Therapist Says She Was Fired for Not Going Along

Between seeing patients at her clinic in Huntington Beach, physical therapist Donna Burgard explained how she was fired four years ago from Westminster Community Hospital.

“I didn’t go along with the cover-up,” she said.

In a civil suit she filed against the hospital in January, 1984, Burgard charged that she had been fired as the hospital’s chief physical therapist for being “a whistle-blower”--for alleging that Dr. Anthony C.P. Shen was doing unnecessary surgery and refusing to go along.

In an interview Monday--and in her suit against the hospital and its parent corporation, Humana Inc., as well as Shen--the 54-year-old Burgard contended that she was fired on May 31, 1983, because she followed ethical standards observed by all medical professionals.

Noticing that many of Shen’s patients appeared to be undergoing what Burgard believed to be unwarranted surgery, she said she advised those patients that they had the right to get a second opinion before surgery.

According to her lawsuit, she was then fired by the hospital “in retaliation for threatening to expose a scheme between the hospital administration and C. Anthony Shen, MD, to perform unnecessary surgeries for financial profit to the detriment of the patients’ health. . . .”

But Shen has disputed that.

In a series of legal motions seeking dismissal of Burgard’s suit, Shen and Humana called Burgard’s claims false. And her claims of civil conspiracy and breach of contract showed a total lack of merit, they said.

According to Shen’s July 13, 1984, motion for dismissal, Burgard was fired because she disobeyed a direct order from him “to refrain from giving patients advice regarding surgery . . . . “ If patients had any questions about surgery, Shen said in that filing, he had instructed Burgard to refer them to him.

Issue of Public Policy

In denying the merits of Burgard’s suit, Humana also disputed her claim that some issue of public policy regarding medical ethics was involved.

“This matter is simply an employer-employee dispute regarding the circumstances of Burgard’s termination for employment and nothing more,” the hospital corporation said in its March 28, 1984, motion to dismiss her lawsuit.

Besides, if Burgard had had serious concerns about Shen’s performance, she was free to file a grievance at the hospital or to make a complaint to state regulatory agencies but did neither, Humana said.

So rather than firing a whistle-blower, the hospital said it fired Burgard for “unsatisfactory work performance including, but not limited to, recommending treatment contrary to physician’s advice and for superseding physicians’s instructions to patients. Her behavior and judgment were not in the best interests of patient care . . . ,” Humana said in an April 16, 1985, motion seeking a summary judgment against Burgard.

The lawsuit eventually wound up before the 4th District Court of Appeal in Santa Ana. In a Jan. 26 ruling in the case, Justice Thomas F. Crosby Jr. wrote that Burgard’s allegations were “sufficient to state a tort cause of action for retaliatory discharge based on an employee’s refusal to engage in illegal conduct, i.e., defrauding insurance companies and jeopardizing the health and welfare of patients.” The case has not yet been scheduled for trial.

Entitled to Second Opinion

Burgard said in an interview Monday that in her last months at the hospital she had become convinced that Shen performed unnecessary surgery many times. Many of these operations did not seem needed because “if a patient has full range of motion and no pain and is regaining strength and continuing to improve, why should they have surgery?” Burgard said.

Whenever a patient asked, Burgard said that she and her staff of four physical therapists would tell them they were entitled to a second opinion. But in April, 1983, Shen “confronted (her) and ordered her not to tell his patients of this right,” Justice Crosby wrote, recounting Burgard’s allegations. “The administration (then) warned (Burgard) that she had to follow Shen’s orders or face dismissal.”

Burgard refused. “I said I couldn’t do that because it’s not ethical,” Burgard said in the interview. After the confrontation, Burgard said, she and Shen had “an uneasy truce. . . . I didn’t say I agreed (with him). We continued to suggest second opinions.”

But in May, 1983, a dispute arose over whether a patient with an injured shoulder should have surgery. One of her staff therapists told a patient to get a second opinion, and Shen objected, Burgard said Monday.

Patient Complaints

Burgard alleged in court papers and again on Monday that she was suspended when she backed up the therapist. She said that when she was was fired she was told that there had been patient complaints against her. Burgard said she asked who complained and was told she could not see the complaints.

Burgard said it has taken her several years to build a now-thriving physical therapy business of her own. She and her attorney, Gary Mohi, charged that she was fired for blowing the whistle on Shen when the hospital should have been policing him.

“This isn’t McDonald’s--like selling hamburgers. This isn’t just dollars people are losing. People are losing lives,” said Mohi who accompanied Burgard during Monday’s interview.