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EP Sues for ‘Wrongful Dismissal’ over COVID-19 PPE

SoRelle, Ruth MPH

doi: 10.1097/01.EEM.0000815508.92679.92
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    COVID-19, PPE

    Emergency physician Aaron Heerboth, MD, faced a test when he tried to alert his leadership at the University of California San Diego Health about the risks associated with COVID-19. According to his suit filed in Superior Court in San Diego, “Dr. Heerboth made tremendous sacrifices working hard to save lives as a frontline ER physician. After Dr. Heerboth reported his reasonable belief that UCSD did not have proper infection control procedures in place for COVID-19, jeopardizing the health and safety of staff and patients, he was subjected to a series of employment actions which culminated in his wrongful termination and the loss of his career.”

    The suit stated that UCSD emergency management told the medical staff on Feb. 5, 2020, that they would be receiving COVID patients from Wuhan, China. Dr. Heerboth said in the lawsuit that he was concerned that UCSD “was relying upon pre-existing infection control procedures and was not authorizing physicians, residents, or nurses to use adequate personal protective equipment.”

    Dr. Heerboth and other EPs in the department received written notice on Feb. 8 that they were not to discuss the treatment of COVID patients online or to anyone but the emergency department management team. “This same day, Dr. Heerboth adhered to this directive by reporting his health and safety concerns directly to Emergency Management” at UCSD, according to the suit.

    He did the same at El Centro Regional Medical Center, where he also worked, on Feb. 24, and the leadership there asked him to help set up standards and protocols for caring for COVID patients. The suit said, however, that similar proposals at UCSD were “either ignored or met with hostility.”

    Dr. Heerboth said in the suit that he reported his concerns to UC San Diego Health's CEO Patty Maysent after his attempts to meet with the department's chair, Theodore Chan, MD, and the vice chair, Gary Vilke, MD, bore no fruit. Shortly after that, he said he was called into a meeting with Dr. Vilke “who angrily reprimanded Dr. Heerboth for writing an order for one of his nursing staff to retrieve an N95 mask in order for her to be protected while performing a nasal swab on a [possible COVID patient].” According to the suit, Dr. Chan threatened Dr. Heerboth's career at that time.

    Regents' bylaws at the institutions where Dr. Heerboth worked call for due process for physicians, but he said UCSD's management required him to sign a contract stating he was employed at will and that he would be provided with written notice if his employment were terminated.

    Dr. Heerboth's wife, Marian Xu, MD, also an emergency physician, was also terminated from UCSD after she brought their puppy to the university's Rancho Bernardo Urgent Care during Dr. Heerboth's shift. Dr. Heerboth said in the suit that the puppy was never in patient care areas, and that he and his wife were verbally informed in a Zoom meeting by Drs. Chan and Vilke that they were being terminated for “lack of integrity” and “patient safety” because the puppy was in the physician's lounge. The suit also says Dr. Xu did not post schedule changes when she switched shifts with Dr. Heerboth.

    UCSD Response

    Dr. Chan was asked for a comment, and referred EMN to Jacqueline Carr, UCSD's executive director for communications, who said the university does not comment on active litigation and deferred to its response to Dr. Heerboth's complaint. “...[W]e would like to ... emphasize that the University categorically denies it engaged in any retaliatory [or] discriminatory conduct as it relates to Dr. Heerboth,” the statement said. “As we have done since the start of pandemic, we will continue to focus on providing the highest quality patient care and protecting the health and welfare of employees. We look forward to this case being litigated in the courts and letting the facts speak for themselves.”

    Dr. Heerboth said he believed he was being terminated because of his safety reports regarding the lack of COVID-19 protocols at UCSD, according to the suit, which also said those were acknowledged to be an issue by Richard Clark, MD, a UCSD professor of emergency medicine. The suit quoted him as saying, “You know, Aaron, I agreed with a lot of what you were saying back in March; in fact, I agreed with most of what you were saying. You had a lot of good ideas. It was your approach that was the problem.”

    The suit also accuses UCSD management of sending a mass email to its emergency physicians stating that Dr. Heerboth had been fired for lack of integrity. “This destroyed my ideal as an emergency physician,” Dr. Heerboth said. “My job was an idealistic version of myself. I tried to be the exact ER doctor I wanted to be. They basically accused me of creating chaos and confusion.”

    He said he regretted not having an opportunity to defend himself and his wife. “Emergency medicine is an exhausting job,” he said. “When you feel it is only done for profit, it is 20 times more difficult.”

    Robert McNamara, MD, a former president of the American Academy of Emergency Medicine, said emergency physicians think they are safe in academic medicine, but that “most of the specialty can be terminated without due process.”

    “Now it bleeds over into academia,” he said. “It is a sad thing. Your emergency physician has less job protection than the person sweeping the floor in the emergency department.”

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    Ms. SoRellehas been a medical and science writer for more than 40 years, previously at the University of Texas MD Anderson Cancer Center, The Houston Chronicle, and Baylor College of Medicine. She has received more than 60 awards, including the Texas Human Rights Foundation Award. She has been a contributor to EMN for more than 20 years.

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