Case 2:18-cv-00537-JLR Document 1 Filed 04/11/18 Page 1 of 176
`
`
`
`
`
`
`
`JOHNNY B. DELASHAW, JR.,
`
`
`
`
`
`SEATTLE TIMES COMPANY, and
`CHARLES COBBS,
`
`
`
`
`Plaintiff,
`
`Defendants.
`
`
`
`
`
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE
`
`
`Case No.
`
`COMPLAINT FOR LIBEL, DEFAMATION BY
`IMPLICATION, TORTIOUS INTERFERENCE
`WITH BUSINESS RELATIONSHIP AND/OR
`EXPECTANCY, UNFAIR BUSINESS
`PRACTICES IN VIOLATION OF RCW 19.86
`ET SEQ. AND CIVIL CONSPIRACY
`
`
`INTRODUCTION
`
`
`
`
`
`
`
`
`
`v.
`
`
`
`
`
`
`
`I.
`
`1.
`
`In early 2017, the Seattle Times (Times) published a series of sensational articles
`
`attacking the quality of patient care at the Swedish Neurosurgical Institute (SNI), a practice group
`
`within Swedish Health Services d/b/a Swedish Medical Group (Swedish), and accusing Dr. Johnny
`
`Delashaw and other SNI surgeons of endangering patients by racing through surgeries in order to
`
`make more money.
`
`2.
`
`These claims were false. The main factual assertions in these articles, and the overall
`
`thesis and message conveyed by the articles, were false, defamatory and caused serious damage to
`
`the reputation and career of Dr. Johnny Delashaw, injured patients who needed his care, and
`
`damaged the quality of health care in the Pacific Northwest. The Times was in possession of highly
`
`COMPLAINT FOR LIBEL, DEFAMATION BY
`IMPLICATION, TORTIOUS INTERFERENCE WITH
`BUSINESS RELATIONSHIP AND/OR EXPECTANCY,
`UNFAIR BUSINESS PRACTICES IN VIOLATION OF RCW
`19.86 ET SEQ. AND CIVIL CONSPIRACY - 1
`
`
`
`
`LAW OFFICES
`HARRIGAN LEYH FARMER & THOMSEN LLP
`999 THIRD AVENUE, SUITE 4400
`SEATTLE, WASHINGTON 98104
`TEL (206) 623-1700 FAX (206) 623-8717
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`

`Case 2:18-cv-00537-JLR Document 1 Filed 04/11/18 Page 2 of 176
`
`
`
`credible information demonstrating the falsity of its statements but chose to omit even a hint of the
`
`compelling, documented facts showing that its claims about SNI and Dr. Delashaw were false.
`
`3.
`
`In its articles, the Times claimed that at the time of the articles and for many months
`
`before them, Dr. Delashaw was paid based on the volume of surgeries he performed and that, for
`
`this reason, Dr. Delashaw had neglected his patients by performing “concurrent surgeries.” The
`
`term “concurrent surgeries” refers to a single lead surgeon running two surgeries at the same time,
`
`leaving one operating room in mid-operation to go to another. The article claimed that the result of
`
`this practice was that the lead surgeon was absent from at least one if not both surgeries during
`
`critical times, endangering patients. The Times asserted that Dr. Delashaw was engaging in these
`
`dangerous practices at the time of publication and for many months before and was placing patients
`
`at risk. The Times claimed that Dr. Delashaw’s “concurrent surgery” practice included leaving the
`
`operating room as soon as the patient was under anesthesia and then moving to the next operation,
`
`resulting in increased complications and a general decline in the actual outcomes for patients treated
`
`by Dr. Delashaw and other surgeons at SNI.
`
`4.
`
`Each of these claims is false. The Times’ claimed “motive” for the concurrent
`
`surgeries alleged to be taking place during the period before the articles were published was that Dr.
`
`Delashaw was paid based on volume. But for nearly two years before the Times went to print, Dr.
`
`Delashaw was on salary. He had no financial incentive to increase his surgical volume.
`
`5.
`
`The claim that, because Dr. Delashaw was paid based on volume, “concurrent
`
`surgeries” were taking place at SNI is also false. There were no concurrent surgeries. An extensive
`
`Washington State Department of Health investigation that included scores of interviews of
`
`knowledgeable witnesses found that the Times’ claim that SNI was engaging in “concurrent
`
`surgeries” was not true.
`
`6.
`
`The Times claimed that its “findings” were the product of an “investigation,” but in
`
`COMPLAINT FOR LIBEL, DEFAMATION BY
`IMPLICATION, TORTIOUS INTERFERENCE WITH
`BUSINESS RELATIONSHIP AND/OR EXPECTANCY,
`UNFAIR BUSINESS PRACTICES IN VIOLATION OF RCW
`19.86 ET SEQ. AND CIVIL CONSPIRACY - 2
`
`
`
`
`LAW OFFICES
`HARRIGAN LEYH FARMER & THOMSEN LLP
`999 THIRD AVENUE, SUITE 4400
`SEATTLE, WASHINGTON 98104
`TEL (206) 623-1700 FAX (206) 623-8717
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`

`Case 2:18-cv-00537-JLR Document 1 Filed 04/11/18 Page 3 of 176
`
`
`
`fact the Times’ claims would not have survived an actual “investigation.”1
`
`7.
`
`The Times had in its possession highly credible information from an eyewitness to
`
`hundreds of Dr. Delashaw’s surgeries clearly showing that its claims were false, but the Times chose
`
`not even to acknowledge the existence of this information. The Times’ approach to its
`
`“investigation” was to omit any information that did not fit the accusations it was determined to
`
`make.
`
`8.
`
`The Times tried to bolster its basic thesis that Dr. Delashaw raced through concurrent
`
`surgeries, endangering patients, by also claiming that SNI had been experiencing poor patient
`
`outcomes when matched against comparable neurosurgical institutions. But objective data show
`
`that, during the period covered by the Times articles, SNI maintained its standing as a high quality
`
`neurosurgical institution with outcomes and quality of care as good as, or better than, comparable
`
`institutions. SNI achieved this high quality of care while expanding its volume of surgeries, which,
`
`in the case of Dr. Delashaw, involved many surgeries at the highest level of difficulty and risk. The
`
`Times turned the truth—a major local neurosurgical achievement—into a malicious fiction.
`
`9.
`
`The Times committed the very sins it purported to uncover: in an effort to generate
`
`readers via sensational press, the Times sacrificed truth for accuracy, leveling catastrophic blows on
`
`Dr. Delashaw, his reputation, his finances, and his patients. Dr. Delashaw, the medical community
`
`in Seattle, and patients here and across the country who needed (and still need) Dr. Delashaw’s
`
`attention continue to suffer the consequences of the Times’ knowingly false reporting.
`II.
`
`PARTIES
`
`10.
`Plaintiff Dr. Johnny B. Delashaw, Jr., is a citizen of the state of Arizona, residing in
`
`1 Attached as Appendix A is a collection of eyewitness statements from the MQAC
`proceeding. These include statements from 45 individuals based on their personal interactions
`with Dr. Delashaw. These are representative of Dr. Delashaw’s character and approach to patient
`care and also consistent with information that was provided to, but disregarded by, the Times’
`reporter before the Times’ series went to print.
`
`COMPLAINT FOR LIBEL, DEFAMATION BY
`IMPLICATION, TORTIOUS INTERFERENCE WITH
`BUSINESS RELATIONSHIP AND/OR EXPECTANCY,
`UNFAIR BUSINESS PRACTICES IN VIOLATION OF RCW
`19.86 ET SEQ. AND CIVIL CONSPIRACY - 3
`
`
`LAW OFFICES
`HARRIGAN LEYH FARMER & THOMSEN LLP
`999 THIRD AVENUE, SUITE 4400
`SEATTLE, WASHINGTON 98104
`TEL (206) 623-1700 FAX (206) 623-8717
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`

`Case 2:18-cv-00537-JLR Document 1 Filed 04/11/18 Page 4 of 176
`
`
`
`Sedona, Arizona. Dr. Delashaw was employed at SNI from fall 2013 through March 1, 2017.
`
`11.
`
`Defendant Seattle Times Company is a privately owned business incorporated in
`
`Delaware with its primary place of business at 1000 Denny Way, Seattle, Washington, 98109.
`
`12.
`
`Defendant Dr. Charles Cobbs is a citizen of the state of Washington, residing in
`
`Mercer Island, Washington. He is currently employed at SNI.
`III.
`
`JURISDICTION AND VENUE
`
`13.
`
`This Court has jurisdiction over the subject matter of this dispute pursuant to 28
`
`U.S.C. § 1332 because this is an action between citizens of different states and because the matter
`
`in controversy exceeds the sum of $75,000 exclusive of interest and costs.
`
`14.
`
`This Court has personal jurisdiction over Defendants because each Defendant is
`
`licensed to and regularly does conduct business in Washington and the unlawful conduct alleged in
`
`this Complaint occurred in Washington.
`
`15.
`
`Venue is proper in the United State District Court for the Western District of
`
`Washington pursuant to 28 U.S.C. § 1391(a) and (c). Each Defendant has continuous and systematic
`
`contacts with this District and a substantial part of the events giving rise to Plaintiff’s claims occurred
`
`in this District.
`
`IV. FACTUAL ALLEGATIONS
`Dr. Delashaw’s Medical Credentials
`
`A.
`
`16.
`
`Dr. Delashaw was raised in Longview, Washington. He earned his Bachelor of
`
`Science degree in Biology with honors and distinction from Stanford University, and earned a
`
`medical degree from the University of Washington School of Medicine. He completed his residency
`
`at the University of Virginia under Dr. John Jane, who was a world-renowned neurosurgeon, a
`
`President of the Society of Neurological Surgeons, and a close mentor of Dr. Delashaw until Dr.
`
`Jane’s death in 2015.
`
`17.
`Immediately before going to SNI, Dr. Delashaw was the chief of neurological surgery
`COMPLAINT FOR LIBEL, DEFAMATION BY
`
`LAW OFFICES
`HARRIGAN LEYH FARMER & THOMSEN LLP
`IMPLICATION, TORTIOUS INTERFERENCE WITH
`999 THIRD AVENUE, SUITE 4400
`BUSINESS RELATIONSHIP AND/OR EXPECTANCY,
`SEATTLE, WASHINGTON 98104
`TEL (206) 623-1700 FAX (206) 623-8717
`UNFAIR BUSINESS PRACTICES IN VIOLATION OF RCW
`19.86 ET SEQ. AND CIVIL CONSPIRACY - 4
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`

`Case 2:18-cv-00537-JLR Document 1 Filed 04/11/18 Page 5 of 176
`
`
`
`for University of California, Irvine Health, where he played an important role in building a facility
`
`widely recognized for excellence in treating spine problems. He pioneered a national surgical
`
`referral network for cranial disease. He served as Chairman of the Department of Neurological
`
`Surgery at UC Irvine’s School of Medicine.
`
`18.
`
`Before going to UC Irvine, Dr. Delashaw spent twenty years at Oregon Health &
`
`Science University (OHSU), where he held the positions of chief of Neuro-Oncology and Skull Base
`
`Surgery and professor of Neurological Surgery, Otolaryngology and Neurology. During his decades
`
`at OHSU, Dr. Delashaw traveled once a week to see patients in his hometown of Longview,
`
`Washington, where friends and neighbors still lived and in the town where his father had been a
`
`doctor. He resumed this practice after joining SNI—weekly he and his staff drove five hours round
`
`trip from Seattle to Longview, arriving in Longview at 8 a.m., where he saw patients all day before
`
`driving back to Seattle and then, where necessary, arranged for treatment for his patients at SNI. Dr.
`
`Delashaw also saw a need for improved neurosurgical treatment in remote areas of Alaska, opened
`
`a clinic there, and while at SNI traveled there to see patients, and then arranged for patients in need
`
`of surgery to be treated at SNI.
`
`19.
`
`At the beginning of his career, Dr. Delashaw served as the chief of Neurosurgery at
`
`Gainesville Veteran’s Administration Hospital, and later became an assistant professor of
`
`Neurological Surgery at the University of Florida.
`
`20.
`
`In the spring of 2013, SNI set out to recruit Dr. Delashaw, who was then at UC Irvine,
`
`because of his exceptional surgical skills, his recognition in the profession for those skills, and his
`
`record of developing new highly effective surgical techniques. SNI was also very interested in the
`
`wide referral base Dr. Delashaw enjoyed as a result of professional recognition of his skills and
`
`methods.
`
`21.
`
` Dr. Delashaw initially declined SNI’s offer but a few months later was persuaded to
`
`accept, in part because of the unique opportunity SNI presented for new ways to achieve cures—
`COMPLAINT FOR LIBEL, DEFAMATION BY
`
`LAW OFFICES
`HARRIGAN LEYH FARMER & THOMSEN LLP
`IMPLICATION, TORTIOUS INTERFERENCE WITH
`999 THIRD AVENUE, SUITE 4400
`BUSINESS RELATIONSHIP AND/OR EXPECTANCY,
`SEATTLE, WASHINGTON 98104
`TEL (206) 623-1700 FAX (206) 623-8717
`UNFAIR BUSINESS PRACTICES IN VIOLATION OF RCW
`19.86 ET SEQ. AND CIVIL CONSPIRACY - 5
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`

`Case 2:18-cv-00537-JLR Document 1 Filed 04/11/18 Page 6 of 176
`
`
`
`combining advanced surgical skills and surgical improvements with previously untapped
`
`technological advances. Seattle and SNI represented the potential to blend surgical innovation with
`
`technological innovation to cure the previously incurable.
`
`22.
`
`SNI had begun in 2004 with the goal of developing into a cutting edge neurosurgical
`
`institution in the Pacific Northwest. Eight years later, in 2012, SNI and Swedish became part of
`
`Providence St. Joseph Health (Providence), a non-profit health care provider consisting of about 50
`
`hospitals and hundreds of clinics in Washington, Alaska, California, Oregon, Montana, New
`
`Mexico, and Texas. In April 2013, Dr. Rod Hochman, the former CEO of Swedish, became
`
`President and CEO of Providence.
`
`23.
`
`Providence’s acquisition of Swedish immediately expanded SNI’s referral network
`
`and potential patient base.
`
`24.
`
`Providence and Swedish recruited Dr. Delashaw with the expectation that his
`
`considerable skills and the high regard in which he was held among other neurosurgeons would help
`
`to transform SNI into a mecca for advanced neurosurgery. Dr. Marc Mayberg, then the Co-Director
`
`of SNI, advocated recruiting Dr. Delashaw and helped to persuade him to come to Seattle.
`
`25.
`
`Dr. Delashaw joined SNI in October 2013, and performed as expected. He was a
`
`major force in transforming SNI from a good community hospital into a nationally recognized center
`
`of neurosurgical excellence. Dr. Delashaw’s reputation coupled with his referral base helped SNI
`
`to attract other top-flight surgeons. The resulting team increased SNI’s capabilities and recognition,
`
`leading to increases in surgical patient volume and a high quality of care.
`
`26. When SNI first offered Dr. Delashaw a position in about March 2013, he declined.
`
`Then, in May 2013, Dr. Mayberg renewed the effort. Dr. Mayberg told Dr. Delashaw that if he
`
`joined SNI, he would have a leadership role. Dr. Mayberg had just been diagnosed with cancer,
`
`believed he would probably need to step down as Co-Executive Director of SNI, and was interested
`
`in finding a highly qualified neurosurgeon capable of leading SNI.
`COMPLAINT FOR LIBEL, DEFAMATION BY
`
`IMPLICATION, TORTIOUS INTERFERENCE WITH
`BUSINESS RELATIONSHIP AND/OR EXPECTANCY,
`UNFAIR BUSINESS PRACTICES IN VIOLATION OF RCW
`19.86 ET SEQ. AND CIVIL CONSPIRACY - 6
`
`
`LAW OFFICES
`HARRIGAN LEYH FARMER & THOMSEN LLP
`999 THIRD AVENUE, SUITE 4400
`SEATTLE, WASHINGTON 98104
`TEL (206) 623-1700 FAX (206) 623-8717
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`

`Case 2:18-cv-00537-JLR Document 1 Filed 04/11/18 Page 7 of 176
`
`
`
`27.
`
`28.
`
`Dr. Delashaw joined SNI in October 2013.
`
`After Dr. Delashaw’s arrival, SNI expanded both its volume of work and its
`
`capabilities in large part as a result of Dr. Delashaw’s reputation and hard work. Dr. Delashaw
`
`attracted other highly qualified neurosurgeons to join SNI, expanding SNI’s capabilities, which in
`
`turn led to increased referrals and increasing recognition of SNI as a center capable of handling the
`
`most difficult cases.
`B.
`
`Dr. Delashaw Joined SNI at a Time of Significant Internal Change
`
`29.
`
` The changes that accompanied, and in part resulted from, Dr. Delashaw’s joining
`
`SNI created some turmoil among certain doctors, nurses, and staff who resented the loss of the more
`
`relaxed atmosphere they had previously enjoyed at a community hospital. The affiliation with the
`
`health care giant Providence also created friction. The increased pace and intensity of work that
`
`resulted from SNI’s increased capabilities bothered some. Dr. Delashaw gradually became aware
`
`of these personnel problems.
`
`30.
`
`Dr. Mayberg continued to be active and was recovering from his cancer. Dr.
`
`Mayberg’s compensation at the time Dr. Delashaw joined SNI was based in part on a pooling system
`
`for Relative Value Units (RVUs)—meaning that revenue generated by other surgeons’ work was
`
`allocated in part to Dr. Mayberg. When Dr. Delashaw was made a Providence employee, it was
`
`unclear whether his RVUs would be added to the pool. Dr. Mayberg wanted Dr. Delashaw’s RVUs
`
`added to the pool, which would have redounded to Dr. Mayberg’s financial benefit—i.e., he would
`
`receive financial credit for work done by Dr. Delashaw.
`
`31.
`
`Dr. Delashaw had a work ethic that was uncommon at SNI in the past though he was
`
`soon joined by others with a similar approach. Dr. Delashaw had high energy, and worked intensely
`
`at his surgical practice, at pursuing his goals for SNI, at implementing new techniques, and at
`
`bringing in new, very capable surgeons. Dr. Delashaw worked longer days and scheduled earlier
`
`surgeries than had previously been standard practice. In the meantime, Dr. Mayberg was recovering
`COMPLAINT FOR LIBEL, DEFAMATION BY
`
`LAW OFFICES
`HARRIGAN LEYH FARMER & THOMSEN LLP
`IMPLICATION, TORTIOUS INTERFERENCE WITH
`999 THIRD AVENUE, SUITE 4400
`BUSINESS RELATIONSHIP AND/OR EXPECTANCY,
`SEATTLE, WASHINGTON 98104
`TEL (206) 623-1700 FAX (206) 623-8717
`UNFAIR BUSINESS PRACTICES IN VIOLATION OF RCW
`19.86 ET SEQ. AND CIVIL CONSPIRACY - 7
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`

`Case 2:18-cv-00537-JLR Document 1 Filed 04/11/18 Page 8 of 176
`
`
`
`and had determined that he could maintain his leadership role, and took over sole leadership of SNI.
`
`Dr. Mayberg’s administrative salary combined with his surgery income (including his participation
`
`in a compensation pool at SNI) yielded him a $1.16 million income even though he performed fewer
`
`surgical procedures than many. The compensation pool allowed surgeons who were not actually
`
`performing surgical work on a patient to be paid a portion of the fees generated by those who did
`
`perform the surgeries.
`
`32.
`
` Dr. Mayberg had expected that Dr. Delashaw would bring SNI many additional
`
`patients, but Dr. Mayberg did not take steps to prepare the hospital or its staff for increased volume.
`
`This failure led to some staff resenting the changes in ways that might have been avoided with better
`
`planning by Dr. Mayberg. This leadership failure aggravated the resentment some SNI personnel
`
`felt over the increased pace of work.
`
`33.
`
`At the time of Dr. Delashaw’s arrival at SNI in 2013, about five hospitals and seven
`
`emergency rooms in greater Seattle were sending cases to SNI. During 2014, SNI was starting to
`
`attract increasing numbers of patients from the Pacific Northwest, the greater West and to some
`
`extent from across the United States. This trend continued into 2015 and 2016. Between 2010 and
`
`2015, patient volume grew 66%.
`
`34.
`
`By 2016, SNI was the referral center for approximately forty hospitals across five
`
`states in the Northwest region and, especially for very difficult cases, for hospitals in other regions.
`
`This change was driven mainly by the high quality of SNI’s work.
`
`35.
`
`SNI’s patient volume increase was also driven by a sharp increase in the number of
`
`other hospitals referring difficult cases to SNI—which was also in part the result of the exceptional
`
`capabilities of SNI’s surgeons. This growth was augmented by SNI’s affiliation with Providence
`
`and by the Affordable Care Act’s extension of insurance coverage to a large new segment of sick
`
`patients.
`
`36.
`By 2016, the vision that had led SNI to recruit Dr. Delashaw, and that had led Dr.
`COMPLAINT FOR LIBEL, DEFAMATION BY
`
`LAW OFFICES
`HARRIGAN LEYH FARMER & THOMSEN LLP
`IMPLICATION, TORTIOUS INTERFERENCE WITH
`999 THIRD AVENUE, SUITE 4400
`BUSINESS RELATIONSHIP AND/OR EXPECTANCY,
`SEATTLE, WASHINGTON 98104
`TEL (206) 623-1700 FAX (206) 623-8717
`UNFAIR BUSINESS PRACTICES IN VIOLATION OF RCW
`19.86 ET SEQ. AND CIVIL CONSPIRACY - 8
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`

`Case 2:18-cv-00537-JLR Document 1 Filed 04/11/18 Page 9 of 176
`
`
`
`Delashaw to come to SNI, was being realized. The SNI achievement was part of a broader
`
`accomplishment brought about by some of Seattle’s leading citizens and physicians to improve
`
`neuroscience techniques, to combine them with technological advances, and to communicate the
`
`results around the world. That commitment centered on SNI and also on the non-profit Seattle
`
`Science Foundation (SSF). In 2007, a handful of people who saw the potential to blend technology
`
`with neurosurgery formed SSF to advance collaboration between patient care providers and
`
`technologists. By 2016, SSF had grown to worldwide recognition both for its scientific/medical
`
`research and development work and for its extraordinary achievement in communicating new
`
`surgical techniques to skilled surgeons around the world. SSF had developed systems for
`
`transmitting real time demonstrations of surgical techniques to scores of surgeons in remote
`
`locations. Instead of a highly skilled (and needed) surgeon spending five days traveling round trip
`
`to (for example) Tokyo to demonstrate a new technique to half a dozen surgeons, the same person
`
`could spend a few hours performing the technique in Seattle while high-quality real-time video and
`
`audio were transmitted to Tokyo and other places around the world, observed by dozens of surgeons.
`
`It was this kind of opportunity to blend neurosurgical advances with technology that had persuaded
`
`Dr. Delashaw to leave Southern California and come to Seattle.
`
`37. While Dr. Delashaw and others were working to modernize and expand SNI to
`
`become a nationally recognized center of neurosurgical excellence, some incumbent surgeons and
`
`staff, including Drs. Cobbs and Mayberg, felt marginalized because of their diminished roles.
`
`38.
`
`During 2014, Swedish management had decided to end the pooling system for
`
`compensation and to adopt a compensation system based on a surgeon’s own RVUs without any
`
`compensation pooling—meaning that Dr. Mayberg (and others) would no longer be paid for surgical
`
`care they did not deliver. Ending pooling had a number of benefits, including ensuring that
`
`physicians’ compensation did not depend on a patient’s ability pay, and also ensuring that surgeons
`
`received pay for what they did without having it siphoned off by surgeons who were not performing
`COMPLAINT FOR LIBEL, DEFAMATION BY
`
`LAW OFFICES
`HARRIGAN LEYH FARMER & THOMSEN LLP
`IMPLICATION, TORTIOUS INTERFERENCE WITH
`999 THIRD AVENUE, SUITE 4400
`BUSINESS RELATIONSHIP AND/OR EXPECTANCY,
`SEATTLE, WASHINGTON 98104
`TEL (206) 623-1700 FAX (206) 623-8717
`UNFAIR BUSINESS PRACTICES IN VIOLATION OF RCW
`19.86 ET SEQ. AND CIVIL CONSPIRACY - 9
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`

`Case 2:18-cv-00537-JLR Document 1 Filed 04/11/18 Page 10 of 176
`
`
`
`the work. The change in compensation method was adopted and implemented by Swedish
`
`management, not by Dr. Delashaw, though he also believed it was best to align financial reward with
`
`high quality surgical work.
`
`39.
`
`The end of pooling produced unfavorable financial results for Dr. Mayberg. He was
`
`no longer being paid for surgeries he did not perform. A parallel development also affected his
`
`compensation—a change in leadership.
`
`40.
`
`In early 2014 at a meeting of surgeons at the Washington Athletic Club, it was
`
`reported that Swedish management was planning to change or end the existing medical directorships.
`
`The following month at a faculty meeting, Dr. Mayberg was questioned about how much he was
`
`drawing as an administrative salary. In mid-2014 Swedish management removed Dr. Mayberg as
`
`the medical director of SNI.
`
`41.
`
`Between losing his position as medical director of SNI and the elimination of the
`
`pooling compensation system, Dr. Mayberg’s annual compensation dropped from $1.16 million to
`
`about $360,000 (subject to his ability to increase it by doing more work). Dr. Mayberg associated
`
`both decisions with Dr. Delashaw even though both decisions were made by Swedish management.
`
`42.
`
`Around this time, Dr. Mayberg and his longtime colleague, nurse Mary Fearon,
`
`former Director of Perioperative Services, began encouraging SNI nurses to file anonymous
`
`complaints against Dr. Delashaw, taking advantage of the resentment a few of the SNI staff,
`
`including nurses, felt as a result of the many changes in pace and intensity that accompanied SNI’s
`
`transformation from a community hospital to a neurosurgical powerhouse.
`
`43.
`
`In November 2014, Dr. Delashaw presented his strategic vision for SNI at a faculty
`
`meeting. Around a month later, in December and during a meeting at the Seattle Science Foundation,
`
`Providence / Swedish leadership informed SNI that Dr. Delashaw would assume the leadership role
`
`of Chairman of SNI, which he did on or about April of 2015. From that date forward—over 22
`
`months before the Times articles—Dr. Delashaw was paid based on his SNI salary and did not
`COMPLAINT FOR LIBEL, DEFAMATION BY
`
`LAW OFFICES
`HARRIGAN LEYH FARMER & THOMSEN LLP
`IMPLICATION, TORTIOUS INTERFERENCE WITH
`999 THIRD AVENUE, SUITE 4400
`BUSINESS RELATIONSHIP AND/OR EXPECTANCY,
`SEATTLE, WASHINGTON 98104
`TEL (206) 623-1700 FAX (206) 623-8717
`UNFAIR BUSINESS PRACTICES IN VIOLATION OF RCW
`19.86 ET SEQ. AND CIVIL CONSPIRACY - 10
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`

`Case 2:18-cv-00537-JLR Document 1 Filed 04/11/18 Page 11 of 176
`
`
`
`benefit financially from performing a large volume of surgeries.2 Although Dr. Mayberg remained
`
`at SNI, Mary Fearon left in May 2015 after being advised by Swedish management that she was
`
`being uncooperative in scheduling Dr. Delashaw’s operating room time and that complaints she had
`
`recently had submitted about SNI were not credible.
`
`44.
`
`After he became Chairman, Dr. Delashaw took several actions to improve quality of
`
`care, transparency, and accountability. Dr. Delashaw implemented more robust quality review
`
`processes designed to find and correct quality problems. Dr. Delashaw routinely attended and
`
`presented at the specialty conferences at SNI, including the Tumor Board, Cerebrovascular
`
`Conference, Mortality and Morbidity Conference, and Grand Rounds. Dr. Delashaw also
`
`established a formal Patient Outcome and Quality Review Committee in September 2015 to
`
`formalize the collection of detailed data on morbidity and mortality at SNI—i.e., to get objective
`
`data that would enable SNI to improve performance and results (which were already high).
`
`45.
`
`Dr. Delashaw also implemented a method of choosing the best aneurysm treatment
`
`for each patient—a method that was designed to be objective and to avoid any individual bias for
`
`“clipping” vs. “coiling,” which could otherwise be influenced by the expertise a particular surgeon
`
`had for one method. Instead, this plan called for each patient’s case to be reviewed either by one
`
`surgeon who specialized in coiling and one who specialized in clipping, or by at least two surgeons,
`
`one of whom was proficient in both methods.
`
`46. With Dr. Delashaw’s encouragement, SNI also hired Dr. Cameron McDougall, one
`
`of the country’s leading authorities in aneurysm treatments. Dr. Delashaw was not an advocate for
`
`a particular method of aneurysm treatment; he was an advocate of choosing the right aneurysm
`
`
`2 Dr. Delashaw had been traveling regularly to Alaska to care for patients there and had been
`compensated on a per diem basis for doing so. After he became Chairman in April 2015, he
`arranged for SNI to hire two surgeons to take his place. Dr. Delashaw may have been paid a small
`sum after April 2015 for his Alaska work.
`
`COMPLAINT FOR LIBEL, DEFAMATION BY
`IMPLICATION, TORTIOUS INTERFERENCE WITH
`BUSINESS RELATIONSHIP AND/OR EXPECTANCY,
`UNFAIR BUSINESS PRACTICES IN VIOLATION OF RCW
`19.86 ET SEQ. AND CIVIL CONSPIRACY - 11
`
`
`LAW OFFICES
`HARRIGAN LEYH FARMER & THOMSEN LLP
`999 THIRD AVENUE, SUITE 4400
`SEATTLE, WASHINGTON 98104
`TEL (206) 623-1700 FAX (206) 623-8717
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`

`Case 2:18-cv-00537-JLR Document 1 Filed 04/11/18 Page 12 of 176
`
`
`
`treatment.
`
`47.
`
`Dr. Delashaw also revamped the referral process so that general referrals—meaning
`
`referrals to SNI vs. referrals to individual surgeons—were allocated to the right surgeons equitably
`
`and openly. The first step was to require that all general referrals—sometimes called “indirect”
`
`referrals—came to him as the leader, for distribution to the appropriate surgeon. To assure complete
`
`objectivity, in July 2016, he assigned Dr. McDougall to preside over the allocation process, with the
`
`results published so that all of the neurosurgeons were aware of them. This transparent practice is
`
`used at hospitals across the country, but, like some of the other reforms at SNI, it replaced an existing
`
`practice that allowed certain doctors to “cherry pick” referrals for their own benefit. One of these
`
`doctors was Dr. Cobbs.
`
`48. When Dr. Cobbs joined SNI in August 2013 as the Director of SNI’s Ivy Center for
`
`Advanced Brain Tumor Treatment, he thought that he should receive all brain tumor surgery referrals
`
`to SNI. After the reform of the allocation process, Dr. Cobbs was not receiving all brain tumor
`
`referrals, and he grew unhappy about his compensation. Even though Dr. Cobbs negotiated a
`
`$300,000 research incentive bonus with Dr. Delashaw, he objected to his compensation level and
`
`complained that the objective and transparent new referral system constituted “poaching patients.”
`
`49.
`
`Dr. Cobbs associated Dr. Delashaw with his resentment over his compensation. The
`
`new systems were in fact aligned with similar practices at other large hospitals, were designed to
`
`improve patient outcomes, and were based on objective, transparent criteria. Like Dr. Mayberg, Dr.
`
`Cobbs had benefited financially from an inferior system and he resented the doctor who had properly
`
`used his authority to implement the improvements.
`C.
`
`Dr. Mayberg and Dr. Cobbs Plot Their Attack on Dr. Delashaw
`
`50.
`
`Drs. Mayberg and Cobbs made an agreement to implement a plan to destroy Dr.
`
`Delashaw’s reputation in order to secure his termination, or at least his removal from his leadership
`
`role at SNI. They did so because they resented their loss of income and authority—losses that
`COMPLAINT FOR LIBEL, DEFAMATION BY
`
`LAW OFFICES
`HARRIGAN LEYH FARMER & THOMSEN LLP
`IMPLICATION, TORTIOUS INTERFERENCE WITH
`999 THIRD AVENUE, SUITE 4400
`BUSINESS RELATIONSHIP AND/OR EXPECTANCY,
`SEATTLE, WASHINGTON 98104
`TEL (206) 623-1700 FAX (206) 623-8717
`UNFAIR BUSINESS PRACTICES IN VIOLATION OF RCW
`19.86 ET SEQ. AND CIVIL CONSPIRACY - 12
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`

`Case 2:18-cv-00537-JLR Document 1 Filed 04/11/18 Page 13 of 176
`
`
`
`resulted from changes highly beneficial to patients. So they made a deal—a conspiracy—and set
`
`out to accuse Dr. Delashaw of endangering patients. This conspiracy is in writing, as are the plans
`
`for launching a series of attacks on Dr. Delashaw which included falsifying complaints, following a
`
`lawyer’s advice on how best to induce SNI management to get rid of Dr. Delashaw, and, ultimately,
`
`led to lying under oath to conceal their activities.
`
`
`
`51.
`
`One of the Cobbs/Mayberg tactics was to abuse the SNI anonymous complaint
`
`system, which had been created to enable those with legitimate concerns to express them without
`
`fear of retaliation. In January 2016, Dr. Mayberg filled out an anonymous facilities complaint
`
`against SNI and sent it to the Department of Health from the Park Postal store in the Madison Park
`
`neighborhood of Seattle. The complaint asserted that numerous other complaints had been made
`
`anonymously about “inappropriate surgeries, increase in