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J UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE PORTLAND DIVISION JAMES MURTAGH, M.D, Plaintiff, v. ST. MARY S REGIONAL HEALTH CENTER, a/k/a ST. MARY S HOSPITAL, ST. MARY S HEALTH SYSTEM and IRA SHAPIRO, M.D. and JOHN DOE 1 THROUGH 10 and JANE DOE 1 THROUGH 10, Defendants. Case No. 2:12-cv-00160 NT

Affidavit of James Murtagh in Opposition to Motion to Dismiss My name is Dr. Jim Murtagh. I am the Plaintiff in this action. I am supplying this testimony in support of my opposition to the Defendant s Motion. It is based on my personal recollection and knowledge. I have been sworn an oath to give testimony under penalty of perjury and testify as follows:

1) In 2012, I was retained by Vista to work at St. Mary s Hospital as a critical care pulmonary doctor pursuant to contract with a minimum term of 90 days that identified me as an independent contractor. I was aware that Vista s contract identified me as the professional in the three way agreement with Vista, the agency and the client , the hospital.

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2) I had a history of blowing the whistle against Emory University Medical Center for fraud at the time of my hiring and going to work at the hospital. 3) I began my term and worked every day, earning substantial overtime. At the time of my dismissal, I had approximately 64 days to continue to work at $2,000 per day. 4) While working at St. Mary s, I noticed the staff routinely up coded billing to third parties. I had discussed my concerns about up coding with the Pulmonary Practice manager Gail. At the time of my release, I had just assembled enough information to raise my concerns with the Medical Staff and HR. 5) The night before I was terminated, I discussed my concerns with VISTA representative James Gibbons and my concern that if I could be fired for even raising the issue and be unable to defend myself if locums doctors are not give due process. Mr. Gibbons shared my concerns and stated that he would help me present evidence to NALTO (the National Association of Locum Tenens Organizations) to protect us against preemptive terminations. 6) Following this meeting, I sent Mr. Gibbons extensive emails documenting these concerns then forwarded my concerns to NALTO. I documented that failure to give doctors due process violates CMS and JCAHO rules and regulations. Due process for all doctors, especially locum tenens doctors, is
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essential in protecting patient quality of care and in the prevention of creating a chilling effect on freedom to report problems to appropriate authorities. A locum tenens doctor is the ideal objective observer, but the Hospitals ability to deny any form of review of the reason for termination prevents locum tenens doctors from performing this valuable service. 7) I did not know when I spoke to Mr. Gibbons that VISTA and CompHealth are related organizations, and were at one time a single organization. I did not understand the economics of the relationship between the Hospital (client), the Professional (the doctor or myself) and the Agency (Vista). I thought Vista was representing me. 8) I learned of my pending termination hours before being escorted out of the hospital. One of my colleagues at the hospital, Peter Leavitt, a Respiratory Therapist who was also the Director of the ICU, advised me he was approached by the Hospital Staff (he would not name who) and asked to sign a letter or an affidavit attesting to the fact that I was incompetent and was not providing proper medical care. He advised me he refused to sign because it was false. 9) When I was released, I was not given any reason why. I did not receive any stated reasons from H.R.; I was not given reasonable findings or any type of due process.
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10)

I was told directly by Dr. Shapiro, in writing, that my release was not

a termination and was not for cause . When I asked about corrective actions, he advised it was not related to any corrective action , meaning that it was not for cause or any other reason associated with my performance. Dr. Shapiro emphasized that there would be no adverse consequence for me and that I should not worry. 11) Had I been told that I was being terminated for cause or poor

performance, I would have insisted on a detailed explanation and an opportunity to defend my reputation before leaving Maine. I did not challenge the decision based on Dr. Shapiro s representations. 12) I was also told by the CMO [Dr. Unsiker] of VISTA that he had

personally investigated the events leading to my termination and that I had done absolutely nothing wrong, and that in fact I had met or exceeded the standards of St. Mary s .

13)

Only later did I learn that Dr. Shapiro claims he has communicated to

Vista that advised I was released for "unsatisfactory" performance. I have not seen his communication to Vista, and indeed, Dr. Unsicker of VISTA told me that Shapiro had refused to send Vista such a letter.

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14)

The unsatisfactory performance claim was an incredible claim, not

based in fact, used by Dr. Shapiro to avoid paying a fee to Vista. Dr. Unsiker s investigation was the only reasonable findings ever given to me. I never heard of any other investigation. I assumed Dr. Shapiro would not contravene his own investigation to simply save a few bucks and sacrifice my reputation.

15)

I wrote several emails to Dr. Shapiro, and to VISTA, that since I had

been cleared I looked forward to returning to duty at both entities.

16)

Though I patiently waited for another Vista assignment [the premium

assignments for locums doctors], none came. Vista subsequently refused to place me into other hospitals in their system. On Sept 10, 2010 I was informed by Nick Daskalas VISTA Vice President, H.R. and Shared Services that despite Dr. Unsicker s report, VISTA would no longer place me. Daskalas did not give a coherent reason.

17)

I became concerned in Sept 2010 when I had been accepted as a

permanent member of the Cleveland University Hospitals. I was informed

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that the CEO of the hospital I was working with received a call from Dr. Shapiro. Immediately after that call, I was told to leave the University Hospital premises and to not return. 18) Several recruiter companies dropped me in the fall of 2010, when they

learned that Dr. Shapiro was writing letters making false allegations about me. Both Alex Grabowski and Steven Belk of Locum Medical refused to do business again with me. Before the Shapiro call to UH, Locum Medical was presenting me to lucrative short term and permanent employment. 19) At that time, the Whitiker Company had more than six different

opportunities for me to begin work at. Whitiker dominated the Ohio market. Shortly after Shapiro contacted UH, Whitaker also refused to do business with me. 20) In Feb 2011, Alliance recruiting was placing me at more than three

different Mercy Hospitals. Alliance found out that each Mercy hospital has access to a central database regarding doctors. The unsatisfactory performance letter from Dr. Shapiro was in this database. 21) Alliance recruiting was not able to place me. I was told that I could

not be hired in a Catholic hospital anywhere in the nation.

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22)

In March of 2011 I was on the staff of Jewish Hospital in Cincinnati.

After my first night on the job, I was told to leave because Jewish Hospital had obtained a copy of the Shapiro letter. 23) In Nov 2011, the CEO of Baptist Hospital in Columbus also asked

me to explain the negative letter that Shapiro had written to him. 24) 25) On 12 21 2012 Marlin Jemerson of Alliance Recruiting called me. Mr. Jemerson was in the process of attempting to place me in a

position with a hospital (employment).

26)

Mr. Jemerson advised that he had obtained a copy of a letter dated

12/14/2010 from Ira Shapiro of St. Mary s Hospital, Defendant in this action.

27)

Jemerson called this to my attention because he claimed that it

precluded him from placing me in various assignments and he asked for details. I advised him that this was only to allow St. Mary s to escape from its contractual commitment to Vista, but he advised he could not place me due to this letter.

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28)

Jemerson asked me what happened at St. Mary s, but I was forced to

advise him I had no details because St. Mary s refused to provide any, that there was no hearing and that I had received no patient complaints.

29)

Mr. Jemerson advised me that if this was untrue that I should take

action because the recruiting network viewed this very negatively and that it would cause me great difficulty with placements and was likely defamatory.