Donna & Goliath

Published in the Pittsburgh Tribune-Review December 4, 2008.

Like most big bullies, the University of Pittsburgh Medical Center doesn’t know when it’s time to quit. Last month lawyers representing UPMC and former Magee-Womens Hospital secretary Donna Kovacs appeared to have reached a verbal settlement that resolved Ms. Kovacs’ 2004 lawsuit against Magee and parent UPMC. She claimed she was fired for exposing record-keeping problems that compromised patient safety. But on Monday, UPMC was before Allegheny County Common Pleas Judge Gene Strassburger pushing for provisions to be tacked on to the settlement that, if allowed, would forever punish Kovacs for he whistleblowing.

What UPMC asked for – and which Kovacs’ lawyer (Vicki Kuftic-Horne) strenuously objected to – falls somewhere between disgraceful and outrageous.

The provisions would block or limit Kovacs from testifying in two other pending whistleblower suits against UPMC. They would prevent her from ever suing UPMC again even if she slipped and fell on its property.

And they would not only bar Kovacs from seeking employment at any UPMC facility, they would allow her to be fired if her future employer were taken over by UPMC. Perhaps UPMC would like Kovacs fitted for an electronic ankle bracelet to monitor her whereabouts? Or how about carving a scarlet “W” in her forehead?

We trust Judge Strassburger will have no trouble spotting the bad guy in this fight between Donna and Goliath.


Cause of Magee firing argued

By Walter F. Roche, Jr.
Published by the Pittsburgh Tribune-Review on November 6, 2008.

Lawyers for Magee-Womens Hospital of UPMC and a former secretary painted sharply contrasting portraits of the woman Wednesday, telling an Allegheny County jury she was either a guardian of medical records and safety or someone who deserved to be fired for improperly accessing private medical records.

Donna Kovacs was just doing her job as a secretary when she copied and forwarded medical records to a Magee physician some five years ago, said her attorney, Vicki Kuftic Horne.

She told the jury Kovacs was wrongly fired and defamed when hospital officials sought to blame her for providing the information to the doctor, who also has a pending lawsuit against the Oakland hospital.

The Kovacs case is being heard before Common Pleas Judge Timothy P. O’Reilly and is expected to continue for two weeks.

Stating that the case was about “obligations and courage,” Horne said Kovacs was really fired for her role in bringing allegations of wrongdoing and bad record-keeping at Magee to the attention of state health officials.

Paul Vey, Magee’s lawyer, said Kovacs was first suspended and then fired after two patients independently came forward and accused the secretary of violating their privacy.

In one case, Vey said, a patient had expressly requested that a surgical procedure she had recently undergone be kept confidential. He said a second complaint followed within weeks accusing Kovacs of leaking confidential medical records.

Horne said Kovacs’ job was to process medical records and transmit them to physicians. In a statement later contested by Vey, Horne said the first patient authorized the release of her records to Kenneth McCarty, one of two physicians who have sued Magee on wrongful termination charges.

She said McCarty, who is expected to be called as a witness for Kovacs, had drawn the ire of Magee administrators by raising questions about record-keeping and patient safety. Horne said McCarty and a colleague discovered that pathologists’ electronic signatures had been routinely affixed to records they had never seen.

She said Magee officials suspected Kovacs was supplying information to McCarty and wanted to make her a scapegoat. They fired her as a warning to other employees who might be cooperating with the pathologist’s inquiries, Horne said.

Vey said it was two patient complaints followed by an internal inquiry that led to Kovacs’ dismissal in late 2004.

He said a review of computer files showed that Kovacs had accessed thousands of patient files, in much higher numbers than other members of the secretarial staff. And, he said, despite repeated opportunities, she was unable to provide an explanation.

Vey said the allegations of poor record-keeping and patient safety concerns only surfaced after Kovacs was suspended and fired.

“Magee was way ahead of the curve in protecting the privacy of its patients,” Vey said, adding that he former secretary was not the only worker fired for privacy violations.

Judge: UPMC must pay settlement to former secretary

By Daniel Malloy
Published by the Pittsburgh Post-Gazette on December 6, 2008.

An Allegheny County judge set a deadline of today for UPMC to pay a settlement to a former secretary who sued Magee-Womens Hospital for wrongful termination and a violation of the state’s Whistleblower Law.

Donna Kovacs, of Munhall, and the defendants reached a settlement for an undisclosed amount last month as the trial was beginning. The suit named Magee and the UPMC Health System. But the two sides have been squabbling since then about provisions in the settlement, including UPMC’s demand that Ms. Kovacs make a statement that she knows of no other legal violations at UPMC besides what she detailed in the lawsuit.

Common Pleas Judge Eugene B. Strassburger wrote in a brief this week that such a statement is “unreasonable because it would cause the plaintiff to lie.”

Judge Strassburger also ordered UPMC to pay the settlement by today, with interest from Nov. 19. Filed in 2005, the lawsuit alleged that hospital officials altered or destroyed patient records in a way Ms. Kovacs thought was potentially harmful to patient safety.

She alerted her superiors, but instead of fixing the problems, Ms. Kovacs said, the hospital officials attacked her for blowing the whistle. Eventually she was fired in November 2004 after six years at the hospital.

UPMC said it had fired her for improperly accessing patient records, which she disputed.

“I think that she was vindicated, both through these proceedings and through the results of this settlement,” said Ms. Kovas’ attorney, Vicki Kuftic Horne.

In an e-mail, UPMC spokesman Frank Raczkiewicz wrote: “We reached an amicable resolution. We are prepared to fulfill our obligations under the terms to which all of the parties originally agreed.”

As Judge Strassburger ordered, that means Ms. Kovacs does not have to say she knows of no other crimes – freeing her to testify in other pending civil cases that allege similar misconduct by UPMC.

Deal in Magee suit in trouble

By Walter F. Roche, Jr.
Published by the Pittsburgh Tribune-Review on November 20, 2008.

An agreement to settle the whistleblower lawsuit brought by a former Magee-Womens Hospital secretary has broken down.

Vicki Kuftic Horne, attorney for former secretary Donna Kovacs, said Wednesday the hospital and its parent, UPMC, are trying to impose conditions that are “not consistent with the facts of the case” or the agreement reached only a week ago.

Kuftic Horne said that she could not elaborate because the settlement is confidential. Common Pleas Judge Timothy P. O’Reilly dismissed a jury Nov. 12 after nearly two weeks of testimony in the case once lawyers reached the agreement.

“We have a settlement, and it is enforceable,” Kuftic Horne said, arguing that hospital officials were trying to retroactively change its terms.

UPMC spokesman Frank Raczkiewicz declined to comment.

A hearing on the motion to enforce the agreement is scheduled for Friday before Judge Gene Strassberger.

Kovacs sued the hospital on charges of wrongful termination and defamation after her dismissal in late 2004 on charges she improperly accessed and disclosed patient information.

Before the trial abruptly ended, several Magee administrators testified Kovacs was never allowed to see the records they said she improperly accessed.

While hospital officials said they took action against Kovacs because of their concern for patient privacy rights, UPMC attorneys filed a document in the case that included the names and treatment information of several patients.

UPMC acknowledged the disclosures violated the same federal law it accused Kovacs of violating.

In addition to the enforcement motion, Kuftic Horne filed noticed that she will depose UPMC chief counsel Robert J. Cindrich, counsel Mary K. Austin and Paul K. Vey, a private attorney who represented Magee.

Magee admits privacy breach in whistleblower filing

By Walter F. Roche, Jr.
Published by the Pittsburgh Tribune-Review on November 11, 2008.

Attorneys for Magee-Womens Hospital filed documents available on the Internet that included the names and confidential medical information of several patients, in what hospital officials called an inadvertent violation of federal law.

The filings were made in the case of a former secretary at the UPMC facility who was fired from her job on charges that she violated patient confidentiality when she accessed and printed patient records. Donna Kovacs sued, claiming the hospital wrongfully terminated her after she raised questions about patient care and recordkeeping.

Common Pleas Judge Timothy P. O’Leary on Monday issued an order calling for the immediate removal of the data from the open court file, as an Allegheny County jury began a second week of hearing testimony in the Kovacs case.

“As soon as we learned of this inadvertent disclosure in court filings, we asked the court to seal the records,” said UPMC spokesman Frank Raczkiewicz. “This was done promptly, and the records have been sealed, and the names and details are no longer available.”

Asked if the hospital acknowledged that the disclosure violated federal privacy law, Raczkiewicz said, “Yes.”

Under the federal Health Insurance Portability and Accountability Act, access to personal health data is strictly limited. The statute is enforced by the Office of Civil Rights in the Deaprtment of Health and Human Services.

Magee has charged that Kovacs violated that very same law.

The patient data were included within several hundred pages of documents filed by Magee’s lawyers. The filing was dated Nov. 6, but only became available to the public on a court Web site over the weekend.

The information included the names of at least four Magee patients. In one document, the Social Security number and date of birth for a patient was listed along with the tests she had undergone.

Other records include those of a patient whose pap smear record had been amended and corrected. In another disclosed case, the records shows that the specimen tested actually belonged to another patient.

In court yesterday, a Magee administrator, Candis Kinkus, acknowledged that she had testified under oath that she did not know the reason for Kovacs’ dismissal in late 2004. Nonetheless, she had signed a detailed affidavit in 2005 that was submitted to the state Health Department specifically charging Kovacs with improperly accessing patient records.

In her affidavit submitted to the state, Kinkus stated that Kovacs accessed data on “hundreds” of patients “without justification” and passed that date on to two pathologists, Kenneth S. McCarty and Susan A. Silver, who are suing Magee.

Kinkus said that when she was deposed in 2007 she did not recall being aware of the reasons for the dismissal.

“I did not recall that until I was shown that last week,” Kinkus said of her affidavit.

Kinkus, who is the administrative director of the Oakland hospital’s pathology department, acknowledged that she testified in 2007 that she had not participated in a state Health Department investigation into allegations about poor recordkeeping at Magee.

On the witness stand, Kinkus agreed that she not only signed and submitted the affidavit, but went to Harrisburg with Magee lawyers to be interviewed as part of that probe.

Kinkus also said a switch to the new computer system in 2001 led to the wrong names of pathologists being placed on pathology reports.

“There was a glitch in the conversion,” Kinkus said. Asked if that glitch could have affected some 500,000 patient records, Kinkus said she did not know the exact number.

“It may have been a half-million records, but it wasn’t a half million that were ever sent out,” Kinkus said, noting that only a fraction of those archived records were ever requested by physicians.