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Physician Protected Under Whistleblower Law

In Parikh v. Department of Veterans Affairs, 2011 MSPB 1 (January 3, 2011), the Merit Systems Protection Board (MSPB) reversed the removal of a VA staff physician who disclosed confidential patient information out of concern for patient health and safety. The Board found that the Department of Veterans Affairs could not establish by clear and convincing evidence that it would have removed Dr. Parikh in the absence of his protected disclosures.

In this case, VA physician, Anil Parikh, was removed on the charge of making unauthorized disclosures of private and protected information involving confidential patient information. Dr. Parikh filed an individual right of action (IRA) appeal with the MSPB alleging that his disclosures were protected under the Whistleblower Protection Act (WPA). The issue for the Board to determine was whether or not Dr. Parikh’s disclosures – cited in the notice of proposed removal – were protected under the WPA.

Some of Dr. Parikh’s disclosures were to various members of Congress who served on the Veterans Administration congressional oversight committees. In these disclosures, Dr. Parikh alleged that there were systemic problems at the Jesse Brown VA Medical Center involving delayed and inadequate patient care, or that patients were being misdiagnosed and misdirected to various facilities within the hospital. Dr. Parikh testified that he made these disclosures out of concern for patient health and safety.

The administrative judge hearing this case found that Dr. Parikh failed to establish that he reasonably believed these disclosures evidence a substantial and specific danger to public health or safety. The Board disagreed. The Board found that the nature of the harm that could result from patient care and management issues that Dr. Parikh disclosed is “severe.” The Board also found that the types of harm that Dr. Parikh disclosed could result in patient death. The fact that the dangers perceived by Dr. Parikh might have been limited to patients at just one center did not prevent the dangers from being “substantial and specific danger to public health or safety” under the WPA.

The VA argued that Dr. Parikh’s disclosures were prohibited by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), which generally prohibits healthcare providers from disclosing confidential patient health information. Therefore, according to the VA, Dr. Parikh’s disclosures were not covered by the WPA, because the WPA excludes from coverage disclosures “specifically prohibited by law.”

The Board rejected the VA’s argument. In reviewing HIPAA, the Board found that there were specific exclusions authorized in cases of whistleblowing. Specifically, there is no violation of HIPAA where disclosures are made to a “health oversight agency or public health authority authorized by law to investigate or otherwise oversee conduct or conditions of covered hospitals.” In looking at the jurisdiction of the VA oversight committees, the Board found that those committees have jurisdiction relating to veterans’ hospitals, medical care and treatment of veterans. Therefore, the Board found that disclosures to members of these congressional committees were not prohibited by HIPAA.

The VA next argued that Dr. Parikh’s disclosures were prohibited by the Privacy Act. The Board had little trouble rejecting this argument, finding that one of the exceptions to the Privacy Act is a disclosure to “a congressional committee with jurisdiction over the matters disclosed.” The VA lastly argued that Dr. Parikh’s disclosures were prohibited by agency policy. The Board did not find that the VA’s “policy” came within the exclusion of the WPA for matters prohibited from disclosure by law. The Board found that the VA’s policy in question was not a “substantive” rule, but merely a reference to the HIPAA and the Privacy Act.

The Board found that because the notice of proposed removal specifically cited to these disclosures, as a reason for Dr. Parikh’s removal, the disclosures were a contributing factor to his removal. The Board then had to decide whether or not VA had shown by “clear and convincing evidence” that it would have removed Dr. Parikh notwithstanding these protected disclosures. Reviewing the evidence, the Board found conflicting evidence as to whether or not the VA would have fired Dr. Parikh for the protected disclosures. The Board found that there were other disclosures in this case that were not protected by the WPA. On the other hand, some of the individuals involved had retaliatory motives because the disclosures put them in a bad light and criticized hospital operations under their command. In reviewing the “evidence as a whole,” the Board was not left with a “firm belief” that the VA would have removed Dr. Parikh in the absence of the protected disclosures. Consequently, Dr. Parikh’s removal was reversed.