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First published in Hospitals & Health Networks OnLine, October 2, 2007
It is a very old question, one that has plagued people in all areas of life: When is it appropriate to inform higher-ups, the authorities or others about misbehavior?
Humankind's response to this dilemma over time has produced some really mixed signals. On the one hand, those who blow the whistle on malfeasance are often lionized in cultural media: Films such as Serpico, The Insider and Silkwood make heroes of people who stuck their necks out to expose wrongdoing; in 2002, Time named three whistle-blowers-Cynthia Cooper of WorldCom, Coleen Rowley of the FBI and Sherron Watkins of Enron-as its Persons of the Year.
On the other hand, people who inform on other people are also commonly referred to as "rats" and "snitches" and often end up isolated from their former communities and relationships. There are greater dangers: Informers often are forced to leave town or even change their identities. Karen Silkwood, who sought to expose unsafe practices at a plant producing nuclear materials, died under mysterious circumstances; Frank Serpico, who revealed corruption in the New York City police department, was nearly killed and ended up leaving the country; Troy Ellerman, the attorney who leaked baseball star Barry Bonds' grand jury testimony on steroid use to a reporter, was sentenced earlier this year to two years in prison. In one case of which I am aware, the whistle-blower was sent a pipe bomb; in another, threats forced the person in question to leave the state. As Jim Alderson, a hospital financial management executive who exposed malfeasance on the part of Columbia/HCA, a for-profit hospital chain, said of his experience, "You risk everything when you do it."
Indeed, someone else who suffered greatly after exposing wrongdoing in a health care situation later told a journalist, "I don't care what I experience in the future; I will never open my mouth again."
The very fact that I have concealed the identities of some of the people involved in these events reinforces the fact that the stakes in blowing the whistle are very high indeed.
The situation has been made more complicated by two federal laws: the False Claims Act (originally a Civil War-era law, beefed up by Congress in 1986) and the Sarbanes-Oxley Act, passed in 2002 in the wake of multiple corporate scandals, including Enron, Tyco, WorldCom, Adelphia, Global Crossing and many others. Many states and some cities have enacted False Claims Acts as well. These statutes impose greater responsibilities on individuals and organizations involved in government contracts or otherwise receiving government funds. But most importantly, they provide significant financial rewards for those who blow the whistle; these people can be awarded a percentage of the money the government recovers, generally ranging from 10 percent to 25 percent. In the case of Jim Alderson, the Columbia/HCA whistle-blower, his reward was $70 million before taxes and legal fees (he put most of the money into a charitable foundation).
As of 2005, the federal government had paid out more than $1 billion to whistle-blowers. The potential windfalls for informers and attorneys alike are so alluring that there is at least one guide book: Whistleblowing: A Guide to Government Reward Programs, by Joel D. Hesch. Its cover reads, "How to Collect Millions of Dollars for Reporting Fraud." The complication, of course, is that the possibility of reaping millions of dollars for turning in your colleagues can be such a temptation that some people might jump the gun or even manufacture evidence of wrongdoing in the hope of cashing in. Also, the financial rewards might lead those around you to question just why you did what you did. What was once, in the eyes of some, "the right thing to do" can become a case of suspected greed.
I have lectured on this topic in the past, and much of my research and thinking about it resurfaced strongly when former Surgeon General Richard Carmona, M.D., testified before Congress on July 10 that he and his staff had been repeatedly "muzzled" by the Bush administration with regard to public health reports and even Carmona's public speeches. He stated that he had been ordered not to speak or publish reports on issues ranging from stem cell research to secondhand smoke; he was even discouraged from attending the Special Olympics because one of the charity's main supporters is the family of John, Robert and Edward Kennedy.
he response to his revelations was fascinating. Just about every newspaper editorial page weighed in, with opinions ranging from support for his difficult position to condemnations of his silence. The Wall Street Journal, whose editorial page has never been considered a bastion of liberalism, stated, "Dr. Carmona was not an indentured servant. If he disagreed so profoundly with President Bush's policy, he could have resigned. Honorable people do it all the time…. That Dr. Carmona failed to resign over so long a period suggests that his personal moral agony was rather less tortured than he now makes it seem. Alternatively, the good doctor could have done what some of his predecessors chose to do: Speak up anyway, and face the consequences, such as being fired." The editorial cited the cases of former Surgeons General C. Everett Koop, M.D., and Joycelyn Elders, M.D., both of whom lost their jobs after offering controversial opinions in public.
However, the Journal concluded that Carmona's mea culpa after the fact was a cheap shot, a "late hit" on the president that would not put the former surgeon general at risk of any negative consequences. Again, mixed signals.
I do believe that, as a general rule, silence in the fact of misbehavior is not golden, even if the price of revelation is uncomfortably high. We need no more evidence than James B. Stewart's superb (and totally horrifying) book Blind Eye, the saga of how physician Michael Swango became one of this country's most prolific serial killers, largely because those who tried to report their suspicions about him -- in several different health care settings -- were ignored, overruled or intimidated. (Shoddy checking of his alleged credentials was also a factor.)
But these decisions cannot be taken lightly. So, from someone who has been on different sides of this issue at various times, a few pieces of advice, some from my own experience and some from others who have been there:
Have some basis in fact. Rumors, innuendo, grudges and fourth-hand gossip do not constitute sufficient grounds for contacting the appropriate authorities. However, if rumors and suspicions persist, it is a good idea to try to find out more. Don't wait until evidence is overwhelming. In the case of Orville Lynn Majors, a nurse in Indiana who may have killed more than 100 patients (he is currently serving 360 years in prison for six murders), other nurses were well aware that something was wrong; whenever he was on duty, many more patients died than on anyone else's shift. However, the nurses believed they had to document the situation meticulously, and while they were doing so, more patients in Majors' care died. If you're pretty sure that something bad is going on, do something.
Listen to the concerns of people closest to the situation. In the cases of Swango and other health care criminals, those closest to the "scene of the crime" had justifiable suspicions that were often dismissed by higher-ups. In the case of the serial killers, these were often staff nurses or nursing supervisors, who are hardly at the top of the health care power food chain. Because they could not get their message through, patients died. Similarly, in many of the corporate scandals in and out of health care, financial officers and second-tier managers had grave suspicions, but no one would listen to them. In the case of Coleen Rowley of the FBI, who tried to warn her supervisors prior to the Sept. 11 attacks that a man from the Middle East might be planning a terrorist action using airplanes, the dismissal of her concerns might have contributed to what happened. Don't try to cover it up; someone will find out. There are generally three options for someone who has discovered that something unsavory is going on: Ignore it, report it or cover it up. Arguments can be made for ignoring it ("it's not that big a deal") and for reporting it. Cover-ups, on the other hand, are not a good option. In the first place, in this day and age, if the misbehavior is of any consequence, it will be discovered, and if you participated in trying to bury it, you could (and should) be in big trouble indeed. Furthermore, if the problem is bad enough that it needs to be covered up, you shouldn't be dirtying your hands with it. Also, it is rare, in health care, that significant malfeasance does not hurt patients, or the organization, or both; if you want blood on your hands, just participate in the cover-up. You'll get yours.
Support your colleagues who blow the whistle. One consequence often reported by whistle-blowers is isolation from friends and colleagues, sometimes even from family. If it is a major issue-for example, if the survival of the organization is at risk-your fellow workers may not be overwhelmingly grateful if the organization is brought down and everyone loses his or her job. On the other hand, if we are to improve as a society, we must have some concern for how organizations survive; in health care, survival at any cost is usually not a worthwhile pursuit. Supporting someone who had the courage to say "Enough" is not just an opportunity; it is an obligation.
Make your report to the appropriate individual or entity. Those government rewards may be luscious, but there is something to be said for loyalty. If it is an internal problem, report it to the appropriate management person. If that person is involved, go up the ladder. If the problem is top management, go to the board. If the problem is the board, you may have no choice but to go to the authorities. But don't take the most drastic step first; try to solve it on a less radical basis.
Respect the exemptions. There was recently a Law & Order television episode in which the only way that a murderer could be convicted and the innocent man serving time for the crime exonerated was if a priest to whom the killer had revealed the murder (outside of confession) testified to the conversation. It was quite a heartbreaking situation; in order to save the innocent man, the priest testified-and then, believing that he had violated his vows, he left the priesthood. There are exemptions to the general moral rule that you should report malfeasance, and they are based on relationships: Physician and patient, attorney and client, priest and penitent, and-although it is getting shredded more every day-journalist and confidential source. Whether to reveal information confided to you within the protections of one of these relationships is an intensely personal and profoundly serious decision; either way, the rest of us should respect that decision.
The organization should have a culture in which necessary revelations can be made without untoward consequences. One lesson from recent scandals is that the organizational culture has a huge impact on whether bad behavior gets reported. If the nurses are terrified, if board members are kept in the dark, if the CFO has carte blanche without checks and balances, if the outside auditors are doubling as consultants, then some poor little orderly who knows that the chief of surgery is stoned on morphine, or the security guard who knows that the CEO is embezzling, doesn't stand much of a chance and would need the courage of the Spartans at Thermopylae to report what he or she knows. If health care providers are committed to a culture of "transparency" and open exchange of information to improve the quality of care and patient safety, they should also be committed to a culture where corruption is not tolerated.
Understand the consequences of your decision. In the end, the whistle-blower is alone with her or his choice. You could end up on the cover of Time, or you could end up dead. Considering consequences is not selfish; it is only human, and it is necessary. People have families, careers, lives. We all have to contend with trade-offs; not much in life is win-win or lose-lose. And no one else can make the decision for you; it is yours alone, as is what happens as a result of what you choose. The best guideline, perhaps, is what will happen to other people as a result of your decision. Is it worth it? One of the more vexing aspects of the human experience is that one often does not learn the worth of a decision until after it has been made-often, long after it has been made. Two Northwestern University sociologists, a number of years ago, came up with a concept they dubbed "the cascade of consequences," which basically tells us that once a decision has been made, it fosters other decisions and provokes other actions, and the process of decision, result and action can go on for a very long time. Most of us, faced with a decision to tell or not to tell, often within a very short time frame, cannot judge what will come of what we do-or if what we want to do, or feel we have to do, is worth it. So we do what we think we should, and we hope we did the right thing. The only person who can tell us if it was worth it is the person in the mirror.
First published in Hospitals & Health Networks OnLine, October 2, 2007
© Emily Friedman 2007
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