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Witness Testimony of Christian Head, M.D., Associate Director--Chief of Staff--Legal and Quality Assurance, Greater Los Angeles VA Health Care System

Introduction

Chairman, Hon. Jeff Miller
Vice Chairman, Hon. Gus Bilirakis

Dr. Christian Head[1] comes before Congress to testify, not motivated by any political agenda, but based purely on a genuine interest in seeking solutions to address employee mistreatment, but most importantly, to improve the healthcare provided to our Country’s heroes.  Dr. Head submits this testimony in response to Congress’s request to appear and testify on this issue.

Dr. Head is uniquely qualified to testify regarding issues within the VA system.  Dr. Head is a world-renown, board certified Head and Neck Surgeon.  Between 2002 through 2013, Dr. Head held dual appointments at the UCLA David Geffen School of Medicine becoming a tenured Associate Professor in Residence of Head and Neck Surgery, as well as an attending surgeon at the West Los Angeles Campus of the VA Greater Los Angeles Healthcare System (“GLAHS”).  In 2007, Dr. Head was promoted to Associate Director, Chief of Staff, Legal and Quality Assurance within GLAHS.

Dr. Head’s clinical and academic successes over the years have been numerous.  However, despite Dr. Head’s many accomplishments and contributions to the medical profession, Dr. Head has endured and witnessed, firsthand, illegal and inappropriate discrimination and retaliation of physicians, nurses, and staff members within GLAHS.  Throughout this testimony, Dr. Head will speak on the growing number of complaints coming from VA employees, complaints ranging from racial, gender, and age discrimination and harassment to complaints regarding substandard patient care and treatment.

Additionally, Dr. Head will address the inappropriate and often illegal response, or at times lack of response, by VA administration in regards to complaints by hospital employees.  For example, this testimony will focus on how administrators and supervisors within GLAHS have created a climate of fear and intimidation, where the system not only fails to protect whistleblowers, but actively seeks to retaliate against them.

Further, Dr. Head’s testimony here will discuss the general lack of accountability of VA administrators and supervisors who actively retaliate against and ostracize hospital employees who attempt to speak out against illegal behavior.  Dr. Head will testify, firsthand, about the climate within the GLAHS which perpetuates this illegal behavior, due in large part to the system’s failure to take any action against certain individuals.  Specifically, how wrongdoers are left in positions of high leadership to continue their illegal behavior without recourse.

Dr. Head’s testimony will further discuss how the current morale of employees within GLAHS is dangerously low.  Dr. Head’s testimony will discuss how the system’s failure to properly respond to complaints leaves employees within GLAHS with a sense of helplessness, creating undue stress and anxiety amongst those attempting to provide quality healthcare to our Country’s veterans.  

Finally, but most importantly, Dr. Head’s testimony here will explain how this dangerous climate of intimidation and retaliation against whistleblowers negatively affects patient care.  Dr. Head will discuss how he has witnessed, firsthand, veterans receiving below-standard healthcare, or no healthcare at all, because of the retaliatory behavior and lack of accountability within the system.

Background

Dr. Christian Head is a prominent Head and Neck Surgeon, known worldwide.  As some would say, “one of our finest surgeons in Southern California. . . .  [Who is] generous with his time and talent, helping Veterans and giving back to our community both locally and nationally. . . .   [W]ho will make a difference in our world with his skills as a surgeon, his scientific research and laboratory.”  Unfortunately, Dr. Head has been the victim of outrageous racial harassment, discrimination, and retaliation occurring within GLAHS.

Dr. Head obtained his Doctor of Medicine degree from Ohio State University, College of Medicine in 1993.  Between 1992 and 1993, Dr. Head completed an Internship in Surgery at the University of Maryland at Baltimore.  Between 1994 and 1996, Dr. Head commenced his employment with a Fellowship in Neuro-Otology Research at UCLA School of Medicine.  Between 1996 and 1997, Dr. Head completed a Surgical Internship at UCLA School of Medicine.  Between 1997 and 2002, Dr. Head worked as a Resident in the UCLA School of Medicine Head and Neck Surgery Department.  In 2002, Dr. Head joined the faculty as a Visiting Professor in Head and Neck Surgery at UCLA.  In 2002, Dr. Head also joined GLAHS.  During his time with GLAHS, Dr. Head worked as a Head and Neck Surgeon, and in 2007, was promoted to Associate Director, Chief of Staff, Legal and Quality Assurance within GLAHA.  In August 2003, Dr. Head joined the faculty of the UCLA Geffen School of Medicine as a full time Head and Neck Surgeon.  Dr. Head left UCLA in 2013.  Dr. Head has been board certified in Head and Neck Surgery since June 2003. 

Over the years, Dr. Head’s work has included clinical practice, surgery, academia, and research.  Dr. Head has received accolades for his work, including the National Institute for Health–National Cancer Institute Faculty Development Award.  In or around 2001 to 2002, Dr. Head was nominated for the UCLA Medical Center Physician of the Year award.  In or around November 2003, Dr. Head launched the UCLA Jonsson Cancer Center Tumor Lab, which has been tremendously successful, yielding valuable research and benefitting many physicians and patients at UCLA and worldwide.  In 2003, Dr. Head was one of a few surgeons nationwide to receive the Faculty Development Award from the National Institute of Health Comprehensive Minority Biomedical Branch, intended to increase the number of minority physicians in cancer research at major academic institutions.

An important point relevant to this testimony includes the relationship between GLAHS and the University of California, Los Angeles (“UCLA”).  UCLA has several affiliated hospitals, one of which includes GLAHS.  As part of this affiliation, UCLA provides physicians and surgeons to staff GLAHS.  Until his departure from UCLA in July 2013, Dr. Head worked at both entities under this UCLA/GLAHS affiliation.[2]

Dr. Head’s supervisors include Marilene Wang, M.D. (“Dr. Wang”), UCLA/GLAHS Head and Neck Surgeon and Dr. Head’s immediate clinical supervisor at GLAHS; Dean Norman, M.D. (“Dr. Norman”), GLAHS Chief of Staff; Matthias Stelzner, M.D. (“Dr. Stelzner”), GLAHS Chief of Surgical Services; and Donna Beiter, RN, MSN (“Ms. Beiter”), GLAHS Director.  Dr. Head’s immediate supervisor at UCLA was Gerald Berke, M.D. (“Dr. Berke”), Chairman of the UCLA Department of Head and Neck Surgery, who has tremendous power and influence at GLAHS.

Discrimination and Retaliation Against Dr. Head

Despite Dr. Head’s many accomplishments and contributions to the medical profession, Dr. Berke and Dr. Wang have made several inappropriate racial comments about black people, including Dr. Head.  In or around 2003, Dr. Wang made comments that Dr. Head was hired as a Visiting Professor because he was an “affirmative action hire” and “affirmative action project.”  In or around 2003, Dr. Wang also publicly stated that Dr. Head is inferior because he is black, that he would not pass the boards, and that he was unqualified.  In or around 2003, Dr. Wang stated that “cream rises to the top,” that Dr. Head “would not make it in academic medicine,” and that Dr. Head and “doctors like him” who are black, were the reason for failed hospitals like King Drew.  In or around mid-2003, Dr. Berke stated that “we’re about to have some color” in the department.  Dr. Berke also stated, “I guess we’ll have our first Nigger” now. 

From 2003 to present, Dr. Head has lived with Dr. Wang’s threats and affirmative actions to destroy Dr. Head’s career, reputation, and ability to earn a living.  In that regard, in 2003, Dr. Wang, who has supervisory authority over Dr. Head at GLAHS and prepared evaluations of his performance, clearly indicated it was her intention to prevent Dr. Head from receiving promotions, full time equivalents, tenure, and advancement.  Dr. Wang’s discriminatory conduct has been continuous and consistent throughout Dr. Head’s employment. 

Starting in or around 2003, Dr. Wang began stating to other surgeons that she fully intended to interfere with Dr. Head’s professional advancement, in part by giving Dr. Head subpar evaluations and falsely attacking Dr. Head’s credentials and performance at GLAHS.

In March 2004, Dr. Head submitted an EEO complaint outlining the discriminatory and hostile behavior against him by Dr. Wang.  (A true and correct copy of this EEO complaint is attached hereto as Exhibit 1.)

In or around June 2004, Dr. Wang was ordered by UCLA officials to stop submitting negative evaluations about Dr. Head after Dr. Wang was reported by Dr. Head as having called Dr. Head an “affirmative action hire,” amongst other racist comments.  At that time, Dr. Wang promised not to interfere with Dr. Head’s career advancement.  However, in direct violation of this order, Dr. Wang continued to submit negative supervisor evaluations at GLAHS regarding Dr. Head’s performance, which evidenced her obvious racial bias against Dr. Head.  Dr. Wang’s ongoing harassment and retaliation against Dr. Head in this way continued to negatively impact Dr. Head’s career advancements.

In or around November 2005, Dr. Wang gave Dr. Head a retaliatory and harassing evaluation of his teaching and performance at GLAHS in an attempt to interfere with his advancement at UCLA.  Dr. Wang rated Dr. Head a 1 out of a possible 4 points in his review.  Dr. Wang further wrote that Dr. Head “doesn’t teach, yells at junior residents,” “poor availability, doesn’t respond to messages,” and “poor example & role model for residents.”  Dr. Wang’s performance review was in sharp contrast to reviews and comments made by other colleagues.

On or about February 2, 2006, Dr. Head sent a letter to Dr. Rosina Becerra (“Dr. Becerra”), then-Vice Provost for Faculty Diversity and Development at UCLA, regarding this harassment, discrimination, and related problems at UCLA and requested financial and other support to stop the harassment, retaliation, and interference with his career advancement.  Dr. Head also requested that he be assigned more time working at UCLA in order to be removed from Dr. Wang’s supervision at GLAHS.  In response, Dr. Becerra told Dr. Head that she could not help him, and warned Dr. Head it was not a good idea to participate in an investigation against Dr. Wang.

In or around April 2006, Dr. Head was contacted for the first time by Investigator Nancy Solomon (“Investigator Solomon”) of the Office of Inspector General (“OIG”) regarding an investigation of Dr. Wang for time card fraud concerning work Dr. Wang performed at GLAHS.  Dr. Head learned from Investigator Solomon that Dr. Wang was under investigation by the federal government for submitting and/or approving false time cards pertaining to services provided at GLAHS.  Dr. Head was asked by Investigator Solomon to testify about Dr. Wang’s involvement in time card fraud.  Dr. Head requested protection from Investigator Solomon, stating that he feared retaliation for his participation in the investigation.  With a promise by Investigator Solomon regarding protection from retaliation for his cooperation, Dr. Head testified in an OIG deposition regarding Dr. Wang’s time card issues.

The OIG investigation concluded that Dr. Wang had in fact committed time card fraud.  There was a recommendation by the OIG that Dr. Wang be removed from her leadership position and terminated from GLAHS; however, Dr. Wang’s immediate supervisor, Dr. Berke, took steps to save Dr. Wang’s job and leadership position—UCLA transferred vacation hours to Dr. Wang’s account and research funds were transferred from Dr. Berke.  Additionally, Dr. Berke approached Dean Norman, M.D. (“Dr. Norman”), GLAHS Chief of Staff, to request that Dr. Wang not be terminated.  Due to Dr. Berke’s intervention and powerful influence, Dr. Norman did not terminate Dr. Wang, did not dock her pay, and did not remove her from her leadership position as Chief of Head and Neck Surgery at GLAHS, despite the recommendation for termination by the OIG.  In fact, the only action taken was a written warning issued to Dr. Wang and termination of a subordinate.

Prior to Dr. Head’s participation in the time card fraud investigation of Dr. Wang, Dr. Head had been nominated for Head and Neck Department teacher of the year.  However, following Dr. Head’s participation and truthful testimony in connection with Dr. Wang’s time card fraud investigation in April 2006, Dr. Berke and Dr. Wang escalated their campaign of intimidation, harassment, discrimination, and retaliation against Dr. Head.

In or around April/May 2006, Dr. Head met with Dr. Berke to discuss Dr. Head’s total compensation package for the academic year 2006-2007.  Dr. Berke threatened Dr. Head stating, “If you complain about Dr. Wang,” and about not getting the compensation enhancement (a Full-Time Equivalent (“FTE”) that was available, which Dr. Wang denied Dr. Head and gave to another surgeon from outside the hospital), “you won’t get anything, you’ll be removed.”

In or around April/May 2006, shortly after Dr. Head provided deposition testimony to the OIG, Dr. Wang discussed with the residents of the UCLA Head and Neck Department, whom she supervised and worked with, about Dr. Head’s participation in the time card fraud investigation.  In addition, Dr. Wang spoke with many of the residents who worked under her supervision as they each testified in the time card fraud investigation.  As a result, these residents, began to participate in the intimidation, harassment, discrimination, and retaliation of Dr. Head.  Dr. Head began to experience horribly offensive discriminatory comments, graphic racial photos, and retaliatory actions and statements.

In or around May 2006, Dr. Head reported to Dr. Dennis Slamon (“Dr. Slamon”) that he was being harassed and retaliated against by Dr. Berke and Dr. Wang and was worried about his future.  Dr. Slamon responded, “They [Dr. Berke, Dr. Wang, and Dr. Abemayor] think you ratted out Wang in the IG investigation.  You need to keep your head down and stay out of this.  Don’t complain.” 

In or around May 2006, Dr. Head requested a full-time appointment at GLAHS, but did not receive the appointment despite being more qualified than other choices.

In or around June 2006, at the year-end closing ceremony and party for the UCLA Head and Neck Department—attended by approximately 200 people including UCLA and VA faculty, staff, chairs, residents, and spouses—the resident class presented a slide show.  The slide show, presented by the Residents had an entire section about Dr. Head.  These slides, directed toward Dr. Head, were exceptionally vulgar, disturbing, defamatory, discriminatory, retaliatory, humiliating, degrading, disgusting, demoralizing, and racist.  One slide, referencing the OIG time card fraud investigation of Dr. Wang, showed Dr. Head on the telephone and read: “If all else fails call 1-800-488-VA IG.”  (See Exhibit 2.)  The other slides throughout the presentation were similar to Dr. Wang’s comments in her performance “evaluations” of Dr. Head: that he is a bad doctor, bad researcher, and bad teacher. 

In or around June 2006, Dr. Head’s surgical practice was restricted, and more complex surgical operating room time was being given to vastly under qualified surgeons. 

In or around December 2006, Dr. Wang continued to submit false critical evaluations of Dr. Head, assigning him the lowest marks possible.  Caused by her malice, personal vendetta, and discriminatory bias towards Dr. Head, Dr. Wang’s false evaluations were defaming to Dr. Head’s professional reputation, criticizing his competence generally and as a teacher, researcher, and mentor.

In or around early 2007, Dr. Head learned that Dr. Berke and Dr. Wang were planning on terminating Dr. Head’s employment if given the opportunity.  Consistent with the repeatedly expressed intention to remove Dr. Head, Dr. Berke and Dr. Wang micromanaged Dr. Head’s performance, concerning trivial matters or matters that were entirely manufactured.  Although Dr. Head actively and successfully thwarted Dr. Berke’s and Dr. Wang’s efforts to vex, annoy, and harass him into voluntarily resigning his position, Dr. Wang continued to provide negative evaluations of Dr. Head between 2007 and 2008.

In or around December 2007, Dr. Wang submitted another critical evaluation of Dr. Head giving him all 1’s out of 5’s.  Dr. Wang made false statements such as: “Difficult to reach on pager.”  “No tangible research activity.”  “Poor role model.”

On or about May 5, 2008, Dr. Wang again submitted a Teaching Evaluation—knowing it was to be submitted into Dr. Head’s Promotions Packet for tenure decisions—marking all 1’s (Unsatisfactory), stating “poor clinical judgment, poor availability, poor role model.”  (See Exhibit 3.)  Dr. Wang continued to provide negative false information and evaluations about Dr. Head, despite orders to stop. 

In or around July 2008, in a further attempt to harass and retaliated against Dr. Head, he was wrongfully accused of ten counts of timecard fraud and lying to his supervisor.

In July 2008, Dr. Head was forced to file another EEO complaint regarding the threatening and retaliatory treatment against him by VA administrators and supervisors.  (A true and correct copy of this EEO complaint is attached hereto as Exhibit 4.) 

In or around August 2008, in order to further retaliate against Dr. Head, his salary was reduced.  At this time, in order to undermine Dr. Head’s teaching, a fee-based physician was hired in the clinic to see Dr. Head’s patients at an increased cost to GLAHS.

In or around August 2008, Dr. Head was transferred to the Quality Assurance program to minimize the retaliation by management resulting from his 2004 EEO complaint.

On or about September 10, 2008, Dr. Michael Mahler (“Dr. Mahler”), Chief of Organizational Improvement at GLAHS wrote a detailed account of the harassment, discrimination, and retaliation against Dr. Head.  In this letter, Dr. Head was exonerated of timecard fraud.  Furthermore, it was found that “Dr. Stelzner and Dr. Wang improperly treated Dr. Head differently than other members of the section.”  (See Exhibit 5.)

In early 2009, Dr. Head again consulted with Dr. Becerra regarding Dr. Wang’s unfair and improper evaluations of Dr. Head and her treatment of Dr. Head in assignments and research opportunities.  Dr. Becerra responded, “Oh my God, here we go again.  I am going to legal with this.”  Dr. Becerra replied, “Come back to see me if you don’t get tenure, otherwise you’re not damaged.”

In or around January 2009, in an attempt to further sabotage Dr. Head’s tenure and career advancement, Dr. Wang again submitted false evaluations of Dr. Head.

On several occasions, regarding Dr. Wang’s unfair treatment and improper evaluations of Dr. Head’s performance, Dr. Head individually met with Dr. Gold, Dr. Rosenthal, Dr. Mechoso, and Dr. Becerra, all of whom communicated a similar message that if Dr. Head wanted tenure, he better not take any action against Dr. Wang.

In or around January 2009, Dr. Head presented to Dr. Richard H. Gold (“Dr. Gold”), Assistant Dean of Academic Affairs, a report conducted at GLAHS showing findings that Dr. Wang was biased against Dr. Head in her evaluations of his performance, assignments, and research.  When Dr. Head first received this report, Dr. Head informed Dr. Berke that he had this report and could prove that Dr. Wang was treating him differently and unfairly in assignments and research opportunities.  Dr. Berke offered to pay Dr. Head for the report saying, “How much do you want for the report?  You can’t release that report.”  Dr. Head replied he did not want money, he wanted to be treated fairly and to receive the tenure he deserved and had earned.

In or around October 2009, another GLAHS employee reported being transferred to another department and refused promotion for not submitting false reports against Dr. Head concerning his attendance at GLAHS.

Also around this time, prior to Dr. Norman’s vacation to Fiji, Dr. Head and Dr. Norman met to discuss Dr. Head’s fear of more intense retaliation and loss of income at GLAHS.  Dr. Norman stated that Dr. Head would be protected with a significant salary increase; however, that increase never occurred, instead, Dr. Head endured further retaliation.  On information and belief, Dr. Norman later told a faculty member on his trip to Fiji that “he really liked Dr. Marilene Wang and that they had a good relationship.”

In or around September through November 2010, Dr. Head participated as a witness, and later in March through October 2011, and even through today, Dr. Head has testified on behalf of Dr. Jasmine Bowers in a racial discrimination case against GLAHS.  Dr. Wang is on the peer-review panel at GLAHS and considered a witness in the Bowers Case.  Immediately after Dr. Head participated in the Bowers Case, Dr. Berke, Dr. Wang, and Dr. Norman escalated the retaliation and harassment against Dr. Head.

In or around June 2011, in an effort to further discredit Dr. Head, Dr. Wang began making accusations of wrongdoing against Dr. Head.  Dr. Wang stated to a group of surgeons that Dr. Wang was sure Dr. Head would not last long and that he would be investigated at GLAHS where Dr. Wang is Chief of Head and Neck Surgery.

In or around September 2011, Dr. Norman confronted Dr. Head, stating “you’re a bad doctor” and wrongfully accusing Dr. Head, claiming “you’re never here” and asking Dr. Head about his work hours.  Dr. Norman threatened Dr. Head stating “I’m very worried about you.”

In or around October 2011, James Itamura, EEO Investigator, wrote a detailed account of the harassment, discrimination, and retaliation occurring against Dr. Head at GLAHS, which was provided to the Office of Special Counsel.  (See Exhibit 6.)

On or about October 25, 2011, Dr. Head was on an emergency call at UCLA when he contacted Vishad Nabili, M.D. (“Dr. Nabili”) to cover for him on an elective surgery at GLAHS.  A few days later, Dr. Head learned that he was accused of not showing up for a surgical procedure, which was reported to Human Resources.  Despite his promise to correct Dr. Head’s time cards to correctly reflect Dr. Head’s work, Dr. Norman charged Dr. Head with being Absent Without Leave (“AWOL”) and reduced Dr. Head’s pay approximately $7,000.

Around this time, Dr. Head was being told by co-workers that Dr. Norman was trying to push Dr. Head out of GLAHS.  In or around November 2011, Dr. Joel Sercarz (“Dr. Sercarz”), fellow Head and Neck Surgeon at UCLA, informed Dr. Head that Dr. Wang told Dr. Sercarz that GLAHS was planning to “get [Dr. Head] on time card fraud.”  Dr. Head reported these allegations to Dr. Norman and others.  In retaliation, Dr. Norman tried to restrict Dr. Head’s tour of duty.

On or about November 20, 2011 Dr. Norman ordered his assistant to mark Dr. Head AWOL for 90% of the pay period.  This action resulted in severe financial distress for Dr. Head, causing his house to go into foreclosure.  Despite Dr. Head providing evidence showing he in fact did work his tour of duty, Dr. Norman did not turn in Dr. Head’s time cards for several weeks.  It was not until after Congresswoman Karen Bass and others inquired into Dr. Head’s pay, that Dr. Head finally received a check. 

On November 23, 2011, Dr. Head filed a formal EEO complaint.

On or about April 17, 2012, Dr. Head filed a lawsuit against the Regents of the University of California and certain individuals.  The case, Christian Head, M.D. v. Regents of the University of California, et al., Case No. BC 482981, was filed in Los Angeles Superior Court.  In or around July 2013, the case was settled and “The matter has been resolved to everyone’s satisfaction.”

On or about July 18, 2013, UCLA release a statement which read:

The Regents of the University of California and Dr. Christian Head today reached a settlement in a civil case he brought against the University last year. The case presented difficult issues of alleged discrimination and retaliation that were strongly contested.

The University acknowledges that in June 2006 during an end-of-year event, an inappropriate slide was shown. The University regrets that this occurred. The University does not admit liability, and the parties have decided that the case should be resolved with a mutual release of all legal claims. The matter was settled to the mutual satisfaction of the parties.

(A true and correct copy of this press release is attached hereto as Exhibit 7.)

Unfortunately, the retaliation against Dr. Head did not stop with Dr. Head himself, but spread to anyone that even attempted to support Dr. Head or provide truthful testimony on Dr. Head’s behalf.  In or around June/July 2012, Dr. Jeff Suh (“Dr. Suh”), fellow Head and Neck Surgeon at UCLA, told a representative of a sinus surgery supply company not to assist Dr. Head with necessary surgical supplies or with his lawsuit or the representative would lose all business at UCLA.  Around this same time, Dr. Suh also threatened Dr. Sercarz not to assist Dr. Head with his lawsuit or his complex surgical cases or he would not receive help or referred cases.  Dr. Suh claimed he was speaking on behalf of Dr. Wang in regards to these threats.  Because of this retaliation, Dr. Sercarz was forced to bring his own civil action to protect his name and reputation.  (A true and correct copy of this civil complaint is attached hereto as Exhibit 8.)

On or about August 2, 2012, in further harassment and retaliation against Dr. Head, Dr. Wang refused to treat one of Dr. Head’s patients, leaving the patient in the emergency room for days, using the patient’s care and safety as a weapon against Dr. Head, creating a hostile environment and jeopardizing patient safety.

Dr. Head was one of the first to draw attention to the delay in care and the backlog of patients within the VA system.  On November 16, 2012, Dr. Head sent Dr. Norman an email discussing the issue of delayed patient care at the VA.  Specifically, Dr. Head informed Dr. Norman that the delayed diagnosis of cancer was a major issue facing the VA.  (A true and correct copy of this email and accompanying attachments is attached hereto as Exhibit 9.)

In or around May 2014, Dr. Head learned that VA administrators had improperly taken approximately 60-100 days of sick leave time and approximately 80-90 days of vacation time from Dr. Head in retaliation for Dr. Head’s protected whistleblower activity, specifically, Dr. Head’s truthful testimony regarding Dr. Wang’s illegal time card fraud, testimony in support of Dr. Bowers’s racial discrimination case, and reports of delayed care and backlog of veterans within the VA system.  Less than two months ago, administrators within GLAHS retroactively took these accrued time-off days, falsely claiming that Dr. Head had previously failed to enter his time.

Retaliation Against Other Whistleblowers

Because of Dr. Head’s leadership position within GLAHS and his willingness to stand up against wrongdoers within the system, Dr. Head has become aware of many other VA employees who are enduring their own retaliation.

Incident 1:

One instance involved a 53-year-old African American woman, Dr. Jasmine Bowers (“Dr. Bowers”), who is a board-certified anesthesiologist and has practiced in anesthesia and pain management for over 24 years.

In May 2010, Dr. Bowers was offered a per-diem, fee-basis position, which was an hourly position with capped weekly hours, and no benefits.  Because of the dire need for anesthesiologists at the VA, Dr. Michelle Braunfeld (“Dr. Braunfeld”), chief of anesthesiology, assured Dr. Bowers that the appointment would likely last longer than a year.  When Dr. Bowers inquired about full-time positions, Dr. Braunfeld stated that the only available position was for an acute pain specialist.  Having her fellowship in pain management, and more than twenty years of experience in the field, Dr. Bowers expressed interest in the position.  Dr. Braunfeld was dismissive, and stated Dr. Bowers would likely have to have board certification in pain management to be hired for the position. Unbeknownst to Dr. Bowers, Dr. Braunfeld had advertised for a “general anesthesiologist” position in May 2010.  In addition, at or around the same time Dr. Bowers was hired (in June 2010), Dr. Braunfeld offered a full-time, FTE anesthesiologist position to Dr. Corey Downs (“Dr. Downs”), who began working at the VA in approximately July 2010.  Dr. Downs was fresh out of his residency at UCLA, and was not board certified in anesthesia.  Dr. Bowers began her fee-basis appointment on or about July 6, 2010, but continued to make inquiries regarding a full-time FTE position.  At one point in her employment, Dr. Bowers overheard Dr. Braunfeld stating to someone else, “We can’t hire certain people for full time jobs because it’s too hard to get rid of them.”

After beginning her fee-basis position, Dr. Bowers began to experience demeaning and disrespectful conduct from the certified nurse anesthetists (“CRNAs”) at the VA.  The harassment began with relatively minor incidents, including several CRNAs referring to her by her first name, and one particular CRNA, Krista Douglas (“Douglas”) making a rude comment in the CRNA lounge.  Douglas and other CRNAs reprimanded Dr. Bowers in front of others, including patients, and were consistently treating her with disdain and disrespect.  In over 24 years of practice working with nurses and CRNAs without such issues, Dr. Bowers decided to speak to the lead CRNA, Dana Grogan (“Grogan”) and Dr. Braunfeld about her concerns.  After she complained, the harassment escalated.  Douglas refrained from speaking to her altogether, and refused to relieve her during surgeries, in spite of her duty to do so.  On one occasion, Dr. Bowers had a conversation with a man working at an administrative desk in the surgery department, Terry Woods (“Woods”), and mentioned her issues with Douglas. Woods told her that Douglas had treated another African American anesthesiologist in a similar manner, and told Dr. Bowers to “watch her back.”

Following a surgery on September 14, 2010 in which Dr. Bowers administered anesthesia, Grogan went to Dr. Braunfeld with printouts from the blood pressure monitor (“strips”) from the surgery, and the intra-operative anesthesia one-page report, but not the patient’s chart. Grogan claimed that she went to Dr. Braunfeld to report her concerns about the patient’s low blood pressure and what she found to be discrepancies between the handwritten chart and the blood pressure monitor strips.  Dr. Braunfeld then went to Dr. Stelzner with her concerns, and then went to the Chief of Staff, Dr. Norman.  Dr. Braunfeld later stated that she discussed her concerns with Dr. Norman and that they agreed to remove Dr. Bowers from the September schedule, and investigate the matter.  Dr. Norman told Dr. Braunfeld to obtain a written response from Dr. Bowers.  At the end of that day, and after Dr. Bowers was allowed to administer anesthesia all day, Dr. Braunfeld brought Dr. Bowers into her office and accused her of falsifying medical records and allowing a patient to remain hypotensive for 45 minutes during the surgery, essentially endangering the patient.  Dr. Braunfeld told her she would not be allowed to return to work, pending an investigation, and did not ask Dr. Bowers to provide any written response.  Dr. Bowers asked to be allowed to provide a written response, which she did on September 20, 2010.  In her response, Dr. Bowers requested an independent, administrative review of the case, and expressed that she was shocked and upset at being accused of misconduct, especially in light of the fact that the surgery had no complications and was successful.

The VA obtained a report from Dr. Nitin Shah (“Dr. Shah”) who is an expert, author, professor, and anesthesiologist at the Long Beach VA.  On November 2, 2010, Dr. Shah spoke with Dr. Mahler, deputy Chief of Staff and head of Risk Management about his findings.  Dr. Shah stated that while there were some discrepancies between the hand-written chart and the monitor strips, he did not believe there was any misconduct in charting.  He also found no negligence, nor patient endangerment, by Dr. Bowers, in light of the patient’s history of low blood pressure, and successful outcome of the surgery with no complications.  Dr. Shah expressed that he was troubled by Grogan’s failure to mention her purported “concerns” during the surgery to her supervising anesthesiologist or to the surgeon.  Although instructed by the VA not to comment on the standard of care, Dr. Shah submitted a report on November 4, 2010, with his findings.  He stated that out of 16 blood pressure chart entries, 7 attributed to Dr. Bowers were inconsistent with the monitor readings.  He stated that this may be the result of “sloppiness,” but not misconduct.  He also stated that discrepancies in charting do occasionally happen when the anesthesiologist is managing other aspects of the patient’s care.  He reiterated his determination that there was no patient endangerment in the management of the patient’s blood pressure by Dr. Bowers during the surgery.

Dr. Head, in his role as head of Quality Assurance, reviewed the patient’s charts and records. He spoke with the surgeon, the resident who participated in the surgery, the supervising anesthesiologist, and the CRNA and Dr. Raj who started the case.  After determining there was no issue with the patient’s low blood pressure, he told Dr. Norman and Dr. Mahler that he was troubled with the manner in which Dr. Bowers was being treated.  Dr. Head also heard other medical staff discussing the case, and people stating that Dr. Bowers had “almost killed a patient.”  This was determined to have started with Grogan, and Dr. Head heard the same comment from Sandra Riley-Graves, an administrative assistant in Dr. Norman’s office.  Shortly after discussing his findings with Dr. Norman, Dr. Head overheard Riley-Graves state, “It’s a black thing” to Dr. Mahler, implying that Dr. Head was supporting Dr. Bowers because he was also African American.  After he heard Dr. Mahler yelling at Riley-Graves behind the closed office door, Dr. Mahler came out of the office and told Dr. Head to “stand down” on the investigation and leave it alone.

Dr. Braunfeld never contacted Dr. Bowers again, and never provided Dr. Shah’s report to Dr. Bowers. In spite of Dr. Shah’s favorable review, that there was no negligence, misconduct, or patient endangerment, Dr. Bowers was never reinstated or placed back on the schedule.

Shortly after Dr. Bowers initiated the EEO process, Congresswoman Diane Watson wrote to Donna Beiter (“Beiter”), Director and CEO of the VA, with her concerns and questions about ongoing discrimination at the VA. The VA’s response to Congresswoman Watson contains inconsistencies.  For example, Beiter stated that Dr. Bowers never provided a response to the allegations, which was false.

Dr. Bowers initially contacted the EEO office on September 30, 2010.  The EEO Office issued a Notice of Acceptance.  After conducting its investigation, the EEO’s assigned investigator, James Itamura, concluded that a culture of racial and age discrimination exists in the anesthesiology department at the VA, wherefrom Dr. Bowers and other older and non-white anesthesiologists were removed in order to make room for younger replacements from UCLA.

Incident 2:

Dr. Saroja Rajashekara (commonly referred to as “Dr. Raj”) was a cardiac anesthesiologist at the VA from 2002 to 2011.  Dr. Raj reported to the EEO Investigator she observed and experienced age discrimination at the VA.  While she was initially hired by then-Chief of Anesthesia, Richard Chen, Dr. Raj worked under Dr. Braunfeld after she became Chief of Anesthesia in January 2010.  After her mother became ill in early 2010, Dr. Raj took leave (which was approved) to visit her mother in India.  While she initially expected to return in early May, she sent correspondence to Dr. Braunfeld stating that she needed to extend her leave.  Dr. Braunfeld contacted the HR Department at the VA asking how to deem Dr. Raj AWOL.  In Dr. Braunfeld’s correspondence with HR, she lied about her prior contact and correspondence with Dr. Raj.  As a result, Dr. Raj was considered “AWOL” and was removed from the cardiac schedule.  She ultimately provided evidence of her contact with Dr. Braunfeld, and the AWOL status was removed from her personnel file; however, Dr. Braunfeld did not reinstate her on the cardiac schedule.  Instead, Dr. Braunfeld had her replaced with younger UCLA graduates, who were far less qualified, with the knowledge and approval of Chief of Staff, Dr. Norman.

Dr. Raj reported to the EEO Investigator her concerns regarding Dr. Bowers’s treatment by the VA.  (See Exhibit 10.)  She was aware that there was a need for anesthesiologists at the time of Dr. Bowers’s hire at the VA, but Dr. Braunfeld was “holding” jobs for younger, less-qualified residents from UCLA.  Dr. Raj also remarked about the unusual manner in which Dr. Bowers was immediately removed from the schedule following the September 14, 2010 surgery.  Specifically, she stated it was not the typical protocol for a case such as Dr. Bowers’s to bypass the Quality Assurance process, and that Dr. Bowers was “fired” in spite of the patient having no complications.

Incident 3:

Dr. Carol Bennett, an African American woman, has worked at the VA for over 15 years and is currently the Chief of Urology.  Dr. Bennett filed an EEO complaint against Dr. Stelzner and Dr. Norman in 2005 based on race discrimination.  Dr. Bennett was discovered to have been allowing her nurse to use her CPRS code to sign off on prescriptions on the electronic chart, albeit with her full knowledge and consent.  On August 24, 2005, she received a letter from Dr. Stelzner advising her that she was placed on administrative leave.  Dr. Bennett was immediately taken off duty without an investigation.  She admitted to Dr. Stelzner her mistake, but that it was common practice among surgeons in order to move on to the next patient.  All of the entries were with the surgeons’ knowledge, and they would review and sign the chart later.  In her EEO complaint, Dr. Bennett addressed the fact that another non-African American physician was found to have a similar infraction, but was only given warnings.  She also complained that she was being “super-audited” by Dr. Stelzner, as compared to other  non-African American medical staff in the Department of Surgery.  After mediation, Dr. Bennett was fully reinstated as Chief of Urology.

Incident 4:

In another instance, an employee working as an EEO Counselor in the Office of Resolution Management was retaliated and terminated for making a protected whistleblower complaint.  This employee, considered to be one of the top EEO counselors in the nation, filed a report to internal investigators regarding missing EEO files which contained private personnel information of specific VA employees.  Because this employee’s report reflected negatively on his supervisor, Ms. Tracy Strub, Ms. Strub retaliated against the employee, initiating an unjustified Performance Improvement Plan. 

In or around July 2013, shortly after Dr. Head settled his lawsuit with UCLA, VA administrators questioned this employee about whether or not this employee had helped Dr. Head with his lawsuit.  This employee denied that he had helped Dr. Head, but because of this employees close relationship with Dr. Head, VA administrators did not believe him.  Within hours of this meeting, the employee was terminated.

Incident 5:

In another instance, Dr. Wang discriminated against a Nurse Practitioner working in the Head and Neck Department at the VA based on her national origin and Muslim faith.  After seeing this employee working with Dr. Head, Dr. Wang also told this employee not to work with Dr. Head or provide him any assistance with patient care.  Because of Dr. Wang’s discriminatory animus towards this employee, as well as continued retaliation against Dr. Head, Dr. Wang had the employee terminated the day before her probationary period ended.

Incident 6:

In a recent incident, an OR tech complained to VA management about dangerous conditions in the operating rooms, specifically, surgeons using dirty instruments while operating on patients.  Following this report, this employee was given both verbal and written reprimands.  Recently, the employee was suspended for 14 days for making these complaints.

Climate of Fear and Retaliation Within the GLAHS

As outlined above in detail, administration within GLAHS has created a climate of fear and intimidation, where the system not only fails to protect whistleblowers, but actively seeks to retaliate against them.  This retaliation by VA supervisors and administrators often takes shape through a similar process. 

Whistleblowers are first threatened and isolated, often being warned early that speaking out would not be beneficial to their career.  Whistleblowers are made aware, in no uncertain terms, that if you tell the truth, you will be punished.

If the whistleblower chooses to speak out despite the threats, they are quickly defamed and humiliated.  Supervisors and administrators will begin spreading false information about the whistleblower, suggesting to co-workers that the person is incompetent, lazy, and untrustworthy. 

Finally, supervisors place the whistleblower under intense scrutiny, looking for any reason to find fault in the person’s work.  Whistleblowers, who otherwise have had long, outstanding careers within the federal system, all of the sudden are subpar workers who begin receiving failing evaluations, verbal and written reprimands, salary cuts, transfers, demotions, and sometimes even being forced to retire, or worse, terminated.  Even those in high administration within GLAHS that attempt to do the right thing are not safe.  For example, Dr. Mahler, former deputy Chief of Staff and head of Risk Management, who provided a written statement in support of Dr. Head, was eventually forced out.

Administrators and supervisors with GLAHS have created a toxic environment with a clear message, if you do not follow the agenda and behave as a “team player,” you will suffer the consequences.  

Lack of Accountability

The current system within the VA is one of a general lack of accountability of administrators and supervisors who actively retaliate against and ostracize hospital employees who attempt to speak out against illegal behavior.  This climate only perpetuates this illegal behavior, due in large part to the system’s failure to take any action against certain individuals.  Specifically, wrongdoers are left in positions of high leadership to continue their illegal behavior without recourse.  In some circumstance, wrongdoers may even be promoted rather than disciplined. 

For example, the investigation regarding Dr. Wang led to a finding that Dr. Wang had committed time card fraud during a certain period of time in her leadership position at GLAHS.  However, rather than being disciplined, Dr. Wang was instead promoted.  Even worse, Dr. Head then was retaliated for providing truthful testimony in Dr. Wang’s time card fraud investigation. 

Leaders within GLAHS, such as Ms. Beiter and Dr. Norman, not only have played an active role in retaliating against whistleblowers, but in other cases have chosen to ignore certain occasions of retaliation by GLAHS supervisors.  Ms. Beiter and Dr. Norman have had many opportunities to take action against wrongdoers, but have chosen instead to look the other way.

Low Morale Amongst Healthcare Providers

Unfortunately, the current climate of fear and retaliation, coupled with the system’s failure to properly respond and hold wrongdoers accountable, has caused morale to be dangerously low, leaving employees within GLAHS with a sense of helplessness, creating undue stress and anxiety amongst those attempting to provide quality healthcare to our Country’s veterans.

Dr. Head has witnessed a general sense of fear amongst VA employees.  Workers within GLAHS have stated that they are scared to speak out for fear of being blamed and punished.  Good people who are used to doing the right thing and standing up for others want to speak out about issues throughout the system, but fail to do so for fear of jeopardizing their careers.

Negative Affect on Patient Care

The issue facing the VA system involves a growing epidemic in hospitals throughout our Country—hospital bullying.  This issue spans race, gender, religion, and politics because of the life and death danger it poses to patients.  This problem, while certainly applicable to the VA system, is an issue that plagues every hospital nationwide and must eventually be addressed by Congress.

In her MSNBC article, Hospital Bullies Take a Toll on Patient Safety, JoNel Aleccia outlines how hospital bullying “threatens patient safety and has become so ingrained in health care that it’s rarely talked about.”  (Exhibit 11.)  Additionally, in Dr. Kevin Pho’s article for FoxNews entitled Bullies in Hospitals?, he concluded that “targeting the toxic culture that perpetuates the problem [of hospital bullying] requires everyone to share responsibility.  Not just doctors, but nurses, hospital administration, and medical educators as well.  Only when every stakeholder is part of the solution do we stand a better chance of eliminating bullying behavior in hospitals altogether.”  (Exhibit 12.)  Dr. Pho’s article was a response to a highly-touted New York Times article by Theresa Brown entitled Physician, Heel Thyself, in which she detailed bullying behavior she experienced as a nurse and explained how hospital bullying poses a critical problem for patient safety which, not surprisingly, leads to a rise in medical errors.  (Exhibit 13.) 

Of course, all of these articles came after The Joint Commission published Sentinel Event Alert, Issue 40, on July 9, 2008 which described how:

Intimidating and disruptive behaviors can foster medical errors, . . . contribute to poor patient satisfaction and to preventable adverse outcomes, . . . increase the cost of care, . . . and cause qualified clinicians, administrators and managers to seek new positions in more professional environments. . . . Safety and quality of patient care is dependent on teamwork, communication, and a collaborative work environment. To assure quality and to promote a culture of safety, health care organizations must address the problem of behaviors that threaten the performance of the health care team.  (Exhibit 14.)

Unfortunately, health care organizations have not addressed the problem, and doctors, nurses, and hospital administrators are left to bully and belittle others; and sadly, anyone who dares speak out about this behavior threatens not only their job, but their entire career in the healthcare profession.

Possible Solutions

While this testimony has focused on current problems within the VA system, all hope is not lost.  The mission of the VA system is good and noble and should be maintained.  The VA system has some of the best healthcare providers in the world; however, certain changes must be considered.  There are a number of possible solutions that can be implemented to affect change and improve the system.

The first, and obvious, solution is one of leadership.  Administrators and supervisors within the VA system that are contributing to the current culture must be held accountable.  New leadership must be established—leaders who will encourage and welcome open discussion and dialogue, leaders who will root out divisive and intimidating behavior, and leaders who will create a safe and enjoyable atmosphere that focuses on top-quality patent care for our veterans. 

Another important improvement to the system would involve a change in the appointment scheduling of veterans.  Rather than the current process of adding patients to a long list based on when the person calls for an appointment, patients need to be assigned appointments based on conditions.  There is a Standard Operating Procedure (“SOP”) in place that could be updated and implemented which would greatly improve patient scheduling.  Based on SOP flowcharts, schedulers would be able to schedule more critically ill patients sooner, ensuring every veteran receives the proper healthcare he/she deserves. 

Additionally, there needs to be some type of computer accountability process implemented.  Currently, the computer records can be too easily manipulated to hide scheduling and patient backlog issues.  Hospital administrators should not be able to clear patient information unchecked.  Perhaps some type of centralized data collection can be created to ensure individual hospitals are not fraudulently changing records.

Finally, the current proposal of simply assigning more patients to already overwhelmed physicians is not the answer.  The system desperately needs to add additional primary care physicians.  Then, veterans should be matched up to one specific primary care physician.  This would allow the physician to establish a relationship with the patient and would create a vested interest with that physician who would then be more inclined to ensure his/her patient received proper medical care.  That way, if the physician’s patient is not receiving the needed care, that primary care physician would do what private practice physicians do and call his/her colleagues and follow up.  For example, Dr. Head’s wife, who is an interventional radiologist within the VA system, is deeply vesting in each of her patient’s healthcare and does what is needed to ensure her patients are receiving the proper health services.

Dr. Head provides this testimony with the hopes of finding solutions to address employee mistreatment and improve the quality of healthcare provided to our Country’s veterans.  As a long time employee within the VA healthcare system, Dr. Head is optimistic that appropriate changes can be implemented, and he looks forward to being an integral part of that change and the bright future that is ahead.

 

Dated: July 9, 2014                                                      By: ___________________________                                                                
                                                                                                CHRISTIAN HEAD, M.D.

For additional information, you may contact Dr. Christian Head through his attorneys:

Lawrance A. Bohm, Esq.
Bradley J. Mancuso, Esq.
BOHM LAW GROUP
4600 Northgate Blvd., Suite 210
Sacramento, CA 95834
Phone (916) 927-5574
Fax (916) 927-2046

 



[1] To avoid confusion, I will refer to myself in the third person throughout this testimony.

[2] While there may be additional information relevant to Dr. Head’s testimony, because of certain conditions, Dr. Head will focus his testimony here solely on incidents related to his employment at GLAHS.