BERMAN: ONE NURSE'S GUTSY EFFORT TO PROTECT PATIENTS

Original Story: detroitnews.com

In the spring of 2010, Angela Swantek interviewed for a job with Dr. Farid Fata.

She was an oncology nurse, a spirited force who plays hockey on a travel team; he was a Sloan-Kettering-trained oncologist and hematologist who would eventually become notorious for a scheme U.S. Attorney Barbara McQuade calls "the most egregious case of Medicare fraud we have seen." An Atlanta whistleblower lawyer represents clients involved in qui tam actions and protects them against retaliation.

Swantek, who was interviewed one day and then returned a day later to shadow a nurse on her rounds, was shocked by what she observed at Fata's office: A drug that was supposed to be injected in five minutes was administered as a one-hour IV drip from a bag. Another drug, Neulasta, was given on the same day as chemotherapy, although protocol is for it to be given 24 hours later. Swantek, a registered nurse who was back in college completing a four-year nursing degree, had worked at the area's top cancer centers, from Beaumont to Karmanos, and she had never seen cancer protocols and procedures so disregarded. A Mt Clemens medical malpractice lawyer represents clients injured as a result of medical negligence.

She turned down the job, she says, and walked out of the office before lunch "in a huff."

"The assumption was that I'd stay beyond lunch, but I left before. I couldn't stand to be there one more minute. I literally was horrified."

What Swantek did next substantiates her outrage and her courage.

She filed an official complaint with state regulators on April 14, 2010, enumerating some violations and expressing the need for an investigation. "I feel this physician is doing his patients more harm than good," she wrote on the official allegation form, including her name, cellphone number, address and willingness to testify if necessary. "Patients are being harmed." A Milwaukee medical malpractice lawyer helps clients with medical malpractice claims that are often defined as the failure of a medical professional to follow the accepted standards of practice in his or her profession.

It wasn't easy for her to take this action. In her two-decade career as a nurse, she'd never filed a complaint, had never even thought about doing so. As in all professions, calling out a colleague or a superior — a doctor — is not something to be taken lightly.

Her decision-making process became the topic of an assigned college paper she wrote that spring, describing her "ethical dilemma" in a seven-page paper for the online Chamberlain College of Nursing.

"I wanted to report him but felt unsure and uneasy about turning in a physician ... no one likes to be labeled a rat," she wrote in the college paper. "I owed it to the patients to save them in some way from continuing to be harmed. ...

"I hope there is some action taken."

She took the risk — and waited for the state's next move. And waited.

A year later, on May 13, 2011, Swantek, 45, received a letter from the department of licensing and regulatory affairs saying that "violations of the public health code could not be established." The investigation was closed. Although Swantek had witnessed what she says were numerous health code and medical procedural violations within a few hours, the state had not substantiated them. A Chicago medical malpractice lawyer is following this story closely.

Other than telling her the investigation was closed, the state didn't contact her, she says.

"I would remember, I promise you," she said in an interview at her Royal Oak home. The state says an investigation was conducted, and that Swantek was interviewed on Aug. 26, 2010. In response to a Freedom of Information Act request from The Detroit News last week, the state released a document attesting to an "interview in for typing," but cited privacy rules under the public health code that prevent the release of any supporting detail about the extent of the investigation or any interview with Swantek.

Stephen Gobbo, deputy director of LARA, who was not involved with the investigation in 2010, said last week, "I can tell you unequivocally that interviews were conducted (with Swantek) and ... the licensee, Dr. Fata."

The statute protects Fata, now a convicted felon who pleaded guilty to administering unnecessary treatment and who has already lost his license. It prevents Swantek, the complainant, from seeing how the state responded to her complaint. And it shields the state Bureau of Health Professions, which was merged into the Bureau of Health Care Services in 2013, and moved from the Department of Community Health to the Department of Licensing and Regulatory Affairs (LARA), from any public scrutiny.

"It is very rare that you see a medical professional making such an accusation against another medical professional," says Donna Mackenzie, a Berkley malpractice lawyer who represents some of Fata's former patients. "The state had a responsibility to perform a meaningful investigation in response to this very serious accusation."

"According to the criminal complaint against Dr. Fata, the federal investigators uncovered more during 2 days of investigation than the state apparently did over an entire year."

Two years after Swantek filed her allegation form, in a completely separate action, the FBI raided Fata's office, an event that led to his indictment in August 2013, and his decision to plead guilty to 16 counts of fraud and conspiracy last September.

Over those two years, Fata's patients continued to receive chemotherapy treatments they imagined were helping them but were, in many cases, literally poisoning them. He used IV drips instead of injections because he could bill Medicare more for longer treatments. As he would later admit in federal court, in response to specific counts: "I knew it was medically unnecessary."

On the day his office was raided, friends of Swantek's called to tell her that Fata had been arrested. She wept.

As Fata awaits his May sentencing, in a cell somewhere in Michigan, Angela Swantek doesn't have the satisfaction of knowing that she helped lock up Michigan's medical version of stock swindler Bernie Madoff. She didn't play a role in the FBI investigation, which had no connection to her complaint or state officials. Still intensely interested in the case, she reviews records of Fata patients pro bono, as lawyers prepare civil suits against him.

Angela Swantek's handwritten complaint form attests to one nurse's gutsy effort to protect victims — vulnerable men and women with cancer — from a physician who was more interested in payment than healing. "He treated them like commodities," says Swantek. Although her effort to alert the state didn't ultimately make a difference in Fata's case, it should have.

Nurse Sues Hospital for Supporting Discrimination

Story first appeared on Detroit Free Press -

An African-American nurse who is suing a Flint hospital because she said it agreed to a man's request that no African-American nurses care for his newborn recalled Monday that she was stunned by her employer's actions.

"I didn't even know how to react," said Tonya Battle, 49, a veteran of the neonatal intensive care unit and a nearly 25-year employee of the Hurley Medical Center.

Battle's lawsuit states a note was posted on the assignment clipboard reading "No African American nurse to take care of baby," according to the eight-page complaint against the medical center.

Hurley, which according to its website was founded in 1908 and is a 443-bed teaching hospital, released a brief statement Monday, saying that it "does not comment on past or current litigation."

Battle said she was working as a registered nurse in Hurley's neonatal intensive care unit Oct. 31, when a man walked into the NICU, where Battle was at an infant's bedside. He reached toward the child, according to the lawsuit filed in Genesee County Circuit Court last month.

"I introduced myself to him. 'Hi, I'm Tonya and I'm taking care of your baby. Can I see your (identification) band?' " Battle said, referring to the hospital-issued identification used to identify infants' parents. "And he said in return, 'And I need to see your supervisor.' "

Perplexed by his curtness, she asked for the charge nurse, who spoke separately to the man.

When the charge nurse returned, she told Battle that the father didn't want African Americans to care for his child. Further, the charge nurse told Battle that he had rolled up his sleeve to expose what appeared to be a swastika.

"I felt like I froze," Battle said. "I just was really dumbfounded. I couldn't believe that's why he was so angry (and) that's why he was requesting my charge nurse. I think my mouth hit the floor. It was really disbelief."

The charge nurse passed the request to her supervisor, and Battle was reassigned, according to the complaint.

Even after hospital officials removed the sign that had been placed for a short time on the assignment chart, Battle and other black nurses were not assigned to care for the baby for about a month "because of their race," according the lawsuit. Battle is seeking punitive damages for emotional stress, mental anguish, humiliation and damage to her reputation.

Battle said colleagues have told her they were surprised at the hospital's stand and they have been supportive. But she said she felt the issue was important enough to pursue the matter legally because she expected Hurley to have turned down such a request.

"What flashed in my mind is, 'What's next? A note on the water fountain that says 'No blacks? Or a note on the bathroom that says 'No blacks'?" she said.

Larry Dubin, a law professor at University of Detroit Mercy's School of Law, called the hospital's actions, if true, "morally repugnant."

"The patient's father has the right to select the hospital to treat the child. The father does not have the right to exercise control over the hospital in discrimination of its employees," he said.

The case "puts into tension two different facets of the law," said Lance Gable, an associate professor specializing in health law at the Wayne State University Law School.

Patients choose their doctors, he said. Some women prefer to see female gynecologists, for example.

"But there are also laws prohibiting discrimination," he added, citing the 1964 Civil Rights Act, among others.

"The bottom line is that the law is not clear about this, although I suspect the nurse will have a pretty strong case," Gable said.

One in 3 doctors in a 2007 survey said they felt patients believed they got better care if they matched their doctor's race. Patients' requests were more likely to be honored if the request came from someone who was female, non-white or Muslim, according to a report on the survey written in part by a University of Michigan researcher.

But just how often hospitals receive requests based on race is unclear.

Vickie Winn, spokeswoman for Children's Hospital of Michigan, said the hospital may try to accommodate a patient's request for providers with a certain religion or gender, but a request for a doctor based on race is different, she said.

"It has come up in the past, but generally speaking, we don't accommodate that. ... We have a very diverse population, and we just don't feed into those kinds of beliefs," Winn said.

Beaumont Health System, likewise, does not accommodate requests based on race, said spokesman Bob Ortlieb.

Julie Gafkay, an employment discrimination and civil rights lawyer in Frankenmuth who is representing Battle, said medical personnel might receive such requests from time to time, but employers must guard against racial discrimination.

"I don't doubt that people have made requests like this in the past. You're not going to control the prejudices and biases of people. That's not my client's issue. The problem she has ... is that her employer of 25 years granted" the request.

She added: "We made a decision in this country that, that kind of discrimination is wrong."