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USDC, ED Case No. 1:07-cv-00026 OWW TAG

PLAINTIFFS SUPPLEMENTAL BRIEF IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT PURSUANT TO

COURTS ORDER OF MARCH 2, 2009 1

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Eugene D. Lee (SB#: 236812)LAW OFFICE OF EUGENE LEE555 West Fifth Street, Suite 3100Los Angeles, CA 90013Phone: (213) 992-3299

Fax: (213) 596-0487email: [email protected]

Attorney for PlaintiffDAVID F. JADWIN, D.O.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

FRESNO DIVISION

DAVID F. JADWIN, D.O.,

Plaintiff,

v.

COUNTY OF KERN, et al.,

Defendants.

Civil Action No. 1:07-cv-00026 OWW TAG

PLAINTIFFS SUPPLEMENTAL BRIEF INOPPOSITION TO MOTION FORSUMMARY JUDGMENT PURSUANT TOCOURTS ORDER OF MARCH 2, 2009 (Doc.304)

TRIAL: March 24, 2009

Complaint Filed: January 6, 2007

On March 2, 2009, this Court issued an Order (Doc. 304, the Order) directing the parties to

submit supplemental briefs addressing the retroactivity of a 2007 amendment to Cal. Health and Safety

C. 1278.5. Plaintiff submits this supplemental brief pursuant to such Order.

Case 1:07-cv-00026-OWW-DLB Document 306 Filed 03/09/2009 Page 1 of 9

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PLAINTIFFS SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PURSUANT TO COURTS

ORDER OF MARCH 2, 2009 1

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I. DOES REVISED 1278.5 APPLY RETROSPECTIVELY?Health & Safety C. 1278.5 was enacted by Senate Bill 97 in 1999 (the Statute). It was

amended (the Amendment) by Assembly Bill 632 (AB 632) as of January 1, 2008. The Court has

asked whether the Amendment should apply retrospectively prior to January 1, 2008. Plaintiff submits

that the answer is no. It is well settled that there is a presumption against applying amendments

retrospectively.Evangelatos v. Sup. Ct. (1988) 44 Cal.3d 1188, 1218. A review of AB 632 and its

legislative history reveals no legislative intent of retrospective effect.

II. IF NOT RETROSPECTIVE, DO PLAINTIFFS 1278.5 CLAIMS SURVIVE?A. The Pre-Amendment Statute Encompassed Internal Reports to a Health Facility

The Court noted that the Statute protects a grievance or complaint but does not specify to

whom the complaint had to be made, whereas the Amendment protects a grievance, complaint, or

report to the facility. . . or the medical staff of the facility. . . . (Order at 5:16-22). Since the October

Oncology Conference involved an internal report by Plaintiff to the facility, the question becomes

whether it was protected under the pre-Amendment Statute.

1. The Amendment Is a Clarifying Statute that Does Not Operate Retrospectively

A clarifying statute does not operate retrospectively. Colmenares v. Braemar Country Club, 29

Cal. 4th 1019, 1022 (2003). Such a legislative act has no retrospective effect because the true meaning

of the statute remains the same. Western Security Bank v. Sup. Ct., 15 Cal.4th 232, 243 (1997).

In Colmenares v. Braemar Country Club, Inc., the California Supreme Court considered the case

of an employee who had been terminated 4 years before the enactment of the Poppink Act, an

amendment to the Fair Employment & Housing Act (FEHA) that significantly broadened the

definition of physical disability under FEHA. 29 Cal. 4th 1019, 1022 (Cal. 2003). Prior to the Poppink

Act, the Fair Employment and Housing Commission (FEHC) had required physical disabilities to

substantially limit major life activities. The Poppink Act revised the definition of physical disability

such that it needed only limit a major life activity. 29 Cal. 4th 1019, 1024 (Cal. 2003). The trial court

granted Braemars motion for summary judgment against Colmenares after reviewing Colmenares

deposition testimony that his back condition did not substantially limit major life activities and finding

that the pre-Poppink Act FEHA included a substantially limit requirement. 29 Cal. 4th 1019, 1024


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(Cal. 2003). The court of appeal affirmed, holding that the Poppink Acts later-enacted broader

disability standard could not be applied retrospectively to a firing that had occurred 4 years prior. 29

Cal. 4th 1019, 1027-1028 (Cal. 2003).

The California Supreme Court reversed. The court held that the Poppink Act merely clarified

the existing limits test in the FEHA and, contrary to the conclusion of the Court of Appeal here, did

not retrospectively change that test. 29 Cal. 4th 1019, 1031 (Cal. 2003). The court explained:

When a statute merely clarifies, rather than changes, existing law [it] does not operateretrospectively. Even a material change in statutory language may demonstratelegislative intent only to clarify the statutes meaning. (Ibid.) If the legislative intent is toclarify, an amendment has no retrospective effect because the true meaning of thestatute remains the same. (Ibid.)29 Cal. 4th 1019, 1024 (Cal. 2003) n. 2 (citation omitted).

In reaching the conclusion that the legislative intent of the Poppink Act was merely to clarify existing

law, the court cited: 1) legislative committee analyses which stated that the Poppink Act standardizes

the definition of physical disability in California civil rights law, clarifying that Californias disability

protections are broader than federal protections, and 2) the fact that the pre-Poppink FEHA used the

term limits, not the federal laws substantially limits language, before and afterits amendment by

the Poppink Act. 29 Cal. 4th 1019, 1027 (Cal. 2003) (citations omitted, emphases in original).

In the instant case, analogs of both of these elements exist. First, as in Colmaneres, legislative

committee analyses for AB 632 unequivocally state that the purpose of the Amendment is to clarify thatthe Statute protects physicians who internally report patient care issues:

BACKGROUND AND DISCUSSION: According to the author [of AB 632], existinglaw does not fully protect physicians and other health professionals from retaliation ifthey make a complaint or grievance about a health facility. . . . Complaints about qualityof care issues pertaining to health facilities can be raised with a peer review body,hospital governing board, or accrediting agency. However, the author and sponsor statethat, in some cases,physicians who raise a complaint to any of these bodies are notprotectedunder current law against retaliation and that AB 632 will clarify existing lawto prevent abuses against physicians and other health professionals.Sen. Health Com. Analysis of Ass. Bill 632, mem. prep. for hearing of June 13, 2007.

The legislative committee analyses further confirm that the terms grievance or complaint in the pre-

Amendment Statute encompassed internal reports:

Background: Complaints about the quality of care, services, or conditions of health carefacilities [under pre-Amendment 1278.5] can be submitted in a number of ways. Anyperson can present a complaint to the chief administrative officer of the health facility orfile a complaint with Department of Health Services (DHS) licensing and certificationunit by contacting the district office where that health facility is located.


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Sen. Rules Com. Analysis of Ass. Bill 632, mem. prep. for hearing of Sep. 5, 2007 (seealso Sen. Health Com. Analysis of Ass. Bill 632, mem. prep. for hearing of June 13,2007).

The analyses also confirm that the pre-Amendment terms grievance or complaint encompassed the act

of merely providing information to a governmental entity (such as Kern County and KMC):

SB 97 (Burton), Chapter 155, Statutes of 1999 [the bill which enacted the pre-Amendment Statute], extended the whistleblower protections then available to patientsand employees of a long-term health care facility to patients and employees of healthfacilities (hospitals) for filing a grievance orproviding information to a governmentalentity regarding care, services, or conditions at the facility.Sen. Rules Com. Analysis of Ass. Bill 632, mem. prep. for hearing of Sep. 5, 2007(emphasis added).

Second, as in Colmaneres, the pre-Amendment Statute is sufficiently ambiguous that it could be

interpreted to encompass internal reports by physicians.1 The pre-Amendment Statute simply stated:

No health facility shall discriminate or retaliate in any manner against any patient or employee of the

health facility because that patient or employee, or any other person, has presented a grievance or

complaint . . . relating to the care, services, or conditions of that facility. 1278.5(b)(1). As the Court

itself observed, The old version of the statute did not explicitly specify to whom the grievance or

complaint had to be made. Order at 5:21-22. The Statute also did not define the terms grievance or

complaint. Adding to the ambiguity, the declaratory language contained in 1278.5(a) includes a

statement that it is the public policy of the State of California to encourage patients, nurses, and other

health care workers to notify government entities of suspected unsafe patient care and conditions andfurther states that the Legislature encourages this reporting . . . . (emphasis added). In short, the

ambiguous language contained in the pre-Amendment Statute is consistent with the clarification

instituted by AB 632 that physicians who make an internal report to a health facility are protected

whistleblowers.

It should further be noted that the legislative history makes clear that the Amendments inclusion

of the critical phrase to the facility after the phrase presented a grievance or complaint in the Statute

was merely a clarifying amendment. The legislative analysis of the Assembly Committee on Health for

1See also Carter v. California Dept. of Veterans Affairs, 38 Cal. 4th 914, 924, 926 (Cal. 2006) (finding

that a FEHA amendment extending employer liability to sexual harassment committed by nonemployees

merely clarified existing law in part based on the fact that former provision was sufficiently ambiguous

to support an interpretation that it imposed liability on employers for harassment by nonemployees).


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Statute establishes that the Amendments extension of protections to physicians who make internal

reports to a health facility was a clarifying change that has no retrospective effect because the true

meaning of the pre-Amendment Statute remained the same.

2. The Statute Encompassed Plaintiffs Internal Complaint Even Before Amendment

Even if the foregoing discussion on clarification were disregarded, Plaintiffs internal report to

KMC at the October Oncology Conference would still qualify as protected activity under the pre-

Amendment Statute. It is undisputed that (A) KMC and Kern County are governmental entities.

(Response to RFA No. 19-20, Doc. 267-2 at 5:11-17); (B) the October Oncology Conference is a

monthly proceeding of KMC; and (C) Plaintiffs report at the conference on a hysterectomy of a

patient (no. 1142693) that was almost conducted based on flawed outside pathology reports initiated

an investigation of that patients case whereby Kern County Counsel sent her case to a retained expert

named William Colburn, M.D. (See Colburn Report, Doc. 277-3 at p. 38 of 191).

B. Plaintiff Was at All Times an Employee Protected by the Statute Both Beforeand After the Amendment

As the Court has noted, the Statute in effect at all relevant times prohibited retaliation against

any employee of the health facility; however, the Court questions whether a physician such as Plaintiff

may qualify as an actual employee of the health facility. Order at 6:26-28.

Plaintiff submits that he did so qualify. The Scheduling Order establishes that Plaintiff hascontinuously been an employee of Defendant Kern County since October 24, 2000. (Doc. 29 at 7:28-

8:1). Defendants have also judicially admitted that KMC is a health facility. (Response to RFA No. 18,

Doc. 267-2 at 5:7-10).

Moreover, the legislative committee analyses for AB 632 make clear that, even under the pre-

Amendment Statute, physicians who work at teaching hospitals like KMC may be deemed employees.

Current state law prohibits the employment of physicians by corporations or other

entities that are not controlled by physicians. For that reason, most members of themedical staff are not considered employees of a hospital and must establish contractualrelationships with the hospital, either individually or through medical groups. Someexceptions are teaching hospitals, certain clinics, and hospitals owned and operated by ahealth care district.Sen. Rules Com. Analysis of Ass. Bill 632, mem. prep. for hearing of Sep. 5, 2007(emphasis added).

Finally, the legislative committee analyses for AB 632 disclose that the stated need for the bill


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arises from the exploitation by enterprising attorneys of the nebulous term or any other person

contained in the pre-Amendment Statute so as to deny protections to physicians by arguing that a

physician is neither an employee nor a patient. The analyses then state: As such this section must

be clarifiedand strengthened to close this legal loophole. (Sen. Jud. Com. Analysis of Ass. Bill 632,

mem. prep. for hearing of July 10, 2007). A clarifying statute does not operate retrospectively.

Colmenares v. Braemar Country Club, 29 Cal. 4th 1019, 1022 (Cal. 2003).

In short, Plaintiff clearly qualifies as an employee under the Statute, both before and after the

Amendment.

C. Plaintiffs 1278.5 Claims Encompass More than Just the October OncologyConference

Plaintiffs 1278.5 claims involve more than just Plaintiffs internal complaint at the October

Oncology Conference. They also encompass, among other things: A) the decision of Kern Medical

Centers (KMC) CEO to force Plaintiff from part-time medical leave onto involuntary full-time

medical leave on April 28, 2006 in retaliation for his email to the CEO of April 17, 2006 complaining

that KMC was not complying with blood documentation regulations and requesting that the non-

compliance be elevated to the Board of Supervisors of Kern County (Plaintiffs Motion for Summary

Judgment (MSJ, Doc. 272) at 10:11-11:2); Plaintiff Material Fact (PMF) 97, Plaintiffs Separate

Statement (Doc. 272.-2)); as well as B) the decision of KMCs Chief Medical Officer to place Plaintiffon a 10-month administrative leave restricting him to his home for 5 of those months 2 to 3 weeks

after Plaintiffs (i) filing of complaints with the California Department of Health Services and various

accreditation bodies (MSJ at 11:3-12:9) and (ii) email to KMC leadership complaining about a radical

prostatectomy that was scheduled to occur based on patently inconclusive pathology findings (MSJ at

12:10-13:3). Even if the Court were to summarily dispose of Plaintiffs 1278.5 claim with respect to

the October Oncology Conference, Plaintiffs other 1278.5 claims would survive.

D. The Ninth Circuit Has Already Addressed The Instant IssueThe exact issue before this Court whether an internal whistleblowing report pre-dating the

Amendment is protected by 1278.5 has already been considered by the 9 th Circuit. InMendiondo v.

CentinelaHosp. Med. Ctr., a nurse complained internally to the hospital CEO and her supervisor about

patient care concerns and then sued under 1278.5 before the Amendment. 521 F.3d 1097, 1105 (9th


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Cir. 2008). Her complaints all pre-dated January 1, 2008 and she never blew the whistle to an outside

governmental entity. Centinelas Answering Brief which was itself filed well before the enactment of

the Amendment argued that, under the pre-Amendment Statute:

Mendiondo cannot deny that she never alleged that she notif[ied] government entitiesabout any suspected unsafe patient care and conditions at CHMC. Mendiondo simplyis not a whistleblower deserving of protection under California law, and the trial courtsdismissal of this claim should be affirmed.2006 U.S. 9th Cir. Briefs 55981, 25-26 (9th Cir. Feb. 2, 2007) (citation omitted).

The 9th Circuit rejected Centinelas argument that an external report was required and held that 1278.5

is intended to encourage medical staff and patients to notify government entities of suspected unsafe

patient care and conditions. The statute prohibits retaliation against any employee who complains to an

employeror a government agency about unsafe patient care or conditions.

III.IF RETROSPECTIVE, WHAT IS THE IMPACT ON DEFENDANTS MJOP?Under the California Tort Claims Act, Kern County was required to give timely written notice to

Plaintiff of any deficiencies in his submitted claims, such as insufficient disclosures and/or untimely

submission. Cal. Gov. C. 910.8; 911.3(a). Failure to give such written notice of deficiencies to

Plaintiff waives any associated defenses. Cal. Gov. C. 911; 911.3(b). Here, Kern County never gave

Plaintiff any such written notices of deficiencies. Defendants have therefore waived all associated

defenses and their Motion for Judgment on the Pleadings should be denied.

Moreover, caselaw establishes that employees who allege continuing violations, as Plaintiff is

doing, may comply with the Tort Claims Act by filing a series of tort claims, as Plaintiff has done here.

InMurray v. Oceanside Unified Sch. Dist., the court considered the case of a plaintiff who had filed tort

claims three times regarding continuous alleged harassment that pre-dated the tort claims by more than 6

months. 79 Cal. App. 4th 1338, 1360-1361 (2000). The court referenced the continuing violation

doctrine set forth inAccardi v. Sup. Ct., 17 Cal. App. 4th 341 (1993) in concluding that the purposes of

the Tort Claims Act have been adequately protected by the procedures followed here. 79 Cal. App. 4th

1338, 1360-1361 (2000). Moreover, according to the holding inMorgan v. Regents of the Univ. of Cal.,

the plaintiff need only demonstrate that at least one act [of the continuing violation] occurred within the

filing period....(2000) 88 Cal.App.4th 52, 64.


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For the foregoing reasons, Plaintiff respectfully requests the Court deny Defendants Motion for

Judgment on the Pleadings in its entirety.

RESPECTFULLY SUBMITTED on March 9, 2009.

/s/ Eugene D. LeeLAW OFFICE OF EUGENE LEE555 West Fifth Street, Suite 3100Los Angeles, CA 90013Phone: (213) 992-3299Fax: (213) 596-0487email: [email protected] for Plaintiff DAVID F. JADWIN, D.O.


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DECLARATION OF EUGENE LEE IN SUPPORT OF SUPPLEMENTAL BRIEF PURSUANT TO COURTS ORDER OF

MARCH 2, 2009 1

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Eugene D. Lee (SB#: 236812)LAW OFFICE OF EUGENE LEE555 West Fifth Street, Suite 3100Los Angeles, CA 90013Phone: (213) 992-3299Fax: (213) 596-0487email: [email protected]

Attorney for PlaintiffDAVID F. JADWIN, D.O.



FRESNO DIVISION

DAVID F. JADWIN, D.O.,

Plaintiff,

v.

COUNTY OF KERN, et al.,

Defendants.

Civil Action No. 1:07-cv-00026 OWW TAG

DECLARATION OF EUGENE LEE INSUPPORT OF SUPPLEMENTAL BRIEFPURSUANT TO COURTS ORDER OFMARCH 2, 2009

TRIAL: March 24, 2009

Complaint Filed: January 6, 2007

I, Eugene D. Lee, declare as follows:

1. I am an attorney at law duly licensed to practice before the Federal and State Courts of

California and admitted to practice before the U.S. District Court for the Eastern District of California. I

am counsel of record for Plaintiff David F. Jadwin in this matter.

2. I am making this declaration in support of Plaintiffs Supplemental Brief in Opposition to

Defendants Motion for Summary Judgment. I have personal knowledge of the matters set forth below

and I could and would competently testify thereto if called as a witness in this matter.

3. I filed all of the Tort Claims Act claims in this action on Plaintiffs behalf. In each case, I

indicated my law firm address as the desired mailing address for notices from Kern County.

4. Kern County never at any time delivered to me any written notices of any deficiencies in

any of Plaintiffs Tort Claims Act claims which I filed on his behalf. Had it done so, I would have taken

Case 1:07-cv-00026-OWW-DLB Document 306-2 Filed 03/09/2009 Page 1 of 205

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any and all appropriate steps to cure or resolve any such deficiencies or minimize the prejudice to

Plaintiff. I was never afforded such opportunity.

5. Attached hereto as Exhibits are true and correct copies of the following documents which

were either served on me, filed by me or transmitted by me on or around the dates indicated:

Exh. Date Description

1 7/3/2006 Plaintiffs Tort Claims Act Claim

2 9/15/2006 Letter from Kern County to Eugene Lee re Plaintiffs Tort

Claims Act Claim

3 4/23/2007 Plaintiffs First Supplemented Tort Claims Act Claim

4 10/16/2007 Plaintiffs Second Supplemented Tort Claims Act Claim

6. On March 2, 2009, at approximately 4:30 p.m., I navigated my internet browser to the

uniform resource locator, http://www.assembly.ca.gov/acs/acsframeset2text.htm . In inputted the bill

number 632, session 2007-2008 PRIOR and house Assembly in the appropriate search fields. I

then downloaded and printed out all AB 632 legislative history files that resulted from the search.

Attached hereto as Exhibit 5 is a full and accurate computer printout of all such AB 632 legislative

history files.

7. Attached as Exhibit 6 is a true and correct copy of the answering brief submitted by

defendants-appellees to the 9th Circuit inMendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1105

(9th Cir. 2008). The Lexis-Nexis cite for the brief is 2006 U.S. 9th Cir. Briefs 55981; 2007 U.S. 9th Cir.

Briefs LEXIS 46.

RESPECTFULLY SUBMITTED on March 9, 2009.

/s/ Eugene D. LeeLAW OFFICE OF EUGENE LEE555 West Fifth Street, Suite 3100

Los Angeles, CA 90013Phone: (213) 992-3299Fax: (213) 596-0487email: [email protected] for Plaintiff DAVID F. JADWIN, D.O.


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EXHIBIT 1: Plaintiffs Tort Claims Act Claim


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CLAIM A GAINST THE COUNTY OF KERN(Government Code 86 910,910.2& 910.4)

This claim must be filed with the Clerk of the Board of Supervisors, 1115 TruxtunA ve.,6 loor, Bakersfield, California 93301. If it is a claim for death, iniuw toperson, iniury to personal pro~erty r iniury to growins crops, it must be filed withinsixmonths after the accident or event giving rise to the claim. If it is a claim for anyother cause of action, it must be fled within one year afier the evenf(s) giving rise to theclaim. Youmust complete both sides and sign the claim form for the claim to be valid.Complete information must be provided. If the space provided is inadequate, pleaseuse additional paper and identify information by paragraph number.1. State the name and mailing address of claimant:D a v i d F . J a d w i n , D . O ., F . C . A . P . , 3 1 84 B e a u d r y T e r r a c e , G l e n d a l e , CA 9 1 2 0 8- 1 7 4 5

2. State the mailing address to which claimant desires notices from the County tobe sent:

Law O f f i c e o f E u g e ne L ee , 4 4 5 S o u t h F i g u e r o a S t r e e t , S u i t e 27 0 0, L o s A n g e l e s , CA 9 0 0 7 1

3. State the date, place and other circumstances of the accident or event(s) givingrise to the claim.See attachment.

4. Provide a general description of the injury,damage or loss incurred so far as itmay be known:See attachment.


David F. Jadwin, D.O., F.C.A.P., 3184 Beaudry Terrace, Glendale, CA 91208-1745

Law Office of Eugene Lee, 445 South Figueroa Street, Suite 2700, Los Angeles, CA 90071

See attachment.

See attachment.

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5. Provide the name or names of the public employee or employees causing theinjury, damage or loss, if known:M r . Peter Bryan, D r . I rw i n H a r r i s , D r . Eugene Kercher, D r . Scott Ragland,

PS. Jenn i f e r A&ih-m. D r . W i l liam Rov. ~t al-

6. Regarding the amount claimed (including estimatedamount of any prospectiveinjury, damage or loss known as of the tims the claim is filed):If less than ten thousand dollars ($10,000),tate the amount: $If more than ten thousand dollars,would the claim be a limited civil case (lessthan $25,ODO)? (Circle one)

Ye6

claim:@

7. Please state any additional informationwhich may be helpful in considering thisComplainant met w i t h Mr. Bernard Barmann with respect to the foregolng one b r u a r v 9. 2006.

Claimantmust dale and sign below.B. Signed this ,3 ay of ~ u l v .ZOlj_

I F

CLAIMANT'S SIGNATUREWARNING! IT IS A CRIMINAL OFFENSE .-TO FILE A FALSE CLAIM (Penal Code $72)


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ATTACHMENT CLAIM AGAINST THE COUNTY OF KERN

3. State the date, place and other circumstances of the accident or event(s)giving rise to the claim.

A. Breach of ContractPursuant to an employment contract (Contract), Complainant wasformerly Chair of Pathology at Kern Medical Center (KMC). OnJune 14, 2006, Mr. Peter Bryan (CEO of KMC) summarily informedComplainant that he was being stripped of chairmanship effectiveJune 17, 2006, due to his taking excessive sick leaves. As ofJune 14, 2006, Complainant had taken 12 weeks of CFRA sick leaveand approx. 3-4 weeks of County sick leave based on doctorscertifications which he submitted.

Prior to June 14, Mr. Bryan had not communicated to Complainanthis concerns regarding Complainants sick leaves. In fact, Mr.Bryan had in at least two written communications told Complainant

that Complainant would have until June 16, 2006 to decide whetherto continue or resign his chair position. Ultimately, Mr. Bryanfailed to honor the June 16 deadline.

In addition, the Contract states that Complainant shall beemployed by the County of Kern pursuant to the terms ofthis Agreement and the medical staff bylaws of KMC. Mr. Bryanfailed to comply with KMC bylaws in stripping Complainant ofchairmanship.

B. Wrongful Demotion/Termination in Violation of Cal. Bus. &Prof. C. 2056 & Conspiracy Relating Thereto

The above-referenced demotion of Complainant to a staff

pathologist also constituted a constructive termination. Mr.Bryans email to Complainant of June 14, 2006, strongly intimatedthat Complainant was no longer welcome at KMC. On June 26, 2006,Mr. Bryan reinforced that sentiment when he abruptly informedComplainant that he was no longer permitted to enter KMC grounds,contact any KMC employee or faculty member or access any KMCequipment or networks for any reason for the remainder of hisleave.

The demotion/termination constituted retaliation by Mr. Bryanagainst Complainant for raising concerns relating to patienthealth care. Previous to June 14, Complainant had apprised Mr.Bryan and other medical staff leadership in emails andcommunications too numerous to count of several crisis issues

which critically jeopardized patient health care at KMC:

i) need for follow-up on failure of a formerly-employed KMCpathologist to detect cancer diagnoses in numerouspatient prostate biopsies;

ii) chronically incomplete or inaccurate KMC blood componentproduct chart copies, in violation of state regulationsand accreditation standards of JCAHO, CAP and AABB;

iii) chronically inadequate fine needle aspirations collectedby KMC radiologists leading to incomplete and/or


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2

incorrect patient diagnoses and greatly increased expensefor KMC;

iv) need for KMC pathology dept. i) to review outsourcedpathology diagnoses prior to undergoing major therapy inreliance on those diagnoses and ii) to approveoutsourcing of pathology to outside vendors; and

v) need for effective oversight of blood usage program bypathology dept.

C. Per Se Libel / Ratification by KMCIn a letter dated October 17, 2005, Drs. Eugene Kercher(President of KMC Medical Staff), Scott Ragland (President-electof KMC Medical Staff), Jennifer Abraham (Past President of KMCMedical Staff) and Irwin Harris (KMC Chief Medical Officer)informed Complainant that three letters written by Complainantscolleagues at KMC expressing dissatisfaction with Complainant

would be entered into your medical staff file. WhenComplainant asked to see the three letters, he was refused. Inso reprimanding Complainant, Drs. Kercher, Ragland, Abraham andHarris utterly failed to comply with KMC bylaws.

Finally on January 6, 2006, Complainant received a letter fromMs. Karen Barnes (Deputy County Counsel for the County of Kern)to which were attached the above-referenced three letters inredacted form, one of which maliciously defamed Complainantsprofessional competence. Complainant was later able to determinethat Dr. William Roy was the author of the defamatory letter.Dr. Roy did not respond to Complainants subsequent writtenrequests for explanation of his defamatory comments.

D. Related Causes of ActionComplainant also seeks to bring claims of intentional inflictionof emotional distress, negligent hiring, negligent supervisionand negligent retention in relation to the foregoing.

4. Provide a general description of the injury, damage or loss incurred so faras it may be known:

With respect to the County of Kern and each KMC officer or staffmember as appropriate:

Pro rata loss or reduction of employment compensation of approx.$400,000 per annum for the period from (i) on or about Dec. 2005to Oct. 4, 2007 (end of current contract employment period) due

to demotion, sick leaves and vacation time, and (ii) from Oct.2007 until such time as complainant is able to secure comparableposition with comparable pay after engaging in a diligent jobsearch. Complainant believes his career as a pathologist iseffectively at an end due to his age and the dearth of pathologychair positions in the US.

Attorneys fees (approx. $40,000 so far) and other costs.

Loss of reputation.


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Severe emotional distress (and reimbursement of associated

medical expenses of approx. $30,000).

Punitive damages.


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EXHIBIT 2: Letter from Kern County to Eugene Lee re Plaintiffs Tort Claims Act Claim


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Bernard C. Barmann, Sr.County CounselStephen D. SchuettAssistant County Cour.sel

OFFICE OF THE Tom NewellCOUNTY COUNSEL

Claim Service UnitCOUNTY OF KEFWAdministrative Center11 15 Truxtun Avenue, 4th FloorBakersfield, CA 93301Telephone: (661) 8683801Fax: (661) 868387 5

Sewic e RepresentativeReply to (661) 8683867

NOTICE OF ACTION TAKEN ON C LAIMSeptember 15, 2006

EUGENE LEELAW OFFICE OF EUGENE LEE445 SOUTH FIGUEROA ST SUITE 2700LOS ANGELES CA 90071

Name of Claiman t(s): David F. Jadwin, D.O., F. C. A. P.Date of Incident: 6-14-2006NOTICE IS HEREBY GIVE N that the claim you subm itted to the Clerk of the Kern CountyBoard of Supervisors on 7-5-2006 was not acted upo n by the B oard. The claim is deemedrejected by operation of law forty-five (45) days after the date th e claim was so presented.

WARNINGSubject to certain exceptions, you have only six (6) months from th e da te this notice wasdeposited in the ma il to file a court action on this claim. (See Governm ent Code 945.6.)You may seek the advice of an attorney of your choice in connection with this matter. Ifyou desire to consult an attorney, you shou ld do so im med iately.Very truly you rs,

,,Tom N ewell, Service Representative


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PROOF OF SERVICE BY MAIL

STATE OF CALIFORNIA )) ssCOUNTY OF KE RN )

I am employed in the County of Kern, State of California. I am over the age ofeighteen years and not a party to the within action. My business address is 1 1 TruxtunAvenue, Bakersfield, CA 93301.On 9-15-2006, 1 served the foregoing document described as Notice of ActionTaken on Claim in this action by p lacing a true copy thereof en closed in a sealed envelope,addressed as follows:Eugene LeeLaw Office of Eugen e Lee445 So. Figueroa St., Suite 2700Los Angeles, CA . 90071Iam familiar with the firm's p ractice of collection and process ing correspondence ormailing. Under that p ractice, it would be deposited with the U. S. Po stal Service on thatsame day with postage thereon fully prepaid at Bakersfield, California, in the ordinarycourse of business. I am aware that on motion of the p arty served, service is presum edinvalid if postal cancellation date or postage me ter date is more than one day after date ofdeposit for ma iling in affidavit.I declare under penalty of perjury under the laws of the S tate of California that theforegoing is true and correct.

Tom Newell


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EXHIBIT 3: Plaintiffs First Supplemented Tort Claims Act Claim


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04/23/2007 15:35 18182443550 JADWIN CHA PAGE 01/02

SUPPLEMENTEDCLAIM AGAINST THE COUNTYOF KERN

(Government Code 910,910.2 I\; 910.4)

This claim must be filed with the Clerk of the Board ofSupervisors, 1115 TruxtunAve., 5'" Floor, Bakersfield, California 93301. ff it is a claim for death. injury toperson, iniYrx to personal propertyor inlurv to growing crops, itmust be filed within sixmonths after the accident or event giving rise to the claim. ff it is a claim for anyother causa ofaction, it must be filed within one year after the event(sJ giving rise to theclaim. You must complete both sidesand sign the claIm form for the cleim to bevalid.Complete information must be provided. If the spece provided is inadequate, pleaseuse additional paper and identify information by paragraph number.1. State the name and mai ling address of claimant:David F. Jadwin, D.O., F.e.A.p., 1635 ~ e a t h e r Ridge Dr, Glendale, eA 91207-1035

2. State the mailing address to which claimant desires notices from the County tobe sent:Law Office of Eugene Lee, 555 W 5 th S t, Ste 3100, LOS Angeles, CA 90013

3_ State the date, place and other circumstances of the

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04/23/2007 15:35 18182443550 JADWIN CHA PAGE 02/02

5. Provide the name or names of the public employee or employees causing theinjury, damage or loss, if known:Peter B ~ y a n , Irwin Harris, Eugene Kercher, Scot t Ragland, Jennifer Abraham,William Roy, Toni Smith

6. Regarding the amount claimed (including estimated amount of any prospectiveinjury, damage or loss known as of the time the daim is filed):If less than ten thousand dollars ($10,000), state the amount: $, ,If more than ten thousand dollars, would the claim be a limited civil case (lessthan $25,000)7 (Circle one)

Yes7. Please state any additional information which may be helpful in considering thisclaim:Complainant met with Eernard B ~ ~ m a n n , Kern CQunty Counsel, with respectto the foregoing on February 9, 2006.

Claimant must date and sign below.

B. Signed this rd /l..-{2- ""b day of { ' let - , ,24.~ ~ LAIMANT'S S I G N ; : A ~ T U : : : : R ' : ' : E " " - - - -WARNING! ITISA CRIMINAL OFFENSETO FILE A FALSE CLAIM (Penal Code 72)

(3/OJ)Doc #896)0S ; ~ I J . i m . F O I W - d o o

2


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ATTACHMENT CLAIM AGAINST THE COUNTY OF KERN

3. State the date, place and other circumstances of the accident or event(s)giving rise to the claim.

Please see the Complaint attached hereto, which contains acomplete description of the dates, places, and othercircumstances of events giving rise to Complainants claims.Complainant originally filed the Complaint with the US DistrictCourt for the Eastern District of California on January 8, 2007.

4. Provide a general description of the injury, damage or loss incurred so faras it may be known:

With respect to the Defendants named in the Complaint, i.e.,County of Kern, Peter Bryan, Eugene Kercher, Irwin Harris, ScottRagland, Jennifer Abraham, William Roy, and Toni Smith:

Pro rata loss or reduction of annual employment compensation ofapprox. $400,000 for the period from (i) on or about Dec. 2005 toOct. 4, 2007 (end of current contract employment period) due todemotion, sick leaves and vacation time, and (ii) from Oct. 2007until such time as complainant is able to secure comparableposition with comparable pay after engaging in a diligent jobsearch. Complainant believes his career as a pathologist iseffectively at an end due to his age and the dearth of pathologychair positions in the US.

General emotional distress (and reimbursement of associatedmedical expenses).

Loss of reputation.

Punitive damages.

Attorney fees and other costs.


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FIRST AMENDED COMPLAINT FOR DAMAGES & INJUNCTIVE RELIEF 1/51

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Eugene Lee (SB# 236812)LAW OFFICE OF EUGENE LEE555 West Fifth St, Suite 3100Los Angeles, CA 90013Telephone: (213) 992-3299

Facsimile: (213) 596-0487Email: [email protected]

Attorney for PlaintiffDavid F. Jadwin, D.O.



DAVID F. JADWIN, D.O.

Plaintiffvs.

COUNTY OF KERN; PETER BRYAN(both individually and in his former officialcapacity as Chief Executive Officer OfKern Medical Center); IRWIN HARRIS,M.D; EUGENE KERCHER, M.D. (bothindividually and in his official capacity as aPresident of Medical Staff of Kern MedicalCenter); JENNIFER ABRAHAM, M.D.(both individually and in her officialcapacity as Immediate Past President of

Medical Staff at Kern Medical Center);SCOTT RAGLAND, M.D. (bothindividually and in his official capacity asPresident-Elect of Medical Staff of KernMedical Center); TONI SMITH, (bothindividually and in her official capacity asChief Nurse Executive of Kern MedicalCenter); WILLIAM ROY, M.D.; andDOES 1 through 10, inclusive.

Defendants.

Case No. 1:07-cv-26

FIRST AMENDED COMPLAINT FOR

DAMAGES AND INJUNCTIVE RELIEF.

I. Retaliation [Health & Safety Code 1278.5];

II. Retaliation [Lab. Code 1102.5];III. Retaliation [Govt Code 12945.1, et

seq; 2 C.C.R. 7297.7(a)];

IV. Interference with FMLA Rights [29U.S.C. 2601, et seq.];

V. Violation of CFRA Rights. [Govt Code 12945.1, et seq.];

VI. Disability Discrimination [Govt. Code 12940(a)];

VII. Failure to Provide ReasonableAccommodation [Govt Code

12940(m)];

VIII. Failure to Engage in Good Faith In AnInteractive Process [Govt Code

12940(n)];

IX. Defamation [Civ. Code 45- 47]; andX. Procedural Due Process Violation [14th

Amendment of U.S. Constitution; 42

U.S.C. 1983].

XI. Violation of FLSA [29 U.S.C. 201 etseq.]

JURY TRIAL DEMANDED

mailto:[email protected]:[email protected]

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NATURE OF THE ACTION

This is an individual action brought by Plaintiff David F. Jadwin, D.O., a whistleblowing

physician with disabilities, against his employer, (i) the County of Kern (Defendant County or

the County); ) (ii) individual Defendants Peter Bryan (Bryan), Chief Executive Officer of

Kern Medical Center (KMC); Eugene Kercher, M.D., President of Medical Staff at KMC

(Kercher); Jennifer Abraham, M.D., Immediate Past President of Medical Staff at KMC

(Abraham); Scott Ragland, M.D., President-Elect of Medical Staff at KMC (Ragland); and

Toni Smith, Chief Nurse Executive of KMC, (Smith), both personally and in their official

capacities; and (iii) individual Defendants Irwin Harris, M.D., Chief Medical Officer of KMC

(Harris); William Roy, M.D., Chief of the Division of Gynecologic Oncology at KMC

(Roy); and DOES 1 through 10.

Plaintiffs claims against his employer, Defendant County, allege violations of section

1278.5 of the Health & Safety Code1 which prohibits retaliation against a health care provider

who reports suspected unsafe care and conditions of patients in a health care facility; section

1102.5 of the Labor Code which prohibits retaliation against an employee for reporting or

refusing to participate in suspected violations of the law; the California Family Rights Act

(sections 12945.1, et seq., of the Government Code) (CFRA) and the Family and Medical

Leave Act (sections 2601, et seq. of the United States Code) (FMLA) which prohibit

interference with an employees right to medical leave and retaliation for an employees exercise

of the right to medical leave; and the Fair Employment and Housing Act [subdivisions (a), (m) &

(n) of section 12940 of the Government Code] (FEHA) which prohibits discrimination against

1 All statutory references are to California Codes unless otherwise specified.


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an employee with a disability, failure to provide reasonable accommodation, and failure to

engage in an interactive process; and recovery of wrongfully deducted wages under the Fair

Labor Standards Act (29 U.S.C. 201, et seq.) (FLSA).

Plaintiff sues Defendants County, Roy, Harris and DOES 1 through 10, for defamation;

and also sues each of the individual Defendants except for Roy and Harris, both in their personal

capacity and in their official capacity as members of the KMC Joint Conference Committee

(JCC), for violation of Plaintiffs 14th

Amendment of the United States Constitution right to

procedural due process pursuant to 42 U.S.C. 1983 (Due Process).

Plaintiff brings this action for general, compensatory, and punitive damages; prejudgment

interest, costs and attorneys fees; injunctive and declaratory relief; and other appropriate and

just relief resulting from Defendants unlawful conduct, and as grounds therefor alleges:

JURISDICTION AND VENUE

1. This Court has federal question jurisdiction over the FMLA, Due Process, andFLSA claims pursuant to 28 U.S.C. 1331. The Court has supplemental jurisdiction over

Plaintiffs transactionally-related state claims pursuant to 28 U.S.C. 1367.

2. Venue is proper in Fresno in the Eastern District of California, as a substantialpart of the events and omissions giving rise to this claim occurred in the County of Kern,

California.

INTRADISTRICT ASSIGNMENT

3. Assignment to Bakersfield is proper pursuant to Civil Local Rule 3-120(Appendix A) because the events giving rise to this civil action occurred in Bakersfield in the

County of Kern, California.


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PARTIES

4. At all material times herein, Plaintiff David F. Jadwin, D.O. (Plaintiff) hascontinuously been an employee of Defendant County, a citizen of the United States and

California; and a resident of Los Angeles County, California.

5. At all material times herein, Plaintiff was an individual with disabilities within themeaning of Section 12926(i) & (k) of the Government Code.

6. On information and belief, at all material times herein, Defendant County is alocal public entity within the meaning of sections 811.2 & 900.4 of the Government Code and is

operating in Kern County, California.

7. At all material times herein, the County has continuously been an employerwithin the meaning of FMLA [29 C.F.R. 825.105(C)], CFRA [Government Code

12945.2(b)(2)], FEHA [Government Code 12926(d)], and FLSA [29 U.S.C. 203], engaged in

interstate commerce and regularly employing more than fifty employees within seventy-five

miles of Plaintiffs workplace.

8. On information and belief, at all material times herein, Defendant Peter Bryan is acitizen of Colorado, and a resident of Denver, Colorado, and was Chief Executive Officer of

KMC, and a member of the JCC.

9. On information and belief, at all material times herein, Defendant Eugene Kercheris a citizen of California, a resident of Kern County, California, and President of KMC Medical

Staff, and a member of the JCC.

10. On information and belief, at all material times herein, Defendant Irwin Harris isa citizen of California, and a resident of Kern County, California, and Chief Medical Officer at

KMC, and a non-voting member of the JCC.


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FACTUAL BACKGROUND

A. STATEMENT OF THE CASE16. Plaintiff is a highly-qualified and capable pathologist with numerous professional

accomplishments that have included leadership roles in national, state and local pathology and

medical societies. Plaintiff received extensive education and training at reputable academic and

medical institutions. Plaintiff has managed several clinical laboratories and pathology

departments that have achieved accreditation by the College of American Pathologists,

frequently "with distinction. Plaintiff has also been recognized by numerous pathologists and

physicians for his professional leadership and commitment to set and uphold rigorous and ethical

standards for patient care quality and safety.

17. In late 2000, Plaintiff was recruited to assume the position of Chair of thePathology Department at KMC, a teaching hospital owned and operated by Defendant County.

Plaintiff was recruited in part to raise standards of patient care quality and safety at KMC.

Plaintiff immediately set about implementing, among other things, a best-practices peer review

system in the Pathology Department.

18. In 2001, Plaintiff began to report concerns to key members of KMCs medicalstaff and administration about the unacceptably high levels of unsatisfactory or non-diagnostic

fine needle aspirations (FNA) a method of using a needle and syringe to obtain deep internal

tissue samples of vital organs being taken by the Radiology Department at KMC for diagnosis

by the Pathology Department. In 2003, Plaintiff began to report concerns to key members of

KMCs medical staff and administration about ineffective and unnecessary blood transfusions

and an unacceptably high incidence of lost or incomplete product chart copy certifications

(PCC) required for accurate tracking of dangerous blood transfusions. In 2004, Plaintiff began


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to report concerns to key members of KMCs medical staff and administration about the need for

instituting a policy of requiring KMC Pathology Department review prior to undertaking

significant surgical procedures based upon the reports of outside pathologists (Internal

Pathology Review). In 2005, Plaintiff reported a concern to key members of KMCs medical

staff and administration about an inappropriate radical hysterectomy (cancer surgical procedure

for removal of all female reproductive organs and regional lymph nodes) performed by Roy on a

patient with a benign endometriotic cyst (Roy Hysterectomy). Also in 2005, Plaintiff began to

report concerns to key members of KMCs medical staff and administration about the need to

review a series of serious diagnostic errors committed by a former KMC pathologist, including

the failure to identify invasive adenocarcinoma in several prostate needle biopsies (Prostate

Biopsy Errors). Also in 2005, Plaintiff reported concerns to KMC administration that KMC

physicians had performed surgery on a wrong patient due to an error which Plaintiff believed

would have been less likely had KMC implemented Internal Pathology Review per Plaintiffs

recommendation. Plaintiff reported several other concerns about inappropriate patient care and

noncompliance with quality control standards. In February of 2006, Plaintiff met with Bernard

Barmann, County Counsel for the County of Kern (Barmann), to report the foregoing

concerns.

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19. In 2005, Roy began a campaign of making defamatory statements impugningPlaintiffs professional competence. Events culminated in October of 2005, when Kercher,

Harris, Ragland and Abraham harshly reprimanded Plaintiff, based on false allegations, resulting

from a 15- to 20-minute presentation given by Plaintiff during a monthly KMC oncology

conference that allegedly exceeded conference time limits by approximately ten minutes.

Plaintiffs presentation had attempted to highlight several of Plaintiffs above-mentioned


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concerns regarding Internal Pathology Review and their potential impact upon deciding the

correct surgical procedure for the patient under discussion. The presentation was stopped before

Plaintiff could present the key diagnostic conclusions of his presentation.

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20. After the conference, Harris solicited letters of disapprobation from conferenceparticipants, including Roy. Roy submitted a letter (Roy Letter) containing several false

statements of fact which defamed Plaintiff to other members of KMCs medical staff and

administration. On information and belief, Harris and DOES 1 through 10 republished the Roy

Letter to third parties. Several KMC medical and administration officers including Bryan and

Kercher were aware of Roys, Harriss and DOES 1 through 10s acts of defamation, but refused

to intercede, and possibly approved or encouraged them.

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21. In December of 2005, Plaintiff began medical leave initially in the form ofmedically necessary reduced work schedule due to severe depression which was later extended

to June 16, 2006. It was not until on or about March 2, 2006, that Plaintiff was finally provided

with a Request for Leave of Absence form which he then submitted to KMCs HR Department.

Plaintiff also received a document entitled Designation of Leave (Serious Health Condition of

Employee-Intermittent) from the HR Department at KMC, which included a written guarantee

of Plaintiffs reinstatement to his same or equivalent position with same pay, benefits and terms

and conditions of employment upon his return from his leave.

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22. During Plaintiffs sick leave, Bryan issued a series of verbal and writtenultimatums to Plaintiff which threatened him with termination or demotion upon return from his

leave, thereby giving notice that Plaintiff was not in fact guaranteed reinstatement to his same or

equivalent position. In a meeting in April of 2006, Bryan ordered Plaintiff to cease his reduced

work schedule and begin full-time leave, despite the fact that just days before, Plaintiff had


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submitted a written request for extension of his reduced work schedule for an additional six

months to one year because of his serious medical condition. On June 14, 2006, two days before

Plaintiffs medical leave was allegedly due to end, Bryan informed Plaintiff that he was denying

Plaintiff reinstatement to his same or equivalent position, and that he was in fact demoting

Plaintiff to a staff pathologist position, effective June 17, 2006, because Plaintiff had taken

excessive sick leaves; Plaintiffs base salary was also ultimately reduced over $100,000 (over

35%) as a result (such demotion and pay reduction are hereinafter referred to collectively as

demotion or demoted).

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Plaintiff resumed full-time work as a staff pathologist on October 4, 2006.

Plaintiff continued to suffer a hostile work environment and retaliation. On or about November

28, 2006, after almost six years of trying to reform KMC from within, Plaintiff finally blew the

whistle on KMC, formally reporting his Concerns to the Joint Commission on Accreditation of

Hospital Organizations, the College of American Pathologists, and the California Department of

Health Services (Authorities). On December 4, 2006, Plaintiff submitted a written complaint to

KMC leadership about numerous additional concerns regarding the quality of patient care and

the deterioration of the pathology department. On December 7, Plaintiff was placed on

involuntary administrative leave allegedly pending resolution of a personnel matter.

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leadership, informing him that he had reported his Concerns to the Authorities.

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25. On March 28, 2007, KMC authorized Plaintiff to access his office in order toretrieve his personal computer files. Upon his arrival, Dr. Dutt informed him that his office was

now locked and that Dr. Dutt now had custody of the key, that Plaintiffs file cabinet and


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30. The Pathology Department and consequently the Chair of Pathology iscustomarily referred to as the conscience of a hospital, and Plaintiffs job duties extended

beyond (his) own department and (he was) expected to be an effective contributor to the overall

improvement efforts of the hospital as a whole. Such duties included participation in many

hospital committees including KMCs Quality Management Committee.

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32. Article V.10 of the Second Contract provides that Plaintiff will not be deemed aclassified employee, or have any rights or protections under the County's Civil Service

Ordinance, rules or regulation.

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33. Article II.3(B)(1) of the Second Contract guarantees that Plaintiffs base salarywill be based on a benchmark salary in proportion to his full-effort commitment. In turn, the

benchmark salary will be based on a national standard with four steps (A-D) with three criteria

for step placement: clinical experience, teaching and administrative duties as set forth in the

KMC Administrative Policies and Procedures Manual (KAPP Manual).

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35. Article III.4 of the Second Contract entitles Plaintiff to the same right to unpaidleave of absence as those provided to a regular County employee under the Countys policy,

including six months cumulative unpaid leave of absence for illness or disability pursuant to

Rule 1201.20 of the Rules of the Civil Service Commission for the County of Kern (CSC

31. According to Exhibit A of the Initial Contract, the County expected Plaintiff tospend 80 to 90% of his time on clinical duties of a pathologist, and 10 to 20% of his time on

administrative duties as Chair of the Department of Pathology (Chair of Pathology) and Lab

Director.

4. On information and belief, at the time of his hire, the County placed Plaintiffssalary level at Step C .


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38. Throughout the course of his employment by KMC, Plaintiff has advocated forappropriate patient care and compliance with the quality accreditation standards of the Joint

Commission for the Accreditation of Hospital Organizations, the College of American

Pathologists, the American Association of Blood Banks and the American College of Surgeons

Commission on Cancer as well as applicable state and federal regulations designed to ensure safe

care and conditions of patients.

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39. Plaintiff reported his various concerns (Concerns) about inappropriate and/orsuspected unsafe patient care and conditions and non-compliance with applicable laws and

regulations and accreditation standards to Bryan and key members of KMCs medical staff,

including but not limited to the following: (i) beginning in 2001, Plaintiff reported the

unacceptably high levels of unsatisfactory or non-diagnostic FNAs being taken by the Radiology

Department at KMC; (ii) beginning in 2003, Plaintiff reported the unacceptably high incidence

of lost or incomplete PCC; (iii) beginning in 2004, Plaintiff reported the need for Internal

Pathology Review; (iv) beginning in 2005, Plaintiff reported the Roy Hysterectomy; (v)

6. Article IV.1(B) of the Second Contract requires cause for termination ofPlaintiffs employment, which cause is defined as serious administrative violation and/or

unsatisfactory clinical performance.

37. Article IV.3 of the Second Contract entitles Plaintiff to administrative review ofany corrective action for unsatisfactory clinical performance pursuant to the Bylaws of the

Medical Staff of KMC (Bylaws); and for administrative review of any corrective action for

violation of administrative policies of the County or KMC pursuant to the KAPP Manual.

.

WHISTLEBLOWING


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beginning in 2005, Plaintiff reported the need to review the Prostate Biopsy Errors; and (vi)

beginning in 2005, Plaintiff reported that KMC physicians had performed surgery on a wrong

patient due to an error which Plaintiff believed would have been less likely had KMC

implemented Internal Pathology Review. Unfortunately, Plaintiffs reports not only appeared to

fall on deaf ears, but also generated resentment and hostility among his peers at KMC.

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On or about February 9, 2006, Barmann and Barnes met with Plaintiff. Plaintiff

reported his various Concerns, as well as the retaliation, defamation and hostile work

environment Plaintiff was experiencing at KMC.

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43. On December 13, 2006, Plaintiff sent a letter addressed to Culberson, and carbon-copied to members of KMCs medical staff leadership, informing him that KMC leadership has

left me no choice but to report the above issues to the appropriate state and accrediting

agencies.

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44. In 2005, Plaintiff had reported the need for Internal Pathology Review to keymembers of KMC medical staff and administration. Roy refused to submit outside pathology

reports for Internal Pathology Review prior to surgery, preferring instead to refer all of his

pathology cases to an acquaintance at the University of Southern California without intereference

from KMCs Pathology Department.

0. On or about December 12, 2005, Plaintiffs former attorney, Michael Young(Young), sent a letter to Barmann, requesting Barmann meet with Plaintiff to discuss his

Concerns.

2. Finally, on or about November 28, 2006, after almost six years of trying to reformKMC from within in vain, Plaintiff formally reported his Concerns to the Authorities.

D. DEFAMATION


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45. On or about April 15, 2005, Roy sent a letter which was addressed to Plaintiff andcarbon-copied to Dr. Leonard Perez (Perez), Chair of the OB-GYN Department at KMC. The

letter contained the following statements of fact:

Additionally, I cannot institute adjuvant therapy in a timely manner when it takesweeks and sometimes months to get an accurate diagnosis from yourdepartment. Most importantly, delays in instituting appropriate adjuvanttherapy due to delays in obtaining an accurate diagnosis, or institutinginappropriate therapy based on an inaccurate diagnosis can negatively affectpatient survival.

46. Roys statements regarding delays of weeks and months were false. Perezreasonably understood that the statements were about Plaintiff. Perez reasonably understood the

statements to mean that Plaintiff was not managing the Pathology Department in a competent

manner. Roy failed to use reasonable care to determine the truth or falsity of the statements. Roy

acted with malice in publishing the false statements. As a consequence, Plaintiff experienced a

significant loss of reputation and confidence among his peers at KMC.

47. On or about April 20, 2005, Plaintiff sent a letter addressed to Roy and carbon-copied to Perez, Dr. Maureen Martin, Chair of Surgery (Martin), Kercher and Bryan. The letter

stated: Please refrain from making statements such as it takes weeks and sometimes months to

get an accurate diagnosis from your department without citing specific instances. In my

experience, such statements are typically untrue and consequently are unethical if not supported

by facts. As officers of KMC, Kercher and Bryan approved, accepted, and/or failed to intercede

to protect Plaintiff from Roys defamatory acts, and in so doing, ratified them.

48. In May of 2005, Harris informed Plaintiff that Roy had voiced concerns about thePathology Department and had submitted certain pathology reports for second-level peer review

and investigation. Plaintiff requested that Harris identify the pathology reports in question but

Harris refused. Later, Plaintiff determined that no second-level peer review ever occurred.


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. On or about June 30, 2005, Martin and Harris told Plaintiff that Roy was makingnegative comments about the Pathology Department.

. On or about June 30, 2005, Plaintiff sent a letter addressed to Roy and carbon-copied to Perez, Martin, Harris, Kercher and Bryan. The letter stated:

It has come to my attention that you are making negative statements to numerouskey members of the medical staff regarding pathology reports issued by thisdepartment. You are reported by others to claim that several of KMC pathologydiagnoses do not agree with outside diagnoses rendered by other outsidepathologists and that these discrepancies have or would have changed patientmanagement. It would appear from these actions that you are claiming that ourdiagnoses are not correct. I do not recollect any true, substantial discrepanciesbetween diagnoses rendered by this department and outside pathology

departments based upon retrospective review of our cases since my arrival inDecember 2000. It is reported that you claim to have in your possession severalsuch reports detailing incorrect diagnoses rendered by our department. It is alsomy understanding that you have been asked on several occasions to produceexamples of these discrepancies, and as of yet have not produced any such reportsto individuals that have made these requests. To demonstrate and support theaccuracy of your claims, I request that you produce copies of these reports for myreview by July 15, 2005.

51. Roys statements of fact regarding incorrect diagnoses by the PathologyDepartment were false. The key members of the KMC medical staff who heard the statements

reasonably understood that the statements were about Plaintiff and reasonably understood the

statements to mean that Plaintiff was not managing the Pathology Department in a competent

manner. Roy failed to use reasonable care to determine the truth or falsity of the statements. Roy

acted with malice in publishing the false statements. As a consequence, Plaintiff experienced a

significant loss of reputation and confidence among his peers at KMC. As officers of KMC,

Harris, Kercher and Bryan approved, accepted, and/or failed to intercede against Roys

defamatory acts and in so doing, ratified them.

52. On or about July 15, 2005, Roy sent a letter addressed to Plaintiff and carbon-copied to Harris, Bryan and Perez. The letter stated:


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53. Roys statements of fact regarding the existence of discrepancies and thebringing of them to Plaintiffs attention many times and in the presence of Dr. Perez were

false. Harris, Bryan and Perez reasonably understood that the statements were about Plaintiff and

reasonably understood the statements to mean that Plaintiff was neither managing the Pathology

Department in a competent manner nor being truthful about Roys disclosures of the facts and

circumstances underlying his defamatory statements. Roy failed to use reasonable care to

determine the truth or falsity of the statements. Roy acted with malice in publishing the false

statements. As a consequence, Plaintiff experienced a significant loss of reputation and

confidence among his peers at KMC. As officers of KMC, Harris and Bryan approved, accepted,

and/or failed to intercede against Roys defamatory acts and in so doing, ratified them.

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54. Moreover, Roys statement of fact that he had reported the matter to KMCadministration for quality assurance review was false. Harris, Bryan and Perez reasonably

understood that the statement was about Plaintiff and reasonably understood the statements to

mean that Plaintiff was not managing the Pathology Department in a competent manner. Roy

failed to use reasonable care to determine the truth or falsity of the statements. Roy acted with

malice in publishing the false statements. As a consequence, Plaintiff experienced a significant

loss of reputation and confidence among his peers at KMC. As officers of KMC, Harris and

Bryan approved, accepted, and/or failed to intercede against Roys defamatory acts and in so

doing, ratified them.

I was quite surprised to receive your letter of June 5th. The "discrepancies" shouldbe well known to you as I have brought them to your attention many times, bothin the presence of Dr. Perez, and in a letter to you a couple of months ago, as wellas multiple phone conversations. The inaccuracies, delays and refusals to referspecimens for outside review continue. The matter has been appropriately

reported to the administration for a quality assurance review, as I have had nosuccess in my pleadings to you directly.


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Roy, Bill Taylor, Vice-Chair of Surgery, and Albert McBride, the Cancer

Committee Liaison, attended Plaintiffs presentation at the October 12 Oncology Conference and

were requested by Harris to give him letters criticizing Plaintiffs time infraction.

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5. On October 12, 2005, Plaintiff gave a presentation at the monthly KMC oncologyconference (Oncology Conference) highlighting concerns regarding a patient that might need a

hysterectomy, and the need for Internal Pathology Review.

6. Plaintiffs presentation lasted approximately 15 to 20 minutes, which exceededalleged conference time limits by approximately ten minutes. Plaintiff was stopped before he

could present his final slides stating his patient care quality conclusions.

. On information and belief, presenters at prior and subsequent OncologyConferences frequently exceeded time limits without interruption, incident, or reprimand.

9. In response, Roy sent a letter (Roy Letter), dated October 13, 2005, addressedto Harris. The Roy Letter stated in relevant part:

With respect, Dr. Jadwin is a small rural community hospital pathologist, withvery limited experience and no specialty training in regard to GynecologicOncologic Pathology. Dr. Jadwin is not a clinician, and has neither the fund ofknowledge nor the experience to make any recommendations regarding thetreatment of patients, much less criticize the care provided by those, such asmyself, whose training and experience were attained at some of the highest seatsof learning in the U.S and abroad. Additionally, as you are aware, it is notinfrequent that Dr. Jadwin's diagnoses are in err when reviewed by outsidespecialists, as in this particular case. The management of the patient would havebeen inappropriate if we accepted Dr. Jadwin's report, which as you know, wasdifferent from two other pathologists in his own department (three differentopinions). I have no confidence in Dr. Jadwin and I am actively pursuing thepossibility of having all specimens from the Gynecologic Oncology serviceevaluated outside, as is currently done for the Neurosurgery service. I havediscussed these issues with Dr. Perez, Chairman of the Department of Obstectricsand Gynecology, and he assures me of his full support.

60. The Roy Letter contained the following false statements of fact: (i) Plaintiff is asmall rural community hospital pathologist, (ii) Plaintiff has very limited experience in


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Gynecologic Oncologic Pathology, (iii) Plaintiff is not a clinician, (iv) Plaintiff has neither the

fund of knowledge nor the experience to make any recommendations regarding the treatment of

patients, much less criticize the care given by doctors such as Roy, (v) it is not infrequent that

Plaintiffs diagnoses are in err when reviewed by outside specialists, as in this particular case,

(vi) the management of the patient would have been inappropriate if Plaintiffs report had been

accepted, and (vii) Plaintiffs report was different from two other pathologists in his own

department, suggesting the deficiency of his report. Harris reasonably understood that the

statements were about Plaintiff and reasonably understood the statements to mean that Plaintiffs

credentials and abilities as a pathologist and physician were deficient. Roy failed to use

reasonable care to determine the truth or falsity of the statements. Roy acted with malice in

publishing the false statements. The Roy Letter exceeded the scope of Harriss request. Roy

defamed Plaintiff despite Plaintiffs numerous prior requests to stop defaming him. As a

consequence, Plaintiff experienced a significant loss of reputation and confidence among his

peers at KMC. As an officer of KMC, Harris approved, accepted, and/or failed to intercede

against Roys defamatory acts and in so doing, ratified them.

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61. Plaintiff is informed and believes, and thereupon alleges, that Harris subsequentlyrepublished the Roy Letter to DOES 1 through 10, and that DOES 1 through 10 further

republished the Roy Letter to other members of KMC staff. Such other members of KMC staff

reasonably understood that the statements contained in the Roy Letter were about Plaintiff and

reasonably understood such statements to mean that Plaintiffs credentials and abilities as a

pathologist and physician were deficient. Harris and DOES 1 through 10 failed to use reasonable

care to determine the truth or falsity of the statements. Harris and DOES 1 through 10 acted with

actual malice in publishing the false statements. As a consequence, Plaintiff experienced a


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significant loss of reputation and confidence among his peers at KMC. As officers of KMC,

Harris, and DOES 1 through 10 accepted, and/or failed to intercede against Roys defamatory

acts or their subsequent republication, and in so doing, ratified them.

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62. On or about October 17, 2005, Plaintiff was ordered to attend a meeting withKercher, Harris and Ragland who subjected Plaintiff to humiliating ridicule, yelling and

inappropriate questioning regarding Plaintiffs alleged violation of Oncology Conference time

limits. Kercher, Harris and Ragland informed Plaintiff that they had received letters of

disapprobation (Disapprobation Letters) from three conference participants one of which was

the Roy Letter and would be issuing a letter of reprimand later that day which would be entered

into Plaintiffs medical staff file. When Plaintiff asked to see the Disapprobation Letters,

Kercher, Harris and Ragland refused to provide them. As officers of KMC, Harris, Kercher,

Ragland and Abraham approved, accepted, and/or failed to intercede against Roys defamatory

acts or their subsequent republication by Harris and DOES 1 through 10, and in so doing, ratified

such defamatory acts.

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63. Later that day, Harris, Kercher, Ragland and Abraham issued a formal letter ofreprimand addressed to Plaintiff (Reprimand Letter). The Reprimand Letter stated: Your

repeated misconduct at the Tumor Conference on October 12, 2005 was noted by numerous

attendants, three of which have written letters of their dissatisfaction, which will be entered into

your medical staff file. The three letters to be entered into Plaintiffs medical staff file included

the Roy Letter. As officers of KMC, Harris, Kercher, Ragland and Abraham approved, accepted,

and/or failed to intercede against Roys defamatory acts or their subsequent republication by

Harris and DOES 1 through 10, and in so doing, ratified such defamatory acts.

64. During the period from on or about October 17, 2005 to on or about January


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2007, Plaintiff submitted numerous requests to Harris, Ms. Karen Barnes, Deputy County

Counsel for the County of Kern (Barnes), and Bryan to see the Disapprobation Letters. He was

continuously refused. As officers of KMC, Harris and Bryan approved, accepted, and/or failed to

intercede against Roys defamatory acts or their subsequent republication by Harris and DOES 1

through 10, and in so doing, ratified such defamatory acts.

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66. On or about January 6, 2006, Barnes sent a letter on behalf of Barmann andaddressed to Young. The letter included as an attachment a copy of the Roy Letter, redacted to

conceal Roys identity. This letter afforded Plaintiff his first opportunity to see the Roy Letter

and the defamatory statements contained therein.

65. On or about December 12, 2005, Young sent a letter to Barmann stating:Recently, Dr. Jadwin was advised that several of the staff physicians had writtenletters of dissatisfaction regarding Dr. Jadwins professionalism and was advisedthat these letters were placed into his personnel/medical staff file. When thedoctor asked to see these letters, he was refused access to them and was

subsequently told that the letters had not been placed into his file. Dr. Jadwin thensent an e-mail to Deputy County Counsel, Karen Barnes, copy attached, regardingan opinion with respect to his right to inspect the file. At this juncture, there hasbeen no reply to his request. Needless to say, Dr. Jadwin is extremely upset andemotionally distraught over the present state of affairs.

67. On or about January 9, 2006, Plaintiff sent a letter addressed to Bryan, stating:I have been

306 P Supp Memo Re HS12785

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