by lyle e davis
One has to wonder if Michael Henri Covert, like the proverbial cat, has nine lives.
Covert, president and CEO of Palomar Pomerado Health District, is now facing another major lawsuit against both himself and Palomar Pomerado Health District.
This lawsuit, filed by Dr. Andrew Polansky, seeks $2 million in damages plus punitive and exemplary damages which could treble the amount awarded. If successfull the judgment could amount to around $6 million or more.
This lawsuit is strikingly similar to one against Covert and Memorial Hospital in Sarasota, Florida, that resulted in a jury awarding $8.65 million in damages to Dr. Gregory Flynn. That jury awarded $2.1 million for past monetary loss and $6.0 million for future lost earnings. In addition, they awarded the doctor $550,000 for emotional pain and suffering, inconvenience, mental anguish, impairment of reputation and personal humiliation. Total: $8,650,000.
The issues in the current lawsuit are very similar.
Dr. Polansky alleges that Mike Covert terminated his right to practice at any of PPH’s facilities without just cause. Dr. Polansky is a medical doctor who specializes in vascular and interventional radiology and is a full partner of Valley Radiology Consultants, which has a contract with PPH to provide radiology services. He is certified by the American Board of Radiology.
Dr. Polansky further alleges invasion of privacy, and intentional/negligent infliction of emotional distress.
If proven in court, and accepted by a jury, then the pressure on the PPH board of directors would likely be intense to give Mike Covert his walking papers.
It is noteworthy that following the lawsuit loss at Memorial Hospital in Sarasota, Mike Covert was no longer president and CEO.
The past, as they say, is prologue. It will be interesting to see what develops as a result of this lawsuit. It will also be interesting to see if Mr. Covert will be able to continue avoiding the controversy that seems to follow him, wherever he has gone. One wonders also how long the board will continue to support Mike Covert... or how long it can afford to support him.
When he left Sarasota Memorial Hospital, after having lost that lawsuit, he was being paid $327,000 per year. His present salary and benefits total $676,000 a year. Many critics, including The Paper, have said this salary is grossly obscene. Critics are beginning to not only take a much closer look at Michael Henri Covert but also the PPH board that hired him, negotiated the contract, and agreed to pay him such outlandish (to some) fees. There are those, including The Paper, who feel the PPH board members did not due their due diligence before hiring Covert and that upcoming elections for four board members in December should bring in a more business oriented board that is able to ask the tough questions of the CEO and not meekly follow Covert’s agenda.
At issue, initially, is Mike Covert, acting on behalf of PPH in the interception of a private email between Dr. Polansky and a young lady he was dating at the time, an employee of PPH. Dr. Polansky alleges that Covert and PPH had absolutely no right to intercept his private emails and, further, that he was using his own computer, his own email program, and his girl friends own private email program; further, that both Dr. Polansky and his girlfriend had a reasonable expectation of privacy and had no expectation that their emails would be monitored or exposed to any other person.
Not incidentally, Polansky’s girl friend alleges she was also forced to resign. She says she was called into the office, told by management that she must resign and that her union could not help her. Subsequently, he reports, when his girl friend contacted her union they said they couldn’t help her because she had “resigned.” It didn’t seem to matter that she was pressured to resign against her will.
In a closely related issue, Quon v. Arch Wireless Operating Company, 445 F.Supp.2d 1116 (Central District of California, 2006), a federal district court held that a police sergeant had a Fourth Amendment expectation of privacy in messages sent from and received on the pager his department supplied him for official uses.
According to the suit, on or about July 9th, 2007, at 5pm, Dr. Polansky and his partner, Dr. Gary Spoto, were called into Mike Covert’s office and handed a letter by Mike Covert which removed Dr. Polansky’s privileges for practicing at any PPH facility. Present at the meeting, the suit alleges, were Bill Kail, Director of Imaging Service at PPH, Gerald Bracht, Chief Operating Officer at PPH, and Dr. Robert Trifunovic, Chief of Staff at Palomar. This letter alleged that Dr. Polansky had violated PPH’s computer use policy by employees. Dr. Polansky argued that (a) he had never been given a copy of such policy, and (b) he was not an employee of PPH but an independent contractor. PPH countered, the suit says, with the threat that if Dr. Polansky continued to work at PPH’s facility, they would cancel the contract with Valley Radiology Consultants, of which Dr. Polansky was a partner. Not wanting to lose the contract for his company and to protect his company (VRC), Dr. Polansky reluctantly agreed to cease providing his services.
Subsequent to this meeting, legal counsel for VRC sought a reason from PPH explaining how they felt Dr. Polansky had violated the agreement between PPH and VRC. PPH did not respond.
About six weeks after the termination, Dr. Polansky and Mike Covert were present at a Medical Executive Committee. Committee members strongly and unanimously said that the action taken by the administration against Dr. Polansky was unwarranted. Covert refused to budge. A subsequent Special Committee was formed that included medical staff, administrative personnel and members of the hospital board. The charge of this Special Committee was to persuade Mike Covert to reverse his decision. It was unsuccessful.
Then, Michael Covert advised The Valley Radiology Group that their contract would not be renewed. If not renewed by June 30th; without cause, then 180 days later the contract expires.
Since that date The Paper has learned, through independent sources, that the doctors with PPH are outraged that the radiology group’s contract will not be renewed. “They are a tremendous group of top talents,” one doctor observed. “No way they’re going to find a radiology group to come right in and give the same outstanding patient care this group has done. It’s gonna take time for the new group to learn the ropes, develop the skills, and the professional relationships this group enjoyed with the other doctors. It’s just another example of how the administration has forced a change. They didn’t even consult the Medical Committee. We are the ones who are charged with patient care, not the administration. We are the ones who should judge the medical competency and the quality of care of the physicians and their groups, not Mike Covert. He is an administrator, not a doctor. He doesn’t know the first thing about doctoring. Yet he imposes his will and forces a Radiology Group out of the PPH system . . . a clinic that enjoyed the wholehearted support of the physicians within PPH. It’s bad for the hospital, it’s bad for the Radiology Group, and, most of all, it’s bad for the patients. It just doesn’t make sense.”
Another doctor commented:
"Dr. Polansky's 20 yr. service to PPH as its leader in interventional radiology was abruptly terminated over a private communication which would never have reflected on PPH, or even have been made public. PPH's behavior in that matter reflects it's dictatorial approach to physicians and is allowed by a Board which does not have the expertise, experience, or strength of conviction to adequately control it's CEO. One must wonder, what is PPH's goal in eliminating some of it's best physicians and how will doing so help it fulfill it's stated mission?"
Yet another physician said:
"Radiology back-up is critical to the functioning of the Trauma Program, general and specialty surgeons, and interventional proceduralists. Many of us have worked with the current radiologists for years. It is disconcerting that we may lose them. Who will replace them? How will they affect our ability to care for patients? It is outrageous that PPH could terminate a group of our colleagues, an exceptionally competent one no less, over fear of competition from them."
Several doctors point out that what happened to Dr.Polansky did not happen in a vacuum. The medical fraternity outside this community has heard about it and they don’t like it.
One doctor pointed out . . . “it’s hard to attract really top notch doctors to medical groups that contract with PPH. The cost of living is so high here . . . and word has gotten out about Mike Covert being difficult to work with. Covert’s reputation, in many ways, precedes him. In about 6 to 8 years there will be a number of doctors from PPH who are retiring. Just where does PPH think they are going to find replacements? Top notch replacements?”
Indeed, PPH’s Finance Committe notes for this month show that already PPH is having to guarantee first through third year subsidy income to medical groups with whom they have contracted. They provide subsidies to attract physicians because the demand is not high enough and the cost of living is so high that physicians will likely move to other locations where they don’t have to put up with the obstacles, nor with what they view as an egotistical, power-hungry CEO.
Dr. Polansky alleges that Mike Covert’s actions were retaliatory. This also is comparable to the complaint of the successful lawsuit in Sarasota, Florida, against Covert. In that action, the jury found that, indeed, Covert had not only acted in a retaliatory manner against Dr. Gregory Flynn but, called to the witness stand in that case, Michael Covert was clearly and thoroughly impeached by Plaintiff’s attorney, Tony Leon. (Impeached is a polite term for establishing that the witness was less than accurate in his answers.)
Dr. Polansky claims Covert retaliated against him because at an administrative hearing between 2001-2005, Polansky was asked to testify with respect to claims made against Mike Covert by another physician. Polansky testified that Covert directly interfered with medical staff business by attending closed sessions and promoting the Medical Executive Committee to remove or suspend this particular physician from practice. The medical staff attorney, Carrie Miller, corroborates this charge by stating she overheard Covert make the statement, “You gentleman need to get rid of him because if you don’t then we have to in the administration and that’s a big hassle, more of a legal problem for us.”
Dr. Polansky’s lawsuit also alleges Covert has a long history of conflict with medical staff and doctors at PPH and elsewhere, before coming to PPH.
Indeed, in the story The Paper published “A Covert Operation,” in March 20th of this year (see: http://thecommunitypaper.com/archive/2008/03_20/index.php) we said the following:
“Talking with medical staff, newspaper reporters from Columbus, Ohio, and Sarasota, Florida, and with medical staff here in North San Diego County, a picture of an energetic, eager, impatient, egotistical, demanding, and often angry chief executive emerges. It was interesting that a parallel term was used by medical staff in Sarasota and in Escondido to describe Mr. Covert’s management style. “He’s a Little Hitler,” was the common expression used by both medical communities.
According to several medical staffers at Sarasota Memorial Hospital, Covert was not well liked, was described as manipulative and that he would do anything to get his way. Former board member Catherine Bowles, who had been at odds with the board and Covert, testified at Dr. Flynn’s trial that "people who complained about patient care were not warmly received by a majority of the board." Nor, it is said, by Mr. Covert.
A number of others who know him, both within the medical community as well as within the Escondido community at large, agree that he is a highly egotistical man. He has to have things done his way. He is very good at playing politics and is also very good at playing hardball with contracted medical service suppliers.
Yet another doctor gave a somewhat contrasting view: “He’s affable on one hand . . . a very good salesman; in front of a group he’s almost evangelical in his passion.
He almost bowls you over. Makes me kinda question someone who has so much zeal like . . “I’m right.”
Like all CEO’s, he’s very egotistical. He wants to have total control over everything, including the doctors.”
It is said he wields departmental administrative assignments as a tool and dangles the financial remuneration of them, ranging from as little as $10,000 to as much as $150,000 a year, as an incentive to fall in step with his wishes.
A number of doctors who practice at the Escondido campus of Palomar Medical Center confided to us, off the record, that they feared Covert.
One doctor complained, “Covert is trying to take over as dictator of the hospital. There is supposed to be a separation between the hospital, the medical staff and the administrator. If you have the administrator making all the decisions then all decisions are made on money issues rather than what is best for the patient or the patient population. This poses a threat to the medical population and harms the quality of medical care. Covert is simply Hitler reborn.”
Another doctor agreed, saying, “At most hospital districts, administrators don't normally show up at Medical Executive Meetings unless invited . . . but here, administrators are present at closed meetings. They should not be privy to private medical meetings/discussions and they tend to dominate the meetings.”
There are additional concerns about how independent the members of the Medical Executive Committee are. One doctor pointed out, for example, “The Director of the Surgery Center, the Head of Trauma, the Quality Care Administrators - they can sit on the Executive Committee, the head of Internal Medicine, department heads of RAPE - (Radiology, Anesthesioloty, Pathology & Emergency Medicine), the head of Orthopedics, . . . they all sit on the Medical Executive Committe . . . but they all have exclusive contracts with the hospital. If the head guy of any department disagrees with administration, his or her contract could be in jeopardy. He or she could be gone, replaced by someone who is a little more flexible in their thinking. A little more willing to get in step with the administration.”
Along that same line, another doctor complains, “Covert has gone to the medical staff bylaws committee and has submitted proposed amendments to the by-laws which would give him unchecked power; he could throw anybody off medical staff that he sees fit. Any doctor who upsets the administration, Covert can throw them out. When that happens there is no advocate for patients, no advocates for quality care. The proposed new by-laws are coming up for ratification. I don’t think they’ll pass. (Editor’s note: They didn’t. The vote was so overwhelmingly against the new by-laws that they were withdrawn. Covert had strongly endorsed them.)
There are also a number of questions concerning physician contracts and whether physician members who sit on the medical executive committee have contracts, and in what amounts, and do those contracts influence their thinking and voting on what is best for the hospital district and patient care?”
An example of this comes from stories told by a number of doctors:
Back when Prop BB was being promoted, phsyicians complained that Mike Covert would come to the various physicians group and tell them what they were going to contribute. He let it be known that things would go badly for that group if they didn’t contribute. Sources tell us The Radiology Group reluctantly kicked in $50,000, which figure was specifically suggested by Covert; the Emergency Medical Group kicked in $75,000, also reluctantly.
They all knew the implied and veiled threat was there. “You don’t support this bond issue, I’ll see that your contact is not renewed.” That’s the kind of power Mike Covert has. And should not have.
Dr. Polansky’s lawsuit cites the Sarasota, Florida, lawsuit as a perfect example of how Covert has a pattern and practice of terminating physicians who oppose him. The suit points out that it took a jury 45 minutes to reach their verdict against the hospital and Covert and awarded $8.65 million in damages. Shortly thereafter, Covert was relieved as CEO for Sarasota Hospital.
The suit also cites the example of how Covert failed to properly investigate the strange and rapid number of deaths while he was Executive Director of the Ohio State University Hospital in Columbus, Ohio. Covert accused staff who were reporting these unusual and fatal activities of being paranoid. Later, it was learned that a resident physician named Michael J. Swango was, indeed, responsible and would later plead guilty. Mr. Swango was not caught by any investigation of Covert’s Ohio State University Hospital, but while working for an ambulance service. Only then, after Swango had been caught and convicted, did Covert implement a policy requiring managers at the hospital to call in police when criminal negligence is suspected.
Dr. Michael Swango, convicted mass murderer
Polansky further argues in his suit that Covert was at least grossly negligent if not deceptive and inaccurate in his promotion of Proposition BB. Prop BB, as it was known, called for the issuance of bonds in the amount of $496 million to the city. As documented by The Paper in our March 20, 2008, story, “It suggested further that Mr. Covert was so active that he and his minions may have, in fact, made substantial misrepresentations in order to persuade the electorate to pass the bond issue. We also documented how the cost overruns had run up to $1.2 billion dollars (from an original projected cost of $753 million). This figure was later trimmed back to $990 million. Further, the downtown business community was concerned that a major promise that was made about importing the administrative staff to the existing downtown Palomar Hospital campus might not be kept. If that promise was broken then downtown Escondido might well become a ghost town.”
Dr. Polansky’s legal counsel, Michael D. Curran, of Vista, alleges on behalf of Dr. Polansky, that Covert terminated Polansky because he testified against Covert and after that, both Covert and PPH embarked on a decided course of action to discriminate, retaliate, harass, intimidate and invade (his) privacy culminating in the elimination of Dr. Polansky’s right to practice medicine at PPH.
Michael Curran, Legal Counsel for Dr. Andrew Polansky
Curran goes on to allege that these acts were unconscionable, indefensible and undertaken with malice and/or a conscious disregard of Polansky’s legal rights and the probable effect of Covert and PPH’s conduct on Polansky was tantamount to malice. Further, Curran alleges that this illegal conduct was part of a broad policy of intentional misconduct and retaliatory treatment.
Because of this conscious disregard of Polansky’s rights, and with malice, Curran is seeking an imposition of punitive damages in an amount to be shown according to proof. Curran cites Penal Codes 631, 632, 637.2 in support of their Cause of Action, the California Constitution, Article I-1; he also cites defamation and slander against Cover and all other related parties to the suit.
We recognize that there are two sides to every story. We contacted PPH to ask for comment and/or any information they cared to convey to our readers. They initially responded that they do not comment on matters with pending litigation. While Mike Covert did not return our calls, Andy Hoang, the official spokesman for PPH, later called back with a statement that said “This case does not involve patient care. PPH will vigorously defend its position through the appropriate legal process.”
Once we receive a copy of PPH’s and Mike Covert’s answer to the lawsuit, which is due within 30 days of their receipt of the summons, we will detail that in The Paper as well.
We have apparently become the darling of the medical comunity within PPH since we first broke this story in our December 20, 2007, issue (see http://thecommunitypaper.com/archive/2007/12_20/index.php) and the followup story on March 20, 2008 (see http://thecommunitypaper.com/archive/2008/03_20/index.php). Not too surprisingly, the doctors, medical staff and administrative staff who contact us do so because we appear to be the only forum where they are able to tell their story without fear of retribution. The talk to us anonymously as they fear that Mike Covert will have their jobs or cancel their contracts if he gets word that they are talking to The Paper. They know we’ll report to the public what is going on behind the scenes.
They certainly won’t get it from the PPH Public Relations Department. True, PPH has one of the more talented Public Relations departments in the industry. They can, and do, turn out glossy, slick, colorful photos, brochures, and statements. Their mission, however, is not to inform the public as to what is going on within PPH and/or behind the scenes . . . but to present a rosy picture of what is going on. In essence, only what Mike Covert wants portrayed.
Indeed, The Paper is not the favorite media organization of the PPH Public Relations department. We tend to not simply reprint “puff pieces” that only focus on what Mike Covert wants you to hear and see. We often ask hard questions and PR types don’t like that.
As a result, whenever we ask a question of Mike Covert or any other person of authority we are referred to the Public Relations department, usually in the person of Andy Hoang, the official spokesman for PPH. His response is normally to tell us to file a request under the Public Records Act . . and this for information that, by law, must be made available to anyone who asks for it, not just a newspaper. We jump through the hoops and sometimes actually get the information we seek.
Still another example of pressure tactics is reflected by a recent policy that had PPH scrambling and pressuring employee groups, including doctors, to donate $1 million in collective salaries in order to fund the furnishings for the new hospital. Those who don’t contribute are allegedly harangued and asked by a senior PPH management official, face to face, and in an accusatory, intimidating tone, “Why not!?”
Mike Covert is said to be a past master at playing hardball. He has apparently taught and requires his management staff to use the same hardball techniques.
So, the original question remains. Does Michael Henri Covert have nine lives? Just as the proverbial cat? And another question emerges as controversy after controversy follows him. At what point in time does the medical staff, the physicians, the administrative staff, the board of directors, the public, say . . .“Enough!”
The lawsuit promises to be interesting. We look forward to reading and reviewing the answer(s) filed by Mr. Covert and PPH.
Dr. Andrew Polansky?
Dr. Andrew Polansky graduated cum laude in 1976 from Hobart College in Geneva, New York with a Bachelors of Science degree. He then went on to Boston College for medical school, has studied at Harvard Medical School, did postgraduate work at UCSD Medical Center, pursued work in Radiology from 1980 through 1984, has been a certified board member of the American Board of Radiology since July 1984.
He was the Chief Resident, Diagnostic Radiology, University Hospital of San Diego from 1982 through 1983, with Alvarado Hospital Medical Center through 1986. In 1986 he became a partner in Valley Radiology Consultants Medical Group and remains a partner today.
He has written numerous professional dissertations and made a number of presentations before many of his colleagues and students. He is, and has been, an Expert consultant/Case reviewer with the California Board of Medical Quality Assurance Expert from 2005-present.