Appeals court rejects radiologist’s attempt to revive whistleblower suit over ‘troubling’ IR colleague

A federal appeals court has rejected one Massachusetts radiologist’s attempt to revive a whistleblower lawsuit over an IR colleague’s alleged “troubling” behavior. 

The case dates to December 2020 when Susan O'Horo, MD, MPH, sued Boston Medical Center and its Chief of Radiology Jorge Soto, MD. After beginning work as IR director of quality and safety in February 2018, O’Horo alleges she faced discrimination and retaliation for sharing concerns about a “physician who was harming his patients.” 

However, a judge rejected the claims, leading O’Horo and her attorneys to file an appeal in October 2023, which the United States Court of Appeals denied on Feb. 21. The ruling remained under seal as of Tuesday, obscuring details about the resolution.

“We’re gratified by the court’s decision,” David C. Kurtz—an attorney with Constangy, Brooks, Smith & Prophete, which represents Boston Medical Center—told Radiology Business by email, declining to comment further.  

O’Horo worked at BMC from 2018-2020 and is now with Radiology Partners, according to her LinkedIn profile. An RP spokesperson could not provide comment from O’Horo by late Tuesday. Radiology Business has reached out to the IR specialist’s attorneys at Arrowood LLP and will update this story when it hears back from them. 

Law360.com first reported news of the court decision Monday.

More on the case

O’Horo said she was the only female IR in BMC’s Division of Interventional Radiology at the time of her hiring in 2018. “Almost from the outset of her employment,” colleagues at the medical center allegedly treated her differently than male counterparts. She was purportedly denied opportunities for advancement and scholarships, and her schedule was “manipulated” in ways that benefited male colleagues. O’Horo contended this was a “classic technique for retaliating against those perceived to be troublemakers,” according to the original complaint.

Her concerns stemmed, in part, from the alleged actions of a junior physician in the department, Mikhail Higgins, MD, MPH, who purportedly was labeled by surgeons as the “Boston Butcher.” The IR specialist allegedly placed an incorrect device in one patient, fractured needles during biopsies, and performed procedures on the wrong sites. He purportedly had higher complication rates for basic procedures compared to colleagues and made mistakes, one of which allegedly led to a patient’s death. 

“Dr. Higgins also behaved in a condescending and demeaning way toward female colleagues and subordinates,” the complaint charges. “Despite Dr. O’Horo’s specific and credible reports of Dr. Higgins’ clinical incompetence, nothing was done. And despite his well-known behavioral issues, nothing was done by [Department Chief] Dr. Soto to prevent Dr. Higgins from harming patients and acting in a discriminatory manner towards female co-workers.”

O’Horo claims her complaints were consistently ignored. When she attempted to blow the whistle to higher-ups, “more and more of her job duties were stripped away, she was demeaned and was targeted for continuing to report safety concerns about Dr. Higgins.” (Higgins left BMC in May 2023, according to LinkedIn, and now practices in the Bahamas. His current employer did not immediately respond to a message left on its website Tuesday.) 

“Horrified, Dr. O’Horo realized that a single, dangerous physician was not the only problem: The hospital had created a culture of silence, where quality and safety concerns fell on deaf ears—especially when those concerns were voiced by women—and were met with resistance and, even worse, retaliation,” the complaint claimed. 

O’Horo allegedly learned the “cardinal rule” was to never go around the department chief to voice concerns. She claims she was subsequently passed over for promotions and eventually reported her safety concerns to the Massachusetts Department of Public Health and board of medicine. 

“For her part, Dr. O’Horo, after having been effectively stripped of her primary job duties and after suffering years of retaliatory and discriminatory treatment, acknowledged that she had been constructively terminated by BMC and left the hospital’s employ on January 20, 2020,” the complaint states. 

In its March 2021 response, BMC and its attorneys refuted the allegations. They noted that the Department of Public Health investigated O’Horo’s claims against her colleague, finding they were “unsubstantiated.” BMC denied most of the allegations while not exploring details of the alleged patient safety incidents, citing “medical peer review privilege.” 

“Defendants deny each and every allegation of fact, conclusion of law, or other matter contained in the complaint that has not been expressly admitted herein,” the response states. 

A transcript of an Aug. 15, 2023, hearing offers further details on BMC’s arguments against the claims. Many of the allegations occurred in or before 2019 and are time-barred due to the statute of limitations, defense attorney Kurtz noted. And public health officials investigated O’Horo’s charges and ultimately determined the hospital handled them correctly. Kurtz also emphasized that O’Horo resigned and was not fired and was given a fair shot at the promotions for which she was allegedly passed up. 

“Our position is that the [department of public health] came in, engaged in an investigation as to whether or not these issues were being handled properly,” Kurtz said, according to court transcripts.  “The DPH had found there were no violations. We think that's very telling and, in fact, Dr. O'Horo said in one of her text messages that she'd have no case if that's the way that the DPH came down, and we're not saying that that's correct. But what we are saying is that the DPH came in and did an independent investigation and they found that these complaints were handled properly, so from our position we think that's incredibly telling.”

BMC attorneys made a motion for summary judgment in September 2023, which was granted, leading to the eventual appeal the following month. 

“Dr. O’Horo has not produced sufficient evidence to establish that the defendants took action against her, let alone adverse action, because of her protected activity,” U.S. Magistrate Judge Jennifer C. Boal wrote Sept. 27, 2023. “Indeed, they addressed her concerns and continued to do so even after she left. It is undisputed that Dr. O’Horo took issue with how BMC conducted its investigation of her allegations, but they did take them seriously and investigated them, including by hiring an outside consultant. For all of these reasons, Dr. O’Horo has not put forth sufficient evidence, even when considered as a whole, that would enable a reasonable factfinder to conclude that the defendants’ stated reasons for their actions were pretextual or that the real reason for their actions was retaliatory animus.”