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The New York Times seems to be catching a lot of flak lately, on both the editorial and business sides. Last week, critics accused Times editors of violating newsroom independencespecifically, that of two sports columnists who criticized a Times editorial calling for Tiger Woods to boycott a golf tournament. The Times killed the columns, then published them under fire. But censorship is not the only nagging complaint about 43rd Street. In a lawsuit that returns to court next month, a former associate medical director of the Times Company says the company fired her because she refused to lie to employees and to hand over their medical records to Times brass without the employees' consent.
According to her lawyers, the Times first hired Dr. Sheila Horn in 1995, then named her associate medical director in 1996. Her duties included giving medical treatment and verifying workers' compensation claims. Horn's lawyers have argued in court that the Times' labor relations, human resources, and legal departments frequently demanded that she disclose medical information about employees she had treated, without obtaining their consent. A court decision also states Horn's claim that the Times' VP of human resources told her to "misinform" Times employees about the nature of their injuries, so as to reduce the number of workers' comp claims.
Horn was, according to one insider, asked to "misinform employees." The insider also claims that Horn was typically asked to deny claims related to RSI, or repetitive stress injuries, which plagued many Times employees in the early 1990s, after the Atex computer system was installed. (RSI problems are less widespread now.)
The Times forced Horn into an ethical catch-22, according to Horn's attorney, Pearl Zuchlewski. "Under the circumstances," Zuchlewski told the Voice, "she could have either followed orders and risked losing her medical license, or disobeyed ordersand risked losing her job."
According to Horn's complaint, she was fired in April 1999, in what the Times called an economic "restructuring" of the medical department but what she perceived as retaliation for her refusal to behave in an unethical manner. She is now employed at the Hospital for Joint Diseases in New York.
A Times spokesperson declined to comment on personnel matters, including Horn's allegations and the claim that Horn butted heads with VP of human resources Dennis Stern over RSI complaints. Stern did not return a call requesting comment on his involvement.
Times lawyer Bernard Plum, of Proskauer Rose, has already lost two appeals to have the case thrown out, and his latest motion to dismiss is now pending in New York State Supreme Court, which has scheduled a hearing for January 15. In briefs submitted to the court this fall, Plum argued that because the Times is engaged in the business of media, not medicine, it has no legal obligation to know of, or comply with, the medical rules of ethics.
To the contrary, according to Zuchlewski's brief, "any employer who hires a physician to provide medical care knows, or should know as a matter of common knowledge, that the physician is bound by patient confidentiality." Disclosure of confidential medical records without patients' consent is a violation of the American Medical Association's code of ethics.
In a decision issued last March, the state appeals court agreed with Horn's lawyer, stating, "It is a time-honored, deeply embedded axiom that a physician, like a lawyer, will preserve confidentiality of information acquired from patients." The lower court also found that, like lawyers and doctors, media companies also have an ethical duty to the public at large. The majority opinion stated that "the Times, a universally respected news organization, itself provides an essential service to the public that entails conforming to certain standards of truth, integrity, and confidentiality of its news sources."
Cough up confidential information? The very notion is anathema to reporters, who would lose their best sources if they could not guarantee anonymity. In the late 1970s, a Times reporter was jailed for refusing to give up his sources to prosecutors, resulting in the strengthening of the New York State shield law. Ironically, the Times has published editorials championing the confidentiality of medical records. For example, a 1999 editorial warned about the potential for "erosion of privacy between doctors and patients." Given the public positions of the Times' editorial side, it seems hypocritical for the business side to argue that confidentiality is not a core principle for the medical profession.
The Times Company's alleged disregard for employee privacy has also enraged the medical profession, which has stampeded to support the dismissed doctor in court. Donald Moy, general counsel of the Medical Society of the State of New York, filed an amicus brief on behalf of his society as well as the American Medical Association and several other groups. Moy offers the following hypothetical for comparison: "If a physician employed another physician and said, 'I want you to lie to patients, and let's bill fraudulently,' the employer would be subject to charges of professional misconduct." Moy maintains that doctors employed by industry still have an obligation to maintain patient confidentiality, and it's wrong for industry managers to ask doctors to violate their professional code as a condition of employment.
Since filing the amicus brief, Moy says, he has received appreciative calls from "two or three" physicians employed by industry, who told him "there are cases where they felt pressured to do things that they felt were not consistent with ethical standards."
The Times' defense draws heavily on a case known as Wieder, in which the court reprimanded a law firm for firing a lawyer because he had contacted the authorities to report unethical behavior by another member of the firm. In court documents, Times lawyers argue that the Wiedercase is a narrow exception that only applies to lawyers working for lawyers, but not to doctors working for media companies.
The controlling legal principle, they say, is New York State's "employment at will" doctrine, which dictates that a decision to employ someone for an indefinite period of time can be terminated by either party at any time for any reason. If the lower court ruling in the Horn case is allowed to stand, Times lawyers and at least one dissenting judge believe, it could create an "ever expanding big tent" of ethical-minded litigants, consisting of "hundreds of thousands of professional employees" from CEOs to commodities brokers to corner pharmacists. And that, the Times suggests, would have a profound economic effect on state businesses. Zuchlewski calls this argument "hysterical."