Hospital Target of Lawsuit by Surgeon

BY LEANN DILBECK –

Mena Regional Health System [MRHS] is the target of a federal lawsuit filed by Dr. Michael J. Mercer, who was formerly employed by MRHS.  The lawsuit filed in U.S. District Court in Ft. Smith last week claims wrongful termination and invasion of privacy as it outlines a sequence of events and communications that he alleges were “in retaliation” of his filing an EEOC (Equal Employment Opportunity Commission) complaint for disclosing his personal medical information.

MRHS Administrator Tim Bowen issued a statement in response to the legal action, saying, “Due to legal constraints our policy is not to comment on pending litigation; however, at this time, all statements in the complaint are merely unsubstantiated allegations that we look forward to addressing in the proper forum and at the appropriate time. We are confident that we acted appropriately regarding our determination not to renew Dr. Mercer’s employment contract.”

According to the lawsuit, Mercer formally requested a medical leave on June 1, 2011 to undergo emergency five-vessel coronary bypass surgery. Furthermore, Mercer requested the fact that he was undergoing heart surgery be kept confidential and that his temporary absence be listed as “medical leave.” However, two different memos were issued approximately five days apart by Bob Ellzey, the MRHS Administrator at the time, to approximately 60 individuals disclosing that Mercer was undergoing bypass surgery and would be out for several weeks for recovery. The recipients included MRHS employees as well as individuals not employed by MRHS. It also did not include any statement or instruction advising the recipients to maintain the confidentiality of Mercer’s medical information.

The suit continues to say, “Moreover, MRHS advised a local newspaper, The Mena Star, of Mercer’s confidential health information. Specifically, on June 9, 2011, The Mena Star published an article outlining in part, the following: ‘According to Mena Regional Health System, due to recent illness, Dr. Michael Mercer, MRHS General Surgeon, will be out of the office for the next few weeks.’

The disclosure of information led Mercer to file a complaint with the EEOC in July 2011 for “violating his right to have his medical information kept confidential.”

Mercer also alleges that MRHS Chief of Medicine reviewed his pharmaceutical records, without his consent, and met with the Chief of Staff and Interim CEO two days later, at which time, they concluded Mercer was abusing prescription medication and should be placed on temporary suspension. The lawsuit claims the meeting was in violation of the Arkansas Freedom of Information Act.

In early October 2011, MRHS cancelled all of Mercer’s elective surgery cases and notified him he was being placed on temporary suspension on the allegation of prescription medication abuse. Mercer denied all claims and did not volunteer to being placed on suspension. The locks to his office were changed and he was denied access to his patients and their medical records. His healthcare benefits were also suspended on October 31.

A letter was also issued on October 17, 2011 to the Arkansas State Medical Board that Mercer had “requested and had been placed on Voluntary Temporary Suspension of Medical Staff Privileges because of a self-admitted prescription drug problem.”

Mercer’s contract, that was to end January 8, 2012, was not renewed.

All of these alleged events caused Mercer to file a second claim with the EEOC for actions he considered to be retaliatory. However, the EEOC determination issued one-year later in September 2012 stated, “There is not reasonable cause to believe that [Mercer’s] pharmaceutical information was not kept confidential in accordance with the ADA or that he was retaliated against for having filed an EEOC charge.” The determination did find reasonable cause to believe Mercer’s specific medical information was not kept confidential and referred the case to the Department of Justice who determined to not pursue the case and referred Mercer to pursue civil action.

Mercer is seeking an unspecified amount in lost wages and benefits, compensatory and punitive damages, and legal expenses.

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