Whidbey General Hospital coughs up cash for cleared nurse’s legal fees

Whidbey General Hospital paid its chief nursing officer’s legal fees in defending against a gross-misdemeanor criminal charge of which she was found not guilty.

The bill totaled about $250,000.

The hospital will likely be repaid under a state fund that reimburses attorney’s fees for people charged with assault who are found to have acted in self defense. The fact that the public hospital was paying Chief Nursing Officer Linda Gipson’s legal fees came out in court last Thursday.

A jury found Gipson not guilty in April following a trial that was unique to district court in its length and complexity. Gipson had been accused of assaulting a mentally ill patient who was in restraints at the hospital, but the jury found that she had acted lawfully.

Her attorney, Andrew Schwarz of Seattle, asked Island County District Court Judge Bill Hawkins to reimburse her from the fund and the judge agreed, despite the prosecutor’s objection.

Gipson didn’t attend the hearing.

Until last Thursday, Schwarz didn’t disclose to the prosecution that the hospital paid almost all of his bills. His billing statements excluded the name of the “third party payer,” according to Island County Prosecutor Greg Banks.

Banks said he doesn’t know if that means the hospital or its insurance carrier paid the bill, but he said it should have been a transparent decision by hospital officials if they decided to fund a public official’s criminal defense. He pointed out that state law forbids public entities to gift individuals with public funds.

State law specifically allows public agencies to defend public employees in lawsuits, but criminal cases are different, he said.

Banks said he researched the issue and, so far, has found only one instance — a 1998 case in Illinois — in which a public entity paid for the criminal defense of public officials.

Mark Rapozo, a deputy director at the state Auditor’s Office, said he would ask basic questions, like how the decision was made to pay Gipson’s bills and how the hospital’s legal counsel was involved, if he were to conduct an audit.

Hospital spokeswoman Trish Rose responded in an email Tuesday which called the judge’s decision “a really strong ruling” that will result in the hospital and Gipson being reimbursed for defending “her good name.”

Hawkins ruled Thursday that Gipson should be reimbursed from the state fund. Hawkins said he wasn’t surprised by the size of the bill because of the serious implications the case could have had on Gipson’s career and the medical community at large.

Schwarz’s $300-an-hour attorney fee was reasonable, he said.

“A guilty verdict would have sent a shockwave across the health care community in the state, if not beyond,” he said, adding, “the stakes were very high.”

Hawkins’ wife is a nurse who works under Gipson. The prosecutor previously asked him to recuse himself from the case, but Hawkins refused.

After the hearing, Schwarz said he agreed with Hawkins’ conclusions about the effect a conviction would have had on the medical community, particularly when it comes to dealing with difficult patients. He said it would have made it difficult for mental-health patients to get medical help since caregivers would be hesitant to deal with them if they might be charged with a crime.

He said the prosecutor’s decision to charge Gipson was “tremendously foolish.”

Banks said he stands by his office’s “carefully considered decision.” He said medical experts they consulted, and three Whidbey General Hospital nurses who testified, felt it was an assault. Hawkins himself found there was probable cause to file the charge and twice rejected defense motions to dismiss the case.

Thursday, Hawkins said the point of the reimbursement fund is to put prosecutors “on notice” that there are consequences for acting recklessly or unfairly in charging someone with assault if he or she was acting in self defense.

Deputy Prosecutor Jacqueline Lawrence argued that Gipson doesn’t qualify to receive the reimbursement because it wasn’t really a self-defense acquittal. She said the jury found, under the jury instruction, that Gipson had used lawful force but not that she was defending herself or others.

The statutes don’t address the restraint of a mental-health patient.

She also argued that Gipson didn’t qualify for reimbursement since the hospital had already paid most of the bill. She pointed out that Schwarz didn’t present a contract or any paperwork to show that the hospital paid the bills or that the reimbursement money would be paid back to the public entity.

In addition, Lawrence said, the bill is excessive, especially for a district court case.

Hawkins disagreed with the deputy prosecutor. He noted that she didn’t object to the jury instruction, which was used in courts for many years. He said the statutes regarding the reimbursement fund should be interpreted broadly.

He said Gipson didn’t waive her right to be reimbursed because someone else paid the bill. He said it’s very common for family members, for example, to pay for someone’s legal defense.

“Seldom is it the client who pays the bills,” he said.

He also said he wasn’t surprised to learn that Gipson’s employer paid for her legal defense. He suggested that the hospital’s “malpractice carrier” may have covered the cost.

He argued that the county would cover legal fees if a county official had been sued; he didn’t, however, seem to see the distinction between civil and criminal cases. Banks pointed out after the hearing that the county would not pay the legal defense of a county official accused of a crime.

As to the size of the bill, Hawkins said that the prosecution didn’t question any particular line items in the bill. Lawrence said she just received the large billing statements the previous Friday and didn’t have the time to go through them thoroughly.

Hawkins, however, said he had. He said he questioned the soundness of Schwarz’s decision to ask him to dismiss the case based on alleged improprieties of the Coupeville marshal and prosecutor, as well as the media attention. Hawkins did not agree to dismiss the case.

He said Gipson would not have been able to have her attorney’s fees reimbursed if the case had been dismissed. As a result, he said Schwarz would not be reimbursed for the time it took to prepare the motion or argue it in court.

Hawkins awarded Gipson $256,000 from the state reimbursement fund. The attorney fees include the cost of expert witnesses who testified at trial.

Banks said he hasn’t decided whether he will appeal the decision. He said he contacted the state Attorney General’s Office about the issue.