June 23, 2018
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Jurors issue split verdict in EMMC lawsuit

By Judy Harrison, BDN Staff

BANGOR, Maine — The verdict in a case that pitted a former pediatric surgeon against Eastern Maine Medical Center and its pediatric gastroenterologist turned out to be victory for the hospital despite the jury’s finding that staff violated the Maine Whistleblowers’ Protection Act.

Jurors issued a split verdict about 6 p.m. Thursday after six hours of deliberation and eight days of testimony. The panel of six women and one man found that EMMC violated the law when supervisors asked surgeon Dr. Kristine Thayer of Hampden to modify what the hospital called “her disruptive behavior” in a corrective action plan. Jurors, however, awarded her no damages.

The jury also found that by giving her the action plan, the hospital had not forced Thayer to resign or retaliated against her for expressing concerns about the care Dr. Mohammad Tabbah was providing, as Thayer had claimed.

In addition, jurors found in favor of Tabbah of Hampden on Thayer’s defamation claim against the pediatric gastroenterologist. Although the jury found that Tabbah had made false statements to a patient’s mother about Thayer, it also found they had not damaged the woman’s reputation as a physician. To rule in Thayer’s favor, the jury would have had to find the statements had both defamed and injured her.

“We are pleased with the jury’s decision,” Frank McGuire, the Bangor attorney who represented EMMC and Tabbah, said after the verdict was announced. “We are appreciative of the jurors’ hard work.”

Thayer’s attorney, Brett Baber of Bangor, said Thursday night that his client was pleased with the jury’s decision that EMMC had violated the whistle-blowers’ law and that Tabbah had made defamatory statements about her.

Baber also said he was considering a “post-trial motion plan.”

“The court has the authority to impose fines against Eastern Maine Medical Center and to order the hospital not to engage in similar discriminatory practices in the future,” he said.

The verdict came on the ninth day of a trial that began Monday, July 12. On Thursday morning, jurors heard instructions from U.S. Magistrate Judge Margaret Kravchuk, who presided over the trial, and attorneys’ closing arguments. Deliberations began about noon.

“In this case, Dr. Thayer is asking you to bring back her reputation and restore her good name as a pediatric surgeon,” Baber told the jury Thursday.

“Care, concern and compassion [for Dr. Thayer] was brought forth by EMMC in this case,” McGuire said in his closing argument. “Dr. Thayer was not singled out but she was not exempt from the hospital’s bylaws concerning disruptive behavior by physicians.”

McGuire pointed out to jurors that they had seen corrective action plans, with the physicians’ names blacked out, which were written during the same time period and created by the same process as was the one given to Thayer. Those doctors, McGuire said, chose to remain at EMMC; Thayer did not.

Tabbah firmly denied making defamatory statements about his former colleague, McGuire said in his closing argument. The hospital took steps to correct Thayer’s “disruptive behavior” after at least half a dozen instances unrelated to Tabbah, McGuire told the jury. EMMC denied that its staff violated the state’s whistle-blower law.

Thayer worked as a pediatric surgeon at the hospital from May 2005 until November 2007. She filed the lawsuit in federal court in January 2009 seeking $1 million in damages from Tabbah and $500,000 from EMMC. Sometime after filing the lawsuit, Thayer left the practice of pediatric surgery and is now a general surgeon, Baber said last week.

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