Speaking Out

Shocking But True!

I am an alumna and an employee of the University, and I would like to share a little story with the Penn community. Perhaps for some of you this may not sound so shocking. However, I have astonished many people by telling them this story.

It happened on the evening of May 17 right on the Penn campus. It was a big day for my family since my favorite niece had graduated from SAS that day and we were all happily looking forward to celebrating over a big family dinner in Center City.

As soon as we arrived at the restaurant one of the guests, who had flown all the way from California for the occasion, sadly announced that he seemed to have lost his gift for the graduate. He remembered having put it in his suit pocket. The gift was $500.00 in cash enclosed in a greeting card with only the first name of my niece written on it.

However, we did not let that ruin our evening. I was sure that I was going to find the gift in my messy, paper-cluttered car. But when I looked, it wasn't there.

About a month later my niece stopped by to see me and she told me that her lost gift was found--all $500.00 of it was handed to her by a student of Fine Arts at Penn. The honest finder had found the envelope on the street near 34th and Chestnut, and had gone to the trouble to search for my niece's full name and whereabouts--and miraculously, she had been successful.

To show her appreciation, my niece tried to give her a gift from the money in the envelope, but she graciously refused to accept anything.

Today I would like to address this very dignified person and thank her for what she did. I only wish I could be politically incorrect and reveal her name here in bold letters and tell her how heartening it is to know that there are still good people like her in this world who may inspire others. But I must control myself and be politically correct! Please allow me to salute her here for her kindness.

--Shiva Vakili, Asian & Middle Eastern Studies and Van Pelt Library Staff

A Disputed Malpractice Case

I am writing this letter to explain to the University faculty, students, trustees, alumni and any other interested parties why it became necessary for an emeritus tenured Medical School faculty member with 25 years of service to sue the University of Pennsylvania (and win!). This is a story of callous disregard for the rights, welfare and professional reputation of an employee. It bespeaks a thought process that one would think foreign to any institution claiming to value free thought, knowledge and truth.

HUP, several other physicians and I were sued in 1993 for medical malpractice in the care of a patient during 1991. I retired in 1995 and moved to South Carolina. Trial was scheduled for October 1998. A pretrial meeting was scheduled to discuss defense strategy with the trial attorney. Several days before the meeting, he called to tell me that HUP had, in effect, decided that I was guilty, and they were preparing to offer settlement in the amount of up to $1,000,000. Their fallback position was that I certainly could not win at trial before a "Philadelphia jury" -a euphemism that I leave for them to define. This decision was made without ever discussing the case with me, the primary defendant, or seeking my opinion. I told him that I rejected this decision because in my professional opinion no malpractice had occurred, and the facts in the case refuted the allegations of the plaintiff's experts. I demanded that the pretrial meeting be held, not only with him but with someone from HUP present. Such a meeting was held (9/18/98), but from the outset it was apparent to me that nothing I could say would change their minds. Over my objection and despite the many critical facts I brought to their attention, of which they were by their own admission completely unaware, they said they were going to proceed with settlement. I had no say in the matter.

I was both amazed and disgusted by the medical and intellectual thought process which produced this decision. As instructed, on 9/21/98 I submitted my expenses for my trip to Philadelphia (9/17/98 - 9/19/98) and I then proceeded to attempt to protect my interests. Agreeing to the settlement certainly would have made my life much easier, and I would not have had to eventually spend a total of 19 days away from home and my other very remunerative work for these legal proceedings. For me, it was simply a matter of conscience and principle to defend my professional reputation and the truth. No matter whether any award was $1.00 or $100,000,000, I was not personally liable for even a penny. However, I was also aware that my former colleagues at HUP and the other physicians of Pennsylvania would eventually have to pay the proposed amount of up to $1,000,000.

The settlement would have required the cooperation of the PA CAT FUND, a state mandated coinsurance fund financed by a surcharge on the basic malpractice insurance premium paid by the physician. Under provisions in force at that time, the first $200,000 of a $1,000,000 payment would be paid by Penn (the primary insurer) and the next $800,000 by the CAT FUND. Given the intellectual and procedural intransigence of the Med School, I realized that my only hope to defend my professional reputation at trial rested with the CAT FUND. Therefore, I petitioned the CAT FUND to reject the plan by refusing to ante up the large sum required. There followed many lengthy letters and long-distance phone calls. Unlike the Med School, which professed no need to hear my opinions, the CAT FUND attorneys questioned, listened, decided that my arguments had merit and refused to participate in any settlement. If the University was able to get agreement on a settlement not to exceed $200,000, then they could proceed, and I had no say or rights at all.

No settlement was reached. I returned to Philadelphia on 10/23/98 for the first day of a 16-day trial, returning home 11/7/98 while the jury was still deliberating. On 11/9/98 the jury issued its verdict, awarding nothing to the plaintiff. That same day I submitted my second bill for expenses and requested prompt payment for the first bill I had submitted 7 weeks before. By now I had spent 19 days away from home for the two trips and had expended almost $10,000 in personal funds for transportation, meals, hotel, etc. related to this trial.

Still not having received any payment by 12/17/98 (3 months after the first bill and 1 1/2 months after the second), I wrote to Bill Kelley requesting immediate payment. From the very beginning, he had been involved in the decision process and had received copies of all correspondence. On 1/4/99 I did receive a check for about 70% of what was owed me, leaving a balance due of $2729.38. That same day I sent lengthy explanatory letters with attached full documentation of what had transpired to Roy Vagelos and Judith Rodin with the request that they look into this issue and help to bring it to resolution. Neither responded. Ten days later, I did receive a letter from HUP stating that they would be sending me a check for $1839.37 "within several weeks," but still leaving an unpaid balance of $890.01. This latter sum was for the cost of over 40 meals plus snacks and refreshments which was disallowed. They did pay for 16 meals, mostly dinners, for the 19 days away from home.

No check was forthcoming over the next 6 weeks. On 2/26/99 I again wrote to Judith Rodin demanding immediate payment or I would seek other recourse. Again, no response. I filed a lawsuit on 3/18/99 in Philadelphia Municipal Court. On 5/4/99 I did receive the check for $1839.37 promised 4 months before. "Miraculously," this check was issued 10 days after the subpoenas for the trial were served.

The trial was held on 5/12/99. Prior to the closing, the lawyer hired by Penn for its defense was asked a rhetorical question by Judge Krase as to what seemed to make the hierarchy at Penn so angry with me and what motivated them to behave as they did, given that I had saved almost $1,000,000 by insisting on a successful trial. He also said that he found Penn's actions from the beginning to be "unbelievable and disgraceful." He added that he and his children were alumni of Penn.

The judge issued his decision 2 weeks later. He awarded me the entire $890.01 still owed, interest, court costs and my expenses for returning for this trial. Penn now owes me $2552.51. Of course, they also had to pay for the services of the attorney whom they hired for the trial. I don't know what that bill came to, but I understand that Philadelphia lawyers don't come cheap, even if they lose at trial to a layman representing himself.

This crazy story is not yet over. On 6/19/99 I was informed by Penn that they were appealing Judge Krase's decision. No basis for the appeal was given. A legion of experienced trial lawyers, both here and in Philadelphia, are dumbfounded by this action! The bill for the University is growing-more legal fees and more expenses. The trial is scheduled for 9/29/99. I have no doubt that I will prevail again.

It is legitimate to question the relevance of the issues in this saga to faculty, students, other employees and alumni. So far, the sums involved are small, but the principles loom large. What has transpired with this faculty member can be translated to treatment of any employee. Furthermore, as Judge Krase suggested, one must wonder what psychic profile is involved in such decision-making. I will defer that analysis to my better qualified former colleagues in the Psychiatry Department. Finally, one must question whether squandering funds derived from tuition fees, alumni donations, and endowment principal or income to perpetuate their own private agendas at the expense of the institution represents the appropriate fiduciary role of top University officials.

HUP, as almost all academic medical centers, has serious financial problems as a result of revolutionary changes in healthcare financing. There are huge operating losses, job cuts have been announced, and salary increases may have to be cut or eliminated. Many individuals and families will be seriously adversely impacted. Given this setting, does HUP's role in this affair represent prudent fiscal policy, let alone, just simply decent behavior?

If a response to this statement is to be forthcoming, one should look to see who will provide it. Will it be Bill Kelley? Will it be Judith Rodin? Or, will some subordinate, not responsible for the decisions, be saddled with the task of explaining this novella?

--Karl Engelman, M.D., Emeritus Associate Professor of Medicine

Response to Dr. Engelman

The Office of the General Counsel notes that it strongly disagrees with Dr. Engelman's account of the management of the medical malpractice action in which he was involved and the dispute regarding reimbursement of his expenses. Inasmuch as both matters are still in litigation, however, the University is not in a position to comment other than to note that Dr. Engelman was fully reimbursed for those expenses which qualified for reimbursement in accordance with the applicable reimbursement policies.

--Peter Erichsen, Vice President and General Counsel, University and HUP

Speaking Out welcomes reader contributions. Short, timely letters on University issues can be accepted by Thursday at noon for the following Tuesday's issue, subject to right-of-reply guidelines. Advance notice of intention to submit is appreciated.--Ed.

Almanac, Vol. 46, No. 4, September 21, 1999