Thought Carl and the rest of you guys that deal with the DVA might appreciate this. (2) CASE LAW: PHYSICIAN’S POOR ‘BEDSIDE MANNER’ JUSTIFIED AGENCY’S PERSONNEL ACTION

Even when disclosures protected by the Whistleblower Protection Act (WPA) are at issue, an agency may still be able to properly take personnel actions when justified, and also must be careful that no retaliatory motive is present.
Such was the situation in one recent case, arising from the Department of Veterans Affairs’ (DVA) termination of a physician for poor patient interaction skills. The physician filed an Individual Right of Action (IRA) claim with the Merit Systems Protection Board (MSPB), claiming that the DVA had fired him in violation of the WPA for making protected disclosures. The physician had expressed concern to management regarding what he perceived to be pharmacology safety issues at the clinic where he worked.
The MSPB Administrative Judge concluded that the physician had made disclosures protected by the WPA because he reasonably believed that overprescription constituted a safety hazard. However, the AJ also found that those protected disclosures were not a contributing factor in the personnel actions taken against the physician, and that there was no evidence of retaliation. The agency’s evidence included interviews with clinic staff concerning the physician’s interactions with patients; interviews and statements from patients; a 27-page report of complaints from patients and their relatives concerning the physician; a report from his supervisor concerning the physician’s performance; a report from a Board of Investigation concerning the complaints; and, a recommendation from the Professional Standards Board. The MSPB denied the physician’s petition for review and the Court of Appeals for the Federal Circuit affirmed.
[MEYERS v. DEP’T OF VETERANS AFFAIRS, U.S. Court of Appeals for the Federal Circuit, No. 02-3013, April 4, 2002, Decided, 2002 U.S. App. LEXIS 7082. Note that this case is unpublished and rules of the Court may limit citation to unpublished opinions.]