Two administrators from Whidbey General Hospital gave conflicting testimony during a court hearing Tuesday over how they handled an assault allegation against chief nursing officer Linda Gipson.
Under questioning by the judge, hospital CEO Tom Tomasino also could not explain what authority he had to place the administrator on paid administrative leave and then allow her to return to work without ever launching a disciplinary investigation into an allegation she assaulted a restrained patient.
Tomasino testified that the only hospital investigation into the alleged incident — which led to an assault charge — was done under a secretive quality assurance program, also referred to as a quality improvement program.
ISLAND COUNTY Prosecutor Greg Banks said he was outraged at the secrecy by hospital management and lack of accountability.
“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,” Banks 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.”
ALTHOUGH DISTRICT Court Judge Bill Hawkins ruled in favor of the hospital’s arguments, he said 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 to address Deputy Prosecutor Jacqueline Lawrence’s subpoena of the hospital’s internal documents related to an assault allegation against Gipson.
Hospital administrators hired two 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 FACES a fourth-degree assault charge for allegedly assaulting a mental-health patient who was in restraints May 13, 2014; the alleged victim, several nurses who witnessed the incident and Gipson gave differing accounts of 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’s and sheriff’s offices are politically motivated in going after Gipson.
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.
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 would normally be a public document and disclosable.
The judge 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 resources or disciplinary investigation because Teresa Fulton, chief quality officer, advised him it was not necessary. Tomasino said he normally waits until the Quality Assurance Committee completes an investigation and makes a recommendation before deciding whether further investigation is needed.
Fulton, however, testified that she made no such recommendation; she said it’s not her role nor the role of the committee.
“I make no recommendations for disciplinary action,” she said.
Fulton said she advised Tomasino to put 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.
TOMASINO ALSO said he also didn’t investigate the assault allegations because the alleged victim didn’t make a complaint and he wasn’t aware the police were investigating the allegations until “the newspaper” called the hospital for comment.
Banks said he finds it “preposterous” for Tomasino to claim he didn’t know the woman had made allegations or to expect a mental-health patient to go to the hospital CEO to lodge a formal complaint.
Hawkins also questioned Tomasino, focusing on the fact that he placed Gipson on paid administrative leave.
An employee cannot be placed on leave under the quality assurance program, Hawkins pointed out. He questioned how Tomasino could place someone on leave without opening an HR or disciplinary file.
“You can’t just randomly place people on administrative leave,” Hawkins said.
Tomasino said he was sure he was within his power but he would review hospital policy to cite the authority.
LAWRENCE ASKED Fulton about an unrelated case in which an employee was accused of impersonating a nurse and forging prescriptions. In that case, she said, Fulton handed over her investigation to the police. Lawrence asked why Fulton handled the case against Gipson so differently.
Fulton explained that she wasn’t investigating as a quality officer, but as a department manager in the unrelated case.
Fulton said she took that route because she had clear evidence of the forgery from a pharmacy.
Banks said 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.”
FULTON AND Tomasino testified about the importance of keeping the information generated through the quality assurance program secret.
Hospitals must be able to have frank discussions without fear that information could be used against them in litigation, Fulton said.
Hawkins initially said he leaned toward looking at the documents himself in camera — in private — but the hospital’s attorneys and Schwarz convinced him otherwise.
Donna Moniz, a Seattle attorney representing the hospital, questioned why the deputy prosecutor would want the reports since she was free to interview witnesses herself. She called it “a lazy way” to get information and inadequate justification for violating a protection in law.
Early interviews would be a valuable tool in checking the credibility of witnesses, Lawrence argued.
After the hearing, Banks noted that the prosecution isn’t really free to interview all witnesses; Fulton interviewed Gipson, but Gipson has chosen not to speak with police or prosecutors.
Also, investigators have had trouble speaking with hospital employees, Banks said. Some don’t want to talk because they support Gipson, and others expressed fear of retribution by hospital administrators if they cooperate with the prosecutor
SCHWARZ AGREED with the hospital’s attorneys. He emphasized that the people 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 argued that the documents are protected by attorney-client privilege, though the issue wasn’t debated at length because it proved unnecessary.
Hawkins ruled that the shields protecting the information are too important to breech. He said it wasn’t his place to decide on the wisdom of doing an investigation under a quality assurance program, but that it was clear that it was done within the program — and so must be protected.
Banks conceded that Hawkins’ legal analysis is probably correct, but that the hospital administration’s use of the quality assurance process to shield a colleague from the public they serve is bizarre and unfortunate.
“They don’t seem to have internalized what it means to be a public servant,” Banks said.
A hospital spokesman said Tomasino and Fulton could not comment because of pending litigation.
