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Jim Kenyon. Copyright (c) Valley News. May not be reprinted or used online without permission. Send requests to permission@vnews.com. -
From left, Heather Hardy, Alicia Titzmann and Misty Blanchette Porter are part of a surgery demonstration about cutting waste from the tools and steps used in the operating room at DHMC in Lebanon, N.H., on May 9, 2013. (Valley News – Jennifer Hauck)
No matter which way the jury goes in the upcoming Misty Blanchette, M.D. v. Dartmouth Hitchcock Medical Center federal trial, the public has already won.
Pre-trial court filings have shed light on the actual reasons — and not a nursing shortage as the public was (mis)led to believe — for DHMC abruptly eliminating its division of Reproductive Endocrinology and Infertility, or REI, in May 2017.
On Monday, the scheduled three-week U.S. District Court trial begins in Burlington. (Misty Blanchette Porter lives in Norwich, allowing her to file the lawsuit in Vermont.)
The trial will almost certainly bring additional details into public view about what led DHMC to abandon a moneymaking service that helped thousands of patients for more than 30 years.
The closing marked the end of a program that had produced the first successful birth via in vitro fertilization, or IVF, in northern New England in 1987. Now for nearly eight years, patients living in the Upper Valley have had to travel to Burlington or southern New Hampshire for treatment.
Blanchette Porter, a fertility specialist, was among three DHMC physicians who were fired when the REI division closed. In October 2017, she filed a wrongful termination lawsuit, alleging that even without the REI program, she could have continued playing a role in the obstetrics and gynecology department.
“She could perform complicated surgeries that no one else at DHMC could do,” her attorney, Geoffrey Vitt, of Norwich, told me in an interview this week. “There was no reason she couldn’t have been re-assigned to ob-gyn.”
Blanchette Porter, who joined the DHMC staff in 1996, contends that not keeping her on as a non-REI physician was pretext for unlawful retaliation and disability discrimination. (In 2015, she had developed a cerebral spinal fluid leak that required multiple surgeries and two leaves of absence from work.)
A spokeswoman for Dartmouth Health, the medical center’s parent organization, told me this week that its standard practice is not to comment “on ongoing litigation.”
Dr. Joanne Conroy, the CEO of Dartmouth Health, is among the witnesses who will testify, but not because she wants to. DHMC’s outside legal team from Boston and Burlington firms attempted to quash a subpoena issued by Vitt.
DHMC’s attorneys argued that Conroy, who officially began working at Dartmouth Health two months after the REI shutdown, couldn’t offer any relevant testimony. Forcing her to take the witness stand was “nothing short of harassment,” they maintained.
U.S. Magistrate Judge Kevin J. Doyle, who is presiding over the case, didn’t buy it. In a ruling issued Thursday, Doyle found that Conroy’s “anticipated testimony may provide further evidence of Dartmouth Health’s allegedly varying explanations for the closure of the (REI) division.”
The judge pointed to a 2017 internal email from Dr. Ed Merrens, DHMC’s chief clinical officer, that suggests “Dartmouth Health was not entirely transparent about its reasons for closing the division,” blaming it on a nursing shortage.
During an interview with the Valley News in late August 2017, Conroy gave a different reason: “We were just affected by the declining birth rate in this area and it wasn’t attractive to some of the young up-and-coming providers that we would want to recruit here.”
“Until that interview, no high-level official at Dartmouth Health had cited a declining birth rate as contributing to the decision to close the REI division,” Doyle wrote. “The jury would be entitled to consider these potentially inconsistent explanations.”
From reading court documents, it became clear to me that Dartmouth Health wanted Blanchette Porter out of the picture to keep her from stirring up trouble.
What kind of trouble?
Blanchette Porter had lodged complaints to her bosses about “improper, incompetent and harmful conduct by physicians” in the REI division. Her former colleagues, Albert Hsu and David Seifer, are not parties to the lawsuit and won’t be called to testify. They both practice at medical centers affiliated with universities outside of New Hampshire and Vermont.
In emails and conversations with her superiors, Blanchette challenged her colleagues’ abilities and billing practices.
On June 3, 2016 — a year before REI’s closure — Blanchette Porter responded to Seifer’s request for her to evaluate Hsu’s job performance since his hiring in 2014. She didn’t hold back. In her opinion, Hsu’s “employment at DHMC” is “not appropriate,” Blanchette Porter wrote. She copied the lengthy email to Dr. Leslie DeMars, who chaired the ob-gyn department at the time.
“When the issues of unsafe practice and billing for unnecessary services within the reproductive medicine program were brought to the attention of (Dartmouth Health) leadership there was a concerted effort to keep those things under wraps,” Blanchette Porter told me via email.
Until last week, DHMC had successfully fought to keep the public from seeing Blanchette Porter’s email along with another physician’s unflattering assessment of how Seifer, who came aboard in 2016, and Hsu were performing their duties.
U.S. District Court Judge Geoffrey Crawford, the judge assigned to the case at the outset, twice granted DHMC’s requests to seal the documents. But at a hearing last March, Crawford announced that he was temporarily stepping away from the bench for health reasons.
Doyle took over the case, and has made his mark. In a ruling issued on March 13, the judge found that “substantial interest in public access to information about matters of public concern” outweigh the “privacy and reputational interests” of DHMC’s former physicians.
After her firing, Blanchette Porter, 62, joined the REI staff at the University of Vermont Medical Center in Burlington.
Among the expert witnesses expected to testify at trial is Robert Bancroft, a Vermont economist. In a recent court filing, Bancroft calculated Blanchette Porter’s economic loss at almost $1.8 million.
For DHMC, win or lose, the damage to its reputation for lack of public transparency could in the end prove even more costly.
Jim Kenyon can be reached at jkenyon@vnews.com.
