Jury splits hospital trial verdict

South Peninsula surgeon cleared in civil suit; other charges will be retried

Posted: Thursday, March 22, 2007

A Homer jury on Tuesday afternoon split its verdict in a civil lawsuit filed by a nurse against South Peninsula Hospital and surgeon Dr. Paul Sayer. After deliberating about 10 hours, the 12-person panel failed to reach a decision on if the hospital wrongfully dismissed her, but rejected nurse Elizabeth Bashaw’s claim that Sayer engaged in a retaliatory campaign that influenced the hospital’s decision to ask for her resignation.

To make a decision in the civil suit, 10 of the 12 jurors had to vote yes or no. The jury voted 9-3 and 7-5 in favor of the hospital on two questions regarding its alleged blame: if SPH fired Bashaw in retaliation for trying to enforce patient safety, and if alleged reprisals against her played a part in Bashaw being forced to resign.

“The jury did the right thing,” Sayer said. “I heard stuff in the courtroom by the plaintiff that I feel absolutely was not true. I had a lot of support at this trial by the people in this town.”

Bashaw and her lawyer, Rick Friedman of Anchorage, said they would seek another trial on their claim against the hospital.

“We’re disappointed, that’s for sure,” Friedman said.

They also want a change of venue. Friedman said he felt holding the trial in Homer made it difficult for his client to get a fair trial.

“I think people are reluctant to believe the hospital is in as bad shape as it was,” he said. “That’s a big part of what we had to overcome.”

Charlie Franz, chief executive officer for South Peninsula Hospital Inc., the nonprofit corporation that operates the hospital, said he was pleased for Sayer — and SPH.

“I was happy that the majority of the jurors found the hospital was not guilty, but disappointed that we didn’t have the total number to return a vote for us,” he said.

Bashaw filed a lawsuit in 2005 claiming she was wrongfully dismissed from her job at South Peninsula Hospital in late 2004 in direct retaliation for her attempts to enforce safety procedures. Dr. Rene Alvarez and the Kenai Peninsula Borough were named as co-defendants in Bashaw’s suit, but Alvarez and the borough settled with her before the trial.

Attorneys in the case delivered their closing arguments on March 16.

Bashaw, hired in June 2003 to be the hospital’s surgical services manager, said Franz forced her to resign or face being fired, and that Franz’s actions were a direct consequence of her efforts during 2004 to implement and enforce standard safety practices and policies meant to prevent injury to patients — practices that she said were met with resistance and hostility from staff surgeons and other hospital employees.

The hospital countered, saying Bashaw was asked to resign because she had demonstrated poor clinical and managerial skills, and she had not taken advantage of numerous opportunities to bring those skills to acceptable levels.

According to court documents, Bashaw insisted that surgical tools and sponges be counted at a specific time during operations. The issue wasn’t that counts weren’t being performed, but when counts occurred. Bashaw wanted quality improvement studies conducted, history and physical reports on patient charts prior to the start of elective surgery, and operating room incidents and errors reported and documented. She said she tried to enforce rules for surgical attire and other safety practices in certain areas of the hospital. Those efforts, too, were met with resistance, she said.

Bashaw alleged that Sayer and Alvarez, surgeons with staff privileges at the hospital, refused to cooperate with her procedural changes and became derisive of her efforts. According to court documents, she reported as much to Franz, and that afterward, Sayer and Alvarez became “openly hostile and abusive” toward her, often chastising her in front of patients and staff.

She blamed the doctors for a “retaliatory campaign” when some nurses and other hospital staff members began filing what she said were unfounded complaints of incompetence and abusive behavior on her part. She said her efforts to take disciplinary action against nurses also were undermined.

Finally, Bashaw asserted that false and misleading accusations delivered at an October 2004 public meeting of the South Peninsula Hospital Service Area Board by a group of nurses and surgical staff was part of the retaliation. The group had said Bashaw had put patients at risk by engaging in dangerous and unprofessional actions in the operating and emergency rooms. The service area board approved a motion asking the SPH Inc. board of directors to address a plan for resolving the accusations made at the meeting.

Bashaw tendered her resignation Nov. 1, 2004. She filed suit in 2005 naming the two surgeons, the hospital and the Kenai Peninsula Borough as defendants. The multi-count action claimed retaliatory discharge, violation of state whistleblower statutes, violation of First Amendment rights, violations of due process, intentional interference with her contract by Sayer and Alvarez, and other claims. Bashaw sought no less than $100,000 in compensatory damages along with attorney fees. She also wanted punitive damages.

The Kenai Peninsula Borough and Alvarez settled out of court. Borough Attorney Colette Thompson said the borough denied any liability and paid no damages. Alvarez said an agreement reached in January required each side to cover its own costs. He could not discuss other terms of the agreement.

Sayer and the hospital, meanwhile, chose to fight the suit, and each party had its own counsel.

Friedman, Bashaw’s attorney, told the jury Friday that the suit was “a simple case,” but that testimony had painted two very different pictures of Elizabeth Bashaw — one depicting a highly competent, respected, conscientious nurse-manager; the other, a woman who didn’t know the most basic things about nursing and who was given to bullying subordinates and other poor behaviors.

“Once you decide which Liz Bashaw is the real Liz Bashaw you will basically will have decided this case,” he said.

Bashaw’s case against Sayer focused on the allegation that Sayer had intentionally interfered with her employment contract, Friedman said.

Hospital attorney James Juliussen said the only issue to be decided with regard to SPH was whether she was terminated in retaliation for her efforts to implement safety procedures, a causal connection disputed by the hospital.

“That is the only claim before this court that concerns South Peninsula Hospital,” he said.

Uncontested testimony clearly established South Peninsula Hospital as a remarkably safe facility in which to have an operation, Juliussen said. It has an infection rate less than half the national average, and “an enviable record” of not leaving sponges or instruments inside patients, he added.

Bashaw’s nursing career spanned at least 30 years, but she had not worked as a clinical nurse for more than four of those years before coming to South Peninsula Hospital, Juliussen said.

“Her clinical skill were rusty,” he said. “She admitted as much.”

Nevertheless, Bashaw’s job required her to spend a significant amount time providing direct, hands-on patient care. Any notion that she was being hired strictly as a manager was wrong, Juliussen said.

Bashaw lacked certification in Advanced Cardiac Life Support, ACLS, which was part of her job description. When that issue was raised after she’d been hired, the hospital afforded Bashaw several opportunities to attain certification, but she never did. She also never achieved better than a 25 percent success rate at inserting intravenous needles, allegedly inhibiting her ability to perform her duties, Juliussen said. Faced with multiple responsibilities, Bashaw began to flounder, he argued.

At one point, Bashaw signed a performance improvement plan, but failed to adhere to it or regain the confidence of the operating room staff. According to testimony by some SPH staffers, she was often frantic and rushed, and her lack of certain certifications added to the workloads of other nurses.

According to the hospital, Bashaw’s lack of skills and failure to acquire them, her failure to establish an ongoing training program for herself and her staff, and her failure to earn the cooperation of that staff led directly to her dismissal. That the job proved more than she could handle does not translate into retaliation, Juliussen said.

Tim Dooley, attorney for Sayer, asked jurors to beware of natural tendencies to “root for the whistleblower” and to “believe in the worst” about institutions.

“I’ve been puzzled ... as to why Dr. Sayer is in this case,” Dooley said.

The evidence, he said, does not support Bashaw’s claim that because Sayer had been cool and abusive toward her in front of OR staff, those employees had simply fallen into line behind some coordinated effort to have her dismissed. Sayer had no such control. In fact, Dooley argued, other members of the staff — including some who had been “written up” by Bashaw — had their own issues with her and needed no prompting by Sayer.

A reason Bashaw sued Sayer, Dooley suggested, was because, as a doctor, he is viewed as a deep pocket, “a Spanish galleon sailing across the ocean.”

A court hearing is scheduled next month for the two sides to discuss a new trial. Franz said he’s not ready to go back to trial.

“We certainly will if that’s what we have to do,” he said. “I would not be in favor of a change of venue. I think a Homer issue ought to be decided in Homer.”

The citizen jury worked three-and-a-half weeks listening to testimony and deliberating. Franz praised its work.

“I appreciate their efforts,” he said “It was a very complex case.”

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