I've been thinking a lot about this blog. Why I'm writing and why I should continue. A good reason to continue are all the fantastic people who come here to read. A good reason not to is because of the time it takes. Another reason to go on is that this is a lot of fun.
But I also think this blog needs to change. That's always scary, because if you change something you risk losing some readers, and not attract new ones, since it is very hard to get people to read anything.
I've realized that a newspaper or a blog or a show is like a friend. Most people have a limited amount of friends because they simply don't have time to spend on additional people. Same with newspapers and blogs. Most people don't even read the newspapers anymore. And if they read a blog, they may read two or three, but that's about it. It's simply too time consuming.
Sometimes my wife asks me "who has time to read any blog?"
And she's right. If you've got work and a family, reading a blog takes time away from a lot of other important things.
But a blog can also be like a good friend. It becomes a place to go to, and have another connection; a contact that doesn't require more than clicking on the computer.
But life goes on and our friends change. And I simply have this feeling that so should this blog. My feeling is that I shouldn't blog about whatever and do several entries per day. I should probably just do one entry and it should probably be a more personal one.
That's a scary thought, in a way, because sometimes it's just easier to put in a video or a TV clip or refer to a newsarticle. And while those things are all very interesting, they are not original. Well, of course the end result can be original, but they are still not original, original.
And I think this blog should be original.
I've tried a lot of stuff, different topics, different approaches, and I've learned some of what works. So I kind of know what I want to do with this blog. And I want to change it. Make it grow up a bit.
Of course, that's scary because, hey, it may not work out and there I'll be with eggs on my face. Then again, I think I can handle that.
Stay tuned. And as always, feel free to express yourself.
34 comments:
I keep coming back even though my time is limited and my life is excellent. Rock On Dr. Peter.
Kinda like moving to a new state huh? Both exciting and scary. I’m moving too, must be something in the air.
Follow your heart, you’ll be ok.
PS. Great pic Doc! :>
What Beeta said.
Couldn't have said it better.
Do let us know, as I read everything, even though with my limited capacity to understand everything, the message may not always get through. It is rather thick around my brain.
I'll still come here.
I would like to know how many readers do read your blog and what blogs are considered, really "popular" in terms of numbers?
My main interest is the "the big pharma" issues, that I believe started this for Peter. If the Doc and us can use it to further the fight against the power and misconduct of the big pharma (BP) and eventually with many other groups, we manage to influence a positive change doc's and our job will have been done.
If along the way we all have some good fun and ejoyment this job will be even more rewarding.
This blog, pharma gossip and similar ones, I would like to see also as a means or forum to communicate to BP what we know about them and what we intend to do about it.
The may not be scared or worried now, but the seige is growing. Look at what their reaction is to Michael Mooore's activities and especially his latest project the Sicko. This is what we know, but imagine what plans BP is making in their security bunkers and fancy boardrooms. If we only had some flies on those walls and thier imput into this blog. Perhaps we might see it if some of those "flies" still have some of thier social responsibility left in them.
Another thing I would like to know. Does Peter know what BP companies are looking at his blog besides Phizer? If he does let us know.
One way to make them aware of this blog is to print off some posts and comments and send them to every BP Co. you can find the address of, which is really easy. They will tune in very quickly and keep watching it.
Open vault will dig deeper and release more stuff in that case. So will others.
Peter,
Good analysis of the situation, as always.
In 2006 PharmaGossip also changed. It became less "original material" (although I did try and keep the original "visuals" up) and more reporting and commenting on Big Pharma stories in the media.
People have seemed to like it.
Viewings per day have doubled over the year.
But it is more work for me....
I, too, may have to review for 2007.
Happy to discuss this further with you by email, if you wish.
Cheers
Jack
I think it's about time Doc.
We need to cover important, society-changing topics like funding a national endowment for strip clubs. Too long, this area of artistic dance has been neglected.
The torch falls to you should you decide to accept this mission Mr Phelps, ummm, I mean Doc.
Just kidding. ;)
Btw, here are some other headlines from "tomorrow" based on the events of this past week. Enjoy! ;) (wink)
Bush Declares "Mission Accomplished" in 2006 House, Senate Midterm Elections
Defense Secretary Gates Plans Major Offensive on Apple, Linux, Google
Ousted Karl Rove Takes New Job With Hugo Chavez
Wider Panama Canal Makes Room for Airbus A380
you could have many worse things on your face than egg. don't worry about it. blog on!
Here is a scenario:Big pahrma sets up what they called (Drug name) Investment fund. It was designed to offer to selected physicians - specialists "investment" of $5000 to $25.000 for different "projects" that the doctor and/or his/her clinic would do. For instance the drug Co. would pay the nurse's, partial or full year's salary for her work on monitoring patients blood pressure, or whatever. The doctor would have to give a "verbal agreement" that he/she will generate additional prescriptions for the "investment" drug in the amount equal to 3 to 5 times the amount received in "investment". That means for every $1000 the doctor has to precribe $3000 to $5000 of new presriptions, as a ROI - return on investment for the big pharma.
It is a very happy deal. The doctor saves the money that would be payed to the nurse, the big pharma increases its sales of "investment" drug and the patients have no idea what happened. The cost to the doctor is minimal if any. All he/she has to do instead of following his usal approach that usually includes several drugs from the class, prescribe the "investment" drug most often if not exclusivelly. This is not to say that patient gets the wrong drug. Not at all they only get the drug for which their doctor got paied, or as someone would say bribed, to prescribe every time it was needed. And that my friends is not the way the evidence based, ethical medicine is practiced. This especially in a public healt care system where drug companies are not allowed to "invest" into healthe care system and get ROI to the tune of 300 -500%
The question here is: has criminal activity taken place here? If yes, what it would take to prove it and bring both the doctors and big pharma to justice?
If one has the documents indicating that such activity took place and names of physicinas and amounts involved, would law inforcement authorities be interested to prosecute such case and not only "hit them in their pocketbook" as Ms Melody says, but do more.
This incident was whistle blown internally, the pracice was quickly terminated, no one involved lost a job except, guess who?. Yes you are right, our friend the whistleblower. It seems once someone does become a whistle blower even in companies that encourage them for whatever reasons, he/she is like a horse who broke one of the legs. You know what happens to those poor wonderful animals in most cases, for their own good, we are told.
I stumbled here by accident and I wish I had the past 10 minutes of my life back. Dr. Rost....with all due respect.... you are embarrasing yourself with this sorry excuse for a blog. It's time to get a real job and grow up. Please.
I've been checking in a few times a week for a few months - and I've enjoyed it all, the big pharma stuff, the personal stuff, and especially the running commentary on who is reading your blog.
If I had my way, no changes...but whatever you do, I'll keep checking in. Hey, if you have an off day, I can still laugh at the sour grape pharma remarks like the one above.
To the above Anony-moose:
I have the feeling you arrive at most of your destinations stumbling. It’s most likely caused by the dragging of knuckles...
Dr Peter,
I have learned a lot from your musings, and from others commenting on your blog. One item that stands out in my memory is your suggestion that you would like to run a pharmaceutical company. May I suggest that you give us a glimpse (or more) of your vision of how a pharma company would be operated under your guidance. How would you address issues that affect pharma today, such as few new products in the pipeline, copycat drugs, inflated sales rep forces, limits on drug importation, etc. I think you have shown an innovative maverick streak that could very well save a struggling pharma company, and re-define the ethics and direction of an entire industry, but you gotta still be a player to do it. How fun it would be to see you flesh out your ideas and have your readers and others in the industry contribute thoughts and opinions to revive and energize a vital part of healthcare. If you ever get a shot at another pharma job (and I actually think there is an innovative risk-taker out there willing to utilize good, solid ideas) I volunteer my services, at a greatly discounted cost, to help launch your healthcare revolution. Viva la revolucion (sp?) !
Anon, about the "investment fund" for doctors, . . . this may be a violation of anti-kickback statutes and possibly other laws. I'd be pleased to put you in touch with people who could assist you further. Send an e-mail to rostpeter@hotmail.com.
I certainly would like to know more about that "investment-fund" "idea". I have noticed that some doctors are quite open about collaboration with others and getting paid for that. You are being told, or they have flyers in their office, which state, that you may be filmed in procedures, etc. Sometimes they ask your permission for that. I have no objections to that, provided that it helps medicine, and therefore others. This is different from having observers and students watching surgery in a surgical theatre. If pharmaceutical companies can invest some of their profits and in the process learn quite a bit which can be applied to future patients, I would say: go for it! There may also be such cooperation with medical appliance manufacturers. All that helps with finetuning of medications (drugs), medical applicances (knee and hipreplacements, aids for getting shoes on and off), etc. In medical appliances, say such as artificial knee replacements and hip replacements, there are all sorts of sizes, and even forms.
As far as your personal concerns, Peter, you ARE a doctor, why not use this knowledge in service to others. You also have business sense and acumen, plus experience. That can be applied in other ventures. There are many areas of Medicine, besides taking care of patients, which I think is best of all, where service is needed. I have a new doctor, from India. He is very successful. But his objective is helping people, service, and he is propelled to do that by his faith, Sikh. I had another doctor with the same mindset; he is doing well also. In judaism that is also a driving force, be a light to the world is often best accomplished through service, as in being a physician. The funny thing is that in being a servant of others you also get well rewarded personally. But, as a businessman, you already know that, of course.
Areas of interest to me, if I had the skills would be medical insurance in the U.S. Providing adequate medical care in other countries in addition. Finetuning medications - every patient is very different - in such a way that it is easy to get customized mixes. Today this has to be profitable. In the olden days, and I used to do this, you carefully measured and weighed out by hand medications, filled combinations into papers, and then poured them into some anvil-like metal instrument, which had a little indentation on top, pulled the handle down and..out came a pill. Then you put the pills in a labelled bottle.
I would organize symposia, where experts of various disciplines came together, and talk about the numerous and difficult issues of an evolving world and evolving knowledge of medicine. Just mechanics alone, is not enough. Eastern disciplines and judaism have a large knowledge of mind/body interactions, and we need to learn more about that. Lots of interesting stuff to do. But you have to have passion, and the passion has to be directed at helping others and making a difference. You have the tools. Where there is a will there is a way.
There is another area which is important. We need to evolve spiritually as human beings, and we have to understand why that is so. Anger, rage, resentment, holding on to grudges, and worse, have repercussions for ourselves and our physical and mental health, as well as for others. But the influence goes even further than that. One day we will be able to measure how that influences our environment in all sorts of aspects, such as in physics, physical, our fellow human beings, etc. Destructive forces destruct from the inside out first, and then, like the multiplier effect, destruct our environment. This is not new. Jesus, for example, hints at that. The body, he mind and the spirit are linked, and we are all linked to each other and to the environment.
Now, do something with one or two of those ideas, and you will have plenty of material to blog about. Better yet, organize it, and let others write about it on your blog.
" Anonymous said...
I stumbled here by accident and I wish I had the past 10 minutes of my life back. Dr. Rost....with all due respect.... you are embarrasing yourself with this sorry excuse for a blog. It's time to get a real job and grow up. Please. "
Ok Mr McKinnell, time to take your meds and go golfing. Let James the driver handle the golf cart sir, ok.
One of your best posts was "A Glorious Day" (September 15th). Blogging at its best. More stuff like that would be welcome. Lately you've been using a lot of video links and copies from other blogs (I read PharmaGossip already, thanks), and I guess that's because you think you need to put out something for the punters. If you have nothing new, interesting or funny to say, then best not to. If the new improved brand Rost is less frequent but more from the heart (and as well-written and funny as your best stuff always is) then I, for one, will be looking forward to it.
Thanks PharmaGiles. Right on!!!
It would be very helpful to learn more about posts others readers really liked.
Thanks.
A couple of suggestions:
- set it up so that when you add a new topic, people on a list can get notified about it.
- more about the Canadian system in contrast to the (broken) US system. And other countries for that matter. We know ours is broken and not worth spit. What works in other countries and how can the US learn (maybe an impossibility given our corrupted system). What I do get tired of is hearing people who have never been to other countries telling us how ours is superior to the world. I'll take the "show me" approach.
- Since Bernie Sanders is the first self-described "Socialist" (in terms of Nordic systems like Sweden, Finland, and the rest with regard to eradicating poverty and low crime and health systems) elected to the US Senate, tell us about those systems.
- change topics and provide some diversity. Sex is good. Write about that. That oughta rankle a few red-staters.
That's it for now.
Returning to light humor. ;)
Ps: The correlation is broken...pretty girl picture = lotsa posts.
And tell me, is there any truth to Theo van Gogh's movie "Sixth of May" about the death of Pim Fortuyn of the Netherlands? Or is just an Oliver Stone-genre type of movie?
Alex, I have not seen that movie. If you go to msn.search/Theo van Gogh/Pim Fortuyn you will find a series of blogposts about this. The first ones are in Dutch, but there is plenty in English as well. Both Pim Fortuyn and Theo van Gogh were murdered.
The Netherlands has always been a very free country, and tolerant of everyone. We did not know racism, and we did not carry guns, not even the police. We respected others' religions. Arab immigrants from everywhere are changing the landscape, as they are all over the globe. If you could read Dutch you would find an interesting comment by a Maroccan woman who married a Dutch man and has lived in The Netherlands for decades. She states, she is a muslim, that the muslim faith does NOT CONDONE murder, as should be obvious, as the Qur'an incorporates Torah, as well as the words of Jesus, whom they see as a prophet. She also states that muslims come to The Netherlands, and hold up their hands to receive all the benefits and goodies this society provides, and then want to change that same society and force their hand. I am certain you will also be able to find articles about what happened in Dutch newspaper archieves. You will be able to specify your preferred language. Certainly, it is available in English. After 9/11 I checked some Dutch resources, and was amazed to find how muslims from elsewhere have entrenched themselves into the society, take part in elections, have their voices heard as members of city councils, etc. It is the same all over Europe. Their next aim is to make Spain part of the Muslim Empire. This is not about "religion". Religion is used by these people, mostly Arab nomads, to take over by murder and mayhem. They do thius in Darfur. They threatened just last week Gr. Britain. Al Qaeda wants to overthrow the Lebanese government. On and on it goes.
I saw it last weekend on LinkTV. They're showing Theo van Gogh's last film this weekend.
The premise on the "Sixth of May" was that Fortuyn was murdered by a secret extremist faction of his government before the election for Prime Minister so they could get in the running for building US defense contracts for fighter jets and more. Fortuyn was opposed to that. Once Fortuyn was out of the way, his party eventually went along which created a majority and then well, you can guess.
The implications were that the Bilderberg Group was working on this along with the government in the background.
I don't know that much about it, which is why I'm curious.
Anon of Investment fund. Dr. Rost, you got it right, for you've seen it all in different ways of doing it. The investment fund was strictly "payment" for prescribing NEW business on top of what was done without the "investmet". The name: DRUG (name) Investment Fund was only for internal use. They have not sink as low as calling it Crezista Bribery Fund. After all memos had to be sent and it would not be very nice to see that.
For the other Anon contributor. Yes drug companies do good things in therms of education, research and so on. this type of activity belongs into the other, nasty side that we would like to not only change but stop.
I will be contacting you soon. Many thanks.
A couple of more suggestions:
- how are pharmas using VNRs (Video News Releases) and what should we the public be watching for
- which congress critters are the favorites of pharmas and what legislation should we the public be watching for
To Anonymous regarding Drug Investment Fund:
You are absolutely right that this is NOT how evidence based medicine is supposed to work, and this is exactly what the anti-kickback-statute and 31 U.S.C.A. 3730(h) of the federal false claims act is designed to protect against.
3730(h) specifically protects you as the whistleblower. It also statutorily guarantees you a damage recovery of twice the back-pay you’ve lost since the date of your termination, interest on that back-pay calculated at the prevailing interest rate, reinstatement to your old position and seniority if that is workable, and since it isn’t in most whistleblower cases, additional payment for lost future earnings you cannot in good faith and effort make as a result of this loss, and possible black-balling in the industry. (E.g. if you were making $65,000/year in the other job, and in your best efforts can’t make more than $38,000/year now; you could potentially see not only twice your backpay and bonuses plus interest, but also another $27,000 per year in frontpay calculated into your lost earnings. (VIRTUALLY NONE of that is available under a state “wrongful termination” claim that an employment lawyer who fails to know about or use the false claims act will otherwise bring.))
You ABSOLUTELY MUST get an attorney, but make sure it’s a good one with a strong background in false claims litigation—many employment lawyers are too clueless about the false claims act and how to use it and they could devalue your case.
A good starting point for finding a good attorney in this specialized field is the Taxpayers Against Fraud website. www.taf.org
Jim Moorman and Jeb White there are in contact with what is known as the qui tam Bar—the group of specialized lawyers throughout the country that handle false claims and retaliation cases.
A typical employment lawyer will most likely attempt to pursue an action as a “wrongful discharge” and then go through the riga-ma-roll of whether or not your state recognizes this form of wrongful discharge as protected or not; when in fact a simple wrongful discharge claim will NEVER punish the wrong-doing nor compensate you as much as a claim under the anti-retaliation provision of the false claims act, which attaches back to the payments being made in violation of the anti-kickback statute.
The fact that the company changed course—if in fact they really did—after having attention brought to them MAY help mitigate the defendant’s wrong-doing under the anti-kickback statute; but NONE of it absolves them of liability for their retaliation against you.
But as for the justice, yes, violating the anti-kickback statute is a criminal act, and there can potentially be both criminal prosecutions and civil damages-- both to you and to the govt. (even after defendant changed their behavior they have received ill-gotten funds through kick-back schemes that they were never entitled to, plus civil fines for each of those payments on top of the dollar amounts), and your personal recovery to protect you for what was done to you.
If you get with a false claims attorney, they will put your case together in a way that the criminal and civil wrongdoing can go forward by state or federal prosecutors and state or federal bureau of investigation, etc. jointly with your attorney who will be representing your retaliation action under the same statute.
Keep EVERY piece of documentation you have regarding not only your income and bonuses, but performance reviews and evaluations, employment practices, employment contracts, employee handbooks . . . anything and everything that has anything to do with your job, terms of employment, or the nature of your contract as well. Many employment lawyers will get wrapped up in whether or not yours is an employment-at-will contract and an employment-at-will jurisdiction and try to tell you that an at-will employer can legally fire you on a Thursday just because it’s a Thursday; but a false claims attorney will know from the get-go that federal statute is an EXCEPTION to the at-will employment relationship, and they’ll know which federal statute to use in your behalf instead of having to spend a week digging through the U.S. Code to see if anything applies to you.
Further, keep every piece of documentation you have or can easily obtain regarding the fraud you witnessed and knew about, and keep a journal RIGHT NOW of all of the events you can think of (while events are recent and you can think of them) of every detail of the fraud, a timeline of the events from first discovering until termination; and if possible, make an extra set of copies of EVERYTHING.
And in the meantime, get in touch with Taxpayers Against Fraud in Washington, D.C. (phone number is on their website-- www.taf.org) for a referral.
They will be careful to only get as much information from you as is needed to refer the right attorney(s); and not to ask too much more, because there is going to be an issue in protecting your case under this law of avoiding public disclosure, so DON’T TALK TO ANYONE outside of your family about the case or details until you get the go-ahead from your lawyer.
Taxpayers Against Fraud is who most federal prosecutors offices will refer you to to protect your own interest and the part of the claim they can’t prosecute (the retaliation part of the claim, which only your attorney can litigate or settle on your behalf) as they themselves are not allowed to give attorney referrals because of conflict of interest issues between their case representing the government and “the people” and your attorney’s case representing you and your rights.
Taxpayers Against Fraud will give you multiple referrals if you desire, and it’s worth taking the time to meet with more than one to find an attorney that works well with you, and who has a contingent fee that works for you. (Some have higher fees than others, some work better with some clients than do others, . . . all those sorts of issues.) But also get as much information as you can about each of the attorneys up front from Taxpayers Against Fraud while you’re getting the referrals. But I assure you that it is worth finding an attorney that’s the right fit for you. So move quickly, but be thorough.
I wish you the best of luck with it. I’m terribly sorry that this has happened to you as the cost of doing the right thing, and the road may not be easy over the next little while, but there can be justice ultimately down the road on this.
Let me know if there’s anything further I can throw your way that may help!
Well, blogging can also be therapeutic.
So, Dr. Rost, blog what you will -- but don't take yourself -- or us! -- to seriously.
Mike
I for one am very pleased. Not a nude girl in sight and, in spite of this, 30 responses.
To Sam:Thank you for this, not only for myself but for anyone else as "education" what to do and what not to do. It is absolutly imoprtant, as you and Dr. Rost wrote earlier, to do everything right, after you do the right thing, externally as we saw in the "Don't tell your employeer..." post. If you do we know what usually hapens.
In my case, unfortunately all kind of things were done wrong, icluding going internally on the basis of big pharma's assurances and promises. The case is basically over between the parties but not from the freedom of expression and public interest point of view, as far as I am concerned. I am looking for ways to expose the "evil doers" and I need a "decider" who can decide to go ahead with this case. The "Crezista Bribary Fund" oops the other fund, was not the only activity done by the protogonists. That was just an example in the series.
Another problem is that this case has evolved in the land across your northern border so your laws would not apply even though this is as they all are multinational Co.
Hopefully someone like Sam and others from these parts would contribute and give guidence, while in the meantime our group is looking for solutions. I am convinced that the first big case win for our side would have a domino effect and big changes would happen. Those good people within the industry are waiting for us to do it. Just speak with anyone in the industry and most likely you would get all kinds of complaints as to how it is run and what they are asked or ordered to do.
Most of the discussion so far was around the misdeads of the big pharma. Lets expend it to the other side of the equation. THE PHYSICIANS and their role and contribution to all this. It may lead us to the "Chicken or the egg" delema. Personally I think it was the Chicken first.
The best answer for north of the border, of course, is to get the legislators there to enact a false claims act of their own. (Interestingly, in Canada it was the conservatives instead of the liberals who tried to get one enacted there earlier this year; which you wouldn't guess with the current stance of "conservatives" in the US at present and all their pro-Pharma kiss the ground the drug companies walk on for special favors way of doing things).
However, as you and others already recognize, what doctors and drug companies are doing on one side of the border to game the system, if profitable, they will try and most surely be doing on the other side of the border.
In addition to the U.S. federal false claims act, some individual states along the Canadian border already have their own versions of such an act as well-- these include New Hampshire, Michigan, Illinois and Montana (although in Montana you have to be a state resident to recover any of the money, it's still a start).
One caveat under the U.S. (and each of their state's) laws, the whistleblower must have personal information of the fraud-- not hearsay-- but specifics and the kind of documented proof that it sounds like existed in this doctor's office. The more you can give prosecutors about what the fraud was, who committed the fraud, when was the fraud committed, how was the fraud committed and carried out, what kind of dollar amounts were involved, etc. the more interested prosecutors and false claims attorneys will be in pursuing the case. From the information provided with the drug investment fund scheme, all of the elements seemed to have been there; and yes, at least in the U.S., the law will not only recover from and punish the pharma company, but also the doctors and/or hospitals involved-- it's just a matter of having the right attorneys and prosecutors involved.
That having been said, jurisdiction matters. Currently, Illinois and Michigan are the most eager and aggressive of the state prosecutors in this field-- although Illinois' are the most experienced-- while Montana is probably the least experienced or aggressive.
Of course, there are several other states that are aggressive, such as Texas, but they'll be too far away from your border.
Wisconsin's attorney general and Ohio's (like New York's outgoing A.G.) have each been aggressive in healthcare fraud prosecutions, but have so far been unsuccessful in getting their legislatures to enact state false claims laws-- which, as a result leave whistleblowers in those states unable to pursue a claim on their own except under the federal version, as applied to federal funds.
I wish I had more detailed insights for you based on more specific information, but by the very nature of an anonymous posting, I know that it's difficult to give out much more than you already have-- which, by the way, is exactly as it should be if you find a way to pursue such a claim to maintain your stake in the claim.
Keep up the fight, do what you can to get some false claims act momentum on the canadian side too, and I'll check back for a post here in the next day or two to see if there's anything further I can help with.
I don't know if Canada has an anti-kickback statute, or if the proposed false claims act was very similar in specifics to the U.S. false claims act, but I did come across this article last spring from an Ottawa article about what was being proposed at that time, but that's really only the extent of what I know about it, so I'm worried to give you too much "advice" one way or another on what to do with that and lack any wisdom to impart:
Ottawa Citizen
April 5, 2006
Protecting those who speak out:
Canada lags in protecting whistleblowers; the new government seems eager to act but we should learn from British and U.S. experiences
By: Penny Collenette, Citizen Special
__________________
The new Conservative government pledged in yesterday's throne speech to make federal accountability a priority, and whistleblower protection will be featured in new legislation to be introduced next week.
"Ethical reporting" processes and whistleblower protection are viewed today as important tools in the fight against global corruption -- a fight in which Canadians must participate. In both workplace culture and legislation, employees are now required to be more active in the face of wrongdoing, rather than simply avoiding participation. There has been a change in perception of employee loyalty that places the public interest ahead of any corporation or government.
Tough American corporate legislation has recently sanctioned and ordered audit committees to implement "anonymous hot lines" to uncover that which is designed to be "covered up." U.K. legislation prefers internal disclosure in the first instance.
Whichever reporting system is designed, nominal protection for whistleblowers is becoming the new norm in Western and Asian countries. But as others have noted, getting this type of legislation "right" the first time is not easy. Should the scope of the law cover the public and private sectors? Should a disclosure process be maintained by an institution itself? Or is there less chance of inherent conflict by outsourcing to a third party reporting line? Do motives really matter if fraud is present? How can due process be protected during an investigation?
Most Canadians probably would agree that credible whistleblowers must be protected from harassment and job retaliation, as well as compensated for lost earnings. But what about emotional damage? Often whistleblowers are ostracized or harassed. Their families may be as well. Should they too be compensated? How far could possible damage awards be extended?
Furthermore, is it appropriate to "reward" a whistleblower as an incentive to root out those who jeopardize workplace safety, cause serious environmental damage, abuse taxpayers' dollars, certify defective products or falsify scientific data?
For several years, federal parliamentarians have debated, listened and probed to find "state of the art" whistleblowing legislation. On the eve of this past election, both houses passed Bill C-11, an act to establish a procedure for the disclosure of wrongdoings in the public sector, including the protection of persons who disclose the wrongdoings.
Great strides were made during the hearings to improve the legislation -- for example, Canada will be the first country to establish an independent commissioner reporting to Parliament.
However, at the end of the day critics of the bill remained. Some wanted to include rights such as access to courts and protection for political assistants. Others acknowledged the legislative weaknesses but urged the government to get on with a test run, secure in the knowledge that a review was allowed under Section 54.
However, the bill was not enacted before the Martin government fell. Now the Harper government is rumoured to be ready to consider immediate modifications which come from the United States that could drive the debate to a new level.
The United States, which considers whistleblower protection "taxpayer protection," jumped into the debate in 1989 with its Whistleblower Protection Act which portrays the public-service whistleblower as a victim who needs protection. Unfortunately, the Whistleblower Protection Act has failed federal government employees who have not found sympathy in the Federal Circuit Court of Appeals. By 2004, 85 out of 86 cases had been lost. Needless to say, the act has been amended several times. To add to the confusion, there are state laws which attempt to protect whistleblowers.
However, a 150-year-old U.S. law (ironically originating in English common law) has had different results. Any citizen, witnessing fraud by a government contractor, can ask the Department of Justice to "partner" in an investigation to uncover fraud. Even if the Justice Department does not agree that an investigation is warranted, the plaintiff whistleblower can still move forward. If the suit is successful, the whistleblower is rewarded.
The Harper government is studying the False Claims Act, correctly assessing that this type of legislation opens up potential complaints to every citizen and potentially returns monies to the public purse.
But Canadians are not as litigious as Americans, nor are we as accustomed to massive damage awards. Our courts have, as yet, little experience with whistleblower claims and it is unclear if law enforcement agencies and the Department of Justice would welcome "citizen interference."
Clearly, there could be additional work for agencies but will government provide additional budgetary resources for investigations? Furthermore, monitoring results of whistleblower claims is unchartered territory. How will success be measured? By the amount of cash returned? By the types of abuses revealed? By the number of claims?
At this point, it may be wise to revisit the British model, which focuses on education and training, as well as revelations regarding corruption. The Public Interest Disclosure Act was passed in 1999 after extensive discussions with Public Concern at Work, a charitable whistleblowing centre, which does not litigate. Instead, it is an official advice centre for the British Bar Association.
The act which focuses on the message, rather than the messenger, simply amended British employment law, covering workers in both the public and private sector. Complaints are sent to specialized Employment Tribunals, which do not have the force of law, but are persuasive.
In 2004, 1,500 claims were settled. There is no reward incentive, however there is not a cap on compensation. The largest award so far is #805,000 -- almost $2 million.
In the end, the Harper government must move forward. Canada is far behind other countries in protecting workers who are prepared to speak out about wrongdoing. Workplace culture is already shifting from traditional values to new practices.
But how much change can we absorb and at what rate? Before we go too far down the road in a different direction, let's be sure we know what type of whistleblowing culture Canadians want to foster.
______________________
Penny Collenette is executive in residence, School of Management, and adjunct professor, Faculty of Law, at the University of Ottawa, and education adviser for the Institute of Corporate Directors.
Drug Investment Fund. The strange thing is that the initials of the fund put this way, match the initials of the fund if the real name of the drug is inserted.
Sam, thanks again for everyone's sake that is interested and learning. I wish I had you on my side when the case took place and ended up with an outcome not as complete loss but pretty good for them, if nothing further is done.
I still think I have options if nothing else as a "concerned" citizen living in fre country with freedom of speach and expresion. I must be careful though, for I did sign a release that covers some aspects of the case but no mention of whistleblowing, misconduct or violations of any kind. Basicaly I was ushered out with some chicken bones throughn(?) in. The fact that I did indicate in no ancertain terms that documents, audiotapes and lists of
recepients" exist did not faze them and in fact no one I dealt with would want to talk to me inspite numerous offers but only via e-mail.
The whole thing, if written up would read as a best seller, except no sex or violance at least until now.
I am very encouraged by those who took their time and their knowledge to contribute. It is heart worming to say the least.
We will continue to seek Canadian sources for info and maybe someone like Sam will contribute "Canadian" style.
Anonymous (Drug Investment Fund):
I would urge you to get in contact with Jeb White at Taxpayers Against Fraud in Washington, D.C. (toll free number posted at www.taf.org)
Jeb actually keeps caught up even on Canadian developments and the law, despite his very heavy emphasis and knowledge of the law as it exists through all the many states and federal circuits in the U.S., and is a tremendous source of legal advice. (Just give him the background and information in a hypothetical format as you have here and you should be within the guidelines of the confidentiality requirement for now; and he may be able to tell you if you have any rights still that would make at least portions-- if not all-- of that confidentiality agreement null and void.)
Many times mistakes are made by attorneys drafting such documents that can make them non-binding and null from the beginning.
Additionally, they are often used to intimidate the smaller party into believing that they have waved "all" rights to ever speak of the case or any elements involved, when that is not always the case, however convincingly they sell it to that departing employee.
One cannon of contract law that I believe exists in most common law countries-- it certainly does in the U.S.-- is that whenever an ambiguity exists in a contract it is to be interpreted in favor of the non-drafting party.
(That's the rule that levels the playing field. Like the parent who says to their two kids when there's only one piece of pie left that both kids are to share and the parent wants to ensure that they each get an equal piece not disadvantaged by the cleverness of an older or more shrewd child to take advantage of a less experienced sibling. The wise but trusting parent may give them free reign to negotiate their own contract, but places on them the rule that the older one can divide the pie anyway they like, but the younger one gets to pick which piece he wants or else nobody gets any. Suddenly the more shrewd child becomes very careful about ensuring "equal portions" so he or she doesn't end up with the smaller piece or none at all. And that's essentially the principle the law is implementing here as a rule that exists despite the "freedom to contract" held by any and all parties.)
That may be helpful in getting at least some wiggle-room if indeed the whole agreement itself can't be thrown out.
Also, in the U.S., and I believe most common law countries, if a contract is counter to public policy it is unenforceable.
That is to say, in a place where prostitution is illegal, for example, a contract to pay, even if drafted perfectly, cannot be upheld as it violates public policy and criminal laws, and the "John" cannot be made to pay under such a contract no matter how vigorous the legal argument by the craftiest lawyer.
Similarly, a meth dealer cannot have a contract to pay that was "negotiated" with a buyer upheld in court for the same reason-- runs contrary to public policy and criminal laws and is therefore null and void.
Some contracts have "savings" clauses that read something to the effect that:
Paraphrasing:
if any provision in this contract is found to be null and void, it shall be deemed to have been entered into without that provision but in accordance with [all necessary requirements to make a contract binding] making all other provisions binding and enforceable.
A phrase like that would keep the bulk of the confidentiality agreement binding, while still nullifying any parts that would violate the law.
It could be for that reason that they left out bans on whistleblowing in the agreement, or it really might have been an oversight of an ill-intentioned but poor draftsman of a lawyer. (Sadly, I've seen examples of both kinds.)
But it would be worth getting some feedback in a hypothetical at least of just what your rights could be and how loose or non-binding the contract might be.
When it comes to patient safety and stopping corrupt practices of money over patient safety, or access (via dried up insurance and govt. budgets due to fraud & theft that leave far less than enough $$ for others to get access to care); I'm all for shouting the stories from the rooftops! I believe that jail time, fines, and wide spread public shame would go a long way in curbing the corruption.
(Some people care about their reputation and what people think of them while others care only about their bottom line; but both are so negatively impacted well-publicized shame that both reputations and stock prices go in the toilet and it quickly deters the next group from repeating the crime-- which is why all of this fraud always seems to be done in the shadows, if a messenger steps forward they kill the messenger, and then silence him or her with an agreement they hope will shut them up as much as if they had literally killed them at that time (rather than just slowly killing them by having stolen their job, reputation and livelihood).
I agree with you about needing to be cautious because of that agreement, and don't act without some good legal advice to help you know your rights if you speak up; but also take heart that you may not be as bound to secrecy as they may have implied with that agreement-- it will be a very fact specific analysis to determine just how binding or non-binding the agreement is and what may or may not be among the only things you truly have to stay quiet about.
Start with Jeb White at Taxpayers Against Fraud. Nothing to lose since the call and advice will be free and since his life's work is helping whistleblowers.
Only give him information in hypotheticals so as not to breach any contracts or lose potential confidentiality rights that you yourself are entitled to.
He's got a great legal mind, but anything he can't tell you he can get you information and resources to help with.
And post again if there's anything else I can throw your way.
P.S. If nothing else works out for reporting (even though I think that it would-- it sounds like laws were certainly broken and that the best case scenario is that they stopped the fraud at the time of termination-- without any punishments to anyone but the one who wasn't breaking the law (the whistleblower) and no money ever paid back or patient safety better secured. And it's quite likely the point of getting rid of the messenger in addition to "stopping their fraud" was simply to be able to start up again as soon as you were gone, or as the only way to get an employee to legally bind himself to not tell anyone-- since it's really hard to go up to an employee and say, "I know you know that we were breaking the law and that leaves us with only one of two choices: offer you a cut of the take as a pay off to keep you quiet or dismiss you so that we have a way to ensure even further that you would stay quiet by now having a way to get you to sign a contract that you won't tell anyone." Because laws were broken, money never reimbursed, patient safety never secured thereafter, and the high probability that the same fraud is continuing-- most certainly by that drug company in other offices running the same scheme, and possibly even with this same doctor again.) But, if nothing still didn't happen, perhaps you could write a book or find a way to tell the story broadly by chaning the names and simply stating that it was BASED on a true story-- at least as a warning to the publc at large. (But be careful about even that until you get good legal advice as to just how far you can go without breaching your agreement.) But taxpayers, patient advocacy groups, patients, medical boards, and prosecutors should all be angry about this-- both by the docs and the drug company-- and its frustrating to see how slowly and little things seem to really move to stop or change the bad behavior.
Again, BRAVO! Sam.I am in.Will do what ever can be done and am sure I can count on help on both side of the border.A lot what you suggested I thought of but was searching the way to do it. You are very right about that release, it covers very little and narowly but they did exactly what you said; scared the hell out of me, at least they think so. In few minutes I will send that e-mail to doc, as he suggested, early in drug fund discourse. I am providing him with some info not seen here, few suggestions and if he agrees he can transfer my e-mail address to you if you would like to contac me directly, by providing your e-mail to the doc. It is the only way to make contact. Hope the doc will agree. I can't imagine why not.
If you did not see the first comment by "should more be said" in the Whistleblowers:crazy pople?
looke it up. It will give you pretty good idea and confirm what you too know how cases end. As to machinacions of this bunch, the investment fund is just the proverbial tip of the iceberg.
Lets do it!
Sam, what happened? I hope you are not finished, now that it is starting to look interesting and perhaps may even bring in some fruit for our side. Same with you doc. The only way we can win if we stop being "an island" as individuals and become an archipelago (maybe misspelled) against the rock of Gibraltar that big pharma thinks and acts it is. It may take only removal of one major stone in the wall of their fortress and the game may change in our favour if not over for them.
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