1 2 3 4 5 6 7 8 9 10 Lawrance A. Bohm (SBN: 208716) Kelsey K. Ciarimboli (SBN: 30261 1) BOHM LAW GROUP, INC. 5205 Keamy Villa Way, Suite 105 San Diego, California 92123 Telephone: 866.920.1292 Facsimile: 916.927.2046 Matthew Brinegar (SBN: 277517) THE BRINEGAR LAW FIRM 100 Pine Street, Suite 1250 San Francisco, California 941 11 Telephone: 415.735.6856 Facsimile: 415.520.9287 Attorneys for Plaintiff PATRICK SULLIVAN, M.D. 11 12 SUPERIOR COURT OF CALIFORNIA 13 14 15 16 COUNTY OF SAN DIEGO PATRICK SULLIVAN, M.D., Case No.: 37-20 17-0000174 1-CU-OE-CTL Plaintiff, PLAINTIFF'S VERIFIED FIRST AMENDED COMPLAINT FOR DAMAGES: 17 18 19 20 21 22 23 SHARP HEALTHCARE, a California corporation, GROSSMONT HOSPITAL CORPORATION, a California corporation, and DOES 1 through 50, 1. VIOLATION OF HEALTH AND SAFETY CODE SECTION 1278.5 AND DEMAND FOR JURY TRIAL Defendants. Plaintiff, PATRICK SULLIVAN, M.D., respectfully submits this instant Verified First Amended Complaint for Damages and Demand for Jury Trial and alleges as follows: 24 CASE OVERVIEW 25 SHARP holds itself out to the public as "not for profit, but for people, which means all of our 26 resources are dedicated to delivering the highest quality patient care...." The reality is far from this 27 idealistic depiction of their mission. In fact, SHARP'S GROSSMONT HOSPITAL has been putting 28 'profits over people" for years. They have systematically understaffed the hospital, ignored 1 Plaintiffs First Amended Complaint for Damages and Demand for Jury Trial Sullivan v. Sharp HealthCare, et al. Case No.: 37-20 17-0000 174 1-CU-OE-CTL Lawrance A. Bohm, Esq. Kelsey K. Ciarimboli, Esq. Matthew Brinegar, Esq. 1 mismanagement in the Women's Center, prohibited physicians from timely accessing life-saving 2 drugs and violated patient privacy by placing undisclosed cameras in their operating rooms. 3 One of their dedicated physicians, DR. SULLIVAN, refused to remain silent in face of these 4 shocking deviations from the standard of care. Time and time again, DR. SULLIVAN sent letters and 5 emails to SHARP and GROSSMONT HOSPITAL'S leaders pleading for them to put the necessary 6 resources into the hospital, so that they could actually live up to their own standards. 7 Rather than work with DR. SULLIVAN to institute reforms, SHARP and GROSSMONT 8 HOSPITAL'S leaders enlisted key members of the nursing staff and hospital administration to harass, 9 intimidate, embarrass, and retaliate against him. This harassment included stripping DR. SULLIVAN 10 of memberships in prominent committees and volunteer positions which he had held for 11 approximately twenty (20) years; falsely labeling him as a disruptive physician; purposefully 12 engaging in insubordination; spreading false rumors that he provided poor patient care; and falsely 13 accusing him of inappropriately touching a nurse. 14 Facing an existential threat to his career and unable to put up with the constant harassment he 15 faced in the workplace, DR. SULLIVAN had no choice but to resign his medical staff membership 16 and cease providing care to women at SHARP'S GROSSMONT HOSPITAL. 17 18 PARTIES AND JURISDICTION 1. Plaintiff PATRICK SULLIVAN, M.D. (hereinafter "DR. SULLIVAN") was at all 19 times relevant to this action, a member of the medical staff of the below named Defendants. DR. 20 SULLIVAN received his medical degree from Medical College of Wisconsin in 1990. After 21 graduating from medical school, DR. SULLIVAN completed his internship at Presbyterian-St. 22 Luke's Medical Center in Denver, Colorado. DR. SULLIVAN then completed his anesthesiology 23 residency at the University of California, San Diego. In 1996, DR. SULLIVAN became board 24 certified in Anesthesiology by the American Board of Anesthesiology. While a member of the 25 medical staff of Defendants, and at all times 26 relevant to this action, Plaintiff resided in San Diego ÿ 27 County, California. I -1/ 28 _ _ 2 ÿ A V W V onruu Plaintiffs First Amended Complaint for Damages and Demand for Jury Trial Sullivan v. Sharp HealthCare, et al. Case No.: 37-2017-00001741-CU-OE-CTL Lawrance A. Bohm, Esq. Kelsey K. Ciarimboli, Esq. Matthew Brinegar, Esq. 2. 1 Defendant SHARP HEALTHCARE (hereinafter "SHARP") was at all times relevant 2 to this action a corporation in the State of California, with its principal place of business located at 3 8695 Spectrum Center Boulevard, San Diego, California 92123. SHARP is a California-based not- 4 for-profit corporation that serves San Diego County with four acute-care hospitals, three specialty 5 hospitals, three affiliated medical groups, a health plan and more than 18,000 employees. SHARP 6 was at all times relevant to this action, a business corporation, operating a medical facility in San 7 Diego, California. SHARP was at all times relevant to this action an acute care hospital facility 8 providing professional medical services through licensed California Physicians. SHARP is a 9 "hospital facility" pursuant to Health & Safety Code section 1250, subdivision (a). 3. 10 Defendant GROSSMONT 11 HOSPITAL CORPORATION (hereinafter 12 "GROSSMONT HOSPITAL") was at all 13 times relevant to this action a corporation in 14 the State of California, with its principal 15 place of business located at 5555 Grossmont 16 Center Drive, La Mesa, California 91942. 17 GROSSMONT HOSPITAL is a California-based not-for-profit corporation that is the largest health 18 care facility in East County San Diego. GROSSMONT HOSPITAL was at all times relevant to this 19 action, a business corporation, operating a medical facility in San Diego, California. GROSSMONT 20 HOSPITAL was at all times relevant to this action an acute care hospital facility providing 21 professional medical services through licensed California Physicians. GROSSMONT HOSPITAL is 22 a "hospital facility" pursuant to Health & Safety Code section 1250, subdivision (a). 4. 23 SJtW GROSSMONT HOSPITAL. Venue and jurisdiction are proper because the majority of the events giving rise to this 24 action took place in San Diego County; Defendants were doing business in San Diego County; 25 Plaintiffs employment was entered into in San Diego County; Plaintiff worked for Defendants in 26 San Diego County; the damages sought exceed the jurisdictional minimum of this Court; and the 27 majority of witnesses reside and events occurred in San Diego County. 28 Ill _ 3 Plaintiffs First Amended Complaint for Damages and Demand for Jury Trial Sullivan v. Sharp HealthCare, et al. Case No.: 37-20 17-0000174 1-CU-OE-CTL Lawrance A. Bohm, Esq. Kelsey K. Ciarimboli, Esq. Matthew Brinegar, Esq. 1 5. Plaintiff is ignorant of the true names and capacities of the Defendants sued herein as 2 DOES 1 through 50. Defendants DOES 1 through 50 are sued herein under fictitious names pursuant 3 to California Code of Civil Procedure section 474. Plaintiff is informed and believes, and on that 4 basis alleges, that each Defendant sued under such fictitious names is in some manner responsible for 5 the wrongs and damages as alleged herein. Plaintiff does not at this time know the true names or 6 capacities of said Defendants, but prays that the same may be inserted herein when ascertained. 7 6. At all times relevant, each and every Defendant was an agent and/or employee of each 8 and every other Defendant. In doing the things alleged in the causes of action stated herein, each and 9 every Defendant was acting within the course and scope of this agency or employment, and was 10 acting with the consent, permission, and authorization of each remaining Defendant. All actions of 11 each Defendant as alleged herein were ratified and approved by every other Defendant or their 12 officers or managing agents. 13 14 15 STATEMENT OF FACTS 7. In or about June 1994, DR. SULLIVAN began working for SHARP as an anesthesiologist in the Women's Center at GROSSMONT HOSPITAL. 16 8. In or about 1996, DR. SULLIVAN received his board-certification in anesthesiology. 17 9. On or about November 12, 2003, DR. SULLIVAN learned that SHARP terminated 18 the employment of Alison Drew (hereinafter "Drew"), a long time pediatric nurse because she 19 developed breast cancer. This nurse was near the end of a lengthy course of chemotherapy and 20 radiation therapy and was expected to resume her position in the very near future. As a result, DR. 21 SULLIVAN wrote a letter strongly supporting Drew's continued employment, and amassed the 22 support of other SHARP physicians and nurses to oppose her termination. As a result, Chief 23 Operating Officer Michele Tarbet (hereinafter "Tarbet") withdrew this nurse's termination and 24 reinstated her employment. 25 26 27 28 10. In or about late 2005 or early 2006, Lily Pisegna (hereinafter "Pisegna") was hired as the Director of the Women's Center at SHARP'S GROSSMONT HOSPITAL. 11. On or about January 1, 2007, DR. SULLIVAN was elected to be the Vice Chief of the Anesthesia Department for the year. _ 4 Plaintiffs First Amended Complaint for Damages and Demand for Jury Trial Sullivan v. Sharp HealthCare, et al. Case No.: 37-2017-00001741-CU-OE-CTL Lawrance A. Bohm, Esq. Kelsey K. Ciarimboli, Esq. Matthew Brinegar, Esq. 1 12. On or about September 27, 2007, SHARP'S Infection Control issued an order stating 2 that all anesthesiologists were to wear sterile gowns when performing labor epidurals. DR. 3 SULLIVAN opposed this policy change because it would reduce efficiency and response times and 4 reduce patient satisfaction because women in labor would wait for a longer period of time for an 5 epidural. DR. SULLIVAN contacted the medical directors of the Anesthesia department at two other 6 SHARP hospitals and garnered opposition to the new policy. Shortly thereafter, SHARP'S Infection 7 Control rescinded the policy change. 8 13. On or about January 1, 2008, DR. SULLIVAN was elected Chief of the Anesthesia 9 Department. Although the term for Chief at the time was only supposed to last one year, at the urging 10 of many members of multiple departments and Chief of Staff Dr. Michael Musicant (hereinafter "Dr. 11 Musicant"), DR. SULLIVAN was elected to a second term. 12 14. In or about the Summer of 2008, DR. SULLIVAN created a late policy for the 13 Anesthesia Department because anesthesiologists were often late for their cases in the Operating 14 Room, delaying cases and affecting patient care. The Anesthesia Late Policy held the 15 anesthesiologists accountable for being late, including a financial penalty. 16 15. On or about November 12, 2008, SHARP issued an order insisting on surgical site 17 marking for the Universal Protocol, including site marking for anesthesia for invasive lines and 18 epidural/spinal placement. DR. SULLIVAN strongly opposed site marking for anesthesia for invasive 19 lines and epidural/spinal placement because it was not efficient for patient care and was not required 20 by any regulatory body. Under information and belief, DR. SULLIVAN' s resistance caused 21 SHARP'S administration to be fearful of a violation from the Joint Commission on Accreditation of 22 Health Care Organizations (JCAHO) and/or Center for Medicare and Medicaid Services (CMS). 23 Eventually, SHARP removed the requirement from its official policy. 24 16. In or about August 2009, DR. SULLIVAN opposed the policy of locking anesthesia 25 carts between "to follow" cases and in the period immediately after cases were finished. DR. 26 SULLIVAN explained the carts needed to remain open during this period inthe event a patient needed 27 to be immediately returned to the operating room for bleeding or in the event the anesthesiologist 28 needed to access emergency intubation drugs and equipment to manage an airway in the Post5 Plaintiffs First Amended Complaint for Damages and Demand for Jury Trial Sullivan v. Sharp HealthCare, et al. Case No.: 3 7-20 17-0000174 1-CU-OE-CTL Lawrance A. Bohm, Esq. Kelsey IC. Ciarimboli, Esq. Matthew Brinegar, Esq. 1 Anesthesia Care Unit (PACU). He demanded that this practice be stopped because it was detrimental 2 and dangerous for patient care. DR. SULLIVAN provided documentation from the American Society 3 of Anesthesiologists (ASA) and the State of California, Department of Health Services (DHS) that 4 this practice was not necessary and had been frowned upon since 2002. 5 6 17. On or about October 6, 2009, Linda Allen (hereinafter "Allen") was hired as the Women's Center Operating Room Supervisor at SHARP'S GROSSMONT HOSPITAL. 7 18. In or about late October 2009, Women's Center Director Pisegna approached DR. 8 SULLIVAN to discuss her desire to fire Operating Room (OR) Supervisor Allen. The operating room 9 staff did not like the new changes that Allen implemented to improve efficiency and patient care, and 10 were threatening to leave en masse. DR. SULLIVAN told Pisegna that he did not agree with her 11 decision to terminate Allen. DR. SULLIVAN explained that Allen's policy changes were long needed 12 advances to improve the care for patients in the operating rooms. For example, Allen demanded hand 13 hygiene from the OR staff, improved processes for sterilizing instruments and equipment, insisted on 14 the OR nurses using two patient identifiers instead of one to confirm the right patient was getting the 15 right procedure, and pushed for on time surgery start times for OR efficiency. To support Allen, DR. 16 SULLIVAN enlisted help from a number of people within the Anesthesia Department, as well as 17 Chief of Staff-elect Dr. Rina Jain (hereinafter "Dr. Jain"), current Chief of Staff Dr. Musicant, and 18 the past and current Chiefs of OB/GYN. DR. SULLIVAN got these physicians to sign and send letters 19 of support to SHARP'S Chief Operating Officer Maryann Cone (hereinafter "Cone"), Pisegna's direct 20 supervisor. As a result, Allen was not terminated. 21 Ill 22 III 23 III 24 III 25 III 26 III 27 III 28 III _ 6 Plaintiffs First Amended Complaint for Damages and Demand for Jury Trial Sullivan v. Sharp HealthCare, et ah Case No.: 37-2017-00001741-CU-OE-CTL Lawrance A. Bohm, Esq. Kelsey K. Ciarimboli, Esq. Matthew Brinegar, Esq. 1 19. On or about November 19, 2009, DR. SULLIVAN emailed Pisegna about the poor 2 communication and lack of information given to the Anesthesia Department by the Women's Center 3 staff when an epidural was requested by a patient. DR. SULLIVAN explained that the problem was 4 that there was no conveyance of how urgent or non-urgent the epidural request was. DR. SULLIVAN 5 also informed Pisegna that he was receiving inappropriate and indignant responses from some of the 6 Women's Center staff members when he inquired about the urgency. DR. SULLIVAN told Pisegna 7 that this type of disruptive behavior was unacceptable, inefficient, and bordered on obstruction of 8 medical care. Pisegna replied that she would put a plan in place and get back to him, but the nurses' 9 behavior only improved for a short time. 10 20. In or about late 2009, DR. SULLIVAN complained to Chief of OB/GYN Dr. Mearl 11 Naponic (hereinafter "Dr. Naponic") about an OB/GYN physician, Dr. Frank Goicoechea 12 (hereinafter "Dr. Goicoechea"). DR. SULLIVAN reported that another physician, Dr. John 13 Missanelli, refused to let Dr. Goicoechea take care of his patients due to Dr. Goicoechea' s high 14 complication rate and poor surgical technique. 15 21. In or about January 2010, SHARP wanted the Anesthesia Department to expand 16 coverage on Saturdays, including extending hours and adding another person to the schedule. DR. 17 SULLIVAN vehemently opposed this expansion because it would have put undue and unnecessary 18 strain on the physicians in the Anesthesiology Department. Eventually, a compromise was reached 19 to expand coverage by two hours on Saturdays. 20 22. On or about March 11, 2010, DR. SULLIVAN complained to Chief Operating Officer 21 Cone, Chief of Staff Dr. Jain, and past Chief of Staff Dr. Marc Kobemick that the Director of Surgical 22 Services was instructing the anesthesia techs to turn off oxygen on the anesthesia machines between 23 cases. DR SULLIVAN stated that this was a very serious patient safety matter and could result in 24 great patient harm because if the anesthesiologist does not realize the oxygen was off, the 25 anesthesiologist could put the next patient to sleep on room air which is dangerous. 26 23. On or about March 9, 201 1, DR. SULLIVAN pointed out one nurse's disruptive and 27 dangerous behavior during a case to Women's Center Manager Sharon White (hereinafter "White"). 28 DR. SULLIVAN stated that this nurse substantially lacked knowledge about obstetric care and had 7 Plaintiffs First Amended Complaint for Damages and Demand for Jury Trial Sullivan v. Sharp HealthCare, et al. Case No.: 3 7-2017-0000174 1-CU-OE-CTL Lawrance A. Bohm, Esq. Kelsey K. Ciarimboli, Esq. Matthew Brinegar, Esq. 1 insisted that he put the epidural in the patient without receiving the patient's labs back, before a fluid 2 bolus was given, and without obtaining proper patient vitals. DR. SULLIVAN explained that this was 3 detrimental to patient care and that it was outside her scope of practice to insist that a physician 4 perform a procedure against SHARP policy. Further, DR. SULLIVAN stated that since this nurse 5 became a charge nurse, the department was a "disorganized mess" and no one really knew what was 6 going on. White emailed back that she would meet with this nurse as soon as possible to try to address 7 these concerns. Eventually, this nurse was demoted. As a result, this nurse acted distant and hostile 8 in her future interactions with DR. SULLIVAN. 24. 9 On or about June 10, 2011, DR. SULLIVAN complained to Dr. Naponic, Dr. John 10 Missanelli, Dr. Skip Steele, and Chief of Staff-Elect Dr. Brian Moore (hereinafter "Dr. Moore") that 11 Dr. Goicoechea violated OB/GYN Department rules by scheduling patients for inductions of labor- 12 before speaking with and obtaining consent from the patients in order to hold a spot on the schedule. 13 25. On or about June 12, 2011, DR. SULLIVAN complained to Chief of Staff Dr. Jain, 14 Dr. Brian Moore, Dr. Naponic, and Past Chief of Staff Dr. Marc Kobernick (hereinafter "Dr. 15 Kobernick") about another incident with Dr. Goicoechea. DR. SULLIVAN told them that Dr. 16 Goicoechea interfered with his anesthesia services with one patient. Specifically, Dr. Goicoechea 17 ordered the charge nurse to not call DR. SULLIVAN when this patient went into labor and then went 18 into this patient's prenatal medical record and deleted with white out tape the order to call DR. 19 SULLIVAN. 20 26. On or about June 29, 2011, DR. SULLIVAN met with Dr. Moore about the Dr. 21 Goicoechea issue. DR. SULLIVAN made it clear to Dr. Moore that his main concern was Dr. 22 Goicoechea striking his name from the prenatal record. As a result of DR. SULLIVAN's complaints, 23 Dr. Goicoechea wrote a letter to Chief of Anesthesia Dr. Thach Mai (hereinafter "Dr. Mai") and 24 began spreading rumors that DR. SULLIVAN rifles through patients' prenatal records to find only 25 insured or cash pay patients, calls these patients at home, and solicits his services. 26 Ill 27 III 28 III 8 Plaintiffs First Amended Complaint for Damages and Demand for Jury Trial Sullivan v. Sharp HealthCare, et al. Case No.: 3 7-20 17-0000174 1-CU-OE-CTL Lawrance A. Bohm, Esq. Kelsey K. Ciarimboli, Esq. Matthew Brinegar, Esq. 1 27. On or about August 9, 201 1, DR. SULLIVAN emailed and paged Pisegna to remind 2 her to attend an Anesthesia meeting to discuss the installation of locking Pyxis cabinets in the 3 operating rooms. DR. SULLIVAN wanted Pisegna to attend so that the Anesthesia Department could 4 discuss the plan to include anesthesia supplies in the locking Pyxis cabinets. 5 28. On or about August 10, 201 1, Pisegna did not attend the Anesthesia meeting, despite 6 being emailed and paged by DR. SULLIVAN. At this meeting, the Anesthesia Department voted 7 unanimously against the installation of the locking Pyxis cabinets in the Women's Center operating 8 rooms because they represented a significant risk of patient harm. 9 29. On or about August 22, 2011, DR. SULLIVAN emailed Pisegna stating that the 10 Anesthesia Department voted unanimously against the installation of the locking Pyxis cabinets. DR. 11 SULLIVAN explained that locking up anesthesia supplies in the operating rooms, where emergencies 12 occur almost every day, was a significant risk to patient safety. Unlike the emergency room where 13 emergencies are radioed in well before the patient's arrival, Women's Center doctors only have 14 minutes or seconds to prepare for an emergency C-Section. 30. 15 On or about September 5, 20 11, DR. SULLIVAN arrived to his on-call shift and found 16 that SHARP'S GROSSMONT HOSPITAL was out of the critical drug, Lidocaine 2% with 17 Epinephrine, which was needed for labor and delivery. A C-Section cannot be performed on a patient 18 who had an epidural without this drug unless the patient is put under general anesthesia, which poses 19 a serious risk to the mother and baby. There is also no acceptable alternative to this crucial drug. As 20 soon as DR. SULLIVAN learned of this deficit, he called Pisegna at her home to see if she could 21 procure a small amount of this drug from another SHARP facility or local hospital. DR. SULLIVAN 22 also told Pisegna that her failure to alert anyone in the Anesthesia Department that there was a 23 shortage of this drug was dangerous. DR. SULLIVAN additionally called the pharmacy to see if they 24 also could obtain the drug from another pharmacy. As a result of DR. SULLIVAN's efforts, the 25 Women's Center was able to procure a little bit of this critical drug from another hospital. 26 31. On or about September 10, 2011, DR. SULLIVAN sent an email to the Anesthesia 27 Department to alert them that the locking Pyxis cabinets were being installed despite their protests. 28 Ill Plaintiffs First Amended Complaint for Damages and Demand for Jury Trial Sullivan v. Sharp HealthCare, et al. Case No.: 37-20 17-0000 1741-CU-OE-CTL Lawrance A. Bohm, Esq. Kelsey K. Ciarimboli, Esq. Matthew Brinegar, Esq. 1 32. On or about September 14, 2011, Pisegna made a presentation to the Anesthesia 2 Department regarding the locking Pyxis cabinets. Pisegna promised that nurses and technicians 3 would be responsible for opening these cabinets with their secure codes and obtaining the necessary 4 supplies the anesthesiologists needed for their procedures. Pisegna also explained that the technicians 5 would be responsible for leaving the Pyxis cabinets open during procedures. 6 7 8 33. On or about September 27, 2011, the locking Pyxis cabinets were installed in the Women's Center operating rooms. 34. On or about September 28, 201 1, DR. SULLIVAN was on-call early in the morning 9 and providing anesthesia for a Dilation & Curettage (D&C) procedure on a patient. Immediately prior 10 to the procedure, the scrub tech locked the Pyxis cabinet against policy. DR. SULLIVAN explained 11 to the scrub tech that Pisegna told all of the anesthesiologists that the scrub techs would be responsible 12 for opening the Pyxis cabinets and leaving them open during procedures. The scrub tech refused 13 because she was afraid that Pisegna would blame her for anything deemed "missing." Later during 14 this procedure, the patient started bleeding and the surgeon needed something from the locked Pyxis 15 cabinet. The RN could not immediately open the Pyxis cabinet and required the assistance of another 16 nurse to get the cabinet open. Once the cabinet was open, the RN could not find the correct syringe 17 to give the surgeon the medication to stop the bleeding because Pisegna did not properly orient her 18 to the location of the supplies within the cabinet. As a result, the patient lost an additional 400cc of 19 blood, a significant amount. DR. SULLIVAN called Pisegna at approximately 6:15 a.m., during this 20 case, to inform her that the locking of the cabinets and the nurses' lack of orientation to the supplies 21 was an imminent threat to patient safety and needed to be addressed immediately. Additionally, DR. 22 SULLIVAN and the surgeon alerted the scrub tech about this patient safety issue. DR. SULLIVAN 23 alerted the SPD Materials Specialist and charge nurse on duty. 24 35. Later that same day, DR. SULLIVAN received an email from Pisegna regarding the 25 locked Pyxis cabinets and the nurses' lack of knowledge of the location of the items within them. 26 Pisegna brushed off DR. SULLIVAN's concern as a "glitch" since the cabinets just went live in the 27 operating room the day before. However, Pisegna told DR. SULLIVAN that a plan would be put in 28 place so that "glitches" such as the one that occurred earlier that day were eliminated. 10 Plaintiffs First Amended Complaint for Damages and Demand for Jury Trial Sullivan v. Sharp HealthCare, et al. Case No.: 37-2017-00001741-CU-OE-CTL Lawrance A. Bohm, Esq. Kelsey K. Ciarimboli, Esq. Matthew Brinegar, Esq. 1 36. Also on or about September 28, 2011, under information and belief, as a result of DR. 2 SULLIVAN's complaints regarding the Pyxis cabinets in the operating room, nurses in the Women's 3 Center told other nurses, doctors, and administrators that DR. SULLIVAN exhibited volatile behavior 4 in the operating room and unnecessarily yelled at nurses. 5 37. In or about the beginning of October 2011, DR. SULLIVAN met with Women's 6 Center Manager White to discuss the incomplete stocking of the labor epidural carts. DR. 7 SULLIVAN explained that this inadequate stocking was causing the physicians to run out of supplies 8 in the middle of the night. 9 38. Shortly thereafter, DR. SULLIVAN met with White again to discuss the incomplete 10 stocking of the labor epidural carts. DR. SULLIVAN again explained that this inadequate stocking 11 was causing the physicians to run out of supplies in the middle of the night, which was detrimental 12 to the care of their patients. 39. 13 14 On or about October 10, 201 1, DR. SULLIVAN was unanimously voted to be the OB representative from anesthesia by the OB/GYN Department. 15 40. In or about the middle of October 201 1, under information and belief, the nurses in 16 Women's Center began spreading rumors that DR. SULLIVAN was improperly dressing for 17 procedures by wearing street clothes. 41. 18 In or about the middle of October 201 1, DR. SULLIVAN met with White once again 19 to discuss the inadequate stocking of the labor epidural carts. DR. SULLIVAN asked White how high 20 up the nursing chain of command did he have to go to get this important patient safety issue fixed. 21 Shortly thereafter, the stocking of the labor epidural carts improved for about two months. 42. 22 On or about October 15, 201 1, a Women's Center Operating Room nurse came up to 23 DR. SULLIVAN and disinvited him to her Halloween party. This nurse stated she did not want him 24 there because "people have said you've been difficult to work with." 25 Ill 26 III 27 III 28 III 11 Plaintiffs First Amended Complaint for Damages and Demand for Jury Trial Sullivan v. Sharp HealthCare, et al. Case No.: 37-2017-00001741-CU-OE-CTL Lawrance A. Bohm, Esq. Kelsey K. Ciarimboli, Esq. Matthew Brinegar, Esq. 1 43. On or about October 28, 2011, a nurse in the Women's Center came up to DR. 2 SULLIVAN and accused him of not responding after being paged twice. DR. SULLIVAN stated that 3 his pager never went off and that he had been just around the comer from the operating room in his 4 call room. DR. SULLIVAN asked this nurse why she did not try his landline extension as a back-up. 5 This nurse just shrugged and walked away. 6 7 8 44. On or about November 9, 2011, DR. SULLIVAN was removed from his anesthesiology representative position on the OB/GYN Supervisory Committee. 45. On or about December 15, 201 1, DR. SULLIVAN and another physician complained 9 about the locum tenens program to the Labor and Delivery charge nurse on duty. DR. SULLIVAN 10 explained that the locum tenens program was causing a disruption to the operating room schedule 11 due to lack of planning and communication and that the OB locum tenens doctors were providing bad 12 patient care. This Labor and Delivery charge nurse angrily told DR. SULLIVAN that he was just an 13 anesthesiologist and needed to stop interfering in obstetric and nursing decisions. This charge nurse 14 stated that it was not DR. SULLIVAN's place to be critical of these doctors. 15 46. On or about January 19, 2012, DR. SULLIVAN called White and left her a voicemail 16 letting her know that the labor epidural carts were poorly stocked once again. DR. SULLIVAN 17 explained this was a recurring problem. 18 19 20 47. On or about January 20, 2012, White emailed DR. SULLIVAN an action plan to remedy the inadequate stocking of carts. 48. On or about January 23, 2012, DR. SULLIVAN responded to White that her action 21 plan as detailed was not sufficient. DR. SULLIVAN explained that part of the problem was that White 22 was getting incorrect information relayed to her from her staff. DR. SULLIVAN also explained that 23 the process of depleting one of the carts to stock another cart was not acceptable because then the 24 second cart is often not stocked properly either. DR. SULLIVAN stated that there have been many 25 instances when all supplies of an item are then missing from the second cart and many 26 anesthesiologists have' complained to him about this issue. DR. SULLIVAN requested from White to 27 implement a plan so that: 1) both epidural carts were fully stocked once every twenty-four (24) hours; 28 2) if an anesthesiologist ran out of an item in their cart, someone would obtain several of that item 12 Plaintiffs First Amended Complaint for Damages and Demand for Jury Trial Sullivan v. Sharp HealthCare, et al. Case No.: 3 7-20 17-0000 174 1-CU-OE-CTL Lawrance A. Bohm, Esq. Kelsey K. Ciarimboli, Esq. Matthew Brinegar, Esq. 1 from the Pyxis cabinet under a temporary patient; and 3) the charge nurse be educated as to where to 2 obtain each item in the anesthesiologist's epidural cart. DR. SULLIVAN asked White to let him know 3 if she could commit to these three things so that improper stocking of the epidural carts did not affect 4 patient care. DR. SULLIVAN received no response to his email. 5 49. On or about February 29, 2012, DR. SULLIVAN emailed Director of Pharmacy Pat 6 Craychee (hereinafter "Craychee") and White to inform them that a necessary drug, Succinylcholine, 7 was absent from the labor epidural carts in the Women's Center. DR. SULLIVAN explained that 8 Succinylcholine was an emergency intubation drug that was needed for an unexpected high epidural, 9 high spinal, asthma attack, obstructed airway, or any other OB disaster to prevent maternal death. 10 DR. SULLIVAN stressed that one vial of unexpired Succinylcholine must be stocked at all times on 11 each of the labor epidural carts. As a result of DR. SULLIVAN' s complaints, Succinylcholine 12 continued to be stocked in the labor epidural carts. 13 50. On or about May 24, 2012, DR. SULLIVAN arrived at approximately 7:00 a.m. in the 14 Women's Center for a 7:30 a.m. scheduled case. The surgeon arrived at 7:15 a.m. for the procedure, 15 but the nurse did not get the patient into the operating room until 7:29 a.m., almost fifteen (15) minutes 16 late. DR. SULLIVAN asked the nurse to step outside before the procedure and let this nurse know 17 that the patient should have been taken into the operating room by 7:15 a.m. DR. SULLIVAN 18 explained that it was important that procedures in the operating room begin on time for optimal patient 19 care and operating room efficiency. 20 51. On or about May 24, 2012 at approximately 8:30 a.m., DR. SULLIVAN informed OR 21 Supervisor Linda Hamel (hereinafter "Hamel") about this nurse's late transport of the patient to the 22 operating room. 23 52. On or about the evening of May 24, 2012, DR. SULLIVAN called Chief of Staff Dr. 24 Jain and let her know about the nurse transporting the patient late to the operating room, which 25 compromised quality of care and patient safety. Chief of Staff Dr. Jain was in charge of 26 communicating with upper level administration, collaborating with hospital staff regarding improving 27 operating room efficiency and on-time starts, and enforcing the late policy for anesthesiologists and 28 surgeons. 13 Plaintiffs First Amended Complaint for Damages and Demand for Jury Trial Sullivan v. Sharp HealthCare, el al. Case No.: 37-2017-00001741-CU-OE-CTL Lawrance A. Bohm, Esq. Kelsey K. Ciarimboli, Esq. Matthew Brinegar, Esq. 1 53. Shortly thereafter, under information and belief, the nurse DR. SULLIVAN 2 complained about began spreading false rumors in the Women's Center that DR. SULLIVAN 3 touched her inappropriately. 4 5 6 54. On or about July 31, 2012, an OR nurse falsely accused DR. SULLIVAN of delaying her from bringing a patient to the operating room on time. 55. On or about July 31, 2012, DR. SULLIVAN emailed Director of Surgical Services 7 Susan Werner (hereinafter "Werner), Chief of Anesthesia Dr. Robert Bullock, Chief of Staff Dr. Jain, 8 and Vice President of Clinical Services Anthony D'Amico (hereinafter "D'Amico") to alert them that 9 this nurse inaccurately recorded the delay on the operating room log sheets. DR. SULLIVAN 10 explained that this nurse falsely wrote on the operating room log sheet, "DR. SULLIVAN still talking 11 to [patient] when Iwent to bring [patient] back." DR. SULLIVAN stated that this nurse was 12 attempting to shift the blame for her own inefficiency onto him and that he was ready by 7:05 a.m. 13 However, the nurse did not take the patient to the operating room until 7:32 a.m. DR. SULLIVAN 14 stated he believed this nurse purposefully recorded information that she knew would absolve her of 15 the blame and shift blame on to the Anesthesia Department. 16 56. In or about the fall of 2012, DR. SULLIVAN noticed that some of the nurses began 17 to exhibit hostile and disruptive behavior toward him. These nurses argued with DR. SULLIVAN 18 over every little thing, no matter how reasonable his request. For example, these nurses argued over 19 restocking the anesthesia carts and when to take patients back for C-Sections. They often called DR. 20 SULLIVAN for an epidural, but would then not have the patient ready when he responded to their 21 calls. Some of the nurses would even call DR. SULLIVAN an hour early for C-Sections in the middle 22 of the night, disrupting his much needed sleep. 23 57. On or about October 21, 2012, DR. SULLIVAN emailed Chief of Staff Dr. Jain and 24 Chief of Staff-Elect Dr. Moore to alert them about the harm a nurse caused to a bleeding patient when 25 she failed to have the patient taken to the OR in a timely fashion. As a result of this nurse's inaction, 26 the patient bled unnecessarily and her disfiguring vaginal hematoma worsened, extending the 27 patient's discomfort. 28 Plaintiffs First Amended Complaint for Damages and Demand for Jury Trial Sullivan v. Sharp HealthCare, et al. Case No.: 3 7-20 17-0000174 1-CU-OE-CTL Lawrance A. Bohm, Esq. Kelsey K. Ciarimboli, Esq. Matthew Brinegar, Esq. l 58. 2 physicians that the new forty (40) minute scheduled turnover time between cases in the operating 3 room unilaterally instituted by Pisegna was inefficient and causing physicians to be late to care for 4 their other patients. DR. SULLIVAN explained that the community standard between procedures was 5 thirty (30) minutes, and the extra ten (10) minutes between procedures resulted in fewer procedures 6 performed and led to doctors just sitting around waiting for procedures to begin. 7 59. inform her that a nurse recorded incorrect patient history information on an anesthesia questionnaire 9 earlier that day. This inaccurate medical history could have caused the patient significant harm. Luckily, DR. SULLIVAN caught the inaccurate medical history and corrected the patient's chart. 11 IT) w H CN r-H ÿ 5) ÿ S& fe ÿ < £ O On or about November 17, 2012, DR. SULLIVAN emailed Chief of Staff Dr. Jain to 8 10 o On or about November 12, 2012, DR. SULLIVAN pointed out to the OB/GYN 60. On or about November 29, 2012, DR. SULLIVAN emailed Director of Pharmacy Pat 12 Craychee, Clinical Supervisor of Pharmacy Electa Stern (hereinafter "Stern"), and Dr. Bullock 13 regarding the lack of a necessary drug, Neostigmine. DR. SULLIVAN explained that this drug was 14 essential to the care for surgical patients and without it, many patients were at a much higher risk of 15 post-op respiratory depression. ÿ 3 £ d cl i >-, o 16 S 0 o <2 p 17 with another surgeon when the scrub tech angrily approached him regarding an unopened surgical 18 scope that fell onto the floor near him. This scrub tech heatedly accused DR. SULLIVAN of knocking 19 the scope over and "leaving it on the floor - not good!" DR. SULLIVAN replied that he did not think 20 he knocked it over. The scrub tech accusatorily said, "Yeah you did, Isaw you," then walked out of 21 the operating room. DR. SULLIVAN complained to the surgeon he was discussing the patient's care 22 with that this was unacceptable and dangerous behavior in the operating room. DR. SULLIVAN also 23 informed Chief of Staff Dr. Jain of this interaction. O i— S £ 2 O mSsw O >, to iroo. W«.ÿV ÿ»••*** 10 11 was once again J ÿ ÿ c, Slw»d Clirucal WortlUhon s* secretly recording patients in the operating rooms. 158. On or about January 7, 2016, DR. SULLIVAN told Chief of Staff Dr. Orr that the 12 newly discovered cameras were a complete invasion of privacy. Dr. Orr told DR. SULLIVAN that 13 he would "look into it" and get back to him, but DR. SULLIVAN never heard back from Dr. On- 14 regarding the installed cameras. 15 159. On or about January 15, 2016, DR. SULLIVAN emailed CEO Evans and Chief 16 Nursing Officer Louise White (hereinafter "CNO White") about his profound concern regarding the 17 leadership at the Women's Center. DR. SULLIVAN explained that Pisegna mismanaged the 18 Women's Center and greatly reduced its effectiveness in patient care, causing over twenty (20) 19 experienced nurses to leave. He also explained that there was an ever worsening experience and 20 staffing deficit, particularly on the night shift, such that someday a bad baby case would be the result. 21 DR. SULLIVAN stated that the Women's Center used to be like a second family to him, but now it 22 has deteriorated in a culture of fear, backstabbing, and endless harassment. 23 160. On or about January 15, 2016, DR. SULLIVAN resigned his privileges at SHARP'S 24 GROSSMONT HOSPITAL. DR. SULLIVAN stated that he could no longer endure the almost daily 25 harassment from the nurses—particularly Pisegna—and the complicity of the hospital administration 26 regarding the retaliation he faced for his patient safety complaints. 27 28 161. On or about January 18, 2016, DR. SULLIVAN forwarded his January 15 Women's Center Staff email to SHARP HEALTHCARE CEO Mike Murphy, Chairman of SHARP'S 38 Plaintiffs First Amended Complaint for Damages and Demand for Jury Trial Sullivan v. Sharp HealthCare, et al. Case No.: 3 7-20 17-0000174 1-CU-OE-CTL Lawrance A. Bohm, Esq. Kelsey K. Ciarimboli, Esq. Matthew Brinegar, Esq. 1 GROSSMONT HOSPITAL Corporation Board of Directors Jim Parker, and the entire Board of 2 Directors at GROSSMONT HOSPITAL at the request of twenty-two (22) labor nurses at SHARP 3 who were also requesting that Pisegna immediately resign as the Director of Women's and Children's 4 Services. DR. SULLIVAN received no response. 5 162. On or about January 23, 2016, DR. SULLIVAN emailed CEO Scott Evans to alert 6 him that SHARP removed him from all computer access at other SHARP facilities where he still held 7 his privileges. DR. SULLIVAN explained that specifically ordering all of his SHARP computer 8 access be shut down, including his remote access, was further evidence of retaliation by SHARP. DR. 9 SULLIVAN explained that by shutting down all his computer access it disabled his access to Center 10 and Pyxis at Sharp Memorial and Sharp Mary Birch, two hospitals where he still had privileges and 11 sometimes got sudden anesthesia patient requests. DR. SULLIVAN stated that if he was called to do 12 one of these emergency requests he would have been put in a position where he would not have had 13 access to lifesaving drugs in the operating room and no access to the patient's medical record, which 14 was obviously a significant patient safety issue. 15 FIRST CAUSE OF ACTION 16 Violation of Health and Safety Code section 1278.5 17 18 163. The allegations set forth in this complaint are hereby re-alleged and incorporated by reference. 19 164. This cause of action is asserted against all Defendants. 20 165. The California Legislature has determined that, in order to protect patients, "it is the 21 public policy of the State of California to encourage patients, nurses, members of the medical staff, 22 and other health care workers to notify government entities of suspected unsafe patient care and 23 conditions." 24 166. SHARP and GROSSMONT HOSPITAL are "hospital facilities]" pursuant to Health 25 and Safety Code section 1250, subdivision (a). 26 III 27 III 28 III 39 Plaintiffs First Amended Complaint for Damages and Demand for Jury Trial Sullivan v. Sharp HealthCare, et al. Case No.: 3 7-20 17-0000174 1-CU-OE-CTL Lawrance A. Bohm, Esq. Kelsey K. Ciarimboli, Esq. Matthew Brinegar, Esq. 1 167. Therefore, pursuant to Health and Safety Code section 1278.5, subdivision (b), "[n]o 2 health facility shall discriminate or retaliate, in any manner, against any patient, employee, member 3 of the medical staff, or any other health care worker of the health facility because that 4 person...[p]resented a grievance, complaint, or report to the facility, to an entity or agency 5 responsible for accrediting or evaluating the facility, or the medical staff of the facility, or to any 6 other governmental entity." Pursuant to section 1278.5, subdivision (i), 'health facility' means any 7 facility defined under this chapter, including, but not limited to, the facility's administrative 8 personnel, employees, boards, and committees of the board, and medical staff." 9 168. Plaintiff was a member of the medical staff of Defendants. 10 169. Defendants harassed, discriminated, and retaliated against Plaintiff because he 11 reported concerns about patient care, services, and hospital conditions. The Joint Commission states, 12 "Intimidating and disruptive behaviors can foster medical errors, contribute to poor patient 13 satisfaction and to preventable adverse outcomes. 14 on teamwork, communication, and a collaborative work environment. To assure quality and to 15 promote a culture of safety, health care organizations must address the problem of behaviors that 16 threaten the performance of the health care team. Intimidating and disruptive behaviors include overt 17 actions such as verbal outbursts and physical threats, as well as passive activities such as refusing to 18 perform assigned tasks or quietly exhibiting uncooperative attitudes during routine activities...All 19 intimidating and disruptive behaviors are unprofessional and should not be tolerated." 20 170. . . Safety and quality of patient care is dependent The Joint Commission acknowledges, "The presence of intimidating and disruptive 21 behaviors in an organization [] erodes professional behavior and creates an unhealthy or even hostile 22 work environment..." [Emphasis added.] An unhealthy and unsafe work environment threatens the 23 physical and psychological safety of employees and members of the medical staff. (A true and correct 24 copy of The Joint Commission, Sentinel Event Alert: Behaviors that Undermine a Culture of Safety 25 is attached hereto as Exhibit A.) 26 171. Section 1278.5, subdivision (d)(1) states, "there shall be a rebuttable presumption that 27 discriminatory action was taken by the health facility or by the entity that owns or operates that health 28 facility, or that owns or operates any other health facility, in retaliation against an employee, member 40 Plaintiffs First Amended Complaint for Damages and Demand for Jury Trial Sullivan v. Sharp HealthCare, et at. Case No.: 3 7-20 17-0000174 1-CU-OE-CTL Lawrance A. Bohm, Esq. Kelsey K. Ciarimboli, Esq. Matthew Brinegar, Esq. 1 of the medical staff, or any other health care worker of the facility, if responsible staff at the facility 2 or the entity that owns or operates the facility had knowledge of the actions, participation, or 3 cooperation of the person responsible for any acts described in paragraph (1) of subdivision (b), and 4 the discriminatory action occurs within 120 days of the filing of the grievance or complaint by the 5 employee, member of the medical staff or any other health care worker of the facility." 6 172. Discriminatory and retaliatory action were taken against Plaintiff within 120 days of 7 presenting complaints regarding patient care, services, and/or hospital conditions, including, but not 8 limited to, falsely accusing DR. SULLIVAN of bad patient care, spreading rumors that he 9 inappropriately touched a nurse, falsely accused him of yelling at nurses and exhibiting disruptive 10 behavior in the operating room, the constructive discharge of Plaintiff, and the creation of the overall 11 hostile terms and conditions of employment. 12 173. 13 requirement. 14 15 174. As an actual and proximate result of the aforementioned violations, Plaintiff has been damaged in an amount according to proof, but in an amount in excess of the jurisdiction of this Court. 16 17 Health and Safety Code section 1278.5 has no administrative or judicial exhaustion 175. As an actual and proximate result of Defendants' willful and intentional discrimination and retaliation, Plaintiff has lost wages, benefits and other out of pocket expenses. 18 176. As an actual and proximate result of Defendants' aforementioned acts, Plaintiff 19 suffered physical injury. Plaintiff experienced weight loss, poor appetite, nausea, depression, 20 insomnia, early awakening, restless sleep, fatigue, anxiety, and loss of concentration. Plaintiff claims 21 general damages for physical injury in an amount according to proof at time of trial. 177. 22 As an actual and proximate result of Defendants' aforementioned acts, Plaintiff also 23 suffered mental upset and other emotional distress. Plaintiff claims general damages for mental 24 distress in an amount according to proof at time of trial. 25 Ill 26 III 27 III 28 Plaintiffs First Amended Complaint for Damages and Demand for Jury Trial Sullivan v. Sharp HealthCare, et al. Case No.: 37-20 17-0000174 1-CU-OE-CTL Lawrance A. Bohm, Esq. Kelsey K. Ciarimboli, Esq. Matthew Brinegar, Esq. 1 178. The above described actions were perpetrated and/or ratified by a managing agent or 2 officer of Defendants. These acts were done with malice, fraud, oppression, and in reckless disregard 3 of Plaintiff s rights. Further, said actions were despicable in character and warrant the imposition of 4 punitive damages against the individual Defendants in a sum sufficient to punish and deter 5 Defendants' future conduct. PRAYER FOR RELIEF 6 7 8 9 WHEREFORE, Plaintiff demands judgment against all Defendants and any other Defendant who may be later added to this action as follows: 1. For compensatory damages, including, but not limited to lost wages and emotional distress in the amount according to proof; 10 11 2. For attorneys' fees and costs pursuant to all applicable statues or legal principles; 12 3. For cost of suit incurred; 13 4. For punitive damages or other penalties recoverable by law; 14 5. For civil penalties; 15 6. For prejudgment interest on all amounts claimed pursuant to Civil Code sections 3287 16 and/or 3288; and 17 For such other and further relief as the court may deem proper. 18 19 20 Dated: January 24, 2017 B 21 1aWR/ÿfeWrBOHM, ESQ. 22 MATTHEW BRINEGAR, ESQ. 23 Attorneys for Plaintiff PATRICK SULLIVAN KEliSEY K. CIARIMBOLI, ESQ. 24 25 26 27 28 42 Plaintiffs First Amended Complaint for Damages and Demand for Jury Trial Sullivan v. Sharp HealthCare, et al. Case No.: 37-2017-00001741-CU-QE-CTL _ Lawrance A. Bohm, Esq. Kelsey K. Ciarimboli, Esq. Matthew Brinegar, Esq. 1 2 DEMAND FOR JURY TRIAL Plaintiff hereby demands trial by jury for this matter. 3 4 5 6 Dated: January 24, 2017 /AWRANCE A. BOHM, ESQ. iLSEY K. CIARIMBOLI, ESQ. MATTHEW BRINEGAR, ESQ. 7 8 9 Attorneys for Plaintiff PATRICK SULLIVAN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 43 Plaintiffs First Amended Complaint for Damages and Demand for Jury Trial Sullivan v. Sharp HealthCare, el al. Case No.: 37-2017-00001741-CU-QE-CTL Lawrance A. Bohm, Esq. Kelsey K. Ciarimboli, Esq. Matthew Brinegar, Esq. EXHIBIT A Issue 40: Behaviors that undermine a culture of safety Joint Commission The Joint Commission Sentinel Event Alert July 09, 2008 Issue 40, July 9, 2008 Behaviors that undermine a culture of safety Intimidating and disruptive behaviors can foster medical errors, (1,2,3) contribute to poor patient satisfaction and to preventable adverse outcomes,(1,4,5) increase the cost of care,(4,5) and cause qualified clinicians, administrators and managers to seek new positions in more professional environments, (1,6) Safety and quality of patient care is dependent on teamwork, communication, and a collaborative work environment. To assure quality and to promote a culture of safety, health care organizations must address the problem of behaviors that threaten the performance of the health care team. Intimidating and disruptive behaviors include overt actions such as verbal outbursts and physical threats, as well as passive activities such as refusing to perform assigned tasks or quietly exhibiting uncooperative attitudes during routine activities. Intimidating and disruptive behaviors are often manifested by health care professionals In positions of power. Such behaviors include reluctance or refusal to answer questions, return phone calls or pages; condescending language or voice intonation; and Impatience with questions. (2) Overt and passive behaviors undermine team effectiveness and can compromise the safety of patients, (7, 8, 11) All intimidating and disruptive behaviors are unprofessional and should not be tolerated. , Intimidating and disruptive behaviors in health care organizations are not rare.(1,2, 7, 8, 9) A survey on intimidation conducted by the Institute for Safe Medication Practices found that 40 percent of clinicians have kept quiet or remained passive during patient care events rather than question a known lntimidator.(2,10) While most formal research centers on intimidating and disruptive behaviors among physicians and nurses, there is evidence that these behaviors occur among other health care professionals, such as pharmacists, therapists, and support staff, as well as among administrators. (1,2) Several surveys have found that most care providers have experienced or witnessed intimidating or disruptive behaviors.(1,2,8, 12,13) These behaviors are not limited to one gender and occur during Interactions within and across disciplines. (1,2,7) Nor are such behaviors confined to the small number of individuals who habitually exhibit them. (2) It is likely that these Individuals are not involved in the large majority of episodes of intimidating or disruptive behaviors, It is Important that organizations recognize that it is the behaviors that threaten patient safety, irrespective of who engages in them, The majority of health care professionals enter their chosen discipline for altruistic reasons and have a strong interest in caring for and helping other human beings. The preponderance of these individuals carry out their duties In a manner consistent with this idealism and maintain high levels of professionalism. The presence of intimidating and disruptive behaviors in an organization, however, erodes professional behavior and creates an unhealthy or even hostile work environment - one that Is readily recognized by patients and their families. Health care organizations that ignore these behaviors also expose themselves to litigation from both employees and patients. Studies link patient complaints about unprofessional, disruptive behaviors and malpractice risk.(13, 14, 15) "Any behavior which impairs the health care team's ability to function well creates risk," says Gerald Hickson, M.D., associate dean for Clinical Affairs and director of the Center for Patient and Professional Advocacy at Vanderbilt University Medical Center. "If health care organizations encourage patients and families to speak up, their observations and complaints, if recorded and fed back to organizational leadership, can serve as part of a surveillance system to identify behaviors by members of the health care team that create unnecessary risk." Root causes and contributing factors There Is a history of tolerance and Indifference to intimidating and disruptive behaviors in health care. (10) Organizations that fail to address unprofessional behavior through formal systems are indirectly promoting it. (9,11) Intimidating and disruptive behavior stems from both individual and systemic factors. (4) The inherent stresses of dealing with high stakes, high emotion situations can contribute to occasional Intimidating or disruptive behavior, particularly in the presence of factors such as fatigue. Individual care providers who exhibit characteristics such as self-centeredness, immaturity, or defensiveness can be more prone to unprofessional behavior.(8,ll) They can lack interpersonal, coping or conflict management skills. Systemic factors stem from the unique health care cultural environment, which is marked by pressures that include increased productivity demands, cost containment requirements, embedded hierarchies, and fear of or stress from litigation, these pressures can be further exacerbated by changes to or differences in the authority, autonomy, empowerment, and roles or values of professionals on the health care team, (5,7,16) as well as by the continual flux of daily changes in shifts, rotations, and Interdepartmental support staff. This dynamic creates challenges for Inter-professional communication and for the development of trust among team members. Disruptive behaviors often go unreported, and therefore unaddressed, for a number of reasons. Fear of retaliation and the stigma associated with "blowing the whistle" on a colleague, as well as a general reluctance to confront an Intimldator all contribute to underreporting of intimidating and/or disruptive behavior.(2,9,12,16) Additionally, staff within institutions often perceive that powerful, revenue-generating physicians are "let off the hook" for Inappropriate behavior due to the perceived consequences of confronting them.(8,10,12,17) The American College of Physician Executives (ACPE) conducted a physician behavior survey and found that 38.9 percent of the respondents agreed that "physicians in my organization who generate high amounts of revenue are treated more leniently when it comes to behavior problems than those who bring in less revenue."(17) Existing Joint Commission requirements Effective January 1, 2009 for all accreditation programs, The Joint Commission has a new Leadership standard (LD.03. 01.01)* that addresses disruptive and inappropriate behaviors in two of its elements of performance: http://www.jointcommission.org/SentinelEvents/SentinelEventAlert/sea_40.htm?print=yes[9/20/2010 11:54:55 AM] Issue 40: Behaviors that undermine a culture of safety Joint Commission EP 4: The hospital/organization has a code of conduct that defines acceptable and disruptive and inappropriate behaviors. EP 5: Leaders create and implement a process for managing disruptive and inappropriate behaviors, In addition, standards in the Medical Staff chapter have been organized to follow six core competencies (see the introduction to MS,4) to be addressed In the credentialing process, including interpersonal skills and professionalism. Other Joint Commission suggested actions 1. Educate all team members - both physicians and non-physician staff - on appropriate professional behavior defined by the organization's code of conduct, The code and education should emphasize respect. Include training in basic business etiquette (particularly phone skills) and people skills. (10, 18,19) 2. Hold all team members accountable for modeling desirable behaviors, and enforce the code consistently and equitably among all staff regardless of seniority or clinical discipline in a positive fashion through reinforcement as well as punishment. (2,4, 9, 10,11) 3, Develop and implement policies and procedures/processes appropriate for the organization that address: tolerance" for intimidating and/or disruptive behaviors, especially the most egregious Instances of disruptive * "Zero behavior such as assault and other criminal acts. Incorporate the zero tolerance policy bylaws and into medical staff employment agreements as well as administrative policies. * Medical staff policies regarding intimidating and/or disruptive behaviors of physicians within a health care organization should be complementary and supportive of the policies that are present in the organization for non-physician staff, Reducing fear of intimidation or retribution and protecting those who report or cooperate in the investigation of intimidating, disruptive and other unprofessional behavior.(10,18) Non-retaliation clauses should be included in ail policy statements that address disruptive behaviors. • Responding to patients and/or their families who are involved in or witness intimidating and/or disruptive behaviors. The response should include hearing and empathizing with their concerns, thanking them for sharing those concerns, and apologizing. (11) How and when to begin disciplinary actions (such as suspension, termination, loss of clinical privileges, reports to professional licensure bodies), ÿ ÿ 4. Develop an organizational process for addressing intimidating and disruptive behaviors (LD.3.10 EP 5) that solicits and integrates substantial input from an inter-professional team including representation of medical and nursing staff, administrators and other employees, (4, 10, 18) 5, Provide skills-based training and coaching for all leaders and managers in relationship-building and collaborative practice, including skills for giving feedback on unprofessional behavior, and conflict resolution.(4, 7, 10,11,17,20) Cultural assessment tools can also be used to measure whether or not attitudes change over time. 6. Develop and implement a system for assessing staff perceptions of the seriousness and extent of instances of unprofessional behaviors and the risk of harm to patients. (10, 17, 18) 7, Develop and implement a reporting/surveillance system (possibly anonymous) for detecting unprofessional behavior. Include ombuds services(20) and patient advocates,(2, 11) both of which provide important feedback from patients and families who may experience intimidating or disruptive behavior from health professionals. Monitor system effectiveness through regular surveys, focus groups, peer and team member evaluations, or other methods, (10) Have multiple and specific strategies to iearn whether Intimidating or disruptive behaviors exist or recur, such as through direct inquiries at routine intervals with staff, supervisors, and peers. 8. Support surveillance with tiered, non-confrontational interventional strategies, starting with informal "cup of coffee" conversations directly addressing the problem and moving toward detailed action plans and progressive discipline, if patterns persist. (4,5,10,11) These interventions should initially be non-adversarial in nature, with the focus on building trust, placing accountability on and rehabilitating the offending individual, and protecting patient safety.(4,5) Make use of mediators and conflict coaches when professional dispute resolution skills are needed.(4,7, 14) 9. Conduct all interventions within the context of an organizational commitment to the health and well-being of all staff, (11) with adequate resources to support individuals whose behavior Is caused or influenced by physical or mental health pathologies. 10. Encourage inter-professional dialogues across a variety of forums as a proactive way of addressing ongoing conflicts, overcoming them, and moving forward through improved collaboration and communication. (1,2,4, 10) 11. Document all attempts to address intimidating and disruptive behaviors.(18) References 1 Rosenstein, AH and O'Daniel, M: Disruptive behavior and clinical outcomes: Perceptions of nurses and physicians. American Journal of Nursing, 2005, 105,1,54-64 2 Institute for Safe Medication Practices: Survey on workplace intimidation. 2003. Available online: https://ismp.org/Survey/surveyresults/Survey0311.asp (accessed April 14, 2008) 3 Morrissey J: Encyclopedia of errors; Growing database of medication errors allows hospitals to compare their track records with facilities nationwide in a nonpunitive setting. Modern Healthcare, March 24, 2003, 33(12):40,42 4 Gerardi, D: Effective strategies for addressing "disruptive" behavior: Moving from avoidance to engagement. Medical Group http://www.jointcommission.org/SentinelEvents/SentinelEventAlert/sea_40.htm?print=yes[9/20/2010 11:54:55 AM] Issue 40: Behaviors that undermine a culture of safety Joint Commission Management Association Webcast, 2007; and, Gerardi, D: Creating Cultures of Engagement: Effective Strategies for Addressing Conflict and "Disruptive" Behavior. Arizona Hospital Association Annual Patient Safety Forum, 2008 5 Ransom, SB and Neff, KE, et al: Enhancing physician performance. American College of Physician Executives, Tampa, Fla., 2000, chapter 4, p.45-72 6 Rosenstein, A, et al: Disruptive physician behavior contributes to nursing shortage; Study links bad behavior by doctors to nurses leaving the profession. Physician Executive, November/December 2002, 28(6):8-ll. Available online: http://findarticles.eom/p/articles/mLm0843/is_6_28/ai_94590407 (accessed April 14, 2008) 7 Gerardi, D: The Emerging Culture of Health Care: Improving End-of-Life Care through Collaboration and Conflict Engagement Among Health Care Professionals. Ohio State Journal on Dispute Resolution, 2007, 23(1):105-142 8 Weber, DO; Poll results: Doctors' disruptive behavior disturbs physician leaders. Physician Executive, September/October 2004, 30(5): 6-14 9 Leape, LL and Fromson, JA: Problem doctors: Is there a system-level solution? Annals of Internal Medicine, 2006, 144:107155 10 Porto, G and Lauve, R: Disruptive clinical behavior: A persistent threat to patient safety. Patient Safety and Quality Healthcare, July/August 2006. Available online: http://www.psqh.com/julaug06/dlsruptive.html (accessed April 14, 2008) 11 Hickson, GB: A complementary approach to promoting professionalism; Identifying, measuring, and addressing unprofessional behaviors. Academic Medicine, November 2007, 82(11):1040-1048 12 Rosenstein, AH: Nurse-physician relationships: Impact on nurse satisfaction and retention. American Journal of Nursing, 2002, 102(6):26-34 13 Hickson GB, et al: Patient complaints and malpractice risk. Journal of the American Medical Association, 2002, 287:2951-7 14 Hickson GB, et al; Patient complaints and malpractice risk in a regional healthcare center. Southern Medical Journal, August 2007, 100(8):791-6 15 Stelfox HT, Ghandi TK, Orav J, Gustafson ML: The relation of patient satisfaction with complaints against physicians, risk management episodes, and malpractice lawsuits. American Journal of Medicine, 2005, 118(10):1126-33 16 Gerardi, D: The culture of health care: How professional and organizational cultures impact conflict management. Georgia Law Review, 2005, 21(4):857-890 17 Keogh, T and Martin, W: Managing unmanageable physicians. Physician Executive, September/October 2004, 18-22 18 ECRI Institute; Disruptive practitioner behavior report, June 2006. Available for purchase online: http://www.ecri.org/Press/Pages/Free_Report_Behavior.aspx (accessed April 14, 2008) 19 Kahn, MW: Etiquette-based medicine. New England Journal of Medicine, May 8, 2008, 358; 19:1988-1989 20 Marshall, P and Robson, R: Preventing and managing conflict: Vital pieces In the patient safety puzzle. Healthcare Quarterly, October 2005, 8:39-44 * The 2009 standards have been renumbered as part of the Standards Improvement Initiative. During development, this standard was number LD.3.10, -Top- Please route this issue to appropriate staff within your organization. Sentinel Event Alert may only be reproduced in its entirety and credited to The Joint Commission. http://www.jointcommission.org/SentinelEvents/SentinelEventAlert/sea_40.htm?print=yes[9/20/2010 11:54:55 AM] 1 VERIFICATION OF FIRST AMENDED COMPLAINT FOR DAMAGES 2 3 I, PATRICK SULLIVAN, have read the attached First Amended Complaint for Damages 4 and hereby attest that the same is true of my own knowledge, except as to those matters, which 5 are therein stated on my information or belief, and as to those matter that Ibelieve it to be true. 6 7 8 Ideclare under penalty of perjury under to the laws of the State of California that the foregoing is true and correct. This Verification was executed on in San Diego, CA 92109. 9 10 11 PATRICK SULLIVAN, M.D. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFICATION OF FIRST AMENDED COMPLAINT FOR DAMAGES