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Westside Observer
April 2013 at www.WestsideObserver.com
Laguna Honda Hospital’s Whistleblower Retaliation
The $750,000 Wrongful Termination Affair
by Patrick
Monette-Shaw
Three years after jointly filing
three whistleblower complaints with his colleague Dr. Maria Rivero, Dr. Derek Kerr’s
wrongful termination settlement agreement was finally approved on second
reading by San Francisco’s Board of Supervisors on March 26, awarding him
$750,000 in monetary damages and other non-monetary awards.
Kerr’s settlement
is one of the largest pre-trial (out-of-court) settlements in San Francisco
history, although post-trial settlements have been larger.
Like many great
mysteries, the great Laguna Honda Hospital Patient Gift Fund scandal of 2010
started with some curiosity, ethical concerns, and a compelling public-interest
question: If the fund was nearing
“bankruptcy,” what had happened to the money?
When former Laguna
Honda physicians Kerr and Rivero put on their detective hats, neither expected
that the age old question “show us the money” would quickly result in prompt
retaliation, harassment, and wrongful termination. Neither did they expect Kerr would eventually
win the largest pre-trial settlement in City history.
At the outset of
their sleuthing, they believed our democracy functions only when citizens know
what our government is doing. Believing
public participation is essential to our democratic process, the two doctors
take seriously their role to speak as patient advocates.
The sordid patient
gift fund mystery started with a classic example of
mismanagement over a small issue — reimbursement to Dr. Rivero for a mere $100
she had spent for tacos for LHH’s Spanish Focus ward in September 2009. The taco luncheon was to celebrate Fiestas
Patrias — Latin America’s Independence Day — on a ward where the majority of
patients had various forms of dementia.
Told that the $2
million gift fund was nearing insolvency and couldn’t reimburse her,
Rivero and Kerr became gumshoes when they requested and began researching 10
years of gift fund public records on October 31, 2009.
After examining
thousands of pages of public records and placing serial records requests, the
pair felt they had no ethical choice but to file an Ethics complaint on March
2, 2010, which clearly documented mismanagement of the patient gift fund. Just hours after submitting copies of their
whistleblower gift fund complaint with the Ethics Commission on March 4, it
reached the District Attorney and retaliation against them was set in motion,
after they had simply exercised their First Amendment rights to free speech.
When San Francisco
Department of Public Health officials wrongly retaliated by notifying Kerr
orally on Friday, March 5, 2010 that his employment would be terminated, the
officials had to have done so willfully.
The officials should have known that they would be violating the First
and Fourteenth Amendments to the U.S. constitution, other Federal law, at least
three State laws, and San Francisco’s own Administrative Code that prohibits
retaliation.
If the City had
hoped to silence Kerr by firing him, the retaliation backfired, leading the
whistleblower doctor to not only speak out more forcefully, the retaliation led
to a huge settlement when Kerr prevailed in his wrongful-termination lawsuit.
As Dr. Kerr and Dr.
Rivero wrote in their July 2012
Westside Observer article, “Secret
Investigations,” whistleblowers should not be silenced in the resolution of the
alleged misconduct they risked their careers to challenge. But that’s exactly what the City of San
Francisco attempted to do: To silence the pair of doctors.
When Dr. Kerr and
Dr. Rivero filed a trio of Ethics complaints, they believed that a collection
of laws would protect them from retaliation.
They believed that their fundamental First Amendment rights to free
speech and their Fourteenth Amendment rights to due process would protect them
from exposing fraud, waste, and corruption.
They believed 42 U.S.C. §1983, which provides protections for citizen’s
injured by deprivation of Constitutional rights and which provides redress for
violations of due process, would help protect them. They hoped that the federal Whistleblower Protection Enhancement Act of
2012 might help protect them.
They believed that
California Government Code §53298, California Health and Safety Code §1432, and
California Labor Code §1102.5 — which each provide separate prohibitions
against employee retaliation — would protect them.
And they believed the
letter of the law in San Francisco Administration Code §4.115, Protection of Whistleblowers, which
clearly prohibits termination, demotion, or suspension of City employees as
retaliation for reporting waste, fraud, and inefficiencies in City government
to the Ethics Commission, City Controller, District Attorney, or City Attorney.
Kerr and Rivero
were wrong. None of these so-called
“laws” ended up protecting them, and Kerr was forced to sue after being
wrongfully terminated.
“I didn’t want to sue the City,” Kerr
testified to the Board of Supervisors Rules Committee on March 7,
2013. “But Dr. Maria Rivero and I
stumbled upon wrongdoing involving Laguna Honda Hospital’s CEO that we couldn’t
ignore,” he testified. [Editor’s
Note: Kerr was diplomatically referring
to Mivic Hirose, LHH’s then- and current-CEO.]
A Public Spanking: Kerr’s Settlement Award
Kerr and Rivero
were represented by the law firm of Kochan & Stephenson — Deborah Kochan
and Mathew Stephenson — whose law practice is devoted entirely to representing
employees who have suffered discrimination, harassment, retaliation, or — as in
Dr. Kerr’s case — retribution for whistleblowing.
In addition to Kerr’s
$750,000 settlement award, there were a number of non-monetary concessions that
amount to a public spanking and public apology that are important to him,
including:
1.
A retraction of the “Statement Concerning the
Laguna Honda Gift Fund” posted on LHH’s website by Katz and Hirose on September
2, 2010 alluding to Kerr and Rivero as “detractors” who had intentionally made
false or inaccurate statements regarding the patient gift fund, since the September 2010 letter
presented incorrect representations of the two doctors. The retraction will be via a notice signed by
the Health Department’s current director, Barbara Garcia, to be posted on DPH’s
web site within 10 business days following final approval of the settlement by
the Board of Supervisors on March 26, for a minimum 10-month period.
2.
LHH
must install a plaque as soon as practicable in a clearly visible location,
recognizing Kerr’s contributions to the hospital generally, and his
contributions to LHH’s Hospice and Palliative Care Program in particular, in
either LHH’s new Hospice or the gazebo/garden area, once it is completed.
3.
LHH
must provide Kerr, within 10 business days of the final settlement approval, a
commendation letter signed by defendant Colleen Riley, MD, and LHH’s Chief of
Staff, Steven Thompson, MD, stating that Kerr was a physician in good standing
and widely respected by his LHH colleagues for his skills and accomplishments
as a hospice and palliative care physician, and commending his work
establishing and running LHH’s hospice and palliative care program.
4.
LHH’s
CEO, Mivic Hirose must announce
at both the next scheduled meeting of the Health Commission and the next
meeting of LHH’s 40-member Senior Staff/Leadership Forum, both the pending
installation of Kerr’s plaque and read into the minutes the letter signed by
Riley and Thompson.
5.
The
City must provide training to LHH’s Executive Committee regarding whistleblower
rights, and First Amendment rights, of City Employees.
For their part,
Kerr’s lawyers Kochan and Stephenson, note: “In our experience, negotiating
non-monetary terms as part of a settlement is relatively rare. But here, we believed it very important that
LHH’s administration publicly acknowledge the lies they told about Drs. Kerr
and Rivero, as well as acknowledge the extraordinary service the two MD’s
provided to the community during their long and distinguished careers at LHH.”
As for the two
doctors, the monetary and non-monetary awards help convey that their complaints
had all along been valid, and that wrongful, retaliatory termination and
harassment had ensued.
The Defendants
Dr. Kerr — a former
physician in good standing at Laguna Honda Hospital for over 21 years — filed a
lawsuit seeking monetary and non-monetary damages, in part, to recover his good
name.
Named as defendants
in his lawsuit were the City and County of San Francisco and three named
individuals — Dr. Mitchell Katz, former Director of Public Health; Mivic
Hirose, RN, Laguna Honda Hospital’s Executive Administrator; and Colleen Riley,
MD, Laguna Honda Hospital’s Medical Director.
Legal documents
filed in the case show the defendants may have been motivated by retaliatory
animus towards Kerr. They subjected him
to retaliation for having brought complaints related to the care of patients
and services at LHH. Had Kerr’s case
proceeded to trial, it is very likely a jury would have concluded the
defendants had been highly motivated to silence Kerr by subjecting him to
retaliatory termination — and a jury would likely have awarded him much more
than three-quarters of a million dollars, if for no other reason than sympathy
for LHH’s patients.
Basis of Kerr’s Lawsuit
Dr. Kerr’s “Complaint for Damages and Demand for Jury
Trial” lawsuit filed in San Francisco Superior Court on November
16, 2010 — subsequently transferred to a Federal District Court over First
Amendment freedom of speech issues — listed five causes of action for
violations of Federal and State law:
•
Deprivation
of his First Amendment freedom of speech activities;
•
Deprivation
of due process rights guaranteed by the Fourteenth Amendment;
•
Violation
of California Government Code §53298 that prohibits reprisals against employees
who file complaints regarding gross mismanagement or a significant waste of
funds, or an abuse of authority;
•
Violation
of California’s Health and Safety Code §1432 that prohibits discrimination or
retaliation against employees for initiating or participating in proceedings
relating to care, services, or conditions of a long-term health facility; and
•
Violation
of California Labor Code §1102.5 that prohibits retaliation against any
employee for disclosing information to a government or law enforcement agency
when an employee has reasonable cause to believe that the information discloses
a violation of state or federal statutes, or a violation or noncompliance with
a state or federal rule or regulation.
Four of the five causes of action noted that the
individual defendants participated in, directed, or knew of the retaliatory
termination, and they collectively failed to act to prevent it. The causes of action also alleged that the
gross retaliation by the individual defendants was done with malice, fraud, or
oppression, in reckless disregard of Dr. Kerr’s constitutional rights.
The Set up: Pretext for Termination
According to Kerr’s
lawyers’ “Plaintiff’s
Opposition to Defendants’ Motion for Summary Judgment,” dated
August 9, 2012, there were a number of reasons to suspect the defendants
manufactured various pretexts to justify terminating Kerr.
It appears that Dr.
Katz and Ms. Hirose had already determined by December 15, 2009 that they were
going to lay off Dr. Kerr, hoping to shut him up. They needed a pretext, or pretexts, to do so,
since Kerr and Rivero’s Sunshine requests on October 31, 2009 for patient gift
fund records had put Katz and Hirose on notice that they were under scrutiny
for a host of improper, if not illegal, practices. Hirose had to have known there was a lot at
stake over her management, or mismanagement, of the patient gift fund, and that
she was likely in deep trouble.
After all, by that
point Kerr and Rivero had already filed in September 2009 two Whistleblower
complaints about DPH contracts tainted by conflicts of interest, and had put
the City on notice with their October 31 request for 10 years of patient gift
fund public records that the two whistleblower doctors were serious about
investigating the gift fund scandal. The
defendants knew Kerr’s and Rivero’s records requests were very serious, and
that the two doctors had a demonstrated record of investigating and thoroughly
analyzing data. Hirose was on notice
that she was under Kerr’s and Rivero’s microscope, and that it could be
damaging to Hirose’s career.
Much of the City’s
defense regarding Kerr’s termination was pretextual — pretexts the City
manufactured to justify his dismissal, but were actually pretexts for
retaliation. The pretexts to lay off
Kerr included false claims that:
•
Kerr
was terminated as a mid-year budget savings reduction, claiming a budget crisis. During FY 09-10, DPH had nearly 8,000
employees on its payroll, but only one employee — Dr. Kerr — was
terminated, ostensibly to “save money.” Notably,
LHH’s Medical Services Department staff increased by 10% after Kerr’s layoff,
and the physician who replaced him — Dr. Denis Bouvier
— quickly zoomed to being the City’s highest-paid employee, earning $332,000
that year. In addition, the City added a
Clinical Nurse Specialist, Anne Hughes, RN, PhD, to the Hospice’s budget,
paying her $160,000 annually. LHH’s
expenses on Hospice, and throughout the hospital, went up after Kerr’s “mid-year
budget reduction” layoff. Obviously,
money wasn’t the problem, but a clear pretext for retaliation.
•
Kerr
had limited himself to a 25-patient case load and was unwilling to take on
additional patients, even if keeping his job depended on it.
•
The
hospice physician in the new hospital would have to carry a 60-patient case
load, which didn’t apply to doctors on admitting wards, such as the Hospice
where Kerr was an admitting physician.
•
Kerr
wouldn’t cover wards outside the Hospice, clearly disproven during depositions.
•
The
hospice would be undergoing a “fundamental program change,” which Hirose
eventually testified there had never been any discussion about a “program
change.”
•
Kerr
was terminated for budgetary reasons, which was false because when Kerr left
LHH in June 2010, he was immediately replaced by another budgeted physician.
Another glaring
pretext was Hirose’s claim that her decision in mid-December 2009 to terminate
Kerr was based on information Dr. Riley had provided indicating Kerr was
unwilling to take on covering additional Wards.
During depositions,
Riley indicated that she hadn’t reported to Hirose Kerr’s reluctance to take on
additional ward coverage until late February 2010, and that she, Riley, had
never asked Kerr if he was willing to take on more patients if retaining his
job depended on it.
During Hirose’s own
initial deposition, she was unable to explain the impossibility of knowing in
mid-December 2009 an allegation about Kerr from Riley, since Riley testified
she had not shared this information with Hirose until late February 2010. The conversation with Riley that Hirose
claimed to have relied on to terminate Kerr wouldn’t happen for at least a
month until after she and Katz had already cooked up a pretext to eliminate
Kerr.
In a follow-up to
Hirose’s deposition nine months after her first deposition, Hirose sill
couldn’t explain the “timing problem” that had made her explanation to
terminate Kerr clearly impossible, given Riley’s false claim that Kerr wouldn’t
take on additional patients. As set-ups
and pretexts often are, Hirose’s claim that Kerr wouldn’t provide additional
Ward coverage was completely insane.
Depositions: Discovery Mountain
Given public
records in the case, the mountain of evidence against the City obtained during
discovery and depositions in Kerr’s case was appalling.
During depositions
and discovery, one defendant after another was crushed. Kerr’s lawyers deposed a dozen or so City
employees; the City Attorney, in return, deposed only Kerr and Rivero. The City didn’t bother deposing Kerr’s union,
UAPD, knowing that the union’s deposition would likely be damaging against the
City. Kerr’s lawyers obtained
approximately 3,000 pages of documents and issued multiple
interrogatories.
Eventually, the
City realized how bad their case looked for Laguna Honda and the Department of
Public Health after its own witnesses performed poorly during depositions, and
when plenty of smoke rose during discovery.
The City
stonewalled Kerr’s lawsuit for two years, until his case was finally scheduled
for jury trial on November 13, 2012. In
mid-summer 2012, the City submitted a Motion
for Summary Judgment that would have effectively dismissed Kerr’s case had
the motion succeeded. Kerr’s lawyers
submitted a Plaintiff’s Opposition to the
City’s Motion for Summary Judgment on August 9, stating that given the
“genuine issues of disputed fact … the defendants’ motion for summary
adjudication … should be denied.”
Judge Claudia
Wilken denied the City’s Motion for
Summary Judgment in part and approved it on other parts in a 47-page ruling
dated September 6, 2012. Wilken’s Order Granting In Part And Denying In Part Motion For Summary Judgment
noted: “Plaintiff has offered sufficient
evidence that he disclosed to his government employer possible violations of
state or federal law based on the conflicts of interest involving Dr. Ja and
Ms. Sherwood in [Kerr and Rivero’s] “A Job Half Done” critique, and that this
was causally connected to his termination.”
Wilken also wrote: “[Kerr’s] media and formal complaints about
the mismanagement and misuse of the Gift Fund also implicated several state
laws … However, the public records requests related to the Gift Fund did not
show any reasonable belief on Plaintiff’s part that he was disclosing alleged
violations of [several] sections [of California’s Business and Professional
Code]. The media reports about the Gift
Fund were not complaints directed to a government or law enforcement agency, as
required to come under the protection of [California Labor Code] section
1102.5(b).”
Wilken’s partial denial — which
kept Kerr’s lawsuit alive and headed to jury trail — suggests the City then
knew it had to settle with Kerr or risk a jury’s outcome, since it appeared
Kerr had a potentially valid case. Only
when the City realized it was on notice to proceed to jury trial did it
conclude negotiating an equitable settlement with Kerr.
Laughably, the defendants
appeared to have argued that Kerr’s speech was not protected by the First
Amendment because it “did not address matters of public concern,” and would not
reach the public at large, as if the raid of funds intended for patients didn’t
concern public donors to the fund. The
City also lamely tried to exonerate the defendants by claiming that Kerr’s and
Rivero’s serial requests for gift fund records was not protected speech because
it was “nothing more than a request for [public] information.” To support its defense, the City ignored that
defendant Hirose had lied repeatedly about the status of the Gift Fund as it
existed in late 2009, according to legal documents.
The City also attempted to
exonerate Director of Public Health, Mitch Katz, claiming Katz wasn’t a
policymaker “decider,” he was simply a decision-maker. Katz had delegated to Hirose the decision of
which staff to lay off (terminate), but Kerr’s lawyers adroitly noted that
layoff decisions were within the sole discretion of the Director of Public
Health, Katz, responsibility for which could not be avoided by delegating that
decision to Hirose.
The City also attempted to assert
that the Civil Service Commission, not the DPH’s Department Head, had final
policymaking authority to remove Kerr, though that assumption is supported
neither by facts nor applicable law, since appointments of doctors are exempt
from Civil Service merit system protections and, instead, serve at the pleasure
of their appointing authorities.
The defendants conceded that Katz
made a deliberate choice fingering Kerr for layoff from among several competing
proposals on how to implement mid-year budget reductions. Katz could have, but failed to, rescind
Kerr’s layoff notice. Instead, Katz
participated in, and explicitly supported, Hirose’s decision to terminate Kerr.
Commenting on the discovery and
deposition process, Kerr’s lawyer Deborah Kochan says, “The deceitfulness and
small-mindedness exhibited by members of LHH’s administration and its Human
Resources Department was, at times, breathtaking.”
“The City was boxed in by the
inconsistent accounts of its own witnesses and the absolute nonsense of some of
their testimony on critical issues,” adds Kochan’s law firm partner, Mathew
Stephenson.
Acting Under “Color of Law”: A Federal Crime
42 U.S.C. §1983 provides that every person acting
under the “color of law” who causes any United States citizen to be deprived of
any Constitutional rights shall be liable to the party injured. “Color of law” involves actions taken that
superficially appear to be within an individual’s lawful power, but are
actually in contravention of the law.
Acting under “color of law” is misuse of power, since it involves acting
under real or apparent government authority by people who misuse their
authority to violate rights guaranteed by federal law. Depriving a person of his or her federal civil
rights under color of law is illegal and grounds for a cause of legal action.
The City acted
under the color of law when it deprived Dr. Kerr of his First Amendment rights
to freedom of speech. He was terminated,
in part, because he had spoken out on various matters of public concern; he had
spoken as a private citizen, not as a public employee; and his protected speech
was a substantial or motivating factor in the City’s termination of him.
By reaching a
settlement agreement with Kerr for monetary and non-monetary damages, the City
has effectively acknowledged that Riley, Hirose, and Katz had engaged in misuse
of power and misuse of their authority, depriving Kerr of his Federal civil
rights. Despite this, Riley and Hirose
are still employed at Laguna Honda Hospital, while Dr. Katz suddenly and
mysteriously vanished.
Katz abruptly moved
to Los Angeles after the LHH patient gift fund scandal exploded, and after Kerr
and Rivero had filed their complaints about tainted DPH contracts. Katz’s sudden departure may have been
coincidental, but it was completely odd, given he had previously stated he
wanted to remain as Director of Public Health until the rebuild of the new San Francisco
General Hospital was completed. It’s
unknown whether the City Attorney, or other City Hall Family insiders, had
advised Katz to quickly resign when the issue of his HMA consulting fees income
became widely known.
During the Board of
Supervisor’s Rules Committee meeting on March 7, 2013 at which it recommended
approval of Dr. Kerr’s settlement agreement, Dr.
Rivero testified,
“What is the message you send when a CEO [such as Hirose] who retaliated against
a whistleblower is still in office? It
shows that you condone whistleblower retaliation and violations of laws that
protect whistleblowers.” Rivero added,
“It shows that you will accept executives who pilfer public funds donated to
the poorest of the poor, violating a sacred trust.”
That Hirose and
Riley remain employed at LHH is shocking in a City that pays a lot of lip
service claiming it believes in transparent, open government and public
accountability.
Series of Whistleblower Complaints
Drs. Rivero and
Kerr filed three complaints through the Controller’s Office and the Ethics
Commission regarding fraudulent practices in the Department of Public Health,
including:
•
On September 18,
2009, Kerr and Rivero filed their first complaint alleging an improper award of
a contract to a City employee’s relative, regarding what became known as the
“Ja Report.” In July 2009, Davis Ja and
Associates prepared a report examining mental health services for LHH’s
residents; defendant Hirose served on the selection panel that awarded Ja his
first contract to survey LHH. The Ja
Report recommended replacing Laguna Honda doctors with social workers,
psychologists, and nurses.
Drs. Kerr and Rivero regarded the reduction in the number of physicians as a
threat to, and would negatively impact, the quality of patient care. The Ja report was so deeply flawed that Kerr
and Rivero co-authored a 25-page “Critical Analysis: The Ja Report – A Job Half Done,”
highlighting the flawed methodology of Ja’s report and recommendations. Of 22 physicians on LHH’s regular Medical
Staff, 20 (91%) co-signed a petition supporting Rivero’s and Kerr’s thoughtful Critical Analysis, which detailed
serious, ethical conflicts of interest involving several high-level managers in
the Department of Public Health. Subsequently, Ja was awarded an additional
multi-million dollar contract.
Kerr and Rivero then discovered the additional contract had more than likely
been steered to Ja by his wife, Deborah Sherwood, a senior manager in the
Health Department’s Community Behavioral Health Services unit. Despite the two doctors’ numerous attempts to
bring this improper and probably illegal contract award to the attention of
City officials, nearly two years after filing their whistleblower complaint
regarding Ja, the City Controller finally stepped in and abruptly terminated
Ja’s additional contract, withholding over $400,000 in remaining contract funds.
•
Three days later,
on September 21, 2009, Kerr and Rivero filed a second complaint alleging that
the then Director of Public Health, defendant Mitch Katz, may have engaged in a
conflict of interest by accepting — according to FPPC public records —
somewhere between $30,000 and $300,000 in consulting fees from Health
Management Associates (HMA), a City contractor performing consulting services
for the Department of Public Health.
Both San Francisco’s Conflict of Interest policies and the California
Political Reform Act prohibit government employees from participating in making
of contracts with companies in which they have a financial interest.
•
On March 2, 2010,
Rivero and Kerr filed their third complaint regarding the raid of LHH’s patient
gift fund, which scandal has been thoroughly reported in past issues of the Westside Observer over the past three
years (starting with “Raiding the Public Trust,” in June 2010). The scandal was also broadcast in two KGO
I-Team investigative reports in May 2010, which defendants Katz and Hirose had
viewed, and which Katz and Hirose had responded to by publically posting on
LHH’s web site a statement that Kerr and Rivero were mere detractors who were
making false statements.
The two doctors had discovered that patient funds had been quietly diverted to
three separate accounts for staff perquisites and amenities, and increasingly
used for the “comfort and benefit” of staff and administrators, instead of
patients. This feat was engineered by
LHH’s then Executive Director, John Kanaley, who had quietly authorized setting
up accounts for staff training within the patient gift fund, and had permitted
inter-account transfers for staff amenities.
The City Controller’s audit of the clear misappropriation of charitable
contributions intended for patient amenities languished for months, but the
Controller’s highly-publicized audit finally ordered in November 2010 return of
$350,000 improperly removed from the gift fund.
[Editor: The City Controller’s
restoration of funds to the patient gift fund is available in the Westside Observer’s December 2010 issue,
at “Controller
Restores $350,000 to Laguna Honda’s Patients.”]
Who Are These Two Doctors?
Rivero and Kerr
take their professional and ethical obligations as doctors seriously. They passionately believe, having taken the Hippocratic
oath to first do no harm, that among their responsibilities is to fully embrace
advocating for patients.
Derek Kerr, MD, CNA
attended Harvard Medical School, did his residency at Harlem Hospital and his
Oncology Fellowship at Memorial Sloan-Kettering Cancer Center. He has the rare distinction of being Board
Certified in three separate medical specialties: Internal Medicine, Medical Oncology, and
Hospice and Palliative Medicine.
Following his medical education and years of practicing medicine, he
went back to school and became a Certified Nursing Assistant in 1988 to better
understand patient care from a nursing perspective. Kerr was the Attending Physician of Laguna
Honda’s Hospice for 21 years, was listed as LHH’s Palliative Care Consultant on
the Medical Staff roster, and had been the Attending Physician assigned to
LHH’s “Hospice and Palliative Care” service since 1994. During his tenure, LHH’s Hospice was widely
acclaimed, receiving a national award.
Kerr was Chair of the Bioethics Committee at Fairmount Hospital prior to
employment at LHH.
Maria Rivero, MD,
FACGS, graduated from UCSF Medical School and completed her residency at Beth
Israel Hospital/Harvard Medical School.
She is Board Certified in both Internal Medicine and also Geriatrics,
and is a Fellow of the American College of Geriatrics Specialists. She also has been a Certified Eden
Alternative Associate since 1998. Rivero
worked at Laguna Honda Hospital for 22 years, and served as LHH’s Medical
Director and its Assistant Medical Director between 1997 and 1999.
As former co-workers at LHH, Rivero and Kerr were
highly regarded by hospital staff as among the best doctors in the
hospital. As a team, they became
whistleblowers at great professional risk to their careers; their core belief
in ethical behavior led them to become whistleblowers, even though they never
imagined initially that they would ultimately become involved in exposing fraud
and corruption.
Correcting the Record: “No One Spoke Up”
In April 2012, as
Kerr’s lawsuit dragged on, another former physician at Laguna Honda Hospital,
Dr. Victoria Sweet, published her 348-page memoir about the hospital, titled God’s Hotel,
which was riddled with errors and which, among other flaws, contained not one
date to place her reporting into chronological or historical perspective. Among many other errors, Sweet incorporated
three glaring untruths about Dr. Kerr.
Sweet should have known better, since events in Kerr’s lawsuit had been
unfolding for fully two years before she published her memoir. Sweet never bothered fact checking with Kerr
or Rivero during the years she spent writing her memoir.
First, Sweet
wrongly reported that a “Dr. Talley” — the pseudonym Sweet assigned to Laguna
Honda’s medical director, Dr. Colleen Riley, one of the named defendants in
Kerr’s lawsuit — claimed that it had
been she, Dr. Talley, who had made the decision to terminate Dr.
Kerr. Sweet reported that “Dr. Talley” announced
during her first meeting as Medical Director of Laguna Honda’s medical staff,
that it had been “entirely her decision” to lay off Dr. Kerr, and that then
Director of Public Health Mitch Katz and LHH’s Executive Administrator Mivic
Hirose had had nothing to do with the decision to terminate Kerr.
In fact, Mivic
Hirose herself has claimed elsewhere that it was entirely her decision — not
Dr. Riley’s — to terminate Dr. Kerr.
Indeed, during depositions in Kerr’s case, it appears that Katz and Hirose
decided on December 15, 2009, or earlier, to lay off Dr. Kerr, several weeks
before Riley was appointed Medical Director at the end of December. When she learned of Katz’s and Hirose’s
decision to target Kerr, Riley did nothing as Medical Director between January
and March to stop the clear retaliation.
Next, Sweet wrongly
opined that one of Dr. Kerr’s “principles” was that he would only take care of
his own patients [at LHH, and that] he “almost never took call, or helped out,
or covered other wards. So no rebellion
broke out [when Kerr was terminated], and no one spoke up [when the Bell Tolled
for Dr. Kerr].” But during discovery in
Kerr’s case, LHH produced Ward Coverage Schedule records showing Kerr had,
indeed, often provided coverage on other wards, took call, and often “helped
out.” During depositions, Kerr’s lawyers
showed that Kerr had, in fact, performed ward coverage, even more so than Dr.
Riley had in some years. Other doctors
also testified under oath that Kerr had done his share of coverage.
Sweet’s claim no
one spoke up, and no rebellion broke out was a complete lie. A second petition
opposing Dr. Kerr’s
and Dr. Bouvier’s proposed layoffs — which requested both layoffs be rescinded
— was signed by 16 physicians, including Dr. Sweet herself. The second petition, a “Statement of
Concern,” was sent to defendant Dr. Colleen Riley and to Steven Thompson, MD,
the Chief of Staff of LHH’s Medical Service, who forwarded it to Ms. Hirose.
Of the 20 doctors
on the regular staff (excluding MD administrators), Kerr had 18 supporters, 16
of whom signed the petition — representing 80% — who were strongly opposed to
Kerr’s layoff; thus, well over three-quarters of the regular Medical Staff had
indeed spoken up, which Sweet had to have known but elided. [Although Bouvier’s layoff was rescinded and
he went on to become the City’s highest-paid employee, Kerr’s layoff wasn’t
rescinded.]
In addition,
despite the environment of fear among LHH staff resulting from the culture of
intimidation generated by LHH’s administration, all six members of the Hospice
team risked their careers by signing and submitting a letter of support
opposing Kerr’s layoff. Along with
Rivero, the Hospice’s nurse manager, its social worker, and Dr. Monica
Banchero-Hasson and Dr. September Williams also risked their careers by
publicly testifying against Kerr’s layoff at a meeting of a Health Commission
subcommittee — LHH’s so-called Joint Conference Committee made up of senior
hospital administrators and three Health Commissioners.
Dr. Williams — a
nationally recognized expert on Ethics, and a member of LHH’s Bioethics
Committee — stated during the LHH-JCC’s March 23, 2010
meeting that she “protests the layoff of Drs. Kerr and Rivero because it will
impact the provision of quality care to Laguna Honda’s most vulnerable and
needy residents, and is against the principles of beneficence.” Sweet had to have known of the groundswell of
support by those who, in fact, did speak up defending Kerr.
Third, Sweet also
misreported the sequence of Kerr’s lay off and the timing of filing of his
whistleblower complaints. Sweet sloppily
reported Kerr had filed a whistleblower [law] suit “the day after his layoff … ‘alleging’ that his investigation of the
drained Patient Gift Fund was the reason he was laid off.”
Sweet had to have
known Kerr wasn’t making a mere “allegation,” since many of LHH’s physicians
knew of the problems with the patient gift fund. The major story that Sweet completely elided
from her memoir and which she had to have known of, was that everyone —
including doctors on LHH’s medical service — knew Kerr was being eliminated in
an act of retaliation.
In fact, the
timeline shows that Kerr and Rivero submitted their patient gift fund
whistleblower complaint to the Ethics Commission at 12:02 p.m. on March 4,
2010, which was promptly faxed to San Francisco’s District Attorney. Two hours later, Dr. Riley confirmed during a
Medical Staff meeting that the only planned physician cut was a previously
announced cut of a half-time position that wasn’t Dr. Kerr’s position.
But
three-and-a-half hours later on the same day, March 4, Kerr’s Union (the Union
of American Physicians and Dentists) was informed by LHH’s H.R. department that
Kerr would be receiving a permanent layoff notice. Kerr was orally notified of his layoff on
Monday, March 8 and was handed the printed layoff notice that was signed on
Friday, March 5. It was ten days later —
not one day later under Sweet’s misuse of literary license — when Kerr filed a
Whistleblower Retaliation Complaint (not a lawsuit) with San Francisco’s Ethics
Commission. Sweet should also have known
that it was fully eight months later, on November 16, 2010, when Kerr filed his
wrongful termination lawsuit in Superior Court, not the day after receiving his
layoff notice, as she deliberately misreported.
Lightning Strikes Twice
The wrongful
termination of Kerr in 2010 follows on the heels of Laguna Honda Hospital’s
wrongful termination of Dr. John Ulrich, Jr. in 1998. Ulrich — who had also spoken up in 1998 about
patient care during a Laguna Honda medical staff meeting and called the health
department’s decision to cut two medical staff positions “an injustice to
patients” — was summarily terminated by Laguna Honda Hospital, just as was Dr.
Kerr. Ulrich was forced to sue the City,
after the state medical board had cleared him of any medical wrongdoing and
found no problems with Ulrich’s care of patients.
Ulrich, whose case
had advanced to jury trial, won a $4.3 million judgment in federal court in
2004, subsequently reduced to a $1.5 million negotiated settlement. As the Pittsburgh
Post-Gazette newspaper reported in its June 24, 2004 issue, a U.S.
District Court of Northern California jury concluded that LHH “had violated
Ulrich’s first amendment rights to free speech, and denied him a fair hearing
to clear his name.”
Strikingly, the
then San Francisco City Attorney spokesperson, Matt Dorsey, claimed in 2004
that Ulrich’s dismissal was “not an instance of reprisal.” Dorsey went on to claim there was “not a
shred of credible evidence to indicate wrongdoing on the part of the City.” Dorsey foamed, “We consider this outcome
[Ulrich’s award] an aberration.”
A decade later,
Dorsey is still the City Attorney’s spokesperson. Given Kerr’s settlement, it’s clear Dorsey
may be unable to distinguish an aberration from a clear pattern.
Given Kerr’s
precedent-setting settlement award, it’s also clear there is a past- and
current-practice pattern documenting that LHH’s senior management engages in
wrongful termination and willful retaliation against employees who exercise
their First Amendment rights to free speech.
The pattern isn’t
limited to just Laguna Honda Hospital; it happens all too frequently in many
City departments.
The Costs of 100% Retaliation
The Ethics
Commission did nothing to protect
Kerr’s career after
he submitted his patient gift fund whistleblower complaint with Dr.
Rivero. Instead,
he was told to get a lawyer, and Ethics took two years to complete
investigating Kerr’s complaint.
“In retrospect, a lawsuit was our only hope,
because Ethics hasn’t sustained a single whistleblower retaliation claim since
it was founded, not one,” Kerr laments.
“Many studies show that reprisals against whistleblowers are common,
with retaliation rates up to 90%. But
with San Francisco’s Ethics Commission, the retaliation rate is always zero,”
Kerr says.
Kerr was referring to the fact that in November
2012 the City Attorney’s Office reported that between 2007 and 2012, the City
settled 103 cases involving prohibited personnel practices for a total of $11
million, including wrongful, retaliatory termination; racial-, age-, and
disability-discrimination; sexual harassment; and other prohibited personnel
practices.
Despite the City Attorney having concluded that
at least 13 wrongful termination settlement cases have cost the City $1.3
million since 2007, San Francisco’s Ethics Commission has dismissed every
whistleblower retaliation complaint filed at Ethics. Ethics has “dismissed” at least 18 cases
alleging prohibited retaliation, for a 100% “clearance” rate, hoping to suggest
there is zero retaliation against City employees. Studies show that nationwide, retaliation
against whistleblowers is common, with rates up to 90%.
Only in San Francisco would our Ethics Commission
dismiss every retaliation complaint received, claiming that zero retaliation
ever occurred. Despite Ethics’ nonsense
that there have been zero retaliation cases, it appears that, in fact, San
Francisco may well have a 100% retaliation rate.
Prominent San
Francisco open government, public-interest, and accountability advocate James
Chaffee — who was an inaugural member of San Francisco’s Sunshine Ordinance
Task Force serving as its first Vice Chair, and is now affiliated with San
Francisco’s ad hoc Sunshine Posse —
wrote to the Board of Supervisors on March 30, 2013, noting “Dr. Kerr’s
case has many themes that reverberate throughout City Hall — the influence of
private money; the misapplication of purpose of the money; the automatic
defense of incompetent administrators; and, most of all, the acceptance of
corruption as ‘business as usual,’ all the way to the top.”
Drs. Kerr and
Rivero, for their part, hope some public benefit will come from the delayed
justice they have endured.
As William Bennett
Turner, a faculty member who teaches courses on the First Amendment at U.C.
Berkeley noted in his book “Figures of
Speech: First Amendment Heroes and Villains” published last year, First
Amendment heroes are those who say what they believe, and have the courage to
face the consequences.
Villains — such as
the defendants in Kerr’s lawsuit — are those who want to suppress free speech
that they disagree with.
Kerr and Rivero
accidentally became First Amendment heroes.
We owe them a debt of gratitude for risking their careers exposing fraud
and corruption, and for advocating on behalf of LHH’s patients, who are often
the poorest of the poor.
Kerr’s monetary and
non-monetary settlement awards don’t begin to adequately reimburse him for the
damage to his and Rivero’s careers. But
there’s a vast community grateful for his and Rivero’s courage to speak out.
Monette-Shaw
is an open-government accountability advocate, a patient advocate, and a member
of California’s First Amendment Coalition.
Feedback: monette-shaw@westsideobserver.com.
Postscript: The City and LHH’s CEO, Mivic Hirose, Still Don’t Get It
On March 26, 2013 —
at the same hour that the Board of Supervisors voted to finally approve Kerr’s
monetary and non-monetary settlement terms — Drs. Kerr and Rivero, and this
reporter, instead attended a meeting of the LHH-JCC (Joint Conference
Committee), consisting of three Health Commissioners and LHH’s senior
leadership, which meets every other month.
Public testimony presented during last Tuesday’s meeting is located here.
Following Hirose’s
customary Executive Administrator’s report, the JCC took public comment. Kerr, for his part, testified that bullying
and getting rid of whistleblowers is both counter-productive and illegal. As he began to testify that his retaliation
settlement agreement requires that LHH’s Executive Committee be provided a
one-hour training on employee’s whistleblowing and First Amendment rights —
which training Kerr feels should be expanded to all LHH senior managers —
Hirose began to openly smirk, just seconds after I took this photo.
You’d think that having being paid $227,771.94 in calendar year 2012,
Hirose would know that CEO-level etiquette doesn’t include smirking inappropriately.
I blurted, quite
out of order, “There’s nothing funny about this Mivic, why are you
smirking?” She quickly wiped the smirk
off of her face, glaring at me, obviously not contrite. Hirose clearly doesn’t get it, or seem to
understand the gravity of the $750,000 settlement plus the City Attorney’s
hefty legal fees spent defending the pretext that Hirose, Katz, and Riley were
innocent of retaliatory termination.
Maybe she thinks money grows on trees in LHH’s new orchard.
Next, Dr. Rivero testified on March 26 that a recent Coalition on
Compassionate Care award to LHH’s Hospice and Palliative Care Service
tells a different story than Hirose’s and LHH’s new press release . Rivero noted that the award honors 25 years
of hospice care, which couldn’t have happened without Kerr’s 21 years as
Hospice physician. Rivero testified that
it is shameless self-promotion to aggrandize LHH and Anne Hughes, RN, by
ignoring the founder of the hospice program, Dr. Kerr.
Later, I testified that the City’s and Defendant’s
defense pretext that Hirose was innocent is over, or Kerr’s settlement deal
would never have been reached. Hirose
has clearly cost taxpayers over $1 million — at minimum — between Kerr’s
$750,000 settlement and the $350,000 ordered restored to LHH’s patient gift
fund.
I testified that the Health Commission should
recommend that DPH terminate Hirose at once, the sham of her “I’m innocent!”
pretext being over.
But there were just more smirks and blank stares all around
the table.
As Mr. Chaffee has noted, the acceptance of corruption
as “business as usual, all the way to the top,” is what runs San Francisco’s
so-called “City Family.” Just ask the
current mayor. Or our former mayor,
Willie Brown, who both probably view the $11 million in prohibited personnel
actions and wrongful termination settlements awarded during their tenures as
mayor — and the ensuing damage to the careers of innocent employees — to just be
a cost of doing corrupt business-as-usual.
Between corrupt friends, perhaps $11 million is considered chump change.