WhidbeyHealth to pay $1.5 million in age discrimination case

By Jessie Stensland / South Whidbey Record

WhidbeyHealth recently settled an age discrimination lawsuit for $1.5 million and a related public records violation lawsuit for $38,000.

Hospital officials did not admit any fault as part of the settlement.

“WhidbeyHealth vigorously denied, and continues to deny, engaging in any wrongdoing related to Dr. Elbaor or his attorney,” a statement from the hospital said. “These lawsuits were settled for business and practical reasons given the risks and burdens inherent in any litigation.”

The documents filed in the federal lawsuit brought by Dr. James Elbaor, of Texas, offer a window into the complexities of running the public hospital district, with the difficulties in recruiting doctors, the low profit margin and tension between administrators and physicians. They describe administrators struggling to keep the hospital afloat.

But the documents also allege that some administrators pressured surgeons to perform more surgeries in order to make more money for the hospital.

A clinic manager “in particular tried to get me to perform more surgeries I did not feel were necessary or even medically indicated,” a retired orthopedic surgeon wrote in an affidavit. “She questioned my decisions about why I had not prescribed surgeries for individual patients.”

Elbaor filed the age discrimination complaint for damages against the hospital district in U.S. District Court on March 30. He claimed that hospital administrators denied his application to work for the hospital as an orthopedic surgeon because of his age.

Federal law forbids discrimination against people who are age 40 and over.

The records indicate that former physician recruiter, the late Preston Moore, recommended Elbaor to the hospital officials but then contacted Elbaor after administrators passed on him, telling him that it was a case of age discrimination.

Moore wrote in an affidavit that he was told by the director of practice management and a business manager of the orthopedic surgeons’ office that they were trying to get rid of two older surgeons and replace them with younger ones.

The director and the business manager, however, denied that they made the remarks. An attorney for the hospital points out in a motion that Moore left the hospital after officials discovered he had given a fake Social Security number and lied about his criminal history in his application; also, he provided false information about Elbaor.

In a motion, the hospital’s attorney argues that age was not a factor in the decision to forego hiring Elbaor. The attorney wrote that hospital officials continued the process of considering Elbaor for the position after they knew he was in his 70s.

The hospital officials claim that “red flags” and Elbaor’s perceived inability to get privileges at the hospital were the reasons he was turned down. Officials found that Elbaor had a sanction on his medical license, lost a large malpractice lawsuit, was disciplined at one hospital and placed on probation at another one.

Elbaor’s attorney, Gregory Albert of Seattle, claimed that the red flags were inaccurate. The verdict in the malpractice lawsuit, for example, was overturned by the Texas Supreme Court.

Elbaor claims he is highly qualified; he completed his residency at Harvard University, served as a captain in the U.S Army Reserve Corps and was commanding officer of an Army Reserve medical attachment.

Emails and other documents show that hospital officials were concerned about surgeons not staying long at their practices on Whidbey. They wanted doctors who would build long-term relationships with patients and positively affect the practice’s reputation in the community.

It’s clear that official did discuss candidates’ age. The former director of practice management wrote that the hospital should “try as hard as possible to not hire guys who are rich or sunsetting,” meaning doctors who are at the end of their careers.

“(A)nd at 72 there is no way he is going to work for 5 more years let alone 10,” he wrote about Elbaor in an email to several people, including Forbes. “We have not had good luck hiring guys who are close to or past retirement age. Let’s not waste time with providers etc. interviewing this guy.”

The medical staff coordinator wrote in an email to colleagues that Elbaor “is an orthopedic surgeon who is already 72 years of age” and that the hospital cannot make a privileging decision “based on his age alone, but his past history makes me question whether he is the right candidate for our facility.” In the law, they can not make a decision based on age at all.

The woman also speculated that Elbaor, as an orthopedic surgeon, might be too proud to report any cognitive or physical problems that comes with age.

An orthopedic surgeon who retired from WhidbeyHealth in recent years claimed that the director of practice management and medical staff coordinator told him that they wanted a younger doctor to gradually take over his practice. He wrote in an affidavit that they were fixated on finding a young surgeon.

Hospital officials, on the other hand, denied the surgeon’s accusation that he was pressured to do more surgeries and argued that much of his statement is false.

Yet emails show that officials were frustrated with what they perceived as a low number of surgeries, how often patients were referred to other practices and the doctors’ refusal to work full weeks. At least one key administrator scoured records and came to conclusions about doctors’ medical decisions, though she didn’t have a license to practice medicine.

“I’m not a clinician, but after reviewing the referral report, there are surgeries that could have been done here but he is choosing conservative care for the patient,” the medical staff coordinator wrote to administrators in reference to an orthopedic surgeon. “I have been told by both of them that they are the ones who make the decision as to whether they will do surgery on a patient or not.”

Under the terms of the settlement, Elbaor will received just over $1 million for compensatory damages. Albert, his attorney, will get just over $400,000.

In the public records case, Albert wrote that he made a public records request to the hospital for documents related to Elbaor’s case. The lawsuit claims that the hospital missed multiple deadlines to produce the documents without communicating the cause of the delay or requesting additional time, which is a violation of the Open Public Records Act.

“On information and belief, WhidbeyHealth is withholding documents because they are damaging to its defense in the federal court action,” the lawsuit states.

The case was settled for just under $34,000 earlier this year.

This story originally appeared in the South Whidbey Record, a sibling paper to the Herald.