Robert H Steinberg, Esq.

(PB 23888)
Attorney at Law
203 E Main St.
Middleburg, PA 17842
(570) 837-2100
bobsteinberg@psualum.com

Thad M. Guyer, Esq.

Stephani L. Ayers, Esq.
(by Special Appearance)
Government Accountability Project
1612 K Street, NW, Suite 1100
Washington, DC 2006
Tel: (541) 210-1305
Fax: 888.866.4720
thad@whistleblowerdefenders.com

Counsel for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF PENNSYLVANIA

STEFAN P. KRUSZEWSKI,

Plaintiff

vs. No. 1:04-CV-1420

JUDGE KANE
CHRISTOPHER P. GORTON,
SALLY KOZAK and COLUMBUS
MEDICAL SERVICES, LLC.
JURY DEMAND
Defendants
_______________________________

SECOND AMENDED COMPLAINT

Second Amended Complaint- Page 1
 I. INTRODUCTORY STATEMENT
1. This Second Amended Complaint is brought by a physician alleging

that his First Amendment rights were violated by managers of the

Pennsylvania Department of Public Welfare in retaliation for his continuous

advocacy that they remedy public corruption, violations of law, and abuses of

Pennsylvania public welfare patients and clients dependent upon the state for

psychiatric and health care services. Plaintiffs Commonwealth supervisors,

fearing his continuing advocacy efforts, summarily dismissed him from his

position with the overt concurrence of the defendant Columbus Medical

Services. The Commonwealth defendants chose to dismiss Dr. Kruszewski in

a manner that would humiliate and embarrass him and send a message to

other employees to prevent a recurrence of his example of speaking out on

matters of public concern. Plaintiff also alleges violations of state law against

Columbus Medical Services for breach of its contractual obligations to

plaintiff to take reasonable efforts to maintain his employment position with

the Commonwealth.

II. JURISDICTION AND VENUE

2. Jurisdiction is conferred on this court by 28 U.S.C. 1331 and 28

U.S. C. 1343(a) (3) and (4), and by the remedial statute 42 U. S. C. 1983.

Second Amended Complaint- Page 2

 3. This Court's supplemental jurisdiction is invoked as per 28 U.S.C.

1367(c).

4. A jury trial is demanded.

5. Venue is properly in the Middle District of Pennsylvania because

the parties, witnesses, and factual evidence are common to Dauphin County

Pennsylvania which is in the Middle District.

III. PARTIES
6. The plaintiff, Stefan P. Kruszewski, M.D., is currently and actively

licensed to practice medicine in six states (Pennsylvania, New Jersey, Texas,

California, Nebraska, and Indiana) and is also, via licensure, authorized to

dispense scheduled drugs by the DEA (Drug Enforcement Administration).

Dr. Kruszewski is board-certified by the American Board of Psychiatry and

Neurology (including subspecialties of geriatric and addiction psychiatry), the

American Board of Adolescent Psychiatry, and the American Society of

Addiction Medicine. At the time that Dr. Kruszewski was dismissed by the

government defendants he was placed by Columbus Medical Services to

provide services at the offices of, and under the day-to-day direction,

supervision and control of the Pennsylvania Department of Public Welfare

(DPW). Plaintiffs primary job duties were (1) conducting medical reviews

Second Amended Complaint- Page 3

and appeals of reimbursement claims submitted by health care providers

seeking payment for services provided to DPW patients and clients; and (2)

working as a medical-psychiatric consultant for the DPW Bureau of Program

Integrity(BPI) to review the types and adequacy of care provided to DPW

patients and clients receiving health care services in Pennsylvania and in other

states to which patients were sent pursuant to interstate care agreements.

During his employment, plaintiff had received outstanding praise and

recognition for his exceptional performance as an exemplary public

employee. Advocating that the DPW remedy system-wide corruption, prevent

false claims related to drug therapies, not violate or allow violations of the

law, insuring the proper licensing of physicians, and ending abuse and

inadequate health care services to state patients and clients was not a part of

the job duties assigned to plaintiff.

7. Defendant Christopher P. Gorton, MD at all times material to this

action was the Medical Director of the Office of Medical Director (OMD) of

the Pennsylvania Department of Public Welfare. DPWs stated mission

included ensuring that: (a) Pennsylvanias medical assistance program is

protected from provider fraud, waste and abuse; (b) Medical assistance

recipients receive quality medical services, and do not abuse those services;

Second Amended Complaint- Page 4

and (c) The Department seeks feedback from the medical community and

patient groups to enhance program performance. Defendant Gorton

participated in and approved the decision to terminate the services of the

plaintiff. The retaliatory acts committed by the defendant Gorton were under

color of law, but outside the scope of his employment.

8. Defendant Sally Kozak, RN was at all times material to this action

the Director of Clinical Services and Policy for the DPW Office of Medical

Director. Defendant Kozak participated in and recommended the decision to

terminate the services of the plaintiff. The retaliatory acts committed by the

defendant Kozak were under color of law, but outside the scope of her

employment.

9. The defendant Columbus Medical Services functions as an

employment agency for highly qualified workers in the medical profession. It

operated in Pennsylvania under a contract with the Pennsylvania DPW to

provide highly qualified medical specialists to conduct medical reviews on

state reimbursement denials at the request of medical providers seeking

payment for compensable services rendered to DPW patients and other

recipients. To perform its obligations under this contract, Columbus entered

Second Amended Complaint- Page 5

into a written contract with the plaintiff wherein he was assigned to the

offices, oversight, direction and control of the DPW defendants.

IV. PROTECTED FIRST AMENDMENT ACTIVITY

10. Plaintiff disclosed and complained to his Commonwealth

supervisors and officials about ineffectual and dangerous drugs in the state

drug formulary and that drug company influence within Pennsylvanias state

government allowed abuse of state finances and custodial populations

including dependent children.

11. The plaintiff complained to his Commonwealth supervisors and

officials that drug companies and providers of health and custodial services to

DPW clients and patients were generating distorted treatment statistics and

records, violating health regulations and advisories (including FDA rules),

and exaggerating and mischaracterizing the benefits, effects and use of

psychotropic drugs that lacked beneficial or positive effect on the DPW

patients to whom they were regularly administered.

12. Plaintiff complained to the Commonwealth defendants and

officials that his medical evidence indicated that the quality and competence

of health care services provided to DPW patients may have contributed to, or

caused severe injury and death to children who were wards of the state, and

Second Amended Complaint- Page 6

other custodial populations including prisoners and inpatient mentally

impaired persons. Plaintiff also complained about the quality of care being

provided to DPW patients and clients sent from Pennsylvania to facilities in

Florida, Texas, Oklahoma, Colorado, Utah, Virginia and other states in

circumstances when Pennsylvania lacked appropriate treatment resources or

facilities to treat those clients.

13. Dr. Kruszewski complained to his Commonwealth supervisors

and officials regarding the lack of qualifications and misconduct of a private

contractor and one of its doctors who regularly participated in the

reimbursement review process for which plaintiff had responsibilities. The

defendant Kozak became threatening and abusive when plaintiff raised

concerns that DPW had allowed said doctor to participate in the review and

reimbursement process given that said doctor was not appropriately

performing medical reviews and had an inactive retired license.

14. Additionally, plaintiff raised the following concerns to his DPW

supervisors and officials regarding the inappropriate care of DPW patients

and clients in the six months prior to his discharge from employment:

14.1 Off-label use of medications.

14.2 Misuse of medications.

Second Amended Complaint- Page 7

 14.3 Over medication.

14.4 Deaths of children under the care of the Pennsylvania Office of

Medical Assistance and BPI.

14.5. False or inappropriate billing of the Commonwealth for

medications, hospital and clinical care.

14.6. Mistreatment of children resulting in deaths in Pennsylvania,

Texas, and Oklahoma.

14.7. Inappropriate use of the Pennsylvania involuntary commitment

law.

14.8. Hispanic patients receiving inadequate translation services, and

illegal in-hospital detention.

14.9. The improper adoption of drug company sponsored TMAP

algorithms by DPW, and the state correctional systems.

14.10. A lack of adequate investigation and remedying of injurious

conditions suffered by children and others in custodial state care

14.11. Maintaining children in Pennsylvania Medicaid sponsored

facilities despite being aware that these children were no longer in need of

restricted placement.

Second Amended Complaint- Page 8

 14.12. Allowing unlawful treatment regimens to continue after being

made aware of pervasive abuses.

V. ADVERSE ACTIONS
15. The defendants Gorton and Kozak terminated the plaintiffs

employment on or about July 11, 2003 through Columbus Medical Services.

On the day of this termination, the defendant Gorton intentionally chose to

treat plaintiff in a humiliating and demeaning manner. In the course of

ordering plaintiff off of DPW premises, Gorton physically accosted plaintiff

and attempted to physically take documents from him. Thereafter, the

defendants Gorton and Kozak ordered the plaintiff's personal belongings and

desk items to be placed on the sidewalk in front of the DPW office, holding

plaintiff up to ridicule in the eyes of his colleagues and coworkers.

VI. CLAIMS FOR RELIEF

COUNT I: FEDERAL CLAIM UNDER 42 USC SEC. 1983

Deprivation of First Amendment Right to Speak out on Matters of

Public Concern

16. Paragraphs 1 through 15 above are incorporated herein by

reference.

Second Amended Complaint- Page 9

 17. Dr. Kruszewski had a First Amendment right to speak out on

important matters of public concern without fear or threats or intimidation

sufficient to deter a person of reasonable sensibilities from expressing

themselves.

18. In terminating the plaintiffs employment motivated in whole or

in part by a desire to punish plaintiff for the above referenced protected

activity, the defendants Gorton and Kozak violated plaintiffs federally

guaranteed rights under the First Amendment to speak out on matters of

public concern.

19. Plaintiff has suffered damages for wages and contract rights lost,

and for pain and suffering, humiliation, embarrassment, and emotional

distress.

COUNT II: STATE LAW CLAIM

Breach of Contract against Columbus Organization

20. Under the written contract Columbus Medical Services had

entered into with the plaintiff, Columbus promised to make reasonable efforts

to prevent DPW from imposing any unfair termination of his services.

21. However, when the DPW defendants terminated plaintiffs

services in retaliation for having exercised his First Amendment rights,

Second Amended Complaint- Page 10

Columbus failed to undertake reasonable efforts to prevent the retaliatory

termination. Instead, the defendant Columbus concurred in the dismissal of

the plaintiff, did not offer to assign him to an alternate employer, and

removed him from the Columbus payroll. The defendant Columbus thereby

breached its contract of employment with the plaintiff.

22. As a result of his discharge from employment, plaintiff suffered

damages in an amount equal to the compensation and wages he would have

received had the contract not been breached, and consequential damages in

having to make expenditures for alternate employment and gainful activity,

together with the costs and expenses of this action.

VII. PRAYER FOR RELIEF

Wherefore the plaintiff demands judgment as follows:

1. Against the defendants Gorton and Kozak jointly and severally for

the violation of his First Amendment rights in the amounts of at least

$500,000 for economic damages, and $1,000,000 for humiliation and

embarrassment, and emotional distress, the exact amounts of these damages

to be determined by the jury after trial;

Second Amended Complaint- Page 11

 2. Against the defendant Columbus Medical Services for breach of

contract in the amount of $500,000 for economic and consequential damages;

and

3. Against all defendants for the costs and expenses of this action, and

against the defendants Gorton and Kozak for plaintiffs reasonable attorney's

fees, and such other relief as the court may deem appropriate.

Respectfully submitted,

Thad M. Guyer
Government Accountability Project
1612 K Street, NW, Suite 1100
Washington, DC 2006
Tel: (541) 210-1305
Fax: 888.866.4720
thad@whistleblowerdefenders.com

Counsel for Plaintiff by Special Appearance

Second Amended Complaint- Page 12