Kenyon: The true cost of lawsuit for Dartmouth Health

Jim Kenyon. Copyright (c) Valley News. May not be reprinted or used online without permission. Send requests to permission@vnews.com.
Published: 04-18-2025 4:57 PM |
Money wasn’t all that Dartmouth Health lost last week when a U.S. District Court jury awarded a Norwich fertility doctor more than $1 million in damages for her unlawful firing in 2017.
Its credibility took a hit as well.
Thanks to internal emails that surfaced in Dr. Misty Blanchette Porter’s wrongful termination case, the public learned that Dartmouth Health doesn’t have a problem bending the truth to suit its needs. Even in matters of patient access.
In May 2017, Dartmouth Hitchcock Medical Center, the flagship of the Dartmouth Health fleet, abruptly announced it was closing its division of reproductive endocrinology and infertility, or REI, after serving thousands of patients over 30 years.
Shortly before turning off the lights, Dr. Ed Merrens, DHMC’s chief clinical officer, stated publicly that a nursing shortage was at the root of the decision to stop caring for patients with a wide range of reproductive hormonal and infertility issues.
Now fast forward nearly eight years to the trial’s closing arguments at the federal courthouse in Burlington last week.
Boston attorney Donald Schroeder, who headed Dartmouth Health’s defense team, acknowledged to the jury that a lot was going on behind the scenes at DHMC a decade ago that it didn’t want the public to find out about.
DHMC’s three fertility specialists were at loggerheads. Blanchette Porter, who joined the REI staff in 1996, had lodged complaints about “improper, incompetent and harmful conduct” by her two colleagues. For her part, Blanchette Porter was not considered a team player.
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But Schroeder wanted to make one thing clear to the jury. “Dr. Merrens had no knowledge of (Blanchette Porter’s) history of complaints,” he said.
When Merrens finally learned about the infighting, he had no choice but to shut down the REI program and fire the three doctors, Schroeder said. (I find it hard to believe that Merrens acted on his own, but that’s the story Dartmouth Health is sticking with.)
If Merrens had disclosed that “all the doctors couldn’t get along in the sandbox,” Schroeder told the jury, “it would have been unprofessional and caused more problems.”
Problems for whom? Dartmouth Health’s marketing and public relations teams, for sure.
DHMC’s administration also would have had some explaining to do to the patients who had put their trust in the physicians and institution caring for them.
“It was a dumpster fire,” Schroeder informed the jury. “(Merrens) was under no obligation to share information with the media and the public.”
I beg to differ.
Dartmouth Health seems to have conveniently forgotten that being a nonprofit organization isn’t a one-way street.
In exchange for the massive tax breaks it enjoys, Dartmouth Health has a duty to remain upfront in its dealings with the public.
“Hospital transparency matters,” Norwich attorney Sarah Nunan told the jury. “The public has to trust that top administrators are going to tell the truth.”
Nunan, the law partner of attorney Geoffrey Vitt, who has handled Blanchette Porter’s case from the start, didn’t stop there. “Dartmouth Health took no action to protect patients from harm,” she said. (Though Merrens testified that he was not aware of any harm to patients.)
While acknowledging that Blanchette Porter is a “talented surgeon,” Schroeder argued that the case was about her “own financial gain.”
He reminded the jury that in early June 2017, Blanchette Porter had asked DHMC to sweeten its severance package from 24 weeks to 36 weeks. DHMC agreed, offering $228,000.
But there was a catch.
“Acceptance of the severance agreement required I never speak about the events at Dartmouth Health surrounding the closure of an essential women’s health care service, or the harm done to patients,” Blanchette Porter told me this week via email.
In the end, the jury sided with Dartmouth Health in five of the lawsuit’s six claims, finding it hadn’t violated the New Hampshire Whistleblowers’ Protection Act or the American with Disabilities Act.
But as the expression goes, it takes just one.
The jury found Dartmouth Health had failed to meet Vermont Fair Employment Practices, relating to Blanchette Porter’s disability. In late 2015, she suffered a cerebral spinal fluid leak that required multiple surgeries at Mayo Clinic in Minnesota and two lengthy leaves of absence from work.
A “preponderance of the evidence” showed Blanchette Porter’s disability was a “motivating factor” in her firing, the jury determined. (Since Blanchette Porter lives in Norwich, she could file her lawsuit in a Vermont federal court.)
After deliberating for almost 20 hours, the jury awarded Blanchette Porter $1.125 million in damages.
Dartmouth Health also could be on the hook for her legal fees, which the trial judge will determine.
Considering the case has been going on for 6½ years and big-time Boston law firms aren’t cheap, I wouldn’t be surprised if Dartmouth Health’s own attorney fees have stretched into the millions. (I asked Dartmouth Health for an estimate, but didn’t get a response.)
Dartmouth Health could still appeal the verdict. But even if it doesn’t, the case is unlikely to leave the public eye anytime soon.
Susan Burton, host and reporter of The Retrievals, a 2023 Peabody Award-winning podcast series from The New York Times and Serial Productions about abuse suffered by patients at a Yale fertility clinic, was among the courtroom’s regular spectators.
She was taking notes for a story on the case.
Jim Kenyon can be reached at jkenyon@vnews.com.