Postgraduate Medicine
ISSN: 0032-5481 (Print) 1941-9260 (Online) Journal homepage: http://www.tandfonline.com/loi/ipgm20
Who Was the Phantom Accuser of 15 Doctors? Glen C Griffin MD To cite this article: Glen C Griffin MD (1992) Who Was the Phantom Accuser of 15 Doctors?, Postgraduate Medicine, 92:3, 29-40, DOI: 10.1080/00325481.1992.11701437 To link to this article: http://dx.doi.org/10.1080/00325481.1992.11701437
Published online: 17 May 2016.
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Date: 19 June 2016, At: 10:36
EDITORIAL
WHO WAS THE PHANTOM ACCUSER OF 15 DOCTORS?
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Glen C. Griffin, MD "Help me understand," I said to the OSHA official who recently sent out a batch ofletters by certified mail to 15 or so doctors in an area of New Jersey. "How could all of these people have the same complaints filed against them?" The answer was that someone had filed a complaint naming doctors in approximately 15 offices in this one community-all of them supposedly having broken the same three OSHA rules. But they didn't, at least not the doctors I know about. And if they had broken these rules, how could any one person know enough about the offices of 15 different doctors to know that they were not offering hepatitis vaccine to their employees, were not disposing of contaminated needles properly; and were not using gloves when there was a reasonable anticipated exposure to blood? After personally investigating this case, I've found that many things just don't add up. From what I have seen and heard, many of the charges against the doctors appear to be completely false. Let me backtrack a little. I first became aware of this case when Deborah Wozniak, MD, an internist in Bayonne, New Jersey; sent me a copy of an intimidating letter she had received from OSHA
stating that a complaint had been received about her for so-called hazards in her office (see box on next page). Dr Wozniak enclosed a copy of her reply to OSHA refuting all the charges and even giving specific dates when she had complied. I called Dr Wozniak several times over the next few days. The more I learned, the more obvious it became that something very unfair was going on-especially when I learned that other doctors in and around Bayonne had received
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similar letters from OSHA. Who could have made these charges? Could there be anything to them? What was going on? I decided to fly to New Jersey to take a look for myself The more checking I did, the more bizarre the matter became. In Bayonne, I stopped by to see Gerald A Goldman, MD, a urologist who also got an OSHA letter. One of the things it claimed was that gloves were not being used in continued 29
EDITORIAL CONTINUED
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US Department of Labor Occupational Safety & Health Administration Dear Doctor ... : The Occupational Safety and Health Administration (OSHA) has received a notice of (safety and/or health) hazards at your worksite. The specific narure of the alleged hazards is as follows: 1. Contaminated needles are not being disposed in a proper
manner during office procedures; Ref 29 CFR 1910.1030 (d) (4) (iii) (A). 2. Gloves are not utilized by employees when there is reasonably anticipated exposure to blood; Ref 29 CFR 1910.1030(d)(3). 3. Hepatitis B vaccinations are not offered to employees who have reasonably anticipated exposure to blood; Ref29 CFR 1910.1030(£)(1).
... Letter continues for 2 112 more pages . ..
Sincerely, Area Director
his office when exposure to blood was anticipated. But Dr Goldman doesn't even draw blood or do any blood tests in his office. He sends all his patients who need lab tests to the nearby Bayonne Medical Laboratories. The OSHA letter
30
also alleged that he didn't offer his employees hepatitis vaccine. Dr Goldman was bewildered by this claim, because he runs his office alone and doem't have any employees. As far as Dr Wozniak herself,
other doctors in town, hospital staffers, her own employees, and patients consider her an outstanding physician who is compulsively determined to do things right. She starts her day at the hospital at 7 AM making rounds, then heads for the office where she sees patients all day, and then goes back to the hospital, often finishing up and going home around 11:30 PM. Besides working long hours, she is particularly conscientious about the quality of her patient care. "I was shocked when I read the letter that carne by certified mail from OSHA claiming that someone had reported I'd broken OSHA rules," she said. The letter that she and the other doctors received said that "an inspection is not intended at this time" but "a written response is requested within 20 days with supporting documentation and photographs which you believe would be helpful." Suppose you had just received such a letter. Everything would probably be a blur and your head would probably feel like it was spinning. You might think it was a bad dream, as Dr Wozniak did. Just imagine-along with all the clinical and other problems she faced that day, she was hit by the feds with false charges. You might be thinking right now that this couldn't happen. But it did. And Dr Wozniak had complied continued
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with the rules---even before they were rules. She has been using sharps containers in her office since 1980, and for several years these have been safely disposed of in regulated waste, which costs her an extra $50 a month. Going beyond the rules, she has offered sharps containers free of charge to her diabetic patients. And contrary to the false accusations, Dr Wozniak did offer hepatitis B vaccine to her employees in Mayof1992. She and two ofher three employees received the vaccine. The one who didn't was Christina Allen, a bookkeeper and insurance clerk who has worked with Dr Wozniak for 7 years. "Tell me what you think of Dr Wozniak," I said to her during my visit. "She's fantastic," Ms Allen replied. "I've never seen anyone like her. She is a very caring doctor. She takes care of my family and is excellent." "Is there any way that these OSHA charges could be true?" I asked. "No!" she replied emphatically. "Dr Wozniak is very strict about these things. Whenever anyone takes care of blood or cleans up, Doctor always insists that the person wear gloves and use bleach. We are very careful." "Did she tell you about hepatitis vaccine and ask ifyou wanted it?" ''Yes, I just didn't want it. And Doctor told me how serious this
is and what might happen, but I didn't want it." Also contrary to the charges, Dr Wozniak has made single-use gloves available since the time she opened her office in 1980, long before the July 6, 1992, bloodbome pathogens went into effect. The required training sessions for employees were also provided and attended. I not only saw Dr Wozniak's methodical and complete documentation records, but I have copies of several of the significant ones. So what went wrong? Who made these false charges against Dr Wozniak? Dr Wozniak herself never did believe it was one of her employees. She trusts them completely. But think of the mistrust such charges could cause in many offices and clinics. Rosemary Marino, RN, has been the office nurse ever since Dr Wozniak opened her office 12 years ago. "Is there any possibility any part of this OSHA complaint could be true?" I asked Ms Marino. "None," she answered. "We have done everything OSHA has required of us. All the hazardous containers are labeled. And going back 12 years to when Dr Wozniak first started in practice with her first seven patients, there has never been a needle discarded anywhere but in a sharps container. We have never
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discarded anything inappropriately here." "How about gloves?" I asked. "We have been using disposable, single-use gloves, gowns, speculums, and scalpels since long before OSHA came out with all these regulations. And used scalpels and broken glass always have gone in sharps containers," Ms Marino told me. "How would you describe Dr Wozniak-her character, honesty, and other things?" I asked. "She has an impeccable reputation'' was the answer. "Rosemary, is it possible that an unhappy patient filed these charges?" I continued. "Weve never had a complaint from a patient-about anything," she answered. I also talked with Maria Alvarado, the third member of Dr Wozniak's staff. She also had nothing but praise for her boss. So what has been going on in Bayonne? OSHA says that someone "who should have reason to know'' filed a complaint against "approximately" 15 doctors in the area. And OSHA tells us that in doing its duty, it responded to this "nonformal complaint" by sending the letter to all of them. OSHA also sent a similar letter to Sam Lichtenfeld, who has owned and operated the Bayonne Medical Laboratories for many years. I dropped in unannounced continued 33
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to see Mr Lichtenfeld, and he willingly showed me his OSHA compliance documents--and even made copies of several of them for me. He also invited me to inspect his lab, which I did, only to find that all the OSHA bloodbome pathogens requirements I knew about were being followed. In most cases, complaints of noncompliance with OSHA regulations are made by employees--or ex-employees. However, in this case the OSHA official involved told me that the accuser was not an employee. But how about a former employee? In my talk with Dr Wozniak's nurse, I asked, "What about any ex-employees? Could one of them have been unhappy and filed these
maybe by a lab services person whose lab was no longer being used by these offices? Possibly. Or could it have been another doctor in the community, perhaps one who had been disciplined by hospital staff colleagues? Maybe. But is it likely that a disciplined doctor would be angry enough at 15 other doctors in the community and the operator of an independent laboratory to file complaints, many of which seem to be completely untrue, about them all? It was while I was trying to put the puzzle together that I called the OSHA official in New Jersey who had signed the letters. And he did give us several clues. One of the important things to understand about these secret complaints made to OSHA is the difcharges?" ference between a formal and a "We don't have any ex-employnonformal complaint. ees except my daughter, who was a I was told that a formal comsecretary before she had children, plaint is a written one, generally another young woman who moved made by an employee. And I was to Florida, and one other who just told that a formal complaint results worked a little part-time. We have in an immediate, unannounced never fired anyone." on-site inspection. And how likely would it be But I wanted to know about that one doctor's former employee so-called nonformal complaints would do such mischief to anumlike the ones the Bayonne doctors ber of different doctors in a comreceived. So I asked the OSHA munity? Not very. official, "What do you mean by a So who else could have connonformal complaint?" vinced OSHA that he or she knew The first answer was astonishthat all these doctors, and the lab, ing: were in violation? Could these "Well it was nonformal ... from charges have been made by a disthe standpoint we considered it gruntled vendor or supplier, or nonformal. What I mean by that 34
is, it was not a signature that we could, that we could deal with, basi-
cally." "I don't understand that," I said ''A formal complaint is made by an employee, first and foremost." To make sure I understood about the complaint filed regarding the Bayonne doctors, I asked, "So was this complaint made by an employee?" The answer was very definite: "No, it wasn't. And that's why it did not result in an on-site inspec. " non. I also queried one of OSHA's Washington spokespersons about letters like those received by the doctors in Bayonne. She explained, "It's good news if a doctor received a letter like the one you describe. Ifwe had really taken the complaint seriously; we would have made an immediate, unannounced . . " mspecuon. She seemed to know exactly the kind ofletter I was talking aboutsomething that seemed quite routine for OSHA She went on to say that if the doctor responded properly; the case would be over. Neither of the OSHA officials I talked with seemed to understand how disruptive it is for a doctor, or any employer, to receive such a letter. It was obvious that OSHA's interest is in the safety of employees-which of course is vitally important. But the more I learned, the more obvious it became that very little consideration is given to
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the fairness of the system that allows false charges to be made with no responsibility on the part of the accuser. During my talk with the OSHA official in New Jersey, I asked, "Who else besides an employee would make a complaint?" The answer was, "Just about anybody can make a rwnformal complaint. We get these all the . srr.· ." nme, My mind was spinning, thinking about people all over the country filing complaints against all kinds of employers. So I asked, "How often do you get nonformal complaints?" "Probably two or three a day-
everyday." "Do you always send out letters?" I asked. The OSHA person answered, "If they're nonformal complaints, I do,yes. " I thought I was finally catching on and asked, "So in other words, this isn't just about doctors' offices,
..
~"
1S lt.
"No, no, not at all," he answered. In other words, businesses and industries all over the country, some ofwhich may have violated OSHA regulations and some of which have not, are getting intimidating letters ftom OSHA every day-based on nonformal complaints, some ofwhich are true and others ofwhich may have been fabricated. This doesn't seem fair. I couldn't help asking, "You
mean if I don't like somebody; I can make a complaint against them.~" He tried to reassure me that OSHA tries to screen complaints "the best we can," but he made it quite clear that one of these intimidating letters goes out to essentially any employer about whom any complaint is registered. "The bottom line is, even when there's any doubt in our minds as to the authenticity of the allegations, we still have to put that aside, unless the claim sounds totally crazy." While explaining that anyone could make a nonformal complaint, he gave the example that a patient might complain about a doctor who worked on him or her without changing bloody gloves ftom the previous patient. This example was not intended to refer to any of the doctors in the Bayonne complaint, but I wondered if he was telling me that the Bayonne complaint was filed by a patient. So I asked, "Was this nonformal complaint made by a patient?" He quickly said, "I can't tell you that," adding that all he could say was that it was a person who identified himself or herself as "someone who would have reason to know these things." I still wanted to know why so many doctors in and around Bayonne had received the same letter ftom OSHA So I asked how many doctors were listed on the
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complaint. At first he said, "I don't know oflhand." I persisted: 'Well, were there 10 doctors or 20 or 100 or ... ?" "No. Itwasapproximately 15," he answered, this time not hesitating. "Help me understand," I said. "How could you explain that almost identical letters were received at 15 offices? How could these doc-· tors all do exactly the same things
wrong.~" He didn't answer my question but just repeated that his agency's mission is to protect the safety of employees. As we talked, the OSHA official said that he could not tell me anything about the identity of the person who made the Bayonne complaint. "We are absolutely unable to do this-under penalty of law," he said. I still thought the process of sending letters out to a bunch of people on the basis of a complaint by one person was unfair. So I asked, "Had you talked in your office, before these letters went out, about how legitimate a blanket charge could be-ftom someone whose signature you can't even read? Was there a signature on there.~" He answered, ''Yes." Recalling that earlier in our discussion he had said it was "not a signature that we could deal with, continued on page 39 35
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basically, " I persisted-feeling it was important to know how legitimate this complaint was in the first place. I still didn't know what he meant about not being able to deal with the signature. So I concluded, and suggested again, that maybe they couldn't read the signatureand thus didn't have a name. He quickly responded, "I'm not saying that, sir. You're making a
charge." I explained that I thought that was what he had told me. He
quickly said, "No, I didn't." So I repeated that I thought he was telling me this was not a formal complaint because OSHA really didn't have a name that they could identify. He denied this completely; saying, "No, I didn't say that. If I said that, I was ... it was incorrect." He suggested that I ask the questions again and he answer them again. So I did. "Do you have a d.ocwnent that charges these 15 doctors with these complaints.~" He ailSWiered, uv:res. " He also answered "Yei' when I asked, "Is it signed?" I followed up again: "Is it signed by a person who is identifiablewhom you can identifY? Do you have a name and an address of the person?" His response was, "All I can tell you is that I have a name." At this point I brought up a completely different possibility: ''Another theory is that there never
was a complaint to begin with." He said that this was "totally un-
founded and totally untrue." I went back to the point about how disruptive and threatening letters from OSHA could be to doctors or other employers who receive them. He asked how the letters could be threatening. I explained that in the first place, this can cause a great amount of mistrust of employees on the part of employers, leaving them wondering who said these thingsespecially when the things are untrue. I also assured him that in the offices I visited, the allegations did not seem to be true. I pointed out that one of the doctors doesn't have any employees and doesn't even do blood tests in his office. The OSHA response was, "So that's the end of the story." This was almost exactly the same response I got from the OSHA spokesperson in Washington, who said that once OSHA receives convincing d.ocwnentation that charges are false (or conductS a clean inspection), a doctor is cleared and "it's over." But it isn't. I tried to explain this to the Washington OSHA spokesperson: "Trust has been destroyed. Damage has been done. Ttme has been lost. The entire matter causes a lot of stress. And a doctor's attention may be diverted from important decisions about patients." I then asked her what I thought
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was a reasonable question: "Is there
a way to discourage people from maliciously filing false chargessuch as an employer being able to learn who filed the charges-if they are proven to be false?" "No," she told me. Even though the Sixth Amendment to our Constitution guarantees us the right to fuce our accuser, this applies only in criminal cases and not to OSHAS administrative law. It doesn't seem fair, but this is the way it is. She read me several lines from the Occupational Safety and Health Act, in which Congress put this regulatory agency into the business of getting people to report on each other. She went on to tell me that Congress had passed this law "in their collective wisdom." I quickly remembered CLIA '88, the law regulating every lab test in America-another masterpiece of"collective wisdom" created by Congress. Then I remembered that we are in the midst of great debates about our healthcare system-with many people calling for a national healthcare system Many very caring people, perhaps including you, have come to think that this is the best way to solve the problems we have and make sure everyone has access to healthcare at affordable costs. As we think about how best to improve our healthcare system, it is important to remember what continued 39
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CLIA and OSHA regulations are doing to the cost and accessibility ofhealthc:are. Think about the regulatory burdens they have imposed-even without a totally government-run healthc:are system. Then just imagine what it would be like with an all government-run system. For one thing, we would have even more letters from regulators to contend with-something I don't
think the doctors in Bayonne would like at all. It was bad enough for the doctors to get disturbing letters from OSHA But to make it worse, OSHA requested that they post the letters for all employees to read. This seemed so unfair that I mentioned it to the OSHA official in New Jersey. His response was quick: It was only "a request." Well, it may have been only a request, but the language of the letter
makes a person feel that OSHA expects it to be done. I wrapped up that interview with this question, "How can you help me feel that somebody accusing 15 people in a community isn't stretching things a bit?" The answer was, ''All I can tell you is the complainant identified himself/herself as someone who would be able to know these things. That's all I can say." So who was the phantom accuser who made the apparendy false charges against 15 doctors in Bayonne, New Jersey? The story doesn't add up. What do you think? Whoever the accuser was, this case provides a good example of government regulations gone wild. OSHA's rules apparendy made it possible for someone hiding behind the secrecy of anonymity to create distrust and havoc in a medical community. The phantom accuser haunting honest, hard-working citizens in Bayonne shows again why we don't need a government-run healthc:are system-with more regulations and more regulators. 110M Your comments on the subject of this editorial are welcome and may be published in Readers' Forum. Please write to Glen C. Griffin, MD, Editor-in-
Chief, POSTGRADUATE MEDICINE, 4530 W 77th St, Minneapolis, MN 55435.
40
ISSN: 0032-5481 (Print) 1941-9260 (Online) Journal homepage: http://www.tandfonline.com/loi/ipgm20
Who Was the Phantom Accuser of 15 Doctors? Glen C Griffin MD To cite this article: Glen C Griffin MD (1992) Who Was the Phantom Accuser of 15 Doctors?, Postgraduate Medicine, 92:3, 29-40, DOI: 10.1080/00325481.1992.11701437 To link to this article: http://dx.doi.org/10.1080/00325481.1992.11701437
Published online: 17 May 2016.
Submit your article to this journal
View related articles
Full Terms & Conditions of access and use can be found at http://www.tandfonline.com/action/journalInformation?journalCode=ipgm20 Download by: [La Trobe University]
Date: 19 June 2016, At: 10:36
EDITORIAL
WHO WAS THE PHANTOM ACCUSER OF 15 DOCTORS?
Downloaded by [La Trobe University] at 10:36 19 June 2016
Glen C. Griffin, MD "Help me understand," I said to the OSHA official who recently sent out a batch ofletters by certified mail to 15 or so doctors in an area of New Jersey. "How could all of these people have the same complaints filed against them?" The answer was that someone had filed a complaint naming doctors in approximately 15 offices in this one community-all of them supposedly having broken the same three OSHA rules. But they didn't, at least not the doctors I know about. And if they had broken these rules, how could any one person know enough about the offices of 15 different doctors to know that they were not offering hepatitis vaccine to their employees, were not disposing of contaminated needles properly; and were not using gloves when there was a reasonable anticipated exposure to blood? After personally investigating this case, I've found that many things just don't add up. From what I have seen and heard, many of the charges against the doctors appear to be completely false. Let me backtrack a little. I first became aware of this case when Deborah Wozniak, MD, an internist in Bayonne, New Jersey; sent me a copy of an intimidating letter she had received from OSHA
stating that a complaint had been received about her for so-called hazards in her office (see box on next page). Dr Wozniak enclosed a copy of her reply to OSHA refuting all the charges and even giving specific dates when she had complied. I called Dr Wozniak several times over the next few days. The more I learned, the more obvious it became that something very unfair was going on-especially when I learned that other doctors in and around Bayonne had received
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similar letters from OSHA. Who could have made these charges? Could there be anything to them? What was going on? I decided to fly to New Jersey to take a look for myself The more checking I did, the more bizarre the matter became. In Bayonne, I stopped by to see Gerald A Goldman, MD, a urologist who also got an OSHA letter. One of the things it claimed was that gloves were not being used in continued 29
EDITORIAL CONTINUED
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US Department of Labor Occupational Safety & Health Administration Dear Doctor ... : The Occupational Safety and Health Administration (OSHA) has received a notice of (safety and/or health) hazards at your worksite. The specific narure of the alleged hazards is as follows: 1. Contaminated needles are not being disposed in a proper
manner during office procedures; Ref 29 CFR 1910.1030 (d) (4) (iii) (A). 2. Gloves are not utilized by employees when there is reasonably anticipated exposure to blood; Ref 29 CFR 1910.1030(d)(3). 3. Hepatitis B vaccinations are not offered to employees who have reasonably anticipated exposure to blood; Ref29 CFR 1910.1030(£)(1).
... Letter continues for 2 112 more pages . ..
Sincerely, Area Director
his office when exposure to blood was anticipated. But Dr Goldman doesn't even draw blood or do any blood tests in his office. He sends all his patients who need lab tests to the nearby Bayonne Medical Laboratories. The OSHA letter
30
also alleged that he didn't offer his employees hepatitis vaccine. Dr Goldman was bewildered by this claim, because he runs his office alone and doem't have any employees. As far as Dr Wozniak herself,
other doctors in town, hospital staffers, her own employees, and patients consider her an outstanding physician who is compulsively determined to do things right. She starts her day at the hospital at 7 AM making rounds, then heads for the office where she sees patients all day, and then goes back to the hospital, often finishing up and going home around 11:30 PM. Besides working long hours, she is particularly conscientious about the quality of her patient care. "I was shocked when I read the letter that carne by certified mail from OSHA claiming that someone had reported I'd broken OSHA rules," she said. The letter that she and the other doctors received said that "an inspection is not intended at this time" but "a written response is requested within 20 days with supporting documentation and photographs which you believe would be helpful." Suppose you had just received such a letter. Everything would probably be a blur and your head would probably feel like it was spinning. You might think it was a bad dream, as Dr Wozniak did. Just imagine-along with all the clinical and other problems she faced that day, she was hit by the feds with false charges. You might be thinking right now that this couldn't happen. But it did. And Dr Wozniak had complied continued
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with the rules---even before they were rules. She has been using sharps containers in her office since 1980, and for several years these have been safely disposed of in regulated waste, which costs her an extra $50 a month. Going beyond the rules, she has offered sharps containers free of charge to her diabetic patients. And contrary to the false accusations, Dr Wozniak did offer hepatitis B vaccine to her employees in Mayof1992. She and two ofher three employees received the vaccine. The one who didn't was Christina Allen, a bookkeeper and insurance clerk who has worked with Dr Wozniak for 7 years. "Tell me what you think of Dr Wozniak," I said to her during my visit. "She's fantastic," Ms Allen replied. "I've never seen anyone like her. She is a very caring doctor. She takes care of my family and is excellent." "Is there any way that these OSHA charges could be true?" I asked. "No!" she replied emphatically. "Dr Wozniak is very strict about these things. Whenever anyone takes care of blood or cleans up, Doctor always insists that the person wear gloves and use bleach. We are very careful." "Did she tell you about hepatitis vaccine and ask ifyou wanted it?" ''Yes, I just didn't want it. And Doctor told me how serious this
is and what might happen, but I didn't want it." Also contrary to the charges, Dr Wozniak has made single-use gloves available since the time she opened her office in 1980, long before the July 6, 1992, bloodbome pathogens went into effect. The required training sessions for employees were also provided and attended. I not only saw Dr Wozniak's methodical and complete documentation records, but I have copies of several of the significant ones. So what went wrong? Who made these false charges against Dr Wozniak? Dr Wozniak herself never did believe it was one of her employees. She trusts them completely. But think of the mistrust such charges could cause in many offices and clinics. Rosemary Marino, RN, has been the office nurse ever since Dr Wozniak opened her office 12 years ago. "Is there any possibility any part of this OSHA complaint could be true?" I asked Ms Marino. "None," she answered. "We have done everything OSHA has required of us. All the hazardous containers are labeled. And going back 12 years to when Dr Wozniak first started in practice with her first seven patients, there has never been a needle discarded anywhere but in a sharps container. We have never
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discarded anything inappropriately here." "How about gloves?" I asked. "We have been using disposable, single-use gloves, gowns, speculums, and scalpels since long before OSHA came out with all these regulations. And used scalpels and broken glass always have gone in sharps containers," Ms Marino told me. "How would you describe Dr Wozniak-her character, honesty, and other things?" I asked. "She has an impeccable reputation'' was the answer. "Rosemary, is it possible that an unhappy patient filed these charges?" I continued. "Weve never had a complaint from a patient-about anything," she answered. I also talked with Maria Alvarado, the third member of Dr Wozniak's staff. She also had nothing but praise for her boss. So what has been going on in Bayonne? OSHA says that someone "who should have reason to know'' filed a complaint against "approximately" 15 doctors in the area. And OSHA tells us that in doing its duty, it responded to this "nonformal complaint" by sending the letter to all of them. OSHA also sent a similar letter to Sam Lichtenfeld, who has owned and operated the Bayonne Medical Laboratories for many years. I dropped in unannounced continued 33
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to see Mr Lichtenfeld, and he willingly showed me his OSHA compliance documents--and even made copies of several of them for me. He also invited me to inspect his lab, which I did, only to find that all the OSHA bloodbome pathogens requirements I knew about were being followed. In most cases, complaints of noncompliance with OSHA regulations are made by employees--or ex-employees. However, in this case the OSHA official involved told me that the accuser was not an employee. But how about a former employee? In my talk with Dr Wozniak's nurse, I asked, "What about any ex-employees? Could one of them have been unhappy and filed these
maybe by a lab services person whose lab was no longer being used by these offices? Possibly. Or could it have been another doctor in the community, perhaps one who had been disciplined by hospital staff colleagues? Maybe. But is it likely that a disciplined doctor would be angry enough at 15 other doctors in the community and the operator of an independent laboratory to file complaints, many of which seem to be completely untrue, about them all? It was while I was trying to put the puzzle together that I called the OSHA official in New Jersey who had signed the letters. And he did give us several clues. One of the important things to understand about these secret complaints made to OSHA is the difcharges?" ference between a formal and a "We don't have any ex-employnonformal complaint. ees except my daughter, who was a I was told that a formal comsecretary before she had children, plaint is a written one, generally another young woman who moved made by an employee. And I was to Florida, and one other who just told that a formal complaint results worked a little part-time. We have in an immediate, unannounced never fired anyone." on-site inspection. And how likely would it be But I wanted to know about that one doctor's former employee so-called nonformal complaints would do such mischief to anumlike the ones the Bayonne doctors ber of different doctors in a comreceived. So I asked the OSHA munity? Not very. official, "What do you mean by a So who else could have connonformal complaint?" vinced OSHA that he or she knew The first answer was astonishthat all these doctors, and the lab, ing: were in violation? Could these "Well it was nonformal ... from charges have been made by a disthe standpoint we considered it gruntled vendor or supplier, or nonformal. What I mean by that 34
is, it was not a signature that we could, that we could deal with, basi-
cally." "I don't understand that," I said ''A formal complaint is made by an employee, first and foremost." To make sure I understood about the complaint filed regarding the Bayonne doctors, I asked, "So was this complaint made by an employee?" The answer was very definite: "No, it wasn't. And that's why it did not result in an on-site inspec. " non. I also queried one of OSHA's Washington spokespersons about letters like those received by the doctors in Bayonne. She explained, "It's good news if a doctor received a letter like the one you describe. Ifwe had really taken the complaint seriously; we would have made an immediate, unannounced . . " mspecuon. She seemed to know exactly the kind ofletter I was talking aboutsomething that seemed quite routine for OSHA She went on to say that if the doctor responded properly; the case would be over. Neither of the OSHA officials I talked with seemed to understand how disruptive it is for a doctor, or any employer, to receive such a letter. It was obvious that OSHA's interest is in the safety of employees-which of course is vitally important. But the more I learned, the more obvious it became that very little consideration is given to
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the fairness of the system that allows false charges to be made with no responsibility on the part of the accuser. During my talk with the OSHA official in New Jersey, I asked, "Who else besides an employee would make a complaint?" The answer was, "Just about anybody can make a rwnformal complaint. We get these all the . srr.· ." nme, My mind was spinning, thinking about people all over the country filing complaints against all kinds of employers. So I asked, "How often do you get nonformal complaints?" "Probably two or three a day-
everyday." "Do you always send out letters?" I asked. The OSHA person answered, "If they're nonformal complaints, I do,yes. " I thought I was finally catching on and asked, "So in other words, this isn't just about doctors' offices,
..
~"
1S lt.
"No, no, not at all," he answered. In other words, businesses and industries all over the country, some ofwhich may have violated OSHA regulations and some of which have not, are getting intimidating letters ftom OSHA every day-based on nonformal complaints, some ofwhich are true and others ofwhich may have been fabricated. This doesn't seem fair. I couldn't help asking, "You
mean if I don't like somebody; I can make a complaint against them.~" He tried to reassure me that OSHA tries to screen complaints "the best we can," but he made it quite clear that one of these intimidating letters goes out to essentially any employer about whom any complaint is registered. "The bottom line is, even when there's any doubt in our minds as to the authenticity of the allegations, we still have to put that aside, unless the claim sounds totally crazy." While explaining that anyone could make a nonformal complaint, he gave the example that a patient might complain about a doctor who worked on him or her without changing bloody gloves ftom the previous patient. This example was not intended to refer to any of the doctors in the Bayonne complaint, but I wondered if he was telling me that the Bayonne complaint was filed by a patient. So I asked, "Was this nonformal complaint made by a patient?" He quickly said, "I can't tell you that," adding that all he could say was that it was a person who identified himself or herself as "someone who would have reason to know these things." I still wanted to know why so many doctors in and around Bayonne had received the same letter ftom OSHA So I asked how many doctors were listed on the
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complaint. At first he said, "I don't know oflhand." I persisted: 'Well, were there 10 doctors or 20 or 100 or ... ?" "No. Itwasapproximately 15," he answered, this time not hesitating. "Help me understand," I said. "How could you explain that almost identical letters were received at 15 offices? How could these doc-· tors all do exactly the same things
wrong.~" He didn't answer my question but just repeated that his agency's mission is to protect the safety of employees. As we talked, the OSHA official said that he could not tell me anything about the identity of the person who made the Bayonne complaint. "We are absolutely unable to do this-under penalty of law," he said. I still thought the process of sending letters out to a bunch of people on the basis of a complaint by one person was unfair. So I asked, "Had you talked in your office, before these letters went out, about how legitimate a blanket charge could be-ftom someone whose signature you can't even read? Was there a signature on there.~" He answered, ''Yes." Recalling that earlier in our discussion he had said it was "not a signature that we could deal with, continued on page 39 35
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basically, " I persisted-feeling it was important to know how legitimate this complaint was in the first place. I still didn't know what he meant about not being able to deal with the signature. So I concluded, and suggested again, that maybe they couldn't read the signatureand thus didn't have a name. He quickly responded, "I'm not saying that, sir. You're making a
charge." I explained that I thought that was what he had told me. He
quickly said, "No, I didn't." So I repeated that I thought he was telling me this was not a formal complaint because OSHA really didn't have a name that they could identify. He denied this completely; saying, "No, I didn't say that. If I said that, I was ... it was incorrect." He suggested that I ask the questions again and he answer them again. So I did. "Do you have a d.ocwnent that charges these 15 doctors with these complaints.~" He ailSWiered, uv:res. " He also answered "Yei' when I asked, "Is it signed?" I followed up again: "Is it signed by a person who is identifiablewhom you can identifY? Do you have a name and an address of the person?" His response was, "All I can tell you is that I have a name." At this point I brought up a completely different possibility: ''Another theory is that there never
was a complaint to begin with." He said that this was "totally un-
founded and totally untrue." I went back to the point about how disruptive and threatening letters from OSHA could be to doctors or other employers who receive them. He asked how the letters could be threatening. I explained that in the first place, this can cause a great amount of mistrust of employees on the part of employers, leaving them wondering who said these thingsespecially when the things are untrue. I also assured him that in the offices I visited, the allegations did not seem to be true. I pointed out that one of the doctors doesn't have any employees and doesn't even do blood tests in his office. The OSHA response was, "So that's the end of the story." This was almost exactly the same response I got from the OSHA spokesperson in Washington, who said that once OSHA receives convincing d.ocwnentation that charges are false (or conductS a clean inspection), a doctor is cleared and "it's over." But it isn't. I tried to explain this to the Washington OSHA spokesperson: "Trust has been destroyed. Damage has been done. Ttme has been lost. The entire matter causes a lot of stress. And a doctor's attention may be diverted from important decisions about patients." I then asked her what I thought
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was a reasonable question: "Is there
a way to discourage people from maliciously filing false chargessuch as an employer being able to learn who filed the charges-if they are proven to be false?" "No," she told me. Even though the Sixth Amendment to our Constitution guarantees us the right to fuce our accuser, this applies only in criminal cases and not to OSHAS administrative law. It doesn't seem fair, but this is the way it is. She read me several lines from the Occupational Safety and Health Act, in which Congress put this regulatory agency into the business of getting people to report on each other. She went on to tell me that Congress had passed this law "in their collective wisdom." I quickly remembered CLIA '88, the law regulating every lab test in America-another masterpiece of"collective wisdom" created by Congress. Then I remembered that we are in the midst of great debates about our healthcare system-with many people calling for a national healthcare system Many very caring people, perhaps including you, have come to think that this is the best way to solve the problems we have and make sure everyone has access to healthcare at affordable costs. As we think about how best to improve our healthcare system, it is important to remember what continued 39
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CLIA and OSHA regulations are doing to the cost and accessibility ofhealthc:are. Think about the regulatory burdens they have imposed-even without a totally government-run healthc:are system. Then just imagine what it would be like with an all government-run system. For one thing, we would have even more letters from regulators to contend with-something I don't
think the doctors in Bayonne would like at all. It was bad enough for the doctors to get disturbing letters from OSHA But to make it worse, OSHA requested that they post the letters for all employees to read. This seemed so unfair that I mentioned it to the OSHA official in New Jersey. His response was quick: It was only "a request." Well, it may have been only a request, but the language of the letter
makes a person feel that OSHA expects it to be done. I wrapped up that interview with this question, "How can you help me feel that somebody accusing 15 people in a community isn't stretching things a bit?" The answer was, ''All I can tell you is the complainant identified himself/herself as someone who would be able to know these things. That's all I can say." So who was the phantom accuser who made the apparendy false charges against 15 doctors in Bayonne, New Jersey? The story doesn't add up. What do you think? Whoever the accuser was, this case provides a good example of government regulations gone wild. OSHA's rules apparendy made it possible for someone hiding behind the secrecy of anonymity to create distrust and havoc in a medical community. The phantom accuser haunting honest, hard-working citizens in Bayonne shows again why we don't need a government-run healthc:are system-with more regulations and more regulators. 110M Your comments on the subject of this editorial are welcome and may be published in Readers' Forum. Please write to Glen C. Griffin, MD, Editor-in-
Chief, POSTGRADUATE MEDICINE, 4530 W 77th St, Minneapolis, MN 55435.
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