Federal doctors get whistle-blower shield

WASHINGTON — Reversing course, the government has concluded that thousands of federal doctors and medical researchers who receive higher-than-normal salaries deserve the same protection to blow the whistle on wrongdoing as other civil servants.

The decision by the U.S. Merit Systems Protection Board supersedes an earlier ruling that had denied National Institutes of Health safety expert Jonathan Fishbein protection from firing under the Whistleblower Protection Act.

The ruling is too late to affect Fishbein, who was reinstated by the government recently and settled a lawsuit alleging he was fired for blowing the whistle on safety problems with federal AIDS research.

But the board's conclusion has implications for thousands of other federal researchers and doctors brought in from the private sector to conduct important government research, medical work and safety reviews.

These so-called Title 42 workers were hired under a special provision of law that paid them salaries higher than the normal civil service to compensate them for what they could make in the private sector.

An administrative law judge in late 2004 concluded that the higher paid workers weren't entitled to whistle-blower protection.

The board, however, disagreed and last month concluded that nothing in the Title 42 law precluded those workers from enjoying the same protections as other civil servants.

"The board will construe its (the law's) provisions liberally to embrace all cases fairly with its scope," the ruling said.

Allegations by Fishbein and NIH colleagues of a hostile work environment and shoddy, unsafe research among vulnerable AIDS patients were highlighted in a series of Associated Press stories that led to several investigations and changes inside NIH.

The stories documented how a government-funded AIDS research project in Africa violated federal patient safety rules, how foster children were used to test powerful AIDS drugs without promised protections, and how female NIH safety experts reported being intimidated by sexual harassment from reporting safety problems.

Fishbein's lawyer on Monday said the new decision closed a "dangerous loophole" that could have kept researchers with knowledge of wrongdoing from coming forward.

"Dr. Fishbein took a courageous stand in demanding full whistle-blower protection in the face of a hostile federal bureaucracy," Attorney Stephen Kohn said. "Other Title 42 employees with information about wrongdoing can now blow the whistle and obtain protection."