Surgical tech sues CoxHealth after firing

A former 30-year CoxHealth employee and surgical technician who says he was wrongfully fired for shining a light on improper sterilization procedures at the surgery center on Walnut Lawn Street is scheduled to lay his case out before a jury of peers.

On May 11, a 4-year-old civil suit brought by Michael Bruton, a sterile processing department technician who worked for CoxHealth between 1979 and 2009, is slated to go to trial in Greene County Circuit Court.

A pretrial hearing was held with Judge Jason Brown on April 29.

The case is at least the third in 10 years where former employees have filed lawsuits against CoxHealth for wrongful termination after meeting with investigators and/or regulators about improper procedures. The other two cases were settled in 2008 and 2010 as jury trials approached.  

Black residue
In the case filing, Bruton said he became aware of problems at the CoxHealth Surgery Center on Walnut Lawn Street in 2007. According to the suit, Bruton was transferred to the Walnut Lawn facility to help implement best practices for infectious disease control.

He said department technicians were improperly and inadequately sterilizing surgical instruments and equipment, reusing single-use surgical towels and co-mingling contaminated instruments and equipment with sterile equipment.

His claims allege surgical personnel were “flash” sterilizing instruments – a kind of steam sterilization – rather than using industry-approved methods. He also said “black residue” was frequently found on instruments after sterilization, and staff members were rinsing contaminated instruments and supplies with high-pressure hoses near cleaned case carts, creating a potential for cross-contamination.

After complaining to his direct superiors about conditions, which he said were not properly addressed, Bruton claims he was disciplined for using a cellphone and foul language, even though co-workers weren’t facing the same consequences for similar actions. He then detailed issues – which involved harassment by superiors – to other administrators, including then CEO Robert Bezanson, but the hospital did not take appropriate actions to address the noted health and safety violations, according to the filing.

He filed formal complaints about the conditions through his sister’s name with the Missouri Department of Health and Senior Services and the U.S. Department of Health and Human Services. Bruton’s actions led to substantiated reports from state and federal agencies in December 2008, according to documents included in the filing.

In February 2009, a surgeon not named in the filing summoned Bruton to an operating room because he noticed black residue had transferred from his surgical instruments to a patient’s wound and demanded to know what was being done to remedy sterilization issues. Bruton then called state and federal agencies to report conditions had not improved, which ultimately led to procedural changes in April 2009.

By June 2009, the filing states Bruton was falsely accused of engaging in inappropriate sexual acts at work – “crotch grabbing” and “pelvic thrusting” – in front of other co-workers, which led to his termination.

Bruton is seeking lost wages and punitive damages for emotional distress and mental anguish as determined by a jury.  

Jerome Dobson, a St. Louis attorney representing Bruton, said his client is no longer working in the health care industry, but now works part-time for retailer Wal-Mart Stores Inc.

“His career as a surgical technician is over. They’ve effectively seen to that,” Dobson said, declining to further address the case.

CoxHealth spokeswoman Michelle Leroux said the health system is actively defending the charges.

“We believe in the merits of our case and will defend our position vigorously. However, we cannot make more specific comments about this case as it is in litigation,” Leroux said in an emailed statement.

Whistleblower suits
Bruton’s case is only the latest whistleblower accusation against CoxHealth.

In 2009, Frederick Faust filed suit against the health system in the U.S. Western District of Missouri, Southern Division, accusing Cox of violating the Federal False Claims Act – aka the Federal Whistleblower Act – for terminating him in mid-2007 as retaliation for exposing false billing and claims practices. The suit says Faust alerted Assistant U.S. Attorney Richard Monroe of allegations against Cox including Medicaid fraud, false billing to private insurance companies and misuse of vaccines provided to Cox via the Vaccines for Children program.

In July 2008, Cox agreed to a $60 million settlement with the U.S. Department of Justice following allegations it committed errors in Medicare billing and contracted physician agreements, according to Springfield Business Journal archives. At the time, a hospital spokeswoman said Faust’s firing had nothing to do with the investigation.

Faust, a four-year employee, was working as a pediatrician at Cox’s Northside Pediatrics and Adolescence Clinic when he was fired in July 2007, one year before his contract expired. He sued for lost wages and punitive damages. It appears, however, the parties settled out of court because in October 2010, about two months after a jury trial was scheduled, the plaintiff dismissed the case without prejudice. He also filed a similar case in Greene County Circuit Court in December 2010, which Faust dismissed just ahead of  jury trial in October 2013.

The Department of Justice investigation appears to have been spurred, in part, by allegations of two former CoxHealth employees, who said they were terminated because of their efforts to expose the health care system’s improper billing practices, according to SBJ archives.

In 2005, Roger Cochran and Dennis Morris also sued Cox for violating the Whistleblower Act. Cochran worked for CoxHealth for 22 years in multiple positions, including as a critical care nurse. Morris, administrative director of Ozarks Dialysis, worked for the health care provider for 10 years before the lawsuit.

Both Cochran and Morris had complained to Cox legal counsel about alleged improper billing practices tied to the Centers for Medicare and Medicaid Services. In April 2005, each voluntarily met with federal investigators to discuss the possible criminal activity.

In May 2005, both Cochran and Morris were fired, according to the case filing. Cochran said administrators were building a case against him, but Morris, who had first been asked to resign, said he was told the decision came from top-level administrators, the filing states. Both said they felt the terminations were due to their efforts to expose wrongful actions.

The case was dismissed by the former employees with prejudice in December 2008, one month before a jury trial was scheduled, according to online court records. The records do not indicate CoxHealth admitted to any wrongdoing.

Fired or not?
At the April 29 pretrial hearing, attorneys representing CoxHealth and Bruton argued for certain points to be presented in front of a jury.

Much of the discussion centered on a summary judgment made by Judge Brown when he ruled that Bruton can’t claim before a jury that he was fired by Cox. Bruton’s attorney – on conference call from St. Louis – said his client received a letter saying he was no longer employed and sharing the content of the letter was important to the case. That letter came following a suspension from which Bruton did not return to work by his own volition, according to Cox representative Bryan Wade, a managing partner of Springfield’s Husch Blackwell office.

Brown determined discussing the letter at trial is fine, but it will be up to a jury to decide whether the surgical technician was “constructively discharged,” meaning the conditions of employment were so intolerable that a worker feels there is no choice but to leave.