftermath will be worth tracking. Will the Medical Board do anything since they rarely strip licenses? Will the chief of staff, Altman, have the guts to sanction Castro-Moure or will that be seen as capitulation to nurses? Will Highland Hospital, the county government employer, implement a policy to prevent this from happening again? [We do work with motivated hospitals but eventually they balk at applying anti-bullying policies to the docs.] Will the nurses union demand action to make them safe? Will the patient’s family sue for the involuntary delay?

Bullying in hospitals jeopardizes patient care and staff safety. But most administrators are too timid to confront and constrain thugs like Castro-Moure. This unfortunate incident gives the public and bully sympathizers a rare peek behind the hospital door to show what nonsense is tolerated on a daily basis by nurses.

Highland (Hospital, Oakland, CA) Surgeon Suspended
Drunken Altercation Reported in Hospital’s Operating Room

By Jim Herron Zamora
San Francisco Chronicle
Thursday, March 9, 2006

OAKLAND — The top neurosurgeon at Highland Hospital has been suspended and may be charged with a misdemeanor after what authorities called a drunken altercation with sheriff’s deputies in an operating room, officials said today.

Deputies believe Dr. Federico Castro-Moure, 45, was intoxicated during the scuffle and prosecutors may charge him with public drunkenness and interfering with a peace officer.

“The deputies felt that he was behaving in an aggressive manner,” Alameda County Sheriff’s Capt. William Eskridge said. “He was yelling and put a fist in the face of a deputy in a threatening manner.”

Neither Castro-Moure nor his attorney could be reached for comment.

The incident began about 8:30 p.m. Monday when Castro-Moure argued with nurses recommending that he wait several hours for sterile equipment to arrive before operating on a spinal patient.

Although Castro-Moure wanted to operate immediately, other hospital personnel believed the surgery could be delayed because the patient was stable enough to wait, said Dr. David Altman, the hospital’s chief medical officer.

In such cases, it is the hospital’s policy to wait. But Castro-Moure became angry and physically and verbally abusive, officials said. A nurse summoned deputies to the foyer outside the fifth-floor operating room.

When deputies attempted to intervene, Castro-Moure allegedly shouted obscenities and used his arm and clenched fist to keep them at bay, officials said.

Although the deputies arrested Castro-Moure on suspicion of public intoxication — based upon both his behavior and the smell of alcohol on his breath — Eskridge said the doctor was so uncooperative that deputies could not adequately test him for intoxication.

“He compromised the test by not blowing the amount of time the test needs to get an accurate reading, but the device did indicate there was some alcohol in his system,” Eskridge said.

The unidentified patient was in the emergency room at the time and remained there throughout the incident, officials said. His spinal operation occurred Tuesday morning, and he is recovering satisfactorily, Altman said.

Altman announced Thursday that Castro-Moure has been suspended without pay. Castro-Moure, Highland’s head of neurosurgery since 2003, will be barred indefinitely from practicing at the hospital pending several investigations by the hospital and county health officials, Altman said.

The California Medical Board, which holds licensing power over all doctors in the state, is expected to launch its own investigation of Castro-Moure. The board could potentially strip him of the ability to practice medicine in the state.

“I cannot confirm or deny that we have an investigation because that is not a public record,” said Erlinda Suarez, analyst California Medical Board. “But I can tell you that in any case like this with wide media coverage we would probably initiate an investigation based on media reports,” Suarez said.

Altman said Alameda County Medical Center officials are “very concerned.” Although there is no specific policy banning alcohol consumption by doctors before surgery, Altman said doctors and other employees are barred from working when “impaired in any way by drugs or alcohol.” He also said it is hospital policy to immediately report any person with alcohol on their breath.

“We will not tolerate unprofessional conduct that could endanger our patients,” Altman sad. “That is unacceptable.”

Castro-Moure has been at Highland Hospital since November 1999 and had no history of misconduct, Altman said. Castro-Moure received his medical degree from Collegio Mayor de Nuestra Senora del Rosario in Bogota, Colombia, and his doctorate from Wayne State University in Detroit.

“He is a well-respected neurosurgeon, well respected in his field,” Altman said.

Hospitals would become bully-free zones and bad-boss behavior prohibited in state statute under a bill that a legislative review committee on Tuesday earmarked for interim study.

Despite opposition to the bill by the head of the state Division of Risk Management, former district Judge Roger Livingston, counter testimony from disgruntled health-care workers who support HB224 was too compelling for lawmakers to ignore.

They heard and were given written accounts of ostensibly competent, caring medical providers being driven from their jobs and even out of the state by supervisors who induce stress in an already high-stress occupation. The hyper-patrolling and controlling oversight — which included employees having to ask to go the bathroom are far from uncommon and are adding injury to the insult in the form of serious mistakes and harm to patients, committee members were told.

Laura Sorensen, a registered nurse with critical care certification and a former Air-Med flight nurse and a state Emergency Nurse of the Year, said workplace bullying is the not the joke opponents try to make of it. She said that after immediately divulging to a supervisor that she had been diagnosed with multiple sclerosis 15 years ago, the University of Utah began a systematic effort to have her fired, effectively “disabling me well before I had any signs of being ‘crippled up’ by the disease.” She said U. attorneys immediately considered her a potential liability as a flight nurse and proceeded to keep her from working, despite her filing an Americans With Disabilities Act lawsuit and court-directed mediation in which she told U. lawyers all she wanted was her job back until her health literally — not potentially — precluded it.

Nurse Sharlene Watson said she was driven out of her labor and delivery job at the U. for delivering a baby before the attending doctor arrived and to ease an ongoing disagreement between her boss and another nurse. She was immediately placed on leave without pay. She said in subsequent hearings she was verbally and physically abused.

“People think government immunity doesn’t prevent actions in court, but I can tell you they do,” Watson said.

Livingston said if state employees feel aggrieved, “we have methods to ensure that we are as progressive and open and fair.”

He added that he didn’t want to come off as denigrating testimony before the committee, but said “in the strongest possible terms, this would be a giant step backward.”

To illustrate his point, he mentioned a 1977 citizen petition in Arizona against Daylight Savings Time in which a reason cited by signers was that “the extra hour of sunlight would burn their lawns.”

Dave Gessel, vice president of government relations and legal counsel for the Utah Hospital Association, said HB224 is “well-intended but off the mark,” noting that behavior at any workplace has never been made a cause of legal action. “This is a Grand Canyon change. To single out health care or go across that chasm is huge” in part because Utah is a right-to-work state in which 89 percent of all employees can be let go from their job for no good reason.

“Employers would see a problem and think they better fire that person right now,” he added. “This would backfire.”

This summer, lawmakers may study whether they can and should outlaw “an abusive work environment” in government-owned health care settings, such as the University of Utah.

Members of the House Health and Human Services weren’t ready to legislate against bad behavior, and instead recommended HB224 be studied.

Stephen Sandstrom, R-Orem, said the bill is aimed mainly at residency programs where there have been instances of supervisors targeting trainees with verbal abuse or behavior aimed at undermining their work, forcing them to quit.

Bill supporters noted current law doesn’t protect employees from such abuse unless the harassment is based on sex or race. They said intimidating behavior can psychologically harm employees and can lead to medical errors when providers are scared to speak up. A national accrediting agency now requires hospitals to have codes of conduct on such behavior.

But opponents, including the state’s risk manager, said it would be a vast departure from current law. And they said it would invite lawsuits, since it would be creating a new protected class of employees in what is now a right-to-work state.

Joseph Doescher and Daniel Raess worked side by side in the operating room at St. Francis Hospital in Beech Grove, Indiana. Doescher and the other perfusionists often had to put up with yelling, swearing, and belittling comments from Raess, the heart surgeon. Finally, Doescher reported the behavior to his supervisor. Raess got wind of it and retaliated.

In subsequent court proceedings, Doescher described looking up at Raess’ red face and popping veins. He was afraid Raess was going to hit him. In the end, Doescher left his job with a debilitating case of depression. Later, he sued Raess and was awarded $325,000 in compensatory (but not punitive) damages.

Shortly after the Indiana Supreme Court decided this high-profile medical case, the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) issued a safety alert, requiring hospitals to adopt a zero-tolerance policy toward workplace bullying.

By January 2009, hospitals must also comply with the new disruptive behavior standard (LD.3.15). They will create new training, post a code of conduct for employees, and set up a mechanism for workers to report inappropriate outbursts.

“It’s been widely recognized that this kind of behavior goes on in health care settings,” says Peter Angood, MD, Chief Patient Safety Officer for JCAHO. “It seemed to be increasing in frequency, so we felt it was important to put standards in place.”

Perfect Targets

Researchers, including Gerald Hickson, MD, at Vanderbilt University, and Alan H. Rosenstein, MD, have shown how inappropriate workplace behavior can lead to increased legal costs and put patient safety at risk. Other studies have shown that clinicians working in a hostile environment make more errors while dispensing medication.

“If there are people in the workplace who don’t play well with others, sometimes they cause other members of the team to lose focus,” Hickson says, “and an error will occur.”

According to Gary Namie, PhD, Co-founder of the Workplace Bullying Institute in Bellingham, Washington, this issue is coming to the forefront, just as sexual harassment did about 20 years ago. Employers are starting to see training programs and prevention as a good investment. And Namie says the need is great — in all sectors of the work world. WBI and Zogby International conducted a survey and found that 37% of American workers say they have been victims of workplace bullying.

Health care, with its hierarchical structure of authority and caste-like training systems, is rife with this type of negative behavior. In part, Namie says, this is because there are so many caring and compassionate people in the field, who make perfect targets: They would rather help people and keep a low profile than fight back.

“It’s the people mix,” Namie says. “You’ve got just enough people with strong egos and narcissistic personalities. Then you’ve got this vast pool of targets who have an altruistic bent–they want to focus on the work itself, and they have a belief in a benevolent world. They don’t respond to aggression with aggression.”

Workplace bullies usually target a person with good social skills who is well liked, as Namie explains: “It’s usually a person with an established record who poses a threat, and the bully wants to take him or her down.”

Nurses at the Forefront

Frequently, physicians are the aggressors and nurses are the targets. In fact, a JCAHO survey found that 50% of nurses had been targets of this kind of intimidation, and 90% of nurses reported having witnessed it.

Dianne Felblinger, EdD, MSN, WHNP-BC, CNS, RN, a nursing instructor at the University of Cincinnati, believes the nursing shortage is driving some of the frustration–but also may hold the key to solving the problem.

First of all, many hospitals do not have optimal nurse-to-patient ratios right now, due to the shortage. That, in turn, leads to high stress and more confrontations. “I have pretty much seen it all,” Felblinger says. “I have seen yelling, screaming, and chart throwing. I once saw a physician throw a needle, and it pierced the nurse’s skin.”

On the other hand, she adds, the nursing shortage has helped nurses find their voices and ask for better treatment. Hospitals know if they don’t retain their nurses and keep them happy, nurses have a lot of career options these days–and they just might walk.

Felblinger worries about NPs who may be the sole nurse in a clinic, surrounded by physicians. Those NPs could become targets, since they don’t have other nurses to turn to for support.

The best prevention, according to Felblinger, is to speak up right away. Unfortunately, most targets of bullying let the problems continue for as long as two years.

“The most civil thing is to always address it with the person,” Felblinger says. “Get it out in the open, and request that the behavior stop.” It’s about learning to set boundaries and deciding you want to be treated with respect, she adds. “Sometimes things can be worked out really well,” Felblinger says. “Sometimes people don’t realize they’re doing this, because nobody ever brought it to their attention.”

Building Momentum for Change

With the new JCAHO standards in place, clinicians should have an easier time reporting negative incidents.

Still, Namie warns, the JCAHO standards really don’t have teeth. Health care workers won’t truly be protected until legislators pass laws that will cause a workplace bully to lose his or her job (just as they did for sexual harassment). That’s still years away, but with two bills in the New York State Legislature and six other active bills in states across the country, Namie says the movement “continues to catch fire.”

Meanwhile, clinicians who do call out a bully may run into resistance at the top. Bullies are often adept at charming and building allies in high places. Felblinger says that some hospital administrators may also value the money top surgeons or physicians are able to attract to the institution–sometimes more than they value their own workers.

One shining star in this area is Vanderbilt University Medical Center, which has adopted effective prevention policies of its own and shared the model with 40 other hospitals around the country. (For details, visit www.mc.vanderbilt.edu/cppa.)

Vanderbilt uses patient surveys, suggestion cards, and waiting room videos to make it clear to patients that their feedback is welcome. Staff members use an online program to report unprofessional behavior, Hickson says. Once the data are there, the hospital searches for recurring names and patterns of negative behavior. Clinicians who are repeatedly mentioned must then go through training programs and, in certain cases, counseling through an employee assistance program.

It’s not as simple as printing up a statement about zero tolerance, Hickson says. “So many people think you can slap a policy on this and make it go away,” he adds. In fact, it can take years to make inroads and establish civil behavior as a core value for a medical institution.

For Patients and Clinicians

Clinical nurse specialist Theresa Mulherin, MSN, RN, CEN, is in charge of implementing the new JCAHO standards for workplace behavior at Sentara Careplex in Hampton, Virginia. At times, she feels as if she is operating in uncharted territory, but she is also honored to do this job.

“I’m excited about this,” Mulherin says. “As nurses, we’ve known for a long time that this needed to be addressed. This is about patient safety, and that’s why it’s so important to me.”

While it may be a far from perfect world for health care workers, it’s important not to lose heart. Clinicians need to stick together, support each other, and really work on this cause, Felblinger says: “We can lose some of our best and brightest if we don’t deal with it.”