Massachusetts Employment Law Letter

$7 Million settlement brings unprecedented recovery for Boston MD

In early February, a stipulation of dismissal was entered in a lawsuit brought by Carol Warfield, former Chief of Anesthesiology and Critical Care at Beth Israel Deaconess Medical Center in Boston. The settlement between Warfield and Beth Israel concludes litigation that had been pending in Massachusetts Superior Court since 2008.  Although Beth Israel issued a statement that emphasized that the hospital denied any wrongdoing in connection with Warfield’s claims, the facts alleged in the case are a cautionary tale for Massachusetts employers. 

“Relentless pattern”

Warfield charged in her complaint that Josef Fischer, who was hired as Beth Israel’s Chief of Surgery in 2001, subjected her to a relentless pattern of sex-based discriminatory treatment after he joined the medical staff.  She alleged that Fischer discriminated against her because she was a woman, ignoring her in meetings and ultimately lobbying for her ouster.  Warfield claimed that she complained to Paul Levy, who was, at the time, Beth Israel’s CEO, but that he did nothing to stop the harassment and that he and Fischer retaliated against her by first terminating her appointment as Chief of Anesthesiology, and then by “marginalizing” her and conspiring to push her out of her job as a staff anesthesiologist and deny her benefits.

Fischer was appointed chief of surgery in fall 2001 because it was thought his national reputation would attract young surgeons, who would in turn bring in patients and help turn around finances at Beth Israel.  Warfield’s lawsuit contained a litany of demeaning and abusive treatment she experienced from Fischer, including letting the door shut on her when she was following him into a room and refusing to acknowledge her in conversation.  Warfield’s allegations were supported by e-mails and testimony from other doctors and nurses saying that Fischer was generally uncomfortable working with women, and especially uncomfortable with Warfield.  Incredibly, Fischer allegedly once told a group of Beth Israel nurses that he preferred to hire doctors who are “tall, light skinned Western-taught men.”

Warfield’s complaints to Levy about this treatment fell on deaf ears:  he accused her of whining and “playing the victim.”  In 2007, while Warfield was on sabbatical, Fischer allegedly tried to get her fired, claiming she was incompetent, and then she was demoted from her position as department chair.  Fischer was asked to resign in 2008, but only after Warfield filed her lawsuit.

Avoiding old wounds and a sympathetic plaintiff?

Significantly, Warfield’s tenure at Beth Israel was marked by accomplishments:  she joined the medical staff in 1980 and had a distinguished career both as an author of books on anesthesia and in the role she played in expanding the hospital’s pain clinic into an internationally renowned program.  Warfield was appointed a full professor at Harvard Medical School and was the first woman to be named as Chief of Anesthesiology at a Harvard teaching hospital, all of which she accomplished as a single mother of three children:  Warfield’s husband had died unexpectedly when their youngest child was an infant.  So, it’s likely that she presented as a very sympathetic plaintiff, which could have also influenced the size of the settlement.

Press reports suggested that the fact that Warfield’s allegations went straight to the top leadership of the hospital might also have contributed to the size of the settlement.  It is also possible that Beth Israel settled in order to avoid a trial:  Levy left the hospital in 2011 and his departure was difficult.  While he was CEO, Levy was involved with a female employee, whom he later married, and senior management and board members had advised him about the dangers of that relationship.  A trial would certainly have opened old wounds.

Whatever the motivation, Warfield’s settlement totals $7 million in damages and attorney’s fees, among the largest, if not the largest, such settlement in an employment discrimination lawsuit.  To its credit, Beth Israel is also renaming the hospital’s pain clinic in her honor and has agreed to sponsor an annual lecture series on women’s health and the academic contributions of women in surgery.  The hospital has also agreed to “reaffirm and clarify its policies and procedures” for employees who file complaints about discrimination and/or retaliation.

Lesson learned

It’s hard to tell where the amounts of this settlement ranks, because settlements in cases like this are almost always highly confidential.  The fact that Beth Israel was willing to go public with the details of its settlement speaks volumes for the hospital’s commitment to reversing any discriminatory culture that might have existed under prior leadership.  Clearly, Beth Israel has learned from this experience and will not likely repeat the same mistakes.  You should learn from their experience as well:  when employees come to management with complaints about discriminatory treatment, don’t be dismissive.  Conduct a thorough investigation to determine whether there is any support for the allegations, including interviewing other employees who might have experienced the same treatment or who have knowledge about the issues involved.  Even if you find no concrete support, use the complaint as an opportunity to retrain management personnel.  And senior management must keep its behavior above reproach.  Situations like those experienced by Warfield should be stopped in their tracks, even if it means that a senior manager who is perceived as an asset to the organization needs to go.  The risks and potential damages are too enormous to be ignored.

Article By: Susan G. Fentin
Reprinted from the April 2013 issue of the  Massachusetts Employment Law Letter.

Susan G. Fentin is a Partner at the firm Skoler, Abbott & Presser, P.C., and Editor of the Massachusetts Employment Law Letter. Susan can be reached at (413) 737-4753 or sfentin@skoler-abbott.com.