Surgeon wins $1.6 million sex bias verdict

A federal jury has found that a prominent neurosurgeon and Brigham and Women’s Hospital subjected a female surgeon to a hostile work environment and then retaliated against her when she complained.

On Feb. 24 jurors awarded $1.6 million in damages to Dr. Sagun Tuli, 39, who had complained for several years about discriminatory treatment by Dr. Arthur Day, 61, chairman of Brigham and Women’s Hospital’s neurosurgery department.

Click here to read a related article, “Tips for avoiding communication problems in the hospital.”

Margaret M. Pinkham, a partner at Brown Rudnick in Boston who represented Tuli, credited her client with pursuing the case through a six-week trial.

“It would have been a lot easier for Dr. Tuli to let this go,” she said. “It takes a special person to stand up and take it all the way through a long, grueling trial.”

Both surgeons are still working at Brigham and Women’s; their testimony presented starkly differing views of the inner workings of the hospital’s male-dominated neurosurgery department.

“Medicine is still generally an old boys’ network, and particularly surgeons and neurosurgeons,” Pinkham said. “Every witness agreed it’s a male-dominated field.”

The trial also offered a rare glimpse into the hospital’s confidential peer review process. Tuli claimed that during the process she was slandered by Day and then retaliated against by the hospital.

Pinkham said she was able to unearth many of the notes relating to the peer review process because the case was filed in federal court. Under state law, such material is confidential.

Tuli and other witnesses said that Day trivialized female doctors, frequently referring to them as “girls.”

He also allegedly questioned Tuli’s surgical judgment, asking, “What’s the matter, are you afraid you can’t handle it because you’re a girl?”

At a hospital dinner, Tuli claimed, Day asked: “Sagun, can you get up on the table and dance for us to show the female residents how to behave?”

And in his October 2007 evaluation – laden with gender stereotypes and negative generalizations – Day skewered Tuli, claiming she suffered from “mood swings,” “volatile” behavior and an inability to work with staff, according to Tuli and Janet Barnes, the hospital’s risk manager.

Although a human resources investigation corroborated many of Tuli’s allegations about Day, the hospital failed to take any action. Instead, Tuli was ordered to undergo an evaluation to determine her fitness to retain privileges at the hospital.

Hostile work environment

After deliberating for two and a half days, the jury of seven men and two women found that Tuli was subjected to harassment, ridicule, intimidation and other abusive conduct by Day because of her gender or national origin.

The hospital was ordered to pay $1 million for subjecting Tuli to a hostile work environment. The jury also found the hospital liable for retaliating against Tuli by requiring her to be evaluated by outside physicians after she complained about Day, and assessed an additional $600,000 in damages.

Day was found liable for slandering Tuli and intentionally interfering with her relationship with the hospital. He was assessed $20,001 in damages for interference ($20,000 for economic damages and $1 for non-economic damages), but only nominal damages of $1 for slander.

Jurors found in favor of the hospital on Tuli’s claims of disparate treatment and unequal pay.

The hospital said it is considering whether to file an appeal.

In a statement, Robert Hamel Jr., the hospital’s lead counsel, said he was disappointed in the findings against the hospital, but “pleased that the jury recognized that Dr. Tuli had been paid fairly by the hospital in comparison to male doctors in rejecting both her state and federal pay claims.”

John Ryan, Day’s attorney, said he is pursuing post-trial motions to have the findings vacated, and that he believes there are “flaws in certain of the jury’s findings regarding Dr. Day.”

“Dr. Day is an outstanding neurosurgeon whose character is best exemplified in the thousands of patients whom he has cared for during his career,” Ryan added. He “looks forward to continuing his work now that this trial is over.”

Complaints ignored

An assistant professor at Harvard Medical School, Tuli, who specializes in spinal surgery, is the first and only female neurosurgeon of Indian descent at a Harvard Medical teaching hospital.

She and Day both joined the department around 2002. Their relationship deteriorated around 2004, and Tuli began complaining that Day did not take her seriously as a peer.

His comments went beyond trivializing female doctors, however, with his suggestion of table-top dancing at a year-end party for residents in 2004. (Day denied the allegation; there were no other witnesses who overhead the alleged remark.)

In 2005, an investigation by the hospital’s human resources department corroborated some of Tuli’s allegations, but no action was taken.

Over the next two years, Tuli raised her concerns about Day with several hospital officials, including Andy Whittemore, the hospital’s chief medical officer.

Although in a 2006 e-mail Whittemore acknowledged the seriousness of Tuli’s complaints and pledged that the hospital would protect her rights, he also suggested that she leave Brigham and Women’s, because she “really might benefit from moving to another setting with a clean slate.”

Tuli was a key witness during the trial. Day also testified, but downplayed his comments about women surgeons, according to Pinkham.

“He admitted he would make comments relating to gender, but testified that it was in the spirit of joking,” she said.

The hospital contended that Tuli had “interpersonal problems,” specifically in dealing with other physicians and staff, including Day.

But Barnes, the risk manager, testified that she was concerned Tuli’s behavior was evaluated in a way that male surgeons’ wasn’t.

And several staffers and physicians backed up Tuli’s allegations.

Dana Thomas, a surgical technician, and Robin Beal, a patient service representative, testified about Day’s biased treatment of female doctors.

In addition, Dr. Peter Black, the former chair of the Brigham and Women’s neurosurgery department, testified at trial he had heard Day call female doctors “girls,” according to Pinkham.

Questions or comments can be directed to the writer at: nora.tooher@lawyersusaonline.com