LEBANON — A federal judge has granted summary judgment for Dartmouth-Hitchcock Medical Center in a suit brought against the hospital by a fertility doctor who alleged it wrongfully terminated her when the Reproductive Endocrinology Program there closed in 2017.
Vermont District Court Chief Judge Geoffrey Crawford’s Nov. 3 decision acknowledged that the REI program was “dysfunctional” due to conflict between the providers there before it was dissolved.
But Crawford said that’s not sufficient to support Dr. Misty Blanchette Porter’s claims that her firing was in retaliation for her being a whistleblower or because she had a neurological condition that required her to work limited hours and with accommodations.
“The court is not blind to the harm Dr. Porter — a physician of long standing with DHMC and by all accounts a skilled clinician — experienced when she was unceremoniously ushered out of the institution where she had served for more than 20 years,” wrote Crawford in his decision. “But much of Defendants’ conduct about which Plaintiff complains is not relevant to her claims of retaliation and discrimination.”
D-H, in an emailed statement, celebrated Crawford’s decision for summary judgment on all counts, which it asked for in a filing last January.
“We are pleased with the court’s decision, which affirms our legal position and underscores our continuing commitment and efforts to providing safe, high-quality care to our patients across the region,” wrote Audra Burns, a D-H spokeswoman.
Porter, who now serves as medical director of the in vitro fertilization/assisted reproductive technology program at the University of Vermont Medical Center, is appealing the court’s Nov. 3 decision. Neither she nor her Norwich-based attorney, Geoffrey Vitt, responded to email messages this week.
In her lawsuit, first filed in October 2017, Porter alleged that DHMC had terminated her because she complained that a February 2017 transfer of an embryo risked transmission of the Zika virus because the male partner provided a sperm sample shortly after a trip to Brazil. Over several years leading up to her termination, she also complained to administrators about other providers failing to obtain patients’ consent for procedures; fraudulent billing practices; and a failure to retain staff needed to validate required data reports.
DHMC, however, said in filings that the REI program was closed, and the three physicians employed there terminated, because DHMC was unable to retain the staff needed to operate the program.
“Patients were not getting the care that they deserved, and we were not able to provide care that was to the reputation of Dartmouth-Hitchcock,” said Daniel Herrick, D-H’s vice president of perioperative and surgical services, in a deposition.
Porter sought back pay and reinstatement to her position under the New Hampshire Whistleblower’s Protection Act. She also made claims against D-H under the Americans with Disabilities Act, the Rehabilitation Act and New Hampshire and Vermont anti-discrimination and retaliation statutes; and claimed she was wrongfully discharged under New Hampshire common law.
Crawford found that Porter’s whistle-blowing complaints couldn’t be linked to her firing because the two did not occur near enough in time, and Dr. Edward Merrens, D-H’s chief clinical officer who made the decision to close the REI program, was not aware of Porter’s complaints at the time he made the decision to shut down the program.
“No reasonable jury could find that the concerns of hospital leadership about staffing levels or physician conflict were excuses they concocted to deflect attention from their true motive of retaliating against Dr. Porter,” Crawford wrote.
Additionally, Crawford found that DHMC’s decision not to retain Porter to work in other capacities after the division was closed also was not motivated by retaliation, but was because there was no appropriate position available for her at DHMC after the REI program closed.
Though Crawford said that it was clear that D-H administrators knew about Porter’s disability, which began in 2015, he said knowing about a disability is different than retaliating because of it. While Crawford acknowledged that some DHMC administrators may have made note of Porter’s disability in “insensitive” ways, he said the evidence does not show it was “part of a pattern of discriminatory comments,” he wrote.
He also granted summary judgment for a claim alleging that DHMC failed to offer Porter proper accommodations for her disability, including when she was contacted at her at home after work hours, saying that she “fails to identify a connection between the alleged lapses in reasonable accommodation and any subsequent performance deficiencies or adverse employment actions.”
In a notice of appeal filed on Nov. 17, Vitt, Porter’s attorney, outlined various issues he planned to raise in the appeal, including whether Crawford “usurped the jury’s role” by deciding disputed facts and failed to view the facts in the light most favorable to the plaintiff; whether Crawford placed too much weight on the difference in time between when Porter made her complaints and when she was terminated; and whether DHMC decision-makers were in fact aware of Porter’s whistle-blowing activities when they decided to close the program.
A conference in the case is scheduled for Jan. 14 by phone.
Nora Doyle-Burr can be reached at ndoyleburr@vnews.com or 603-727-3213.
