Physician Advances Retaliation Claim Following Hospital Firing

Takeaway: While employers can fire and report professional employees for alleged misconduct, they should do so only when the facts clearly support it.

A federal appeals court has revived a physician's retaliation lawsuit, finding that his employer may have conducted a biased investigation and unfairly reported him to a state medical board after he complained about sexual harassment by a colleague.

Centura Health Corp. is a not-for-profit corporation that operates a regional health care network. One member hospital is St. Catherine Hospital (SCH) in Garden City, Kan. The plaintiff is a medical doctor licensed to practice medicine by the Kansas Board of Healing Arts (KBHA). Centura and the SCH jointly employed him as a general surgeon and internist at the SCH from 2012 until February 2020. He served as chief medical officer from 2013 to June 2019. 

In August 2019, the plaintiff reported a fellow doctor at the SCH for sexual harassment. He raised concerns about the doctor's handling of a type of operation, his failure to wear gloves during sensitive exams, and his sexually explicit comments to and touching of nurses. He based the sexual harassment allegations on reports from two nurses who feared retaliation for complaining.

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The president of the SCH's Medical Executive Committee (MEC) and the HR director investigated. They separately talked about the allegations to one nurse, who did not remember the details of her conversation with HR, except that she said the alleged harasser had touched her in a way that was weird and inappropriate. The HR director stated the nurse reported nothing inappropriate. The investigation substantiated the allegations about the harasser's lack of hand hygiene and uncovered a nurse's note disagreeing with his patient care.

The MEC president then met with the full MEC and shared the plaintiff's complaint and claimed that he investigated the allegations. The parties disputed what information he shared about the investigation and whether he told the MEC that one or all of the plaintiff's allegations were false. Yet, in October 2019, the MEC president, vice president, and physician executive all informed the plaintiff that his allegations lacked merit. The plaintiff challenged the adequacy of the investigation. In November 2019, the MEC again discussed concerns about the alleged harasser and the plaintiff's insistence that his allegations were true. That month, the SCH reappointed the plaintiff to the medical staff, verifying his competence and commitment to quality care.

In December 2019, the MEC president told Centura's general counsel that the plaintiff made false allegations against the alleged harasser. He also signed a letter to the plaintiff stating that the MEC unanimously agreed that it was in the best interest of the hospital and medical staff for the plaintiff to undergo a psychological evaluation. 

The plaintiff responded by email to the new MEC president stating that the letter amounted to whistleblower retaliation and demanding that it be retracted. The new MEC president agreed to retract the letter.

On Jan. 27, 2020, the SCH received a subpoena from the KBHA demanding information about the plaintiff based on an anonymous complaint filed with the KBHA against him. The complaint alleged that the plaintiff had multiple alarming, adverse outcomes, including multiple patient deaths, an unusually high number of nicked bowels during surgeries, and a well-known incident of sexual relations in the hospital treatment rooms with nurses. It also stated that the medical staff had advised the CEO that the plaintiff was unsafe and needed an assessment due to his erratic behaviors and dangerous violations of the standard of care.

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The plaintiff claimed that the alleged harasser had filed the KBHA complaint against him in retaliation for his complaint. He denied the KBHA complaint, which the KBHA later dismissed, and told the physician executive that much of the medical staff refuted the allegations. 

Based on the KBHA complaint, Centura's general counsel initiated an internal investigation of the plaintiff. Centura interviewed 12 executives and medical staff, but did not interview the plaintiff himself, who they claimed was out of town and represented by counsel. Yet they interviewed the alleged harasser with his lawyer present. They did not interview any nurses.

In February 2020, the physician executive and the Centura's general counsel reported the results of their investigation to Centura's president and group president, who decided to fire the plaintiff. Many months after his firing, the SCH reported four of the plaintiff's cases to the KBHA. The KBHA investigated the cases and ultimately decided its investigation in the plaintiff's favor.

The plaintiff filed a complaint with the U.S. Equal Employment Opportunity Commission, alleging retaliation under Title VII of the Civil Rights Act of 1964. He then filed a federal court complaint against the SCH and Centura. The defendants filed a motion for summary judgment, which the court granted. The plaintiff appealed. 

On appeal, the 10th U.S. Circuit Court of Appeals noted that the SCH and Centura never gave the plaintiff the benefit of the doubt in the investigation of the plaintiff leading to his firing. Centura did not contact favorable witnesses, and did not interview the plaintiff with his counsel, while it did so for the alleged harasser. Thus, the plaintiff could show that the investigation was unfair and biased. 

The court found that the SCH's conduct reporting of the plaintiff's cases to the KBHA was similarly biased, as it had not reported other doctors in similar circumstances. Therefore, the court reversed the district court's decision on summary judgment and reinstated the plaintiff's retaliation claims.

Byrnes v. St. Catherine Hospital, 10th Cir., No. 24-3149 (Oct. 30, 2025).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.