Noble goal of protecting whistle-blowers may let wrongdoers off hook

Doctors and nurses, mark July 1 on your calendar. That's the date on which Nevada lawmakers hope you feel more confident that if you report wrongdoing, you won't lose your job. That's the date Assembly Bill 10 takes effect.

That's also the date that the Board of Medical Examiners may lose its ability to punish Dr. John Thalgott.

AB10 was heralded as a bill to protect whistle-blowing nurses when it was introduced early in the 2009 Legislature, nearly a year after the endoscopy scandal became public in February 2008. That's when health officials recommended that 50,000 people who had procedures at the now closed Endoscopy Center of Southern Nevada check to see whether they had contracted hepatitis or HIV because of unsafe practices at the center: the reusing of potentially contaminated syringes during the anesthesia process.

The first question asked: Why didn't the nurses report it as required by law?

Easy. They didn't want to lose their jobs.

So AB10 provides nurses who reported wrongdoing with more protection from retaliation and discrimination.

Assemblywoman Sheila Leslie, a member of the Health and Human Services Committee, explained how the bill evolved from protecting nurses to protecting doctors.

The "nurses whistle-blower bill" was moving along when Assemblyman Morse Arberry, who wasn't on the committee, offered an amendment on April 20 giving doctors the same protections as nurses, plus a little extra protection. Licensing boards were blocked from punishing doctors who cooperate with investigations into medical wrongdoing.

The new amendment blocked the medical board and the osteopathic board from "taking adverse action against a physician who discloses or cooperates in the investigation of a violation of any law, rule or regulation."

In other words, the first doctor to snitch won't be punished by a licensing board. Nurses received no such protection.

Leslie said Arberry didn't reveal who wanted the amendment, but she thought it was "someone who wanted to be protected from the medical board."

The bill sailed through both houses and was signed into law by Gov. Jim Gibbons.

Law enforcement types hope the new law will encourage doctors in the endoscopy investigation to report wrongdoing, since they won't be punished by their licensing boards if they report "in good faith."

The new law also might make it easier for federal prosecutors to find more forthcoming witnesses in the ongoing investigation into whether certain Las Vegas doctors and lawyers have been in collusion to run up medical malpractice settlements. Dr. Ben Venger and Dr. Thalgott were whistle-blowers in that investigation.

Cheryl Blomstrom, lobbyist for the Nevada Nurses Association, said the association is happy with the law and hopes more nurses now come forward.

"It's a tough choice when you're looking at feeding your kids or reporting and in smaller towns, if a clinic decides to blackball you, you can't work," Blomstrom said.

Louis Ling, executive director of the medical board, said it remains to be seen whether this is a good law. If more whistle-blowers come forward, that's a positive.

"On the negative side, what if the guy cooperating is the ringleader of the bad thing? The guy who's the real problem is also the guy the board won't be able to touch."

Hypothetically, Dr. Dipak Desai, owner of the endoscopy clinic that caused the largest health notification in the history of the United States, could come forward and offer information and couldn't be punished by the board. Of course, he hasn't yet been punished anyway.

Ling asked for a legal opinion about how the bill affects pending cases such as Thalgott's and hasn't received an answer.

It's too late the help Venger, the neurosurgeon who, along with Thalgott, went to the FBI to tell what they knew about kickbacks and malpractice protection from lawyers. Both testified in federal court against Las Vegas attorney Noel Gage, and the case ended in a mistrial.

In May, the medical board put Venger on probation for 36 months, reprimanded him and fined him $5,000 plus the costs of the investigation. No malpractice was alleged; his crime was greed. So far, Venger is the only doctor punished in that case.

Leslie hopes the law will shake loose some whistle-blowers.

But in the world of unintended consequences, let's hope it doesn't bring forward evildoers with the most culpability looking for protection.

Let's hope this well-intended whistle-blower law won't be perverted.

Jane Ann Morrison's column appears Monday, Thursday and Saturday. E-mail her at Jane@reviewjournal.com or call (702) 383-0275. She also blogs at lvrj.com/blogs/morrison.