Blowing the Whistle on a Therapeutic Experiment
This case is based on a real incident of whistleblowing that
occurred in the late 1970s and early '80s. For more details on
the specific case, readers should refer to the reference list
located at the end of the participant commentary. At various
phases of the case, readers are prompted to reflect upon what
action they would take or recommend and provide a rationale for
their response based on the ethical issues at stake at the
time.
Part 1
Jan, an experienced nurse with a master's degree in
psychiatric nursing, accepted a head nurse position in a
private psychiatric facility. She was responsible for a unit
where several experimental programs were in progress. One
program was designed to test the potential benefits of
orthomolecular therapy in psychiatric patients. The basic
premise of the therapy was that psychiatric illness was due to
cerebral allergies.
Within months, Jan began to suspect that the orthomolecular
program abused patients. First, she found no informed consent
documents for this experimental therapy in the patients'
records. Psychiatric patients were admitted to the unit, taken
off all medication, including psychotropic medications, and
given bottled water for four to seven days, along with
megadoses of vitamins, which they frequently vomited. After
this fasting period, foods were introduced one by one to
determine whether the patient was allergic to the particular
food. Patients were confined to the unit to ensure adherence to
the protocol.
Jan recalls that patients were emaciated, and they walked
around like zombies, searching for food in garbage cans. More
disturbed patients ate anything they could get their hands on,
such as tissue and tampons. Several patients who were
physically restrained chewed through their mattresses to eat
the stuffing.
I. What action should Jan take?
- Discuss her concerns with her immediate supervisor, the
director of nursing (DON).
- Discuss her concerns with the orthomolecular
physician.
- Contact the Institutional Review Board (IRB) to determine
whether the IRB has reviewed the experimental programs.
- Document her observations and forward them to the
DON.
- Do nothing.
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Part 2
Jan voiced her concerns to the director of nursing (DON) and
also to the medical team during weekly grand rounds. The
orthomolecular physician claimed that he had a 90-100 percent
cure rate. To bolster his claims, he published an article on
the success rates of his therapy. Admissions to the unit were
growing rapidly, mostly from families desperate for a cure. Jan
knew that something was very wrong, but found it difficult to
challenge a "noted authority."
Over the course of the next six months, Jan witnessed
numerous incidents of physical and psychological abuse of
patients. For instance, one patient in an agitated state
grabbed the orthomolecular physician's jacket. The physician
struck the patient and pushed her into a hospital room. When
she tried to come out of the room he slammed the door on her
hand and quickly left the unit. When Jan reported the incident
to the DON, she was told not to write up the incident because
it was "too serious."
In another case, Jan observed a physician eating in front of
a fasting patient. Begging for food, the patient became
enraged. The physician ordered Jan to put the patient in
restraints and start intravenous vitamins. Jan refused and
reported the incident to the DON and the medical director. The
medical director voided the order and said that the physician
was out of line. Jan had been documenting such occurrences on
incident reports and in written memos at weekly grand rounds,
yet nothing seemed to change.
II. What action should Jan take?
- Resign and report the situation to state or federal
authorities.
- Meet with the hospital administrator and discuss her
concerns. Contact the state nurses' association for
advice.
- Continue to document misconduc
- Contact external agencies for assistance (e.g., Health
and Human Services (HHS), Joint Commission for the
Accreditation of Hospitals (JCAH), etc.).
- Go to the media with her documentation.
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Part 3
Jan scheduled a meeting with the hospital administrator. He
told her that because this particular physician brought a lot
of money into the hospital, essentially, his hands were tied.
She learned that the experimental programs had not been
reviewed by the hospital's Institutional Review Board (IRB).
The hospital owner and administrator told the IRB that it was
not necessary to review the experimental protocol, and the IRB
was unwilling to override this decision. The hospital had no
medical misconduct committee, but it did have an Internal
Review Committee. Jan sent them all her documentation and
requested that they address her concerns. Moreover, Jan
contacted the hospital attorney and gave him her documentation.
Subsequently, the attorney drafted a list of concerns and
recommendations, which was sent to the medical committee. Some
changes occurred. A protocol for the therapy was written, and a
consent form for treatment was developed. Despite these formal
changes, unethical and illegal conduct continued. Families were
pressured to sign consent forms to admit their ill family
members into the orthomolecular program. The physician was very
charismatic in his approach to families, promising them a cure,
and most families complied with his recommendations.
When the public health department (PHD), HHS and JCAH came
for their annual inspections, orthomolecular patients and their
medical records were moved off the unit. Jan was instructed by
the hospital administrator not to discuss the program with the
agencies. Jan felt she had no choice but to follow the gag
order. The inspectors interviewed Jan in the presence of the
DON, medical director and hospital owner. Jan was not permitted
to have any private conversations with inspectors.
III. What action should Jan take?
- Resign and report the situation to state or federal
authorities.
- Remain in her position; notify each inspecting agency of
her concerns, and provide them with her documentation.
- Go to the media/press with her documentation.
- Wait to see whether the inspecting agencies cite the
hospital for any violations.
- Continue to document unethical, illegal or incompetent
behavior.
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Part 4
Jan gave serious thought to quitting her job; however, the
hospital administrator told her that he planned to open another
facility and he wanted Jan to be the administrator. She would
be given full authority to set the standards for the new
facility. In the meantime, the PHD, HHS and JCAH reports came
back citing no violations of mental health standards of care in
the hospital. Serious violations of patients' rights continued
to escalate on Jan's unit, and one prompted Jan to think
seriously about blowing the whistle. A 36-year-old man who had
been in the orthomolecular program for a week told the
physician he wanted to discontinue this form of therapy. The
physician threatened to have him committed if he refused to
continue orthomolecular therapy. The physician called in the
family and asked them to "create reasons" why the patient was
not competent to make an informed decision about his medical
treatment. Jan had developed a therapeutic relationship with
the patient and knew he was competent. However, she was
unsuccessful in advocating the patient's request with the
physician. She put the patient in a conference room with a
phone, although the physician had cut off his phone privileges.
The patient contacted the state Guardianship and Advocacy
(G'&'AC) Commission. An attorney from the commission came
to the hospital the following day and talked to the patient and
Jan. Privately, the lawyer advised Jan to contact the Human
Rights Authority (HRA) about the unethical and illegal
violations occurring on her unit. Jan was a divorced, single
parent caring for four children. She feared reprisal.
IV. What action should Jan take?
- Remain in her position and inform external authorities
about the abuses.
- Secure another job, resign and then report the misconduct
to state and federal authorities.
- Contact the state/national nurses' associations for
advice.
- Remain in her position until she is promoted.
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Part 5
Jan obtained a copy of the state agency's enabling statute
and asked the G&A attorney if her story would be kept
confidential. Jan was assured of complete anonymity and
confidentiality. She contacted the HRA. The following day,
agency representatives came to her house and for four hours
taped her report of misconduct in the hospital.
Shortly thereafter, the DON called Jan into her office. The
hospital administrator was present, and he informed Jan that
she was "too intelligent for them." The HRA had disclosed to
the hospital that she had reported unethical and illegal
practices on her unit. The administrator offered Jan an
entry-level position on another unit. Jan refused. He asked her
if she would quit, and she said no. Jan decided to take a sick
leave to buy some time. She got a doctor to legitimize a sick
leave. Then Jan contacted her state nurses association. They
attempted mediation with the hospital but were unsuccessful.
They advised Jan to obtain written documentation of her
employment status; if the administration refused to provide
documentation, they told her to report to work. Jan went to the
hospital and met with the DON and hospital administrator. When
she asked what her employment status was, the administrator
told Jan that she was trespassing on private property and
should leave immediately.
Still lacking verification of her employment status, she
told the DON and administrator that she would be reporting to
work in the morning. She was told the police would be waiting
for her the next day, and she would be arrested for
trespassing.
V. What action should Jan take?
- Report to work the following morning.
- Resign and report the situation to state and federal
authorities.
- Go to the media/press and disclose her story and
documentation.
- Hire an attorney.
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Part 6
Jan was not permitted to return to work. She contacted the
PHD for assistance and gave them all her documentation (i.e.,
all her memos and incident reports). No action was taken.
Without a job or source of income, Jan sought other employment.
She applied to numerous agencies without success. She
discovered that the hospital was answering job-reference
inquiries by describing her as a "psychotic" who was
"professionally incompetent." Moreover, sympathetic agencies
told her that they admired what she had done, but they did not
want her working in their institutions. When Jan tried to apply
for unemployment compensation, it was denied. The hospital said
she had not been fired, but failed to report to work. Six
months after blowing the whistle, Jan was awarded unemployment
compensation.
Numerous employees from the hospital called Jan and came by
her home to tell their stories of similar patient abuses. Jan
and other employees of the hospital met with the HHS.
Subsequently, the HHS conducted a surprise investigation of the
psychiatric facility. Shortly thereafter, the orthomolecular
program was shut down, and the hospital's licensure was
temporarily suspended.
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Outcome
It was too late for the 36-year-old patient Jan had assisted
to make an outside call. The lawyer from the G and A Commission
did represent the patient in court arguing that the patient's
right to informed consent had been violated. Nevertheless, the
judge sent the patient back to the hospital and set another
hearing date. The orthomolecular physician placed the patient
on 15-minute checks around the clock; that is, he was awakened
throughout the night every 15 minutes. By the time the court
date arrived,the patient was truly psychotic. The judge ruled
that the patient should remain at the facility and continue
therapy
Jan decided to sue the hospital for reinstatement. Without
the finances to hire an attorney, Jan represented herself. The
judge ordered reinstatement, compensatory damages and punitive
damages. The hospital appealed. Jan was told an appeal would be
too complicated for her to handle. She borrowed money and hired
an attorney. Two years later, the appeals court upheld the
decision and in fact increased the amount of damages. The
hospital took the case to the supreme court, which refused to
hear the case, stating it had been "fully litigated." When the
case was sent to the trial judge, the judge precluded Jan from
getting an execution of the judgment. She was not notified of
the court hearing date. When she did not show up for court, the
case was thrown out. Jan contacted the Federal Bureau of
Investigation and described the handling of her case in the
court system. They assured her they would take care of the
matter, since it appeared there was clearly judicial
misconduct. Nothing was done. To this day, Jan has not received
a penny of compensatory or punitive damages.
Discussion Questions
- If you were presented with this situation today, what
would you do?
- What formal and informal institutional mechanisms are
necessary to protect a health professional who is considering
blowing the whistle on unethical or illegal behavior?
- What changes are needed in state and federal legislation
and/or enforcement practices to protect whistleblowers from
retribution?
- What curriculum changes are needed to prepare health care
researchers and practitioners to effectively address
unethical practices?
- Historically, professional associations have set the
standards for entry into professional practice and standards
of practice. However, in this case the professional
association had little impact on ensuring quality of care and
enforcing practice standards. What measures, if any, could be
taken to give professional associations the clout to enforce
ethical and legal standards of care?