NIH Whistleblower Returns to Office

WASHINGTON – A medical safety expert whose firing drew national attention to the lack of whistleblower protections in some areas of federal research is back on the government payroll.

The National Institutes of Health's reinstatement of Dr. Jonathan Fishbein settles a two-year battle that prompted investigations into allegations of scientific misconduct and sexual harassment in federal AIDS research.

Fishbein alleged he was fired for raising safety concerns in government experiments. NIH said he was fired for poor performance even though he had been recommended for a cash performance bonus just weeks before he was notified of his termination.

He was among NIH whistleblowers whose plight was highlighted in Associated Press stories over the last year examining allegations of safety problems with federal AIDS research in the United States and Africa, sexual harassment of female NIH workers and the use of foster children to test AIDS drugs.

Fishbein was formally reinstated Dec. 12 and now is special assistant to the deputy director of NIH's National Institute of Allergy and Infectious Diseases, but he is unlikely to return directly to that office.

Fishbein is to look for a new assignment in government but has been returned to the federal payroll, according to government officials.

Fishbein's lawyer confirmed the reinstatement Friday.

"The medical community owes a debt to Dr. Fishbein for his integrity and courageous efforts to ensure that humans are protected when they participate in drug trials," attorney Stephen Kohn said.

Numerous members of Congress, Republicans and Democrats alike, urged NIH not to fire Fishbein, saying he had raised important issues about the way patients are protected in government experiments.

Fishbein, an accomplished private-sector safety expert, was hired by NIH in 2003 to improve the safety of its AIDS research.

He alleged he was fired because he raised concerns about several studies and filed a formal complaint against one of the division's managers alleging sexual harassment of subordinates and a hostile workplace.

An administrative law judge originally ruled that Fishbein and hundreds of other doctors and medical safety experts like him had no whistleblower protections, like normal federal workers, because they were hired outside the civil service system as special employees at a higher salary.

The government subsequently reversed course and argued that such workers should have some protections if they blow the whistle. NIH still proceeded to fire Fishbein.

An internal report to NIH chief Elias A. Zerhouni substantiated many of Fishbein's allegations, calling the agency's AIDS research division "a troubled organization" whose managers engaged in unnecessary feuding, sexually explicit language and other inappropriate conduct that hampered its global fight against the disease.

The review also concluded NIH's efforts to fire Fishbein gave the "appearance of reprisal." The report said no documentation was ever provided to him suggesting poor performance until after he complained about the safety in one sensitive AIDS study and filed a formal complaint alleging that the division's deputy director was acting unprofessionally with subordinates.

In addition, NIH's chief of AIDS research testified in a deposition this summer that the agency originally planned to transfer Fishbein to a different job in transplant and immunology research but decided instead to fire him when Fishbein filed an Equal Employment Opportunity Commission complaint.

In its stories over the last year, the AP reported:

—One of NIH's AIDS study in Africa violated federal safety regulations.

—Senior NIH managers engaged in sexually explicit pranks and sent expletive-laced e-mails to subordinates.

—NIH-funded researchers used foster children to test AIDS drugs since the late 1980s, many times not providing a basic protection afforded by federal law and required by some states. A subsequent federal investigation concluded at least one of the research institutions in those studies failed to comply with federal safety regulations.