Government doctors get whistle-blower shield

A physician fired after reporting concerns that an AIDS drug trial in Africa violated safety rules wins a court appeal.

By Amy Lynn Sorrel — Posted June 19, 2006

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Government doctors and medical researchers gained protection from being fired for raising patient safety concerns after a federal court ruled that such experts can seek haven under the Whistleblower Protection Act.

The ruling in late April by the U.S. Merit Systems Protection Board, a quasi-judicial agency that takes on appeals from federal workers, applies to thousands of specialists employed under Title 42. The U.S. Code provision allows the government to hire physician and nonphysician researchers as special consultants at higher salaries than other civil employees.

The three-member board overturned a 2004 decision by an administrative judge who denied protection to Jonathan M. Fishbein, MD.

The physician sought government protection after he was fired from his position as director of the Office for Policy in Clinical Research Operations at the National Institutes of Health Division of AIDS for "unsatisfactory performance" in May 2004. He claimed he was let go in retaliation for exposing problems, such as failure to obtain proper informed consent during clinical trials, with a more than $300 million NIH-sponsored study of the drug nevirapine.

"The higher court said that Title 42s are entitled to [whistle-blower protection] because this is serving a higher public interest," said Stephen M. Kohn, Dr. Fishbein's attorney.

Administrative Judge Raphael Ben-Ami in November 2004 dismissed Dr. Fishbein's case against the Health and Human Services Dept. He ruled that Title 42 employees could not seek whistle-blower protection because they are hired as special consultants "without regard to civil service [compensation] laws."

Dr. Fishbein appealed the decision, arguing that "the law says [medical experts] can be hired outside of the merit systems process, but it doesn't say that they can be fired outside [of civil service laws]."

The Merit Systems court agreed and reversed Ben-Ami's decision.

The NIH declined to comment extensively for the story, but a spokesman said HHS agreed with the board's decision.

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Case at a glance

Jonathan M. Fishbein, MD, v. Dept. of Health and Human Services

Venue: U.S. Merit Systems Protection Board
At issue: Whether federal medical researchers hired under Title 42 are entitled to protection under the federal Whistleblower Protection Act. The MSPB said yes, reversing a lower court decision.
Potential impact: Dr. Fishbein and the board say the ruling will encourage the high-level professionals to come forward without fearing retaliation for disclosing problems with government medical research that could affect public health and safety.

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External links

Merit Systems Protection Board ruling in Jonathan M. Fishbein, MD, v. Dept. of Health and Human Services, April 21 (link)

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