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Published February 07 2012

Oral surgeon claims firing was retaliation

FARGO – Jurors heard opening statements Tuesday in a civil trial in which an oral surgeon claims he was fired by MeritCare for raising concerns about a disposable breathing device being reused on patients.

In the whistleblower lawsuit, Mitchell Magid alleges the health care provider also failed to adequately address his concerns about the work of a fellow oral surgeon who is still employed by Sanford Health, which merged with MeritCare in 2009 and is also named as a defendant.

“Dr. Magid made many reports about patient safety issues that were really never investigated,” said his attorney, James Kaster of Minneapolis. “The evidence will show you that he became a thorn in their side.”

Sanford Health’s lawyer characterized Magid as a money-driven surgeon who didn’t want to expand MeritCare’s oral and maxillofacial surgery department because it would mean less revenue for him.

Magid, who was managing partner of the department, made more than $700,000 annually from 2006 to 2009, “but it wasn’t enough,” attorney Ron McLean told the jury.

“What stood in the way? … Sharing the revenues with another partner,” McLean said.

Magid worked for MeritCare from May 2004 until Nov. 4, 2009. His final performance review on that day listed “poor job fit” as the reason for his termination, the lawsuit says.

Under his contract, Magid could be terminated – with or without cause – with 90 days notice, McLean told jurors.

Kaster, referring to the North Dakota Whistleblower Act that MeritCare is alleged to have violated, said employees are protected from being fired for reporting a suspected violation of the law.

Magid is seeking compensatory damages, including loss of income, “far in excess of $50,000,” as well as punitive damages based on his whistleblower claim.

His wife, Dr. Riva Magid, an anesthesiologist also hired in May 2004, discovered that fall that MeritCare was reusing a disposable medical device known as an anesthesia breathing circuit that was intended to be used just once, the lawsuit claims. By reusing the device, MeritCare compromised the health of its patients and put the health of operating room staff at risk, the lawsuit states.

In its response, Sanford Health denies that reusing the device put patients or staff at risk.

After Riva Magid brought her concerns to MeritCare management, her supervisor “began constantly criticizing her work performance,” the lawsuit purports – again, a claim Sanford denies.

Mitchell Magid also complained about the breathing circuit issue to one of MeritCare’s executive partners in January 2005, saying “it violates any standard of care that I am aware of,” but he didn’t receive a reply, Kaster said.

Riva Magid was fired in March 2006. The lawsuit claims she was told it was because, among other reasons, she didn’t like that the hospital reused the breathing circuits. Sanford contends she was fired for reasons unrelated to the concerns she raised.

After his wife was fired, Mitchell Magid claims hospital management made it clear they wanted him to leave, too.

He claims the executive partner of surgery asked him during a compensation meeting why he was still there and that management tried to cut his salary but backtracked when he complained.

In July 2008, MeritCare added oral surgeon David Montes to the department and required Magid to supervise him as his proctor. Magid claims he immediately noticed problems with Montes’ clinical practices and reported them to his supervisors.

In January 2009, Magid stopped proctoring Montes because his concerns weren’t adequately addressed and he “did not want to be held responsible for any harm that Dr. Montes’ poor practices would cause,” the lawsuit states.

Magid also claims that in October 2009 he discovered Montes performing cosmetic surgery when he didn’t have medical privileges to do so, a claim Sanford denies.

Sanford contends Magid’s concerns were investigated and evaluated, and that he was opposed to the hiring of a second oral surgeon due to the cut he would take in his production and pay.

Also in early 2009, Riva Magid anonymously tipped off the Joint Commission on Accreditation of Healthcare Organizations that MeritCare was reusing breathing circuits.

The tip prompted an on-site visit in February 2009 by the Joint Commission, a nonprofit that accredits and certifies U.S. health care organizations and programs. The commission made a finding of “insufficient compliance,” and MeritCare stopped reusing the devices, which Kaster claims was a money-saving measure for the hospital.

MeritCare fired Magid on Nov. 4, 2009, stating in the termination letter that it was because he had “not been successful in establishing a collegial relationship with your partner Dr. Montes.”

In the termination letter, MeritCare claimed Magid was focused on developing a practice that benefited him personally. McLean said Magid wanted to charge patients more for procedures to boost his own bottom line, and that he refused to take trauma calls, as required.

Magid claims MeritCare breached his contract by failing to pay him the proper severance pay.

The six-member jury trial is scheduled to last seven to 10 days.

Magid now practices in Lynchburg, Va. Montes is employed by Sanford Health but is currently on sabbatical, McLean said.

Readers can reach Forum reporter Mike Nowatzki at (701) 241-5528