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Theresa J. Barta, SBN 150995
BARTA LAW
4041 Macarthur Blvd., Ste. 280
Newport Beach, CA 92660-2537
Telephone: (949) 833-3383
Facsimile: (949) 209-2530
Email: theresa@barta-law.com
Charles M. Louderback, SBN 88788
Stacey L. Pratt, SBN 124892
LOUDERBACK LAW GROUP
44 Montgomery Street, Suite 2970
San Francisco, CA 94104
Telephone: (415) 615-0200
Facsimile: (415) 795-4775
E-Mail: — clouderback@louderbackgroup.com
spratt@louderbackgroup.com
Attorneys for Plaintiff
DIANA P. BLUM, M.D.
Electronically Filed
by Superior Court of CA,
County of Santa Clara,
on 3/19/2018 3:17 PM
Reviewed By: R. Aragon
Case #2015-1-CV-277582
Envelope: 1325271
IN AND FOR THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA - UNLIMITED JURISDICTION
DIANA P. BLUM, M.D.,
Plaintiff,
Vv.
SUTTER HEALTH, a California corporation;
PALO ALTO FOUNDATION MEDICAL
GROUP, INC., a California corporation; PALO
ALTO MEDICAL FOUNDATION, a
California corporation; and DOES 1| through 20,
Defendants.
00022168 v10
Civil Case No. 2015-1-CV-277582
DECLARATION OF THERESA J.
BARTA IN SUPPORT OF
PLAINTIFF’S MOTION FOR NEW
Date: TBA
Time: TBA
Dept: 16
Judge: Hon. Drew C. Takaichi
Complaint filed: March 4, 2015
Trial Date: January 8, 2018
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I, THERESA J. BARTA, declare:
1. I am an attorney duly licensed to practice before all the courts of the State of
California and am the sole member of Barta Law. Along with co-counsel from the Louderback
Law Group, who have recently become associated as counsel, I represent Plaintiff Diana Blum,
M_D. in this action. I served as trial counsel in this action. The matters stated herein are of my
own personal knowledge and if called to testify to these matters, I could and would competently
testify thereto.
2. On or about August 6, 2015, Plaintiff Diana Blum M.D.(“Plaintiff’) filed her First
Amended Complainin this action which included the following causes of action: (1) Wrong
(Constructive) Termination in Violation of Public Policy; (2) Violation of California Business and
Professions Code Section 2056; (3) Breach of Contract; (4) Unlawful and/or Unfair Business
Practices (Violation of California Business & Professions Code Section 17200); (5) Intentional
Interference with Prospective Economic Advantage; and (6) Negligent Interference with
Prospective Economic Advantage. A true and correct copy of Plaintiff’s First Amended
Complaint is attached hereto as Exhibit A.
3. The trial of this action commenced on January 8, 2018, in Department 16 of the
Superior Court of California for the County of Santa Clara, the Honorable Drew C. Takaichi
presiding.
4, On January 26, 2016, Plaintiff rested after presenting evidence in her case and
chief. Defendant Palo Alto Foundation Medical Group, Inc. (“PAFMG”) moved for a judgment
of nonsuit, or in the alternative, partial nonsuit under Code of Civil Procedure section 581C.
5. On January 29, 2018, the Court from the bench addressed Defendant’s nonsuit in
relation to Plaintiff's claim for violations of Business and Professions Code section 2056 focusing
on the various procedures of Defendants that Court found had not been supported by substantial
evidence. (Trial Reporter’s Transcript (“RT”) 1/29, at 6:4-8:8.) True and correct copies of
excerpts from the Reporter’s Transcript of January 29, 2018 are attached hereto as Exhibit I.
Mil
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Motion for Non-Suit
6. Attached hereto as Exhibit J is a true and correct copy of the Court’s Order
Granting in Part and Denying in Part of Defendant Palo Alto Foundation Medical Group, Inc.’s
Motion for Non-Suit, or in the Alternative, Partial Non-Suit (“Order on Non-Suit”).
The Court’s Order on Non-Suit dismissed Plaintiff's first cause of action for wrongful
(constructive) termination in violation of public policy and second cause of action for retaliation in
violation of Business and Professions Code Section 2056.
7. The necessary elements of proof for a cause of action for wrongful (constructive)
termination in violation of public policy are set forth in Plaintiff's Special Jury Instruction No. 1,
which was submitted to the Court and based on CACI Instruction Nos. 2430, 2431, 2505 and
California Bus. & Prof. Code §2056. A true and correct copy of Plaintiff’s Special No. 1 is
attached hereto as Exhibit K. Also included in Exhibit K are true and correct copies of the
following jury instructions proposed and submitted by Plaintiff for the wrongful constructive
termination cause of action:
a. CACI 2433: Wrongful Discharge in Violation of Public Policy - Damages
b. CACI 2510: “Constructive Discharge” Explained
c. Plaintiff's Special No. 2: California Public Policy — Physicians are Encouraged to
Advocate for
d. Plaintiff's Special No. 3: Meaning of “To Advocate for Medically Appropriate
Health Care”
e. Plaintiff's Special No. 4: Definition of “Protest”
f. Plaintiff's Special No. 9: Business & Professions Code §2056 Is a Violation of
Public Policy
8. The necessary elements of proof for a cause of action for retaliation in violation of
Business and Professions Code Section 2056 are set forth in Plaintiff's Special Jury Instruction No.
6, which was submitted to the Court and based on California Bus. & Prof. Code §2056. A true and
correct copy of Plaintiff's Special No. 6 is attached hereto as Exhibit L. Also included in Exhibit L
are true and correct copies of the following jury instructions proposed and submitted by Plaintiff
for the cause of action for retaliation in violation of Business and Professions Code Section 2056:
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9%.
Plaintiff's Special No. 3: Meaning of “To Advocate for Medically Appropriate
Health Care”
. Plaintiff's Special No. 4: Definition of “Protest”
Plaintiff's Special No. 5: Business & Professions Code §2056
. Plaintiff's Special No. 7: Business & Professions Code §2056 — “Principally”
Plaintiff's Special No. 8: Business & Professions Code §2056 — “Penalty” Defined
Plaintiff's Special No. 9: Business & Professions Code §2056 Is a Violation of
Public Policy.
The following evidence was presented at trial in the Plaintiff's case-in-chief as
proof of Plaintiff's first cause of action for wrongful constructive discharge:
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a. Exhibit 15: “Palo Alto Foundation Medical Group, Inc. Shareholder-Employment
Agreement”. A true and correct copy of trial Exhibit 15 is attached hereto as
Exhibit M.
. Exhibit 72, which included an email from Patricia Curtis (Chair of defendant’s
Professional Affairs Committee) in which she stated: “we did say to Diana she
would leave with letters of rec. That was the big difference between leaving ‘from
a position of strength’ vs getting fired.” Exhibit 72 also included an email from
Susan Smith (defendant’s Regional Medical Director) in which she said: “I recall
that we said, in persuading her to leave, that she would be better off resigning .. .”
A true and correct copy of trial Exhibit 72 is attached hereto as Exhibit N.
Testimony of Susan Smith: “In persuading her to leave . . .” (RT 1/17, 50:9-14)
and “She needed a second chance.” (RT 1/17, 159:1-3) True and correct copies of
these excerpts from the Reporter’s Transcript for January 17, 2018 are attached
hereto as Exhibit C.
. Testimony of the Plaintiff regarding the intolerable working conditions she was
subjected to (see RT 1/23, 7:28-8:8, 9:2-25, 15;20-16;6, 16:27-17:5, 26:14-18); her
tequest to move to different working location (RT 1/23, 17:27-18:13); and that
Plaintiff had been put on anti-depressants and was referred to see a therapist (RT
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1/23, 26:23-27:7). True and correct copies of these excerpts from the Reporter’s
Transcript for January 23, 2018 are attached hereto as Exhibit G.
e. Testimony that Patricia Curtis (Chair of Prof Affairs Committee) told the Plaintiff
that “doctors that go on a second PIP are inevitably fired” (ibid. Exhibit G, RT
1/23, 37:25-28) and “that Plaintiff had three choices: go on second PIP and
inevitably be fired, resign, or if [Plaintiff] tried to sue or go to the media,
[defendants] would make sure [Plaintiff] never worked in the Bay area again.”)
(id. Exhibit G, RT 1/23, 39:9-16.)
f. Testimony that Plaintiff was forced to resign (ibid. Exhibit G, RT 1/23, 24:20-21,
37:21-26), “never wanted to resign” (id., RT 1/23, 37:18-20) and “I had to work in
Bay area because family is here. Husband’s job here. Kids go to school here. So it
was not an option. I certainly didn’t want to be fired — that’s something that would
ruin a doctor’s career. It follows you everywhere. So of course I took the
package.” (/d., RT 1/23, 42:19-25.) Plaintiff also testified: “They said, if you’re
going to stay here, you’re going to get fired.” (/d., RT 1/23, 24:20-21.)
g. Trial Exhibit 109: Zengler (Expert Economist Report), which shows that
Plaintiff's economic damages as result of her terminated employment from
PAFMG ranged from $444,483 to $956,528. A true and correct copy of trial
Exhibit 109 is attached hereto as Exhibit O.
10. With respect to Plaintiffs second cause of action for violation of Bus. & Prof.
Code §2056, Plaintiff advocated for medically appropriate health care by protesting (i.e., “making
a complaint, statement, objection or display of unwillingness or disapproval of!) several
“decisions, policies, and practices that the [Plaintiff] reasonably believed impair[ed] [her] ability
to provide medically appropriate health care to her patients”. [Bus. & Prof. Code §2056(b).]
11. The following evidence was presented at trial in the Plaintiff's case-in-chief as
proof of, and explaining, the “decisions, policies and practices” that Plaintiff protested:
! Special Jury Instruction No. 4: Definition of “Protest”.
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Questionnaires
When PAMFG initiated its Lean management program, Plaintiff was asked to not use
the patient questionnaires. (Blum, RT 1/22, 94:25-95:2.) A true and correct copy of
this excerpt from the Reporter’s Transcript for January 22, 2018 is attached hereto as
Exhibit F.
At the shareholder meeting when Lean was presented, Plaintiff spoke up and said, “I
understand in concept what Lean is, and my issue is that the way it’s being
implemented in my department is that it is compromising my ability to give
appropriate patient care, and I gave the example of my patient questionnaires.” (/bid.
Exhibit F, Blum, RT 1/22, 95:18-96:4.) Plaintiff shared these concerns because she
felt she could not deliver good care without the questionnaires. (/d. Exhibit F, Blum,
RT 1/22, 96:17-28.)
Plaintiff protested the Lean policy by continuing using the questionnaires because
“[N]ot using them would impair my ability to provide good patient care.” (Ibid.
Exhibit F, Blum, RT 1/22, 98:10-17.)
On or about April 26, 2013, Plaintiff wrote a message to the nursing manager with a
summary of scheduling instructions because Plaintiff “wanted to make sure my
patients were scheduled properly because when they’re improperly scheduled, it
impairs my ability to take care of them.” A true and correct copy of the email dated
April 26, 2013 that was marked as Exhibit 33 at trial is attached hereto as Exhibit P.
When the issue of questionnaires was raised, Plaintiff “disagreed” and said, “without
these questionnaires, my ability to properly take care of my patients is impaired. ..the
pressure of needing to produce more RVUs and see patients quicker would result in
harm if I didn’t use these questionnaires.” (/bid. Exhibit F, Blum, RT 1/22, 164:23-
165:2.)
During a 2012 shareholder meeting, Plaintiff raised the example of patient
questionnaires when she expressed her concern that the Lean program in “the way it’s
being implemented in my department is that it is compromising my ability to give
appropriate patient care...” (/bid. Exhibit F, Blum, RT 1/22, 95:18-96:4.)
While Plaintiff was on the PIP, she complained about the questionnaire policy and
protested by continuing to use questionnaires until she left the group. (/bid. Exhibit F,
Blum, RT 1/22, 170:5-11, 179:28-180:4.)
After she was taken off the PIP, Plaintiff continued using the questionnaires. (Ibid.
Exhibit G, Blum, RT 1/23, 8:25-9:15.)
Dr. Smith informed Plaintiff that she could not ask the nursing staff to hand out patient
questionnaires unless the rest of the department also wanted the forms handed out.
(ibid. Exhibit C, Smith, RT 1/17, 107:22-108:1.)
After Plaintiff, explained how and why she used the patient questionnaires, she was
told by management that she was not being a team player. (/bid. Exhibit F, Blum, RT
1/22, 95:3-11.)
At trial, the Court sustained objections based on relevance and calls for state of mind to
a question about Plaintiff's use of questionnaires. (/bid. Exhibit F, RT 1/22, 96:1-7.)
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Susan Smith told Plaintiff she couldn’t ask the nursing staff to hand out the
questionnaires (/bid. Exhibit C, RT 1/17, 107:22-28.)
“When Lean came in, I was asked not to use [the questionnaires].” (Ibid. Exhibit C,
RT 1/17, 94:25-95:6.)
When Plaintiff explained how and why she used the questionnaires, she was told she
“wasn’t being a team player.” (Ibid. Exhibit C, RT 1/17, 95:7-11.)
During February and March [after the PIP] a couple of times a month, Gershfield
[Head of Neurology] would “come in, close the door and start telling [Plaintiff] that
[she’s] still using the questionnaires that [she] shouldn’t be.” (/bid. Exhibit G, RT
1/23, 8:25-9:10.)
Printing out “United Parkinson’s Scale” and Note of Last Exam from EMR
Plaintiff printed out a copy of the Unified Parkinson’s Disease Rating Scale Motor
Examination for patient examinations because by “having it printed out, it’s much
easier to observe the patient as they’re doing these movements and just jot down what
their numbers are. It’s virtually impossible to look at a computer screen and evaluate a
patient doing these things simultaneously.” (/bid. Exhibit F, Blum, RT 1/22, 99:27-
100:26.)
Plaintiff was able to follow the Unified Parkinson’s Scale Motor Examination number
from previous visits to understand the patients progress. (/bid. Exhibit F, Blum, RT
1/22, 99:27-100:16.) Similarly, Plaintiff continued to use printed patient charts. (/d.,
RT 1/22, 175:10-18.)
Drs. Gershfield, Fischer, Smith, as well as nurse managers Galvez and Smeekens told
Plaintiff that she could not print out portions of the medical records for patient exams.
(Ibid. Exhibit F, Blum, RT 1/22, 103:2-12.) Plaintiff protested this policy by refusing
to stop using “notes from the prior [patient] visit.” (Zd., RT 1/22, 180:5-7.) After the
PIP was technically over, Plaintiff was told by Drs. Gershfield, Smith and Fischer that
they were aware she was continuing to use the printed patient charts, and admonished
her, “that needs to stop...” (d., RT 1/22, 174:28-175:18.)
Gershfield, Fischer, Smith, Galvez, and Nurse Manager all told Plaintiff she could not
print out the portions of EMR (Jbid. Exhibit F, RT 1/22,103:2-12.)
When PIP concluded, defendants told Plaintiff “[we] hear that [you’re] continuing to
use patient charts and that needs to stop.” (Jbid. Exhibit F, RT 1/22, 175:5-17.)
Reminder Calls
Plaintiff believed that reminder calls for patients about their upcoming appointments
contributed to patient care to make sure that patients did not miss their appointments.
(/bid. Exhibit F, Blum, RT 1/22, 37:7-18.) After meeting with nurse managers
Smeekens and Galvez, Plaintiff understood that they did not want her to ask medical
assistants to do patient reminder calls. (/d., RT 1/22, 110-24-111:10.)
Medical assistant Saroj Khatri told Plaintiff that she was told by Galvez and Smeekens
that she could not make reminder calls. (/bid. Exhibit F, Blum, RT 1/22, 138:28-
139:6.)
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During February and March after the PIP, Dr. Gershfield asked Plaintiff, “[w]hy did I
[Plaintiff] ask my medical assistant to do the reminder calls when that is not something
that I’m allowed to do.” (/bid. Exhibit G, Blum, RT 1/23, 10:2-24.)
Plaintiff raised the issue of reminder calls on multiple occasions, including during a
meeting with Smeekens and Galvez, at a shareholder meeting and at a departmental
meeting. (/bid. Exhibit F, Blum, RT 1/22, 109:7-110:8, 111:22-112:2.)
Plaintiff wanted reminder calls because she wanted to improve patient care insofar as
she “wanted them to show up so that I could take care of them, and they were often
getting confused and going to the wrong place.” (/bid. Exhibit F, Blum, RT 1/22, 111:
15-21.)
During February and March [after PIP], “management went into [Plaintiff's] office,
closed the door and basically started telling [her] not allowed to ask [her] medical
assistant to do the calls.” (bid. Exhibit G, RT 1/23, 9:19-22.) Also, Gershfield said to
Plaintiff: “Why ask medical assistant to do the reminder calls when that is not
something that [you’re] not allowed to do.” (/d., RT 1/23, 10:12-24.)
On or about April 5, 2013, Plaintiff sent an email to Mr. Galvez protesting defendants
practice of refusing to make patient reminder calls. A true and correct copy of the
email dated April 5, 2013 that was marked as Exhibit 37 at trial is attached hereto as
Exhibit Q.
Referrals Out-of-Network/PAMF (i.e., “Leakage”)
The term “leakage” refers to when a physician services or other medical services are
provided outside of the PAMF system. (Ibid. Exhibit F, Lacy, RT 1/22, 53:17-21.)
The goal of the PAMF leakage project and related procedures was to keep as much
activity within PAMF to allow for greater retention of income while reducing
expenses. (bid. Exhibit F, Lacy, RT 1/22, 55:25-56:1.) PAMF’s leakage policy
included tracking of referrals that were made outside of PAMF. (/d. Exhibit F, Blum,
RT 1/22, 144:22-25.)
Exhibit 24A was a document provided to physicians at PAFMG that told them to
“Always refer to a PAMF provider First.” (RT 1/18, 72:2-10, emphasis added.) A true
and correct copy of Exhibit 24A is attached hereto as Exhibit R, and a true and correct
copy of this excerpt from the Reporters Transcript for January 18, 2018 is attached
hereto as Exhibit D.
PAMF’s Managed Care policy similarly stated that all emergency admissions or those
not prior authorized to out-of-network are to be redirected to the network. A true and
correct copy of PAMF Managed Care form that was marked as Exhibit 23A at trial is
attached hereto as Exhibit S.
In 2012, a PowerPoint presentation regarding leakage was presented at the PAFMG
shareholder meeting. (/bid. Exhibit F, Epstein, RT 1/22, 54:4-55-3)
Plaintiff referred patients to physical therapy outside of PAMF because physical
therapy at PAMF was only for postoperative patients and she referred patients to
physical therapy for balance training and fall prevention. (Jbid. Exhibit F, Blum, RT
1/22, 143:23-144:7.)
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— A patient referral by Plaintiff to an out-of-network provider for diagnostics was denied
with reference to the PAMF Out-Of-Network policy, “that services available within
PAMF may not be provided outside of PAMF except in the case of an emergency.”
(Exh. 25.) A true and correct copy of this referral correspondence dated October 4,
2012 that was marked as Exhibit 25 at trial is attached hereto as Exhibit T.
— Plaintiff made written communications to advocate for her patients in cases where the
Managed Care Department had denied referrals: (bid. Exhibit D, Bronstein, RT 1/18,
120:2-9.)
— After Plaintiff's referral to an out-of-network provider was denied on or about October
2012, Plaintiff advocated on behalf of the patient for the diagnostic test to be
completed at Stanford because “the best quality CTA would give me [Plaintiff] that
information... was best for the patient.” Plaintiff referred the patient to Stanford
because the PAMF CT scans were unreadable and of a poor quality. (/bid. Exhibit F,
Blum, RT 1/22, 139:1-11, 141:24-145:11.)
— Dr. Bronstein requested data be pulled regarding Plaintiffs referrals from December
2011 through the end of 2013. (/bid. Exhibit D, Bronstein, RT 1/18, 75:5-76:16.)
— Exhibit 27B reflected that Plaintiff referred patients outside PAMF from December
2011 through 2013. (/bid. Exhibit D, RT 1/18, 76:4-18.) A true and correct copy of
Exhibit 27B is attached hereto as Exhibit U.
— Exhibit 26 reflected a referral by Plaintiff for a patient to receive physical therapy
(Ibid. Exhibit D, RT 1/18, 95:17-96:16.)
— Exhibit 25 reflected an out-of-network referral by Plaintiff. (/bid. Exhibit D, RT 1/18,
123:1-125:23.) A true and correct copy of Exhibit 23 is attached hereto as Exhibit W.
— Leakage is the referring of patients for medical services outside PAMF. (/bid. Exhibit
F, RT 1/22, 53:17-24) Exhibit 22 is a Power point presentation about Leakage. (/d.,
RT 1/22, 54:4-56:1) A true and correct copy of trial Exhibit 22 is attached hereto as
Exhibit X.
— Defendants kept track of the referrals outside PAMF. (/bid. Exhibit F, RT 1/22,
145:14-19.)
e. Generic Medications
- PAMF policy encouraged physicians to proscribe generic medications as one of the
goals of its Generic Prescribing Program. (Ibid. Exhibit D, Qaqundah, RT 1/18,
205:20-206:8.) Plaintiff never met any of the goals set by the Sutter Health Generic
Prescribing Program. (Jd. Qaqundah, RT 1/18, 224:8-25.)
- In protest of the policy, Plaintiff did not always prescribe generics, “because
sometimes it’s just not appropriate.” (Ibid. Exhibit F, Blum, RT 1/22, 147:9-16.)
- Exhibit 18 refers to the SMN Generic Prescribing Program and states that it
“promotes the use of generic drugs”. A true and correct copy of trial Exhibit 18 is
attached hereto as Exhibit Y.
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f. Prescription Renewals
- PAMF put practices and procedures in place with respect to how prescription
medications were renewed. ([bid. Exhibit D, Hernandez, RT 1/18, 257:14-258:8.)
- Plaintiff complained about the policy or relating to the discontinuation of the use of
auto prescription refill reminders at a Neurology Department meeting explaining that,
“those refill reminders are actually a prompt for me to follow up with my patient. So
sometimes if patients just get auto refills, six, nine months in, you miss out on makings
sure that they have normal kidney function or liver function...without getting that
refill reminder, you know, we had — I was caring for over 1,000 patients. There’s no
way I could keep up with who was up to get their labs done, when their refills were
due.” (Jbid. Exhibit F Blum, RT 1/22, 149:10-150:2.)
g. Throughput
- PAMFG expressed concern with respect to Plaintiff’s scheduling of patients and “there
was this constant push to see patients more quickly, see patients in shorter interval
times, see more patients in an hour. And so patients that should have been given 60
minutes were constantly being put in 30-minute slots and I [Plaintiff] couldn’t do my
job.” (dbid. Exhibit F, Blum, 1/22, RT 120:20-121:6.)
- After Plaintiff was taken off the PIP in February and March of 2013, “[t]hings just got
worse. The pressures continued to produce more, see more patients, do it quicker,
spend less time...” (/bid. Exhibit G, Blum, RT 1/23, 7:24-8:8.)
- Plaintiff complained about scheduling and the emphasis on throughput to her medical
assistant and Ms. Smeekens. (/bid. Exhibit F, Blum, RT 1/22, 121:7-28.) Plaintiff
also complained to Dr. Gershfield, telling him, “I keep getting new patients scheduled
in these follow-up slots...the expectation when a new patient comes in is that we
spend a full hour trying to get to the bottom of things, I can’t do that in 30 minutes and
examine them and come up with a treatment plan. And I felt like if I was rushed I
would make a mistake and there would be patient harm.” (/d., RT 1/22, 122:1-14,
126:6-21.)
- Plaintiff protested by insisting that new patients were put in 60-minute appointment
slots. (/bid. Exhibit F, Blum, RT 1/22, 126:9-21.) Plaintiff protested the policy
because, “[i]f I had only 30 minutes with the patient, it impaired my ability to take
care of them.” (/d., Blum, RT 1/22, 128:2-27.) Plaintiff complained about
appointments not being scheduled properly while she was on the PIP. (/d., RT 1/22,
170:5-11.) After being taken off the PIP during her last year as a shareholder, Plaintiff
continued to see patients for 60 minutes when necessary. (/d., RT 1/22, 127:17-
128:3.)
- After Plaintiff was taken off the PIP (in February and March 2013) the “pressures
continued to see more patients, do it quicker, spend less time.” (/bid. Exhibit G, RT
1/23, 7:24-8:2)
h. Length of Time Between Patient Visits
- Plaintiff would “see my [her] patients every two months, and the push from the
department and elsewhere was to expand that time interval, see them every—for six
months.” (/bid. Exhibit F, Blum, RT 1/22, 151:3-14.) On or about February or March
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of 2013, Plaintiff complained about the policies and procedures regarding the length of
time between patient visits because, [A] lot of my [Plaintiff's] patients were
Parkinson’s, which is a progressive disorder, and so to be able to be one step ahead of
the disease, meaning not wait too long before a patient progresses before you adjust
their medicine, you have to see them often. So I would see my patients every two
months, and the push from the department and elsewhere was to expand that time
interval, see them every —for six months.” (/d., Blum, RT 1/22, 150:27-151:14.)
- Plaintiff complained about the policies and procedures regarding patient visit intervals
to Ms. Smeekens, Dr. Gershfield and other doctors in the department. (/bid. Exhibit F,
Blum, RT 1/22, 151:3-19.)
- Although Plaintiff saw her patients every two months, there was “push from the
department and elsewhere was to expand the time interval, see patients every six
months.” (bid. Exhibit F, RT 1/22, 151:8-11.)
i. RVU Budgets and Productivity
- Plaintiff was asked about RVU production every year within the business of the
Medical Group. (/bid. Exhibit F, Blum, RT 1/22, 152:10-13, 155:1-3) The policy was
for doctors to produce 5202 RVU’s per FTE (full time equivalent). Plaintiff's goal was
set at 75% of 5202 or 3900. (/d., RT 1/22, 153:27-154:28.)
- Plaintiff was given a budget RVU of 3000 “which was significantly under the 3900
[she] would have needed to do...the goal that they would set for us...” (/bid. Exhibit
F, Blum, RT 1/22, 155:9-11.) In order to increase her RVUs, she “had to see more
patients in an hour” and Plaintiff did not do that. (/d., RT 1/22, 156:11-15.)
— Exhibit 46 reflected the budgeting of RVUs that occurred every year. (Ibid. Exhibit F,
RT 1/22, 152:8-23.) A true and correct copy of Exhibit 46 is attached hereto as Exhibit
Z.
- Gershfield told Plaintiff every year: “That [she] was the lowest in the department. He
was having problems with [her] the most in terms of under producing.” (Ibid. Exhibit
F, RT 1/22, 155:1-8.)
j. HCC Coding
— Defendants’ Joint Motion in Limine No. 1 To Exclude Evidence or Argument of
Matters Not in Controversy sought to exclude references to coding, described by
Defendants as “an alleged policy and practice of having physicians ‘over-code’, i.e.,
code at a higher level than appropriate to increase reimbursement rates form third
party payors.” A true and correct copy of Defendants’ Motion in Limine no. | is
attached hereto as Exhibit AA.
- The Court granted Defendants’ Motion to exclude evidence of coding on the grounds
that the probative value is slight and substantially outweighed by risk of confusing the
issues. (RT 1/9, 46:7-14.) A true and correct copy of this excerpt from the Reporter’s
Transcript for January 9, 2018 is attached hereto as part of Exhibit B.
12. The following evidence was presented at trial in the Plaintiff's case-in-chief as
proof that Plaintiff protested Defendants’ “decisions, policies and practices”:
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Questionnaires
Plaintiff spoke up at a Shareholder meeting and said: “I understand concept of what
Lean is, and my issue is that the way it’s being implemented in my department is that
it is compromising my ability to give appropriate patient care, and I gave the example
of my patient questionnaires.” (/bid. Exhibit F, RT 1/22, 95:15-96:4)
As to the Lean policy/practice of “not using questionnaires,” Plaintiff continued to use
the forms (i.e., she did not stop using the forms). (/bid. Exhibit F, RT 1/22, 98:11-17.)
Plaintiff disagreed with Defendants’ decision, policy or practice about questionnaires:
“J disagreed. I said that without the questionnaires, my ability to properly take care of
my patients is impaired. I cannot do my job. Pressure of needing to produce more
RVUs and see patients quicker would result in harm if I didn’t use these
questionnaires.” (/bid. Exhibit F, RT 1/22, 164:23-165:2.)
Plaintiff complained: “Q: What’s a patient care complaint you had that you made
while on the PIP? A: Again, my questionnaires and the appointments not being
scheduled properly.” (bid. Exhibit F, RT 1/22, 170:5-8)
Plaintiff “continued to use the questionnaires until the time she left the group.” (/bid.
Exhibit F, RT 1/22, 179:28-180:4.)
After the PIP (February, March 2013) “[Plaintiff] refused not to use my
questionnaires.” (/bid. Exhibit G, RT 1/23/18 at 8:11-12.)
Plaintiff testified, “without them [questionnaires] I couldn’t deliver good care. I
couldn’t come up with a diagnosis if these questions were not answered.” (bid.
Exhibit F, RT 1/22, 96:24-28.)
Plaintiff testified: “Not using the questionnaires would impair my ability to provide
good patient care.” (bid. Exhibit F, RT 1/22, 98:14-17.)
Printing out “United Parkinson’s Scale” and Note of Last Exam from EMR
Plaintiff refused to stop using printed “notes from the prior [patient] visit.” (Ibid.
Exhibit F, RT 1/22, 180:5-7.)
Plaintiff testified about the Parkinson’s Disease Rating Scale: “Having it printed out
easier to observe the patient as they’re doing the movements and jot down their
numbers. It’s virtually impossible to look at a computer screen and evaluate a patient
doing these things simultaneously. Not possible.” (bid. Exhibit F, RT 1/22, 100:21-
26.)
Plaintiff also wanted her last note from the EMR/chart for the patient to be printed out.
It allowed her to have history of the patient and she had all of her exam right there on
paper as she was watching the patient, what their score was and have the comparison
right there. (/bid. Exhibit F, RT 1/22, 101:6-22.)
Reminder Calls
Plaintiff spoke up at a shareholder meeting that her assistant could not make reminder
calls to patients, at a Neurology department meeting, and a meeting with nurse
managers Smeekens and Galvez. (/bid., Exhibit F, RT 1/22, 111:22-112:26, 114:25-
115:4, 109:9-25.)
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A true and correct copy of trial Exhibit 37 is attached hereto as Exhibit Q.
Plaintiff testified, “I wanted them to show up so I could take care of them”. (/bid.,
Exhibit F, RT 1/22, 111:15-21.)
Referrals Out-of-Network/PAMF (i.e., “Leakage”)
Plaintiff referred patients out-of-network. True and correct copies of trial Exhibits
27B and 26 are attached hereto as Exhibits U and V, respectively.
Plaintiff made an out-of-network referral (to Stanford). Plaintiff explained: “I needed
to better characterize this aneurysm to know how to follow it going forward. So the
best quality CTA would give me that information so I advocated for this test to be
done at Stanford, because that was what was best for the patient”. (/bid., Exhibit F, RT
1/22, 142:5-11.) A true and correct copy of trial Exhibit 25 is attached hereto as
Exhibit T.
Plaintiff referred patients for physical therapy outside of PAMF. (/bid., Exhibit F, RT
1/22, 143:24-26.) She explained: “Most of the physical therapy I referred was for
giving balance training to prevent falls from Parkinson’s patients, because if I can
prevent a hip fracture and death.” (/d., RT 1/22, 143:27-144:7.)
Defendants’ Managed Care Director (Bronstein) testified: “I found evidence in two
cases where Dr. Blum made a written communication that the implication of it [was]
to advocate for [her] patient”. (/bid., Exhibit D, RT 1/18, 121:6-9.)
Generic Medications
Plaintiff testified that she opposed prescribing generics “because sometimes it’s just
not appropriate”. (Ibid., Exhibit F, RT 1/22, 147:10-26.)
Plaintiff never met any of the goals set by Sutter. (/bid., Exhibit D, RT 1/18, 217:9-12
and 224:9-15.) See also, trial exhibit 19. A true and correct copy of Exhibit 19 is
attached hereto as Exhibit BB.
Prescriptions (Renewals and Samples)
Plaintiff disputed defendants’ practice related to refills at a Neurology Department
meeting: “I explained that those refill reminders are a prompt for me to follow up with
my patient, make sure they have normal kidney or liver function. There’s certain
things when someone is on a chronic medication that you have to follow over time.
Without getting the refill reminder, there was no way | could keep up with who [which
patient] was up to get their labs done and when.” (/bid., Exhibit F, RT 1/22, 149:3-
150:2.)
Plaintiff complained at a Neurology Department meeting about sample medications:
“They [defendants] were going to get rid of our samples of the newer medications. A
lot times the only way to get a new brand name medication approved for a patient is by
first trying it out, showing that the patient is responding better than what the
alternatives are, showing they tolerate it better without side effects and I have enough
to write a justification letter.” (/bid., Exhibit F, RT 1/22,148:3-20.)
Throughput
Plaintiff complained to Gershfield: “I keep getting new patients scheduled in these
follow-up slots . . . I can’t do that [spend full hour trying to get to the bottom of things]
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13.
in 30 minutes and exam them and come up with a treatment plan. If I was rushed I
would make a mistake and there would be patient harm.” (/bid., Exhibit F, RT 1/22,
126:10-18.)
Plaintiff raised the issue verbally to nursing managers (Smeekens) first and then more
than once to Gershfield in face-to-face meetings. (/bid., Exhibit F, RT 1/22, 121:15-
122:28.)
Plaintiff “insisted that new patients are put in 60 minute slots and when it kept not
happening, I put it in writing.” (/bid., Exhibit F, RT 1/22, 126:19-21.)
Plaintiff wanted “patients scheduled properly, because when they’re improperly
scheduled, it impairs my ability to take care of them.” (/bid., Exhibit F, RT 1/22,
128:24-27.)
While on the PIP, Plaintiff complained: “Q: What’s a patient care complaint you had
that you made while on the PIP? A: Again, my questionnaires and the appointments
not being scheduled properly.” (/bid., Exhibit F, RT 1/22, 170:5-8.)
Plaintiff continued to see her patients in 60 minute appointments — e.g., After taken off
the PIP (in February, March 2013) “I kept seeing my patients at 60 minutes.” (/bid.,
Exhibit F, RT 1/23, 7:24-8:13.)
Plaintiff explained: “If I had only 30 minutes with a [new] patient, it impaired my
ability to take care of them. I could not deliver patient care in 30 minutes when they
required 60.” ({bid., Exhibit F, RT 1/22, 128:22-27.)
Length of time Between Patient Visits
Plaintiff complained at departmental meetings: “A lot of my patient were Parkinson’s,
which is a progressive disorder. To be able to be one step ahead of the disease,
meaning not wait too long before a patient progresses before you adjust their
medicine, you have to see them often. Push [by defendants] to expand the time
interval. I explained that is improper care. I cannot properly take care of my patients if
I’m seeing them every six months when I need to see them every two months.” (/bid.,
Exhibit F, RT 1/22, 150:17-151:16.)
RVU Budgets and Productivity
Plaintiff “refused to increase [RVUs] and go up to the level that [Gershfield] was
asking her to go up to.” (Ibid., Exhibit F, RT 1/22,155:9-11.)
Plaintiff only budgeted 3000, “which was significantly under the 3900 [she] would
have needed to do, that was the goal that [defendants] set.” (/bid., Exhibit F, RT
1/22,154:18-24.)
In order to increase her RVUs, Plaintiff “had to see more patients in an hour” and she
refused did not do that. (/bid., Exhibit F, RT 1/22, 156:11-15.)
The following evidence was presented at trial in Plaintiff's case-in-chief as proof
that Defendant terminated or penalized Plaintiff principally for advocating for medically
appropriate health care:
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a. Plaintiff was blindsided in a meeting with Smith, Fischer and Gershfield and told
she “had a negative attitude, was too demanding on staff, that she needed to
evaluate whether or not she belonged in the organization and that request to change
FTE was being denied.” (Ibid., Exhibit F, RT 1/22, 163:9-18.)
b. Plaintiff was not given any examples of “negative attitude”, but was just told she
was “making inappropriate comments”. (/bid., Exhibit F, RT 1/22, 164:3-11.) No
examples of “inappropriate comments” were given. (/d., RT 1/22, 164:11-12.)
c. “Too demanding on staff’ was referring to Plaintiff's use of questionnaires and
asking staff/assistant to print out portions of EMR/patient charts. (/bid., Exhibit F,
RT 1/22, 164:16-22.)
d. True and correct copies of trial Exhibits 58 and 60 are attached hereto as Exhibits
CC and DD, respectively.
e. The decision to place Plaintiff on the PIP was made by Smith, Gershfield, Fischer
and Peredia. (/bid., Exhibit C, RT 1/17, 115:16-25.)
f. While on the PIP, Plaintiff was required to “not say anything ever at shareholder
meetings, at departmental meetings.” (/bid., Exhibit F, RT 1/22, 169:22-26.)
g. Plaintiff was threatened with a second PIP at the end of April 2013. (/bid., Exhibit
G, RT 1/23, 21:23-22:5.)
h. Defendant’s reason for placing Plaintiff on the PIP (trying to get out of call) was
pretext, because she “said she would continue to take call, would continue
weekend call, would continue hospital rounding.” (/bid., Exhibit G, RT 1/23,
22:13-15.)
i. Defendants told Plaintiff: “if you’re going to stay here, you’re going to get fired.”
(Ibid., Exhibit G, RT 1/23, 24:20-21.)
14. In addition to opposing defendant PAFMG’s motion for non-suit, I additionally
requested to reopen Plaintiff's case to present additional evidence, and I made an offer of proof as
to what that additional evidence would be. I did so in Section VII (pages 18-20) of “Plaintiff's
Opposition to Defendant Palo Alto Foundation Medical Group, Inc.’s Motion for Non-Suit, or the
Alternative, Partial Non-Suit” (“Opposition”). A true and correct copy of that Opposition is
attached hereto as Exhibit EE. I also filed a formal pleading requesting to reopen Plaintiff's case.
A true and correct copy of that pleading, “Plaintiff's Request to Re-Open Her Case to Present
Additional Evidence in Response to Defendant Palo Alto Foundation Medical Group, Inc.’s
Motion for Non-Suit, or the Alternative, Partial Non-Suit is attached hereto as Exhibit FF.
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15. The Court acknowledged that, “Plaintiff filed a motion to reopen the case and did
an offer of proof of what she would proposed to proffer as additional evidence.” (RT 1/29, 13:12-
15.) Although Plaintiff offered nineteen additional witnesses on a multitude of evidentiary issues,
the Court only granted Plaintiffs motion to reopen as to Dr. Gershfield and only on one subject,
i.e., defendants’ policy and practice regarding “throughput”. (/bid., Exhibit I, RT 1/29, 13:6-14:6.)
Exclusion of Plaintiff’s Expert Dr. Lorne Label
16. Plaintiff retained and designated Dr. Lorne Label, a full time Neurologist as one of
her experts. The court was informed on January 19, 2018 that Dr. Label’s “Scope of Expertise”
with respect to this case was “Neurology and whether or not protests about policies and practices
that affect a neurologist are medically appropriate.” (RT 1/19, 132:18-21.) A true and correct
copy of this excerpt from the Reporter’s Transcript for January 19, 2018 is attached hereto as part
of Exhibit E.
17. On January 23, 2018, I also filed “Plaintiffs Memorandum re: Motion to Qualify
Dr. Lorne Label as an Expert Witness with Regard to Plaintiff's ‘Advocacy’ Per Bus. & Prof.
Code Section 2056,” a true and correct copy of which is attached hereto as Exhibit GG.
18. Evidence about Dr. Label’s knowledge, skill, experience, training and education
was presented in Plaintiff's case-in-chief, and Dr., Label’s testimony at trial reflected that he had
special knowledge, skill and experience with each of the following decisions, policies and
practices about which Plaintiffs advocated (i.e., “protested”):
a. RVU production (/bid., Exhibit E, RT 1/19, 133:2-134:14);
b. Length of time of patient visit re: various illness (id., Exhibit E, RT 1/19, 134:16-
136:5);
c. Referral guidelines for referring patients to other physicians (id., RT 1/19, 136:15-
137:20);
d. Referrals of Neurology patients for physical therapy (id., RT 1/19, 137:21-24);
e. Referrals of Neurology patients for CT Angio scans (id., RT 1/19, 137:25-138:25);
f. Use of EMR (Electronic Medical Records) (id., RT 1/19, 140:22-141:13);
g. Use of Questionnaires for various types of neurologic conditions (id., RT 1/19, at
141:14-23);
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h. Reminder calls to patients (id., RT 1/19,141:27-142:25);
i. Prescription of generic medications (id., RT 1/19, 142:26-143:22, 144:16-28); and
j. Use of sample medications (id., RT 1/19, 143:23-144:8).
19, On both January 19, 2014 and January 24, 2018, the Court acknowledged Dr.
Label’s expertise stating:
“T’m inclined to qualify the witness as an expert in general on the subject of
neurology. If his opinions are sought as to whether it was medically appropriate to
refer a patient for some sort of treatment, then I think he can testify about that.” (/bid.,
Exhibit E, RT 1/19, 153:18-24); and
— “Clearly at least from my point of view that he’s an expert in general practice of
neurology.” (RT 1/24, 200:12-14.)
True and correct copies of excerpts from the Reporter’s Transcript of January 24, 2018 are
attached hereto as Exhibit H.
20. | Defendant’s counsel admitted during pre-trial motions in limine that Dr. Label
would probably be competent and able to say whether it would be appropriate to refer a
Parkinson’s patient out for physical therapy. (/bid., Exhibit B, RT 1/9, 99:25-100:2.)
21. On January 24, 2018, the Court excluded Dr. Label from testifying, ruling that:
— No expert opinion is needed on the subject of questionnaires, printing from patients
file, reminder calls, length of patient appointments, and length of time between
appointments (/bid., Exhibit H, RT 1/24, 212:2-6);
— Dr. Label did not qualify to testify on the issue of referring to one facility over another
for CT Angio scans (id., RT 1/24, 207:5-10); and
— Dr. Label was not qualified to testify on referral of Parkinson’s patients for physical
therapy and “I [the Court] didn’t hear a prohibition of referral to physical therapy.”
(d., RT 1/24, 207:11-19.)
22. The Court later ruled, on January 29, 2018, as part of its basis for granting partial
non-suit for PAFMG, that, “plaintiff did not have an expert qualified to render an opinion for the
medical appropriateness of that particular advocacy” (referring to what the court called
“administrative decisions and policies”). (Jbid., Exhibit I, RT 1/29, 8:1-5.)
Jury Instruction Errors
23. In Defendants’ [Proposed] Jury Instructions, dated January 5, 2018, and during the
jury instruction conference held in chambers, defendant PAFMG requested that jury instruction
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CACI 322: Occurrence of Agreed Condition Precedent be given as applicable to Plaintiffs breach
of contract cause of action. Prior to the jury being instructed (on February 1, 2018), I objected to
the CACI 322 instruction being given, because Section 10.2.2. of the Palo Alto Foundation
Medical Group Shareholder Employment Agreement (to which the instruction makes specific
reference) does not contain a condition precedent. A true and correct copy of Defendant’
Proposed Jury Instruction CACI 322 is attached hereto as Exhibit HH. The language of Section
10.2.2 provides that: “This Agreement may be terminated without cause by Medical Group.
Termination without cause procedures . . . require a vote of seventy-five percent of Medical
Group Shareholders.” (/bid., Exhibit M, Shareholder-Employment Agreement, trial Exhibit 15.)
24, Additionally, Susan Smith (Regional Medical Director of PAFMG) agreed that,
“The contract language required that if a physician shareholder was going to be terminated by
Medical Group without cause, that there was a procedure that the Medical Group had to go
through and there was a vote that had to occur with the shareholders.” (/bid., Exhibit C, RT 1/17,
at 40:22-41:3) Smith also testified:
= “To be terminated without cause required a 75 percent vote.”
= “To terminate a physician without cause required a 75 percent vote.”
(Ibid., Exhibit C, RT 1/17, 41:2-3, 41:13-14.)
25. On January 5, 2018, I filed Plaintiff's Proposed Jury Instructions, which included
jury instruction CACI 2510: “Constructive Discharge” Explained. Even though Plaintiff's
wrongful constructive termination cause of action had been dismissed by the Court, I asked for
CACTI 2510 to be given with respect to Plaintiffs breach of contract cause of action regarding
Section 10.2.2 during the jury instruction conference in chambers. I argued to the Court that the
facts of the case involve a “constructive” termination and the jury will be confused if not given an
instruction that a “resignation” can constitute a “termination” under certain circumstances. The
Court denied my request and did not instruct the jury on CACI 2510. A true and correct copy of
the CACTI 2510 instruction I proposed and requested be given is attached hereto as Exhibit K. In
addition, the Court also unilaterally changed jury instruction CACI 336 —Affirmative Defense —
Waiver.
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26. The jury began deliberating on February 2, 2018. On February 8, 2018, in
response to a question from the jury, the Court re-wrote jury instruction CACI 300: Breach of
Contract Introduction and switched out the original instruction with a new instruction. A true and
correct copy of the CACI 300 instruction originally given to the jury, is attached hereto as Exhibit
II. A true and correct copy of the Court’s revised CACI 300 instruction given to the jury is
attached hereto as Exhibit JJ.
27. — Lobjected to the revised CACI 300 instruction and the fact it was being given mid-
deliberations to the jury. The Court overruled my objection, and I then requested that I be allowed
to provide a closing argument on the new instruction. The Court denied my request.
28. Also on February 8, 2018, in response to the same question from the jury, the
Court also decided to change the Special Verdict Forms. A true and correct copy of the Special
Verdict Forms originally given to the jury is attached hereto as Exhibit KK. A true and correct
copy of the re-written Spec
Preview
Theresa J. Barta, SBN 150995 BARTA LAW 4041 Macarthur Blvd., Ste. 280 Newport Beach, CA 92660-2537 Telephone: (949) 833-3383 Facsimile: (949) 209-2530 Email: theresa@barta-law.com Charles M. Louderback, SBN 88788 Stacey L. Pratt, SBN 124892 LOUDERBACK LAW GROUP 44 Montgomery Street, Suite 2970 San Francisco, CA 94104 Telephone: (415) 615-0200 Facsimile: (415) 795-4775 E-Mail: — clouderback@louderbackgroup.com spratt@louderbackgroup.com Attorneys for Plaintiff DIANA P. BLUM, M.D. Electronically Filed by Superior Court of CA, County of Santa Clara, on 3/19/2018 3:17 PM Reviewed By: R. Aragon Case #2015-1-CV-277582 Envelope: 1325271 IN AND FOR THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA - UNLIMITED JURISDICTION DIANA P. BLUM, M.D., Plaintiff, Vv. SUTTER HEALTH, a California corporation; PALO ALTO FOUNDATION MEDICAL GROUP, INC., a California corporation; PALO ALTO MEDICAL FOUNDATION, a California corporation; and DOES 1| through 20, Defendants. 00022168 v10 Civil Case No. 2015-1-CV-277582 DECLARATION OF THERESA J. BARTA IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW Date: TBA Time: TBA Dept: 16 Judge: Hon. Drew C. Takaichi Complaint filed: March 4, 2015 Trial Date: January 8, 2018 DECLARATION OF THERESA J. BARTA IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW TRIAL Case No. 2015-1-CV-277582oOo IN nw 10 u 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I, THERESA J. BARTA, declare: 1. I am an attorney duly licensed to practice before all the courts of the State of California and am the sole member of Barta Law. Along with co-counsel from the Louderback Law Group, who have recently become associated as counsel, I represent Plaintiff Diana Blum, M_D. in this action. I served as trial counsel in this action. The matters stated herein are of my own personal knowledge and if called to testify to these matters, I could and would competently testify thereto. 2. On or about August 6, 2015, Plaintiff Diana Blum M.D.(“Plaintiff’) filed her First Amended Complainin this action which included the following causes of action: (1) Wrong (Constructive) Termination in Violation of Public Policy; (2) Violation of California Business and Professions Code Section 2056; (3) Breach of Contract; (4) Unlawful and/or Unfair Business Practices (Violation of California Business & Professions Code Section 17200); (5) Intentional Interference with Prospective Economic Advantage; and (6) Negligent Interference with Prospective Economic Advantage. A true and correct copy of Plaintiff’s First Amended Complaint is attached hereto as Exhibit A. 3. The trial of this action commenced on January 8, 2018, in Department 16 of the Superior Court of California for the County of Santa Clara, the Honorable Drew C. Takaichi presiding. 4, On January 26, 2016, Plaintiff rested after presenting evidence in her case and chief. Defendant Palo Alto Foundation Medical Group, Inc. (“PAFMG”) moved for a judgment of nonsuit, or in the alternative, partial nonsuit under Code of Civil Procedure section 581C. 5. On January 29, 2018, the Court from the bench addressed Defendant’s nonsuit in relation to Plaintiff's claim for violations of Business and Professions Code section 2056 focusing on the various procedures of Defendants that Court found had not been supported by substantial evidence. (Trial Reporter’s Transcript (“RT”) 1/29, at 6:4-8:8.) True and correct copies of excerpts from the Reporter’s Transcript of January 29, 2018 are attached hereto as Exhibit I. Mil 00022168 v10 -l- DECLARATION OF THERESA J. BARTA IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW TRIAL; Case No. 2015-1-CV-277582oOo IN nw 10 u 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Motion for Non-Suit 6. Attached hereto as Exhibit J is a true and correct copy of the Court’s Order Granting in Part and Denying in Part of Defendant Palo Alto Foundation Medical Group, Inc.’s Motion for Non-Suit, or in the Alternative, Partial Non-Suit (“Order on Non-Suit”). The Court’s Order on Non-Suit dismissed Plaintiff's first cause of action for wrongful (constructive) termination in violation of public policy and second cause of action for retaliation in violation of Business and Professions Code Section 2056. 7. The necessary elements of proof for a cause of action for wrongful (constructive) termination in violation of public policy are set forth in Plaintiff's Special Jury Instruction No. 1, which was submitted to the Court and based on CACI Instruction Nos. 2430, 2431, 2505 and California Bus. & Prof. Code §2056. A true and correct copy of Plaintiff’s Special No. 1 is attached hereto as Exhibit K. Also included in Exhibit K are true and correct copies of the following jury instructions proposed and submitted by Plaintiff for the wrongful constructive termination cause of action: a. CACI 2433: Wrongful Discharge in Violation of Public Policy - Damages b. CACI 2510: “Constructive Discharge” Explained c. Plaintiff's Special No. 2: California Public Policy — Physicians are Encouraged to Advocate for d. Plaintiff's Special No. 3: Meaning of “To Advocate for Medically Appropriate Health Care” e. Plaintiff's Special No. 4: Definition of “Protest” f. Plaintiff's Special No. 9: Business & Professions Code §2056 Is a Violation of Public Policy 8. The necessary elements of proof for a cause of action for retaliation in violation of Business and Professions Code Section 2056 are set forth in Plaintiff's Special Jury Instruction No. 6, which was submitted to the Court and based on California Bus. & Prof. Code §2056. A true and correct copy of Plaintiff's Special No. 6 is attached hereto as Exhibit L. Also included in Exhibit L are true and correct copies of the following jury instructions proposed and submitted by Plaintiff for the cause of action for retaliation in violation of Business and Professions Code Section 2056: 00022168 v10 -2- DECLARATION OF THERESA J. BARTA IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW TRIAL; Case No. 2015-1-CV-277582oOo IN nw 10 u 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9%. Plaintiff's Special No. 3: Meaning of “To Advocate for Medically Appropriate Health Care” . Plaintiff's Special No. 4: Definition of “Protest” Plaintiff's Special No. 5: Business & Professions Code §2056 . Plaintiff's Special No. 7: Business & Professions Code §2056 — “Principally” Plaintiff's Special No. 8: Business & Professions Code §2056 — “Penalty” Defined Plaintiff's Special No. 9: Business & Professions Code §2056 Is a Violation of Public Policy. The following evidence was presented at trial in the Plaintiff's case-in-chief as proof of Plaintiff's first cause of action for wrongful constructive discharge: 00022168 v10 a. Exhibit 15: “Palo Alto Foundation Medical Group, Inc. Shareholder-Employment Agreement”. A true and correct copy of trial Exhibit 15 is attached hereto as Exhibit M. . Exhibit 72, which included an email from Patricia Curtis (Chair of defendant’s Professional Affairs Committee) in which she stated: “we did say to Diana she would leave with letters of rec. That was the big difference between leaving ‘from a position of strength’ vs getting fired.” Exhibit 72 also included an email from Susan Smith (defendant’s Regional Medical Director) in which she said: “I recall that we said, in persuading her to leave, that she would be better off resigning .. .” A true and correct copy of trial Exhibit 72 is attached hereto as Exhibit N. Testimony of Susan Smith: “In persuading her to leave . . .” (RT 1/17, 50:9-14) and “She needed a second chance.” (RT 1/17, 159:1-3) True and correct copies of these excerpts from the Reporter’s Transcript for January 17, 2018 are attached hereto as Exhibit C. . Testimony of the Plaintiff regarding the intolerable working conditions she was subjected to (see RT 1/23, 7:28-8:8, 9:2-25, 15;20-16;6, 16:27-17:5, 26:14-18); her tequest to move to different working location (RT 1/23, 17:27-18:13); and that Plaintiff had been put on anti-depressants and was referred to see a therapist (RT -3- DECLARATION OF THERESA J. BARTA IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW TRIAL; Case No. 2015-1-CV-277582oOo IN nw 10 u 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1/23, 26:23-27:7). True and correct copies of these excerpts from the Reporter’s Transcript for January 23, 2018 are attached hereto as Exhibit G. e. Testimony that Patricia Curtis (Chair of Prof Affairs Committee) told the Plaintiff that “doctors that go on a second PIP are inevitably fired” (ibid. Exhibit G, RT 1/23, 37:25-28) and “that Plaintiff had three choices: go on second PIP and inevitably be fired, resign, or if [Plaintiff] tried to sue or go to the media, [defendants] would make sure [Plaintiff] never worked in the Bay area again.”) (id. Exhibit G, RT 1/23, 39:9-16.) f. Testimony that Plaintiff was forced to resign (ibid. Exhibit G, RT 1/23, 24:20-21, 37:21-26), “never wanted to resign” (id., RT 1/23, 37:18-20) and “I had to work in Bay area because family is here. Husband’s job here. Kids go to school here. So it was not an option. I certainly didn’t want to be fired — that’s something that would ruin a doctor’s career. It follows you everywhere. So of course I took the package.” (/d., RT 1/23, 42:19-25.) Plaintiff also testified: “They said, if you’re going to stay here, you’re going to get fired.” (/d., RT 1/23, 24:20-21.) g. Trial Exhibit 109: Zengler (Expert Economist Report), which shows that Plaintiff's economic damages as result of her terminated employment from PAFMG ranged from $444,483 to $956,528. A true and correct copy of trial Exhibit 109 is attached hereto as Exhibit O. 10. With respect to Plaintiffs second cause of action for violation of Bus. & Prof. Code §2056, Plaintiff advocated for medically appropriate health care by protesting (i.e., “making a complaint, statement, objection or display of unwillingness or disapproval of!) several “decisions, policies, and practices that the [Plaintiff] reasonably believed impair[ed] [her] ability to provide medically appropriate health care to her patients”. [Bus. & Prof. Code §2056(b).] 11. The following evidence was presented at trial in the Plaintiff's case-in-chief as proof of, and explaining, the “decisions, policies and practices” that Plaintiff protested: ! Special Jury Instruction No. 4: Definition of “Protest”. 00022168 v10 -4- DECLARATION OF THERESA J. BARTA IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW TRIAL; Case No. 2015-1-CV-277582oOo IN nw 10 u 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 00022168 v10 Questionnaires When PAMFG initiated its Lean management program, Plaintiff was asked to not use the patient questionnaires. (Blum, RT 1/22, 94:25-95:2.) A true and correct copy of this excerpt from the Reporter’s Transcript for January 22, 2018 is attached hereto as Exhibit F. At the shareholder meeting when Lean was presented, Plaintiff spoke up and said, “I understand in concept what Lean is, and my issue is that the way it’s being implemented in my department is that it is compromising my ability to give appropriate patient care, and I gave the example of my patient questionnaires.” (/bid. Exhibit F, Blum, RT 1/22, 95:18-96:4.) Plaintiff shared these concerns because she felt she could not deliver good care without the questionnaires. (/d. Exhibit F, Blum, RT 1/22, 96:17-28.) Plaintiff protested the Lean policy by continuing using the questionnaires because “[N]ot using them would impair my ability to provide good patient care.” (Ibid. Exhibit F, Blum, RT 1/22, 98:10-17.) On or about April 26, 2013, Plaintiff wrote a message to the nursing manager with a summary of scheduling instructions because Plaintiff “wanted to make sure my patients were scheduled properly because when they’re improperly scheduled, it impairs my ability to take care of them.” A true and correct copy of the email dated April 26, 2013 that was marked as Exhibit 33 at trial is attached hereto as Exhibit P. When the issue of questionnaires was raised, Plaintiff “disagreed” and said, “without these questionnaires, my ability to properly take care of my patients is impaired. ..the pressure of needing to produce more RVUs and see patients quicker would result in harm if I didn’t use these questionnaires.” (/bid. Exhibit F, Blum, RT 1/22, 164:23- 165:2.) During a 2012 shareholder meeting, Plaintiff raised the example of patient questionnaires when she expressed her concern that the Lean program in “the way it’s being implemented in my department is that it is compromising my ability to give appropriate patient care...” (/bid. Exhibit F, Blum, RT 1/22, 95:18-96:4.) While Plaintiff was on the PIP, she complained about the questionnaire policy and protested by continuing to use questionnaires until she left the group. (/bid. Exhibit F, Blum, RT 1/22, 170:5-11, 179:28-180:4.) After she was taken off the PIP, Plaintiff continued using the questionnaires. (Ibid. Exhibit G, Blum, RT 1/23, 8:25-9:15.) Dr. Smith informed Plaintiff that she could not ask the nursing staff to hand out patient questionnaires unless the rest of the department also wanted the forms handed out. (ibid. Exhibit C, Smith, RT 1/17, 107:22-108:1.) After Plaintiff, explained how and why she used the patient questionnaires, she was told by management that she was not being a team player. (/bid. Exhibit F, Blum, RT 1/22, 95:3-11.) At trial, the Court sustained objections based on relevance and calls for state of mind to a question about Plaintiff's use of questionnaires. (/bid. Exhibit F, RT 1/22, 96:1-7.) -5- DECLARATION OF THERESA J. BARTA IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW TRIAL; Case No. 2015-1-CV-277582oOo IN nw 10 u 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 00022168 v10 Susan Smith told Plaintiff she couldn’t ask the nursing staff to hand out the questionnaires (/bid. Exhibit C, RT 1/17, 107:22-28.) “When Lean came in, I was asked not to use [the questionnaires].” (Ibid. Exhibit C, RT 1/17, 94:25-95:6.) When Plaintiff explained how and why she used the questionnaires, she was told she “wasn’t being a team player.” (Ibid. Exhibit C, RT 1/17, 95:7-11.) During February and March [after the PIP] a couple of times a month, Gershfield [Head of Neurology] would “come in, close the door and start telling [Plaintiff] that [she’s] still using the questionnaires that [she] shouldn’t be.” (/bid. Exhibit G, RT 1/23, 8:25-9:10.) Printing out “United Parkinson’s Scale” and Note of Last Exam from EMR Plaintiff printed out a copy of the Unified Parkinson’s Disease Rating Scale Motor Examination for patient examinations because by “having it printed out, it’s much easier to observe the patient as they’re doing these movements and just jot down what their numbers are. It’s virtually impossible to look at a computer screen and evaluate a patient doing these things simultaneously.” (/bid. Exhibit F, Blum, RT 1/22, 99:27- 100:26.) Plaintiff was able to follow the Unified Parkinson’s Scale Motor Examination number from previous visits to understand the patients progress. (/bid. Exhibit F, Blum, RT 1/22, 99:27-100:16.) Similarly, Plaintiff continued to use printed patient charts. (/d., RT 1/22, 175:10-18.) Drs. Gershfield, Fischer, Smith, as well as nurse managers Galvez and Smeekens told Plaintiff that she could not print out portions of the medical records for patient exams. (Ibid. Exhibit F, Blum, RT 1/22, 103:2-12.) Plaintiff protested this policy by refusing to stop using “notes from the prior [patient] visit.” (Zd., RT 1/22, 180:5-7.) After the PIP was technically over, Plaintiff was told by Drs. Gershfield, Smith and Fischer that they were aware she was continuing to use the printed patient charts, and admonished her, “that needs to stop...” (d., RT 1/22, 174:28-175:18.) Gershfield, Fischer, Smith, Galvez, and Nurse Manager all told Plaintiff she could not print out the portions of EMR (Jbid. Exhibit F, RT 1/22,103:2-12.) When PIP concluded, defendants told Plaintiff “[we] hear that [you’re] continuing to use patient charts and that needs to stop.” (Jbid. Exhibit F, RT 1/22, 175:5-17.) Reminder Calls Plaintiff believed that reminder calls for patients about their upcoming appointments contributed to patient care to make sure that patients did not miss their appointments. (/bid. Exhibit F, Blum, RT 1/22, 37:7-18.) After meeting with nurse managers Smeekens and Galvez, Plaintiff understood that they did not want her to ask medical assistants to do patient reminder calls. (/d., RT 1/22, 110-24-111:10.) Medical assistant Saroj Khatri told Plaintiff that she was told by Galvez and Smeekens that she could not make reminder calls. (/bid. Exhibit F, Blum, RT 1/22, 138:28- 139:6.) -6- DECLARATION OF THERESA J. BARTA IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW TRIAL; Case No. 2015-1-CV-277582oOo IN nw 10 u 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 00022168 v10 During February and March after the PIP, Dr. Gershfield asked Plaintiff, “[w]hy did I [Plaintiff] ask my medical assistant to do the reminder calls when that is not something that I’m allowed to do.” (/bid. Exhibit G, Blum, RT 1/23, 10:2-24.) Plaintiff raised the issue of reminder calls on multiple occasions, including during a meeting with Smeekens and Galvez, at a shareholder meeting and at a departmental meeting. (/bid. Exhibit F, Blum, RT 1/22, 109:7-110:8, 111:22-112:2.) Plaintiff wanted reminder calls because she wanted to improve patient care insofar as she “wanted them to show up so that I could take care of them, and they were often getting confused and going to the wrong place.” (/bid. Exhibit F, Blum, RT 1/22, 111: 15-21.) During February and March [after PIP], “management went into [Plaintiff's] office, closed the door and basically started telling [her] not allowed to ask [her] medical assistant to do the calls.” (bid. Exhibit G, RT 1/23, 9:19-22.) Also, Gershfield said to Plaintiff: “Why ask medical assistant to do the reminder calls when that is not something that [you’re] not allowed to do.” (/d., RT 1/23, 10:12-24.) On or about April 5, 2013, Plaintiff sent an email to Mr. Galvez protesting defendants practice of refusing to make patient reminder calls. A true and correct copy of the email dated April 5, 2013 that was marked as Exhibit 37 at trial is attached hereto as Exhibit Q. Referrals Out-of-Network/PAMF (i.e., “Leakage”) The term “leakage” refers to when a physician services or other medical services are provided outside of the PAMF system. (Ibid. Exhibit F, Lacy, RT 1/22, 53:17-21.) The goal of the PAMF leakage project and related procedures was to keep as much activity within PAMF to allow for greater retention of income while reducing expenses. (bid. Exhibit F, Lacy, RT 1/22, 55:25-56:1.) PAMF’s leakage policy included tracking of referrals that were made outside of PAMF. (/d. Exhibit F, Blum, RT 1/22, 144:22-25.) Exhibit 24A was a document provided to physicians at PAFMG that told them to “Always refer to a PAMF provider First.” (RT 1/18, 72:2-10, emphasis added.) A true and correct copy of Exhibit 24A is attached hereto as Exhibit R, and a true and correct copy of this excerpt from the Reporters Transcript for January 18, 2018 is attached hereto as Exhibit D. PAMF’s Managed Care policy similarly stated that all emergency admissions or those not prior authorized to out-of-network are to be redirected to the network. A true and correct copy of PAMF Managed Care form that was marked as Exhibit 23A at trial is attached hereto as Exhibit S. In 2012, a PowerPoint presentation regarding leakage was presented at the PAFMG shareholder meeting. (/bid. Exhibit F, Epstein, RT 1/22, 54:4-55-3) Plaintiff referred patients to physical therapy outside of PAMF because physical therapy at PAMF was only for postoperative patients and she referred patients to physical therapy for balance training and fall prevention. (Jbid. Exhibit F, Blum, RT 1/22, 143:23-144:7.) -7- DECLARATION OF THERESA J. BARTA IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW TRIAL; Case No. 2015-1-CV-277582oOo IN nw 10 u 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 — A patient referral by Plaintiff to an out-of-network provider for diagnostics was denied with reference to the PAMF Out-Of-Network policy, “that services available within PAMF may not be provided outside of PAMF except in the case of an emergency.” (Exh. 25.) A true and correct copy of this referral correspondence dated October 4, 2012 that was marked as Exhibit 25 at trial is attached hereto as Exhibit T. — Plaintiff made written communications to advocate for her patients in cases where the Managed Care Department had denied referrals: (bid. Exhibit D, Bronstein, RT 1/18, 120:2-9.) — After Plaintiff's referral to an out-of-network provider was denied on or about October 2012, Plaintiff advocated on behalf of the patient for the diagnostic test to be completed at Stanford because “the best quality CTA would give me [Plaintiff] that information... was best for the patient.” Plaintiff referred the patient to Stanford because the PAMF CT scans were unreadable and of a poor quality. (/bid. Exhibit F, Blum, RT 1/22, 139:1-11, 141:24-145:11.) — Dr. Bronstein requested data be pulled regarding Plaintiffs referrals from December 2011 through the end of 2013. (/bid. Exhibit D, Bronstein, RT 1/18, 75:5-76:16.) — Exhibit 27B reflected that Plaintiff referred patients outside PAMF from December 2011 through 2013. (/bid. Exhibit D, RT 1/18, 76:4-18.) A true and correct copy of Exhibit 27B is attached hereto as Exhibit U. — Exhibit 26 reflected a referral by Plaintiff for a patient to receive physical therapy (Ibid. Exhibit D, RT 1/18, 95:17-96:16.) — Exhibit 25 reflected an out-of-network referral by Plaintiff. (/bid. Exhibit D, RT 1/18, 123:1-125:23.) A true and correct copy of Exhibit 23 is attached hereto as Exhibit W. — Leakage is the referring of patients for medical services outside PAMF. (/bid. Exhibit F, RT 1/22, 53:17-24) Exhibit 22 is a Power point presentation about Leakage. (/d., RT 1/22, 54:4-56:1) A true and correct copy of trial Exhibit 22 is attached hereto as Exhibit X. — Defendants kept track of the referrals outside PAMF. (/bid. Exhibit F, RT 1/22, 145:14-19.) e. Generic Medications - PAMF policy encouraged physicians to proscribe generic medications as one of the goals of its Generic Prescribing Program. (Ibid. Exhibit D, Qaqundah, RT 1/18, 205:20-206:8.) Plaintiff never met any of the goals set by the Sutter Health Generic Prescribing Program. (Jd. Qaqundah, RT 1/18, 224:8-25.) - In protest of the policy, Plaintiff did not always prescribe generics, “because sometimes it’s just not appropriate.” (Ibid. Exhibit F, Blum, RT 1/22, 147:9-16.) - Exhibit 18 refers to the SMN Generic Prescribing Program and states that it “promotes the use of generic drugs”. A true and correct copy of trial Exhibit 18 is attached hereto as Exhibit Y. 00022168 v10 -8- DECLARATION OF THERESA J. BARTA IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW TRIAL; Case No. 2015-1-CV-277582oOo IN nw 10 u 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 f. Prescription Renewals - PAMF put practices and procedures in place with respect to how prescription medications were renewed. ([bid. Exhibit D, Hernandez, RT 1/18, 257:14-258:8.) - Plaintiff complained about the policy or relating to the discontinuation of the use of auto prescription refill reminders at a Neurology Department meeting explaining that, “those refill reminders are actually a prompt for me to follow up with my patient. So sometimes if patients just get auto refills, six, nine months in, you miss out on makings sure that they have normal kidney function or liver function...without getting that refill reminder, you know, we had — I was caring for over 1,000 patients. There’s no way I could keep up with who was up to get their labs done, when their refills were due.” (Jbid. Exhibit F Blum, RT 1/22, 149:10-150:2.) g. Throughput - PAMFG expressed concern with respect to Plaintiff’s scheduling of patients and “there was this constant push to see patients more quickly, see patients in shorter interval times, see more patients in an hour. And so patients that should have been given 60 minutes were constantly being put in 30-minute slots and I [Plaintiff] couldn’t do my job.” (dbid. Exhibit F, Blum, 1/22, RT 120:20-121:6.) - After Plaintiff was taken off the PIP in February and March of 2013, “[t]hings just got worse. The pressures continued to produce more, see more patients, do it quicker, spend less time...” (/bid. Exhibit G, Blum, RT 1/23, 7:24-8:8.) - Plaintiff complained about scheduling and the emphasis on throughput to her medical assistant and Ms. Smeekens. (/bid. Exhibit F, Blum, RT 1/22, 121:7-28.) Plaintiff also complained to Dr. Gershfield, telling him, “I keep getting new patients scheduled in these follow-up slots...the expectation when a new patient comes in is that we spend a full hour trying to get to the bottom of things, I can’t do that in 30 minutes and examine them and come up with a treatment plan. And I felt like if I was rushed I would make a mistake and there would be patient harm.” (/d., RT 1/22, 122:1-14, 126:6-21.) - Plaintiff protested by insisting that new patients were put in 60-minute appointment slots. (/bid. Exhibit F, Blum, RT 1/22, 126:9-21.) Plaintiff protested the policy because, “[i]f I had only 30 minutes with the patient, it impaired my ability to take care of them.” (/d., Blum, RT 1/22, 128:2-27.) Plaintiff complained about appointments not being scheduled properly while she was on the PIP. (/d., RT 1/22, 170:5-11.) After being taken off the PIP during her last year as a shareholder, Plaintiff continued to see patients for 60 minutes when necessary. (/d., RT 1/22, 127:17- 128:3.) - After Plaintiff was taken off the PIP (in February and March 2013) the “pressures continued to see more patients, do it quicker, spend less time.” (/bid. Exhibit G, RT 1/23, 7:24-8:2) h. Length of Time Between Patient Visits - Plaintiff would “see my [her] patients every two months, and the push from the department and elsewhere was to expand that time interval, see them every—for six months.” (/bid. Exhibit F, Blum, RT 1/22, 151:3-14.) On or about February or March 00022168 v10 -9- DECLARATION OF THERESA J. BARTA IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW TRIAL; Case No. 2015-1-CV-277582oOo IN nw 10 u 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of 2013, Plaintiff complained about the policies and procedures regarding the length of time between patient visits because, [A] lot of my [Plaintiff's] patients were Parkinson’s, which is a progressive disorder, and so to be able to be one step ahead of the disease, meaning not wait too long before a patient progresses before you adjust their medicine, you have to see them often. So I would see my patients every two months, and the push from the department and elsewhere was to expand that time interval, see them every —for six months.” (/d., Blum, RT 1/22, 150:27-151:14.) - Plaintiff complained about the policies and procedures regarding patient visit intervals to Ms. Smeekens, Dr. Gershfield and other doctors in the department. (/bid. Exhibit F, Blum, RT 1/22, 151:3-19.) - Although Plaintiff saw her patients every two months, there was “push from the department and elsewhere was to expand the time interval, see patients every six months.” (bid. Exhibit F, RT 1/22, 151:8-11.) i. RVU Budgets and Productivity - Plaintiff was asked about RVU production every year within the business of the Medical Group. (/bid. Exhibit F, Blum, RT 1/22, 152:10-13, 155:1-3) The policy was for doctors to produce 5202 RVU’s per FTE (full time equivalent). Plaintiff's goal was set at 75% of 5202 or 3900. (/d., RT 1/22, 153:27-154:28.) - Plaintiff was given a budget RVU of 3000 “which was significantly under the 3900 [she] would have needed to do...the goal that they would set for us...” (/bid. Exhibit F, Blum, RT 1/22, 155:9-11.) In order to increase her RVUs, she “had to see more patients in an hour” and Plaintiff did not do that. (/d., RT 1/22, 156:11-15.) — Exhibit 46 reflected the budgeting of RVUs that occurred every year. (Ibid. Exhibit F, RT 1/22, 152:8-23.) A true and correct copy of Exhibit 46 is attached hereto as Exhibit Z. - Gershfield told Plaintiff every year: “That [she] was the lowest in the department. He was having problems with [her] the most in terms of under producing.” (Ibid. Exhibit F, RT 1/22, 155:1-8.) j. HCC Coding — Defendants’ Joint Motion in Limine No. 1 To Exclude Evidence or Argument of Matters Not in Controversy sought to exclude references to coding, described by Defendants as “an alleged policy and practice of having physicians ‘over-code’, i.e., code at a higher level than appropriate to increase reimbursement rates form third party payors.” A true and correct copy of Defendants’ Motion in Limine no. | is attached hereto as Exhibit AA. - The Court granted Defendants’ Motion to exclude evidence of coding on the grounds that the probative value is slight and substantially outweighed by risk of confusing the issues. (RT 1/9, 46:7-14.) A true and correct copy of this excerpt from the Reporter’s Transcript for January 9, 2018 is attached hereto as part of Exhibit B. 12. The following evidence was presented at trial in the Plaintiff's case-in-chief as proof that Plaintiff protested Defendants’ “decisions, policies and practices”: 00022168 v10 -10- DECLARATION OF THERESA J. BARTA IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW TRIAL; Case No. 2015-1-CV-277582oOo IN nw 10 u 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 00022168 v10 Questionnaires Plaintiff spoke up at a Shareholder meeting and said: “I understand concept of what Lean is, and my issue is that the way it’s being implemented in my department is that it is compromising my ability to give appropriate patient care, and I gave the example of my patient questionnaires.” (/bid. Exhibit F, RT 1/22, 95:15-96:4) As to the Lean policy/practice of “not using questionnaires,” Plaintiff continued to use the forms (i.e., she did not stop using the forms). (/bid. Exhibit F, RT 1/22, 98:11-17.) Plaintiff disagreed with Defendants’ decision, policy or practice about questionnaires: “J disagreed. I said that without the questionnaires, my ability to properly take care of my patients is impaired. I cannot do my job. Pressure of needing to produce more RVUs and see patients quicker would result in harm if I didn’t use these questionnaires.” (/bid. Exhibit F, RT 1/22, 164:23-165:2.) Plaintiff complained: “Q: What’s a patient care complaint you had that you made while on the PIP? A: Again, my questionnaires and the appointments not being scheduled properly.” (bid. Exhibit F, RT 1/22, 170:5-8) Plaintiff “continued to use the questionnaires until the time she left the group.” (/bid. Exhibit F, RT 1/22, 179:28-180:4.) After the PIP (February, March 2013) “[Plaintiff] refused not to use my questionnaires.” (/bid. Exhibit G, RT 1/23/18 at 8:11-12.) Plaintiff testified, “without them [questionnaires] I couldn’t deliver good care. I couldn’t come up with a diagnosis if these questions were not answered.” (bid. Exhibit F, RT 1/22, 96:24-28.) Plaintiff testified: “Not using the questionnaires would impair my ability to provide good patient care.” (bid. Exhibit F, RT 1/22, 98:14-17.) Printing out “United Parkinson’s Scale” and Note of Last Exam from EMR Plaintiff refused to stop using printed “notes from the prior [patient] visit.” (Ibid. Exhibit F, RT 1/22, 180:5-7.) Plaintiff testified about the Parkinson’s Disease Rating Scale: “Having it printed out easier to observe the patient as they’re doing the movements and jot down their numbers. It’s virtually impossible to look at a computer screen and evaluate a patient doing these things simultaneously. Not possible.” (bid. Exhibit F, RT 1/22, 100:21- 26.) Plaintiff also wanted her last note from the EMR/chart for the patient to be printed out. It allowed her to have history of the patient and she had all of her exam right there on paper as she was watching the patient, what their score was and have the comparison right there. (/bid. Exhibit F, RT 1/22, 101:6-22.) Reminder Calls Plaintiff spoke up at a shareholder meeting that her assistant could not make reminder calls to patients, at a Neurology department meeting, and a meeting with nurse managers Smeekens and Galvez. (/bid., Exhibit F, RT 1/22, 111:22-112:26, 114:25- 115:4, 109:9-25.) -ll- DECLARATION OF THERESA J. BARTA IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW TRIAL; Case No. 2015-1-CV-277582oOo IN nw 10 u 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 00022168 v10 A true and correct copy of trial Exhibit 37 is attached hereto as Exhibit Q. Plaintiff testified, “I wanted them to show up so I could take care of them”. (/bid., Exhibit F, RT 1/22, 111:15-21.) Referrals Out-of-Network/PAMF (i.e., “Leakage”) Plaintiff referred patients out-of-network. True and correct copies of trial Exhibits 27B and 26 are attached hereto as Exhibits U and V, respectively. Plaintiff made an out-of-network referral (to Stanford). Plaintiff explained: “I needed to better characterize this aneurysm to know how to follow it going forward. So the best quality CTA would give me that information so I advocated for this test to be done at Stanford, because that was what was best for the patient”. (/bid., Exhibit F, RT 1/22, 142:5-11.) A true and correct copy of trial Exhibit 25 is attached hereto as Exhibit T. Plaintiff referred patients for physical therapy outside of PAMF. (/bid., Exhibit F, RT 1/22, 143:24-26.) She explained: “Most of the physical therapy I referred was for giving balance training to prevent falls from Parkinson’s patients, because if I can prevent a hip fracture and death.” (/d., RT 1/22, 143:27-144:7.) Defendants’ Managed Care Director (Bronstein) testified: “I found evidence in two cases where Dr. Blum made a written communication that the implication of it [was] to advocate for [her] patient”. (/bid., Exhibit D, RT 1/18, 121:6-9.) Generic Medications Plaintiff testified that she opposed prescribing generics “because sometimes it’s just not appropriate”. (Ibid., Exhibit F, RT 1/22, 147:10-26.) Plaintiff never met any of the goals set by Sutter. (/bid., Exhibit D, RT 1/18, 217:9-12 and 224:9-15.) See also, trial exhibit 19. A true and correct copy of Exhibit 19 is attached hereto as Exhibit BB. Prescriptions (Renewals and Samples) Plaintiff disputed defendants’ practice related to refills at a Neurology Department meeting: “I explained that those refill reminders are a prompt for me to follow up with my patient, make sure they have normal kidney or liver function. There’s certain things when someone is on a chronic medication that you have to follow over time. Without getting the refill reminder, there was no way | could keep up with who [which patient] was up to get their labs done and when.” (/bid., Exhibit F, RT 1/22, 149:3- 150:2.) Plaintiff complained at a Neurology Department meeting about sample medications: “They [defendants] were going to get rid of our samples of the newer medications. A lot times the only way to get a new brand name medication approved for a patient is by first trying it out, showing that the patient is responding better than what the alternatives are, showing they tolerate it better without side effects and I have enough to write a justification letter.” (/bid., Exhibit F, RT 1/22,148:3-20.) Throughput Plaintiff complained to Gershfield: “I keep getting new patients scheduled in these follow-up slots . . . I can’t do that [spend full hour trying to get to the bottom of things] -12- DECLARATION OF THERESA J. BARTA IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW TRIAL; Case No. 2015-1-CV-277582oOo IN nw 10 u 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13. in 30 minutes and exam them and come up with a treatment plan. If I was rushed I would make a mistake and there would be patient harm.” (/bid., Exhibit F, RT 1/22, 126:10-18.) Plaintiff raised the issue verbally to nursing managers (Smeekens) first and then more than once to Gershfield in face-to-face meetings. (/bid., Exhibit F, RT 1/22, 121:15- 122:28.) Plaintiff “insisted that new patients are put in 60 minute slots and when it kept not happening, I put it in writing.” (/bid., Exhibit F, RT 1/22, 126:19-21.) Plaintiff wanted “patients scheduled properly, because when they’re improperly scheduled, it impairs my ability to take care of them.” (/bid., Exhibit F, RT 1/22, 128:24-27.) While on the PIP, Plaintiff complained: “Q: What’s a patient care complaint you had that you made while on the PIP? A: Again, my questionnaires and the appointments not being scheduled properly.” (/bid., Exhibit F, RT 1/22, 170:5-8.) Plaintiff continued to see her patients in 60 minute appointments — e.g., After taken off the PIP (in February, March 2013) “I kept seeing my patients at 60 minutes.” (/bid., Exhibit F, RT 1/23, 7:24-8:13.) Plaintiff explained: “If I had only 30 minutes with a [new] patient, it impaired my ability to take care of them. I could not deliver patient care in 30 minutes when they required 60.” ({bid., Exhibit F, RT 1/22, 128:22-27.) Length of time Between Patient Visits Plaintiff complained at departmental meetings: “A lot of my patient were Parkinson’s, which is a progressive disorder. To be able to be one step ahead of the disease, meaning not wait too long before a patient progresses before you adjust their medicine, you have to see them often. Push [by defendants] to expand the time interval. I explained that is improper care. I cannot properly take care of my patients if I’m seeing them every six months when I need to see them every two months.” (/bid., Exhibit F, RT 1/22, 150:17-151:16.) RVU Budgets and Productivity Plaintiff “refused to increase [RVUs] and go up to the level that [Gershfield] was asking her to go up to.” (Ibid., Exhibit F, RT 1/22,155:9-11.) Plaintiff only budgeted 3000, “which was significantly under the 3900 [she] would have needed to do, that was the goal that [defendants] set.” (/bid., Exhibit F, RT 1/22,154:18-24.) In order to increase her RVUs, Plaintiff “had to see more patients in an hour” and she refused did not do that. (/bid., Exhibit F, RT 1/22, 156:11-15.) The following evidence was presented at trial in Plaintiff's case-in-chief as proof that Defendant terminated or penalized Plaintiff principally for advocating for medically appropriate health care: 00022168 v10 -13- DECLARATION OF THERESA J. BARTA IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW TRIAL; Case No. 2015-1-CV-277582oOo IN nw 10 u 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a. Plaintiff was blindsided in a meeting with Smith, Fischer and Gershfield and told she “had a negative attitude, was too demanding on staff, that she needed to evaluate whether or not she belonged in the organization and that request to change FTE was being denied.” (Ibid., Exhibit F, RT 1/22, 163:9-18.) b. Plaintiff was not given any examples of “negative attitude”, but was just told she was “making inappropriate comments”. (/bid., Exhibit F, RT 1/22, 164:3-11.) No examples of “inappropriate comments” were given. (/d., RT 1/22, 164:11-12.) c. “Too demanding on staff’ was referring to Plaintiff's use of questionnaires and asking staff/assistant to print out portions of EMR/patient charts. (/bid., Exhibit F, RT 1/22, 164:16-22.) d. True and correct copies of trial Exhibits 58 and 60 are attached hereto as Exhibits CC and DD, respectively. e. The decision to place Plaintiff on the PIP was made by Smith, Gershfield, Fischer and Peredia. (/bid., Exhibit C, RT 1/17, 115:16-25.) f. While on the PIP, Plaintiff was required to “not say anything ever at shareholder meetings, at departmental meetings.” (/bid., Exhibit F, RT 1/22, 169:22-26.) g. Plaintiff was threatened with a second PIP at the end of April 2013. (/bid., Exhibit G, RT 1/23, 21:23-22:5.) h. Defendant’s reason for placing Plaintiff on the PIP (trying to get out of call) was pretext, because she “said she would continue to take call, would continue weekend call, would continue hospital rounding.” (/bid., Exhibit G, RT 1/23, 22:13-15.) i. Defendants told Plaintiff: “if you’re going to stay here, you’re going to get fired.” (Ibid., Exhibit G, RT 1/23, 24:20-21.) 14. In addition to opposing defendant PAFMG’s motion for non-suit, I additionally requested to reopen Plaintiff's case to present additional evidence, and I made an offer of proof as to what that additional evidence would be. I did so in Section VII (pages 18-20) of “Plaintiff's Opposition to Defendant Palo Alto Foundation Medical Group, Inc.’s Motion for Non-Suit, or the Alternative, Partial Non-Suit” (“Opposition”). A true and correct copy of that Opposition is attached hereto as Exhibit EE. I also filed a formal pleading requesting to reopen Plaintiff's case. A true and correct copy of that pleading, “Plaintiff's Request to Re-Open Her Case to Present Additional Evidence in Response to Defendant Palo Alto Foundation Medical Group, Inc.’s Motion for Non-Suit, or the Alternative, Partial Non-Suit is attached hereto as Exhibit FF. 00022168 v10 -14- DECLARATION OF THERESA J. BARTA IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW TRIAL; Case No. 2015-1-CV-277582oOo IN nw 10 u 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15. The Court acknowledged that, “Plaintiff filed a motion to reopen the case and did an offer of proof of what she would proposed to proffer as additional evidence.” (RT 1/29, 13:12- 15.) Although Plaintiff offered nineteen additional witnesses on a multitude of evidentiary issues, the Court only granted Plaintiffs motion to reopen as to Dr. Gershfield and only on one subject, i.e., defendants’ policy and practice regarding “throughput”. (/bid., Exhibit I, RT 1/29, 13:6-14:6.) Exclusion of Plaintiff’s Expert Dr. Lorne Label 16. Plaintiff retained and designated Dr. Lorne Label, a full time Neurologist as one of her experts. The court was informed on January 19, 2018 that Dr. Label’s “Scope of Expertise” with respect to this case was “Neurology and whether or not protests about policies and practices that affect a neurologist are medically appropriate.” (RT 1/19, 132:18-21.) A true and correct copy of this excerpt from the Reporter’s Transcript for January 19, 2018 is attached hereto as part of Exhibit E. 17. On January 23, 2018, I also filed “Plaintiffs Memorandum re: Motion to Qualify Dr. Lorne Label as an Expert Witness with Regard to Plaintiff's ‘Advocacy’ Per Bus. & Prof. Code Section 2056,” a true and correct copy of which is attached hereto as Exhibit GG. 18. Evidence about Dr. Label’s knowledge, skill, experience, training and education was presented in Plaintiff's case-in-chief, and Dr., Label’s testimony at trial reflected that he had special knowledge, skill and experience with each of the following decisions, policies and practices about which Plaintiffs advocated (i.e., “protested”): a. RVU production (/bid., Exhibit E, RT 1/19, 133:2-134:14); b. Length of time of patient visit re: various illness (id., Exhibit E, RT 1/19, 134:16- 136:5); c. Referral guidelines for referring patients to other physicians (id., RT 1/19, 136:15- 137:20); d. Referrals of Neurology patients for physical therapy (id., RT 1/19, 137:21-24); e. Referrals of Neurology patients for CT Angio scans (id., RT 1/19, 137:25-138:25); f. Use of EMR (Electronic Medical Records) (id., RT 1/19, 140:22-141:13); g. Use of Questionnaires for various types of neurologic conditions (id., RT 1/19, at 141:14-23); 00022168 v10 -15- DECLARATION OF THERESA J. BARTA IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW TRIAL; Case No. 2015-1-CV-277582oOo IN nw 10 u 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 h. Reminder calls to patients (id., RT 1/19,141:27-142:25); i. Prescription of generic medications (id., RT 1/19, 142:26-143:22, 144:16-28); and j. Use of sample medications (id., RT 1/19, 143:23-144:8). 19, On both January 19, 2014 and January 24, 2018, the Court acknowledged Dr. Label’s expertise stating: “T’m inclined to qualify the witness as an expert in general on the subject of neurology. If his opinions are sought as to whether it was medically appropriate to refer a patient for some sort of treatment, then I think he can testify about that.” (/bid., Exhibit E, RT 1/19, 153:18-24); and — “Clearly at least from my point of view that he’s an expert in general practice of neurology.” (RT 1/24, 200:12-14.) True and correct copies of excerpts from the Reporter’s Transcript of January 24, 2018 are attached hereto as Exhibit H. 20. | Defendant’s counsel admitted during pre-trial motions in limine that Dr. Label would probably be competent and able to say whether it would be appropriate to refer a Parkinson’s patient out for physical therapy. (/bid., Exhibit B, RT 1/9, 99:25-100:2.) 21. On January 24, 2018, the Court excluded Dr. Label from testifying, ruling that: — No expert opinion is needed on the subject of questionnaires, printing from patients file, reminder calls, length of patient appointments, and length of time between appointments (/bid., Exhibit H, RT 1/24, 212:2-6); — Dr. Label did not qualify to testify on the issue of referring to one facility over another for CT Angio scans (id., RT 1/24, 207:5-10); and — Dr. Label was not qualified to testify on referral of Parkinson’s patients for physical therapy and “I [the Court] didn’t hear a prohibition of referral to physical therapy.” (d., RT 1/24, 207:11-19.) 22. The Court later ruled, on January 29, 2018, as part of its basis for granting partial non-suit for PAFMG, that, “plaintiff did not have an expert qualified to render an opinion for the medical appropriateness of that particular advocacy” (referring to what the court called “administrative decisions and policies”). (Jbid., Exhibit I, RT 1/29, 8:1-5.) Jury Instruction Errors 23. In Defendants’ [Proposed] Jury Instructions, dated January 5, 2018, and during the jury instruction conference held in chambers, defendant PAFMG requested that jury instruction 00022168 v10 -16- DECLARATION OF THERESA J. BARTA IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW TRIAL; Case No. 2015-1-CV-277582oOo IN nw 10 u 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CACI 322: Occurrence of Agreed Condition Precedent be given as applicable to Plaintiffs breach of contract cause of action. Prior to the jury being instructed (on February 1, 2018), I objected to the CACI 322 instruction being given, because Section 10.2.2. of the Palo Alto Foundation Medical Group Shareholder Employment Agreement (to which the instruction makes specific reference) does not contain a condition precedent. A true and correct copy of Defendant’ Proposed Jury Instruction CACI 322 is attached hereto as Exhibit HH. The language of Section 10.2.2 provides that: “This Agreement may be terminated without cause by Medical Group. Termination without cause procedures . . . require a vote of seventy-five percent of Medical Group Shareholders.” (/bid., Exhibit M, Shareholder-Employment Agreement, trial Exhibit 15.) 24, Additionally, Susan Smith (Regional Medical Director of PAFMG) agreed that, “The contract language required that if a physician shareholder was going to be terminated by Medical Group without cause, that there was a procedure that the Medical Group had to go through and there was a vote that had to occur with the shareholders.” (/bid., Exhibit C, RT 1/17, at 40:22-41:3) Smith also testified: = “To be terminated without cause required a 75 percent vote.” = “To terminate a physician without cause required a 75 percent vote.” (Ibid., Exhibit C, RT 1/17, 41:2-3, 41:13-14.) 25. On January 5, 2018, I filed Plaintiff's Proposed Jury Instructions, which included jury instruction CACI 2510: “Constructive Discharge” Explained. Even though Plaintiff's wrongful constructive termination cause of action had been dismissed by the Court, I asked for CACTI 2510 to be given with respect to Plaintiffs breach of contract cause of action regarding Section 10.2.2 during the jury instruction conference in chambers. I argued to the Court that the facts of the case involve a “constructive” termination and the jury will be confused if not given an instruction that a “resignation” can constitute a “termination” under certain circumstances. The Court denied my request and did not instruct the jury on CACI 2510. A true and correct copy of the CACTI 2510 instruction I proposed and requested be given is attached hereto as Exhibit K. In addition, the Court also unilaterally changed jury instruction CACI 336 —Affirmative Defense — Waiver. 00022168 v10 -17- DECLARATION OF THERESA J. BARTA IN SUPPORT OF PLAINTIFF’S MOTION FOR NEW TRIAL; Case No. 2015-1-CV-277582oOo IN nw 10 u 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26. The jury began deliberating on February 2, 2018. On February 8, 2018, in response to a question from the jury, the Court re-wrote jury instruction CACI 300: Breach of Contract Introduction and switched out the original instruction with a new instruction. A true and correct copy of the CACI 300 instruction originally given to the jury, is attached hereto as Exhibit II. A true and correct copy of the Court’s revised CACI 300 instruction given to the jury is attached hereto as Exhibit JJ. 27. — Lobjected to the revised CACI 300 instruction and the fact it was being given mid- deliberations to the jury. The Court overruled my objection, and I then requested that I be allowed to provide a closing argument on the new instruction. The Court denied my request. 28. Also on February 8, 2018, in response to the same question from the jury, the Court also decided to change the Special Verdict Forms. A true and correct copy of the Special Verdict Forms originally given to the jury is attached hereto as Exhibit KK. A true and correct copy of the re-written Spec