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Physicians stand up for colleagues, then get fired

A column analyzing the impact of recent court decisions on physicians

By Tanya Albert amednews correspondent— Posted June 14, 2004.

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They say you can't fight city hall -- or the federal government -- and win. But two North Dakota doctors took on that challenge twice.

The first time they fought for their colleagues' rights. The second time they were fighting for their own jobs.

Both times, they emerged the winners, with federal whistle-blower protections playing a key role in helping them right what they saw as two wrongs.

"We needed to stop the mistreatment of physicians, because they are the ones who want to give care to the veterans," said psychiatrist Harjinder K. Virdee, MD, who worked at the Dept. of Veterans Affairs Medical & Regional Office Center in Fargo, N.D.

It started with another issue

Their story starts in 1999.

While at the VAMC, a cardiologist from Africa working at the facility through a H-1B visa approached Dr. Virdee after he learned that another cardiologist at the clinic was being paid more.

Dr. Virdee, along with the president of the local chapter of the National Federation of Federal Employees, Robert E. Redding, began looking into the issue.

Under H-1B visas, employers like the hospital can hire nonimmigrant alien doctors for set periods. But the law makes it clear that those employees must be paid the same as a U.S. citizen. The government does that to "protect U.S. workers' " wages by removing any potential economic incentive to hire temporary foreign workers over U.S. citizens.

Dr. Virdee said she took on the issue because she was a permanent resident in the United States and believed that H-1B visa doctors would be more likely to lose their jobs if they tried to challenge the system.

In May 2000, internist Rudranath Talukdar, MD, joined Dr. Virdee and Redding in their investigation.

"We felt we were right, and we needed to prove it," said Dr. Talukdar, who worked at the VAMC then and now works in Texas. The government also became involved in the investigation and agreed with the doctors.

In March 2002, the Wage and Hour Division of the U.S. Dept. of Labor told the VAMC it had to pay more than $200,000 in back wages to 10 physicians who were working under H-1B visas.

It was a victory for the doctors, but it turned out to be short-lived.

Dr. Virdee and Dr. Talukdar soon lost their jobs.

Retaliation or budget cuts?

The two physicians didn't hide their work on the wage study.

Dr. Virdee posted the notice when the decision came out. A local newspaper reported on the study's findings.

Shortly after that, according to the doctors, the VAMC retaliated.

The first sign of trouble came on May 11, 2002, when the VAMC sent Dr. Talukdar a memo with "termination of employment" in the subject line.

The memo went on to let him know that his temporary appointment at the VAMC was set to expire on June 30, 2002, and that the VAMC didn't plan to extend his job "due to the current budget deficit," court records show.

On May 13, 2002, Dr. Virdee received a similar memo.

She was told that her appointment would end June 6. The memo said she was terminated because her "services in the primary care patient services line are no longer needed."

The memos came as a shock.

Both physicians had received favorable comments in all the job evaluations they had received at the VAMC from the time they started and through the wage investigation.

The only explanation the physicians could see was that they were being punished for challenging what the center was paying the H-1B visa physicians.

"I did what was right, and I lost my job," said Dr. Virdee, who has since opened her own practice in the Fargo area.

The two physicians continued to fight the system, this time fighting for themselves.

Fighting for their jobs

Dr. Virdee and Dr. Talukdar filed a complaint with the Dept. of Labor alleging that they had been fired for cooperating with the federal investigation. That is illegal under whistle-blower protections.

The VAMC strongly denied that allegation before the administrative law judge who heard the case late last year.

Court records show that Douglas Kenyon, the VAMC's director, said he faced a budget deficit of several million dollars and decided to ease those financial pressures by letting go of physicians.

"Usually it's very difficult to just terminate employees," he told the administrative law judge. "You can't just summarily say, you know, 'You're fired,' but temporary employees ... don't have the same amounts of protections and are subject to termination, and we reviewed the workload that we had going at the time, looked to see where there were opportunities to make those difficult decisions and did."

Drs. Talukdar and Virdee were the only two physicians let go.

Kenyon told the judge that he knew the physicians had participated in the audit. But he said that had not influenced his decision.

Administrative Law Judge Alice M. Craft disagreed.

"What Dr. Talukdar and Dr. Virdee had in common was their activities through the union on behalf of the H-1B doctors," Craft said. "The reasons proffered for their terminations are not the true reasons."

Long-sought relief

Craft said the doctors were let go because they had participated in the wage investigation.

"Both the underlying reason of budget matters and the particular explanations for selecting Drs. Talukdar and Virdee for termination lack credibility," Craft said.

Dr. Virdee and Dr. Talukdar had more seniority at the facility than some of the other physicians who could have been let go, court records show.

The VAMC had "fairly consistent" budget problems over the past decade, and never before had a physician been fired to try to balance the budget.

The VAMC hired a new psychiatrist less than six months after Dr. Virdee was let go. And the court didn't buy the facility's argument that there was a difference between the position the new physician had and Dr. Virdee's position because the new physician was hired by the psychiatry department and Dr. Virdee had worked in the primary care department.

The facility also placed ads for an internist less than two months after Dr. Talukdar left and hired someone in that same budget year.

"In addition to the advertisements for a psychiatrist and internal medicine, in fiscal year 2002, VAMC also advertised for a urologist, cardiologist, gastroenterologist, chief of surgery and primary care," the court said.

Also, the VAMC added an evaluation to Dr. Virdee's file after she was fired, rating her work "unsatisfactory" between August 2001 and June 2002. It said she was let go for budget reasons, but also said she "definitely" would not be hired again.

"The report is wholly inconsistent with the four other proficiency reports that Dr. Virdee received," Craft wrote. "Moreover, the report at issue was not added to her file until over a month after [her] appointment had been terminated."

Craft ordered the VAMC to give Dr. Virdee and Dr. Talukdar jobs at the center or, in the case of Dr. Virdee, allow her to be reinstated at a VA facility of her choosing. She ordered that the doctors receive back pay with interest and reimbursement for the employee benefits they were denied.

Craft also ordered the VAMC to expunge the negative evaluation from Dr. Virdee's files because she believed it was given, at least in part, because the doctors had advocated for H-1B visa physicians.

VAMC spokeswoman Margaret Wheelden said facility executives could not comment on the case while the litigation is still pending. The VAMC in May appealed Craft's decision to the Administrative Review Board in the U.S. Dept. of Labor in Washington, D.C.

Dr. Virdee and Dr. Talukdar say their battles haven't been easy, but they believe in what they are doing.

"We were fortunate Judge Craft was a good person and came to the right conclusion," Dr. Virdee said.

Both physicians said they would go back to their jobs in the VA and said they were hopeful that Craft's decision would be upheld on appeal.

"The good thing about this country is that it is about laws," Dr. Talukdar said. "We should attempt to keep it that way."

Tanya Albert amednews correspondent—

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