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Witness Testimony of Dr. Charles Sherwood, M.D., Former Chief of Ophthalmology, G.V. (Sonny) Montgomery VA Medical Center

            Thank you, Mr. Chairman and members  of the subcommittee. What  follows is a  continuation of my testimony.   My name is Charles Sherwood.   I retired from  the VA in May 2011 as a physician with all of my 31 years of VA service at the G. V. "Sonny" Montgomery VA Medical Center.  During the past fifteen years the Jackson VAMC has had a diverse leadership who all share a common trait, a progressive failure of their moral compass.   The VA has a long and sordid history of intimidation  and retaliation against employees who dare to object to poor patient care.   On March 11, 1999 in this very room, the Subcommittee on Oversight and Investigations held a hearing entitled "Whistleblowing and Retaliation in the Department of Veterans Affairs".   In his opening remarks, Subcommittee Chairman Terry Everritt, cited testimony from a 1992 Committee on Government Operations report (Report 102-1062).  He focused on the section of the 1992 report entitled ''The DVA, Department of Veterans Affairs, discourages the reporting of poor quality care by harassing whistleblowers or firing them.''   Chairman Everett paraphrased from that section the words of Tom Devine, the director of the Government Accountability Project, who said "The Department of Veterans Affairs is a leader on the merit system anti-honor for one simple reason:  free speech repression has been a way of life at this agency".   (Full text at:   http://commdocs.house.gov/committees/vets/hvr031199.000/hvr031199_0f.htm).    I am dismayed to report to you that today, twenty years later, the leadership culture of the VA is unchanged with the exception of the improved sophistication with which it intimidates its employees.

            The federal trial, which is the basis for my Office of Special Counsel complaint and my complaint to the Mississippi State Board of Medical Licensure, exposed the fact that this erosion of ethical boundaries is a systemic problem for the VA.   Careerism and the pursuit of personal financial gain by members of the Senior Executive Service have virtually collapsed processes designed to assure patient safety.  The unbridled power of these individuals to take whatever measures are necessary to polish their images and incomes with unrealistic performance measure data must be curbed.   This federal trial proved that every conceivable level of management from the Undersecretary for Health to the service chief level were culpable in failing to protect veterans they are duty bound to serve.  Failure to act against wrongdoing is complicity with it.   The current management officials of VISN 16 and the Jackson VAMC are acting as a tight knit cabal.  They continue to act to protect and preserve their own power and money at the expense of patients and employees alike.  Despite public exposure  and media attention, there has been no interest from Veterans Administration Central Office (VACO) to assume accountability and correct this recurring disgrace.

            The federal civil suit  by three female radiologists was based on discrimination, a hostile, intimidating work environment, and retaliation.  It exposed the unprofessional practice of Majid Khan, a radiologist who admitted that he did not look at all images of every radiologic study for which he gave interpretations.   Even Dr. Khan's immediate supervisor and co-defendant, Dr. Vipin Patel, admitted under oath that Dr. Khan's conduct constituted "intentional medical negligence".  The motivation for this unprofessional conduct was money.   A radiologist's pay and performance evaluation was based on productivity as defined by the Relative Value Units (RVU) that the radiologist could produce.  The most complex radiologic studies generate the highest RVUs.

            As other radiologists randomly discovered an unusually high number of obvious, critical errors by Dr. Khan in patients who were returning for followup imaging studies ,  Dr. Hatten maintained a log of these errors.  This log was sent up the entire VA chain of oversight, which  included Dr. Michael Kussman, the VA Undersecretary for Health at the  time.   Of the 52 cases Dr. Hatten shared with VA leaders at every management level, including the Office of Inspector General, there were, for example,  five lung cancers having become inoperable by the time of their discovery.

            VA officials have said that they performed due diligence by having five separate examinations of Dr. Khan's professional conduct.   I provided the Office of Special Counsel a detailed explanation of the contrived nature of each of these reviews, administrative board of investigations (ABI), and Professional Standards Boards (PSB) to produce a desired  predetermined outcome.   To the unsuspecting observer these reviews appear to be a bonafide effort to find the facts.   This maze of deceit allowed VA leaders to claim that no harm was done to patients, the errors uncovered were within an acceptable statistical norm, there was no responsibility for the VA to report these adverse events to the patients or their surviving family, and no indication to report Dr. Khan to his state licensing board nor the National Practitioner Data Bank.  Dr. Eric Undesser, the chairman of the final AIB that exonerated Dr. Khan, admitted at trial that he was well aware that a finding of negligence by Dr. Khan would lead to numerous lawsuits against the VA.

            I personally filed a professional conduct complaint about Dr.Khan before the Mississippi Board of Medical Licensure (MSBML).  The mission of the MSBML is to protect all Mississippi citizens, including those who are veterans.  In response to my complaint, the MSBML subpoenaed  the Jackson VAMC for the 52 patient records as part of its investigation of Dr. Khan.  The VA has incredibly and irrationally refused to comply with this subpoena, asserting the privacy rights of the patients.  Patients  don't know they were injured since the VA has never notified them, and they will never know if VA officials are allowed to continue this coverup by hiding their misdeeds behind privacy laws. The MSBML is a HIPPA exempted law enforcement agency with every right to the information it is seeking.  This cover up is also  in defiance of the VA's own policy for complying with State Boards of Medical Licensure (VHA Handbook 1100.18 Reporting and Responding to State Licensing Boards).

            The VA's response to my OSC complaint  is nothing more than a "smoke and mirrors" sleight of hand treatment of the facts.  "Intentional medical negligence"[1] resulting in the death and injury of patients is acceptable to the VA as long as the VA can manipulate these patients in to a statistically acceptable error rate, which the VA has assumed is present without actually establishing it as fact.  The VA response is an extraordinary collection of useless contrived data presented as definitive technical fact, euphemistic phraseology crafted to misdirect the reader, and the omission of critical facts when they contradict the VA's predetermined conclusions.

            Fred Lucas, an army retiree, Vietnam veteran, an former VA nurse wrote a guest column for the October 11, 2013 Clarion-Ledger newspaper.   Mr. Lucas quoted Mr. Joe Battle, Jackson VAMC Director saying that the "The VA considers the case closed" referring to the radiology cases of injury never reported to the patients or families.  Dr. Randy Easterling, President of the Mississippi State Board of Medical Licensure,  in the April 3, 2013 Clarion-Ledger newspaper publicly criticized the Jackson VAMC leadership's failure to cooperate with MSBML's  investigation of  issues involving the Jackson VAMC.   

            For five years the position  of Chief of Radiology at the Jackson VAMC has remained vacant.  The position has been openly advertised on three different occasions.   Dr. Margaret Hatten and Dr. Brighid McIntire have served as acting chief of radiology during the five years the chief's positions has been vacant.   Both of these ladies were plaintiffs in the Federal trial, and though qualified for the chief's position, they have never been entertained as serious candidates.  This "chronic retaliation" is for their role in exposing the leadership culture of coverup of patient death and injury, lying as a matter of routine, self dealing, and the unethical treatment of patients, their families, and employees.  The lesson that speaking truth to power will abort your career advancement has not been lost on other employees in the facility.

            Before Kenneth Kizer, Undersecretary for Health during the Clinton Presidency,  modified the Senior Executive Service (SES) compensation model to include pay for performance and generous bonuses, the current leadership ills were unknown.  When members of the SES realized that there was essentially no oversight of the pay for performance system by VACO, and that it was easy to game the system, the least desirable elements of human came to the fore.  In my own clinic, waiting times for the next available appointments and consults were reported to the VISN with false data which were never shared with me, while I was the ophthalmology section chief.   Later, I discovered these false data by chance.  The medical center director had no interest in hearing about or investigating the discrepancies in the performance data. In fact, Kent Kirchner, the chief of staff at the time, warned me away from pursuing any further inquiry into the unrealistic performance reports about the eye clinic.

            I will conclude my remarks by suggesting to the committee that not only should performance bonuses for SES leaders be scrutinized but also should retention bonuses.   SES leaders will howl that good executives cannot be recruited without the liberal use of these incentives.   Awarding these compensation incentives should use honesty and integrity as bench marks for executives instead of the current performance measure system which continues to be ripe for manipulation.  

            No longer should VA executives be evaluated solely by their supervisors.  This year the Chairman of the Joint Chiefs of Staff announced that the military would use the 360 degree evaluation technique for all high ranking officers.  For years corporations and medical schools have been using this technique.  The 360 degree technique allows peers and those supervised to provide and assessment of personal character in addition to their management qualities.  The VA should adopt the 360 degree technique with evaluation instruments heavily weighted to measure moral fitness, honesty, and integrity.   The VAs "All Employee Survey"  doesn't do this.

             Finally, some form of "claw-back" provision should be developed for use by the agency or Congress against the retirement benefits of SES employee who egregiously pursue personal agendas through the auspices of the official positions, or those who run out the clock into retirement or transfer.    Evasion of difficult management issues is just as harmful as managing for personal gain.   In both cases, these executives defraud the  government by willfully failing to manage for the betterment of the veterans they have a fiduciary responsibility to serve and the public who provides their support. 

 

            The following narrative was submitted substantially in this form in support of my complaint to the Office of Special Counsel (OSC).  This OSC was accepted for referral to the VA for investigation and designated as OSC complaint DI-13-1713.  This narrative is not available on the OSC website for public access, and is included here for the purpose of establishing a context for understanding the full scope of VA leadership failures.

 

ALLEGATIONS:

1. Violation of civil rights proven in Federal civil trial: 3:08cv00148TSL-FKB.    This trial concluded in August of 2010 and involved three VA physician plaintiffs vs VA management officials at the G. V. "Sonny" Montgomery VA Medical Center (GVSMVAMC) in the US District Court for the Southern District of Mississippi, Jackson Division   {Brighid McIntire, et.al. vs  James B. Peake, Secretary, Department of Veterans' Affairs}

       Local VA defendants retained their positions without prejudice.  This case proved that hospital leadership actions presented a clear and specific danger to the health and safety of the veteran public that was NOT addressed after conclusion of the lawsuit.   Leadership officials would profit from their decisions under pay for performance VA bonus administration.  (I will attach the trial transcript and relevant exhibits if this website supports it).

2. Systematic "gaming" of monitored performance measures to enhance professional advancement and increase pay for performance salary bonuses.

 

A CHRONOLOGY OF GVSMVAMC's CHANGE IN LEADERSHIP CULTURE FROM PATIENT CENTERED TO PERFORMANCE METRIC CENTERED

This is my personal recollection of events from my 30  years with this VA hospital.

1.  Kenneth Kizer, MD,MPH served as VA Undersecretary for Health Affairs from 1994- 1999.  We began a program of health care quality measures under him.

http://www.ftc.gov/ogc/healthcarehearings/docs/030611kitzerjama020221.pdf

http://www.ucdmc.ucdavis.edu/iphi/kizer_bio_03302011

The following 1996 document is Kizer's actual plan, and nearly all of it got implemented to some degree.   Please note that a)  this is the start of the VISN system   b)  established Primary Care as central healthcare focus [see Strategic Objective #2, Reducing Cost, Actions 5, 12, & 13]    c) Incentive performance bonuses are established  [ see Four Domains of Value,  Action 7 and Mission Goal II, objective 22]

http://www.va.gov/HEALTHPOLICYPLANNING/rxweb.pdf

2.  Richard P. Miller was Center Director starting in 1996 or 1997 (the year Dr. Carter was shot and killed)

3.  Miller retired around 2000.   Robert Lynch was promoted to director in a very odd way.   He went from Chief of Staff directly to director and bypassed acting as an Associate Director first.   In fact, he leaped over our Assoc. Director at the time, a man named Bruce Triplett.   A few months later, Lynch applied for and got the job of Director of VISN 16.   This appeared to be a very inside job of self dealing since Lynch, Miller, and the retiring VISN Director, Robert Higgins, had all been the top leaders at the recently abolished "Regional Offices" when Kizer set up the VISN system.   We were not surprised, since Lynch as Chief of Staff had removed the chief of pathology, and selected his wife to be the new chief.   To do this he had to entirely reorganize the department of pathology under the department of radiology and rename the whole thing the department of Diagnostic Services.  This conveniently got around the prohibition of a manager supervising their family member.   The wife was supervised by the chief of radiology who was supervised by Lynch.  The radiology chief was Dr. Vipin Patel, the same individual in the Federal lawsuit cited in Allegations #1.

4.  Dorothy White-Taylor, RN became Chief of Nursing in 2001.  I cannot remember the date when Jonathan Perlin, MD from VA Headquarters decided to make chiefs of nursing the official at each medical center who would monitor the medical center director's performance measures, but it was about that time.  I remember reading the email sent out over the old VISTA computer system to all the hospitals announcing this arrangement.  That email should be indefinitely stored somewhere in the VA  Headquarters information technology system.   I received this email because I was both a VISN consultant for my specialty, and I had been on a VISN construction committee. 

5.  Soon after Dr. Lynch took over as our hospital director, an enormous emphasis was put on all sorts of performance measurements.   This was the result of pressure from Headquarters and from the VISN director.  It was natural for this to occur, since better performance measures translated directly into larger bonuses to the leadership   (read Kizer's mission/ vision statement again)

6.  A not previously seen cadre of nurses with clipboards were all over the place looking to find ways to make the performance data better.   It was all whip and no carrot.  These nurses who were not doing patient care, were nevertheless, counted against the total number of nurses the hospital was allowed to hire.  They seemed to have a very protected role.  When they showed up to ask you questions about your performance data, you were expected to drop everything and answer until they were satisfied.

7.  I personally witnessed activity designed to defeat so called external audits of patient charts  that were intended to see how well our hospital implemented good care practices compared to other VAs nationally and in VISN 16.  This is what would happen.  The contracted external review entity would notify the hospital a week before they would visit to review some number of charts with a specific diagnosis of interest.  I don't recall how many charts would be pulled for any given external audit.     The room used was near my office and I would pass by and see all the activity.   Nurses or medical records technicians were assigned to go over the pre-selected charts in advance of the inspection.  Charts not meeting criteria were exchanged for charts that did.  When the external reviewers looked at this "not so random sample", our hospital got high performance numbers.   I specifically remember asking Myrtle Kimble (now Tate) about this way of doing things.  I had served with Ms. Kimble on the Utilization Review Committee as its chairman and knew her well.  She told me that all the hospitals were gaming the system and  that we had to also in order to keep a high performance rank among VA hospitals.   

            There was a nurse supervisor in charge of getting the charts requested for audit "cleaned up"   The nurse had been given special authority to actually make appointments in the computer so that patients whose charts were to be audited would come to the hospital to correct their chart deficiency.  For example, if a check of foot pulses was not recorded in the chart.  This meant that patients came from long distances and would be called to the hospital for their chart to be treated.  In addition to the risk of driving and direct expense to the patient, travel pay for these appointments was also paid.  

            Medical records technicians and nurses told me that they were paid overtime for any after hours and weekend chart work.  I never knew if data were fabricated if missing from the chart or if patients could not be located.  The entire system for external audit  subverted the external audit process.  The contracted external auditor was the Burton-Davis company, if my memory is correct.

8.  When the external reviews began to review specific charts and not random ones, a new strategy went into place.  As I understood it, all of these data gathering/ verification  activities were run from the Chief of Nursing's office.    In this case,  all the charts from a specific clinic had to be available for review.  Once the clinic had been identified (there were never any surprise reviews; the hospital always got advance notice of the date the reviewers would be there).   Of course, you could not substitute charts that met criteria in this situation.  You were forced to make an incomplete chart complete.  Once again this was done by paying nurses overtime on the weekends and other times to call back to the hospital a patient to have his records completed.  I know of some cases where patients were made to drive 60+ miles to have a blood pressure taken and recorded or a foot exam documented.  Minor data points but an inconvenience to the patient and an added travel pay and nurse overtime expense for the hospital.  But our performance numbers were excellent.

9.   Some where in the mid-2000s all pretense at honest and accurate gaming of the system seemed to go out the window.  In my own clinic the data self reported by our hospital through the nursing service data collectors and analyzers bore no resemblance to reality.  I brought this up in an open Executive Committee of the Medical Staff (now known as the Clinical Executive Board) meeting with the Chief of Staff, Kent Kirchner, who strongly suggested that I be content with my clinic's performance doing so well.   I don't remember if this was shortly before or after Hurricane Katrina.  After Katrina most performance data changed to measuring services rendered to hurricane displaced victims. At that point the pressure on direct patient care providers relaxed somewhat for the next18 to 24 months.

10.  Just before Richard Baltz was appointed as our medical center director, my chief of surgery, Charles Clericuzio asked me to prepare my own clinic's data for Mr. Baltz.  Patient waiting and appointment times were the primary issue and the data and leadership expectations were divergent.  Dr. Michael Palmer and I prepared a presentation of data we could document.  Mr. Baltz was told we had the presentation prepared, but he never asked for it.  The clinics identified by Headquarters for close monitoring and reporting were Cardiology, Urology, Orthopedics, Ophthalmology, and one other that I can't recall.  These clinics had large patient panels and a high volume of new requests for patient services.   I think most of the full time physicians strongly suspected that data generated by their clinics were altered for improvement, since failure to "massage" the data would adversely affect the hospital's reported performance measures outcomes.  We almost never saw the data as it was actually reported until long after the fact.  Once we realized that the leadership did not want to hear about the data being suspect, we quit trying to push the issue.

11.  My last director retired under a cloud of employee complaints, but by this time the performance data factory was pretty much running on autopilot.  The leadership culture was pretty well established and directed by the conflict of interest between the Director, Chief Nurse, and the performance measure chase which was directly tied to leadership compensation levels.

12.  The best documentation of the culture that pervaded the hospital leadership comes, in my opinion, from the trial transcript and exhibits of civil trial number :  3:08cv00148TSL-FKB.    This trial concluded in August of 2010 and involved three VA physician plaintiffs vs VA management officials at the G. V. "Sonny" Montgomery VAMC     in the US District Court for the Southern District of Mississippi, Jackson Division   {Brighid McIntire, et.al. vs  James B. Peake, Secretary, Department of Veterans' Affairs}

            This lawsuit documented direct injury (including deaths) to veterans from performance data driven malpractice that was and continues to be covered up by hospital officials.   Use of harassment, intimidation, and discrimination in order to silence  the plaintiffs reporting of patient safety and ethical violations, was proven for the plaintiffs on all claims against the VA.  To this day, the responsible officials remain unaccountable for their actions and are still  employed by the VA.   VISN 16 and Headquarters officials with oversight responsibility have remain untainted by their failure to act to protect patients and employees.  The physician who engaged in substandard medical care for the sole purpose of inflating performance measure data was giving a $5,000 special contribution award and allowed to leave VA employment.   His "intentional medical negligence" was never reported to the Mississippi State Board of Medical Licensure.  The more than fifty patients adversely affected have never been notified about what actually happened to them, except two who filed malpractice claims.

            In 2010 there was a physician-led survey of physician attitudes and experiences with hospital leadership.  The results were sent to the Secretary of the VA, the Mississippi Congressional delegation, VISN 16 Network Director, and others.  I believe it was dismissed as the product of disgruntled employees.  The result was that the failure to assure patient safety and the abuse of authority by VA leaders were ignored.

13.  The absence of trust in VA leadership and low employee morale at the G. V. "Sonny" Montgomery VAMC is the result of the failure by numerous internal and external entities to conduct open investigations of allegations made to them.  These so called investigations did not put witnesses under oath and did not generate a report or transcript.  These include VA Headquarters, VAOIG, Office of Special Counsel (when Scott Bloch was the Special Counsel), The Joint Commission, and the Department of Labor.   Officials of most of these entities were given information about abuse of authority and ethical lapses that led to the deaths of patients.   It also demonstrates the inherent information advantage that the hospital leadership leveraged to undermine, dismiss, or deflect allegations of misconduct, mismanagement, and abuse of authority against them.  It also demonstrates the inability of agencies with oversight responsibility to see and understand a pattern of mismanagement and abuse of authority over time by the same management officials.   Each allegation appears to have been processed as solitary event with no appreciation for the larger picture of interconnected events in the management of the hospital. 

14.  Unrelated to the provision of direct medical care, but demonstrative of abuse of authority is the harassment and retaliation against two employees with military obligations.  Major General Cathy Lutz and Colonel Dale Hetrick were audited to produce deployment orders many years after their deployments to Iraq and other conflict zones.  This audit was proximate to their objections to the then hospital director and initially involved no other employees with prior military obligations.  Although Human Resources (HR) was required to obtain their orders prior to deployment and maintain them in their personnel records, Colonel Hetrick and General Lutz were told that HR could not locate copies of their orders.   The threat of large repayments of undocumented leave for military deployment unless the old orders were presented was used against them. The audit took place after Colonel Hetrick's retirement from the Marine Corp. reserve and encompassed the years 2004 through 2010.   He was asked to repay $19,504.12 to the VA; a sum he did not owe.  Colonel Hetrick chose demotion from his position as AA to the director, though he produced copies of his old orders, and General Lutz chose retirement instead of pursuing the matter in the courts.

15.  The fault that makes all of this possible lies in the conflict of interest that is inherent in the Senior Executive Service retention and performance bonus compensation system.    This money distorts the ethical boundaries of VA leaders and is directly tied to performance measure metrics as  currently structured and administered within the VA.   The absence of objective accounting principles to detect data corruption and manipulation are an incentive to "game" the performance data system as it currently stands.  It is an open invitation for abuse.  When successful lawsuits against the agency do not lead to reforms, even the leadership at the local hospital level, having no expectation of being held accountable, simply view such events as a nuisance and the cost of doing business.  The cost to any individual member of VA leadership is nothing since the taxpayer bears court costs and judgements.  Finally, without any "clawback" provisions in law, officials with oversight responsibilities near the end of their VA employment or current job have a strong incentive to ignore allegations of wrongdoing and simply run out the clock. 

16.  For the purpose of brevity the remainder of my written testimony consists of the following  cited items:

a.  Transcript, exhibits, jury verdict, and index to the transcript of Federal civil trial  number: 3:08cv00148TSL-FKB,  

            UNITED STATES DISTRICT COURT

            FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

            JACKSON DIVISION;

            BRIGHID MCINTIRE, ET AL. PLAINTIFFS

            VS. JAMES B. PEAKE,SECRETARY,

            DEPARTMENT OF VETERANS' AFFAIRS

b.  VA Organizational Code of Ethics

c.  Office of Special Counsel Complaint DI- 13-1713 with whistleblower comments:              http://www.osc.gov/FY%202013%20A.html

d.   http://commdocs.house.gov/committees/vets/hvr031199.000/hvr031199_0f.htm

            !999 O & I subcommittee hearing on VA Whistleblower Retaliation

e.  VHA Handbook 1004.08  Disclosure of Adverse Events to Patients

f.  Talking Points for Disclosure of Adverse Events to Patients

g.  August 26, 2010 letter to Mark R. Chassin, President of the Joint Commission concerning understaffing in the Emergency Department, Radiology, and Primary Care

h.  April 3, 2013 Clarion-Ledger, Some Nurses Lacked Papers, by Jerry Mitchell

i.  August 22, 2011  Clarion-Ledger, Bill Minor Letter to the Editor

j.  January 5, 2011  Memorandum from VISN 16 Network Director to Jackson VAMC Director.   MICU Staffing and Emergency Department coverage

k.  September 24, 2010  Executive Leadership Council South Central VA Health Care Network Video Conference  minutes.

l.  February 25, 2011  Executive Leadership Council South Central VA Health Care Network Video Conference  minutes.

m.  January 7, 2011 Email/ memo from Charles Jenkins regarding MICU understaffing and no leadership accountability.

n.  May 5, 2011 Clarion- Ledger, "Death: Circumstances of case 'ghastly',  attorney for family says"  by Jerry Mitchell

o.  PL 108-445  Department of Veterans Affairs Health Care Personnel Enhancement Act of 2004   (Physician Pay Bill)

p.  Sentinel Events definition and reporting, The Joint Commission:  http://www.jointcommission.org/assets/1/6/CAMH_2012_Update2_24_SE.pdf

q.  April 13, 2013, New York Times: "Conduct at Issue as Military Officers Face a New Review"  by Thom Shanker

r.  Department of Veterans Affairs, Veterans Health Administration,  VHA Handbook 1100. 18:  Reporting and Responding to State Licensing Boards



[1] Federal trial transcript vol 3, p 190, line 21 through p 191, line 7