Whidbey hospital CEO grilled in court, prosecutor questions testimony

Whidbey General Hospital CEO Tom Tomasino testifies in Island County District Court Tuesday.

Two administrators at Whidbey General Hospital gave conflicting testimony under oath during a court hearing Tuesday over how they handled an assault allegation against a fellow administrator.

Moreover, under questioning by the judge, one of the administrators, CEO Tom Tomasino, could not explain what authority he had to place the other administrator on paid administrative leave and then allow her to come back to work without ever starting a disciplinary investigation into an allegation that she assaulted a restrained patient.

He testified that the only hospital investigation into the alleged conduct — which led to an assault charge — was done under a secretive quality assurance program — also referred to as a quality improvement program — which means the decision-making process is cloaked from the public’s view.

Island County Prosecutor Greg Banks, who observed the hearing, said he was outraged at the secrecy and lack of accountability within the hospital’s management.

“Completely separate from this criminal case, the public should be concerned that the hospital administration has gone to great lengths and expense to hide its inquiry into alleged official misconduct,” he said after the hearing.

“Any allegation of misconduct by upper management will apparently be investigated behind closed and locked doors. The public will never know how the investigation was done or what the result was. As a lawyer who advises a public client, and as a public official, I could not square such practices with my fundamental duty of public accountability.”

In the middle?

Even though District Court Judge Bill Hawkins ultimately ruled in favor of the hospital’s arguments, he said that questions over the administrators’ actions may “raise collective eyebrows and resonate with parts of the community.”

The lengthy hearing in district court was the second one to address Deputy Prosecutor Jacqueline Lawrence’s subpoena of the hospital’s internal documents related to an assault allegation against Linda Gipson, the chief nursing officer at the hospital.

The hospital administration hired two different Seattle law firms to fight the prosecutor’s subpoena. A hospital spokesman didn’t respond by press time to an inquiry on how much the issue has cost the hospital in attorneys’ fees.

Gipson is facing a fourth-degree assault charge for allegedly assaulting a mental-health patient while the patient was in restraints May 13, 2014; the alleged victim, several nurses who witnessed the incident and Gipson offered differing accounts of exactly what occurred, according to court documents.

Gipson’s attorney, Andrew Schwarz of Seattle, said in an interview Thursday that he’s not taking sides in the issue over how the hospital administration handled the allegations. But he said his client is completely innocent and has been unfairly caught in the middle of an ongoing dispute between law-and-justice officials and hospital administrators, apparently over how mental-health patients should be handled.

“This has been an atypical case in every respect,” he said.

He previously said that the prosecutor and sheriff’s office are politically motivated in going after Gipson.

Testimony

The hospital argued that notes and reports created during an investigation into the assault allegations were done within a quality assurance program that the law specifically exempts from public disclosure rules.

Both Hawkins and Deputy Prosecutor Jacqueline Lawrence questioned whether the quality assurance process was performed in accordance with the law, or whether it was an attempt to skirt public records law. Hawkins said he would have expected a disciplinary or human-resources investigation into an allegation of employee misconduct; such investigations are normally public documents and discloseable.

Hawkins ordered hospital administrators to testify about the program to examine whether the program was proper under law.

On the stand, Tomasino said he didn’t initiate a human-resource or disciplinary investigation because Teresa Fulton, chief quality officer, verbally advised him it was not necessary. He said he normally waits until the quality assurance committee completes its investigation and makes a recommendation before deciding whether any further investigation is necessary.

Fulton, in contrast, took the stand and said she did not make any such recommendation, that it’s not her role or the role of the program to make such recommendations.

“I make no recommendations for disciplinary action,” she said.

But she did say she advised Tomasino to place Gipson on administrative leave.

Banks said he was shocked by the discrepancies.

“Tomasino and Fulton clearly didn’t get their stories straight before they testified,” he said.

Judge’s rebuke

Tomasino also said he didn’t investigate the assault allegations because the alleged victim didn’t make a complaint. He said he wasn’t aware that the police were investigating the allegations until “the newspaper” called the hospital for comment.

Afterward, Banks opined that it was “preposterous” for Tomasino to claim he didn’t know that the woman had made allegations or to expect a mental-health patient to go to the hospital CEO directly to lodge a formal complaint.

Hawkins also questioned Tomasino, focusing on the fact that he placed Gipson on paid administrative leave. Hawkins pointed out that an employee cannot be placed on leave under the quality assurance program. He questioned how Tomasino could place someone on leave without opening an human resources or disciplinary file on the issue.

Tomasino repeated that he is the CEO, but Hawkins countered that he has to have a reason.

“You can’t just randomly place people on administrative leave,” he said.

Tomasino said he was sure he was within his power but he would have to review hospital policy to cite the authority.

Lawrence also questioned Fulton about an unrelated case in which an employee was accused of impersonating a nurse and forging prescriptions. In that case, she pointed out, Fulton investigated and handed over her investigation to the police; she asked why Fulton handled the case so differently than the Gipson case.

Fulton explained that she wasn’t investigating as a quality officer but as a department manager in the fraud case. She said she took that route because she had clear evidence of the forgery from a pharmacy.

But Banks said the case shows that hospital administrators have a double standard when it comes to allegations of misconduct; he said fellow administrators are protected while others in the hospital are scrutinized.

“They close ranks,” he said. “It’s complete cronyism.”

Lazy tactics

Both Fulton and Tomasino testified about the importance of keeping the information generated through the quality assurance program secret. Fulton said hospitals need to be able to have frank discussions without fear that information could be used against them in litigation.

Hawkins initially said he was leaning toward looking at the documents himself in camera — in private — but the hospital’s attorneys and Schwarz convinced him not to.

Donna Moniz, a Seattle attorney representing the hospital, questioned why the deputy prosecutor would want the reports since she was free to interview all the witnesses herself. She said it was “a lazy way” to get information and not adequate justification for violating an important protection in law.

Lawrence said the early interviews would be a valuable tool in checking the credibility of witnesses.

Banks pointed out after the hearing that the prosecution isn’t really free to interview all the witnesses; Fulton interviewed Gipson, but Gipson has chosen not to speak with police or the prosecution.

In addition, Banks said investigators have had trouble speaking with hospital employees. Some don’t want to talk because they support Gipson while others are afraid of retribution from hospital administrators if they cooperate with the prosecutor, he said.

Judge’s ruling

Schwarz, however, pointed out that the people who Fulton interviewed were under the presumption that their testimony would be a confidential part of a quality assurance process; opening up the records would have a chilling effect on the ability of the program to be effective in the future.

The hospital’s attorneys also argued that the documents were protected by attorney-client privilege, though the issue wasn’t debated at length because it proved to be unnecessary.

In the end, Hawkins ruled that the shields protecting the information were too important to breech. He ruled that the hospital didn’t need to release the documents but that the names of those who were interviewed should be produced.

Banks conceded that Hawkins’ legal analysis was probably correct, but that the hospital administration’s use of the quality assurance process to shield a colleague from the public they serve was bizarre and unfortunate.

“They don’t seem to have internalized what it means to be a public servant,” he added.

Tomasino and Fulton declined to comment due to ongoing litigation.