I have refrained from commenting on Emory’s now defunct abortion clinic at Grady other than to say that I supported Grady’s decision to shut it down.  Given its financial difficulties, Grady should be focused on treating injury, illness and disease, not elective procedures of any sort.

Several members of the House have been attempting to get answers from Grady and Emory about how the clinic was funded and operated.  They hit a stonewall earlier this week with the startling and wholly inaccurate declaration by Emory that it is not subject to state laws concerning the handling of public documents.

The House members have now called for audits, investigations and hearings.  Emory has responded by suggesting that these House members are interfering with the urgent effort to save Grady.  That is nonsense.  The problem is not with the questions, but with the refusal to answer them. 

Pro-life or pro-choice, surely we can all agree that questions about the funding of Grady deserve honest answers.  Evading those questions undermines confidence in the management of this public institution.  Unlawfully withholding documents raises even more unsettling questions.

Public funds come with accountability and no one is above the law.  These are two basic lessons that Grady and Emory must learn, and learn fast, if there is to be any hope of saving this hospital. 

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It has been almost a month since Judge Wendy Shoob unsealed court records related to the case of Grady whistleblower Dr. James Murtagh.  But our review of the thousands of pages of documents has only just begun.  First, it took the Clerk almost two weeks to locate the court records and make them available.  Second, many of the records are not in the courthouse but the hands of a court-appointed arbirtrator.  Third, the confidentiality provisions of the settlement agreement, which remain in force even though the other records have been unsealed, have discouraged the parties from talking with us.

Here is what we know.  In 1999, Dr. Murtagh, a once promising young researcher, Grady doctor and tenured Emory faculty member began cooperating with fraud investigators from the National Institute of Health.  They were apparently looking into the use of federal grant money by Emory at Grady.  Once his superiors learned of his contact with the NIH, Dr. Murtagh almost immediately found himself accused of violating Grady’s do-not-resuscitate policies.  He was subjected to one or more “peer reviews” in which he was found guilty of the DNR violations and then told to undergo a psychiatric examination if he wanted to keep his job.  He was given the option of either quietly resigning or being exposed as a crazed DNR violator.  Instead, Dr. Murtagh sued, contending among other things that the peer review was conducted in bad faith with the retaliatory objective of either halting his cooperation with the NIH or discrediting him.

In 2001, after a federal judge rejected Emory’s and Grady’s motions for summary judgment and ruled that Dr. Murtagh was a protected whistleblower, Emory and Grady opened up settlement negotiations.  They agreed to pay the “crazed DNR violator” $1.6 million, give him positive job references, assign him ownership of three patents and subject their “peer review” policies to an outside review.  In return, Dr. Murtagh agreed to resign his faculty post and stay quiet.  

Dr. Murtagh did not stay quiet.  In the recently unsealed case, Dr. Murtagh trades allegations with Emory and Grady over compliance with the settlement agreement.  Although many of the facts are in dispute, it is clear from my reading of the court records that Dr. Murtagh anonymously emailed the new President of Emory University in 2004 and offered confidential information about alleged wrongdoing at Grady and Emory. The new President wrote back, thanked him for his offer and invited him to send the information.  After receiving the information, the President turned it over to Emory’s lawyers, who traced it back to Dr. Murtagh and accused him of violating the confidentiality provisions of the settlement agreement.  For this and similar “violations,” Dr. Murtagh was found in contempt in late 2005 by Judge Gail Tusan, who later was replaced on the case by Judge Shoob.

It does not appear that Judge Shoob ever ruled on the merits of many, if any, of Dr. Murtagh’s allegations. They were all thrown out earlier this month because Dr. Murtagh was found in contempt again, this time for emailing a newspaper article that made reference to Emory.  In addition to having his claims thrown out, Dr. Murtagh was fined $15,000, ordered to pay Emory’s (but not Grady’s) attorney fees and threatened with jail if he spoke out again.  Emory has submitted motions demanding $1.7 million in attorney fees from Dr. Murtagh.

Sealed settlements and confidentiality agreements are common in litigation involving private businesses and individuals.  They are less common when government entities or public institutions are involved.  In fact, it is my view that they violate public policy on their face.  For this very reason, the Attorney General will not enter into a sealed settlement on behalf of the state or any state agency. 

Former Grady trustee Bill Loughrey tells me that the settlement with Dr. Murtagh was never approved or even accurately described to Grady’s board of trustees.  He says that he was stunned to learn that tax dollars were paid to Dr. Murtagh, conditioned on his silence.  He thinks the agreement is invalid and that the judicial process has been misused. 

I am reserving judgment on the underlying issues of this whistleblower case until our review of the documents is complete.  But one thing is already clear in my mind.  I am convinced tht Grady’s problems stem in part from a culture of secrecy that conceals problems instead of solving them.  It is an issue that must be addressed head on if Grady is to be saved.

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Last week I wrote a letter to Commissioner of Community Health Rhonda Medows about the Disproportionate Share Hospital (DSH) program, popularly called “Dish.”

My letter has ramifications for Grady, but I would have written it whether Grady was in trouble or not.

DSH is a federal program designed to aid public hospitals that provide a “disproportionate share” of care to the indigent, hence its name.  But Georgia and many other states have instead been using DSH to subsidize health care delivery across-the-board.

When the program began, only a handful of Georgia hospitals were eligible for DSH funding.  But eligibility has been expanded to the point that hospitals can draw DSH funds without providing a single dollar of uncompensated indigent care.  Now virtually every hospital in the state is drawing DSH funds, and that means that those hospitals that are truly providing “disproportionate” care are being shortchanged.

To its credit, the Department has proposed a new formula that would allocate DSH funds according to the percentage of uncompensated indigent care provided.  Unfortunately, the new formula includes self-defeating ”stop loss” provisions which effectively prevent it from taking effect.

I am not unsympathetic to the larger issues confronting the health care delivery system, particularly in rural Georgia.  Medicaid reimbursement rates, which currently cover only 85% of the cost of a service, should be addressed — but not by using the Disproportionate Share Hospital program as an across-the-board subsidy.

Yes, Grady has been hurt by the redirection of DSH funds.  But as I told James Salzer of the AJC, Grady’s problems are bigger than this one program, and those problems cannot be solved with money alone.  Saving Grady will require a combination of governance, contract and culture reform, and all three must be vigorously pursued. 

Conversely, the issue of DSH funding is bigger than Grady.  As a matter of principle, we should avoid using funds set aside for one program to fulfill the purposes of another.  Medicaid and DSH funding are separate issues, and they should each be addressed on their own merits.

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Grady Memorial Hospital is named for Henry W. Grady, a former publisher of the The Atlanta Constitution.  His successors and my good friends at the AJC are full of ideas on how to save his namesake hospital.  They all involve someone else writing a check and not asking many questions before signing it. 

Several weeks ago, Cynthia Tucker wrote this gem, saying that while she had no real disagreement with my proposals for Grady governance reform, the fact that I was “white, male, consevative and Republican” disqualified me from participating in the debate.  My role should be limited to mutely voting in favor of a government bailout.  It was so outrageous that bloggers across the political spectrum rallied to my defense.

Now Mike King has penned his version of the Tucker column.  It is far less crass.  He complains more broadly about the state legislators and county commissioners who have only recently begun paying attention to Grady.  He wants us to set aside any ”distracting” investigation into Grady’s problems until after the hospital has been saved.

I do not want to be too hard on Mike.  For one thing, he has written a number of excellent editorials about the problems at Grady.  I have shared his columns with other legislators, and we have even linked to them at the Reforming Grady Dot Org website.  He and I have talked privately about Grady, and over the last several months, exchanged a dozen or so emails.  He has been generous with his research and free with his opinions, and I am frankly grateful for his help.  Also, he is not nearly as pompous in person as you would expect from his writing.

But it is ridiculous for him to suggest that contract and culture reform are “sideshows” to Grady’s “revivial.”  They are central to saving the hospital.  Just like you cannot fix a leaky bucket by refilling it with water, you cannot save Grady with money alone.  It takes governance, contract and culture reform, and those cannot “wait.”

I emailed Mike last week offering to write a guest column of rebuttal.  No response as of yet.

Alternatively, I asked him to correct a glaring error in his column.  He stated that I had sought (“chased” was his word) court records in “unsuccessful” lawsuits filed by two different whistleblowers.  In fact, I have only asked for the records in one case, and it involved a $1.6 million settlement with the whistleblower. No response on the requested correction either.

With paid readership down dramatically, I doubt the AJC is in much of a position to help Grady financially.  But the paper has an important role to play, if only it were willing.  Instead of dumping on the elected officials who are trying to get to the bottom of the problems at Grady, its reporters and editorialists should be helping.

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I have had time to think about the events of Friday afternoon when Judge Wendy Shoob called an emergency hearing to unseal the case files of Grady whistleblower Dr. James Murtagh.

I mentioned in my earlier message that Murtagh had recently been sanctioned by the court, apparently for violating the secrecy provisions of the agreement settling his original whistleblower retaliation case.

What I did not mention — because I did not fully appreciate its significance at the time – was the suggestion Friday by lawyers for Grady and Emory that Murtagh be thrown in jail for what they believed were violations of the secrecy agreement in the last 48 hours.

Grady and Emory accused Murtagh of telling the AJC about the the legislative motion to unseal the case files.  They also accused him of being “behind” former Grady trustee William Loughrey’s request that I try to get the records unsealed.

Well, I am the one who told the AJC about the motion to unseal the records.  We gave a copy of our motion and brief — which were public documents — to James Salzer of the AJC.  I also wrote an email to the AJC editorial board members asking for their support of our effort to unseal the records, which they begrudgingly gave in their Friday morning edition. 

As for Bill Loughrey, who was a Grady trustee at the time the original whistleblower suit was filed and settled, he has been telling me for weeks that he was kept completely in the dark about the litigation and that he thought it “outrageous” that it had been settled under seal. Today he told me that he was stunned to learn about the size of the payment to Murtagh – $1.6 million — and the fact that it included tax dollars.

But what surprised him most was that Grady was trying to jail Murtagh for allegedly having talked with him.  He said he had not talked to Murtagh but could not believe that the Grady would try to jail the man if he had.

Everyone knows that Grady has problems.  How can the trustees be expected to solve them if doctors or former doctors of the hospital can be jailed for talking with them?  Who exactly is ”Grady” if not the trustees appointed to run it?  Why on earth would “Grady” enter into a settlement that makes it a jailable offense for a doctor or former doctor to communicate with its trustees — without the trustees apparently even knowing about it?   And why, with all of its problems, would “Grady” be spending legal fees trying to jail a former doctor for allegedly talking to one of its own trustees?

As I have said from the moment I entered this debate, Grady is important to Georgia, and I am committed to trying to save it.  Virtually every dollar Grady receives already comes from the taxpayer, either federal, state or county.  It is becoming increasingly clearer to me that Grady’s problems go well beyond a lack of money.  Grady suffers from a culture of secrecy that would be destructive to any organization but is wholly unacceptable for a taxpayer funded institution.

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I am happy to report that Fulton Superior Court Judge Wendy Shoob today unsealed the Grady whistleblower case involving Dr. James Murtagh.  Five other state legislators and I asked her to do so on Wednesday afternoon.

I have not yet seen any of the newly unsealed documents but the Atlanta Journal-Constitution is reporting that Grady and Emory agreed to pay Dr. Murtagh the whopping sum of $1.6 million to settle his original whistleblower retaliation claims in 2001.  

If Dr. Murtagh’s allegations were completely unfounded, why was he paid a single penny, let alone $1.6 million? 

There are a couple errors in the AJC story.  The documents unsealed today were from a case filed in late 2004 and pending until very recently, not the original whistleblower case settled in 2001.  The more recent case was litigated under seal not at Dr. Murtagh’s request but because the 2001 settlement agreement required it.

Also, I learned from the proceeding today that Dr. Murtagh has recently been sanctioned for violating the confidentiality provisions of the 2001 settlement agreement.  The nature of the violation is not clear to me, but I am sure the newly unsealed documents will shed light on that as well.

But my real interest in this case is not the battle between Grady, Emory and Murtagh, but what that battle says about the management of Grady.  In healthy organizations, mistakes are corrected, not covered up by retaliatory actions or cash payments.

I will keep you posted.

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I spent much of my Labor Day weekend reading the report by Grady’s auditors examining the relationship between Grady and Emory.  In a letter to me over a week ago, former Grady trustee Bill Loughrey alerted me to this document, saying that it raised questions about Emory’s record keeping practices and, more significantly, the amount that Grady actually owes Emory.

Emory is Grady’s largest creditor, claiming to be owed $45 million for services provided to the hospital.

First, some background.  Under the 1984 agreement between the two institutions, Emory bills Grady for the time its faculty members spend at Grady providing “general supervisory, administrative and teaching services.”  Fair enough, except that Emory does not actually keep track of the time spent providing these services.   Instead, in a practice that is denounced by the auditors, its faculty physicians record their time at Grady a mere four weeks each year (one week per quarter) and then make a guess at how much time they spend at Grady for the remaining 48 weeks of the year, using the four weeks of recorded time as a guide.  Emory then bills Grady for the full 52 weeks of work.  Doing the math, that means there is no documentation for 92% of Emory’s bills for supervisory and administrative services.

A couple questions occured to me as I read the report.  First, I wondered whether or not this seemingly unusual arrangement was in fact standard practice for teaching hospitals.  The auditors answered that question before I could turn the page.  It turns out it is not even standard practice at Grady.  According to the report, Grady requires Morehouse faculty physicians to provide six times as much documentation as Emory physicians.  That is completely backwards.  While Emory physicians divide their time between Grady and Emory’s own hospitals, Morehouse doctors practice only at Grady.  If the two schools are to be held to different standards, it should Emory that is required to keep more records, not Morehouse.

Second, I wondered whether it was possible that the four weeks of recorded time might in fact give an accurate enough picture of how the doctor spent the other 48 weeks of the year.  The auditors answered that question on the very first page of the report, saying that the original scope of the audit had been reduced when Emory refused to allow any “retrospective or historical audit” of these records.  If Emory did not want anyone attempting to double check the accuracy of those records, how can they reasonably be relied upon to make guesses about the weeks in which no records were kept?

The auditors repeatedly pointed out that this system of record keeping made it impossible for Grady to monitor the work of Emory’s physicians or even determine whether the work was actually being done.  They recommended that the contract be amended to require that Emory increase the frequency of recording and reporting time.  They also recommended that Grady conduct “spot checks” to determine whether Emory was accurately completing the time records.  In the audit report, Emory agreed to these changes, but argued that a formal amendment to the contract was not necessary.  Emory asserted, correctly, that nothing in the contract prevented them from keeping more complete records and promised to do so without amending the contract.

This never happened.  Almost three years later, Emory’s physicians continue to keep track of their time at Grady only one self-selected week per quarter.  In a press release issued last week, Emory proudly declared that the institution remains in compliance with the contract — something that is true only in the tortured sense that Emory persuaded Grady not to change the contract by making and then breaking a promise to voluntarily improve its record keeping.

The accuracy of Emory’s billings was only part of the motivation for Grady ordering the audit.  The other was liability.  Under the 1984 contract, Grady assumed all liability for malpractice by Emory’s physicians at the hospital.  Because Grady is a public hospital that enjoyed a degree of “sovereign immunity” when the contract was signed, this was not initially a costly undertaking.  It simply worked to extend the benefits of immunity to Emory’s physicians when they were working at Grady.  But a 1994 Supreme Court decision significantly eroded that immunity, and Grady found itself paying millions of dollars each year defending and settling lawsuits for alleged malpractice.  According to the report, faced with these mounting bills, the Grady trustees felt it important that they make sure Emory’s physicians were actually at Grady, giving proper supervision and preventing financially costly mistakes. 

The report raises troubling questions, but far more disturbing has been Grady’s and Emory’s response to it.  As best I can tell, no one has even looked at the document in the last two-and-half years.  In the AJC article describing the report, one Grady trustee was quoted as saying he never heard of the audit and was not aware of any concern about Emory’s record keeping. 

Both Grady and Emory are important insitutions, important to Atlanta, to the region and the state.  But their importance does not excuse sloppy business practices or justify a refusal to be held accountable, especially where public funds are concerned.

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This afternoon I visited Grady Hospital to pick up a copy of the audit report described by former Grady trustee Bill Loughrey as showing that Emory charged Grady for services that it did not perform or properly document.  I asked for a copy of this report last Friday under the Open Records Act and was advised this morning that it could be mine for $81.25 — the cost of copying it.

The report has been a source of some controversy.  The dean of Emory’s medical school told a House study committee earlier this week that Loughrey had it wrong and that the audit actually showed that Emory was in compliance with the provisions of the contract.

I have not fully digested the couple hundred page report, but I was quickly able to reconcile the seemingly conflicting accounts offered by Loughrey and Emory.  They are not contradicting each other as much as they are talking past one another.

As Emory contends, the audit shows that the medical schools have met what are described as the ”minimum compliance requirements” of their contract with Grady.  But the audit repeatedly criticizes those minimum requirements as “inadequate” for Grady to “accurately monitor” whether the work is actually being done. The auditors recommend a number of changes, but I have no idea, at this point, whether any of those changes have been implemented.

In any event, it is little comfort to learn that the “minimum requirements” have been met, if the requirements themselves are inadequate to the task.  It is analogous to saying the Titanic had the legally required number of life boats.  True, but.

Also, it is not clear to me that the report I was given is the same report that Loughrey is talking about.  Grady’s general counsel, Tim Jefferson, told me today that an early draft of the audit may have been circulated at a Board meeting, and then collected back from the Board members, which is exactly what Loughrey described to me.  I asked about obtaining copies of any early drafts, but he says they almost certainly no longer exist.

[UPDATE]  Apparently, as I was driving away from Grady, Emory University issued a press release saying that the audit report had been made public today under Open Records Act and that the report completely vindicates their position.

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