STATE OF WASHENGTON DEPARTMENT OF HEALTH OEympia, Washington 98504 RE: Johnny B. Delashaw, Jr. Master Case No.: M2016-1084 Document: Final Order Regarding your request for information about the above?named practitioner; attached is a true and correct copy of the document on file with the State of Washington, Department of Health, Adjudicative Clerk Office. These records are considered Certified by the Department of Health. Certain information may have been withheld pursuant to Washington state laws. While those laws require that most records be disclosed on request, they also state that certain information should not be disclosed. The following information has been withheld: NONE If you have any questions or need additional information regarding the information that was withheld, please contact: Customer Service Center PO. Box 47865 Olympia, WA 98504-7865 Phone: (360) 236?4700 Fax: (360) 586?2171 You may appeal the decision to withhold any information by writing to the Privacy Officer, Department of Health, PO. Box 47890, Olympia, WA 98504-7890. Inthe Matter of: STATE OF WASHINGTON DEPARTMENT OF HEALTH MEDICAL QUALITY ASSURANCE COMMISSION . ?Master Case No. M2016- 1084 JOHNNY B. .. FINDINGS OF FACT, License No. MD.MD.00023061, CONCLUSIONS OF LAW, AND FINAL ORDER Respondent. - APPEARANCES: Johnny B. Delashaw,Jr., the Respondent, by Bennett Big'elow Leedom, P.S. per Amy Magnano and Carol Sue Janes, Attorneys at Law Department of Health Medical Program (Program), by Of?ce of the Attorney General, per Alan Anderson, Tracy Bahm, and Christina Pfluger, Assistant Attorneys General PANEL: Claire M. 0., Panel Chair John Rooks, M. D. Mimi Winslow, J. D., Public Member PRESIDING OFFICER: Matthew R. Herington, Health Law JLIdge A nine-day hearing regarding allegations of unprofessional conduct was held in this matter from April 23-26 and April 30-May?4, 2018. OVERSIGHT. ISSUES Did the Respondent commit unprofeS'Si-onal conduct as de?ned by RCW If the Program proves unprofeSSional conduct, what are the appropriate sanctions under RCW 18.130.160? SUMMARY OF PROCEEDINGS On May 5, 2017, the Respondent's credential was summarily suspended by the FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL ORDER Page 1 of 29 Master Case No. M2016-1084 . Medical Quality Assurance Commission via an Ex Parts Order of Summary Suspension. Pursuant to the Respondent's request a show cause hearing was held on June 13, 2017. Subsequently, the Commission issued an Order on Show Cause Hearing on June 19, 2017, upholding the Ex Parts Order of SummarySuspension pending a full- adjudication of the allegations. A full evidentiary hearing was consequently held on April 23-26 and April 30-May 4, 2018 At the hearing, the Program presented the testimony of: Trish Flett, Deborah DesJardin- Rowland, Mary Fearon, Caroline Dufault, RN, Bernadette Haskins, Enedina Norton, Ralph Pascualy, Peggy Hutchison, Christie Morrison Thompson; Elizabeth Hendershott, Arthur Lam, Diane Sanders, Rose M. Raney, Niki Ellington, Meredith Gould, Frances Broyles, Marc Mayberg, Kent Neff, Eric Vallieres, and Charles Cobbs, MD. The Respondent teStified on his oWn behalf. In addition, the Respondent presented the testimony of: Emilie Daniels, Seymur Gahramanov, Cameron McDougall, Russell Vandenbelt, Laureen Driscoll; Marc Moisi, Daniel DiLorenzo, Parthasarathi Chamiraju, Daniel Klinger', Christian - Bowers, Adrienne Oden; Margaret Dancan; Lester Manuel; Ian Wright, Zachary Litvak, Kevin Yuen, and'Keyin Reinard; MD. Prior to and during the hearing, the Presiding Of?cer admitted thefollowing exhibits: FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL ORDER Page 2 of 29 Master Case No; M20164 084 Program?s Exhibits Exhibit 0-1: Respondent?s credential View screen; Exhibit Curriculum vitae of Kent Neff, - Exhibit 0-3: Declaration of Kent Nefi, Exhibit 0-4: Anonymous complaint received at DOH March 29, 2015; Exhibit D-6: Declaration of Deborah Desjardin?Rowland, dated June 8, 2017; Exhibit D-8: Emails regarding Respondent and sponge count 'from September 2015; Exhibit D-10: Declaration of Mary Fearon; dated June 7, 2017; Exhibit Declaration of Niki Ellington, dated June 8, 2017; Exhibit D-15: Declaration of Bernadette Haskins, dated June 8, 2017; Exhibit D-17: Emails of Respondent regarding fluoroscopy, August 2015; Exhibit D-18: Email from Betsy V0 to Betina Ponnoosamy, dated August 14, 2015, regarding Respondent?s certification for Radiation Safety? August 14, 2015; Exhibit D-19: Case Review for event August 15, 2015; Exhibit D-20: C-Arm and radiation machine rules and regulations for Swedish Medical Center; Exhibit D-22: Declaration of Caroline Dufault, dated June 7, 2017; Exhibit D-23: Attachment A to Caroline Dufault? declaration, dated June 7, 2017; Exhibit D-28: Letter from Charles Cobbs to TeresaBigelow, Chair, Board of- TruStees, Swedish Medical Center, dated February 15, 2017;. FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL ORDER Page 3 of 29 Master Case No. M2016-1084 Exhibit D-30: 1.1, . .. Exhibit 0-31: Letter Drafts of October 31 and November 1, 2016, and Letter to Anthony Armada from Charles Cobbs, dated November4, 2016; Email from Charles Cobbs, dated November 4, 2016; Exhibit D-32: Emaiihfrom Charles Cobbs to Respondent, dated February 15, 2017; Exhibit D-41: Letter from Dr. Pascualy, dated November 8, 2016; Exhibit D-45: Email between John Vassall, M. D. and Respondent, August 2015 Exhibit D-46: Email communication between Peggy Hutchison and Respondent, dated August 13, 2015; Exhibit D-47: Email between Peggy Hutchison and Respondent, dated August 13 2015; Exhibit D-51: Email chain between John Vassall and Peggy Hutchison, dated July 10,2015; Exhibit D-52: . Email between Clark Coler to Peggy Hutchison, dated July 3, 201;5 Exhibit D-53: Email from Clark Coler to Peggy Hutchison, dated July 4, 2015' . . Exhibit lit-54:- Email from Caroline Dufault to Peggy Hutchison, dated July 6, 2016, and notes regarding Swedish resignations; Exhibit D-55: Peggy Hutchison list of ?incidents of problems?; Exhibit D-56: Peggy Hutchison, discussion by phone, June 29, 2016; Exhibit Peggy Hutchison list of people spoken to 2015- 2016 (page 1 of3 only); Exhibit D-63: Letter to Respondent from DOH investigator Stephen Correa, dated June 27, 2016; "n 5.31.13 - 7 . . u' .uu-J-n - i H. OF ., CONCLUSIONS OF LAW, 2' AND FINAL ORDER Page 4 of 29 Master Case No. M20164 084 Exhibit D-64: Letter from Amy Magnano, attorney for Reapondent, . to Investigator Correa, dated August 3,2016; Exhibit D969: Email from Blaine Bartlett, Life Coach, to Respondent, dated January 31, 2016;. Exhibit D-70: Emails. tolfrom Respondent?s Life Coaches, November 2016; Exhibit D-72: Decuments regarding. Respondent's resignation from Swedish Medical Center; Exhibit D-T4: Swedish Hospital Code of Conduct and Dismptive Behaviors PowerPoint presentation; Exhibit 0-75: MQAC Policy M.D.2012-01 ?PractitionersExhibiting Disruptive Behavior," effective February 12, 2012, Reaffirmed May 13,2016; Exhibit D-76: Swedish Medical Centen?Cherry Hill, Summary Statement of Deficiencies, survey completed June 8, 2017; Exhibit cover letter and Swedish Medical CenterICherry Hill Summary Statement of Deficiencies, cover letter, dated August 7, 2017; Exhibit D-78: Swedish?Cherry Hill I investigative Report investigation, between April 201 T-July 2017; Exhibit D-79: Emails between Ryder GWinn, M.D., Charles Cobbs, M.D., Rod Oskouian, M.D., Stephen Monteith, M.D., and Akshal Patel, M.D., and Jens Chapman, dated October 31, 2016; Exhibit D-80: Emails betWeen Dr. Gwinn, Dr. Cobbs, Dr Oskouian and Jens Chapman, MD, dated October 31 to . November1, 2016; and .. Exhibit Email from Dr. Gwinn to Dr. Chapman, et al. dated November 1, 2016 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL ORDER Page 5 of 29 Master Case No. M2016-1084 Respondent?s Exhibits Exhibit R-1: Declaration of June Altaras; Exhibit" R-10: State-mastithot?li?arthasa rathi Chamiraj'u; Exhibit R-14: - Declaration of Johnny Delashaw, Exhibit Declaration of Laureen 'Driscoll, .. . Exhibit Declaration of Seymur Gahram?anov, Exhibit R-24: Statement of Frank Hsu; Exhibit Declaration of Patricia Hudson; Exhibit R-27: Supplemental Declaration of Patricia Hudson; - Exhibit Declaration of Daniel Klinger; Exhibit Declaration of Zachary Litvack, Exhibit R-39: Declaration of Marc Moisi, Exhibit Declaration of Adrienne Oden; Exhibit Declaration of Kevin-Reinard, Exhibit R-44: Supplemental Declaration oi Kevin Reinard. Exhibit Declaration of Barbara Shaw; Exhibit R-63: Excerpts of Text Messages of Charles Cobbs - produced in response to subpoena; Exhibit R-64: Email from Craig Roosendaal to Johnny Delashaw dated August 12, 2015; Exhibit R-66: Letter from Kevin Reinard regarding radiation event. dated August 12 2015; Exhibit R767: Drawing by Kevin Reinard of Surgical Suite December 21,2015; FINDINGS or FACT, CONCLUSIONS OF LAW, AND FINAL ORDER Page 6 of 29 Master Case No. M2016-1084 Exhibit R-68: Exhibit Exhibit RLtt' Exhibit R-77: Exhibit Exhibit R-BO: Exhibit R-81: Exhibit n32: Exhibit R-83: Exhibit R-84: Exhibit R-85: Exhibit Exhibit Con?dential Investigative Report Prepared for the Medical Qualityr Assurance Commission; Letter issued by Dr: Delashaw?s counsel to the Commission?s investigator, dated August 3, 2016. accompanied by: (1) the Declaration of Patricia Hudson (2) the Declaration of Kevin Reinard, M. D. and (3) Declaraticjn of Daniel Klinger, ??mLetter from Stephen Correa to Johnny Deiashaw Jr., dated June 27, 2016; Medical Quality Assurance Commission Medical Investigations, Additional Investigation; Forwarded Email from Gordon Wright to Stephen Correa, Denise Gruchalla and Alden Roberts, dated March 17,2017; ?Medical Quality Assurance Commission Additional Investigation dated March 27, 2017; Task Activity Report by Stephen Correa, dated March 27,2017; Email from Candace Vervair to Niki Ellington, dated June 7,2017; Email from Candace Vervair to Niki Ellington, dated June 8, 2017; Email from Candace Vervair to Mary Fearon, dated June 6, 2017; Email from Candace Vervair to Trish Flett, dated August 1,2017; Email from Trish Flett to Candace Vervair, dated August1, 2017; Email from Trish Flett to Candace Veweir, dated August 1, 2017; FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL ORDER Page 7 of 29 Master Case No. M2016-1084 Exhibit see: Exhibit R-89: Exhibit Exhibit R-91t Exhibit R-9-2: Exhibit Exhibit R-94: Exhibit Exhibit Exhibit R-97: Exhibit R400: Exhibit Exhibit 3-11 12: Exhibit FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL ORDER Master Case No. Email from. Candace Vervair, to Bernedette Haskins, dated June 201?; Email from Candace-Vervair to Bernadette Haskins, with attachment, dated June 6, 2016; Email exchange between Candace Vervair and Elizabeth Hendershott. from June 2016; Email from Candace Vervair to Rose Raney, dated- June'6,2017; . . Email from Candace Vervair to Rose Raney, with attachment, dated June 6, 2017; Email from Candace Vervair to Deborah Rowland, dated June 7, 2017;, Email from Candace Vervair to Deborah Rowland, with attachment, dated-June. 6, 2017; Email from Deborah Rowland to Candace Vervair, dated June 7, 2017', Email from Deborah DeSJardin-Rowiand to Meredith Gould, dated December 29, 2015;, Email from Deborah DesJardin-Rowlan'd to Candace Vervair, with attachment, dated June 8, 201?; Contract between Medical Quality Assurance Commission and Kent Neff. signed February 9, 2017; Swedish Cherry Hill Neurosurgery Institute ?_2l21/1T (with redactions); 'FacilitiesReport, investigation date Ti?20-21, 2016 (DELASHAW RFP 2 8i 7, pages 986j987); Focused Case Review for Patient Safety Events, Event type: RadiationExposure in the OR, Event date: August15, 2015; Page 8 of 29 Exhibit R-117: Email from Rod Oskouian to Laureen Driscoll, dated September 15 (DELASHAW 1063); Exhibit --Email from Meredith Gould to? Eod Oskouian 7 - .. Exhibit'R-119: Curriculum Vitae of Robert F. Spetzler, Exhibit Curriculum Vitae of Russell Vandenbelt; Exhibit R-121: Curriculum Vitae of Dr. Johnny B. Delashaw, Exhibit R-122: Floor Plan Of Swedish Cherry Hill Exhibit R-123: Surgical schedule from "Exhibit List of people who joined Swedish Neuroscience to _Dr. Delashaw's chairmanship; Exhibit 25: Letter from Tracy Bahrn to Dr. Neff, dated February 22, 2017 (Neff Exhibit 42, pages Exhibit R-126: Excerpt from. _._the American Association, The Principles of Medical Ethics, 2013 Edition (Neff Exhibit 54); Exhibit R-130: Declaration of Ramon Frias; Exhibit R-133: Declaration of Frances Broyles, Exhibit R-134: Declaration of Marc Mayberg, Exhibit Declaration of Ralph Pascualy, Exhibit R-137: Declaration of Eric Vallieres, Exhibit R-?i39: September 2015 email communication amongst Meredith Gould Dr. Oskouian ?Laureen Driscoll, and Dr. Delashaw regarding sponge in gown; Exhibit R-140: March 23, 2015 email communication amongst June Altaras. Dr. Delashaw, Mary Fearon, and Elizabeth Elett regarding follow-up meeting; FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL ORDER Page a of 29 Master Case No. M2016-1084 Exhibit 41: Exhibit R4 42: Exhibit Exhibit Exhibit.R?146: Exhibit R-148: Exhibit R-152: Exhibit R-153: ExhibitR?154: Exhibit R-155: Exhibit R-156: Exhibit I. Exhibit Exhibit R-1 59: FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINALORDER Master Case No. M2016-1084 September 15, 2015 email from Elizabeth Hendershott to Dr. Delashaw regarding discarded .Raytec; - September 3 2015 emails amongst Dr. Delashavv Laureen Drisooll and Sarah Hopkins; 7 -. September 1516, 2015 email communication amongst Dr. Oskouian, Dr. D'elashaw, Laureen Driscoll, and Elizabeth HenderShott regarding discarded sponge; January 24, 2014 email from Dr. Ma?bbr?g to Dr. Delashaw, et al.; May 23, 2014 email from Dr. Marc Mayberg to Voltaire Tiotuico, et al.?regardiitg April 2014 Compensation Report; July 15, 2016 email from Cameron McDougall to Charles Cobbs; November 1, 2016 Charles Cobbs email to Rod Oskouian, et al.; November 1, 2016 Charles Cobbs email to Ryder Gwinn, et al.; November 1. 2016 Charles Cobbs email; November 3, 2016 Charles Cobbs email; . November 3, Charles Cobbs; 2016 Ryder Gwinn email to WW2 ?November 4 2016 Charles email; E-?ak November- 4, 2016 Charles Cobbs email to Rod Oskouian; November 6, 2016 Charles Cobbs email to RyderGwinn; Page 10 of 29 Exhibit R460: Con?dential SNI Game Plan; Exhibit R-161: November 6, 2016 Ryder Gwinn email to - Charles Cobbs; - Exhibit R-162: November 5, 2016 Charles Cobbs: "email to Ryder Gwinn;- Exhibit R-164: November 8, 2016 Tony - Armada email,? Charles Cobbs; Exhibit R-187: July 24, 201?, Charles Cobbs email; - Exhibit R-188: Chair position description; 'Exhibit Charles Cobbs? email to David Newell; Exhibit R-190: Charles Cobbs? email to David Nevireii; Exhibit R-191: Charles Cobbs? notes; Exhibit R-192: Letter from Andy Costentino to Charles Cobbs; Exhibit R495: Tammy Williams email to Doug sackeus; et al., dated . January 29, 2016, with attaehed spreadsheet; Exhibit R-197: Julyr 12, 2013 letter to Dr. Marcel Loh; Exhibit R-211: August 16. 2015 John Vassall email to Johnny i Deiashaw; . Exhibit R-212: January 30. 2018 David Norman email to John Somerville; . Exhibit R-213: MQAC Assignment Memo; Exhibit Text Messages between Charles Cobbs'and Sarah Fouke;and Exhibit R-216: Text Messages between Charles Cobbs and Johnny Delashaw. OF FACT, CONCLUSJONS OF LAW, AND ORDER Page 11 of 29- Master Case No. M2016-1084 After the Panel determined during its deliberations that the Respondent had committed a violation of the Presiding Officer provided the Panel members with the Respondent's sanctions brief, along with attached declarations from Sandra Gilcher-Kimmel and Richard A. I. FINDINGS OF FACT A?ergraduating from mediCaI school at the University of Washington in 1983, the Respondent subsequently completed a residency in neurosurgery. The Respondenthas a lifetime board certification in neurosurgery. 1.2 The Respondenti'was granted a license to practice as a physician and surgeon in the state of Washington on' Juiy 25, 1985. As of the-time of the hearing, the Respondent's license was suspended pursuant to a summary suspension. 1.3 Providence Health Systems (Providence) is affiliated with Swedish Neurosdence Institute. In 2013, the Respondent was hired by Providence to potentially work at both Swedish Neuroscience Institute (SNI) in Seattle, Washington, as well as a planned similar institute in the state of California. In October2013 the-Respondent began working Prior to that time, the Respondent had worked in academia essentially his entire career. I 1.4 As part of his work at SNI, the Respondent served 'in a leadership role .from the beginning of his timethere, andgwas [keepsogsibIe-for performing _'neu'rosurgery at SWedish-Cherry Hill Hospital in Seattle, Washington. The "Respondent also 1 The Program did not provide a sanctions brief. 2 The planned institute in California never materialized. FINDINGS OFFACT, CONCLUSIONS OF LAW, AND FINAL ORDER Page 12 of 29 Master Case No. M2016-1084 reestablished a clinic in his former hometown of Longview, Washington. In April 2015, I the Respondent was selected to be the chair of SNI. 1.5 Patient volume and compIe-xit'vl'of cases increased significantly while the Respondent was at SNI. However, tensions also developed between the Respondent and hospital staff. A 1.6 During the time that the Respondent worked at SNI, the Respondent engaged in a pattern of intimidation with staff, discouraged staff from reporting errors, discouraged staff from asking questions, and contributed to the loss of experienced personnel. These actions jeopardized Swedish-Cherry Hill Hospital's culture-of safety and normalized unacceptable and unsafe practices, creating an atmosphere of normalized deviance. As a result, patients were putat an increased risk of harm. Pattern of Intimidation with Staff 1.7 The Respondent engaged in multiple acts of intimidation of hospital staff, forming a disturbing pattern of behavior. As a result of this pattern of intimidation, the Respondent created an environment in which the ability of staff to provide safe patient care was put at jeopardy. Several examples of this intimidation are listed below. Example 1 1.8 I On December 21, 2015, the Respondent was performing neurosurgery at Swedish-Cherry Hill Hospital _in .room (OR). Late that afternoon, the Respondent wanted to begin an-add?on surgical case.3 When the Respondent was 3 Deborah DesJardin-Rowland testified that an ?add-on case" was "a case that [wa]s scheduled the day of \and not previously (Testimony of Deborah DesJardin-Rowland) FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL ORDER Page 13 of 29 Master Case No. M2016-1084 informed blerish Flett, RN, that he'could not begin an add-on surgical case- as there was anotheriadd-on case in line ahead of him- he became quite angry and'upset. The- ReSpondent subsequently went to make a phone call and either threw the phone or slammed the phone down in anger, as the phone went sliding across the floor. The Respondent subsequently stormed out of the OR, telling Ms. Flett that she "should start looking for another job.? 1.9 At that time, Deborah DesJardin-Rowland, RN, was working as a charge nurse seated at a desk located approximately a one-minute walk away from the OR. The Respondent angrily came up to the desk, redin the face, and pointed his ?nger at I Ms. DesJardin-Rowland. The Respondent yelied at Ms. DesJardin-Rowland; teiling her that ?PeOple-are going to die if lcan?t get my cases done. I'm going to go upstairs, find more cases and you wiil be working all night!" While yelling at Ms. DesJardin-Rowland,? the Respondent was-standing close enough to her that she could feel the Respondent's spit on her arms. - Ms. DesJardin-Rowland became alarmed enough about the Respondent?s behavior that she stood up from her chair in surprise. Emilie Daniels, who was working as a health unitcoordinator for the OR at the time, was also present with Ms. DesJardin-Rowland and perceived the Respondent?s behavior to be intimidating. - 1.10 On December 29, 2015, Ms.? DesJardin-Rowland sent an . e?mail to management staff relaying what had happened. See Exhibit R-96. Example 2 FINDINGS OF FACT, CONCLUSIONS OF LAW, . . .- AND FINAL ORDER Page 14 01:29 Master Case No. M20164 084 1.11. __In March of 2015, Elizabeth Hendershott, RN, was working'as a circulating nurse at Swedish+Cherry"Hill Hospital. While acting as a preceptor-for another nurse, Ms. Hendershot became aware of apossible,misunderstanding over who may be performing a Certain surgery whether or not neurosurgical fellows would be performing particular surgeries rather than the Respondent). As a result ?of the dispute, Ms. Hendershott became concerned and sUbsequently informed the fellows?'trhatishe might file a Quality Variance Report (QVR) to document the situation.4 1.12 Afte?rthe surgeries were completed, Ms. Hendershott participated in a meeting with Mary Fearon, RN, and the Respondent to discuss the incident. During the meeting, the Respondent was yelling and pointing, and behaving in a very aggressive manner. The Respondent also told Ms. Hendershott that she was the reason for 1 problems occurring in the OR. However, after Ms. Hendershott told the Respondent that she did not in fact file a QVR, the Resoondent stopped yelling and calmed down. The Respondent then 'saidithat he would have the fellows "apologize to her and buy her a coffee. Example 3 1.13 On August 5, 2015, a patient was undergoing a two-part surgical procedure at the Swedish-Cherry Hill Hospital OR. As the first part of the procedure was finishing, the Respondent requested that fluoroscopy be done to ensurethat the A Quality Variance Report (QVR) was a mechanism at Swedish-Cherryr Hill Hospital whereby staff were able to electronicallyr document unexpected outcomes or changes in procedure, including professional misconduct. FINDINGS OF FACT. CONCLUSIONS OF LAW. AND FINAL ORDER Page 15 of 29 Master Case No. M2016-1084 hardware used in the surgery was appropriately positioned.5 Because a radioiogic technologist was not immediately available, the Respondent decided to take the images himself.5 I I 1.14 Although the Respondent made at least some sort of announcement prior . to taking the images, not everyone-in, the operating room heard the announcement. In particular, at-least two- nurses- including Bernadette?Al-i?askins, RN- did not hear the announcement. As not wearing theappropriate protective covering at thetime the images were taken. 1.151 After the Respondent finished taking the images, M's. Haskins told the Respondent that not everybody was-ready for the fluoroscopy shots at the time that he took them. The Respondent replied angrily to Ms. Haskins, yelling at her, pointing his finger at her, and sarcastically'asking her if he should ?throw something" ether next time to get her attention. speak with Caroline Dufauit, RN, in Ms. Dufault?s office-At that time. Ms. Dufault observed that Ms. Haskinswas visibly upset and seemed physically shaken. in "addition, Ms. Haskins? voice was lquivering and she seemed to be taking deep breaths in an attempt to settle herself. 5 A ?uoroscope uses x-rays to examine structures within the body. 5 There is no dispute that the Respondent had the skill and training to operate the ?uoroscopic machine. FINDINGS OF FACT, CONCLUSIONS LAW, AND FINAL ORDER Page 16 of 29 Master Case No. M2016-1UB4 Example 4 1.17 On September 15, 201-5, white-completing a surgical case with the Respondent, Ms. Haskins determined that the post-surgical sponge count was not correct.' Ms. Haskins discovered that the missing sponge-was InoneoftheRespondents gloves in the garbage. 1.18 Not long after the missing sponge had been found, Ms. Haskins sent an e-mail to the Respondent notifying him that a spongehad been found, and reminding the Respondent ?to be mindful to prevent a QVR and-unnecessary radiation." See Exhibit D-8. - 1.19 Rather than use the incident as a learning opportunity, the Respondent consequently complained to the chief nursing officer at Swedish-Cherry Hill Hospital, Meredith Gould, D.N.P. The Respondent was very upset that Ms. Haskins would ."caill him out" Over this incident. . Example 5 1.20 In addition to the yelling incidents discussed above, there were also other occasions when the Respondent inappropriately yelled at Swedish-Cherry Hill Hospital staff. I 1.21 on one occasion, Niki Ellington, RN, became aware of a potential issue with-the maintenance of sterile technique. This incident-involved the Respondent?s fellows, so Ms. Ellington paged the Respondent to discuss the issue. The Respondent subsequently called her back and shouted at her. The- Respondent told Ms. Ellington that he he is doing and that she should not question him. . FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL ORDER Page 17 of 29 Master Case No. M2016-1084 1.22 On another occasion, before a planned] meeting of a steering committee - was to begin, the Respondent took a phone call at the table while seated with the other participants. The Respondent yelled at the person on the other end of the phone line for several minute-sf I I I Discourag ed Staff from Reportintt Errors 1.23 Some of the staff members reacted to the Respondent's disruptive behavior by filing QVRs or by making reports to supervisors in. order to document issues that may put patients at risk. However, the ReSpohdent contributed to an environment where reporting such incidents was discouraged. .As examples, the incidents outlined in examples 2. 3, 4, and 5, supra. all discouraged staff from reporting errors. 1.24 The Program also alleged that during a meeting with a nursing administrator at the hospital regarding [a staff report concerning the Respondent's practice of scheduling multiple surgeries at once, the Respondent became upset and demanded the reporting nurse be reported for reporting the matter. There is not enough evidence to demonstrate that this incident occurred. (See Alleged Fact 1.4.1) Dis?couraoed Staff from Asking Questions 1.25 The Respondent's behavior also discouraged staff-from asking questions and, consequently. put patients at risk of medical error. Somewhat ironically, the purpose of the steering committee meetings was to address the deterioration of theculture of safety in the OR, including how to improve communication. FINDINGS OF FACT. CONCLUSIONS OF LAW. AND FINAL ORDER Page 18 of29 Master Case No. M2016-1OB4 1.26 During surgeries, the Reapondent would sometimes take tissue samples that would then be provided to a pathologist. When nurses would ask for clarification or verification of the name of a, particular tissue specimen, the Respondent would at times - respond in a sarcastic or. demeaning manner. This included the Respondent rolling his eyes, sighing, or sarcastically over-enunciating his words. HOSpital? staff were discouraged from pointing out possible concerns with identification of tissue specimens. 1.27 A's?a result of this behavior, as well as the behavior described in examples 1, 2, 3, 4, and 5, supra, hospital staff were discouraged from asking questions. This . increased the chances that a mistake could occur; it also diminished staff members? ability to advocate for patients. As a result, there was a signi?cantly increased risk to . patients. I I The Respondent's Actions Contributed to Loss of Experienced Personnel 1.28 As a result of the ReSpondent's disruptive behavior, multiple nurses left their positions at Swedish-Cherry Hill Hospital. Consequently, usage of traveling nurse?s increased and new nurses had to be hired. 1.29 Although itis true that part of the reason that Swedish-Cherry Hill Hospital- began to use increased numbers of traveling nurses was due to increased surgical volume, a significant reason for the increased usage was that nurses had left due to the negative environment that the Respondent had helped to create. 1.36 some of the nurses who left their jobs at Swedish-Cherry Hill had' significant experience working in neurosurgery. Newly hired staff were thus unable to FINDINGS OF FACT, -. AND Page 19 of 29 Master Case No; M2015-1os4 absorb the knowledge that they would have received from experienced staff. As a result, patients and the public were put at increased risk. Expert-Witness Credibilityr and Rersuasiveness I - :l.31 A. The Commission finds the testimony of Kent Neft, MD, to be persuasive and convincing tor several-reasons. First of all, Dr. Neff?s vast experience working on the issue of disruptive providers demonstrated specialized knoWledge and expertise that was helpful to the Commission. Dr. Neff has written a book chapter on disruptive providers and is cited in the Commission's policy statement. In addition, Dr. Netf has evaluated many disruptive providers and consutted with hospitals on this issue. Furthermore, Dr. Neff?s testimony was logical, providing a convincing outline 'olfhhow the Respondent?s behavior ?t into a pattern, and how that pattern led to a disruption of the culture of safety at the Swedish-Cherry Hill Hospital._ Although Dr. Neff did not personally meet with the Respondent, Dr. Neff?s testimony was credible because he was able to assess the impact of the ReSpondent's behavior in? the context of an organizational-setting in which. the Respondent had caused considerable damage. 1.32 In contrast, the cemmission does not find the testimony of Russell Vandenbelt, MD, to be as persuasive. Although Dr. Vandenbelt has significant experience in his experience in dealing with disruptive provider behaviors is much less extensive than-Dr. Neff. Additionally, it was apparent from Dr. Vandenbelt?s testimony that he had disagreements with the Commission's written policy on disruptive physicians. Dr. Vandenbelt did testify that the'Respondent had engaged in disruptive behavior. Nevertheless, Dr. Vandenbelt?s opinion was that the Respondent was not a FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL ORDER Page 20 of 29 Master Case No. M2016-1084 disruptive provider. . The Commission notes that there is clear and convincing evidence . that the Respondent?s behavior was 'not isolated. Thus, the Commission finds Dr. Vandenbelt to not be credible.- - I Fact-Witness Credibility 1.334 Credibility findings: The panel finds the testimony of Deborah Desjardin- Rowland, Elizabeth Hendershott, Bernedette Haskins', Caroline Dufault, Enedina Norton,_and Niki Ellington to be credible. The testimony of these nurses was consistent-- with each other, even though witnesses were excluded from hearing the other witnesses? testimony. It was also apparent thatmany ofthese witnesses did not necessarily want to come to testify at the hearing, as they did not have anything to gain from testifying. For the most part, the testimony was also consistent with the I declarations that had been provided. The nurses provided convincing testimony that I i the ReSpondent engaged in disruptive behavior. - 1.34 Credibility Finding. The panel finds the testimony of Peggy. Hutchison to be credible. Although Dr. Hutchison did not work directly with the Respondent, many people complained to her about the Respondent?s disruptive behavior. In addition, Dr. Hutchison had nothing to gain by indicating that she had been informed of the Respondent's behavior. 1.35 Credibility Finding: The panel finds the testimony ofthe formerfellows and physicians who testified on behalf of the Respondent to not be persuasive. Seymur Gahramanov, Cameron McDougall, Marc Moisi, Daniel .DiLorenzo, Parthasarathi Chamiraju, DanielKlinger, Christian FINDINGS OF FACT. CONCLUSIONS OF LAW. AND FINAL ORDER Page 21 of 29 Master Case No. M2016-1084 Bowers, Mil; lan Wright, Zachary Litvak, Kevin Yuen, and Kevin Reinard, MD. These individuals testified that they did not observe the Respondent engaging in what they perceived to be disruptive behavior. However, as physicians, these witnesses were not in the same position as the nursing staff.- The fact that-these witnessesdid notsee the behavior does not mean the behavior did not occur- it simply means thatthe behavior was not seen by these witnesses. In addition, the very reai power differential between physicians and nurses means that these witnesses would simply not be as vulnerable to the impact of disruptive behaviors exhibited by the Respondent. Consequently, the testimony is given little weight. 1.36 Credibility Finding: With regard to the issue of whether or not the Respondent was engaged in disruptive Conduct during his time at SNI, the panel finds the Respondent to not be credible. Although the ReSpondent did not dispute that the incidents testified to at hearing took place generally, his recollection was very different . than described by the testifying nurses. On the whole, the RespOndent testimony was self-serving, and he blamed the problems at SNI and Swedish Cherry Hill Hospital on others. The Respondent was evasive when asked if he would be concerned about the behavior described by the nurses in the Safety Takes Teamwork document (Exhibit 0-23). Consequently, the panel gives more weight to the testimony of the nurses who testified than to the Respondent. 1.3? The Respondent?s behavior while working for Swedish Neuroscience Institute constituted disruptive physician behavior. Furthermore, the Respondent should have been aware that his behavior was disruptive, as disruptive behavior was both FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL ORDER Page 22 of 29 Master Case No. M2016-1084 defined in Swedish?s Code of Conduct and the Commission?s Policy Statement (See Exhibits [1-74 and D-75). The Respondent?s behavior negatively affected the culture of safety, ultimately replacing it with a culture Of fear. This led to a compromise of team effectiveness and, as a result. an unreasonable risk of patient harm. 1.38 Any internal disputes that the Respondent may have had with other physicians at SNI regarding salaries or administrative control of or any workload disputes that the nurses at SwediSh- Cherry Hill had with physicians and management staff are not relevant to the fact that the Respondent committed disruptive physician behavior. - ll. CONCLUSIONS OF 2.1 The Medical Quality'Assurance Commission (Commission) has jurisdiction over the Respondent and subject of this proceeding. RCW 18.130040?? 2.2 TheWashington Supreme Court has held the standard Of proof in disciplinary proceedings against physicians is proof by Clear and convincing evidence. Nguyen v. Department or HeaIIh, 144 Wn.2d 515, 534 (2001), cert. denied, 535 US. 964(2002) - 2.3 The' Commission used its experience, competency. and specialized . knowledge to evaluate the evidence. 34.05.4616). 2.4 ?The Program proved by clear and convincing evidence that- the Respondent committed unprofessional COanuCt-as defined in which states: incompetence, negligence, or malpractice whichresuits in injury to a patient or which creates an unreasonable risk that a patient may be FINDINGS OF FACT. CONCLUSIONS OF LAW, AND FINAL ORDER Page 23 Of 29 Master Case No. M2016-1084 harmed. The use of a nontraditional treatment by itself shall not constitute unprofessional conduct, provided that it does not result in injury to a patient or create an unreasonable risk that a patient may be harmed; 2.5 The Program requested that the Commission issue an order requiring: (1) the Respondent to obtain a Commission-approved evaluation by a group that is experienced in evaluating disruptive behavior, that those evaantors begiven full access to'this information in this case, and that the Respondent be required to sign-a release enabling the evaluators to. communicate freely and?fully with the Commission; (2) a consequent appearance before the Commission with the recommendations from the evaluators to have further conditions imposed before he resumes practice; and i3) the Respondent to be put on probation. The Program also requests that the Respondent be required to pay a fine. The Respondent requests the allegations against him be dismissed. 2.6 in determining the appropriate sanctions, public safety must be conSidered before the rehabilitation of the Respondent. RCW 18.130.160. The Respondent?s conduct'falls in Tier of the Practice below standard of care schedule. WAC 246-(16-810. The panel considered the following aggravating factors when determining the sanction in. this matter: the incidents of the Respondent?s disruptive conduct were not isolated; the Respondent?s disruptive conduct formed a pattern of behavior; the Respondent?s behavior contributed to the normalization of deviance at his workplace; and the Respondent did not show remorsefor his behavior. The panel - considered the folloning- mitigating factors when determining the sanction in this matter: FINDINGS OF FACT, CONCLUSIONS OF LAW. - . . AND FINAL ORDER Page 24 of 29 Master Case No. M2016-1084 no prior misconduct; and the .ReSpondent has a long history of providing needed services to his community. I IORDER 3.1 The Respondent's license to practice as and surgeon in the state of Washington is and placed on OVERSIGHT. for a period or at least three years. - - - 3.2 Evaluation of Disruptive Behavior. . Within three (3) months of the effeCtive date of this Order, the Respondent will obtain a comprehensive, multi-day evaluation from a group of evaluators that is experienced in evaluating disruptive physician behavior. The group must be approved in advance by the Commission. The I Respondent will provide the evaluator With a copy of this Order prior to the evaluation. The Respondent will sign any waivers or releases necessary to allow the evaluators to communicate with the Commission, and will-cause the'evaluator to submit a written report directly to the Commission. The Respondent will fully comply with any? recommendations made by the evaluators. 3.3 Employment Restrictions. During the period of oversight, the Respondent shall be employed as a physician in the state of Washington only upon Compliance with the following terms and conditions: A. The Respondent may' not hold a medical leadership position (Le, a position that requires the Respondent to supervise other physicians); B. The above restriction does not prohibit the Respondent from holding an academic position. FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL ORDER Page 25 of 29 Master Case No. M2016-1084 3.4 Personal Appearances. Within three months of the disruptive physician evaluation, or as soon thereafter as the Commission?s schedule permits, the Respondent must personally appear at a date and location determined by the Commission. At his personal appearance, the Respondent shall be prepared to discuss the evaluation attended, struggles and?successes he has faced with his I disruptive behavior, how he is complying with the recommendations made by the evaluators, and hovvrhe intends to modify his behavior in the future. Thereafter, the Respondent must make personal appearances before the Commission semiannually. Respondent must participate in a brief telephone call with the Commission's Compliance Unit prior to any appearance. The purpose of appearance is to provide meaningful oversight over the Respondent's compliance with the reduirements of this . Order and to ensure that the Respondent is' complying with recommendations made by the evaluators. 'The Commission will provide reasonable appearances. I I - 3.5 m. The Respondent shall pay fine to-the Commission in the amount of ten-thousand dollars which must be received by the Commission within six (6) months of the effective date of this Order. The ?ne shall be paid by certified or cashier's check or money order, made payable to the Department of Health and mailed to the Department of Health, Medical Commission, Box 1099, Olympia, WA 98507-1099. Credit or debit cards can also be used for payment at the front counter of the Department of Health building at 111 Israel Road Tumwater, WA 98501, during regular business hours. FINDINGS OF FACT, OF LAW, AND FINAL ORDER Page 26 cf 29 Master Case No. 3.6 Modification. The Respondent-__may__not seek modi?cation of'this order for a period of three (3) years from the date of this Order. Change of Address. The Respondent shall inform the program manager and the Adjudicative Service Unit, in writing, of changes in his residential andior business address within 30 days of such change. 3.8 Assume Compliance Costs. The Respondent shall assume all costs of complying with all requirements, terms, and conditions of this order. 3.9 - Protective Order. The presiding officer mayissue a protective order at his or her discretion to preserve confidentiality relatedto health care records or provider-client information and to comply with applicable state or federal law. WAC 246-11-400. Pursuant to WAC ?Final orders may contain orders that speci?ed portions of the agency record shall-not be disclosed as public records if necessary to protect privacy interests, the public welfare, or vital governmental functions. Such orders shall include but are not limited to protective orders issued during?the proceeding or pursuant to WAC 246-1 1-400.? Pursuant to the agreement of the parties, the Exhibit [3-19 is SEALED. In addition, the hearing was briefly closed to the public? for discussion and testimony regarding EXhibit D-19. The AdjudicativeClerk?s Office shall place Exhibit D-19 in a sealed envelope with a copy of this Greene-leached to the outside of the sealed envelope. FINDINGS OF FACT, CONCLUSIONS OF LAW, - FINAL ORDER Page 27 of 29 Master Case No. In addition," Exhibit 47 that- wee attached to the Respondent?a Motion to :Vacate} Ex Parte Order of Summary and. Foe?ltemrssai pursuant to Preheanng? OrderNetQa" 7' . 3. it} Faiiure to Cemgig Protecting the public requires practice under tine terms and conditions. imposed in this order. Failure to trampiy- With the terme and c'ehdttiens of this :irder may resuit in suspension andfor revamtien et the Reseogtdent's tieanae after a Show cause hearing. if the Respondent, fate witi': the terms lend cadditione of this order. the Commiasiort may hold a hearing. ?tthat Reapzprident. muet Show caaee why his, iieenee ?aheeideetlpe, suspended. Alternative}; the Commissien may bring additienal Chet-gee ,of unprofessional conduct udder in either case the Respondent wilt be given notice and an opportunity for a hearing on the iesue of nommplianee Dated mis?ay at July. 2013. MEDICAL QUALIFY ass'uieariiea ii) Panel Chat: cmawseumm?: Charge. wActibn Rcwm?amaor?i)" 5 This dewment was attached to Rehearing Order No. 19 in_a seated enveiope. memes OF FACT, comctusiene LAW, . 1 ANB Page 28 of 29 Master Case No. M2016-1084 NOTICE TO PARTIES This order is subject to the reporting requirementsof RCW 18.130.110, Section 1128E of'the Social Security Act, and anyr other applicable interstate or national reporting requirements. If discipiine is taken it must be reported to the Healthcare Integrity Protection Data Bank. Either party may file a. petition for reconsideration. ROW 34. 05. 461(3); 34. 05. 470. The petition must be filed within 10 days of service of this order with. Adjudicative Service Unit PO. Box 47'879 Olympia, WA 98504-7679 and a copy must be sent to: Department of Health Medical Program PO. Box 47866 Olympia. WA 98504-7866. 4 The petition must state the specific grounds for reconsideration and what relief is requested. WAC 246- 11 -580. The petition is denied if the Commission does not respond in writing within 20 days of the filing of the petition. A petition for judicial review must be filed and served within 30 days after serVice of this order. RCW 34.05.542. . The procedures are identified in chapter 34.05 RCW, Part V, Judicial Reviewand Civil Enforcement. A petition for reconsideration is not required before seeking 'judiciai review. If a petition for reconsideration is filed, theabove'SQ-day period ,does not start until the petition is resolved. RCW The order is in effect while a petition for reconsideration or review is filed. ?Filing" means actual receipt of the document by the Adjudicative Service Unit. ROW 34. 05. 010(6). This order is. ?served? the day it is deposited in the United States mail. RCW 34 05. 010(19). For more information, visit our website at: I FINDINGS OF FACT, CONCLUSIONs OF LAW, - AND FINAL ORDER Page 29 of 29 Master Case Not-M2016-1084