TULARE HOSPITAL BOARD DISCHARGES ENTIRE MEDICAL STAFF OF 135: UPDATE

Dave Adalian

Following the publication of the article “Tulare Hospital Board Discharges Entire Medical Staff of 135,” the Valley Voice was contacted by a publicity firm and attorneys representing Tulare Local Health Care District (TLHCD) and Health Care Conglomerate Associates to raise objections to facts presented in our story. This is our response.

Although Dr. “Benny” Benezeevi was contacted repeatedly through the hospital’s press agent beginning on March 8, he did not respond to those requests for an interview. Benzeevi’s representatives allege in their correspondence that the Valley Voice did not attempt to talk with him. This is untrue. Attempts were made over several days beginning March 8.

While the article as published initially stated the hospital staff was fired, this was amended to read “discharged.” The 135-member staff was discharged by the TLHCD Board at a special meeting held February 15 by severing its contract. Immediately, a new staff was contracted to replace it. While the distinction appears to us to be semantic, we apologize for any confusion this may have caused any reader who felt otherwise.

Attorneys for TLHCD also objected to the characterization of a meeting held by its board on January 26 which did not comply with the state’s open meeting act requirements for noticing the public. The board then held a second meeting on February 15 to discharge the medical staff again. The second decision was necessary because the board and Benzeevi failed to meet the transparency standards set forth in the Brown Act, omitting to disclose their intention to unilaterally and abruptly severe the TLHDC’s contract with its longtime medical staff. TLHCD, however, has not admitted wrongdoing in connection with any possible failure on its part to act within the law.

The letter also objected to the characterization of Benzeevi as being “associated” with the doctors elected to the replacement Medical Executive Committee (MEC). Miriam-Webster Dictionary defines “associated” to mean “to join as a partner, friend or companion,” “to keep company,” “to join or connect together,” or “to bring together or into a relationship in any of various intangible ways (as in memory or imagination).” Benzeevi has worked with, and for, at least three of the doctors who make up the newly appointed MEC for several years. We believe this places those relationships well within the realm of “associated” as the word is commonly used, especially considering the length and intimate nature of the relationship between Benzeevi and members of the hospital board and MEC he serves on a daily basis.

Objections were also raised to the characterization in the article of the California Medical Association’s (CMA) involvement in the legal action against TLHCD on behalf of the former staff. The article stated the CMA had joined the medical staff’s action against the District. This is incorrect. CMA filed an amicus curiae brief so it may provide critical information to the court regarding the case, though neither party has requested its assistance. Attorneys for the CMA appeared in court alongside counsel for the former medical staff, making statements supporting the plaintiff’s cause.

TLHCD also objected to the revelation Benzeevi was reviewed by the TRMC Staff for poor performance as an emergency room physician, a position he no longer holds. TLHCD’s attorneys maintain Benzeevi was cleared of the charges, though they did not provide documentation to substantiate their claim. They further claim that the revelation is “a blatant violation of California law and the medical staff bylaws which preserve the confidentiality of peer review proceedings involving physicians” (sic) by council for the plaintiffs and by this newspaper of Benzeevi’s right to privacy. The information regarding the investigation into Benzeevi’s conduct is contained in publicly available documents filed with the court by council for TRMC, the same counsel now voicing these tardy objections.

TLHCD’s attorneys also objected to a direct quote by counsel for the medical staff that points out a report critical of Tulare Regional Medical Center (TRMC) citing several unsafe and unacceptable conditions at the facility. TLHCD’s counsel claims the majority of the report’s negative findings were aimed at the medical staff. They also state that while it is true TRMC had no fire suppression system at the time it was audited and found to be deficient, the system has since been repaired. Counsel did not address the lack of a critical infection-control system, the state of the facility’s substandard kitchen, or the faults in its Quality Assessment Improvement Program. Counsel also failed to give documentation substantiating the claim the fire suppression system is now functional.

Finally, TLHCD’s attorneys claim “neither attorneys for TRMC or Sherrie Bell ever said Dr. (Anil) Patel threatened Ms. Bell’s life.” A lawsuit filed on December 14, 2014 in Tulare County Superior Court by the TLHCD Board against the MEC, Patel and other physicians states: “Specifically, Dr. Patel threatened physical harm and violence to Mrs. Bell, and described dragging her by her hair and smashing her head against the ground.” Filings in that case include a document signed by Bell attesting to the veracity of the claim against Patel. TLHCD’s council said Dr. Patel’s countersuit against Bell was dismissed with prejudice and that Patel and the MEC must pay the District’s court costs. Again, no documentation to substantiate these claims was provided.

Additionally, Dr. Rebecca Zulim, who now serves as chief of surgery for the replacement MEC, states she is not currently being reviewed for unsafe patient care. The article published by this paper did not make that assertion. It did, however, correctly point out that Zulim was previously investigated by the MEC. The outcome of that investigation is not known. The information regarding possible unsafe patient care by Zulim was also revealed in documents filed by TRMC’s attorneys. Information regarding the sanctions against Dr. Parmod Kumar that were to be completed three days after the removal of the medical staff was contained in TRMC’s filings with the court, as well.

Editor’s Note: This is a revised story from the 3/17/16 print edition, meant to further clarify some facts. Any comments made in the 3/17 print edition article are attributed to interviewed sources and are not a representation of the reporter or the Valley Voice. Because information came in after we went to print on 3/15 that corrected some of the statements of the people interviewed, the Valley Voice wanted these corrections integrated into the original article so everyone’s side is heard. Please also find a link to Tulare Regional Medical Center District’s lawyer’s letter and the court order ruling on 3/17 against the hospital staff on our facebook page. If needed, any corrections will be made in the next print edition of the Valley Voice, as well.

Editors’ note: After the publication of this story, the Valley Voice was alerted to errors in this story. The 135 staff members mentioned in the headline were not fired, but work at the hospital under new management. While a restraining order was sought, it was not issued. We will work to correct any other errors in this story in our next print issue as well.

Directors of the Tulare Local Health Care District (TLHCD) discharged the entire medical staff at Tulare Regional Medical Center (TRMC) during an unannounced and illegal meeting, and their attorneys were back in court this week to defend additional actions the California Medical Association and Tulare County Medical Society say violate state and federal law.

“One day, in secret, the elected district board voted to fire the medical staff, all 135 of them, and replaced them with a miraculous new medical staff that included a member of the Board, his wife and someone associated with Dr. (Benny) Benzeevi (CEO of Health Care Conglomerate Associates (HCCA), which operates TRMC),” said John D. Harwell, the attorney representing the Tulare Regional Medical Center Staff (TRMCS). “(The replacement staff) just sprung out of nowhere and announced they were a new medical staff, that they had bylaws and regulations, which is just astonishing, because bylaws and regulations take months to put together, not hours.”

Medical staff at all California hospitals are required by law to be independent bodies contracted by the facilities where they practice to prevent conflict of interest. At an illegally-noticed meeting held January 26 and again at a properly noticed special meeting held on February 15, the TLHCD Board voted to end the District’s contract without notifying the current Medical Executive Committee (MEC), an elected body that governs the Tulare Regional Medical Center Staff (TRMCS). At both meetings, the Board then contracted a replacement staff, this one known as the Tulare Regional Medical Center Professional Staff (TRMCPS). Both bodies include the same 135 people.

Harwell, who has represented medical staffs and physicians at various hospitals for nearly four decades, said the actions of TLHCD’s board are both illegal and completely without precedent.

“I’ve been doing this for 37 years, and not only I have I never seen this, I’ve never heard of it in the United States,” he said. “It’s the same as suggesting we fire them (TLHCD’s elected board).”

Independence Violated

Both state and federal regulations require medical staffs maintain an independent status from the hospitals at which they work in order to establish a separation between employees who provide patient care and those responsible for the institutions’ financial well-being. The law also requires those medical staffs be self-governing, electing their own executive boards and holding separate meetings. It gives them sole right to select or remove medical staff officers.

“They make all the decisions for themselves by vote,” Harwell said. “The law is designed to have this separation of powers so you don’t have people who are economically tied to the hospital be the first line of defense in protection of patient care. That’s why self-governance is so important.”

The California Medical Association (CMA), in a letter dated January 29, said the TLHCD Board’s unilateral modification of TRMC’s staff is clearly illegal and violates several of those protective laws. The CMA has joined TRMCS in its lawsuit against the District. Also objecting is the Tulare County Medical Association.

Hospital Board Met Illegally

The alleged extralegal action by the TLHCD’s board took place at a meeting held in late January that was attended by TRMC’s former chief of staff, Dr. Abraham Betre.

“Every month we (TRMCS) have a meeting and decide what I’m going to present to the board,” he said. “On January 26, there was a board meeting. I attended as chief of staff. At that point they told me nothing about the plan to terminate the previous medical staff. The next day, I got emails from staff and Sherrie Bell (chair of the TLHCD Board) telling me we have a new staff.”

The TLHCD has admitted it violated the state’s open meeting act with that action, and it held a second meeting on February 15, repeating the modifications in an attempt to validate its previous action.

Restraining Order Applied For

Attorneys for both parties appeared in court in mid-February, and a temporary restraining order was applied for to prevent any further actions by the Board that might harm TRMC’s former medical staff. Because of late filings by lawyers for the District, a continuance in the case to March 17 was granted by Judge David Mathias, leading District counsel to puzzlingly declare a minor victory to local media.

In its filings, attorneys for the hospital said the board took the unilateral action to remove and replace the medical staff because it feared losing the ability to treat Medicare and Medicaid patients in the wake of a survey by the Center for Medicare and Medicaid Services (CMS) that found it did not meet several standards. In a statement filed with the court on behalf of the board, Benzeevi said he was told by a CMS surveyor TRMC could be shut down if it did not act “immediately to remedy the former (medical staff’s) many lapses in responsibility.”

Ironically, the work of Benzeevi, who is an emergency room physician, had been investigated by the TRMCS for poor quality of patient care.

Violations Widespread at Hospital

In its objections to Benzeevi’s sworn statements given via affidavit, as well as statements by Board Member Dr. Parmod Kumar, Bell, HCCA CFO/COO Alan Germany and ER physician Ronald Ostrum, attorneys for the medical staff say the hospital is only telling a small part of the story, and that the testimony is riddled with hearsay, inexpert opinions and baseless statements. The CMS report found violations throughout TRMC, some of them years old and affecting the facilities most critical functions.

“The reason they (CMS) were going to close the hospital was because the hospital’s fire and alarm suppression system had not been operational since October 2013,” Harwell said. “That’s not a good thing, and it’s not the doctors’ fault.”

Even more concerning, the CMS found TRMC does not have a functioning infection-control program in place. The person made responsible for that critical task is not qualified to do the job, Harwell said.

“The woman in charge had no idea what she was doing and had no idea how she got that job,” he said.

According to Harwell, the CMS report described TRMC’s kitchen as “filthy,” and its Quality Assessment Improvement Program (QAIP) was practically nonexistent.

“(The QAIP is) the way the medical staff has to look at the quality of medical care. The hospital stopped doing that sometime in 2014, and that’s also not the doctors’ fault,” Harwell said. “What the hospital has been telling the courts and the media isn’t the truth.”

In fact, the board’s actions, Harwell said, have done nothing but worsen the situation.

“There are lots of problems in this hospital we’d like to help fix, but they’ve taken away our ability to do that,” he said. “I don’t get this war. People on my side don’t seem to want this.”

Board Member, Doctors Under Investigation

The timing of the medical staff shake-up is highly suspicious.

Kumar, a gastroenterologist and member of the TLHCD Board, was ordered to take classes in anger management and medical record keeping by the TRMCS in order to maintain his right to practice at the hospital. The training was to be performed by January 29; the shake-up came just three days before Kumar’s deadline to complete that training or lose his hospital privileges. Kumar is now an officer on the replacement medical staff.

He did not respond to a request for an interview.

“This was nothing more than a transparent attempt by the District to protect one of its own from legitimate medical practice privilege review and discipline, and to retaliate against the Medical Staff,” a document filed by plaintiffs in the pending case states. Besides Benzeevi and Kumar, the TRMCS had also investigated the practice of Dr. Rebecca Zulim, who now serves as TRMC’s chief of surgery, for unsafe patient care.

Benzeevi also did not respond to repeated requests for an interview; Chairwoman Bell also failed to respond.

Medical Staff Office in Chaos

Problems with maintaining the medical staff’s training records have been ongoing for years, ousted chief of staff Betre said, and chaos in that office kept the District from retaining qualified individuals it hired to run it.

“Staff came and left. They were very, very qualified people, but as soon as they saw the medical staff director, they didn’t want to tarnish their reputation,” Betre said. “For the last year, they put a person who had no experience running medical staff or medical training in that office. She didn’t know what to do. In open session, I said they were jeopardizing the quality of health care for patients. I was frustrated, and I wanted people to hear what I was saying.”

The board’s choice of medical staff director is lowering TRMC’s ability to provide quality care, Harwell said.

“The person who’s running the medical staff now was recently a teller in a bank,” he said. “She might have been the best bank teller on Earth, but that doesn’t qualify her. It’s a rule-ridden, Byzantine process that takes years of experience.”

Terrorist Threats and Lawsuits

In another bizarre twist, attorneys for the District allege that Dr. Anil Patel, who was TRMC’s chief of staff and chair of the Medical Executive Committee (MEC) at the time, threatened the life of Bell during a meeting in 2014. According to Harwell, no witnesses could be found who were willing to substantiate that claim. The MEC and Patel subsequently sued Bell for defamation, alleging she called the staff terrorists and said they should “all be hanged.”

In a counter suit, Bell and the District said Patel had threatened to drag Bell outside by the hair and beat her head against the ground, and repeatedly claimed he would “kick her ass.” Patel is both vegetarian and pacifist, and Harwell said the allegations do not reflect Patel’s personality.

That is not the only example of TLHCD’s trouble with the law. In 2009, the TLHCD paid a $2.5 million settlement to the Department of Justice (DoJ) and signed a corporate integrity agreement following an investigation into allegedly illegal physician contracts.

Then, in 2013, TLHCD was back under DoJ’s scrutiny when former board member Roger McPhetridge alleged that Kumar was regularly seeing as many as 64 patients during four-hour shifts at the hospital’s Federally Qualified Health Center (FQHC). FQHC standards only allow a doctor to treat four patients per hour. According to reporting by the Financial Times of London, the DoJ investigation found Kumar may have pocketed $800,000 from 2010 to 2012 while working under an illegal contract.

Kumar and his wife, Dr. Parul Gupta, who was also employed at TLHCD’s FQHC, resigned from those positions during the course of the DoJ’s investigation into their action.

Democracy Subverted

What Betre finds most disturbing about the situation is how the MEC’s right to govern itself was stripped away by fiat. Had staff wanted him gone, they could have easily removed him, he said.

“If you want to do it, you have to do it properly,” he said. “You can’t select a group of people you like and dismiss the ones you don’t. You don’t have self-governance if you do that.”

What TLHCD’s Board is attempting is a coup d’etat, he said.

“If I’m not representing the medical staff the way they want, they can recall me,” Betre said. “It is the same democratic process you use to remove the president, the mayor. You cannot just declare on your own you are the boss of everybody. The patient quality will go down if we do not have the right to say to the board this is how it has to be done.”

Nasty Rumors Not True

Also in the statements filed with the court on behalf of TLHCD are allegations members of the TRMCS were not providing enough patients to the hospital and were referring them to other facilities. This, according to the filings, was intended to harm the hospital.

However, requiring physicians to refer their patients to specific facilities is prohibited under state and federal law to avoid conflict of interest.

“I think people need to know the rumors they’re spreading that certain physicians are harming the hospital by sending (patients) elsewhere, that’s not true,” Betre said. “Also, they need to know it’s illegal for a physician to send a patient to a particular hospital. I cannot say to a patient, for instance, you can only go to Tulare Regional Medical Center. The assertion certain physicians are trying to harm the hospital is ridiculous.”

Harwell said such behavior by his clients would be counterproductive.

“We’re not going to say anything bad about this hospital,” he said. “It’s important to my doctors it be successful. This is the great tragedy of this war.”