Federal court sends DH doctor's wrongful termination case to jury

By FRANCES MIZE

Valley News Staff Writer

Published: 02-07-2024 10:15 PM

LEBANON — A wrongful termination lawsuit brought by a fertility doctor against Dartmouth Health alleging discrimination based on a disability, as well as retaliation for whistle-blowing, is now set to appear before a federal court jury.

In 2017, Misty Blanchette Porter, of Norwich, was fired from her position as a specialist in the Reproductive Endocrinology and Infertility, or REI, clinic at the Dartmouth Hitchcock Medical Center in Lebanon. Porter claimed her termination was due to disability discrimination related to a neurological condition she had developed while she was employed by Dartmouth Health that had periodically limited her working capacity.

Her suit also alleged that her termination came as reprisal for complaints that she had brought against physicians in her division for “improper, incompetent and harmful conduct,” the appeal reads.

On Tuesday, after an initial dismissal by the U.S. District Court for the District of Vermont in 2020 and a subsequent appeal by Porter, the case was revived by a higher court, the U.S. Court of Appeals for the Second Circuit in New York.

Porter’s termination coincided with the 2017 closure of DH’s REI clinic where she worked. The hospital attributed the closure of the clinic — which at the time had over 120 patients — to staffing needs. The clinic remains closed.

In dismissing the case, U.S. District Court Chief Judge Geoffrey Crawford acknowledged internal strife in the clinic, as well as the fact of Porter’s neurological condition and whistle-blowing, but he found that “no reasonable jury could find that the concerns of hospital leadership about staffing levels or physician conflict were excuses they concocted to deflect attention from their true motive of retaliating against Dr. Porter.”

More than three years later, the appeals court decided otherwise, upholding Porter’s appeal.

At the time of her firing, Porter was “skilled in radiology, complex OB/GYN surgery and had been internationally recognized for her skill in reading gynecologic ultrasounds,” the three-judge panel wrote in its decision.

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She had been employed by DH in reproductive care since 1996, including a stint as a director of its REI clinic from 2011 to 2016. Porter now serves as the medical director of in vitro fertilization and assisted reproductive technology at the University of Vermont Medical Center in Burlington.

The appeals court vacated the previous judgment that dismissed Porter’s claims of disability discrimination as cause for her termination, as well as her claims of whistle-blower discrimination, and demands a trial for those claims.

However, the decision affirmed the initial dismissal of allegations that DH failed to accommodate Porter’s disability or retaliated against her on account of her disability.

In the opinion, Circuit Judge Amalya Kearse wrote that in issuing a summary judgment dismissing the case, Crawford had decided issues that should have been handed over to a jury. The district court “did not properly apply summary judgment standards in considering evidence as to pretext and causation,” her opinion reads.

“I think the overriding principle that comes through is that the issues that Judge Crawford decided in his opinion should have been left to a jury,” said Geoffrey Vitt, a Norwich-based attorney who is representing Porter.

The court spends “page after page” going through “significant evidence that the decision was based upon both Porter’s disability and her whistle-blowing activities,” Vitt added.

The 100-page opinion also details dysfunction in the REI clinic before it was shuttered. Among evidence included in the decision are descriptions of infighting regarding staff competency in the REI clinic and failures of upper management to respond to complaints of malpractice.

It focuses on complaints made internally against two physicians in particular, David Seifer and Albert Hsu. Porter and others employed in the clinic alleged that both performed procedures on patients without consent and billed the hospital for unnecessary procedures.

The decision quotes a DH nurse as having said that Seifer’s retrievals, a procedure in which eggs are removed from ovaries, “were the most bloody and painful that I have ever witnessed.”

While no longer employed by Dartmouth Health, both Seifer and Hsu remain in the field of reproductive medicine elsewhere.

Requests for comment sent to emails listed for Hsu and Seifer were not returned by deadline.

“The painstaking work that went into this, in my experience, it’s — I don’t want to say unprecedented — but it’s certainly unusual for them to go into that level of detail,” Vitt said of the thoroughness of the opinion.

Vitt said this week’s decision “came out of the blue,” after having languished as “pending” in the court of appeals for nearly four years.

DH spokesperson Audra Burns declined to comment on the case, noting in an email that “these are allegations in a contested lawsuit.”

Frances Mize is a Report for America corps member. She can be reached at fmize@vnews.com or 603-727-3242.