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October 07, 2012 7:09 AM Blowing the Whistle on Your Boss Should Be Mandatory

By Lowry Heussler

Government needs to have mandatory discipline for high-ranking officials who act like jerks, and a mandatory snitch rule for lower-level employees who pretend they didn’t see it. If Massachusetts had such a policy, we might not be in the mess we now face about faked test results at the state lab.

Have you ever heard the term “disruptive physician”? The term “disruptive” means doing things that would get you fired on the spot if you were a less exalted person than an M.D. (Question: what you call a disruptive lawyer? Answer: a litigator.) Unless you’re a doc with admitting privileges, you’ve probably never heard about disruptive physician policies. These policies came into being about the same time that all 50 states began to use a centralized registry for physician discipline so that if University Hospital axes Dr. Frankenstein after a few too many complaints of operating (surgically) under the influence of alcohol, the good doctor cannot toddle down the street and make a fresh start at Mt. St. Elsewhere.

When analysts began looking closely at negative patient outcomes, we were all astonished to learn that disruptive physicians were firmly linked to morbidity and mortality. Put in simplest terms, if Dr. Frankenstein has a habit of verbally abusing the ICU nurse who calls him in the middle of the night about a patient who is not doing well, sooner or later that nurse’s subconscious causes her to start taking a more rosy view of the patient’s symptoms. Dr. Frankenstein arrives fresh and rested in the morning, but the patient lost too much ground over the night, and oops! there you have it, a negative patient outcome, also called “death.”

So here’s how the problem was addressed. Malpractice insurance underwriters and accrediting bodies require hospitals to have disruptive physician policies that clearly define the prohibited behavior, and to train all staff – right down to the parking-lot attendants - every year about what the policy says. What makes it work is the mandatory-snitch rule. If said parking lot attendant happens to witness a physician in violation of the policy, the incident must be reported or the attendant’s job is on the line.

It sounds ridiculous: threaten to fire the victims of an abusive bastard if they are too intimidated to stand up for themselves? But on closer inspection it functions exactly as a good policy should, by removing the incentive to take the easy way out. If an employee fails to report dangerous behavior because she’s afraid of getting fired, we’ll make sure to even up the odds by mandating firing for a failure to report. As Henry Ford said about the clutch, it’s brutal, but it works.

I see a lot of bad behavior. The top-ranked person where I work tried to sneak into the building through the parking garage because he forgot his ID and did not want to take the time to clear security at the front door. When a security officer caught him and directed him report to the main desk for an escort to his office, the head honcho pitched a fit and called the officer a bunch of names. When a supervisor arrived to take over, Mr. Boss implied that he had enough clout to have the security company’s contract terminated, and then, just in case his message was not heard, commented on the British accent of the supervisor and let him know that he would be checking into the man’s citizenship.

Does anyone want to join me in speculating whether it might be easier for an unauthorized person wearing an expensive suit to make it through the parking garage next time?

When I worked for the Department of Housing and Community Development as a lawyer for the Norfolk-area local housing authorities, I found myself out of a job after I notified law enforcement and the state auditor’s office that the head of one of the authorities I covered was using his position to run a racket that defrauded senior citizens out of their homes. Later, while working for the Massachusetts Board of Registration in Medicine, I suggested that it was wrong for prosecutors (I was one) to have ex-parte communication with the tribunal; I did not keep that job long, either.

Now I work for the Massachusetts Department of Labor and Workforce Development, and so far, I have not made waves of any discernible size. My best friend reliably responds to any stray remark I make about idiocy in my workplace with an urgent question: “Are you keeping your head down?” I tell him yes. I wish I weren’t, but at 51, I’m not sure I’d land on my feet again if I lost this job.

No waves were made at the Massachusetts state lab for 11 years, while a chemist named Annie Dookhan performed more tests than could possibly have been done in the time she did them. It was kind of like that politician who explained that he banked hundreds of thousands of dollars while earning substantially less because he lived frugally. No. Just no. This wasn’t even close.

Everyone at that lab knew that Ms. Dookhan could not do the work she was doing, and no one did anything about it. The ramifications are paralyzing. John Auerbach, the Commissioner of the Massachusetts DPH and a very good guy, resigned, saying the buck stopped with him. The Commonwealth has begun the process of releasing drug dealers convicted on the basis of faked test results. Ms. Dookhan has admitted that, in at least one instance, she forged a colleague’s initials on a test result, casting doubt on any test performed by any employee when Dookhan was even in the building.

There are 1141 people behind bars due to convictions with Ms. Dookhan’s signature behind them. A special court session has been created in each county just to hear bail applications and motions for new trials. The district attorneys across the Commonwealth have sought $10 million a year to handle the post-conviction problems with the tainted cases. Who in god’s name is going to represent Ms. Dookhan in the criminal case? Any decent criminal defense lawyer is going to be conflicted out since it is virtually impossible for an experienced lawyer to have no client affected by what she did.

Anyway, back to my point, and the title of this article. There is something about state employment that discourages active participation in improving the system. It’s bad enough that I can’t get anyone to listen to me when I point out that a simple change in a form letter could save myriad unnecessary appeals, including full-dress evidentiary hearings at the Executive Office of Labor and Workforce Development. The state lab scandal shows that there is no time to lose; Massachusetts must act right now to change the culture of keeping your head down.

When it comes to outright criminal misconduct by government employees, whistleblower laws are not enough. Sure, if one of those people whose state police interviews show they knew what Ms. Dookhan was doing, except they did not really know-know, had been a little more strident and gotten fired, he or she would have had the right to bring a lawsuit alleging wrongful termination of employment. That is cold comfort to a state employee who has raised the matter internally to no effect. That person weighs the options (a) I do nothing and my life continues; (b) I report the matter to the media, spend the next several months being interviewed by hostile internal investigators, run the risk of adverse employment actions, and the only protection I have is the possibility of a cash jackpot many years later, after my life has gone straight into the sewer.

No, the only workable solution is brutal. Ms. Dookhan’s colleagues should have faced a choice with no easy out: (a) report this and suffer the chances of a bad outcome, or (b) do nothing and know that if someone else reports it (and the likelihood just increased hugely) I will get fired for my silence just the same.

As with the docs, the policy has to cover being a jerk as well as robbing the till. A civil servant who thinks he can get away with abusing his underlings is likely to abuse the public, and the public trust, as well, and some of the lower-downs who have to live with the abuse will take it out on the citizens or give themselves informal compensatory raises out of the public fisc.

We’re in a terrible downward spiral: distrust of government leads to contempt for public employees, which drives half the good people out of public service entirely and discourages the other half from doing the right thing when it’s hard. That leads to poor performance, which leads to more distrust of government, which leads to more contempt. The cycle has to be broken somewhere; putting some backbone into public-sector ethics wouldn’t be a bad start.

[Cross-posted at The Reality-based Community]

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Lowry Heussler is a lawyer from Cambridge, Massachusetts.
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Comments

  • Ronald on October 08, 2012 9:31 AM:

    How about putting some of that burden on the Management and give whistleblower rules some teeth to get rid of the offenders.
    Dropping the ball on the parking attendants and other underpaid workers of the world isn't going to do a damn thing to cure the problems you've described.
    Jobs are hard to come by nowadays. Decent jobs with state benefits? Very hard.
    Ethics filters from the top. Putting backbone into the public-sector management and leaders would be the place to start, not at the bottom.
    Yeah, sure...we all got responsibilities. But when you and I both know that the loud-mouthed boss you referred to in your story, should he have lost his job (unlikely at best) would have landed on his feet and into another gig with no problems, whereas you and I would still be in the unemployment queue.
    So long as that imbalance exists, people will tend to 'look the other way' to 'protect their own'.