Comment on this article
Doctors awarded $5.5 million in lawsuit against Yale
September/October 2004
by Bruce Fellman
On July 23, after a bitter seven-week trial that pitted the right of workers to speak out on matters of public concern against the ability of supervisors to maintain discipline in the workplace, a jury awarded three Yale medical school physicians a total of $5.5 million. In their lawsuit against Yale, the doctors—Morton Burrell, Arthur Rosenfield, and Robert Smith '85MD, all of whom were faculty members in the mid-1990s in diagnostic radiology—maintained that their department had retaliated against them with demotions and pay cuts when they asserted that cost-cutting measures had compromised patient care at Yale–New Haven Hospital and resulted in Medicare billing violations. Yale, which argued that the plaintiffs were disgruntled employees engaged in a turf war with their supervisors, plans to appeal.
The suit had its beginnings in 1996, when the diagnostic radiology department, which provides X-ray, CAT scan, MRI, and ultrasound services at Yale–New Haven Hospital, found itself in a difficult position. Demand for its services was up even as HMOs and Medicare were moving to lower their reimbursements. In response, diagnostic radiology’s new chair, Bruce McClennan, instituted measures to streamline the process of reading images. The changes also enabled the department to offer around-the-clock radiology coverage at the Y-NHH emergency room. University spokesman Tom Conroy calls it “a model system.”
But radiologists Burrell, Rosenfield, and Smith, who collectively had more than 70 years of service to Yale and during the trial were described by more than a dozen doctors from around the country as excellent physicians, began to voice objections. The changes, they said, resulted in understaffing and in images being read by radiologists who were not qualified enough as specialists. McClennan and the three vice-chairs of the department disagreed with the plaintiffs' concerns, and when Burrell, Rosenfield, and Smith continued to object, the relationship between the plaintiffs and the administrators deteriorated. One vice-chair testified that Smith told of his intention to “destroy Bruce McClennan.” Attorneys for the plaintiffs introduced an e-mail in which one department administrator wrote to another, about Rosenfield, “we can take him out back and shoot him.”
In the late 1990s, the plaintiffs' salaries were cut and they were removed from administrative positions. In early 2001, Rosenfield, whom McClennan accused of being “hostile and uncollegial,” was taken off of clinical services at Y-NHH.
Burrell and Rosenfield eventually took their allegations to Richard Levin. The president initiated an internal investigation conducted by the Washington, D.C., law firm of Hogan and Hartson and supervised by then-medical school dean David Kessler. The probe found no wrongdoing, and in a post-verdict statement the university said, “We are certain that patient care has never been compromised in this department and that the department has always complied fully with billing regulations.”
The plaintiffs called the probe a “whitewash.” Smith, who left Yale in 1999 and is currently finishing law school, has brought a false-claims action against Yale and Y-NHH on the billing violation issue in federal court in Connecticut.
When the trial began in Waterbury Superior Court on June 1, 2004, the six-member jury was not charged with determining the truth or falsehood of the radiologists' patient-care allegations. In a pre-trial agreement, the university accepted that the radiologists had a “good faith” belief in the veracity of their charges. At issue was how the doctors' complaints were handled.
“Generally, there is no right to freedom of speech at work,” says David Bernstein '91JD, a professor at the George Mason University law school who has written about workplace speech issues. However, federal and other public-sector employees “can’t be fired for engaging in speech meant to prevent illegal, or in some cases, immoral activities,” Bernstein notes. Connecticut, unlike most other states, extends those protections to workers in the private sector. But it does not protect speech that would interfere with the employee’s performance or relationship with the employer. Yale contends that the radiologists fit the latter category and were disciplined fairly.
The jury also had to decide whether Yale’s faculty handbook, which affirms “the right to think the unthinkable . and challenge the unchallengeable,” constituted a legally binding contract that guarantees free speech. The university argued that the handbook protected only intellectual discourse, not complaints about working conditions.
The jury decided against Yale and also awarded punitive damages, which are still to be assessed and are limited to the plaintiffs' legal fees.
In its appeal, Yale plans to reassert that its actions in a “workplace dispute” were “not in violation of the statute or the faculty handbook,” says Conroy. “This is not the end of this matter.”
Overhauling the Bowl
by Jennifer Kaylin
Charles Johnson '54 is the first to admit he wasn’t the greatest football player Yale has ever seen. But he still remembers the exhilaration he felt when he charged onto the gridiron to play guard for the Bulldogs.
“It’s not as imposing from the outside as it is from the inside,” he says. “It was a great thrill to be in the Bowl as a player.”
That’s why, when Johnson heard there was an effort under way to raise money to refurbish the deteriorating 90-year-old stadium, he was happy to help. In June, Johnson pledged $5 million for the project, which was matched dollar for dollar through a fund set up by his graduating class as part of its record $120 million reunion gift. When the work is completed, the Bowl’s playing field will be christened the Class of 1954 Field.
Johnson and his class more than doubled the $8 million that already had been raised for the project, which is expected to cost around $27 million overall. The fund-raising effort is being spearheaded by former Yale football coach Carm Cozza, who spent 34 years at the Bowl. “When I first got here, it was a magnificent facility,” Cozza recalls, “but as the years progressed, you could see more and more deterioration. The concrete was peeling off. The seats were constantly having to be replaced, and the press box actually burned down.” Cozza, who retired as coach in 1996, has spent the last five years soliciting donations from former players and from other friends of Yale football.
Much of the project involves repairing and restoring the Bowl’s crumbling concrete walls and portals, iron gates, and seating. Also, the press box, corporate skyboxes, and scoreboard will be replaced, a new ornamental fence will surround the Bowl’s entire block, and a “Bulldog Plaza”—featuring the names of every Yale football player since 1872—will provide a grand entrance from Central Avenue, where most people now enter the stadium.
Except for the new fence, which should be in place for the home opener against Colgate on October 2, work on the Bowl probably won’t start until the end of the upcoming season. The university has not yet hired an architect or determined the final price tag and construction schedule. Director of athletics Thomas Beckett says he doesn’t anticipate any interruption in the football program while the work is being done.
When the Bowl was built in 1914 to the design of Charles A. Ferry, Class of 1871, its enclosed ellipse was a first among modern stadiums, though it was modeled on the ancient Roman amphitheater at Pompeii. It cost $750,000 to build and served as a model for other stadiums, including the Rose Bowl. The 64,000-seat structure has hosted hundreds of collegiate football games, two seasons of National Football League action (when the New York Giants were between stadiums), and the 1995 Special Olympics World Games. It is listed on the National Register of Historic Places, but for football fans, the main appeal is that every seat offers an unobstructed view of the field.
Beckett sees the benefits of the upcoming renovations as extending beyond the football program to the New Haven community, since the Bowl and the football team are highly visible parts of Yale: “The Bowl connects people to the university in a way we want everybody to be proud of.”
Just another night on the bison-tongue circuit
by Mark Alden Branch '86
To make the mixed drink known as a “hailstorm,” put bourbon, a sweet syrup, a sprig of mint, and crushed ice in a mason jar and shake vigorously. After two or three of these, the Calhoun College dining hall might pass for a frontier mess hall, which was more or less the goal on June 10 when the Howard R. Lamar Center for the Study of Frontiers and Borders put on its Great Buffalo Roast, a fund-raiser that promised “an evening of frontier food and frolic” for $125 a plate.
The guests, who included supporters of the Beinecke Library and members of the New Haven Lawn Club, responded with varying degrees of boldness to the invitation’s call for “festive attire.” Some settled for just a smidgen of denim, but others fished cowboy hats, shirts with fancy stitching, and turquoise necklaces out of their closets. Harry Welch '50, former president of Yale–New Haven Medical Center, Inc., completed his convincing hat-boots-and-duster ensemble with a lariat. And sporting a bolo tie he admitted he hadn’t worn in five years was Western historian and former Yale president Howard Lamar '51PhD, for whom the Lamar Center was named.
Over cocktails, Lamar Center associate director Jay Gitlin '71 explained what the dinner was all about. “There’s a lot of fellowship money available to graduate students for international research, but it’s hard to get funding for domestic research,” he said. The dinner, the first such fund-raising event for the four-year-old center, was to support research by Yale graduate students in Western and frontier history.
Meanwhile, Sam Arnold '47 watched the room as waiters passed around trays of bison tongue (on toast with capers) and Rocky Mountain oysters (fried and served with cocktail sauce, and tasting like chicken if you tried not to think about it). The youthful-looking Arnold (“I have Ronald Reagan’s barber,” he explained), who was responsible for the evening’s cuisine, owns a restaurant outside Denver called The Fort, a replica of a nineteenth-century adobe fort and trading post called Bent’s Fort that was frequented by Kit Carson and other mountain men of the day. Arnold, a native of Pittsburgh and former advertising executive, built the fort with his wife in 1962 as a home. Then they opened the restaurant on the first floor, to pay for it. “It cost more than I imagined,” he said.
Since then, Arnold has himself become a scholar of pioneer life on the Santa Fe Trail, particularly its culinary aspects. Over dinner, as videotaped scenes of him making beef jerky were projected on the side of a covered wagon, Arnold talked the guests through the menu: a chicken-and-garbanzo bean soup that Kit Carson’s wife used to make, thick slabs of roasted prime rib of buffalo, and a rice pudding dessert from Arnold’s book Eating Up the Santa Fe Trail. He also taught the crowd his “mountain-man toast” (and helpfully annotated it): “Here’s to the child [mountain men] what’s come afore, and here’s to the pilgrims [settlers] what’s come arter. May yer trails be free of grizz[lies], yer packs filled with plews [beaver pelts], and fat Buffler in yer pot! Wah! [Lakota Sioux, Arnold claims, for “Right on!"]” Although the crowd looked to be more accustomed to chicken cordon bleu and gin-and-tonics, the “Wah"s were surprisingly hearty.
TAs and unions
by Kate Moran '02
Two setbacks in the last year and a half have left the graduate-student unionization movement at Yale on fragile footing. The Graduate Employees and Students Organization on campus took its first hit in a nonbinding referendum in April 2003, when students voted against its push for union representation. Now the group has to contend with a federal decision that limits the power of labor at all private universities.
In a case involving graduate students at Brown University, the National Labor Relations Board ruled in July that teaching assistants are primarily students, not employees, and do not have the right to bargain collectively. The 3-2 decision was a reversal of one the board made just four years ago, when it said that students at New York University did have the right to organize. All three members of the majority in the Brown case were appointed by the Bush administration.
Critics of GESO predicted the decision would hobble the group’s ability to recruit members, but chair Mary Reynolds insists it is not the coup de grace. She asserts that the ruling was politically motivated and out of touch with the realities of graduate life. GESO, she says, will still press Yale to recognize a graduate students' union voluntarily.
But the Yale administration has steadfastly opposed unionization, which it says could drive a wedge between graduate students and their professors and throw a bureaucratic straitjacket over graduate programs it says should be adaptable to each student’s needs. Provost Susan Hockfield applauded the labor panel’s decision for reestablishing a 25-year-old precedent that had been upended by the NYU verdict.
“Decisions about education need to rest in the hands of the academy,” says Hockfield, the former dean of the graduate school. “It would be unfortunate if the educational activities of a university were open to intrusion by non-educational bodies.”
Hockfield argues that, because Yale jockeys with other top universities for the best graduate students, it must offer a competitive financial aid package with or without a union. But even some student critics of GESO venture that the threat of unionization has kept the university honest.
“The administration has often claimed that it wasn’t GESO’s presence that prodded them to raise stipends and address health care and visa issues. I found this position a bit disingenuous,” said Matthew Robb of At What Cost?, a group critical of GESO’s tactics. “But Yale wants to be competitive with other grad schools, so some of these issues are not going to go away, GESO or no GESO.”
Matt Glassman, another GESO critic, said the labor board’s decision stripped the union movement at Yale of any real firepower. However, he predicted that GESO—which has survived for more than a decade—would maintain a stubborn presence as a campus watchdog.
“They’re still going to kick and scream at the university, but they’re never going to have the possibility of inflicting the bureaucratic nonsense that would come with a real union,” said Glassman, a leader of a loosely organized opposition group called GASO. “It’s great for the average graduate student.”  |
