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Published February 21 2012

Jury awards $900K to former MeritCare surgeon

FARGO – A Cass County jury on Tuesday awarded $900,000 to a former MeritCare oral surgeon who sued the Fargo-based health care provider for whistleblower retaliation and breach of contract.

Mitchell Magid claimed he was fired Nov. 4, 2009, because he had raised concerns about a disposable breathing device being reused on patients and about the work of a fellow oral surgeon at MeritCare, which officially merged with Sanford Health two days earlier.

The jury awarded Magid $750,000 in damages plus $150,000 in punitive damages, which he had sought separately based on his whistleblower claim and which required a higher standard of proof, said his attorney, James Kaster of Minneapolis.

“He’s very happy,” Kaster said. “He was concerned about patient care issues, and … he feels like this is a message to him that his concerns were heard by the jury. That was the most important thing to him.”

The six-member jury also awarded 5 percent interest on the damages, he said.

Magid also seeks reimbursement for attorney fees, a request Judge Steven Marquart will consider within 30 days, Kaster said.

Jurors could have awarded up to two years in back pay, Kaster said. They settled on $750,000, which is roughly what Magid made at MeritCare in 2009, according to information presented at trial.

Kaster called it “a substantial award” for a whistleblower case.

Sanford Health will decide soon on the status of an appeal, spokesman Darren Huber said by email.

“Of course we are disappointed in the outcome of this case,” he said.

Magid and his wife, an anesthesiologist, went to work for MeritCare in 2004. She discovered that fall that MeritCare was reusing anesthesia breathing circuits that were labeled for single use.

The lawsuit claimed MeritCare risked the health of its patients and staff by reusing the breathing tubes as a money-saving measure, a charge Sanford has denied. MeritCare stopped reusing the device after its accrediting agency made a finding of “insufficient compliance” during a February 2009 site visit.

Magid and his wife both complained to their superiors about the breathing circuits, and she was fired in March 2006. The lawsuit claims it was because of the concerns she raised; Sanford said it was for unrelated reasons.

Magid claimed hospital management made it clear that they wanted him gone after his wife was fired.

MeritCare added a second oral surgeon, David Montes, to the oral and maxillofacial surgery

department in July 2008 and required Magid to supervise him as his proctor.

Kaster said Magid noticed – and reported to his supervisors – problems with Montes’ clinical practices.

Magid refused to continue supervising Montes in January 2009 because his concerns weren’t being addressed. In a Jan. 15, 2009, message to Jeff Hoss, MeritCare’s executive partner of surgery and critical care services, Montes wrote that “Mitch is very persistent and still bearing his teeth,” and that he wasn’t comfortable with Magid looking over his shoulder.

Kaster said Magid’s firing was a case of shoot the messenger. During his closing argument, he highlighted an email sent three months before Magid’s firing in which Hoss wrote, “I think we should prepare an exit strategy for Dr. Magid.”

The reasons given for his firing included that he had “not been successful in establishing a collegial relationship with your partner, Dr. Montes.”

“He gets terminated so that Montes doesn’t resign,” Kaster said.

Sanford’s attorney, Ron McLean, had characterized Magid as being driven by financial gain and unwilling to expand his department because it would mean less revenue for him.

Montes remains employed at Sanford, Huber said.

Magid is currently practicing in Lynchburg, Va.

“He liked it here. His family had settled here. He intended to stay. It’s an unfortunate loss for the institution and the people here,” Kaster said.

Readers can reach Forum reporter

Mike Nowatzki at (701) 241-5528