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1 Eugene D. Lee (SB#: 236812)

LAW OFFICE OF EUGENE LEE
2 555 West Fifth Street, Suite 3100
Los Angeles, CA 90013
3 Phone: (213) 992-3299
Fax: (213) 596-0487
4 email: elee@LOEL.com
5 Attorney for Plaintiff
DAVID F. JADWIN, D.O.
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7
8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10 FRESNO DIVISION
11 DAVID F. JADWIN, D.O., Civil Action No. 1:07-cv-00026 OWW TAG
12 Plaintiff, DECLARATION OF DAVID F. JADWIN IN
OPPOSITION TO DEFENDANTS’ MOTION
13 v. FOR SUMMARY JUDGMENT
[Fed. R. Civ. P. 56(a)]
14 COUNTY OF KERN, et al.,
Date: January 12, 2009
15 Defendants. Time: 10:00
Judge: Hon. Oliver W. Wanger
16 Courtroom: 3
17 Complaint Filed: January 6, 2007
Trial Date: March 24, 2009
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The undersigned hereby declares as follows:
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1. I am the Plaintiff in this action. I was employed by Defendant County of Kern from
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October 2000 to October 2007.
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2. I am making this declaration in support of Plaintiff’s Opposition to Defendants’ Motion
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Summary Judgment. I have personal knowledge of the matters set forth below and I could and would
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competently testify thereto if called as a witness in this matter.
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3. I have never threatened to take a leave of absence until the KMC medical staff and
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administration apologized to me. Nor did I ever communicate or suggest any intention to do that to
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Philip Dutt or anyone else.
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1 4. I spoke with Peter Bryan in early January 2006 to request a medical leave. He specifically
2 approved my request and told me I could go on my reduced work schedule leave immediately. He told
3 me he would take care of having Human Resources deliver to methe paperwork required for filing of the
4 request. . As it turned out, he either did not communicate this adequately to Human Resources or
5 Human Resources did not act appropriately as I did not receive the paperwork until April 2006. As soon
6 as I obtained the medical leave paperwork, I promptly filled it out and submitted it to Human Resources.
7 I also promptly obtained a medical leave certification from my therapist and submitted that within a
8 short time after. I never needed nor received any prompting from Human Resources to submit the leave
9 request forms and medical certification.
10 5. I issued Fine Needle Aspiration (“FNA”) diagnoses in final form and released for
11 viewing by clinicians PRIOR to sending reports out to UCLA for confirmatory review. When the
12 Pathology department later received UCLA’s confirmatory reports, they were entered them into the
13 KMC computer system, which automatically updates the “Completed” report date to reflect the date of
14 the last modification to any report. The “Completed” date is NOT the date when I issued my own
15 diagnosis to clinicians, it is more analogous to a “last modified” date. This apparent confusion over
16 terminology led to suspicions that I was somehow fraudulently withholding my own diagnoses until
17 UCLA issued their reports so that I could ensure 100% congruence. Nothing could be further from the
18 truth. Had my accusers come to me with their suspicions, I would have been able to explain all this very
19 easily.
20 6. Ms. Figueroa will testify that she did not and does not agree with Philip Dutt’s accusation
21 that I improperly left out two long blades and a scalpel on the morning of 12/7/06. In fact, I was just
22 beginning to prepare my workstation for that day’s work and had set the blades and scalpel out for
23 anticipated work purposes. I was not “finished” with them yet, and would not be for possibly several
24 more hours. The department protocol specifies that sharps should not be left on the cutting board
25 (overnight) when the pathologist is finished grossing. Gallegos could not recall any instances of sharps
26 being left out.
27 7. I never told Scott Ragland that “the only important information on that [October 12, 2005
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1 Cancer Conference] case was mine”. Rather, I had said that there were NO relevant clinical or radiologic
2 issues to be discussed in this particular case and that all decisions and discussion centered upon the
3 accuracy of the pathologic diagnosis. There were no pertinent clinical history or findings and there were
4 no radiologic findings to present. Therefore all subsequent clinical discussion would be dependent upon
5 the patient’s pathologic diagnosis, which had many processing errors and discordant final diagnoses
6 rendered by four different pathology services.
7 8. At the 10/18/05 meeting, just days after the October Conference, Scott Ragland began by
8 sarcastically saying “So Dr. Jadwin, Mr. Perfect, here we are again, having problems with your behavior
9 again” He said that he had been chosen to give me the letter of reprimand.. I then said that I wanted
10 Peter Bryan to be immediately present and was told by Eugene Kercher that this was a “medical staff
11 issue” that did not need to involve the Bryan..Kercher then inappropriately shouted in a demeaning
12 manner: : “David if you needed more time [for your presentation], why didn’t you tell Dr. [Albert]
13 McBride beforehand?” Ragland appeared to be using the occasion to exact revenge on me for a recent
14 confidential physician health report I had made regarding his suspected impaired behavior, and
15 subsequently learned that Ragland had been told of my reporting, contrary to confidential procedure.
16 Ragland read a letter of reprimand aloud to me in a continued sarcastic derogatory tone, which stated
17 that letters of dissatisfaction from three conference participants would be placed in my file. When I
18 asked to see the letters of dissatisfaction, Irwin Harris said that I could not see them. When I turned to
19 address Kercher, as the President of the Medical Staff and the senior person in the room, Ragland
20 condescendingly barked at me, “Don’t look at him, look at me; I am the person you need to talk to!” and
21 “Noooo, don’t look at [Kercher] look at me. That’s riiight, you don’t need to look at him, you need to
22 look at me.” It was utterly humiliating. Kercher and Ragland did not attend the October conference and
23 were obviously acting on the basis of Harris’s and Abraham’s account of what happened at the October
24 Conference. Kercher, Ragland, and Harris never gave me an opportunity to give my side of the story or
25 otherwise defend myself against their accusations, and had no interest in hearing anything I would have
26 said had I been anything other than speechless by the events that transpired.
27 9. Plaintiff issued a proctoring report on Philip Dutt on 1/18/06, which was completed just
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1 several weeksafter I had hired him. The proctoring period is analogous to a probationary period during
2 which a preliminary assessment is made about the new staff’s ability to manage specimens in a
3 competent manner. Given the magnitude of required knowledge to handle hundreds of different
4 situations clinical and diagnostic dilemmas, it is not possible to make a full assessment of all
5 competencies the candidate might require, which instead is measured by ongoing peer review..
6 Regardless of proctoring, all pathology work undergoes continuous rigorous quality peer review to
7 ensure that the candidate and all other members of the department handle cases appropriately. As I
8 worked with Dutt more closely during the ensuing months, I was able to form a clearer, and very
9 different, opinion of his performance and determined that Dutt was insecure in his pathology duties and
10 functioned more like a junior pathologist or even a senior resident, than as a pathologist with several
11 years experience. For instance, in an environment where there are, frankly, few difficult or challenging
12 pathology cases, I eventually realized that Dutt submitted roughly 15% of his cases to a peer as
13 consultation to request help with making a diagnosis (category A/all cases); that only roughly 5% of his
14 cases underwent retrospective review (category C/all cases, indicating a reluctance to sign a case out
15 without oversight; that roughly 15% of his cases received additional diagnostics and/or processing
16 comments from other pathologists,both ((B1+C1)/(all B + all C) and (B1/all B). Based on my lengthy
17 experience as a pathology chairperson, I believe Dutt had many more consultations, prospective reviews
18 and discrepancies (As, Bs B1s and C1s) than would be expected for a senior or experienced
19 pathologist.. Dutt was often hesitant to exercise independent judgement and, when acting alone without
20 my oversight late in 2006, had made several professional errors.
21 10. Around 11/1/06, I noticed that fallopian tubes specimens were left sitting on the counter,
22 without a requisition and unprocessed for several days.. I recorded this discovery in the exceptional
23 event log and reported it to Dutt. He responded by erroneously implying that I was responsible because I
24 had been interfering with Vangie Gallegos’s work.
25 11. Around 11/6/06, I was not interfering with Gallegos’s work or in her work area, nor was I
26 creating more work for everybody as I was accused of doing. At no time did I do this.
27 12. I disagree with Dutt that it would be demeaning and time consuming to have an employee
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1 clock in and out. Further, I did not ask that the assistant clock in and out, but rather inform me when she
2 was going to be absent from the room for prolonged periods of time, a protocol that had been in place
3 for years..
4 13. On or about 11/17/06, I was not escalating the situation with Dutt, blaming others or
5 attacking them. To this day, I do not know the basis for Dutt’s accusations and believe them to be
6 baseless. Whenever I asked him to provide more details, he refused. As for the “rush case” that Dutt
7 accused me of missing, to this day I do not know the basis for Dutt’s accusation and believe the
8 accusation is trivial if not even baseless.
9 14. I disagree with Dutt’s accusations regarding proctoring for FNA and bone marrow
10 procedures, directed toward me in an angry and inappropriate maner.My position is that superficial FNA
11 procedures have no serious complications and are simpler to perform than drawing blood, which does
12 not require credentialing. Proctoring of Dr. Shertudke was performed to the best of my knowledge and
13 would be subsequently evaluated, none-the-less by monitoring the adequacy of her specimen collections.
14 Further, performing a sternal marrow collection using an appropriate needle guard is a safe and routinely
15 performed on children.
16 15. On or about 11/22/06, I did not criticize Savita Shertukde in front of others, particularly
17 so as to demean her as Dutt was implying. I was never told what it was that I was supposed to have said
18 or given an opportunity to discuss this incident with Dr. Shertudke. As for Dutt’s attacks on my
19 character, I believe them to be baseless. Under my chairmanship, the Pathology department ran well and
20 harmoniously without an unusual number of complaints from members.
21 16. On or about 12/4/06, I did not criticize Shertukde’s diagnosis without consulting others
22 first, refuse to get outside consultation on a difficult case, or fail to remove sharps from the cutting area
23 when done. Dutt’s accusations were baseless.
24 17. On or about 12/5/06, I did not engage in “uncooperativeness” with Dutt, nor did I fail to
25 adhere to a “chain of command”, a term that did not exist in the department during my tenure as
26 department chair. Dutt’s accusations were baseless.
27 18. Dr. McBride suggested substituting repeat prostate needle biopsies for the the radical
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1 prostatectomy with repeat prostate needle biopsies which turned out to be negative, when I expressed
2 my concern regarding the equivocal diagnosis of cancer. The following day Dutt came into my office
3 and sheepishly said that I “had probably done this patient a great service”. Afterwards, Dutt began to
4 focus on and dispute the semantics of the diagnosis, rather than the propriety of the treatment course for
5 the patient (additional biopsies). He became obsessed with proving that the diagnosis was in fact cancer
6 and, ultimately, hoping to prove me wrong. The email he sent me on 12/6/06 is remarkable for its
7 pettiness and malice toward me. I never “stormed into [Dutt’s] office and said angrily ‘this isn’t cancer,
8 she missed it.’”. I didn’t “terminate” the conversation with Dutt as he suggests. Dutt’s accusations
9 contained in his email are too numerous to refute individually. In sum, I disagree with every accusation
10 contained in his email to me of 12/6/06 (Bates DFJ01476). Even had the repeat biopsies revealed cancer,
11 I believe that the equivocal presence of cancer should have required confirmation by a prostate cancer
12 expert and likely should have required repeat biopsies before subjecting a patient to a debilitating
13 prostatectomy. Further detailed conversation with the urologist should have been undertaken by the
14 original pathologist to make sure that the surgeon fully understood how equivocal the original diagnosis
15 was (2% in one out of 12 needle samples). I have subsequently learned that the patient, once informed
16 about the equivocal presence of cancer, elected not to proceed with radical prostatectomy based upon
17 subsequent biopsies which came back negative for cancer. I found no documentation in the medical
18 records that such discussion with the patient had occurred prior to my bringing this issue to the attention
19 of Dr. McBride. Had I not intervened that day and told McBride to consider delaying the radical
20 prostatectomy, I believe a radical prostatectomy based upon questionable pathology would have
21 occurred. That is the point which Dutt was disregarding in his fervor to retaliate against me.
22 19. On or about 12/6/06, Dutt did not “counsel” me for refusing to send out a case, nor did I
23 refuse to send out, any case for consultation that turned out to be missed endometrial cancer, for which I
24 have no recollection and was not provided an opportunity to review even to date. Nor did I then do the
25 reverse and start pushing “a lot of cases out for consultation”. Dutt’s accusations were baseless. My
26 position was that prior to sending a case out for consultation all clinical information and pathology
27 materials should be assembled and sent with the original specimen(s), so as to give the consultant all
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1 relevant information.
2 20. On or about 12/7/06, I did not “command” Figueroa to treat placentas so as to
3 countermand Dutt’s order that only Gallegos was to work with placentas. Dutt’s acussation is baseless.
4 21. I was not uncooperative with Dutt after returning from leave on 10/4/06. Rather, I found
5 myself the target of an unending flurry of unsubstantiated allegations and generalized personal attacks
6 from Dutt. Dutt’s emails to me literally seemed to have no end, as if he were spending his day drafting
7 them in his office to attack me. I found Dutt’s behavior following my return to KMC in October 2006 to
8 be bizarre, harassing and unexplicably hostile compared to the cordial working relationship we had prior
9 to my medical leave.
10 22. After my return from leave, I was not creating a hostile work environment. Dutt’s
11 accusation was baseless.
12 23. I did not try to avoid conversations with Dutt. We had several email exchanges which
13 demonstrated my willingness to communicate with him and work out the many accusations he was
14 making against me. I did not make excuses to leave the room or hospital so as to evade communicating
15 with Dutt. If Dutt was finding it difficult to talk with me, the problem did not lie with me. I disagree
16 with Dutt’s implication that it did. As for peer review, on numerous occasions, I asked Dutt to give me
17 access to slides and disclose to me so-called diagnostic errors found during peer review of my case
18 diagnoses. He refused to allow me to review these slides, which is contrary to standard peer review
19 principle.. Dutt’s contention that he had no choice but to send my reports to the Peer Review Committee
20 because I wasn’t permitting him to speak with me is patently absurd.
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22 I declare under penalty of perjury under the laws of the State of California and the United States
23 that the foregoing is true and correct.
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Executed on: December 1, 2008
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