JOHNNY B. DELASHAW, JR,

SEATTLE TIMES COMPANY, and
CHARLES COBBS,

Case Document 1 Filed 04/11/18 Page 1 of 176

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE

Case No.
Plaintiff,
COMPLAINT FOR LIBEL, DEF AMATION BY
v. IMPLICATION, TORTIOUS INTERFERENCE
WITH BUSINESS RELATIONSHIP 
EXPECTANCY, UNFAIR BUSINESS
PRACTICES IN VIOLATION OF RCW 19.86
ET SEQ. AND CIVIL CONSPIRACY
Defendants.

 

I.

I. INTRODUCTION

In early 2017, the Seattle Times (Times) published a series of sensational articles

attacking the quality of patient care at the Swedish Neurosurgical Institute (SNI), a practice group

within Swedish Health Services d/b/a Swedish Medical Group (Swedish), and accusing Dr. Johnny

Delashaw and other SNI surgeons of endangering patients by racing through surgeries in order to

make more money.

2.

These claims were false. The main factual assertions in these articles, and the overall

thesis and message conveyed by the articles, were false, defamatory and caused serious damage to

the reputation and career of Dr. Johnny Delashaw, injured patients who needed his care. and

damaged the quality of health care in the Paci?c Northwest. The Times was in possession of highly

COMPLAINT FOR LIBEL, DEFAMATION BY
IMPLICATION, TORTIOUS INTERFERENCE WITH
BUSINESS RELATIONSHIP EXPECTANCY,

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Case Document 1 Filed 04/11/18 Page 2 of 176

credible information demonstrating the falsity of its statements but chose to omit even a hint of the
compelling, documented facts showing that its claims about SNI and Dr. Delashaw were false.

3. In its articles, the Times claimed that at the time of the articles and for many months

before them, Dr. Delashaw was paid based on the volume of surgeries he performed and that, for
this reason, Dr. Delashaw had neglected his patients by performing ?concurrent surgeries." The
term ?concurrent surgeries? refers to a single lead surgeon running two surgeries at the same time,
leaving one operating room in mideoperation to go to another. The article claimed that the result of
this practice was that the lead surgeon was absent from at least one if not both surgeries during
critical times, endangering patients. The Times asserted that Dr. Delashaw was engaging in these
dangerous practices at the time of publication and for many months before and was placing patients
at risk. The Times claimed that Dr. Delashaw?s ?concurrent surgery? practice included leaving the
operating room as soon as the patient was under anesthesia and then moving to the next operation,
resulting in increased complications and a general decline in the actual outcomes for patients treated
by Dr. Delashaw and other surgeons at SNI.
4. Each of these claims is false. The Times? claimed ?motive? for the concurrent
surgeries alleged to be taking place during the period before the articles were published was that Dr.
Delashaw was paid based on volume. But for nearly two years before the Times went to print, Dr.
Delashaw was on salary. He had no financial incentive to increase his surgical volume.

5. The claim that, because Dr. Delashaw was paid based on volume, "concurrent
surgeries? were taking place at SNI is also false. There were no concurrent surgeries. An extensive
Washington State Department of Health investigation that included scores of interviews of
knowledgeable witnesses found that the Times? claim that SNI was engaging in ?concurrent
surgeries? was not true.

6. The Times claimed that its ??ndings? were the product of an ?investigation,? but in
Law amass

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Case Document 1 Filed 04/11/18 Page 3 of 176

fact the Times? claims would not have survived an actual ?investigation.?'

7. The Times had in its possession highly credible information from an eyewitness to
hundreds ofDr. Delashaw?s surgeries clearly showing that its claims were false, but the Times chose
not even to acknowledge the existence of this information. The Times? approach to its
?investigation? was to omit any information that did not fit the accusations it was determined to
make.

8. The Times tried to bolster its basic thesis that Dr. Delashaw raced through concurrent
surgeries, endangering patients, by also claiming that SNI had been experiencing poor patient
outcomes when matched against comparable neurosurgical institutions. But objective data show
that, during the period covered by the Times articles, SNI maintained its standing as a high quality
neurosurgical institution with outcomes and quality of care as good as, or better than, comparable
institutions. SNI achieved this high quality of care while expanding its volume of surgeries. which,
in the case of Dr. Delashaw, involved many surgeries at the highest level of difficulty and risk. The
Times turned the truth?a major local neurosurgical achievement?into a malicious ?ction.

9. The Times committed the very sins it purported to uncover: in an effort to generate
readers via sensational press, the Times sacri?ced truth for accuracy, leveling catastrophic blows on
Dr. Delashaw, his reputation, his finances, and his patients. Dr. Delashaw, the medical community
in Seattle, and patients here and across the country who needed (and still need) Dr. Delashaw?s
attention continue to suffer the consequences of the Times? knowingly false reporting.

II. PARTIES

10. Plaintiff Dr. Johnny B. Delashaw, Jr., is a citizen of the state of Arizona, residing in

 

Attached as Appendix A is a collection of eyewitness statements from the MQAC

proceeding. These include statements from 45 individuals based on their personal interactions
with Dr. Delashaw. These are representative of Dr. Delashaw?s character and approach to patient
care and also consistent with information that was provided to, but disregarded by, the Times?
reporter before the Times? series went to print.

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COMPLAINT FOR LIBEL, DEFAMATION BY
IMPLICATION, TORTIOUS INTERFERENCE WITH
BUSINESS RELATIONSHIP EXPECTANCY,
UNFAIR BUSINESS PRACTICES IN VIOLATION OF RCW
19.86 ET SEQ. AND CIVIL CONSPIRACY - 3

 

Case Document 1 Filed 04/11/18 Page 4 of 176

Sedona, Arizona. Dr. Delashaw was employed at SNI from fall 2013 through March 1, 2017.

11. Defendant Seattle Times Company is a privately owned business incorporated in
Delaware with its primary place of business at 1000 Denny Way, Seattle, Washington, 98109.

12. Defendant Dr. Charles Cobbs is a citizen of the state of Washington, residing in
Mercer Island, Washington. He is currently employed at SNI.

JURISDICTION AND VENUE

13. This Court has jurisdiction over the subject matter of this dispute pursuant to 28
U.S.C. 1332 because this is an action between citizens of different states and because the matter
in controversy exceeds the sum of $75,000 exclusive of interest and costs.

14. This Court has personal jurisdiction over Defendants because each Defendant is
licensed to and regularly does conduct business in Washington and the unlawful conduct alleged in
this Complaint occurred in Washington.

15. Venue is proper in the United State District Court for the Western District of
Washington pursuant to 28 U.S.C. 1391(a) and Each Defendant has continuous and systematic
contacts with this District and a substantial part of the events giving rise to Plaintiff claims occurred
in this District.

IV. FACTUAL ALLEGATIONS
A. Dr. Delashaw?s Medical Credentials

16. Dr. Delashaw was raised in Longview, Washington. He earned his Bachelor of
Science degree in Biology with honors and distinction from Stanford University. and earned a
medical degree from the University of Washington School of Medicine. He completed his residency
at the University of Virginia under Dr. John Jane, who was a world-renowned neurosurgeon, a
President of the Society of Neurological Surgeons, and a close mentor of Dr. Delashaw until Dr.
Jane?s death in 2015.

17. immediately before going to SNI, Dr. Delashaw was the chief of neurological surgery
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Case Document 1 Filed 04/11/18 Page 5 of 176

for University of California, Irvine Health, where he played an important role in building a facility
widely recognized for excellence in treating spine problems. He pioneered a national surgical
referral network for cranial disease. He served as Chairman of the Department of Neurological
Surgery at UC Irvine?s School of Medicine.

18. Before going to UC Irvine, Dr. Delashaw spent twenty years at Oregon Health 
Science University (OHSU), where he held the positions of chief of Neuro?Oncology and Skull Base
Surgery and professor of Neurological Surgery, Otolaryngology and Neurology. During his decades
at OHSU, Dr. Delashaw traveled once a week to see patients in his hometown of Longview,
Washington, where friends and neighbors still lived and in the town where his father had been a
doctor. He resumed this practice afterjoining SNI?weekly he and his staff drove five hours round
trip from Seattle to Longview, arriving in Longview at 8 where he saw patients all day before
driving back to Seattle and then, where necessary, arranged for treatment for his patients at SNI. Dr.
Delashaw also saw a need for improved neurosurgical treatment in remote areas of Alaska, opened
a clinic there, and while at SNI traveled there to see patients, and then arranged for patients in need
of surgery to be treated at SNI.

19. At the beginning of his career, Dr. Delashaw served as the chief of Neurosurgery at
Gainesville Veteran?s Administration Hospital, and later became an assistant professor of
Neurological Surgery at the University of Florida.

20. In the spring recruit Dr. Delashaw, who was then at UC Irvine,
because of his exceptional surgical skills, his recognition in the profession for those skills, and his
record of developing new highly effective surgical techniques. SNI was also very interested in the
wide referral base Dr. Delashaw enjoyed as a result of professional recognition of his skills and
methods.

21. Dr. Delashaw initially declined offer but a few months later was persuaded to
accept, in part because of the unique opportunity SNI presented for new ways to achieve cures?
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Case 2:18-cv-00537 Document 1 Filed 04/11/18 Page 6 of 176

combining advanced surgical skills and surgical improvements with previously untapped
technological advances. Seattle and SNI represented the potential to blend surgical innovation with
technological innovation to cure the previously incurable.

22. had begun in 2004 with the goal of developing into a cutting edge neurosurgical
institution in the Paci?c-Northwest. Eight years later, in 2012, SNI and Swedish became part of
Providence St. Joseph Health (Providence), a non-pro?t health care provider consisting of about 50
hospitals and hundreds of clinics in Washington, Alaska, California, Oregon, Montana, New
Mexico, and Texas. In April 2013, Dr. Rod Hochman, the former CEO of Swedish, became
President and CEO of Providence.

23. Providence?s acquisition of Swedish immediately expanded SNl?s referral network
and potential patient base.

24. Providence and Swedish recruited Dr. Delashaw with the expectation that his
considerable skills and the high regard in which he was held among other neurosurgeons would help
to transform SNI into a mecca for advanced neurosurgery. Dr. Marc Mayberg, then the Co-Director
of SNI, advocated recruiting Dr. Delashaw and helped to persuade him to come to Seattle.

25. Dr. Delashaw joined SNI in October 2013, and performed as expected. He was a
major force in transforming SNI from a good community hospital into a nationally recognized center
of neurosurgical excellence. Dr. Delashaw?s reputation coupled with his referral base helped SNI
to attract other top?flight surgeons. The resulting team increased capabilities and recognition,
leading to increases in surgical patient volume and a high quality of care.

26. When SNI ?rst offered Dr. Delashaw a position in about March 2013, he declined.
Then, in May 2013, Dr. Mayberg renewed the effort. Dr. Mayberg told Dr. Delashaw that if he
joined SNI, he would have a leadership role. Dr. Mayberg had just been diagnosed with cancer,
believed he would probably need to step down as Co-Executive Director of SNI, and was interested
in ?nding a highly quali?ed neurosurgeon capable of leading SNI.

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Case 2:18-cv-00537 Document 1 Filed 04/11/18 Page 7 of 176

27. Dr. Delashawjoined SNI in October 2013.

28. After Dr. Delashaw?s arrival, SNI expanded both its volume of work and its
capabilities in large part as a result of Dr. Delashaw?s reputation and hard work. Dr. Delashaw
attracted other highly qualified neurosurgeons to join SNI, expanding capabilities, which in
turn led to increased referrals and increasing recognition of SNI as a center capable of handling the
most dif?cult cases.

B. Dr. Delashaw Joined SNI at a Time of Signi?cant Internal Change

29. The changes that accompanied, and in part resulted from, Dr. Delashaw?s joining
SNI created some turmoil among certain doctors, nurses, and staff who resented the loss of the more
relaxed atmosphere they had previously enjoyed at a community hospital. The af?liation with the
health care giant Providence also created friction. The increased pace and intensity of work that
resulted from increased capabilities bothered some. Dr. Delashaw gradually became aware
of these personnel problems.

30. Dr. Mayberg continued to be active and was recovering from his cancer. Dr.
Mayberg?s compensation at the time Dr. Delashaw joined SNI was based in part on a pooling system
for Relative Value Units (RVUskmeaning that revenue generated by other surgeons? work was
allocated in part to Dr. Mayberg. When Dr. Delashaw was made a Providence employee. it was
unclear whether his RVUs would be added to the pool. Dr. Mayberg wanted Dr. Delashaw?s RVUs
added to the pool, which would have redounded to Dr. Mayberg?s ?nancial he would
receive financial credit for work done by Dr. Delashaw.

31. Dr. Delashaw had a work ethic that was uncommon at SNI in the past though he was
soon joined by others with a similar approach. Dr. Delashaw had high energy, and worked intensely
at his surgical practice, at pursuing his goals for SNI, at implementing new techniques, and at
bringing in new, very capable surgeons. Dr. Delashaw worked longer days and scheduled earlier
surgeries than had previously been standard practice. In the meantime, Dr. Mayberg was recovering
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and had determined that he could maintain his leadership role, and took over sole leadership of SNI.
Dr. Mayberg?s administrative salary combined with his surgery income (including his participation
in a compensation pool at SNI) yielded him a $1.16 million income even though he performed fewer
surgical procedures than many. The compensation pool allowed surgeons who were not actually
performing surgical work on a patient to be paid a portion of the fees generated by those who did
perform the surgeries.

32. Dr. Mayberg had expected that Dr. Delashaw would bring SNI many additional
patients, but Dr. Mayberg did not take steps to prepare the hospital or its staff for increased volume.
This failure led to some staff resenting the changes in ways that might have been avoided with better
planning by Dr. Mayberg. This leadership failure aggravated the resentment some SNI personnel
felt over the increased pace of work.

33. At the time of Dr. Delashaw?s arrival at SNI in 2013, about five hospitals and seven
emergency rooms in greater Seattle were sending cases to SNI. During 2014, SNI was starting to
attract increasing numbers of patients from the Paci?c Northwest, the greater West and to some
extent from across the United States. This trend continued into 2015 and 2016. Between 2010 and
2015, patient volume grew 66%.

34. By 2016, SNI was the referral center for approximately forty hospitals across five
states in the Northwest region and, especially for very difficult cases, for hospitals in other regions.
This change was driven mainly by the high quality of work.

35. patient volume increase was also driven by a sharp increase in the number of
other hospitals referring dif?cult cases to SN l?which was also in partthe result of the exceptional
capabilities of SNl?s surgeons. This growth was augmented by affiliation with Providence
and by the Affordable Care Act?s extension of insurance coverage to a large new segment of sick
patients.

36. By 2016, the vision that had led SNI to recruit Dr. Delashaw, and that had led Dr.
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Delashaw to come to SNI, was being realized. The SNI achievement was part of a broader
accomplishment brought about by some of Seattle?s leading citizens and physicians to improve
neuroscience techniques, to combine them with technological advances, and to communicate the
results around the world. That commitment centered on SNI and also on the non-profit Seattle
Science Foundation (SSF). In 2007, a handful of people who saw the potential to blend technology
with neurosurgery formed SSF to advance collaboration between patient care providers and
technologists. By 2016, SSF had grown to worldwide recognition both for its scienti?c/medical
research and development work and for its extraordinary achievement in communicating new
surgical techniques to skilled surgeons around the world. SSF had developed systems for
transmitting real time demonstrations of surgical techniques to scores of surgeons in remote
locations. Instead of a highly skilled (and needed) surgeon spending five days traveling round trip
to (for example) Tokyo to demonstrate a new technique to half a dozen surgeons, the same person
could spend a few hours performing the technique in Seattle while high?quality real-time video and
audio were transmitted to Tokyo and other places around the world, observed by dozens of surgeons.
It was this kind of opportunity to blend neurosurgical advances with technology that had persuaded
Dr. Delashaw to leave Southern California and come to Seattle.

37. While Dr. Delashaw and others were working to modernize and expand SNI to
become a nationally recognized center of neurosurgical excellence, some incumbent surgeons and
staff, including Drs. Cobbs and Mayberg, felt marginalized because of their diminished roles.

38. During 2014, Swedish management had decided to end the pooling system for
compensation and to adopt a compensation system based on a surgeon?s own RVUS without any
compensation pooling?rmeaning that Dr. Mayberg (and others) would no longer be paid for surgical
care they did not deliver. Ending pooling had a number of bene?ts, including ensuring that
physicians? compensation did not depend on a patient?s ability pay, and also ensuring that surgeons
received pay for what they did without having it siphoned off by surgeons who were not performing
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the work. The change in compensation method was adopted and implemented by Swedish
management, not by Dr. Delashaw, though he also believed it was best to align ?nancial reward with
high quality surgical work.

39. The end of pooling produced unfavorable ?nancial results for Dr. Mayberg. He was
no longer being paid for surgeries he did not perform. A parallel development also affected his
compensation?a change in leadership.

40. In early 2014 at a meeting of surgeons at the Washington Athletic Club, it was
reported that Swedish management was planning to change or end the existing medical directorships.
The following month at a faculty meeting, Dr. Mayberg was questioned about how much he was
drawing as an administrative salary. In mid?2014 Swedish management removed Dr. Mayberg as
the medical director of 

41. Between losing his position as medical director of and the elimination of the
pooling compensation system, Dr. Mayberg?s annual compensation dropped from $1.16 million to
about $360,000 (subject to his ability to increase it by doing more work). Dr. Mayberg associated
both decisions with Dr. Delashaw even though both decisions were made by Swedish management.

42. Around this time, Dr. Mayberg and his longtime colleague, nurse Mary Fearon.
former Director of Perioperative Services, began encouraging SNI nurses to file anonymous
complaints against Dr. Delashaw, taking advantage of the resentment a few of the staff.
including nurses, felt as a result of the many changes in pace and intensity that accompanied 
transformation from a community hospital to a neurosurgical powerhouse.

43. In November 2014, Dr. Delashaw presented his strategic vision for SNI at a faculty
meeting. Around a month later, in December and during a meeting at the Seattle Science Foundation.
Providence Swedish leadership informed that Dr. Delashaw would assume the leadership role
of Chairman of SNI, which he did on or about April of 2015. From that date forward?over 22
months before the Times articles?Dr. Delashaw was paid based on his SNI salary and did not
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bene?t ?nancially from performing a large volume of surgeries.2 Although Dr. Mayberg remained
at SNI, Mary Fearon left in May 2015 after being advised by Swedish management that she was
being uncooperative in scheduling Dr. Delashaw?s operating room time and that complaints she had
recently had submitted about SNI were not credible.

44. After he became Chairman, Dr. Delashaw took several actions to improve quality of
care, transparency, and accountability. Dr. Delashaw implemented more robust quality review
processes designed to find and correct quality problems. Dr. Delashaw routinely attended and
presented at the specialty conferences at SNI, including the Tumor Board, Cerebrovascular
Conference, Mortality and Morbidity Conference, and Grand Rounds. Dr. Delashaw also
established a formal Patient Outcome and Quality Review Committee in September 2015 to
formalize the collection of detailed data on morbidity and mortality at to get objective
data that would enable SNI to improve performance and results (which were already high).

45. Dr. Delashaw also implemented a method of choosing the best aneurysm treatment
for each patient?a method that was designed to be objective and to avoid any individual bias for
?clipping? vs. ?coiling,? which could otherwise be influenced by the expertise a particular surgeon
had for one method. Instead, this plan called for each patient?s case to be reviewed either by one
surgeon who specialized in coiling and one who specialized in clipping, or by at least two surgeons,
one of whom was pro?cient in both methods.

46. With Dr. Delashaw?s encouragement, SNI also hired Dr. Cameron McDougall, one
of the country?s leading authorities in aneurysm treatments. Dr. Delashaw was not an advocate for

a particular method of aneurysm treatment; he was an advocate of choosing the right aneurysm

 

2 Dr. Delashaw had been traveling regularly to Alaska to care for patients there and had been
compensated on a per diem basis for doing so. After he became Chairman in April 2015, he
arranged for SNI to hire two surgeons to take his place. Dr. Delashaw may have been paid a small
sum after April 2015 for his Alaska work.

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treatment.

47. Dr. Delashaw also revamped the referral process so that general referrals?meaning
referrals to SNI vs. referrals to individual surgeons?were allocated to the right surgeons equitably
and openly. The ?rst step was to require that all general referrals?sometimes called ?indirect?
referrals?came to him as the leader, for distribution to the appropriate surgeon. To assure complete
objectivity, in July 2016, he assigned Dr. McDougall to preside over the allocation process, with the
results published so that all of the neurosurgeons were aware of them. This transparent practice is
used at hospitals across the country, but, like some ofthe other reforms at SNI, it replaced an existing
practice that allowed certain doctors to ?cherry pick? referrals for their own bene?t. One of these
doctors was Dr. Cobbs.

48. When Dr. Cobbs joined SNI in August 2013 as the Director of Ivy Center for
Advanced Brain Tumor Treatment, he thought that he should receive all brain tumor surgery referrals
to SNI. After the reform of the allocation process, Dr. Cobbs was not receiving all brain tumor
referrals, and he grew unhappy about his compensation. Even though Dr. Cobbs negotiated a
$300,000 research incentive bonus with Dr. Delashaw, he objected to his compensation level and
complained that the objective and transparent new referral system constituted ?poaching patients.?

49. Dr. Cobbs associated Dr. Delashaw with his resentment over his compensation. The
new systems were in fact aligned with similar practices at other large hospitals, were designed to
improve patient outcomes, and were based on objective, transparent criteria. Like Dr. Mayberg, Dr.
Cobbs had benefited ?nancially from an inferior system and he resented the doctor who had properly
used his authority to implement the improvements.

C. Dr. Mayberg and Dr. Cobbs Plot Their Attack on Dr. Delashaw

50. Drs. Mayberg and Cobbs made an agreement to implement a plan to destroy Dr.
Delashaw?s reputation in order to secure his termination, or at least his removal from his leadership
role at SNI. They did so because they resented their loss of income and authority?losses that
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resulted from changes highly bene?cial to patients. So they made a deal?a conspiracy?and set
out to accuse Dr. Delashaw of endangering patients. This conspiracy is in writing, as are the plans
for launching a series of attacks on Dr. Delashaw which included falsifying complaints, following a
lawyer?s advice on how best to induce SNI management to get rid of Dr. Delashaw, and, ultimately,
led to lying under oath to conceal their activities.

51. One of the Cobbs/Mayberg tactics was to abuse the SNI anonymous complaint
system, which had been created to enable those with legitimate concerns to express them without
fear of retaliation. In January 2016, Dr. Mayberg ?lled out an anonymous facilities complaint
against SNI and sent it to the Department of Health from the Park Postal store in the Madison Park
neighborhood of Seattle. The complaint asserted that numerous other complaints had been made
anonymously about ?inappropriate surgeries, increase in complications and infection rates,
unsupervised surgery and critical care by neurosurgical fellows? and that ?attempts to mitigate or
resolve these issues have been unsuccessful? leading to ?widespread resignations.? These claims
were fabricated by Dr. Mayberg. His anonymous complaint was investigated and evaluated by the
Department of Health in July 2016. In its summary of ?ndings and conclusions, the investigator
found with respect to every allegation: ?not substantiated due to lack of evidence.?

52. Much later, Dr. Mayberg sought to conceal that he was the author of the anonymous
complaint. In May 2017, the Washington State Medical Quality Assurance Commission (MCAQ)
suspended Dr. Delashaw?s license to practice medicine. Dr. Mayberg had been highly instrumental
in bringing about this suspension. In the MCAQ proceeding, Dr. Mayberg?s deposition was taken
by Dr. Delashaw?s lawyer, who asked him about the anonymous complaint. Dr. Mayberg lied at his
deposition of December 18, 2017. When he was directly asked, ?Did you send that complaint in
January 2016?? he stated, did not.? After Dr. Mayberg was visited by the FBI and retained a
lawyer with expertise in criminal matters, he, in a later deposition, testi?ed that he had lied under
oath on December 18, 2017, and admitted that he was the author of the complaint. Dr. Mayberg was
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Case Document 1 Filed 04/11/18 Page 14 of 176

so committed to the course of action that he and Dr. Cobbs had adopted to destroy Dr. Delashaw that
he committed perjury in order to sustain it and conceal his part in it.

53. The abuse of complaints was not limited to Dr. Mayberg?s anonymous January 2016
complaint. In March 2016, in an anonymous complaint to the Medical Commission, a complainant
said that on December 21, 2015, ?Dr. Delashaw threw a phone at a nurse in the OR. The phone was
shattered. The nurse involved was Trish Flett. She was very upset at the incident. Dr. Delashaw
then went to the OR control desk and screamed at Deborah DesJardin-Rowland the charge nurse and
threatened her job.? The Medical Commission began an investigation of this phone/yelling
complaint, assigning it a low priority (Priority B). This incident also was a fabrication: the head of
Human Resources at SNI and two doctors who had worked with Dr. Delashaw on the day in question
signed sworn declarations that they had not witnessed Dr. Delashaw throw anything in the OR or
yell at any of the staff, and were not aware of any reports of Dr. Delashaw throwing anything in the
OR or yelling at any of. the staff.

54. Like Dr. Mayberg, Dr. Cobbs harbored resentment over compensation issues that
underlay his actions against Dr. Delashaw. In the fall of2016, after learning that other surgeons did
not have production caps in their contracts as he did, Dr. Cobbs attempted to renegotiate his
compensation structure with the Swedish administration to enable him to make more money, but he
failed. Dr. Cobbs was still offended by the improved system for cranial referrals that led to a decline
in his referrals. In his own words, he decided to go ?nuclear and kick the hornets nest,? believing,
as he stated, that Dr. Delashaw was responsible for the decline in his referral practice, and thus his
income.

55. Unaware of the plot swirling around him, Dr. Delashaw continued to work to improve
and expand SNI. On October 22, 2016, Swedish held its gala, raising over $6 million in fundraising
for its various initiatives, many of which were driven by Dr. Delashaw and his cadre of surgeons.
The event was a watershed moment for Dr. Delashaw and those working together to promote SNI to
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Case 2:18?cv?00537 Document 1 Filed 04/11/18 Page 15 of 176

the forefront of neurosurgery. While speaking at the event, Dr. Delashaw reminded supporters
that its goal was nothing less than to cure paralysis. The evening re?ected the signi?cant
achievements of SNI in the few years since Dr. Delashaw?s arrival.

56. As Dr. Delashaw solidi?ed his leadership position, Drs. Cobbs and Mayberg and a
few other disgruntled surgeons continued to conspire to bring him down and escalated their
campaign against him. They lobbied other SNI surgeons to sign a letter of complaint against Dr.
Delashaw. As part of the Mayberg/Cobbs conspiracy, Cobbs sought outside advice on the types of
claims to make that would be best calculated to undermine the con?dence of Swedish management

in Dr. Delashaw. In an email dated November I, 2016, Dr. Cobbs explained:

Ijust spoke to a very experienced hospital administrator . . . . We need to change the tone of
our letter. We need to minimize the focus on Johnny stealing cases and other gripes. . . .

It will be critical to include (Providence CEO) Rod Hockman [sic] and Mike Butler in the
letter. And, to [knock it] out of the park we need to send it to the Board of Providence

57. In fact, Dr. Cobbs has stated that he never witnessed disruptive behavior by Dr.
Delashaw in the operating room and had never reported him for safety concerns to the Department
of Health. Dr. Cobbs? actual reasons for resenting Dr. Delashaw had to do with Dr. Cobbs? decreased
income (for which Dr. Delashaw had no responsibility). But Dr. Cobbs heeded the advice of the
hospital administrator to stop talking about what was really motivating him?#money?and start
inventing stories that would be troubling to SNI management.

58. As part of his and Dr. Mayberg?s refocused effort, Dr. Cobbs consulted a lawyer,
who advised that the way to inflict maximum damage on Dr. Delashaw?s standing at SNI and
potentially have him removed was to generate the kinds of complaints that would worry Swedish
management. On November 1, 2016, Dr. Cobbs wrote an email to Dr. Ryder Gwinn, Dr. Rod
Oskouian, and Dr. Jens Chapman. In the email, Dr. Cobbs did not suggest that the problems
identi?ed actually existed, only that they were the types of complaints that would undermine Dr.
Delashaw with SNI management:

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Case 2:18-cv-00537 Document 1 Filed 04/11/18 Page 16 of 176

Hey guys I have an amazing attorney who?s gonna look over the document. He?s my
best friend from college and was number one at Harvard Law school and he?s also a
really good friend of Ed Laws.3 First of all he wants to make sure that that message
I sent out from Ed Laws goes nowhere and I told him I would say that. Secondly I
need someone to send me right now the latest version of the cover letter and the other
stuff. He knows exactly what we are dealing with and he said the critical issue is
not necessarily what we believe is our complaints but what Will make the
corporate people squirm. These types of things include evidence of workplace
violation of intimidation, female stress, etc. and even worse cover-up of any quality
metrics etc. We need to get our act together make sure we have access to
documentation of these types of issues. Please send me the latest version now and I
will send it to him ASAP.

59. In another e?mail sent a few hours later, Dr. Cobbs reiterated the plan of, first,
identifying the kinds of issues that would worry management, and then cooking up allegations of
such incidents:

The off the cuff response of my lawyer friend is we can cry all we want, but the
administration may feel culpability and thus maintain a defensive posture. He said
it?s extremely important that we list things that are concrete violations of law such as
work place discrimination, discrimination based on sex, suppression of quality
control efforts, etc. He hasn?t evaluated our letter yet but I?m hoping he can find
concrete terms that we can list (1, 2, 3, etc) that are considered nuclear bombs to the
administration [and] which will make them think carefully about pushing back.

60. In short, Dr. Cobbs, with the help of a non?Swedish hospital administrator and a
lawyer, started by identifying the kinds of complaints that would worry SNI management and then
set about inventing them. Dr. Cobbs was hoping the lawyer could ??nd concrete terms that we can
list? that are considered ?nuclear bombs.? The documents that Drs. Cobbs and Mayberg later
generated were the? product of this plan: ?nd the accusations that will worry management and make
those accusations??without regard to whether there was any truth to them.

61. Over the coming weeks, Dr. Cobbs put the attorney?s plan into action by repeatedly
disparaging Dr. Delashaw in letters designed to make the Swedish ?corporate people squirm.? In

these letters, he falsely stated that he was expressing the ?unanimous? views of faculty and

3 Ed Laws is the Director of the Pituitary and Neuroendocrine Center at Brigham and Women?s Hospital.

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falsely accused Dr. Delashaw of endangering patient safety and harming ?nancial condition.
In a later deposition, when asked what he thought ?unanimous? meant Dr. Cobbs initially said it was
more than ?fty percent and then testi?ed that don?t know exactly what ?unanimous? means . . . 
In fact, Dr. Cobbs? fellow surgeons refused to Sign the letter of so?called unanimous complaints and
an SNI administrator has testi?ed that the Cobbs? materials purporting to summarize the events at
the meeting of surgeons are not accurate. But Dr. Cobbs persisted in widely distributing these false
materials.

62. Drs. Cobbs and Mayberg also continued to lobby their fellow neurosurgeons against
Dr. Delashaw. Using their wives? e-mail accounts, they exchanged drafts of a ?Game Plan? to
achieve their goal of ?accomplish[ing the] resignation of JD [Johnny Delashaw].? Their plan was
not driven by concerns for patient safety but was designed to destroy Dr. Delashaw?s reputation and
his standing at SNI. Following the attorney?s advice to try to develop claims that would make
Swedish management ?squirm,? Drs. Cobbs and Mayberg urged their colleagues to join them in
refusing to negotiate with Providence or with the other surgeons, in blocking discussion on issues
that would not support their goal of removing Dr. Delashaw, and in taking whatever action would
ensure that Dr. Delashaw would immediately lose all authority at SN1.

63. These plans authored by Drs. Cobbs and Mayberg would also?once Dr. Delashaw
was out of the way?have allowed them to advance their compensation and professional stature at
SNI?the ?nancial and professional ambitions that had motivated them to seek advice on how best
to attack Dr. Delashaw.

64. Drs. Cobbs and Mayberg saw the wisdom of concealing their actual (?nancial)
motives for seeking Dr. Delashaw?s removal. As Dr. Cobbs put it: ?if we look like we are doing
this for greed it will make our case weaker.? So Dr. Cobbs recommended instead laying out ?a
clear case that we are doing this for the bene?t of the common good and the Institute.?

65. On November 17, 2016, Dr. Cobbs broadcast his criticisms of Dr. Delashaw to
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Swedish executives and falsely stated that ?[a]lmost all? of SNI neurosurgeons supported his views.
This was false. Dr. Cobbs claimed that other surgeons had declined to sign his letter for fear of
retaliation, but in fact they did not support it. Within a week, Dr. Cobbs? false report of a consensus
on the (false) claims about Dr. Delashaw was sent to dozens of Swedish employees through an
anonymous email sent from a Gmail account using the pseudonym jbartsolo@gmail.com. The email
was calculated to make the corporate types squirm: its subject line was ?Cherry Hill is not safe for
patient care with Dr. Delashaw in a leadership role? and it demanded Dr. Delashaw?s resignation
while asserting that he had ?all the hallmarks? of being a ?high-functioning 

66. The Times reported these internal SNI communications that were obviously. and

improperly, provided to the Times, and formed a cornerstone of its ?investigation? of SNI.

D. The Times Claimed that in an ?Investigation? It Found that Dr. Delashaw and Others
Were Engaging in ?Concurrent Surgeries? and that Dr. Delashaw Was Neglecting
and Endangering Patients because He Was Paid Based on Volume.

67. Beginning on February 10, 2017. the Times published a series of articles accusing
SNI in general, and Dr. Delashaw in particular, of endangering neurosurgical patients.

68. One such practice, according to the Times, was ?concurrent surgeries.? Concurrent
surgeries are surgeries in which the critical portions of each operation occur simultaneously despite
being led by the same doctor. The Times claimed that Dr. Delashaw was motivated to perform
?concurrent surgeries? because he was paid on a piecework basis?the more surgeries he could
perform in a day, the more money he made. The Times claimed that Dr. Delashaw?s greedy pursuit
of volume placed patient care in jeopardy.

69. Specifically, the Times published the following false and/or misleading statements in
?The OR Factory,? written by Mike Baker and Justin Mayo and published on February 10, 2017

(all emphasis added):

a) ?The doctors in the neuroscience unit are incentivized to pursue a high?volume
approach with contracts that compensate them for large patient numbers and
complicated surgical techniques.?

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70.

Case 2:18?cv?00537 Document 1 Filed 04/11/18 Page 19 of 176

?In the past, the SNI surgeons pooled a portion of their pay and redistributed it among
each other. It was a system designed to encourage doctors to pass along patients to
their peers when they thought a co-worker might be a better specialist to handle the
patient?s procedure. In some surgical settings, all income is pooled this way.?

. . Providence and Swedish had overhauled the way Cherry Hill?s neuroscience
program approaches the business of medicine, enriching the nonpro?t institution
and its star surgeons.?

?The revised contracts at Cherry Hill?s SNI program ended the pooling system,
according to records and interviews. Surgeons would be paid almost entirely on
their production, as measured by Relative Value Units, or 

?The top two doctors?[including] Delashaw?each exceeded $75 million in
billed charges, almost $25 million more than the state?s nearest brain and spine
surgeon outside of the SNI group.?

?But the aggressive pursuit of more patients, more surgeries and more dollars
has undermined Providence?s values?rooted in the non-profit?s founding as a
humble home where nuns served the poor?and placed patient care in jeopardy, a
Seattle Times investigation has found.?

?The hospital touts its star surgeons to draw patients from hundreds of miles away,
but six current and former staffers said those doctors will sometimes do little in
the operating room once the patient is under anesthesia. Instead, the surgeons will
leave less?experienced doctors receiving specialized training to handle parts of a
surgery. That allows the primary surgeons to be in another operating room?a
practice known as ?concurrent surgery??to maintain high volumes. It is not
prohibited but can test the limits of Medicare rules.?

In summary, the Times reported that its ?investigation? had revealed that Dr.

Delashaw and other ?star surgeons? ?are incentivized? to maximize volume because they are ?paid

almost entirely on their production? and that, for this reason, Dr. Delashaw and other surgeons were

engaging in ?concurrent surgeries? to increase volume and make more money. The Times reported

that, in order to increase volume and thus income, Dr. Delashaw was leaving important surgical tasks

to less experienced doctors?Le, he and others ?do little in the operating room once the patient

is under anesthesia,? leaving less experienced doctors to ?handle parts of the surgery.? The Times

said that these alleged ongoing practices ?placed patient care in jeopardy.?



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Each ofthese claims is false.

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Case 2:18-cv-00537 Document 1 Filed 04/11/18 Page 20 of 176

72. Dr. Delashaw was on salary during the majority of his time at SNI, including the
approximately two-year period of rapidly increasing surgical volume ending when he resigned in
early 2017. The fundamental predicate for the Times? attack?volume-based compensation of Dr.
Delashaw that was motivating him to race through surgeries endangering patients_was false.

73. The Times published a chart in an effort to show that Dr. Delashaw?s surgical volume
rose as a result of the ?aggressive pursuit of more patients, more surgeries and more dollars.? The
chart shows that for the calendar year 2015 Dr. Delashaw had over $76 million in ?billed charges,?
placing him among the ?state?s top six brain and spine surgeons? and meaning he brought in $25
million more than ?the state?s nearest brain and spine surgeon outside of the SNI group.? The chart
was intended to establish high surgical volume resulting from being ?paid almost entirely on [his]
production,? but it demonstrates the opposite. Effective April 2015, Dr. Delashaw was placed on a
?xed salary and assumed his duties as Chair of Neurosurgical Division. For seventy-five
percent of 2015 he had no financial incentive to work as hard as he did. He remained on a fixed
salary through 2016 and until his departure in 2017. The chart shows that Dr. Delashaw worked
very hard even though doing so did not increase his income.

74. There were no ?concurrent surgeries.? The Times knew that Dr. Delashaw did not
engage in this practice. Dr. Delashaw?s colleague told the Times, and confirmed in writing, that he
was a meticulous surgeon who performed every critical part of every operation himself?based on
participating with ?him in hundreds of operations?but the Times disregarded this compelling
information.

75. The Washington State Department of Health later confirmed what Dr. Delashaw?s
colleague had told the Times: concurrent surgeries did not happen. The DOH investigated the

Times? claims, interviewing 127 witnesses and publishing a 135-page report. The DOH found:

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Case 2:18-cv-00537 Document 1 Filed 04/11/18 Page 21 of 176

?In the concurrent surgeries, it was alleged the attending surgeon was not available
or present during critical portions of the surgery. Concurrent surgeries by attending
surgeons were not substantiated.?4

76. Finally, the claim that these non-existent practices placed patient care in jeopardy is
false. surgical outcomes did not decline during Dr. Delashaw?s tenure, even though its

surgeons were performing the most dif?cult operations, as explained further in the next Section.

E. The Times Misrepresented Patient Outcomes as Poor When Objective Data the Times
Had in Its Possession Showed that They Were Excellent.

77. The Times? repeatedly claimed that Dr. Delashaw?s and other SNI top surgeons? use
of ?concurrent surgeries? (false) and premature departures from the operating room (false) in pursuit
of more money (false) resulted in ?endangering patients.? Dr. Delashaw and other SNI surgeons
took good care of their patients, and the results prove it.

78. Instead of using the available relevant, reliable data, the Times published non-

indicative data and twisted it to support its story. The Times claimed in ?The OR Factory?:

?Among 10 patient safety indicators published by the federal government, Cherry
Hill ranked below national levels in three areas in the data through the middle of
2015: blood clots after surgery, collapsed lungs and serious complications.?

?In benchmarks tracked by the federal government, Cherry Hill was flagged for
having high rates of blood clots, collapsed lungs and serious surgical complications.?
(Emphasis added.)

79. ?Cherry Hill? refers to the location of several Swedish Hospital facilities and is often
contrasted with ?First Hill.? The statistics the Times reported regarding ?blood clots after surgery?
and ?serious complications? covered many Swedish facilities located on ?Cherry Hill,? including
Medicine, the Intensive Care Unit, and the cardiovascular center. The Times cited these statistics as
supporting its claim that Dr. Delashaw and other SNI surgeons were ?endangering? patients at SNI,

using data that did not reflect outcomes.

 

4 2017 Investigative Report, On-Site State and Federal Hospital Investigation, Swedish Medical
Center-Cherry Hill, (?Investigative Report?) at 10 (Aug. 7, 2017).

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Case 2:18-cv-00537 Document 1 Filed 04/11/18 Page 22 of 176

80. According to data relating to performance generated by a national ?rm on
which hospitals across the country rely?Premier Quality Advisor (Premier)?SNI?s outcomes were
better than institutions of comparable size across the United States. Premier analyzes and
benchmarks patient outcomes using information from 3,750 major hospitals and closely monitors,
records and compares mortality and other factors. numbers during the relevant period, as
calculated by Premier, Show consistently excellent patient outcomes compared to its peer
institutions.

81. For example, Premier uses its extensive database to set an expected mortality rate?
that is, the mortality rate one can anticipate from ?normal? competent care. This expected mortality
rate is then compared to the actual rate at a particular facility such as SNI. The comparison is called
an ?Observed/Expected? ratio, which describes how the actual (observed) rate compares to
the norm (expected). An mortality rate of one means the actual mortality rate was the same as
the expected mortality rate. Less than one means the performance was better than expected.

82. Speci?c to SNI, the objective data covering more than 2,800 cases con?rms that their
patient outcomes were better than expected using the national benchmark data. For example, for
SNI cranial and spinal cases generally, as well as for Dr. Delashaw speci?cally, the
Observed/Expected mortality rate was below one?meaning mortality was at a lower rate than
expected for the procedures in question.

83. The DOH also investigated the Times? claims that patients were endangered in
connection with expansion and found no basis for them. The DOH carefully assessed
outcomes during the period of expansion and determined that patient outcomes remained excellent

(all emphasis added):

review of the quality data for the Swedish Neurosciences Institute from 2012 
2017 did not reveal an increase in surgical complications and infections. The

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Case Document 1 Filed 04/11/18 Page 23 of 176

quality data was obtained from the electronic medical record and benchmarked
externally.?S

review of medical records of hospital deaths for patients undergoing spine and/or
cranial surgery in 2014 and 2015 was undertaken. This did not reveal any patterns
or trends regarding quality of care.?6

84. According to the DOH ?ndings, SNI maintained a high quality of patient care while
undergoing a major increase in patient referrals from other hoSpitals and other increases in the
number and complexity of neurosurgica] procedures. The objective facts are the opposite of the

Times? claims.

F. The Seattle Times Misrepresented the Reasons for and Results of Expansion.

85. The Times? claims that Dr. Delashaw was paid based on volume and as a result had
delivered shoddy patient care were false. But the Times did not simply misrepresent what occurred;
it misrepresented the motivation for and the results of the SNI expansion?and in the process it also
completely missed the real SNI story while in?icting massive damage to the results that had been
achieved and the people who achieved them.

86. As set forth above, SNI recruited Dr. Delashaw in an effort to realize the full potential
of SNI?which was to ?become a mecca for outstanding neurosurgery. One goal was to join forces
with SSF and take advantage of its depth in technological expertise.

87. Dr. Delashaw?s part of this effort included bringing his own exceptional skills to bear
while also helping to recruit the very best surgeons from all over the United States to Seattle and to
SNI. Part of the lure~?the same lure that brought Dr. Delashaw to SNI in 2013?was the opportunity

to participate in revolutionizing neurosurgical care by working with outstanding surgeons and with

 

5 Investigative Report, at 4.

6 Investigative Report, at 4.

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Case Document 1 Filed 04/11/18 Page 24 of 176

Seattle?s tech community on cures that surgery alone cannot achieve, and having the opportunity to
communicate new techniques around the world using the facilities of SSF.

88. The volume of surgical work at SNI rose steeply in 2014 through 2016. This increase
did not cause any decline in excellent care; it occurred largely because of excellent care combined
with technological advances, expansion of operating spaces, and a resulting increase in referrals.
By 2016, SNI was attracting referrals from ten times the number of hospitals that were referring
tough cases to SNI before Dr. Delashaw arrived. Dr. Delashaw and his colleagues were in the midst
of achieving the goal that had attracted him to Seattle and, at the gala in October 2016, raised over
$6 million to continue growth and depth.

89. A key part of the expansion was to attract very capable surgeons. For example, before
2013, SNI had one open aneurysm surgeon and two interventional practitioners. By the summer of
2016, SNI had on staff two open aneurysm surgeons, two interventional practitioners, and two
neurosurgeons versed in both techniques. This increase in numbers was also an increase in depth:
there were more surgeons who were skilled in each of the two major techniques, making it easier to
match a patient?s condition with the right surgeon.

90. Other reasons for the increase in surgical volume included Providence Health
Services? acquisition of Swedish Medical Center in 2011, which broadened referral base
significantly. By 2016, SNI was the referral center for hospitals across five states in the Northwest.
A third factor leading to volume increase was the Affordable Care Act, which brought patients to
SNI who had previously been untreated, leading to an in?ux of cases made more challenging by
prior neglect.

91. The truth about expansion is the opposite of the Times? reporting: the real SNI
story is one of remarkable achievement. Its increased volume of dif?cult neurosurgical cases
resulted mainly from high?not low?quality. The Times? claims of greed-driven volumes resulting
in patient neglect are not simply false; the truth is precisely the opposite. But the Times? false

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Case 2:18-cv-00537 Document 1 Filed 04/11/18 Page 25 of 176

reporting has severely undermined an achievement in high-quality neurosurgical care that was of

great value to the Puget Sound region and the western United States.

G. The Times Falser Claimed that the Pursuit of ?More Dollars? ?Placed Patient Care in
Jeopardy? because of ?Massive Caseloads? and Excess Burdens on Staff, Including
?ZO-Hour Days.?

92. The Times reported:

?[T]he aggressive pursuit of more patients, more surgeries and more dollars?
resulted in ?massive caseloads? for ?medical staffers from the operating room
to the intensive?care unit [which has] forced some nurses at Cherry Hill to be on
duty for 20 hours in a day. . . . It?s not uncommon to see some nurses who support
Cherry Hill?s operating-room work 20 hours in a 24-hour period, said Knapp, despite
research showing that long shifts can lead to more mistakes.?

93. These Times? claims were false. The Department of Health investigated them,
interviewing 127 witnesses, and found ?no evidence that staff worked beyond their scheduled

hours or that staf?ng levels were below recommended staf?ng guidelines??

H. The Times Falser Claimed that Dr. Delashaw Engaged in Unnecessary Surgical
Procedures and did so to Increase his Income.

94. The Times cited data from Dr. Delashaw?s time at UC Irvine and SNI as evidence

that he performed the clipping procedure to generate pro?t.
95. The Times reported:

a) ?When Delashaw moved to the Cherry Hill hospital in Seattle, that campus
jumped from 36 percent of cases getting a clip in 2012 to 57 percent in 2014.
The statewide average remained under 40 percent during that same time.?

b) Seattle Times analysis of patient data shows dramatic shifts in aneurysm
treatment as Delashaw moved between jobs. Before his 2012 arrival at UC
Irvine, the university?s medical center performed clipping surgery in only
about 13 percent of cases. After Delashaw?s arrival, 62 percent of aneurysm
patients undergoing treatment at Irvine received a clip the highest rate
among California hospitals who had at least 20 aneurysm cases, according to
state data analyzed by The Times.?

 

7 Investigative Report, at 6 (emphasis added).

COMPLAINT FOR LIBEL, DEFAMATION BY
IMPLICATION, TORTIOUS INTERFERENCE WITH
BUSINESS RELATIONSHIP EXPECTANCY,
UNFAIR BUSINESS PRACTICES IN VIOLATION OF RCW
19.86 ET SEQ. AND CIVIL CONSPIRACY - 25

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Case 2:18-cv-00537 Document 1 Filed 04/11/18 Page 26 of 176

96. When Dr. Delashaw arrived at UC Irvine, a number of aneurysm referrals followed
him and he performed approximately 60 clipping procedures in his first few months, which were
completed with a mortality rate of The Times omitted this information, which demonstrates the
complete falsity of the claim that, under Dr. Delashaw, the choice of aneurysm treatments was driven
by pro?t rather than by patient care.

97. The Times extensively described the clipping procedure for and
repeatedly stated or implied that the clipping procedure was unnecessarily invasive and/or was
performed because it was more costly and would line the pockets of the surgeons. The Times made
no effort to ?nd out or report to its readers on the reasons that clipping is often the best treatment for
particular patients, and avoided any mention of the objective system SNI had instituted to make sure
that the right procedure was chosen for each patient.

98. One important factor in choosing clipping is that it is less likely than coiling to require
further treatment at a later time. patient base was geographically widespread and included
remote areas of Alaska. After arriving at SNI, Dr. Delashaw contracted with the Alaska Native
Tribal Health Consortium, traveled to and worked in Alaska, and deveIOped a strong referral base in
Alaska. For a patient with an aneurysm that requires follow?up, as coiling often does, avoiding
multiple arduous trips from Alaska to Seattle can be a life-saving factor in itself. For these far-flung
patients, the clipping procedure was often the right choice for that reason alone.

99. Dr. Delashaw also established a procedure at SNI that was designed to ensure that
the choice of treatment for every aneurysm was reviewed by at least two doctors, including one
surgeon capable of clipping and another capable of coilingu?in short, the purpose of the system was
to ensure that two surgeons with combined expertise in each method made the initial decision
regarding which treatment was more apprOpriate for each patient. In addition, all non-emergent
g. non?ruptured) were reviewed at a weekly stroke conference attended by SNI faculty
(including fellows) which determined the best course of care. In addition, under Dr. Delashaw?s
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19.86 ET SEQ. AND CIVIL CONSPIRACY - 26

 

Case 2:18-cv-00537 Document 1 Filed 04/11/18 Page 27 of 176

leadership, SNI hired Dr. Cameron McDougall, an acknowledged expert in aneurysm treatment who
Specialized in coiling.
100. Instead of reporting the truth, which was that Dr. Delashaw led a concerted effort to

assure rigorous and objective treatment choices for the Times printed a falsehood:

?[Interventional neuro-radiologist Dr. Joe] Eskridge said he and Newell [a surgeon
who handled many aneurysm clippings] often discussed to assess whether
the patient would have better results with a clip or coil procedure. . . . ?Delashaw
never did that,? said Eskridge . . . 

Dr. Delashaw went beyond ?discussing? the treatment choice; he implemented a rigorous

system for making the best choice in each case.

I. The Main Claims the Times Made in Its Articles Were False and the Conclusions the
Times Presented Were Based on Claims the Times Knew Were False.

101. A fundamental falsehood in the Times articles about Swedish hospital was the claim
that its reporting resulted from an ?investigation.? It did not. No investigation would have failed to
uncover that in the period on which the articles focused Dr. Delashaw was not pursuing ?more
surgeries, more dollars? because he was paid based on volume; he was not. A request for his
contract?or a simple question?would have shown that during the nearly two years preceding
publication of the Times? articles, Dr. Delashaw was on salary. The Times also deliberately ignored
and withheld from its articles highly reliable information showing that no ?concurrent surgeries?
were taking place at the DOH later determined?but instead falsely reported that Dr.
Delashaw (and others) were making brief appearances in the OR and then leaving for another
?concurrent? surgery once the patient was under anesthesia.

102. This claim was refuted by Dr. Prashant Kelkar. Before publishing the first article, the
Times interviewed Dr. Kelkar, a neurosurgeon and fellow at SNI who had worked with Dr. Delashaw
in the operating room at SNI hundreds of times. After the interview, Dr. Kelkar followed up by

sending an e-mail to Mr. Baker of the Times recapping elements of the interview to make sure that

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Case 2:18-cv-00537 Document 1 Filed 04/11/18 Page 28 of 176

Mr. Baker understood the information Dr. Kelkar had given to him. Dr. Kelkar wrote to Mr. Baker

on February 6, 2017, as followsnever had an experience over hundreds of surgeries I performed with him [Dr.
Delashaw] that he was anything but respectful, courteous and cognizant of his
actions and comments in the OR with nurses/surgical techs/anesthesiologists/
residents/fellows. He is a well-liked surgeon from every interaction I was a part of.

Dr. Delashaw is a caring, compassionate physician who enjoys practicing
neurosurgery and takes pride in being ?the best? and having good outcomes.

In my experience over hundreds of surgeries with Dr. Delashaw, he was scrubbed
and actively engaged in the critical part of every surgery without fail.

There was never an instance where he was unavailable or immediately not present
for any surgery.

We clarified that the main surgeons including myself operating with Dr. Delashaw
were highly trained Board Eligible Neurosurgeons at the time. This is a fact that
you were not aware of till today.

I believe Dr. Delashaw came to SNI well intentioned to grow and develop a
Neurosciences program beyond the ability of the faculty that was there at the time.
His success certainly leads to scrutiny by others around him, whether that be due to
jealousy, anger. greed, change, or other. Each instance in medicine where I see
someone of power get scrutinized there is always two sides to the story and my ask
of you is that you not ruin a good man?s career to write a ?sexier? story. Please feel
free to call me at any time for any further follow up.

103. There is no mention of either the interview or the letter in the Times? article; instead,

 

 

the Times wrote only: ?Another former fellow, Dr. Prashant Kelkar, said Delashaw always came in
a timely fashion.? Dr. Kelkar and other neurosurgeons provided Mr. Baker with ?rst?hand accounts
of personal observations of Dr. Delashaw that uniformly and directly contradicted the main
assertions in the imes? articles. Before the Times went to press, it had been advised by the doctors
who actually operated with Dr. Delashaw that he was always present for the critical portions of
surgeries, that he was invariably responsible in his patient care, and that there was no factual support
for the claims of problematic behavior. After speaking with these doctors, the Times? reporters
  
BUSINESS RELATIONSHIP EXPECTANCY,

SEATTLE, 98 [04
UNFAIR BUSINESS PRACTICES IN VIOLATION OF RCW (206) ?mm 
19.86 ET SEQ. AND CIVIL CONSPIRACY - 23

 

Case Document 1 Filed 04/11/18 Page 29 of 176

knew, or should have known, that they had been provided ?misinformation and bad data? by their
sources.

104. In the wake of these attacks, Dr. Delashaw was unable to focus on patient care, so he
resigned from Swedish at the end of February 2017.

105. The false accusations filed against Dr. Delashaw had led to a ?Priority (low
priority) MQAC investigation starting in March 2016. Over six months later, on October 7, 2016, a
panel of the Medical Commission had authorized only a summary ?restriction? of Dr. Delashaw?s
license. As part of the MQAC investigation, SNI had provided statements from surgical fellows and
the head of human resources that showed that the phone-throwing claim was false. As soon as the
Times articles came out on February 10, 2017, MQAC did an about face on its low-priority, careful
approach to the unsupported claims against Dr. Delashaw. In response to the Times article, State
Senator Karen Keiser pressured the MQAC to take swift action. The investigator Stephen
Correa had interviewed the surgeons identi?ed in the newspaper article. Those surgeons admitted
that they had never seen any disruptive behavior by Dr. Delashaw. But under pressure from Senator
Keiser and in the politically charged environment the Times articles had created, MQAC proceeded
to suspend Dr. Delashaw?s medical license on the basis that he posed an ?immediate risk to the
public health and safety? despite the fact that he was no longer practicing. In short, based on the
very same evidence that had led to months of inaction followed by a mere restriction of Dr.
DelashaW?s license, suddenly, in direct response to the Times? articles and with no further
investigation, Dr. Delashaw was deprived of his license to practice medicine.

106. Discovery in the MQAC proceeding has revealed that Dr. Cobbs and Dr. Mayberg
conspired to damage Dr. Delashaw?s reputation and standing in order to effect his removal from his
position at that they intentionally violated their obligations to Swedish in this effort to displace
Dr. Delashaw so that they could improve their own professional and financial opportunities; that
they did so using their wives? personal email accounts to avoid detection of their conspiracy; and
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UNFAIR BUSINESS PRACTICES IN VIOLATION OF RCW
19.86 ET SEQ. AND CIVIL CONSPIRACY - 29

 

Case Document 1 Filed 04/11/18 Page 30 of 176

that they lied in order to cover up their actions and committed other abuses of their discovery
obligations in the MQAC proceeding in furtherance of their conspiracy, including making knowingly
false statements under oath, and withholding hundreds of pages of documents that evidenced a
concerted effort to destroy Dr. Delashaw.

107. The Times? false claims and the Cobbs/Mayberg conspiracy have destroyed Dr.
Delashaw?s career and have led directly to an unjusti?ed suspension of his license, which has led to
serious ?collateral damage.? Dr. Delashaw has a unique skill level in certain kinds of neurosurgical
procedures and patients with conditions few can treat who need continuing care. He has patients in
Longview, Washington, who need his help, for which there is no substitute.

V. CAUSES OF ACTION

FIRST CAUSE OF ACTION: DEFAMATION LIBEL
(AGAINST THE TIMES)
108. Plaintiff realleges and incorporates by reference the allegations in Paragraphs 1?107
as if stated herein.
109. On February 10, 2017, and in subsequent articles, the Times published multiple false

statements defaming the character, motivations, and quality of medical care provided by Dr. Johnny

Delashaw.
1 10. Those statements were unprivileged.
1 11. The Times actually knew or, in the exercise of reasonable care, should have known,

that its statements were false or would create a false impression in a material respect.

112. The controversy and his role in it were

Dr. Delashaw is not a public figure.
manufactured by the Times in an attempt to increase its readership and advertising revenue; to the
extent that Dr. Delashaw subsequently participated in the controversy, he was forced to do so by the

Times? defamatory statements and the public firestorm they were calculated to create. The Times

also acted with malice; the Times knew the defamatory statements were false, or acted with reckless

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UNFAIR BUSINESS PRACTICES IN VIOLATION OF RCW
19.86 ET SEQ. AND CIVIL CONSPIRACY - 30

 

Case Document 1 Filed 04/11/18 Page 31 of 176

disregard for their falsity, when it published them. The Times has continued to publish the false
statements on its website despite its knowledge that the Department of Health investigation reached
conclusions that ?atly contradict the Times? reports about Dr. Delashaw.

113. The Times? false statements impugned Dr. Delashaw?s professional reputation and
caused him significant professional inju1y.

114. The Times? abuse of its role as the community?s newspaper of record has proximately
caused and continues to cause massive damage to Dr. Delashaw, including but not limited to extreme

reputational harm and loss of employment opportunities.

SECOND CAUSE OF ACTION: DEFAMATION BY IMPLICATION
(AGAINST THE TIMES)

15. Plaintiff realleges and incorporates by reference the allegations in Paragraphs 1?107
as if stated herein.

116. The Times? ?watch dog? series about SNI, beginning with the article, ?The OR.
actony,? taken as a whole, created the false impression that Dr. Delashaw was driven by greed to
maximize his income by performing unnecessary surgeries; that he abandoned patients during
surgery in violation of his professional obligations; and that he presided over an Factory? that
harmed patients. The Times created this false impression by publishing multiple false statements
about Dr. Delashaw and in part by omitting material facts that were contrary to the Times? desired 
story line.

117. The Times? articles, read holistically, created the blatantly false implication that Dr.
Delashaw posed a threat to the very patients he sought to help and the equally false implication that
he should be removed from his leadership position at SNI.

118. The Times? articles, read holistically, created the demonstrably false implication

that patient-care outcomes declined during Dr. Delashaw?s tenure at SNI. The Times omitted

material facts that were contrary to its objective of demonizing Dr. Delashaw, including but not

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19.86 ET SEQ. AND CIVIL CONSPIRACY - 31

 

Case Document 1 Filed 04/11/18 Page 32 of 176

limited to the fact that health outcomes during Dr. Delashaw?s tenure at SNI did not decline; that
Dr. Delashaw?s income was not tied to his surgery volume during the two-year period on which
the Times articles focus; that he never engaged in ?concurrent surgeries?; and that he implemented
a process to assure that treatments for patients, including aneurysm treatments, were chosen
objectively in the best interests of the patient.

119. The Times? false statements were unprivileged.

120. The Times knew or, in the exercise of reasonable care, should have known that its
statements were false or would create a false impression in a material respect.

121. Dr. Delashaw is not a public figure. The controversy and his role in it were
manufactured by The Times; Dr. Delashaw?s subsequent participation in the controversy was the
result of a controversy created by the Times? proliferation of its defamatory statements.

122. The Times acted with malice in its false statements and in its omission of material
facts because the Times knew the statements it made were false or incomplete, or it exercised so
little care in ascertaining the facts that its conduct was reckless and without regard for the truth.

123. The Times? conduct has proximately caused and continues to cause massive damage
to Dr. Delashaw, including but not limited to extreme reputational harm and loss of employment

opportunities.

THIRD CAUSE OF ACTION:
TORTIOUS INTERFERENCE WITH BUSINESS RELATIONSHIP 
EXPECTANCY
(AGAINST THE TIMES)

124. Plaintiff realleges and incorporates by reference the allegations in Paragraphs 1?107

as if stated herein.
125. At the time of the conduct at issue, Dr. Delashaw had a business relationship with

Swedish Health Services d/b/a Swedish Medical Group and had a business expectancy arising from

his vast referral base, which extended to the entire United States and to other countries. The referral

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Case Document 1 Filed 04/11/18 Page 33 of 176

base consisted of scores if not hundreds of physicians, clinics and hospitals who knew of and
respected Dr. Delashaw?s exceptional capabilities, devotion to patients, and work ethic, and who
referred neurosurgical patients to him, including those with the most challenging neurosurgical
problems. But for Defendants? conduct, Dr. Delashaw?s business relationship with Swedish Health
Services would have continued, and his referral base would have continued to Operate as it had for
decades, resulting in a steady and very substantial source of patients requiring Dr. Delashaw?s skills.

126. The Times knew of Dr. Delashaw?s relationship with Swedish Health Services and
of the value, reliability, and importance of his referral base.

127. The Times intentionally induced or caused the termination of these business
relationships and expectancies through its repeated publication of false and defamatory statements
about Dr. Delashaw.

128. The Times? interference was for an improper purpose?to generate a public scandal

in order to promote readership of the Times? ?watch dog? series?and was accomplished through

improper means, including publication of knowingly false and defamatory statements about Dr.

Delashaw.
129. The Times? conduct was a proximate cause of damages to Dr. Delashaw.
FOURTH CAUSE OF ACTION: UNFAIR BUSINESS PRACTICES IN VIOLATION OF
RCW 19.86 ET SEQ.
(AGAINST THE TIMES)

130. Plaintiff realleges and incorporates by reference the allegations in Paragraphs 1?107

as if stated herein.

131. In its quest to generate a controversy, the Times deceived its readers and the general
public. The Times touted its ?watch dog? series as the product of a thorough independent
investigation when, in fact, it was not the result of an investigation but was designed to create a
scandal about a local hospital. The Times deceived its readers by failing to disclose the actual facts
regarding the subject matter of its report, including the fact (known by the Times) that a primary
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SEATTLE, WASHINGTON 98 04
TEL (206) 623-1700 FAX (206) 623?87 I 7

 

Case 2:18-cv-00537 Document 1 Filed 04/11/18 Page 34 of 176

source, Dr. Mayberg, acted with a fundamental con?ict of interest throughout all of his interactions
with the Times. The Times published deceptive statements regarding Dr. Delashaw and promoted
its false reports through its website, newspaper, and social media as part of a multimedia marketing
strategy in order to maximize the controversy to attract readers to its website to increase its revenue,
and the Times? false reports remain available today on internet sites across the world.

132. The Times? deceptive acts occurred in trade or commerce. The Times? disparagement
of Dr. Delashaw was a key component of its multi-media marketing strategy to increase the Times?
revenue and notoriety.

133. The Times? publication of the false articles is a betrayal of its readers? trust and
profoundly affected the public interest by damaging health care in Seattle. The Times? false
reporting has the capacity to deceive (and did deceive) a substantial portion of the public. The
Times? deceptive acts have resulted in damage to Dr. Delashaw?s reputation, including the
unprecedented summary suspension of his medical license in the wake of the Times? articles. The
Times? false reporting has prevented sick individuals from receiving medical care from Dr

Delashaw and has damaged the quality of health care available in the Seattle area.

FIFTH CAUSE OF ACTION: DEFAMATION LIBEL
(AGAINST COBBS)
134. Plaintiff realleges and incorporates by reference the allegations in Paragraphs lw107
as if stated herein.
135. Throughout 2016, Dr. Cobbs made multiple false statements, both directly and by

implication, defaming the character, motivations, and quality of medical care provided by Dr. Johnny

Delashaw.
136. Those statements were unprivileged.
137. Dr. Cobbs actually knew or, in the exercise of reasonable care, should have known

that his statements were false or would create a false impression in a material respect.

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Case 2:18-cv-00537 Document 1 Filed 04/11l18 Page 35 of 176

138. Dr. Delashaw is not a public ?gure. The controversy and his role in it were
manufactured by Defendants? conduct; Dr. Delashaw?s subsequent participation and role in the
controversy were a forced response to the Times? defamatory statements and the publication of Dr.
Cobbs? defamatory statements. Dr. Cobbs also acted with malice; he knew that his statements about
Dr. Delashaw were false, or acted with reckless disregard for their falsity, when he made them.

139. Dr. Cobbs? false statements impugned Dr. Delashaw?s professional reputation and
caused him signi?cant professional injury.

140. Dr. Cobbs? conduct has proximately caused and continues to cause damage to Dr.
Delashaw, including but not limited to extreme reputational harm and loss of employment

opportunities.

SIXTH CAUSE OF ACTION: TORTIOUS INTERFERENCE WITH BUSINESS
RELATIONSHIP EXPECTANCY
(AGAINST COBBS)

141. Plaintiff realleges and incorporates by reference the allegations in Paragraphs 1?107
as if stated herein.
142. At the time of the conduct at issue, Dr. Delashaw had a business relationship with
Swedish Health Services d/b/a Swedish Medical Group and had a business expectancy arising from
his vast referral base, which extended to the entire United States and to other countries. The referral
base consisted of scores if not hundreds of physicians, clinics and hospitals who knew of and
respected Dr. Delashaw?s exceptional capabilities, devotion to patients, and work ethic, and who
referred neurosurgical patients to him, including those with the most challenging neurosurgical
problems. But for Defendants? conduct, Dr. Delashaw?s business relationship with Swedish Health
Services would have continued, and his referral base would have continued to operate as it had for
decades, resulting in a steady and very substantial source of patients requiring Dr. Delashaw?s skills.
143. Dr. Cobbs knew of Dr. Delashaw?s relationship with Swedish Health Services and
his referral base.
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COMPLAINT OR LIBEL, DEFAMATION BY
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SEATTLE, WASHINGTON 98104
TEL (206) 623-1700 FAX (206) 623-8717

 

Case Document 1 Filed 04/11/18 Page 36 of 176

144. Dr. Cobbs intentionally induced or caused the termination of these business
relationships and expectancies through his campaign to undermine Dr. Delashaw?s reputation.

145. Dr. Cobbs? interference was for an improper purpose?specifically to promote the
ouster of and otherwise inflict harm on Dr. Delashaw?and was accomplished through improper

means, including defamation and Dr. Cobbs? violation of his obligations to Swedish.

146. Dr. Cobbs? conduct was a proximate cause of damages to Dr. Delashaw.
SEVENTH CAUSE OF ACTION: CIVIL CONSPIRACY
(AGAINST COBBS)
147. Plaintiff realleges and incorporates by reference the allegations in Paragraphs 1?107

as if stated herein.
148. As alleged ?in detail above, Dr. Cobbs and Dr. Mayberg acted in concert to destroy

Dr. Delashaw?s reputation and career at SNI by defaming him; tortiously interfering with Dr.

Delashaw?s business relationship with Swedish Health Services, and his business expectancy from

referrals; and through other unlawful means.

149. Dr. Cobbs and Dr. Mayberg entered into an agreement to accomplish the conspiracy

to destroy Dr. Delashaw?s reputation and career and worked in concert to do so.

150. Dr. Cobbs and Dr. Mayberg acted on each other?s behalf in furtherance of the
conspiracy.
151. Dr. Cobbs? and Dr. Mayberg?s conspiracy was the proximate cause of harm to Dr.

Delashaw, including the destruction of his professional reputation and other damages.

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Case 2:18-ev-00537 Document 1 Filed 04/11/18 Page 37 of 176

VI. PRAYER FOR RELIEF
In light of the foregoing, Dr. Delashaw prays for the following:
1. An order enjoining the Times from publishing false statements about Dr. Delashaw

and requiring that it remove the false statements about Dr. Delashaw from its website and publish a

retraction;
2. An order enjoining Dr. Cobbs from making false statements about Dr. Delashaw;
3. Monetary damages in an amount to be proven at trial, including an award. of

prejudgment interest in an amount to be proven at trial;

4. Reasonable costs, disbursements, attorney?s fees, and prejudgment interest on all
liquidated costs and expenses of litigation and additional taxes resulting from the payment to
Plaintiffof all of the foregoing; and

5. Any such further relief as the Court deems just and equitable.

RESPECTFULLY SUBMITTED this 1 1th day of April, 2018.

HARRIGAN LEYH FARMER THOMSEN LLP

By:_ 3/ Arthur W. Harri can, Jr. 
Arthur W. Harrigan, Jr., WSBA #1751

 

By: s/ rler L. Farmer
Tyler L. Farmer, WSBA #39912

Arthur W. Harrigan, Jr., WSBA #1751
Tyler L. Farmer, WSBA #39912

999 Third Avenue, Suite 4400

Seattle, WA 98104

Tel: (206) 623-1700

Fax: (206) 623?8717

Email: arthurh@harriganleyh.com
Email: tylerf@harriganleyh.com

Attorneys for Johnny B. Delaslzaw, Jr.

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