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Eugene D. Lee (SB#: 236812) LAW OFFICE OF EUGENE LEE 555 West Fifth Street, Suite 3100 Los Angeles, CA 90013 Phone: (213) 992-3299 Fax: (213) 596-0487 email: [email protected] Attorney for Plaintiff DAVID F. JADWIN, D.O.

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FRESNO DIVISION

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DAVID F. JADWIN, D.O.,

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Plaintiff, v.

Civil Action No. 1:07-cv-00026 OWW TAG DECLARATION OF DAVID F. JADWIN IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [Fed. R. Civ. P. 56(a)]

COUNTY OF KERN, et al.,

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Defendants.

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Date: January 12, 2009 Time: 10:00 Judge: Hon. Oliver W. Wanger Courtroom: 3 Complaint Filed: January 6, 2007 Trial Date: March 24, 2009

18 19 The undersigned hereby declares as follows: 20 1.

I am the Plaintiff in this action. I was employed by Defendant County of Kern from

21 October 2000 to October 2007. 22 2.

I am making this declaration in support of Plaintiff’s Opposition to Defendants’ Motion

23 Summary Judgment. I have personal knowledge of the matters set forth below and I could and would 24 competently testify thereto if called as a witness in this matter. 25 3.

I have never threatened to take a leave of absence until the KMC medical staff and

26 administration apologized to me. Nor did I ever communicate or suggest any intention to do that to 27 Philip Dutt or anyone else. 28 USDC, ED Case No. 1:07-cv-00026 OWW TAG DECLARATION OF DAVID F. JADWIN IN OPPOSITION TO ∆’S MOTION FOR SUMMARY JUDGMENT

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I spoke with Peter Bryan in early January 2006 to request a medical leave. He specifically

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approved my request and told me I could go on my reduced work schedule leave immediately. He told

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me he would take care of having Human Resources deliver to methe paperwork required for filing of the

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request. . As it turned out, he either did not communicate this adequately to Human Resources or

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Human Resources did not act appropriately as I did not receive the paperwork until April 2006. As soon

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as I obtained the medical leave paperwork, I promptly filled it out and submitted it to Human Resources.

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I also promptly obtained a medical leave certification from my therapist and submitted that within a

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short time after. I never needed nor received any prompting from Human Resources to submit the leave

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request forms and medical certification.

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5.

I issued Fine Needle Aspiration (“FNA”) diagnoses in final form and released for

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viewing by clinicians PRIOR to sending reports out to UCLA for confirmatory review. When the

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Pathology department later received UCLA’s confirmatory reports, they were entered them into the

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KMC computer system, which automatically updates the “Completed” report date to reflect the date of

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the last modification to any report. The “Completed” date is NOT the date when I issued my own

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diagnosis to clinicians, it is more analogous to a “last modified” date. This apparent confusion over

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terminology led to suspicions that I was somehow fraudulently withholding my own diagnoses until

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UCLA issued their reports so that I could ensure 100% congruence. Nothing could be further from the

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truth. Had my accusers come to me with their suspicions, I would have been able to explain all this very

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easily.

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6.

Ms. Figueroa will testify that she did not and does not agree with Philip Dutt’s accusation

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that I improperly left out two long blades and a scalpel on the morning of 12/7/06. In fact, I was just

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beginning to prepare my workstation for that day’s work and had set the blades and scalpel out for

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anticipated work purposes. I was not “finished” with them yet, and would not be for possibly several

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more hours. The department protocol specifies that sharps should not be left on the cutting board

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(overnight) when the pathologist is finished grossing. Gallegos could not recall any instances of sharps

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being left out.

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7.

I never told Scott Ragland that “the only important information on that [October 12, 2005

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Cancer Conference] case was mine”. Rather, I had said that there were NO relevant clinical or radiologic

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issues to be discussed in this particular case and that all decisions and discussion centered upon the

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accuracy of the pathologic diagnosis. There were no pertinent clinical history or findings and there were

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no radiologic findings to present. Therefore all subsequent clinical discussion would be dependent upon

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the patient’s pathologic diagnosis, which had many processing errors and discordant final diagnoses

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rendered by four different pathology services.

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8.

At the 10/18/05 meeting, just days after the October Conference, Scott Ragland began by

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sarcastically saying “So Dr. Jadwin, Mr. Perfect, here we are again, having problems with your behavior

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again” He said that he had been chosen to give me the letter of reprimand.. I then said that I wanted

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Peter Bryan to be immediately present and was told by Eugene Kercher that this was a “medical staff

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issue” that did not need to involve the Bryan..Kercher then inappropriately shouted in a demeaning

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manner: : “David if you needed more time [for your presentation], why didn’t you tell Dr. [Albert]

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McBride beforehand?” Ragland appeared to be using the occasion to exact revenge on me for a recent

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confidential physician health report I had made regarding his suspected impaired behavior, and

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subsequently learned that Ragland had been told of my reporting, contrary to confidential procedure.

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Ragland read a letter of reprimand aloud to me in a continued sarcastic derogatory tone, which stated

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that letters of dissatisfaction from three conference participants would be placed in my file. When I

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asked to see the letters of dissatisfaction, Irwin Harris said that I could not see them. When I turned to

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address Kercher, as the President of the Medical Staff and the senior person in the room, Ragland

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condescendingly barked at me, “Don’t look at him, look at me; I am the person you need to talk to!” and

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“Noooo, don’t look at [Kercher] look at me. That’s riiight, you don’t need to look at him, you need to

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look at me.” It was utterly humiliating. Kercher and Ragland did not attend the October conference and

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were obviously acting on the basis of Harris’s and Abraham’s account of what happened at the October

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Conference. Kercher, Ragland, and Harris never gave me an opportunity to give my side of the story or

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otherwise defend myself against their accusations, and had no interest in hearing anything I would have

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said had I been anything other than speechless by the events that transpired.

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9.

Plaintiff issued a proctoring report on Philip Dutt on 1/18/06, which was completed just

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several weeksafter I had hired him. The proctoring period is analogous to a probationary period during

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which a preliminary assessment is made about the new staff’s ability to manage specimens in a

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competent manner. Given the magnitude of required knowledge to handle hundreds of different

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situations clinical and diagnostic dilemmas, it is not possible to make a full assessment of all

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competencies the candidate might require, which instead is measured by ongoing peer review..

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Regardless of proctoring, all pathology work undergoes continuous rigorous quality peer review to

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ensure that the candidate and all other members of the department handle cases appropriately. As I

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worked with Dutt more closely during the ensuing months, I was able to form a clearer, and very

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different, opinion of his performance and determined that Dutt was insecure in his pathology duties and

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functioned more like a junior pathologist or even a senior resident, than as a pathologist with several

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years experience. For instance, in an environment where there are, frankly, few difficult or challenging

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pathology cases, I eventually realized that Dutt submitted roughly 15% of his cases to a peer as

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consultation to request help with making a diagnosis (category A/all cases); that only roughly 5% of his

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cases underwent retrospective review (category C/all cases, indicating a reluctance to sign a case out

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without oversight; that roughly 15% of his cases received additional diagnostics and/or processing

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comments from other pathologists,both ((B1+C1)/(all B + all C) and (B1/all B). Based on my lengthy

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experience as a pathology chairperson, I believe Dutt had many more consultations, prospective reviews

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and discrepancies (As, Bs B1s and C1s) than would be expected for a senior or experienced

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pathologist.. Dutt was often hesitant to exercise independent judgement and, when acting alone without

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my oversight late in 2006, had made several professional errors.

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10.

Around 11/1/06, I noticed that fallopian tubes specimens were left sitting on the counter,

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without a requisition and unprocessed for several days.. I recorded this discovery in the exceptional

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event log and reported it to Dutt. He responded by erroneously implying that I was responsible because I

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had been interfering with Vangie Gallegos’s work.

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Around 11/6/06, I was not interfering with Gallegos’s work or in her work area, nor was I

creating more work for everybody as I was accused of doing. At no time did I do this. 12.

I disagree with Dutt that it would be demeaning and time consuming to have an employee

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clock in and out. Further, I did not ask that the assistant clock in and out, but rather inform me when she

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was going to be absent from the room for prolonged periods of time, a protocol that had been in place

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for years..

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13.

On or about 11/17/06, I was not escalating the situation with Dutt, blaming others or

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attacking them. To this day, I do not know the basis for Dutt’s accusations and believe them to be

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baseless. Whenever I asked him to provide more details, he refused. As for the “rush case” that Dutt

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accused me of missing, to this day I do not know the basis for Dutt’s accusation and believe the

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accusation is trivial if not even baseless.

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I disagree with Dutt’s accusations regarding proctoring for FNA and bone marrow

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procedures, directed toward me in an angry and inappropriate maner.My position is that superficial FNA

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procedures have no serious complications and are simpler to perform than drawing blood, which does

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not require credentialing. Proctoring of Dr. Shertudke was performed to the best of my knowledge and

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would be subsequently evaluated, none-the-less by monitoring the adequacy of her specimen collections.

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Further, performing a sternal marrow collection using an appropriate needle guard is a safe and routinely

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performed on children.

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On or about 11/22/06, I did not criticize Savita Shertukde in front of others, particularly

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so as to demean her as Dutt was implying. I was never told what it was that I was supposed to have said

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or given an opportunity to discuss this incident with Dr. Shertudke. As for Dutt’s attacks on my

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character, I believe them to be baseless. Under my chairmanship, the Pathology department ran well and

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harmoniously without an unusual number of complaints from members.

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On or about 12/4/06, I did not criticize Shertukde’s diagnosis without consulting others

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first, refuse to get outside consultation on a difficult case, or fail to remove sharps from the cutting area

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when done. Dutt’s accusations were baseless.

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17.

On or about 12/5/06, I did not engage in “uncooperativeness” with Dutt, nor did I fail to

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adhere to a “chain of command”, a term that did not exist in the department during my tenure as

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department chair. Dutt’s accusations were baseless.

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18.

Dr. McBride suggested substituting repeat prostate needle biopsies for the the radical

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prostatectomy with repeat prostate needle biopsies which turned out to be negative, when I expressed

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my concern regarding the equivocal diagnosis of cancer. The following day Dutt came into my office

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and sheepishly said that I “had probably done this patient a great service”. Afterwards, Dutt began to

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focus on and dispute the semantics of the diagnosis, rather than the propriety of the treatment course for

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the patient (additional biopsies). He became obsessed with proving that the diagnosis was in fact cancer

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and, ultimately, hoping to prove me wrong. The email he sent me on 12/6/06 is remarkable for its

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pettiness and malice toward me. I never “stormed into [Dutt’s] office and said angrily ‘this isn’t cancer,

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she missed it.’”. I didn’t “terminate” the conversation with Dutt as he suggests. Dutt’s accusations

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contained in his email are too numerous to refute individually. In sum, I disagree with every accusation

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contained in his email to me of 12/6/06 (Bates DFJ01476). Even had the repeat biopsies revealed cancer,

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I believe that the equivocal presence of cancer should have required confirmation by a prostate cancer

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expert and likely should have required repeat biopsies before subjecting a patient to a debilitating

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prostatectomy. Further detailed conversation with the urologist should have been undertaken by the

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original pathologist to make sure that the surgeon fully understood how equivocal the original diagnosis

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was (2% in one out of 12 needle samples). I have subsequently learned that the patient, once informed

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about the equivocal presence of cancer, elected not to proceed with radical prostatectomy based upon

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subsequent biopsies which came back negative for cancer. I found no documentation in the medical

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records that such discussion with the patient had occurred prior to my bringing this issue to the attention

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of Dr. McBride. Had I not intervened that day and told McBride to consider delaying the radical

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prostatectomy, I believe a radical prostatectomy based upon questionable pathology would have

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occurred. That is the point which Dutt was disregarding in his fervor to retaliate against me.

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On or about 12/6/06, Dutt did not “counsel” me for refusing to send out a case, nor did I

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refuse to send out, any case for consultation that turned out to be missed endometrial cancer, for which I

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have no recollection and was not provided an opportunity to review even to date. Nor did I then do the

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reverse and start pushing “a lot of cases out for consultation”. Dutt’s accusations were baseless. My

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position was that prior to sending a case out for consultation all clinical information and pathology

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materials should be assembled and sent with the original specimen(s), so as to give the consultant all

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relevant information. 20.

On or about 12/7/06, I did not “command” Figueroa to treat placentas so as to

countermand Dutt’s order that only Gallegos was to work with placentas. Dutt’s acussation is baseless. 21.

I was not uncooperative with Dutt after returning from leave on 10/4/06. Rather, I found

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myself the target of an unending flurry of unsubstantiated allegations and generalized personal attacks

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from Dutt. Dutt’s emails to me literally seemed to have no end, as if he were spending his day drafting

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them in his office to attack me. I found Dutt’s behavior following my return to KMC in October 2006 to

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be bizarre, harassing and unexplicably hostile compared to the cordial working relationship we had prior

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to my medical leave.

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After my return from leave, I was not creating a hostile work environment. Dutt’s

accusation was baseless. 23.

I did not try to avoid conversations with Dutt. We had several email exchanges which

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demonstrated my willingness to communicate with him and work out the many accusations he was

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making against me. I did not make excuses to leave the room or hospital so as to evade communicating

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with Dutt. If Dutt was finding it difficult to talk with me, the problem did not lie with me. I disagree

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with Dutt’s implication that it did. As for peer review, on numerous occasions, I asked Dutt to give me

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access to slides and disclose to me so-called diagnostic errors found during peer review of my case

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diagnoses. He refused to allow me to review these slides, which is contrary to standard peer review

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principle.. Dutt’s contention that he had no choice but to send my reports to the Peer Review Committee

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because I wasn’t permitting him to speak with me is patently absurd.

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I declare under penalty of perjury under the laws of the State of California and the United States that the foregoing is true and correct.

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Executed on: December 1, 2008

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