Part 4: The Whistleblower and the Healthcare Corporation
by Andy Hanson
Re: Andrew Hanson’s multi-part review of YouTube video
We would like to clarify information that has recently appeared in Adventist Today regarding a
former AHS employee and self-described whistleblower.
The former employee accessed, downloaded and removed without authorization confidential
patient records and confidential litigation documents from the work files of other AHS
employees. After unsuccessful attempts to retrieve the confidential documents directly from the
former employee, AHS filed suit in June 2009 in order to fulfill its HIPAA obligations and
maintain the confidentiality of the removed patient records and litigation documents.
In response to AHS’ action, the former employee began describing herself as a whistleblower and
filed various patient, whistleblower and retaliation claims with federal and state investigative
agencies and the court. Regardless of how the former employee describes herself or her motives,
the facts are that she removed confidential AHS documents, that AHS had a legal obligation to
recover those confidential documents, and that AHS was forced to file suit after the former
employee refused to return them.
To date, none of the investigative agencies–federal or state–has found merit in any of the former
employee’s claims against AHS. In the pending lawsuit, the court inspected certain removed
documents and ordered approximately 1,000 pages of confidential documents be returned to
AHS. More recently, after conducting a hearing, the court dismissed all of the former
employee’s self-described whistleblower, retaliation and other claims against AHS. Based on the
former employee’s delay and obstruction of the court process, the judge also held her in contempt
of the court. AHS expects the court to issue final rulings in the lawsuit before year end.
Adventist Today did not speak with anyone at Adventist Health System before publishing
the one-sided description of the events. Although it is Adventist Health System’s practice
not to discuss pending litigation in the press, this statement has been submitted to provide
more complete and accurate information on this matter.
Marketing & Communications
IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT IN AND
FOR ORANGE COUNTY, FLORIDA
ADVENTIST HEALTH SYSTEM CASE NO.: 2009-CA-019445-0
SUNBELT HEALTHCARE CORPORATION,
PARTRICIA L. MOLESKI,
OMNIBUS ORDER ON ALL PENDING MOTIONS
On May 16, 2012, the Court conducted a Hearing on the following pending motions:
1. Defendant/Counter Plaintiff’s Motion to Dismiss AHS’ Motion for Civil Contempt and Sanctions;
2. Defendant/Counter Plaintiff’s Motion for Civil Contempt Against AHS, Listed Judges, Orange County Ninth Circuit and AHS Acting Counsel Plaintiff’s Response in Opposition to Defendant’s Motion for Civil Contempt Against Adventist Health System, Listed Judges, Orange County Ninth Circuit and AHS Acting Counsel;
3. Defendant/Counter Plaintiff’s Motion to Dismiss All Orders Regarding Her Physical Presence in Florida;
4. AHS’ Motion to Strike Moleski’s Improper Demands for Jury Trial;
5. AHS’ Motion to Strike, or in the Alternative, Motion to Dismiss Defendant’s Counterclaim/Counter Petition;
6. AHS’ Motion to Strike, or in the Alternative, Motion to Dismiss Defendant’s Amended Counterclaim/Counter Petition;
7. AHS’ Amended Motion for Civil Contempt of Defendant and Imposition of Sanctions; and
8. AHS’ Second Amended Motion for Civil Contempt and Imposition of Sanctions.
On February 24, 2012, the parties were ordered by the Court to appear in person on May 16, 2012 for a hearing on all pending motions. Defendant/Counter Plaintiff failed to appear in person even though the May 16, 2012, hearing had been personally coordinated with Defendant/Counter Plaintiff and her availability had been confirmed by the Court. After the Court overruled Defendant/Counter Plaintiff’s motion opposing her personal appearance in Florida at the May 7, 2012 hearing on said motion, Defendant/Counter Plaintiff did not file any request with the Court to appear at the May 16, 2012 hearing by telephone or other alternative means.
Before proceeding at the May 16, 2012 hearing, the Court attempted to contact Defendant/Counter Plaintiff at the only telephone number she has provided to the Court, but the number was not in service.
In response to the Court’s Order, Plaintiff/Counter Defendant submitted to the Court before May 1, 2012, a packet of pleadings, documentation and argument regarding all pending motions. Defendant/Counter Plaintiff did not comply with the Court’s Order or submit any pleadings, briefing or documentation to the Court in support of her pending motions or in opposition to Plaintiff/Counter Defendant’s pending motions.
The Court, having heard argument on the above referenced pending motions and being otherwise fully advised on said motions, hereby ORDERS as follows:
1. Defendant/Counter Plaintiff’s Motion to Dismiss AHS’ Motion for Civil Contempt and Sanctions is DENIED based on the court’s review of her motion and AHS’ opposition, the grounds raised therein and the record as a whole. Defendant/Counter Plaintiff was previously notified that this Court would rule based on the written motions of the parties. Defendant/Counter Plaintiff was also given the opportunity to appear in person and, by the action of the Court at the May 16, 2012 hearing, by telephone. Plaintiff failed to appear or offer any argument on her motion.
2. Defendant/Counter Plaintiff’s Motion for Civil Contempt Against AHS, Listed Judges, Orange County Ninth Circuit and AHS Acting Counsel Plaintiff’s Response in Opposition to Defendant’s Motion for Civil Contempt Against Adventist Health System, Listed Judges, Orange County Court Ninth Circuit and AHS Acting Counsel is DENIED. Defendant/Counter Plaintiff’s Motion does not involve the current judge assigned to this case, the Honorable Patricia A. Doherty.
3. Defendant/Counter Plaintiff’s Motion to Dismiss All Orders Regarding Her Physical Presence in Florida is DENIED. Defendant/Counter Plaintiff filed a counterclaim/counter petition against the Plaintiff/Counter Defendant in this Court and is seeking affirmative relief. Therefore, she is required, upon proper notice, to give her deposition in the forum which she chose and where her counterclaim/counter petition is pending. See Fortune Insurance Co. v. Santelli, 621 So.2d 546 (Fla. 3 rd DCA 1993); Ormond Beach First National Bank v. J.M. Montgomery Roofing Company, 189 So. 2d 239 (Fla. 1 st DCA 1966); Hilson & Co. v. Garcia, 985 So. 2d 1176 (Fla. 3 rd DCA 2008); Chittick v. E. Air Lines, Inc., 403 So. 2d 595, 597 (Fla. 1 st DCA 1981). “… having selected the forum in which to institute his action, the plaintiff must be prepared to appear in that forum and give [her] deposition if properly serviced with notice do so….” See Ormond Beach First National Bank v. J.M. Montgomery Roofing Company, 189 So. 2d 239, 243 (Fla. 1 st DCA 1966).
Defendant/Counter Plaintiff has not provided the Court with any basis for or evidence of financial hardship other than an unverified, conclusory assertion of financial hardship. A prior judge in this case provided the Defendant/Counter Plaintiff with detailed information on the type of data needed to substantiate a claim of financial hardship, however, no such substantiation was submitted to the Court. When the Court personally coordinated with Defendant/Counter Plaintiff on February 24, 2012 regarding scheduling her ordered deposition and the hearing on all pending motions, Defendant/Counter Plaintiff did not present any objection to the Court based on financial hardship and conversely confirmed her availability to attend. Despite Defendant/Counter Plaintiff’s demonstrated apparent knowledge of the litigation process and the burden to support her motion, she failed to submit any information or argument to establish good cause for the Court to relieve her from personally appearing in Florida for her May 15, 2012, deposition and the May 16, 2012 hearing. The hearing was scheduled for one and one-half hours and Defendant/Counter Plaintiff’s personal appearance was required for hearings of this duration by Order of the Court. Defendant/Counter Plaintiff had ample notice of the hearing and was fully aware that her personal appearance was required. Further, Defendant/Counter Plaintiff has repeatedly failed to comply with Court orders throughout this lawsuit, including failing to personally appear for her May 15, 2012 court-ordered deposition and May 16, 2012, hearing
4. Plaintiff’s Motion to Strike Defendant/Counter Plaintiff’s Improper Demand for Jury Trial is GRANTED. Defendant/Counter Plaintiff’s January 15, 2011, motion for a jury trial was untimely filed with the Court long after the deadline for such motions had expired.
5. Plaintiff’s Amended Motion and Second Amended Motion for Civil Contempt of Defendant and Imposition of Sanctions are both GRANTED. Defendant/Counter Plaintiff’s original and amended counterclaims and counter-petitions against Plaintiff are hereby DISMISSED with prejudice. The Court has determined that dismissal with prejudice of all of Defendant’s counterclaims and counter petition is warranted based on the Defendant/Counter Plaintiff’s repeated failure to follow and comply with court orders as follows: See Levine v. Del American Properties Inc., 642 So. 2d 32 (Fla. 5th DCA 1994) and Kozel v. Ostendorf, 629 So2d 817 (Fla. 1993).
(i) Defendant/Counter Plaintiff has displayed a pattern of personal defiance to and disobedience of Court Orders. Defendant/Counter Plaintiff has refused and failed to comply with multiple Court orders. She has directly refused and failed to appear for her court ordered and previously arranged deposition; failed to comply with multiple Orders compelling her to respond to Plaintiff/Counter Defendant’s discovery requests; and failed to personally appear for hearings as ordered by the Court. Plaintiff failed to provide the Court with any evidence showing good cause or reasonable justification for her conduct before the Court and her disregard of multiple Court Orders;
(ii) Defendant/Counter Plaintiff’s has by her conduct and failure to comply with multiple Court Orders throughout the case, prevented this case from moving forward and created significant problems with judicial administration; and
(iii) Defendant/Counter Plaintiff’s conduct has prejudiced the Plaintiff/Counter Defendant and caused undue expense and delay in Plaintiff/Counter Defendant pursuing its claims.
6. Plaintiff’s Motion to Strike, or in the Alternative, Motion to Dismiss Defendant’s Counterclaim/Counter Petition is DENIED as moot.
7. AHS’ Motion to Strike, or in the Alternative, Motion to Dismiss Defendant’s Amended Counterclaim is DENIED as moot.
8. Any pending motions of either party not specifically addressed in this Order are hereby deemed abandoned and denied.
DONE AND ORDERED at Orlando, Orange County, Florida, on June 19, 2012.
Honorable Patricia A. Doherty