Whistleblower lawsuit settled

| Thursday, Nov. 13, 2008

After damaging testimony by a key hospital official, attorneys for Magee-Womens Hospital and fired whistleblower Donna Kovacs went behind closed doors Wednesday and worked out a private settlement in a hotly contested wrongful termination suit.

Neither side would disclose the terms of the deal.

A spokesman for Magee parent UPMC issued a terse "no comment." Magee attorney Paul Vey did not return phone calls.

Kovacs said she was "elated," but expressed regret that she never did get to tell her side of the story. She had been scheduled to testify later.

"I wanted it heard and I was going to see it through to the end," Kovacs said. "I would do everything I did all over again. If something is wrong, it's wrong."

Attorney Vicki Kuftic Horne argued Kovacs was terminated in retaliation for raising questions about recordkeeping and patient safety. The hospital said she was fired for violating patient confidentiality by improperly accessing hundreds of confidential patient records.

The settlement was reached shortly after the 12 jurors and two alternates hearing the case were sent home early by Common Pleas Judge Timothy P. O'Reilly. By that time, Kovacs' lawyer was about midway through presenting her case.

The jurors' departure followed the testimony of the administrator of the hospital's pathology department, where Kovacs worked.

Administrator Candis Kinkus acknowledged she personally reviewed the records of Jane Doe No. 1, the unnamed person whose complaints about improper disclosure of her medical history triggered the probe leading to Kovacs' termination.

Under questioning by Horne, Kinkus said she could not recall why she accessed the records. "I don't recall why. This is not something I recall," she said.

The data entered into evidence in the case and displayed to jurors on a 10-foot-high courtroom screen showed the Magee administrator accessed and printed five separate reports on Jane Doe No. 1 on March 12, 2003. Her initials, CAK, were highlighted on the screen showing she accessed and printed the records within five minutes early in the day.

Horne noted that Kinkus could not explain why she looked at the records even after being shown the precise records. Kovacs, Magee officials have testified, was never shown the records that they contend show she improperly accessed confidential patient records. O'Reilly last week noted that point specifically.

Citing it as a factor in her dismissal, Magee officials had stressed in earlier testimony that when Kovacs was asked why she had accessed patient records, including Jane Doe No. 1's, she could not provide an explanation.

Kinkus, whom Magee lawyers identified as the person responsible for Kovacs' dismissal, also testified that she was not the person who made the termination decision in late 2004.

"I did not make the decision to terminate Donna Kovacs and I can't speak to the reason," she said.

"Can you tell us who can tell us?" Horne asked.

"No, I don't know," Kinkus replied.

Kinkus, however, acknowledged that she signed an affidavit submitted to the state Health Department in 2005 that stated Kovacs had improperly accessed patient records. She said that she never actually saw the evidence against the former secretary but instead relied on outside attorneys hired by Magee, including the firm of Pietragallo Gordon Alfano Bosick & Raspanti, the same firm representing the hospital in the Kovacs case.

"I know what I was told by legal," Kinkus said.

Kinkus testified that an order was issued in 2003 barring the release of slides to two pathologists, Drs. Kenneth McCarty and Susan Silver, who had filed wrongful termination suits against Magee charging that there were serious recordkeeping and health-care quality problems at the facility.

Magee officials have charged that it was Kovacs who provided the two physicians with the records used to back up their charges of poor recordkeeping that jeopardized patient care.

Magee officials acknowledged earlier this week that they had inadvertently filed in court papers that were available on the Internet the names and diagnostic information on four patients, a violation of the same federal law they had charged Kovacs with violating.

Silver said she was delighted by the settlement and "Donna's vindication. Anyone that knows Donna as I do knows the allegations are antithetical to her character."

"I never had a doubt about Donna," McCarty said. "The patients of Pittsburgh should be thankful that there's a person like her to help protect their interests."

McCarty and Silver's suits are still pending.

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