On trial in Cincinnati VA case: Doctor and the hospital?

A federal trial starting Jan. 2 will present to a jury much of the turmoil afflicting the Cincinnati VA Medical Center for the past four years.

The jury will be asked to decide a curious question: Did Dr. Barbara Temeck, a career VA surgeon and administrator, wrongfully prescribe painkillers to a friend? Or is the government retaliating against a whistleblower on two of the region's largest medical facilities?

To defend herself against the drug charges, Temeck, former deputy chief of staff at the Cincinnati VA, aims to put the Department of Veterans Affairs itself on trial. She argues the criminal case culminates a years-long pressure campaign from the top of the VA to punish her for uncovering lax management of the Cincinnati VA, which cares for 44,000 veterans across the region.

Temeck’s case is unique for drawing into federal court a host of issues swirling for years around the VA locally and nationally: mismanagement, patient-care crises, whistleblower complaints, prescription abuses and the VA’s complex relationship with nonprofit academic medical centers such as UC Health.

U.S. District Judge Michael Barrett will preside at the trial. Temeck's defense lawyer, Benjamin Dusing of Cincinnati, said plea negotiations have broken down with the U.S. Attorney for the Southern District of Ohio, and his client wants to face a jury. If convicted, Temeck could face at least five years in prison on each count, although it is unlikely that as a first offender she would be incarcerated.

Earlier this month, after more than a year of reducing Temeck's responsibilities and then suspending her, the VA fired her, ending her 35-year VA career as a surgeon and hospital administrator.

She says it's retaliation

Temeck says the Cincinnati VA has labored under the heavy hand of UC Health, its Corryville neighbor and nonprofit medical partner that operates the University of Cincinnati Medical Center. The VA pays UC Health at least $40 million a year to help care for veterans. Some Cincinnati VA leaders, such as chief of surgery Dr. Mark Molloy, hold teaching positions at the University of Cincinnati College of Medicine. Other VA doctors also work second jobs at UC Health.

Temeck says that when she sought to crack down on bad practices at the Cincinnati VA, leaders of UC Health and the medical school resisted her, blocked her promotion at the hospital, and stoked a staff rebellion that led to the felony drug charges.

In response, the U.S. attorney’s office says Temeck is throwing up distractions, and the jury will simply weigh the narrow issue of the prescriptions, not her workplace problems.

“While (Temeck) may have ‘physicians and other medical professionals’ within the Veterans’ Health Administration and the university who do not like her, their purported views and animus cannot be impugned” to VA investigators or federal prosecutors, wrote Assistant U.S. Attorney Kyle J. Healey. “As such, (Temeck) has presented no evidence of discriminatory intent on behalf of the prosecution.”

The problems Temeck said she found

Dusing said Temeck, a Georgetown University-trained cardiothoracic surgeon, built a reputation within the VA as a fixer who improved hospital performance.

In 2013, Temeck came to the Cincinnati VA Medical Center as deputy chief of staff at the suggestion of a longtime VA colleague, Jack Hetrick, a regional director with control over Cincinnati.

Soon after her arrival, Temeck said, she found that VA oversight of its relationship with UC Health had gone slack: Full-time VA doctors were working at UC Health while on federal time. Some nurses made as much as $50,000 a year just in overtime, and Temeck tried to reassign them. Temeck said VA doctors often were sending veterans to UC Medical Center for treatment that the VA could provide.

Her management made some VA doctors and nurses unhappy, and they convened at least two meetings with Hetrick to complain, to no avail. Officials of UC Health and the UC medical school then twice voted against her promotion to chief of staff.

In September 2015, more than 30 Cincinnati VA doctors, nurses and other staffers sent an anonymous letter to the VA secretary at the time, Robert McDonald of Indian Hill, former chairman of Procter & Gamble. When their complaint about a “culture of intimidation” did not remove Temeck, the letter writers turned to WCPO.com, which published stories about the complaints in February 2016.

But those stories included a bombshell: Temeck used her VA-issued federal drug-prescribing license to write three 30-day orders for the painkillers Valium and Vicodin to Hetrick’s wife, Kathleen.

The VA is familiar with improper prescriptions. In recent instances, nurse-practitioners at the VA in Jackson, Mississippi, wrote drug orders without adequate licensing or oversight, and in 2012, a part-time VA doctor in Dayton was convicted in federal court for prescribing opioid pills for a non-VA patient.

Working data entry in the basement

In the week after the WCPO.com report, the VA reassigned Temeck to a data-entry job in the hospital basement while the VA’s office of inspector general and the U.S. Drug Enforcement Agency investigated.

Dusing said Temeck told DEA agents she was a friend of the Hetricks for more than a decade and advised Kathleen Hetrick, once a VA hospital nurse, on medical care after an injury. Temeck wrote the three painkiller prescriptions in 2012 and 2013 under the authority of her DEA prescribing license, issued through the VA to treat VA patients. The U.S. attorney argues that because Kathleen Hetrick is not a veteran, the prescriptions violated Temeck's DEA license.

Dusing and Ken Hawley of Cincinnati, Temeck’s employment lawyer, have asked the VA to find out who violated the federal patient-privacy law since Kathleen Hetrick did not give permission for the VA to release her medical information. The lawyers said they have not received an answer to their inquiries.

Hawley also said the VA has not punished other doctors for writing prescriptions outside the authority of their VA-issued DEA licenses, and no other VA doctor has faced the kind of career-shattering consequences that Temeck has. “They want to silence Dr. Temeck to maintain the relationship with UC,” Hawley said.

Temeck surrendered her prescribing license to the DEA, and Dusing said he believed the matter closed.

But in late summer 2016, the U.S. attorney’s office contacted Dusing to say Temeck would be charged. If Temeck retired from the VA, the prosecution would agree to Temeck entering a diversion program, a lesser penalty than a conviction. Through months of negotiation, Temeck refused to leave the VA. She even issued a statement in April that Dr. David Shulkin, named to head the VA by President Donald Trump, was personally involved with getting her removed from her job.

On May 3, a federal grand jury indicted Temeck on the three drug charges.