Unfortunately, yeah, it’s the VA again. Or is it?
ITEM: VA Tries, Fails to Muzzle Ex-Employee
In the Washington Post, law professor Eugene Volokh beats them up over a gag rule that VA imposed on a fired whistleblower as a condition of taking a payoff to quit:
in January 2013, she and the VA settled their case: Aurore C. would resign, the VA would pay her $128,000, and
[Aurore C.] shall be prohibited from making any complaints or negative comments to any member of Congress or their staff, or any newspapers or media or their staff, or any other public forums, about the facts of this Settlement Agreement or the facts or conditions that led up to this Settlement Agreement.
In what seems to us (no lawyers here!) to have been a hearing before an Administrative Law Judge of the EEOC, this bold attempt to muzzle a mistreated employee was squelched on constitutional grounds.
But two weeks ago, the Equal Employment Opportunity Commission set aside the no-negative-comments clause “as an unlawful, overly restrictive confidentiality limitation, because it expressly deprives Complainant of her ability to contact Congress and otherwise limits her First Amendment Rights to communicate with the media about any of her [employment discrimination] claims.” (Aurore C. v. McDonald, decided Apr. 14, 2016.)
You might be thinking that private employers and other litigants do this all the time, in settlement terms; what’s the big deal? Per Prof. Volokh, it’s that VA is a government agency, which makes prior restraints on speech a “complicated question” compared to the private sector, where these kinds of settlement gag clauses are so common as to be standard — and are enforceable.
As usual, Volokh has deep insights, which we’ve trimmed for brevity:
I’m inclined to think that such a nondisparagement agreement, aimed solely at preventing embarrassment to the employer (rather than, say, preserving client privacy or national security secrets), is unconstitutional.
What troubles me more, though, is the political accountability question. Whether or not such agreements violate the First Amendment, should an executive agency really be trying to restrict its former employees from complaining about the agency to Congress, or to the public at large?
In Ms. C’s position, if the appeal to EEOC had not availed, she could not have said anything bad about the VA or its employees, like Secretary McDonald. Of course, nothing would have stopped her from going around to anybody she knows, saying, “Bob McDonald is the kindest, bravest, warmest, most wonderful human being I’ve ever known in my life.”
ITEM: Maybe It’s Not Just the VA
Here’s a headline to conjure with: Medical Errors are Third-Leading Cause of Death in the US.
This paper builds upon a recent study that found that more than 210,000 deaths per year occur due to medical errors. When adjusting for 2013 hospital admission rates, Makary and his colleague found that the present number is more likely 251,454 deaths per year — surpassing the CDC’s stated third-leading cause of death, respiratory disease, which kills close to 150,000 people per year. The leading cause of death in the US is heart disease, followed by cancer.
Naturally, the perps Dindu Nuffin.
The American Hospital Association has historically quibbled with similar figures for hospital deaths due to medical errors, putting the true number nearer the 98,000 estimated by the Institute of Medicine. In an email to STAT, the association affirmed that the IOM report is “based on sound scientific analysis.”
What they’re arguing about seems to be whether doctor and hospital cockups are third, fourth or fifth on the death-toll scale. Does it matter?
But maybe it’s not just the VA, then.
Perfect irony: the lead author, Dr Martin Makary, comes from the John Hopkins School of Medicine. It’s the separate Johns Hopkins School of Public Health, now a fully-owned subsidiary of Mike Bloomberg, that argues we should overturn the Constitution because “guns kill” ~30,000 a year, mostly suicides.
Physicians, heal thyselves.
Heh. Save a life — shoot a doctor. Save a platoon — shoot a VA doctor.