BURLINGTON — After deliberating for nearly 20 hours over three days, a U.S. District Court jury awarded $1.125 million in damages this week to a former fertility doctor at Dartmouth Hitchcock Medical Center after finding her 2017 firing violated Vermont’s disability discrimination law.
The jury of six women and six men determined that Dr. Misty Blanchette Porter, of Norwich, was entitled to $1 million in economic damages, such as lost income and expenses. She was entitled to an additional $125,000 in non-economic damages such as “lost enjoyment of life, mental anguish, or pain and suffering,” the jury found.
But on the five other claims it was asked to consider, the jury decided in Dartmouth Health’s favor each time, which the nonprofit health care system stressed in a statement released following the verdict.
“We are gratified that the jury agreed with Dartmouth Health,” spokeswoman Audra Burns said via email when asked about Thursday afternoon’s verdict. “They found no retaliation, no wrongful discharge, no disability discrimination under New Hampshire law, and no violation of the Americans with Disabilities Act. Additionally they found no whistleblower liability, and rejected the plaintiff’s claim for punitive damages.”
The verdict allows Blanchette Porter’s attorneys to seek legal fees, which could add to the total cost for DHMC. The amount will be determined by U.S. Magistrate Judge Kevin J. Doyle, who presided over the trial, at a later date.
Blanchette Porter couldn’t be reached for comment following the verdict.
Norwich attorney Geoffrey Vitt, who has headed her legal team since the start of the suit 7 1/2 years ago, said that Blanchette Porter is “thrilled with the verdict and feels vindicated that the jury found discrimination and awarded substantial damages.”
The verdict brought an end to a 14-day trial that saw 20 witnesses, including Dartmouth Health CEO Joanne Conroy, take the stand.
As of Friday, it wasn’t known if Dartmouth Health, the parent organization of DHMC, planned to appeal the verdict.
Blanchette Porter was among three fertility doctors terminated when DHMC abruptly shut down its division of reproductive endocrinology and infertility, or REI, in May 2017.
In her lawsuit, Blanchette Porter alleged that DHMC had retaliated against her for blowing the whistle on “questionable medical practices” in the REI program.
Dartmouth Health denied the allegation throughout the trial. In his closing argument on Tuesday, Dartmouth Health’s lead attorney told the jury that Blanchette Porter had tried to make the shuttering of the REI division a “big conspiracy” against her.
“It was another example of her ego getting in the way,” said Donald Schroeder, who practices in the Boston office of Foley & Lardner. “This was not about her. It was a tough business decision.”
Blanchette Porter’s lawsuit also claimed that her disability played a part in DHMC’s decision not to keep her on staff after the REI program shut down. She had asked to remain on the medical staff as a surgeon in obstetrics and gynecology and to assist in radiology, a field where she’s nationally known for her expertise in interpreting pelvic ultrasounds.
Blanchette Porter, who joined the DHMC staff in 1996, contended that not keeping her on as a non-REI physician was pretext for unlawful retaliation and disability discrimination. In 2015, she developed a cerebral spinal fluid leak that required multiple surgeries at Mayo Clinic in Rochester, Minn., and two lengthy leaves of absence from work.
Since Blanchette Porter lives in Norwich, she was allowed to file her lawsuit in Vermont.
It proved key in the trial when the jury supported her claim that by her firing her, Dartmouth Health had violated Vermont’s disability discrimination law.
Blanchette Porter’s disability was a “motivating factor” in Dartmouth Health’s decision to terminate her employment — a violation of the Vermont Fair Employment Practices Act, the jury found.
Dartmouth Health’s statement didn’t mention the claim it lost under Vermont’s disability discrimination law nor that the jury had awarded more than $1 million in damages.
Vermont economist Robert Bancroft, hired by Blanchette Porter’s lawyers to testify as an expert witness, put her economic loss at nearly $1.8 million — about $800,000 less than the jury ended up awarding in that category.
At the time the REI clinic was shut down, Dr. Ed Merrens, DHMC’s chief clinical officer, told the media that a nursing shortage was to blame.
During the trial, however, the jury was shown internal emails that indicated more was going on behind the scenes than DHMC was willing to share with the public.
While DHMC was “pinning the dissolution of our reproductive endocrinology program on our failure to maintain and recruit nurses for this work, it is ultimately the dysfunction of the physicians who worked in this area for years (as well as recent hires) and ultimately a failure of leadership,” Merrens wrote in an email to DHMC’s head of human resources, shortly after the closure was announced.
The REI division, which was started in the mid-1980s, cared for thousands of people with a wide range of reproductive hormonal and infertility issues during its 30 years of operation.
In 1987, DHMC became the first hospital in northern New England to have a “test tube” baby born through in vitro fertilization, or IVF.
Since the REI program closed, Upper Valley patients who want to pursue IVF treatments have had to travel to the Burlington area or southern New Hampshire for their nearest care options.
Blanchette Porter, 62, now practices at the University of Vermont Medical Center in Burlington, joining the REI staff at the state’s largest hospital, shortly after DHMC closed its program.
