By Guglielmo, Wayne J.
Medical Economics , Vol. 79, No. 18
The game isn't over, but troubling allegations against the newspaper may answer the question: Must you be loyal to your patients or your employer?
Fighting the good fight on behalf of patients and company-employed doctors everywhere-- that's how Sheila Horn sees herself.
Two and a half years ago, the physical medicine and rehabilitation specialist sued The New York Times for wrongful discharge after it dismissed her as associate medical director of its in-house medical department.
Horn alleged that the newspaper's labor relations, legal, and human resources departments had directed her to "provide them with confidential medical records of employees without [their] consent or knowledge," and that a human resources official instructed her to "misinform employees regarding whether injuries or illnesses they were suffering were work-related so as to curtail the number of workers' compensation claims."
Horn queried the New York State Department of Health and was told that doing so would violate her legal and ethical duties to her patients and could result in the revocation of her license to practice medicine. When she refused to comply with the newspaper's demands, her position was terminated, the lawsuit alleges. The termination, Horn said, breached an implied contract with the Times that she be allowed to conduct her in-house practice in keeping with the ethical and lawful standards of the medical profession.
"Dr. Horn was terminated, not for protesting just any provision of the code of ethics, but for provisions that are fundamental to a physician's ability to practice-maintaining confidences and giving patients accurate diagnoses," says her attorney Pearl Zuchlewski.
In its motion to dismiss, the Times called Horn "an at-will employee whose employment could thus be terminated at any time."
The case-which has survived challenges at the trial court and appellate levels-has been closely observed for several reasons. First, it's against The New York Times, typically a champion of patients' right to privacy. Second, it raises significant questions about New York's strict employment-at-will doctrine, which gives employers wide latitude in dismissing employees. And third, it raises important issues for physicians employed in industry, in New York and elsewhere.
"I don't think any doctor's employment should depend on playing ball with employers doing things they know to be illegal," says Horn.
Donald R. Moy, general counsel of the Medical Society of the State of New York, agrees: "Physicians in an employment setting shouldn't have to choose between violating core ethical rules and keeping their jobs" Moy supported Horn's claim in a brief signed by the medical society, the AMA, and the American College of Occupational and Environmental Medicine. (Neither The New York Times nor its attorney would comment on the pending suit.)
We took a look at this interesting case to see what it could mean to you.
Doctors have a higher ethical calling
Horns attorney, Pearl Zuchlewski, has always been cautious about challenging New York's "strictly construed" employment-at-will doctrine. That rule grants New York employers nearly unfettered rights in terminating noncontract workers.
But like 37 other states, New York recognizes an exception to its employment-at-will doctrine. That exception arose from a case that's similar to Horn's. In the case-Wieder v. Skala-New York's highest court found that a law firm had wrongfully discharged one of its attorneys after he insisted that the firm report a fellow attorney's misconduct to the appropriate disciplinary authority.
Since the plaintiffs service as an attorney was at the very core of his employment at the firm, the court concluded, he should be able to fulfill that service ethically, as defined by the codes of his profession. In firing him for doing precisely that, the firm breached a contract that was so fundamental to his employment that it didn't need stating. …