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284 D MSJ - Opp - DFJ Decl

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					Case 1:07-cv-00026-OWW-TAG

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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: elee@LOEL.com Attorney for Plaintiff DAVID F. JADWIN, D.O.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION DAVID F. JADWIN, D.O., Plaintiff, v. COUNTY OF KERN, et al., Defendants. Date: January 12, 2009 Time: 10:00 Judge: Hon. Oliver W. Wanger Courtroom: 3 Complaint Filed: January 6, 2007 Trial Date: March 24, 2009 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)]

The undersigned hereby declares as follows: 20 1. 21 October 2000 to October 2007. 22 2. 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. 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
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I am the Plaintiff in this action. I was employed by Defendant County of Kern from

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

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

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4.

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

approved my request and told me I could go on my reduced work schedule leave immediately. He told me he would take care of having Human Resources deliver to methe paperwork required for filing of the request. . As it turned out, he either did not communicate this adequately to Human Resources or Human Resources did not act appropriately as I did not receive the paperwork until April 2006. As soon as I obtained the medical leave paperwork, I promptly filled it out and submitted it to Human Resources. I also promptly obtained a medical leave certification from my therapist and submitted that within a short time after. I never needed nor received any prompting from Human Resources to submit the leave request forms and medical certification. 5. I issued Fine Needle Aspiration (“FNA”) diagnoses in final form and released for

viewing by clinicians PRIOR to sending reports out to UCLA for confirmatory review. When the Pathology department later received UCLA’s confirmatory reports, they were entered them into the KMC computer system, which automatically updates the “Completed” report date to reflect the date of the last modification to any report. The “Completed” date is NOT the date when I issued my own diagnosis to clinicians, it is more analogous to a “last modified” date. This apparent confusion over terminology led to suspicions that I was somehow fraudulently withholding my own diagnoses until UCLA issued their reports so that I could ensure 100% congruence. Nothing could be further from the truth. Had my accusers come to me with their suspicions, I would have been able to explain all this very easily. 6. Ms. Figueroa will testify that she did not and does not agree with Philip Dutt’s accusation

that I improperly left out two long blades and a scalpel on the morning of 12/7/06. In fact, I was just beginning to prepare my workstation for that day’s work and had set the blades and scalpel out for anticipated work purposes. I was not “finished” with them yet, and would not be for possibly several more hours. The department protocol specifies that sharps should not be left on the cutting board (overnight) when the pathologist is finished grossing. Gallegos could not recall any instances of sharps being left out. 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 issues to be discussed in this particular case and that all decisions and discussion centered upon the accuracy of the pathologic diagnosis. There were no pertinent clinical history or findings and there were no radiologic findings to present. Therefore all subsequent clinical discussion would be dependent upon the patient’s pathologic diagnosis, which had many processing errors and discordant final diagnoses rendered by four different pathology services. 8. At the 10/18/05 meeting, just days after the October Conference, Scott Ragland began by

sarcastically saying “So Dr. Jadwin, Mr. Perfect, here we are again, having problems with your behavior again” He said that he had been chosen to give me the letter of reprimand.. I then said that I wanted Peter Bryan to be immediately present and was told by Eugene Kercher that this was a “medical staff issue” that did not need to involve the Bryan..Kercher then inappropriately shouted in a demeaning manner: : “David if you needed more time [for your presentation], why didn’t you tell Dr. [Albert] McBride beforehand?” Ragland appeared to be using the occasion to exact revenge on me for a recent confidential physician health report I had made regarding his suspected impaired behavior, and subsequently learned that Ragland had been told of my reporting, contrary to confidential procedure. Ragland read a letter of reprimand aloud to me in a continued sarcastic derogatory tone, which stated that letters of dissatisfaction from three conference participants would be placed in my file. When I asked to see the letters of dissatisfaction, Irwin Harris said that I could not see them. When I turned to address Kercher, as the President of the Medical Staff and the senior person in the room, Ragland condescendingly barked at me, “Don’t look at him, look at me; I am the person you need to talk to!” and “Noooo, don’t look at [Kercher] look at me. That’s riiight, you don’t need to look at him, you need to look at me.” It was utterly humiliating. Kercher and Ragland did not attend the October conference and were obviously acting on the basis of Harris’s and Abraham’s account of what happened at the October Conference. Kercher, Ragland, and Harris never gave me an opportunity to give my side of the story or otherwise defend myself against their accusations, and had no interest in hearing anything I would have said had I been anything other than speechless by the events that transpired. 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 which a preliminary assessment is made about the new staff’s ability to manage specimens in a competent manner. Given the magnitude of required knowledge to handle hundreds of different situations clinical and diagnostic dilemmas, it is not possible to make a full assessment of all competencies the candidate might require, which instead is measured by ongoing peer review.. Regardless of proctoring, all pathology work undergoes continuous rigorous quality peer review to ensure that the candidate and all other members of the department handle cases appropriately. As I worked with Dutt more closely during the ensuing months, I was able to form a clearer, and very different, opinion of his performance and determined that Dutt was insecure in his pathology duties and functioned more like a junior pathologist or even a senior resident, than as a pathologist with several years experience. For instance, in an environment where there are, frankly, few difficult or challenging pathology cases, I eventually realized that Dutt submitted roughly 15% of his cases to a peer as consultation to request help with making a diagnosis (category A/all cases); that only roughly 5% of his cases underwent retrospective review (category C/all cases, indicating a reluctance to sign a case out without oversight; that roughly 15% of his cases received additional diagnostics and/or processing comments from other pathologists,both ((B1+C1)/(all B + all C) and (B1/all B). Based on my lengthy experience as a pathology chairperson, I believe Dutt had many more consultations, prospective reviews and discrepancies (As, Bs B1s and C1s) than would be expected for a senior or experienced pathologist.. Dutt was often hesitant to exercise independent judgement and, when acting alone without my oversight late in 2006, had made several professional errors. 10. Around 11/1/06, I noticed that fallopian tubes specimens were left sitting on the counter,

without a requisition and unprocessed for several days.. I recorded this discovery in the exceptional event log and reported it to Dutt. He responded by erroneously implying that I was responsible because I had been interfering with Vangie Gallegos’s work. 11. 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 was going to be absent from the room for prolonged periods of time, a protocol that had been in place for years.. 13. On or about 11/17/06, I was not escalating the situation with Dutt, blaming others or

attacking them. To this day, I do not know the basis for Dutt’s accusations and believe them to be baseless. Whenever I asked him to provide more details, he refused. As for the “rush case” that Dutt accused me of missing, to this day I do not know the basis for Dutt’s accusation and believe the accusation is trivial if not even baseless. 14. I disagree with Dutt’s accusations regarding proctoring for FNA and bone marrow

procedures, directed toward me in an angry and inappropriate maner.My position is that superficial FNA procedures have no serious complications and are simpler to perform than drawing blood, which does not require credentialing. Proctoring of Dr. Shertudke was performed to the best of my knowledge and would be subsequently evaluated, none-the-less by monitoring the adequacy of her specimen collections. Further, performing a sternal marrow collection using an appropriate needle guard is a safe and routinely performed on children. 15. On or about 11/22/06, I did not criticize Savita Shertukde in front of others, particularly

so as to demean her as Dutt was implying. I was never told what it was that I was supposed to have said or given an opportunity to discuss this incident with Dr. Shertudke. As for Dutt’s attacks on my character, I believe them to be baseless. Under my chairmanship, the Pathology department ran well and harmoniously without an unusual number of complaints from members. 16. On or about 12/4/06, I did not criticize Shertukde’s diagnosis without consulting others

first, refuse to get outside consultation on a difficult case, or fail to remove sharps from the cutting area when done. Dutt’s accusations were baseless. 17. On or about 12/5/06, I did not engage in “uncooperativeness” with Dutt, nor did I fail to

adhere to a “chain of command”, a term that did not exist in the department during my tenure as department chair. Dutt’s accusations were baseless. 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 my concern regarding the equivocal diagnosis of cancer. The following day Dutt came into my office and sheepishly said that I “had probably done this patient a great service”. Afterwards, Dutt began to focus on and dispute the semantics of the diagnosis, rather than the propriety of the treatment course for the patient (additional biopsies). He became obsessed with proving that the diagnosis was in fact cancer and, ultimately, hoping to prove me wrong. The email he sent me on 12/6/06 is remarkable for its pettiness and malice toward me. I never “stormed into [Dutt’s] office and said angrily ‘this isn’t cancer, she missed it.’”. I didn’t “terminate” the conversation with Dutt as he suggests. Dutt’s accusations contained in his email are too numerous to refute individually. In sum, I disagree with every accusation contained in his email to me of 12/6/06 (Bates DFJ01476). Even had the repeat biopsies revealed cancer, I believe that the equivocal presence of cancer should have required confirmation by a prostate cancer expert and likely should have required repeat biopsies before subjecting a patient to a debilitating prostatectomy. Further detailed conversation with the urologist should have been undertaken by the original pathologist to make sure that the surgeon fully understood how equivocal the original diagnosis was (2% in one out of 12 needle samples). I have subsequently learned that the patient, once informed about the equivocal presence of cancer, elected not to proceed with radical prostatectomy based upon subsequent biopsies which came back negative for cancer. I found no documentation in the medical records that such discussion with the patient had occurred prior to my bringing this issue to the attention of Dr. McBride. Had I not intervened that day and told McBride to consider delaying the radical prostatectomy, I believe a radical prostatectomy based upon questionable pathology would have occurred. That is the point which Dutt was disregarding in his fervor to retaliate against me. 19. On or about 12/6/06, Dutt did not “counsel” me for refusing to send out a case, nor did I

refuse to send out, any case for consultation that turned out to be missed endometrial cancer, for which I have no recollection and was not provided an opportunity to review even to date. Nor did I then do the reverse and start pushing “a lot of cases out for consultation”. Dutt’s accusations were baseless. My position was that prior to sending a case out for consultation all clinical information and pathology 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

myself the target of an unending flurry of unsubstantiated allegations and generalized personal attacks from Dutt. Dutt’s emails to me literally seemed to have no end, as if he were spending his day drafting them in his office to attack me. I found Dutt’s behavior following my return to KMC in October 2006 to be bizarre, harassing and unexplicably hostile compared to the cordial working relationship we had prior to my medical leave. 22. 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

demonstrated my willingness to communicate with him and work out the many accusations he was making against me. I did not make excuses to leave the room or hospital so as to evade communicating with Dutt. If Dutt was finding it difficult to talk with me, the problem did not lie with me. I disagree with Dutt’s implication that it did. As for peer review, on numerous occasions, I asked Dutt to give me access to slides and disclose to me so-called diagnostic errors found during peer review of my case diagnoses. He refused to allow me to review these slides, which is contrary to standard peer review principle.. Dutt’s contention that he had no choice but to send my reports to the Peer Review Committee because I wasn’t permitting him to speak with me is patently absurd.

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. Executed on: December 1, 2008

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DOCUMENT INFO
Description: David F. Jadwin v. Kern County: 1:07-cv-26 in the United Stated District Court for the Eastern District of California, Fresno Division before Judge Oliver W. Wanger. This was a 2009 federal employment lawsuit that went to a bench and jury trial resulting in a unanimous verdict and significant judgment for the plaintiff employee. Issues involved violations of medical leave and disability discrimination laws, as well as 42 U.S.C. 1983 procedural due process violation. Plaintiff was represented by Eugene Lee, a Los Angeles, California employment lawyer.