Preview
THERESA J. BARTA (State Bar No. 150995)
BARTA LAW
4041 MacArthur Blvd., Suite 280
Newport Beach, California 92660
F. L E D
Tel. (949) 833-3383
FEB _ 6 2018
Fax (949) 209-2530
Email: theresai’cDbana-laweom
Attorney for Plaintiff,
Diana P. Blum, MD.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
10 DIANA P. BLUM, MD” ) Case No. 115-CV-277582
)
11 )
_ _ l PLAINTIFF’S NIEMORANDUlW RE:
Plalfmff: ) MOTION TO QUALIFY DR. LORNE
12 ) LABEL AS AN EXPERT WITNESS
vs. ) \VITH REGARD TO PLAINTIFF’S
) “ADVOCACY” PER BUS. & PROF.
. . . 01) TI N 2 ND
SUTTER HEALTH‘ a Cahfonna corporation; SECEASREXTIgN OTSTPAIERESA
3
PALO ALTO FOUNDATlON MEDICAL ) BARTA IN SUPPORT THEREOF
GROUP, a California corporation; PALO ) .
ALTO MEDICAL FOUNDATION, a ) Trial Date: January 3, 2018
California corporation; and DOES through Time:
1
8:45 am.
%
20, Dept; 16
)
Defendants. ) Judge: Hon. Drew C. lakaichi
)
)
18 {"rflf ?“ A \I
i it; 11"
19
20
21 Plaintiff, Diana Blum, M.D., hereby submits the following memorandum in support of her
22 motion to qualify Dr. Lorne Label as an expert witness with regard to Plaintiff’s advocacy per
23 California Bus. & Prof. Code section 2056.
24
1.
BUSINESS & PROFESSIONS CODE SECTION 2056
Bus. & Prof. Code section 2056 (“Section 2056") was enacted to protect physicians from
retaliation when they advocate for medically appropriate health care. It states:
“The decision to terminate an employment, or otherwise penalize, a
physician principally for advocating for medically appropriate
health care consistent with that degree of learning and skill
ordinarily possessed by reputable physicians practicing according to
the applicable legal standard of care violates the public policy of this
state.
No person shall terminate, retaliate against, or otherwise penalize a
physician for that advocacy .
..”
.
10
11 The statute then sets forth two definitions of “to advocate for medically appropriate health
care” - only one applies in this case. “To advocate for medically appropriate health care means:
13 To protest a decision, policy, or practice that the physician, consistent
with that degree of learning and skill ordinarily possessed by reputable
14 physicians practicing according to the applicable legal standard of care,
reasonably believes impairs the phy sician’s ability to provide
medically appropriate health egg”. [Section 205603)]
'l'he statute does Lot require that a physician’s ability to “practice medicine” is impaired or
16
17 materially or adversely affected,just their “ability to provide medically appropriate health care.”
18
19 II.
EXPERT TESTIMONY RE: WHETHER THE PHYSICIAN’S
20 ADVOCACY WAS MEDICALLY APPROPRIATE
2]
Courts have ruled that whether the advocacy was f‘medically appropriate requires expert
22
testimony [Sarka v. Regents of the Univ. of CA (2006) 146 Cal iApp.4‘h 261, emphasis added;
23
Khajavi v. Feather River Anesthesia Med. Grp. (2000) 84 Call App. 4th 32.]
24
The expert testimony is Lot about whether the policies or practices (that the physician
protested) were medically appropriate The expert testimony focuses on the physician’s practice of
medicine and their “protests”/advocacy (i .e., complaints, disagreements with, refusal to comply).
In deciding whether the advocacy) was medically appropriate, consideration is also given to
the physician’s specialty of medicine (i.e., “consistent with that degree of learning and skill
ordinarily possessed by reputable physicians practicing according to the applicable legal standard
of care” (Section 2056(b)). This means the expert testimony must be a physician with “like degree
of learning and skill”. [n this case, that means a Neurologist (since the Plaintiff is a Neurologist).
A. Sarka v. Reaents of Universitv of CA
10 Sarka is a good example of what expert testimony is involved in a Section 2056 case.
11 Dr. Sarka was employed as primary care physician at UCLA’s student health center. He
was a urologist by training, but he provided medical care as a “primary care physician” to students.
13 When students presented to the health center. Dr. Sarka ‘ regardless of the patient’s complaints —
14 ordered labor-intensive tests for urinary track infections (UTls) 2% of the time. Ultimately, Dr.
15 Sarka was terminated for cause with the employer saying Dr. Sarka over-utilized diagnostic testing
16 for UTls. The evidence showed that Dr. Sarka “treated every patient as though there was a medical
17 emergency”, repeatedly ordering extensive and multiple tests that had normal outcome results. Dr.
18 Sarka said he was advocating for patients per Section 2056.
The court of appeals explained that trial courts (and jurors) are Lot equipped to make
20 judgments about individual physician’s approach to their practice of medicine, and thus, whether
21 that approach is medically appropriate. The court thus instructed that the physician’s approach to
22 practicing medicine (including their “protests” of policies and practices) needed expert
23 testimony to assist the trier of fact.
24
B. Khaiavi v. Feather River Anesthesia Med. Group
In Khajavi, an anesthesiologist was terminated and sued for wrongful termination under
Section 2056. Dr. Khajavi was preparing an elderly patient for surgery and noticed that the patient
was experiencing an irregular heartbeat. Dr. Khajavi did not believe it was in the patient’s best
interest to proceed with the surgery (because of his irregular heartbeat). He argued with the
surgeon about whether to proceed and then refused to proceed with the surgery
The court explained that Section 2056 is to “protect physicians’ exercise of their
professional judgment in advocating for medically appropriate health care, without limitation over
the basis ofthe dispute.”
10 Applying Section 2056 to Dr. Kliajavi, the court ruled:
ll “Khajavi’s disagreement (and refusal to proceed with the surgery)
constituted a protest . of a decision that Khajavi reasonably believed,
. .
12 consistent with the standards of his profession. impaired his ability to
provide medical appropriate health care to a patient.”
13
Expert testimony was needed to show whether Dr. Kltajavi’s "refusal to proceed with the
14
surgery” was medically appropriate, thus, meeting the standard of gdyoLting for patient care
15
under Section 2055.
16
111.
DR. BLUM’S ADVOCACY AND DR. LABEL’S EXPERTISE RE: TOPICS
FOR WHICH EXPERT TESTIMONY WILL BE ELICITED
The following areas of“advocacy” by Dr. Blum will be the subject of expert testimony by
19
Dr. Lorne Label, a Neurologist. In each category, a few excerpts of Dr. Blum’s trial testimony is
20
included showing that evidence has been introduced as to her advocacy. As well, testimony from
21
Dr. Label (given in this trial on January 19) is also included showing just some of his
22
qualifications (112., experience, knowledge and education) with respect to each category. [See
23
Declaration of Theresa Barta (“Barta Decl.”), Exhibits A through C.]
24
4
t
] The following is not exclusive, but intended to demonstrate (by example) that Dr. Label
2 has expertise as a Neurologist — based on his education and training (as a Board Certified
3 Neurologist with residency and fellowship training), his knowledge, and his experience in
4 practicing adult and pediatric neurology for 35 years (in private practice and for a large health
5 system) — that qualifies him to render expert opinions about Dr, Blum’s approaches to practicing
6 neurology and her advocacy (complaints and refusals to follow various policies/practices). s
7 Attached as Exhibit B to the Barta Decl. is a copy of some of Dr. Label’s testimony in this
8 case regarding his education, training, experience and knowledge of the areas on which he will be
9 asked to opine. Exhibit C to the Barta D601. is a copy of Dr. Label‘s CV, which includes a listing
10 of his education and training, professionals activities, research, presentations, and publications
1 l with respect to his expertise as a neurologist.
12
TOPICS OF EXPERT TESTIMONY
l3
A. LEAN
‘4
l
1. Use of uestionnaires
15
Dr. Blum's Testimm
16 “I raised my hand [at Shareholder Meeting] and said, 'l understand
in concept what Lean is, and my issue is that the way it’s being
17
implement in my department is that it is compromising my ability
to give appropriate patient care’, and I gave the example ofmy
18
patient guestionnaires.”[Blum, 91:27-92z4 (Barta Decl., Exh. A).]
19
“With this push to increase productivity and throughput and see
everyone faster, . by putting them on paper and having patients
. .
20
answer them . . . 1 still get my questions answered, I’m still able to
take care of my patients properly. Without them, I couldn’t deliver
21
good care. I couldn’t come up with a diagnosis ifthese questions
were not answered.” [Blum, 92:19-28 (Barta Decl., Exh. A).]
22
Subject of Expert Testimony
23
Q: Do you agree, based on your knowled g e, training and experience as a Neurolo g ist
24
5
that the information asked for in the questionnaires was medically appropriate for the medical care
ofpatients with neurological conditions?
Q: Was it reasonable for Dr. Blum to believe that not using the questionnaires
(assuming she was being pressured to see more patients in less time) would impair her ability to
provide medically appropriate health care?
Dr. Label’s Qualifications (Experience. Knowledge and Training)
Dr. Label has experience and knowledge as a Neurologist about the use of questionnaires
with patients with neurological conditions. [Label, 136-137 (Barta Decl., Exh. B).]
Q: Have you ever utilized any type of questionnaires to patients in your practice as a
10 neurologist? — Yes, I use questionnaires for headaches, . . . pain syndromes. nerve diseases, for
ll depression, scales for them to fill out before 1 see them." [Label 137 (Barta Decl., Exh. B).]
12 2. Printing of_C_hart Notes re: “Parkinson’s Disease Rating Scale”
13 Dr. Blum’s Testimony
“You utilized that scale in the electronic medical records while you
were at Palo Alto Foundation Medical Group? Yes.” [Blum, 9811-4 —
15 (Barta Decl., Exh. A).]
l6 “This is a standardized ton-l that is used when you see Parkinson’s
patients. Following that number on my follow-up visit allowed me to
17 understand where in their disease course they were.” [Blum, 96:5-15
(Barta Decl., Exh. A).]
“[T]he last note that I had on my patient be printed out. It’s usually one
or two pages. . it had all of my exam so then right there on paper as
.
I’m watching a patient do these things can quickly jot down, what the
1
score is and have the comparison right there in front of me. it was how
I did my job.” [Blum, 97:10-22 (Barta Decl.. Exh. A).]
21
Subject of Expert Testimonv
22
Q: Was it medically appropriate for Dr. Blum to use paper print notes (print outs)
23
from the EMR, which included the Parkinson Disease Rating Scale Motor Examination, while
24
doing a visual exam ofthe patient?
Dr. Label’s Qualifications (Experience, Knowledge and Training)
Dr. Label has used EMR for ten years. He utilizes EPIC (the same EMR system that
PAFMG/PAMF utilizes). [Label, 136 137 (Barta Dec1., Exh. B).]
3. Reminder Calls
m. Blum’s Testimony
“Why did you want the calls made to patients? —
I wanted to see my patients. I wanted them to show up so that 1 could
take of them, and they were often getting confused and going to the
wrong place. So I just wanted to improve their ability to get the care
10 they needed."~ [Blum. 107215-21 (Barta Decl. Exh. A).]
11 Subject of Expert Testimw
12 Q: Was it medically appropriate for Dr. Blum to want reminder calls made to patients?
13 1);. Label’s Qualifications (Experience, Knowledge and Training)
14 Dr. Label has experience and knowledge about the practice of using reminder calls to
patients as well as automated reminder systems (by a large health system 7- 1'.
6., UCLA health
16 system).
17 Q: We call patients typically a day before. sometimes two days before. If we can’t get
18 ahold of them, we call them the next business day because that allow for — decreases people not
19 showing up. We always have along waiting list, so we are able to fill that with other patients who
20 are on the waiting list. [LabeL 138 (Barta Decl.. Exh. B).]
Q: Patients are elder ones. They call the office and are confused as to what kind of
22 message was this (referring to auto-reminders) and they’re asking us who it was that called and
23 what they wanted to know. It brings more confusion than help. [LaheL 138 (Barta Dec], Exh. B).]
B. THROUGH PUT: PRODUCTIVITY OVER PATIENT CARE
1. Length of Patient Visits (60 minutes vs. 30 minutes)
Dr. Blum’s Testimony
“This is a reference to the issue with throughput and increasing
throughput. There was a constant push to see patients more quickly,
see patients in shorter intervals times, see more patients in an hour.”
[Blum, 116127-11722 (Barta Decl, Exh. A).]
“Patients that should have been given 60 minutes were constantly
being put in 30-minute slots and I couldn’t do myjob. I couldn’t do
what I needed to do to take care of my patients in that time frame.”
[B1um, 117:3-6 (Barta Decl., Exh. A).]
Subject of Expert EM
10 Q: As a Neurologist, and seeing patients with Neurological and cognitive conditions
ll and illnesses, was it medically appropriate for Dr. Blum to want to see her initial consult with a
12 patient to be 60 minutes in length?
13 Q: As a Neurologist. and seeing patients with Neurological conditions and illnesses,
14 was it medically appropriate for Dr. Blum to want to spend more time with her patients during
15 their visits/exams?
16 Dr. Label’s Qualifications (Experience,7Knowled2e and Training)
17 Dr. Label has experience, personal and in teaching his associates and residents, over the
18 past 35 years of practicing Neurology as to be gest amount of time within which it takes to see
19 patients for particular illnesses — ire” the length ofthe visit. [LabeL 130 (Barta Decl. Exh. B).]
20 Q: Over the last 35 years, have you learned (i,e,, experience) the best amount of time
21 within it which it takes to see patients for particular illnesses — the length of the visits? — Of course.
22 What amount oftime it would be, for example, a minimum amount oftime it would take to do a
23 medically appropriate consult or visit with a patient? — Sure. For a general neurologist, each new
24
patient is an hour with a follow-up for 30 minutes. It depends on complexity. -— This is something
he teaches to residents. [LabeL 130-132 (Barta Decl. Exh. B).]
2. RVU Production
Dr. Label’s Qualifications (Experience, Knowledge and Training)
See. pp. 129-130 ofDr. Label’s testimony re: his experience with RVU Production.
C. L_E_AKAGE (Referral of Patients Outside of PAMF)
l. Referral for CT Angiogram Outside of PAMF
Dr. Blum’s Testimony
10 “Ireferred them to Stanford Because the PAMF scans were
unreadable. It was very poor quality. lBlum, 13615-11 (Barta Decl,
11 Exh. A).]
flihiect of Expert Testimony
13 Q: Assuming that CT Angio scans performed at one facility were not readable or
14 Clear, was it medically appropriate for Dr. Blum to refer patients to a different facility which had
15 clearer scans?
16 Dr. Label’s Qualifications (ExperienceJ Knowledge and Trainflg)
Dr. Label has 35 years of experience with regard to the referral of patients for CTA scans
18 (a computerized tomogram angiogram). He also has 35 years of experience dealing with different
19 neuroradiologists.
20 Q: Have you dealt with more than one neuroradiologist over the course of 35 years? —
21 Yes, of course. Have you found that some do theirjob better than others? — Yes. Like a lot of
22 things. some have a better understanding, vision and insight than others. [LabeL 133-134 (Barta
Decl., Exh. 8).]
24
2. Referral for Physical Therapy Outside of PAMF
Dr. Blum’s Testimony
“Most of the physical therapy that I referred was for giving balance
training to prevent falls for Parkinson’s patients, because if can 1
prevent a fall, then 1 can prevent a hip fracture and death. I felt it was
very important to get physical therapy. [B1um, 14023-7 (Bana Decl,
Exh. A).]
“Physical therapy at PAMF was only for postoperative patients if they
had shoulder surgery or back surgery or something like that.” [Blum,
13928-1402 (Barta Decl., Exh. A).]
Subject of Expert Testimony
10 Q: Based on your training, experience and knowledge as a Neurologist, is it medically
11 appropriate to refer patients with Parkinson’s disease for physical therapy?
12 Dr. Label’s Qualifications (Experience, Knowledge and Training)
13 Dr. Label has 35 years of experience regarding the referral of patients with neurological
14 conditions for physical therapy.
15 0: Have you ever referred a patient for treatment for physical therapy for any of the
16 neurological conditions that you treat? —
Probahly at least three times every day. [He has been a
17 Neurologist for 35 years] [LabeL 133 (Barta Decl, Exh B)r]
18 Dated: January 23, 2018
/
\i 1111420190013?
I
Theresa Barta
Attorney for Plaintiff. Diana Blum, MD.
10
FILED
FEB
- 6 2018
PROOF OF SERVICE R
STATE OF CALIFORNIA, COUNTY OF
BY
OWHWI
I am employed in the county of Orange, State of California. I am over the and a agel
not a party to the within action; my business address is 5160 Campus Drive, Newport Beach
California 92660.
On January 24, 2018, I served the foregoing document(s) described as PLAINTIFF
MEMORANDUM IN SUPPORT OF MOTION TO QUALIFY DR. LORNE LABEL AS AN
EXPERT WITNESS WITH REGARD TO PLAINTIFF ’S “ADVOCACY” PER BUS. &
PROF. CODE SECTION 2056 AND DECLARATION OF THERESA BARTA IN
SUPPORT THEREOF on all interested parties in this action by placing a true copy thereof
enclosed in a sealed envelope addressed as follows:
Attorneys for Sutter Health and Palo Alto Attorneys for Palo Alto Foundation Medical
Medical Foundation: Group. Inc.:
Lindbergh Porter, Esq. Marcie lson Fitzsimmons, Esq.
Maiko Nakarai-Kanivas, Esq. Gordon Rees LLP
Littler Mendelson, PC. 275 Battery St., #2000
10 333 Bush Street, 34‘h Floor San Francisco, CA 94111
San Francisco, CA 94104 Tel: (415) 936—5900
11 Tel: (415) 433-1940 Fax: (415) 986—8054
Fax: (415) 399-8490 Email: MIsom'E‘w'donreescom
Email: mnglgaraikanivasflfifittler.com
l3 wX_ .. (BY PERSONAL SERVICE)
By personally delivering copies to the person served.
l4 ,7 "X, I caused to be delivered such envelope by hand to the offices of the addressee pursuant
to GOP. § 1011.
(BY MAIL) l deposited such envelope in the mail at Newport Beach, California. The
—
envelope was mailed with postage thereon fully prepaid. I am “readily familiar” with the firm’s
I6 practice of collection and processing correspondence for mailing. Under that practice it would be
deposited with US. Postal Service on that same day with postage thereon fully prepaid at Newport
17 Beach. California in the ordinary course of business. I am aware that on motion of the party
served, service is presumed invalid if
postal cancellation date or postage meter date is or than one
of for
18
I9
_
(1) day after date deposit mailing in affidavit.
(BY ELECTRONIC TRANSMISSION) — I transmitted a PDF version of this document
by electronic mail on Januarv 24 2018 to the party(s) identified on the attached service list using
the e-mail address(es) indicated.
20
I declare under penalty of perjury under the laws of the State of California that the above is
21 true and correct.
22 (“UM/’10 :
Theresa J. Bana
24
12
Preview
THERESA J. BARTA (State Bar No. 150995) BARTA LAW 4041 MacArthur Blvd., Suite 280 Newport Beach, California 92660 F. L E D Tel. (949) 833-3383 FEB _ 6 2018 Fax (949) 209-2530 Email: theresai’cDbana-laweom Attorney for Plaintiff, Diana P. Blum, MD. SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA 10 DIANA P. BLUM, MD” ) Case No. 115-CV-277582 ) 11 ) _ _ l PLAINTIFF’S NIEMORANDUlW RE: Plalfmff: ) MOTION TO QUALIFY DR. LORNE 12 ) LABEL AS AN EXPERT WITNESS vs. ) \VITH REGARD TO PLAINTIFF’S ) “ADVOCACY” PER BUS. & PROF. . . . 01) TI N 2 ND SUTTER HEALTH‘ a Cahfonna corporation; SECEASREXTIgN OTSTPAIERESA 3 PALO ALTO FOUNDATlON MEDICAL ) BARTA IN SUPPORT THEREOF GROUP, a California corporation; PALO ) . ALTO MEDICAL FOUNDATION, a ) Trial Date: January 3, 2018 California corporation; and DOES through Time: 1 8:45 am. % 20, Dept; 16 ) Defendants. ) Judge: Hon. Drew C. lakaichi ) ) 18 {"rflf ?“ A \I i it; 11" 19 20 21 Plaintiff, Diana Blum, M.D., hereby submits the following memorandum in support of her 22 motion to qualify Dr. Lorne Label as an expert witness with regard to Plaintiff’s advocacy per 23 California Bus. & Prof. Code section 2056. 24 1. BUSINESS & PROFESSIONS CODE SECTION 2056 Bus. & Prof. Code section 2056 (“Section 2056") was enacted to protect physicians from retaliation when they advocate for medically appropriate health care. It states: “The decision to terminate an employment, or otherwise penalize, a physician principally for advocating for medically appropriate health care consistent with that degree of learning and skill ordinarily possessed by reputable physicians practicing according to the applicable legal standard of care violates the public policy of this state. No person shall terminate, retaliate against, or otherwise penalize a physician for that advocacy . ..” . 10 11 The statute then sets forth two definitions of “to advocate for medically appropriate health care” - only one applies in this case. “To advocate for medically appropriate health care means: 13 To protest a decision, policy, or practice that the physician, consistent with that degree of learning and skill ordinarily possessed by reputable 14 physicians practicing according to the applicable legal standard of care, reasonably believes impairs the phy sician’s ability to provide medically appropriate health egg”. [Section 205603)] 'l'he statute does Lot require that a physician’s ability to “practice medicine” is impaired or 16 17 materially or adversely affected,just their “ability to provide medically appropriate health care.” 18 19 II. EXPERT TESTIMONY RE: WHETHER THE PHYSICIAN’S 20 ADVOCACY WAS MEDICALLY APPROPRIATE 2] Courts have ruled that whether the advocacy was f‘medically appropriate requires expert 22 testimony [Sarka v. Regents of the Univ. of CA (2006) 146 Cal iApp.4‘h 261, emphasis added; 23 Khajavi v. Feather River Anesthesia Med. Grp. (2000) 84 Call App. 4th 32.] 24 The expert testimony is Lot about whether the policies or practices (that the physician protested) were medically appropriate The expert testimony focuses on the physician’s practice of medicine and their “protests”/advocacy (i .e., complaints, disagreements with, refusal to comply). In deciding whether the advocacy) was medically appropriate, consideration is also given to the physician’s specialty of medicine (i.e., “consistent with that degree of learning and skill ordinarily possessed by reputable physicians practicing according to the applicable legal standard of care” (Section 2056(b)). This means the expert testimony must be a physician with “like degree of learning and skill”. [n this case, that means a Neurologist (since the Plaintiff is a Neurologist). A. Sarka v. Reaents of Universitv of CA 10 Sarka is a good example of what expert testimony is involved in a Section 2056 case. 11 Dr. Sarka was employed as primary care physician at UCLA’s student health center. He was a urologist by training, but he provided medical care as a “primary care physician” to students. 13 When students presented to the health center. Dr. Sarka ‘ regardless of the patient’s complaints — 14 ordered labor-intensive tests for urinary track infections (UTls) 2% of the time. Ultimately, Dr. 15 Sarka was terminated for cause with the employer saying Dr. Sarka over-utilized diagnostic testing 16 for UTls. The evidence showed that Dr. Sarka “treated every patient as though there was a medical 17 emergency”, repeatedly ordering extensive and multiple tests that had normal outcome results. Dr. 18 Sarka said he was advocating for patients per Section 2056. The court of appeals explained that trial courts (and jurors) are Lot equipped to make 20 judgments about individual physician’s approach to their practice of medicine, and thus, whether 21 that approach is medically appropriate. The court thus instructed that the physician’s approach to 22 practicing medicine (including their “protests” of policies and practices) needed expert 23 testimony to assist the trier of fact. 24 B. Khaiavi v. Feather River Anesthesia Med. Group In Khajavi, an anesthesiologist was terminated and sued for wrongful termination under Section 2056. Dr. Khajavi was preparing an elderly patient for surgery and noticed that the patient was experiencing an irregular heartbeat. Dr. Khajavi did not believe it was in the patient’s best interest to proceed with the surgery (because of his irregular heartbeat). He argued with the surgeon about whether to proceed and then refused to proceed with the surgery The court explained that Section 2056 is to “protect physicians’ exercise of their professional judgment in advocating for medically appropriate health care, without limitation over the basis ofthe dispute.” 10 Applying Section 2056 to Dr. Kliajavi, the court ruled: ll “Khajavi’s disagreement (and refusal to proceed with the surgery) constituted a protest . of a decision that Khajavi reasonably believed, . . 12 consistent with the standards of his profession. impaired his ability to provide medical appropriate health care to a patient.” 13 Expert testimony was needed to show whether Dr. Kltajavi’s "refusal to proceed with the 14 surgery” was medically appropriate, thus, meeting the standard of gdyoLting for patient care 15 under Section 2055. 16 111. DR. BLUM’S ADVOCACY AND DR. LABEL’S EXPERTISE RE: TOPICS FOR WHICH EXPERT TESTIMONY WILL BE ELICITED The following areas of“advocacy” by Dr. Blum will be the subject of expert testimony by 19 Dr. Lorne Label, a Neurologist. In each category, a few excerpts of Dr. Blum’s trial testimony is 20 included showing that evidence has been introduced as to her advocacy. As well, testimony from 21 Dr. Label (given in this trial on January 19) is also included showing just some of his 22 qualifications (112., experience, knowledge and education) with respect to each category. [See 23 Declaration of Theresa Barta (“Barta Decl.”), Exhibits A through C.] 24 4 t ] The following is not exclusive, but intended to demonstrate (by example) that Dr. Label 2 has expertise as a Neurologist — based on his education and training (as a Board Certified 3 Neurologist with residency and fellowship training), his knowledge, and his experience in 4 practicing adult and pediatric neurology for 35 years (in private practice and for a large health 5 system) — that qualifies him to render expert opinions about Dr, Blum’s approaches to practicing 6 neurology and her advocacy (complaints and refusals to follow various policies/practices). s 7 Attached as Exhibit B to the Barta Decl. is a copy of some of Dr. Label’s testimony in this 8 case regarding his education, training, experience and knowledge of the areas on which he will be 9 asked to opine. Exhibit C to the Barta D601. is a copy of Dr. Label‘s CV, which includes a listing 10 of his education and training, professionals activities, research, presentations, and publications 1 l with respect to his expertise as a neurologist. 12 TOPICS OF EXPERT TESTIMONY l3 A. LEAN ‘4 l 1. Use of uestionnaires 15 Dr. Blum's Testimm 16 “I raised my hand [at Shareholder Meeting] and said, 'l understand in concept what Lean is, and my issue is that the way it’s being 17 implement in my department is that it is compromising my ability to give appropriate patient care’, and I gave the example ofmy 18 patient guestionnaires.”[Blum, 91:27-92z4 (Barta Decl., Exh. A).] 19 “With this push to increase productivity and throughput and see everyone faster, . by putting them on paper and having patients . . 20 answer them . . . 1 still get my questions answered, I’m still able to take care of my patients properly. Without them, I couldn’t deliver 21 good care. I couldn’t come up with a diagnosis ifthese questions were not answered.” [Blum, 92:19-28 (Barta Decl., Exh. A).] 22 Subject of Expert Testimony 23 Q: Do you agree, based on your knowled g e, training and experience as a Neurolo g ist 24 5 that the information asked for in the questionnaires was medically appropriate for the medical care ofpatients with neurological conditions? Q: Was it reasonable for Dr. Blum to believe that not using the questionnaires (assuming she was being pressured to see more patients in less time) would impair her ability to provide medically appropriate health care? Dr. Label’s Qualifications (Experience. Knowledge and Training) Dr. Label has experience and knowledge as a Neurologist about the use of questionnaires with patients with neurological conditions. [Label, 136-137 (Barta Decl., Exh. B).] Q: Have you ever utilized any type of questionnaires to patients in your practice as a 10 neurologist? — Yes, I use questionnaires for headaches, . . . pain syndromes. nerve diseases, for ll depression, scales for them to fill out before 1 see them." [Label 137 (Barta Decl., Exh. B).] 12 2. Printing of_C_hart Notes re: “Parkinson’s Disease Rating Scale” 13 Dr. Blum’s Testimony “You utilized that scale in the electronic medical records while you were at Palo Alto Foundation Medical Group? Yes.” [Blum, 9811-4 — 15 (Barta Decl., Exh. A).] l6 “This is a standardized ton-l that is used when you see Parkinson’s patients. Following that number on my follow-up visit allowed me to 17 understand where in their disease course they were.” [Blum, 96:5-15 (Barta Decl., Exh. A).] “[T]he last note that I had on my patient be printed out. It’s usually one or two pages. . it had all of my exam so then right there on paper as . I’m watching a patient do these things can quickly jot down, what the 1 score is and have the comparison right there in front of me. it was how I did my job.” [Blum, 97:10-22 (Barta Decl.. Exh. A).] 21 Subject of Expert Testimonv 22 Q: Was it medically appropriate for Dr. Blum to use paper print notes (print outs) 23 from the EMR, which included the Parkinson Disease Rating Scale Motor Examination, while 24 doing a visual exam ofthe patient? Dr. Label’s Qualifications (Experience, Knowledge and Training) Dr. Label has used EMR for ten years. He utilizes EPIC (the same EMR system that PAFMG/PAMF utilizes). [Label, 136 137 (Barta Dec1., Exh. B).] 3. Reminder Calls m. Blum’s Testimony “Why did you want the calls made to patients? — I wanted to see my patients. I wanted them to show up so that 1 could take of them, and they were often getting confused and going to the wrong place. So I just wanted to improve their ability to get the care 10 they needed."~ [Blum. 107215-21 (Barta Decl. Exh. A).] 11 Subject of Expert Testimw 12 Q: Was it medically appropriate for Dr. Blum to want reminder calls made to patients? 13 1);. Label’s Qualifications (Experience, Knowledge and Training) 14 Dr. Label has experience and knowledge about the practice of using reminder calls to patients as well as automated reminder systems (by a large health system 7- 1'. 6., UCLA health 16 system). 17 Q: We call patients typically a day before. sometimes two days before. If we can’t get 18 ahold of them, we call them the next business day because that allow for — decreases people not 19 showing up. We always have along waiting list, so we are able to fill that with other patients who 20 are on the waiting list. [LabeL 138 (Barta Decl.. Exh. B).] Q: Patients are elder ones. They call the office and are confused as to what kind of 22 message was this (referring to auto-reminders) and they’re asking us who it was that called and 23 what they wanted to know. It brings more confusion than help. [LaheL 138 (Barta Dec], Exh. B).] B. THROUGH PUT: PRODUCTIVITY OVER PATIENT CARE 1. Length of Patient Visits (60 minutes vs. 30 minutes) Dr. Blum’s Testimony “This is a reference to the issue with throughput and increasing throughput. There was a constant push to see patients more quickly, see patients in shorter intervals times, see more patients in an hour.” [Blum, 116127-11722 (Barta Decl, Exh. A).] “Patients that should have been given 60 minutes were constantly being put in 30-minute slots and I couldn’t do myjob. I couldn’t do what I needed to do to take care of my patients in that time frame.” [B1um, 117:3-6 (Barta Decl., Exh. A).] Subject of Expert EM 10 Q: As a Neurologist, and seeing patients with Neurological and cognitive conditions ll and illnesses, was it medically appropriate for Dr. Blum to want to see her initial consult with a 12 patient to be 60 minutes in length? 13 Q: As a Neurologist. and seeing patients with Neurological conditions and illnesses, 14 was it medically appropriate for Dr. Blum to want to spend more time with her patients during 15 their visits/exams? 16 Dr. Label’s Qualifications (Experience,7Knowled2e and Training) 17 Dr. Label has experience, personal and in teaching his associates and residents, over the 18 past 35 years of practicing Neurology as to be gest amount of time within which it takes to see 19 patients for particular illnesses — ire” the length ofthe visit. [LabeL 130 (Barta Decl. Exh. B).] 20 Q: Over the last 35 years, have you learned (i,e,, experience) the best amount of time 21 within it which it takes to see patients for particular illnesses — the length of the visits? — Of course. 22 What amount oftime it would be, for example, a minimum amount oftime it would take to do a 23 medically appropriate consult or visit with a patient? — Sure. For a general neurologist, each new 24 patient is an hour with a follow-up for 30 minutes. It depends on complexity. -— This is something he teaches to residents. [LabeL 130-132 (Barta Decl. Exh. B).] 2. RVU Production Dr. Label’s Qualifications (Experience, Knowledge and Training) See. pp. 129-130 ofDr. Label’s testimony re: his experience with RVU Production. C. L_E_AKAGE (Referral of Patients Outside of PAMF) l. Referral for CT Angiogram Outside of PAMF Dr. Blum’s Testimony 10 “Ireferred them to Stanford Because the PAMF scans were unreadable. It was very poor quality. lBlum, 13615-11 (Barta Decl, 11 Exh. A).] flihiect of Expert Testimony 13 Q: Assuming that CT Angio scans performed at one facility were not readable or 14 Clear, was it medically appropriate for Dr. Blum to refer patients to a different facility which had 15 clearer scans? 16 Dr. Label’s Qualifications (ExperienceJ Knowledge and Trainflg) Dr. Label has 35 years of experience with regard to the referral of patients for CTA scans 18 (a computerized tomogram angiogram). He also has 35 years of experience dealing with different 19 neuroradiologists. 20 Q: Have you dealt with more than one neuroradiologist over the course of 35 years? — 21 Yes, of course. Have you found that some do theirjob better than others? — Yes. Like a lot of 22 things. some have a better understanding, vision and insight than others. [LabeL 133-134 (Barta Decl., Exh. 8).] 24 2. Referral for Physical Therapy Outside of PAMF Dr. Blum’s Testimony “Most of the physical therapy that I referred was for giving balance training to prevent falls for Parkinson’s patients, because if can 1 prevent a fall, then 1 can prevent a hip fracture and death. I felt it was very important to get physical therapy. [B1um, 14023-7 (Bana Decl, Exh. A).] “Physical therapy at PAMF was only for postoperative patients if they had shoulder surgery or back surgery or something like that.” [Blum, 13928-1402 (Barta Decl., Exh. A).] Subject of Expert Testimony 10 Q: Based on your training, experience and knowledge as a Neurologist, is it medically 11 appropriate to refer patients with Parkinson’s disease for physical therapy? 12 Dr. Label’s Qualifications (Experience, Knowledge and Training) 13 Dr. Label has 35 years of experience regarding the referral of patients with neurological 14 conditions for physical therapy. 15 0: Have you ever referred a patient for treatment for physical therapy for any of the 16 neurological conditions that you treat? — Probahly at least three times every day. [He has been a 17 Neurologist for 35 years] [LabeL 133 (Barta Decl, Exh B)r] 18 Dated: January 23, 2018 / \i 1111420190013? I Theresa Barta Attorney for Plaintiff. Diana Blum, MD. 10 FILED FEB - 6 2018 PROOF OF SERVICE R STATE OF CALIFORNIA, COUNTY OF BY OWHWI I am employed in the county of Orange, State of California. I am over the and a agel not a party to the within action; my business address is 5160 Campus Drive, Newport Beach California 92660. On January 24, 2018, I served the foregoing document(s) described as PLAINTIFF MEMORANDUM IN SUPPORT OF MOTION TO QUALIFY DR. LORNE LABEL AS AN EXPERT WITNESS WITH REGARD TO PLAINTIFF ’S “ADVOCACY” PER BUS. & PROF. CODE SECTION 2056 AND DECLARATION OF THERESA BARTA IN SUPPORT THEREOF on all interested parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows: Attorneys for Sutter Health and Palo Alto Attorneys for Palo Alto Foundation Medical Medical Foundation: Group. Inc.: Lindbergh Porter, Esq. Marcie lson Fitzsimmons, Esq. Maiko Nakarai-Kanivas, Esq. Gordon Rees LLP Littler Mendelson, PC. 275 Battery St., #2000 10 333 Bush Street, 34‘h Floor San Francisco, CA 94111 San Francisco, CA 94104 Tel: (415) 936—5900 11 Tel: (415) 433-1940 Fax: (415) 986—8054 Fax: (415) 399-8490 Email: MIsom'E‘w'donreescom Email: mnglgaraikanivasflfifittler.com l3 wX_ .. (BY PERSONAL SERVICE) By personally delivering copies to the person served. l4 ,7 "X, I caused to be delivered such envelope by hand to the offices of the addressee pursuant to GOP. § 1011. (BY MAIL) l deposited such envelope in the mail at Newport Beach, California. The — envelope was mailed with postage thereon fully prepaid. I am “readily familiar” with the firm’s I6 practice of collection and processing correspondence for mailing. Under that practice it would be deposited with US. Postal Service on that same day with postage thereon fully prepaid at Newport 17 Beach. California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is or than one of for 18 I9 _ (1) day after date deposit mailing in affidavit. (BY ELECTRONIC TRANSMISSION) — I transmitted a PDF version of this document by electronic mail on Januarv 24 2018 to the party(s) identified on the attached service list using the e-mail address(es) indicated. 20 I declare under penalty of perjury under the laws of the State of California that the above is 21 true and correct. 22 (“UM/’10 : Theresa J. Bana 24 12