Burns & Levinson Announces $13 Million Settlement of Whistleblower Case for Dennis W. Burke, M.D., with Massachusetts General Hospital Over Concurrent Surgeries

BOSTON, Nov. 8, 2019 /PRNewswire/ -- Burns & Levinson announced today that the parties in Burke v. MGH et al., have resolved their differences and settled the pending litigation in Massachusetts Superior Court. Ellen J. Zucker, a partner at Burns & Levinson in Boston, served as lead counsel representing Dr. Burke.

The case involved claims brought by Dennis W. Burke, M.D. ("Dr. Burke"), an orthopaedic surgeon who served as a member of the Medical Staff at the Massachusetts General Hospital ("MGH") for 35 years. In August 2015, MGH terminated Dr. Burke's clinical privileges and his Medical Staff appointment. Dr. Burke alleged in the pending litigation that MGH took this action in retaliation for his having raised concerns about serious patient safety and disclosure issues attendant to the practice of concurrent surgery at MGH.

Yesterday's settlement of his claims include the following material terms:

(i)  MGH has agreed to pay Dr. Burke $13 million in settlement of his claims against the institution;

(ii)  MGH has offered to restore Dr. Burke's clinical privileges in full and to reinstate him as an active Member of the MGH Medical Staff and has reported its decision to restore his privileges to regulatory authorities. As Dr. Burke has declined MGH's invitation to return, the Trustees shall appoint him to the Honorary Staff at MGH, consistent with Section 2.03.3 of the Bylaws, which provides that former members of MGH's Act Staff may be appointed by the Trustees "as an acknowledgement of honor and respect;" and,

(iii)  MGH has established a quality and safety educational initiative in Dr. Burke's name at MGH's Main Campus with an annual lecture to which he and residents in the Harvard Combined Orthopaedic Residency Program will be invited. 

During his tenure at MGH, Dr. Burke was known for his extraordinary clinical skills and his passionate commitment to his patients as well as to MGH as an institution. He was honored by residents, colleagues and MGH itself. In 2009, he received one of the highest honors MGH bestows upon clinicians, with the following explanation: "[With Dr. Burke], from start to finish, patients feel cared for and feel they receive top care. They are and they do. His 'call with anything' motto applies to all, including nurses, residents and fellows. He answers pages delighted that you contacted him. His patients are his top priority, and, following his lead, they become our top priority …. He is one of the most dedicated and compassionate doctors I have known. He is a superb surgeon who is well recognized in his field. He spends countless hours with patients in different clinical settings."

At MGH, as at some other academic medical centers, some surgeons were permitted to schedule elective and non-emergent surgeries to occur in two rooms simultaneously. The practice has become known as "concurrent surgery." Dr. Burke opposed this practice, based on his belief that it poses a significant risk to patient safety and that patients have a right to be informed in advance of any surgery where this practice might be employed. Dr. Burke raised concerns about this practice internally and then to the Board of Registration in Medicine, as well as other regulatory authorities. This year, the Board promulgated regulations that limit the practice and set standards for informed consent. 

The settlement was a negotiated resolution of a lawsuit and not an admission of wrongdoing or liability by any Defendant.

In reacting to the settlement, Dr. Burke states: "There is much about this journey that has been challenging for me, but I don't regret the path I chose. At this time, let me say simply that I am gratified by the actions MGH has taken in recent years to address the issue of allowing surgeons to operate in two rooms simultaneously, and I am humbled by its approach to the resolution of this matter. It is heartening that, over time, MGH has determined to embrace changes and has engaged in a dialogue designed to foster patient safety and quality improvement. I am moved that MGH is undertaking a quality and safety initiative in my name, with annual lectures to be held. While the initiative may carry my name, this honor truly belongs to the nurses, anesthesiologists, residents, and other surgeons here and across this country who have spoken up for patient safety and transparency."

"As for me, I am beyond grateful that MGH has offered to reinstate me as an active member of the Medical Staff and to restore my clinical privileges in full. Since leaving MGH, I have been fortunate to care for patients at the Beth Israel Deaconess Milton Hospital, with a team of professionals who are extraordinary for their skill, compassion and dedication to each patient who entrusts us with their care. So, for me, I intend to remain part of the MGH community as a member of its Honorary Staff, and I thank the Board of Trustees for bestowing this recognition upon me." 

Also engaged in this effort was the law firm of Cunningham Levy Muse LLP in Washington, D.C.

Upon the settlement of this litigation, Ms. Zucker stated: "It has been a true honor to represent Dr. Burke. Dr. Burke has long been recognized as an extraordinarily skilled surgeon and deeply compassionate caregiver, and his recent journey confirms what those close to him have always known: he is a person of immense decency, great principle and humility.   

"It is difficult to raise safety concerns in the workplace – any workplace – and Dr. Burke has done so with enormous grace and a deep fidelity to the principles of his profession. To us, Dr. Burke is a hero. He stood up for patients, even when it risked his own position. We are pleased that this matter has been resolved in a way that honors him and MGH. For, whatever the differences that resulted in this litigation, MGH is a cherished institution, where some of the brightest and most dedicated, creative physicians and scientists go to work every day to care for the sick and make our world a healthier place. Today, we see it at its best, an institution that is willing to take lessons from difficulties, to learn and to grow. We are gratified that MGH, as part of its own journey, has seen fit to recognize Dr. Burke's contributions, and to give Dr. Burke the recognition he rightly deserves."

About Burns & Levinson LLP

At Burns & Levinson, we provide high-level, client-centric and results-oriented legal services to our regional, national and international clients. We are a full-service law firm with over 125 lawyers in Boston, Providence and other regional offices. Our areas of expertise include: business/finance, business litigation, divorce/family law, venture capital/emerging companies, employment, estate planning, government investigations, intellectual property, M&A/private equity, probate/trust litigation, and real estate. We partner with our clients to solve their business and personal legal issues in a collaborative, creative and cost-effective way. For more information, visit Burns & Levinson at www.burnslev.com.

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