The wheels of justice would seem to be rolling in favor of neurosurgeon David Newell, MD, in Seattle, Washington.
Dr Newell had accused fellow neurosurgeon Johnny Delashaw Jr, MD, in 2015 of trying to steal his thriving practice at their former place of employment, Swedish Neuroscience Institute (SNI), part of the Swedish Health Services system. According to court records, Dr Newell took his cause to the administration, which had heard plenty of complaints about Dr Delashaw from nurses and physicians, one of whom called out his “tactics of aggression and intimidation.”
The Washington state medical board heard complaints, too. In May, it suspended Dr Delashaw’s license, saying that his “disruptive behavior to staff created a danger to the public safety and health.”
That qualifies as one measure of vindication for Dr Newell.
He also contended that Swedish Health Services fired him in September 2016 because he had blown the whistle on Dr Delashaw, who had chaired SNI at the system’s Cherry Hill campus. A state judge heard Dr Newell’s arbitration claim and in August awarded him $17.5 million in damages, $16.5 million for lost earnings, and $1 million for emotional distress. And last month, a state judge upheld the award after SNI had contested it. More vindication.
However, that legal victory comes at a wrenching price for Dr Newell. SNI has challenged the arbitration award by doubling down on its original argument ― that it had fired Dr Newell not for his whistleblowing, but for failing to disclose that he had been arrested and for soliciting an undercover police officer who was posing as a prostitute. Dr Newell, who pleaded guilty to one count of sexual exploitation, a misdemeanor, now faces his own date before the state medical board.
Medscape Medical News did not receive any response to repeated requests for comment from Dr Newell, Dr Delashaw, or their attorneys.
“Disruptive and Toxic Atmosphere”
The charges against Dr Delashaw issued by the Washington Medical Quality Assurance Commission (MQAC), that state’s medical board, encapsulate many of the whistleblowing complaints that Dr Newell and others made to SNI and that the Seattle Times revealed in a series of investigative articles.
Dr Delashaw routinely intimidated subordinates at SNI, particularly nurses, by yelling, screaming, swearing, turning red in the face, and shaking his finger at them, the MQAC alleged. “I could feel his spit land on my forearms,” one nurse told the MQAC in a written statement about an alleged “rant.” The intimidating behavior sometimes occurred when nurses pointed out a mistake of Dr Delashaw’s or asked him to clarify mumbled instructions in the operating room, according to the MQAC. His behavior discouraged staff from asking him questions, which “put patients at risk of medical error,” the MQAC said.
Likewise, the MQAC said that Dr Delashaw discouraged staff from reporting errors to hospital administrators. In one instance, he explicitly asked a nurse not to complete any error reports on him, his neurosurgery fellows, or his patients. He also demanded that another nurse be disciplined for reporting “his practice of scheduling multiple surgeries at once.”
Concurrent or double-booked surgeries, often done without patient consent, were a sore point at SNI, not just for Dr Delashaw but also for other neurosurgeons there. The Seattle Times reported that between 2014 and 2016, Dr Delashaw and Dr Newell ranked number two and three for the most neurosurgeries ― 683 and 534, respectively ― in which more than half the procedure time overlapped. Concurrent surgeries were considered symptomatic of a high-volume regime instigated by Dr Delashaw.
In an email to the Seattle Times, Dr Delashaw said there were “no measurable differences in outcomes…between surgeons staggering rooms and those that choose one room.” Furthermore, attending surgeons were generally assisted by board-eligible peers, but never by residents.
In August, Swedish tightened its policy on concurrent surgeries by requiring that the primary attending surgeon be present for the substantial majority of the surgical procedure phase, although the patient preparation and closure phases could be delegated.
The MQAC said that the “disruptive and toxic atmosphere” created by Dr Delashaw had another harmful effect. It caused many nurses, some of whom were long-term employees, to resign or transfer from SNI to other Swedish facilities, leaving patients with less experienced nurses and thereby putting them at risk. (In a letter to a Swedish administrator filed in the court record, one physician put the number of staff departures, including physicians, nurses, and administrators, over a 2-year stretch at 62.)
Dr Delashaw, who awaits an MQAC hearing on the charges next January, has challenged his license suspension as unfair. His attorneys contend that MQAC succumbed to pressure from the Seattle Times articles and state lawmakers to crack down even though the facts didn’t warrant suspending his license. They attribute nurse unrest and turnover largely to “workload issues.” Contrary to “outdated” complaints from nurses who harbored a “personal agenda,” Dr Delashaw was not a screamer or shouter, but someone who tried to get along with his colleagues, according to his attorneys. They marshalled testimonials from clinicians who wrote that they never witnessed Dr Delashaw raising his voice or engaging in workplace violence. “I never saw him act unprofessionally with anyone,” wrote one physician assistant. “Dr Delashaw made every effort to have positive working relationships with all staff members.”
Dr Delashaw’s attorneys also attack the charge that their client poses an immediate threat to public health. Just the opposite, they argue. During his time at SNI, his mortality rate for cranial and spine cases was well below the norm, and his readmission rate was at the norm, according to his defense team, which called him “one of the safest surgeons practicing at SNI.”
An Odd Video Recording
Dr Delashaw joined SNI in 2013 and became its chairman in January 2015. Dr Newell, a cofounder of the institute, was an early member of the chorus that complained about Dr Delashaw’s conduct, according to a court brief filed by his attorneys for the arbitration hearing. Dr Delashaw allegedly retaliated against Dr Newell by stealing his network of referring physicians, disparaging his abilities, and attempting to push him out along with other older SNI surgeons, which Dr Newell characterized as age discrimination (Dr Newell was born in 1954; Dr Delashaw in 1957).
The court brief states that Dr Newell reported this treatment to his superiors. One allegation stands out for its oddness ― Dr Delashaw secretly video-recorded a meeting with Dr Newell in which he announced that he was taking over the other physician’s office, and then played the recording to colleagues so they could see Dr Newell’s reaction to the news.
In October 2016, shortly after Dr Newell was fired, neurosurgeons at SNI ― minus Dr Delashaw ― met with administrators to voice the very complaints made by their former colleague. According to minutes of the meeting entered into the court record, they said that Dr Delashaw had, among other things, stolen patient referrals; created a hostile work environment with threatening, bullying behavior; and jeopardized patient safety by retaliating against anyone who questioned his quality of care. And when clinicians had raised these sore points with administrators in the past, they often encountered “inaction, and in some cases, intimidation and fear of retribution,” according to meeting minutes.
“We essentially feel zero confidence in his ability to self-correct and return to a position of trust amongst the group,” the surgeons were quoted as saying about Dr Delashaw. They said they wanted him to resign, which he did on March 3, just weeks after the Seattle Times published an investigative report about the troubles at SNI, titled “High Volume, Big Dollars, Rising Tension.”
Before the story ran, Dr Delashaw defended himself in an email to the Seattle Times. He attributed the complaints about him to disgruntled clinicians who were resistant to a “change in culture” he was promoting at SNI, a change that included the recruitment of “surgeons with national reputations.”
“While I expect excellence and unswerving commitment to our goals, I am not a bully and have not produced an intimidating atmosphere,” he wrote.
After the story was published, Dr Delashaw called it “grossly misleading, unfair and inaccurate,” in a filing with the MQAC.
“Embarrassed by His Mistake”
While Dr Delashaw’s license remains suspended, Dr Newell continues to practice. Although no longer a Swedish employee, he performs surgeries at the Swedish Medical Center-Cherry Hill campus, where he is still a member of the medical staff.
He won his whistleblower case against Swedish Health Services and its parent organization, Providence Health and Services, but his personal reputation went through a judicial wringer in the process. Swedish Health argued that it fired Dr Newell only because he had failed to report being arrested on July 11, 2016, during a prostitution sting set up by police.
Dr Newell doesn’t dispute the basic facts of that case. He was one of 204 men whom police arrested over a 10-day period for offering money to female undercover officers for various sexual services. The catch, conducted at a front business called the Euro Spa, included another surgeon, a dentist, a nurse, a journalist, several attorneys, and six architects, the Seattle Times reported.
Dr Newell pleaded guilty to sexual exploitation and accepted a deferred sentence “in exchange for community service, fines and counselling,” his attorneys said in a court brief. “Dr Newell is embarrassed by his mistake and has devoted much energy to mend his relationship with his family following the incident.”
What is in dispute is what Dr Newell’s employment agreement required him to do after he was arrested. Swedish Health points to language stating that a physician must report if he or she becomes the subject of a criminal investigation, and that the failure to do so allows the system to fire the physician immediately. Dr Newell, they said, triggered that guillotine by not reporting his arrest (Swedish Health learned about it from the state medical board). Dr Newell’s attorneys countered that neither the Seattle Police Department nor the city attorney informed their client after the arrest that a criminal investigation was underway. And the employment agreement, they said, contains no requirement to report an arrest.
Swedish Health sought to overturn Dr Newell’s arbitration victory in a state court. “For this arbitrator to award Dr Newell $17.5 million ― at a time when many people cannot afford healthcare or fear losing their insurance, and when there is an epidemic of sex trafficking and exploitation of women ― is unconscionable and outrageous,” said Swedish CEO Guy Hudson, MD, in a news release (a Swedish spokesperson told Medscape Medical News that the system had no comment to make on the facts of the case beyond Dr Hudson’s statement).
Swedish Health alleged in its lawsuit that the arbitrator exceeded her powers in how she calculated damages, exhibited partiality toward Dr Newell, and made other judicial missteps. The health system asked the court to vacate the award and grant another arbitration hearing before a new judge, or else scale down the size of the award. Dr Newell’s attorneys call Swedish Health’s attacks on the arbitrator “unfortunate and untrue” and paint the health system as a sore loser that “disregards the sanctity of arbitration awards.”
On October 18, a state judge confirmed Dr Newell’s award and denied Swedish Health’s motion to vacate or revise it, saying the arbitrator had acted properly. A Swedish Health spokesperson told Medscape Medical News the system intends to appeal the decision.
Thus, Dr Newell’s case and all its unsavory details will grind their way further through the legal system. In addition, he has a hearing on December 15 before the MQAC to defend himself against the charge of unprofessional conduct, which can be “any act involving moral turpitude, dishonesty, or corruption relating to the practice of the person’s profession,” according to state law. Such a violation constitutes grounds for the MQAC to discipline Dr Newell and impose sanctions. Commission records show that Dr Newell is seeking a dismissal of the allegations against him.
Follow Robert Lowes on Twitter @LowesRobert
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