ISSUES AT THE HARRY S. TRUMAN VA MEDICAL CENTER IN COLUMBIA, MO

WEDNESDAY, OCTOBER 25, 1995

House of Representatives,

Subcommittee on Hospitals and Health Care,

Committee on Veterans' Affairs,

Washington, DC.

The subcommittee met, pursuant to call, at 9:30 a.m., in room 334, Cannon House Office Building, Hon. Y. Tim Hutchinson (chairman of the subcommittee) presiding.

Present: Representatives Hutchinson, Smith, Bilirakis, Quinn, Edwards, Kennedy, and Bishop.

Also present: Representative Volkmer.

OPENING STATEMENT OF CHAIRMAN HUTCHINSON

Mr. Hutchinson. Good morning. I call this hearing of the subcommittee to order.

The subject of this morning's oversight hearing encompasses the tragic events at the Harry S. Truman VA Medical Center, Columbia, MO. The issues to be covered will include the work of the VA Office of Inspector General during its 3-year investigation into unexplained deaths and subsequent allegations of a cover-up of those deaths. We will include management and administrative issues raised in the Inspector General's report.

It is my understanding that the VA IG was called in to work on this case in October of 1992, when a statistical analysis led to grave concerns about an increased number of deaths on a particular ward of the hospital.

The VA IG issued two reports on Columbia, the first on September 28, 1994. his report concluded that although the IG could not comment on the causation of increased deaths on the particular ward at the hospital, a statistically significant relationship between a nurse, who is identified only as Nurse H, and the deaths on a particular nursing unit, could be concluded on the basis of statistical analysis.

In the report, the IG stated that the probability of this situation occurring by chance was less than 1 in 1 million.

In front of you this morning is a chart from the first IG report which graphically depicts the death rate for Ward 4 East. This is the unit on which Nurse H worked the night shift and the site of the increased and yet to be explained patient deaths.

In response to continued problems at the medical center brought on by charges of an alleged cover-up of patient deaths during 1991 and 1992, the IG continued their investigation at Columbia and released a second report less than one month ago.

As chairman of this subcommittee, I can say only that it was unsettling. It was very troubling. It was shocking to read this report.

The report identified a dysfunctional top management team in place during the 3-year period of the IG investigation. This team served only to exacerbate the seriousness of the unexplained increase in deaths at the medical center.

Although the team was ill equipped to handle the situation, the IG could not or did not substantiate the allegations of obstruction of justice or criminal misconduct by the team in place at the time.

The purpose of this hearing is to provide the subcommittee with a better understanding of the issues raised by this grave situation and to determine the degree to which the VA is able to identify, correct, and ensure the proper functioning of its top hospital managers.

I want to remind my colleagues--many of whom are in Democratic caucuses and Republican caucuses this morning, but I think they have a written memo on their desk when they arrive--that this is a hearing, not a trial.

The criminal part of this investigation has been in the hands of the FBI since 1992. Since that time, they have exhumed 13 bodies and have beenconducting sophisticated toxicological tests on fluid and tissue samples taken from the exhumed remains.

I have personally reiterated my deep concern for a speedy resolution to the forensic part of this investigation, to Louis Freeh, the Director of the FBI. The highest concern of this subcommittee is to ensure that VA patient care is delivered in environments that are safe and free of harm.

It is my expectation, and one which is shared by my colleagues, that those who care for our Nation's veterans are the highest quality managers and health care practitioners and are committed to saving lives. These practitioners should also be able to exercise their best medical judgment in an environment that they perceive as safe without fear of personal or professional retribution.

Now, to reasonably accommodate all the witnesses this morning, I ask that each of you summarize your remarks in 5 minutes or less. Your complete written statements will be entered into the record.

I now recognize Chet Edwards, the ranking member, for his opening remarks.

OPENING STATEMENT OF HON. CHET EDWARDS

Mr. Edwards. Thank you, Mr. Chairman.

Normally I just submit my written statement, but because of the importance and nature of this hearing, I would like to read these comments into the record.

This hearing does raise a very disturbing subject. It goes to the most profound of VA's obligations, which is safeguarding the lives of its patients.

While there is generally agreement regarding some of the events that occurred at the Columbia, MO, VA Medical Center in 1992, there are sharp differences as to exactly what happened.

We will hear testimony to the effect that certain VA officials at the Columbia VA Medical Center in 1992 failed to fully meet critical obligations to safeguard VA patients. However, we will also hear conflicting testimony on this and other points; one view from the VA's Inspector General's Office and another from a member of the medical center staff. It is not clear that a single hearing, without sworn testimony from the many other medical center staff, regional office officials, and others involved, can fully resolve these factual conflicts.

Is this a case of mismanagement or, as one witness will allege, a cover-up, or is it neither? That is an important question, and I don't have the answer to that question, and that is why I appreciate your having this hearing, Mr. Chairman. Until we can answer that key question regarding Columbia to our satisfaction, I do think it is important to be careful in prescribing changes for the entire VA system.

I certainly have reached no judgment as to whether or not we will find a need to make systematic changes in the VA system, but if changes are indicated, I don't think we want to create a VA health care system that is administered mechanically in accordance with a Washington written policy cookbook. No set of rules or policies can replace good management. What I think we want is a VA system in which hospital administrators combine a dedication to patient care with the capacity and willingness to exercise sound judgment.

In that regard, I hope the very significant reorganization and cultural change under way in the Veterans Health Administration will foster a climate of patient-centered decision-making and local accountability.

Mr. Chairman, I commend you for holding this hearing. It raises very important issues, which I know we will address deliberately, forthrightly. I know this committee will not duck from hard questions. At the same time, I urge us not to leap to conclusions that we must do something before we get all the facts.

Once we have those facts, if we find cases of serious mismanagement, if we find cases of system breakdowns, then I will work with you and all other members of this committee to see that we make the changes necessary to prevent any unnecessary deaths in our VA medical centers.

Thank you very much, Mr. Chairman.

Mr. Hutchinson. Thank you.

Mr. Kennedy, do you have an opening statement?

OPENING STATEMENT OF HON. JOSEPH P. KENNEDY, II

Mr. Kennedy. Just very brief comments.

I want to first of all thank you, Mr. Chairman, for holding this hearing. I want to thank our witnesses for coming.

Obviously, the notion that this sort of a Dr. Kervorkian-type situation is roosting in the halls of a VA hospital, going on without any checks at all in terms of the kinds of activities that this individual was potentially involved with, is something that obviously needs to be addressed, and I think that you are to be commended for hosting a hearing and trying to get at the bottom of what is actually taking place at this facility. I appreciate that.

I am looking forward to hearing what the testimony is, and I believe these are very, very serious allegations that are being made, and I think it is important that this committee is willing to delve into controversial, difficult, and obviously very serious charges that are being made.

So I want to thank you, Mr. Chairman. I look forward to hearing from our witnesses.

Mr. Hutchinson. Thank you.

The chair now recognizes our first witness, Dr. Gordon D. Christensen, M.D., Associate Chief of Staff for Research and Development at the Harry S. Truman VA Medical Center in Columbia, MO.

Dr. Christensen conducted the statistical analysis which first led to the identification of the significant statistical relationship between a particular nurse and the deaths on the unit on which this individual worked.

Dr. Christensen, if you would be seated, we do thank you for traveling to be with us today. We welcome you.

Dr. Christensen, you are recognized.

STATEMENT OF GORDON D. CHRISTENSEN, M.D., ASSOCIATE CHIEF OF STAFF FOR RESEARCH AND DEVELOPMENT, HARRY S. TRUMAN VA MEDICAL CENTER, COLUMBIA, MO

Dr. Christensen. Mr. Chairman and members of the committee, I am here to testify that the OIG report is wrong and dangerous. The report is wrong because it is an incomplete, dishonest, biased, flawed, and distorted presentation of the events that took place in Columbia. The report is dangerous because acceptance of this report promotes the cover-up of this mess and endorses the VA's policy of intimidation of whistle blowers. If you want to prevent a tragedy like this one from happening again, you must take immediate strong action.

I make these claims because I am the physician who led the internal investigation into the deaths at the Harry S. Truman Memorial Veterans Hospital. I am also a physician whose public charges initiated the Inspector General's investigation. I personally witnessed and documented a major portion of the events under our review today. When I tell you the OIG report is wrong, I know what I am talking about.

I led an internal investigation into the unexplained deaths in Ward 4 East. We found that at least 11, and probably more than 40, veterans died under circumstances that suggested they were killed. These deaths were overwhelmingly associated with a single nurse. On one in every three shifts worked by the nurse, a patient died. After 3 years' denial, the VA now reluctantly agrees with me that there was reason to suspect murder and that this matter was mishandled.

Unfortunately, there is not enough time for me to cover all the incomplete, dishonest, and biased, flawed, and distorted portions of the OIG report. Even my written testimony is incomplete. Instead, here are just a few glaring items:

Item: The OIG proposes to take administrative actions against the former acting Associate Director for Nursing and the former Chief of Staff because they did not act on rumor and they did not adhere to a nonexistent policy to quickly address the unexpected deaths.

At the same time, the OIG informs us that the former Hospital Director, the former Regional Chief of Staff, and the current Regional Director actively opposed this same nonexistent policy.

How can we possibly hold a subordinate responsible for actions, decisions, and nonexistent policies that are actively opposed by top management?

Item: The OIG states there was no obstruction, but on page 38 they state--and I quote--"The director's action can be viewed as an effort to impede an official investigation by intimidating employees," unquote.

Item: The OIG tells you that these problems were due to a dysfunctional relationship between the Hospital Director and the Chief of Staff. What the OIG didn't tell you was that the Hospital Director had a long history of autocratic intransigent behavior, that he was unable to get along with any of his many Chiefs of Staff, and that his behavior was well documented, well known to the VA. In 1985 it almost resulted in the medical school breaking the affiliation.

Item: The OIG report declared it was appropriate for the Dean of the medical school to ignore the 40 unexpected deaths on a teaching ward and the charges by a house officer that nurses were killing patients because this was, I quote, "an internal matter."

Is this attitude consistent with the spirit of affiliation?

Item: In the entire 66-page document, the OIG neglected to tell you that on September 2, 1992, when I was the second in command of the hospital, I analyzed the data, called an emergency meeting, and told the Hospital Director, Mr. Kurzejeski, point blank that there were objective reasons to think that Nurse H was killing patients and the FBI must be immediately informed. Mr. Kurzejeski refused to call the FBI and repeatedly refused to call the FBI over the following months.

When I responded by stating I would report the nurse, the Chief of Staff of the region appointed a team of professionals to go to Columbia, review the data, and make the decision to report the nurse. But what the OIG didn't tell you is that the team did not intend to review my data, that I was kept off their agenda.

When I discovered this, I again stated I would go to the FBI. In response, the Chief of Staff, Dr. Dick, prevailed upon the team to allow me to present the data. After this presentation, the data could no longer be hidden. After this presentation, Mr. Kurzejeski told Dr. Dick--and this is what he told me--"You can expect to take a hit for this and probably Christensen too."

The conclusion that the OIG helped cover up this mess is inescapable. I personally briefed the Assistant Inspector for Health Care Inspections, Dr. Connell, on these problems in October of 1992. I then repeated these chargesin writing to the Inspector General, Mr. Trodden, in February of 1993 and again in May of 1994. The conclusion that the OIG simply mislaid or forgot that highofficials had been charged with obstructing the investigation into the deaths of 40 veterans is simply preposterous.

The voluntary departure of many of the charged officials over the 2 years the investigation languished only confirms the cover-up. In the words of the editor of the Columbia Daily Tribune, "I call it a cover-up, big time."

This was a biased investigation. The investigation was conducted by the two agents who were blamed by the Inspector General for mishandling the allegations in the first place. After 9 months of investigation, the Inspector General released their report in a combined news conference with the hospital, a conference to which I was not even invited, although I did attend.

After reviewing the report, one of the very few things I learned was that there was a discussion between the Assistant Inspector General and the Chief of Staff of the hospital about taking actions against me for violating confidentiality regulations. This is the same Chief of Staff that had already promised to "get me" and who had threatened me if I dared to publicly report the possible murders of these veterans. I maintain that a watchdog agency cannot indulge in adversarial relationships with its informants and expect to provide impartial and rigorous oversight of management.

In a letter to the Columbia Daily Tribune published on Saturday, the correspondent clearly stated the issues before us: "Would the public really be happy with Richard Nixon appointing his staff to investigate Watergate or Bill Clinton appointing his staff to investigate Whitewater? Basically, all this cover-up thing is the VA investigating itself. How legitimate is that? There is a cover up. It's as plain as day. Deal with it and investigate to get these people out of the system."

The Inspector General's report is dangerous because it takes no steps to protect whistle blowers like myself and my colleagues. The only reason why I have been able to push this issue this far is because I have a professional standing independent of the VA. If I was not a tenured faculty member, if I was not a respected physician and scientist, I would have no hope of bringing this matter to your attention.

If the VA cannot respond to a quality of care problem as basic as this one and as well documented as this one, then there is no hope that the VA will ever respond to any problems that would be considered embarrassing to the VA.

In conclusion, I ask you, in the strongest possible terms, to reject the Inspector General's report and convene a truly impartial and rigorous investigation into the administrative response to deaths in Columbia. I ask you to take strong and quick action to protect whistle blowers like myself and my colleagues. If you do not do this, I can guarantee you that nosocomial murder as well as a whole host of less dramatic but equally dangerous patient care problems will happen over and over and over again.

Thank you.

[The prepared statement of Dr. Christensen appears at p. 106.]

Mr. Hutchinson. Could you explain to the subcommittee when and under what circumstances you were asked to perform the statistical analysis of mortality data at the Veteran's Center?

Dr. Christensen. Sure. On August 27 of 1992, the quality assurance manager--the QA manager--came down and told me that there was a problem and that Dr. Adelstein, who was the acting Chief of Staff at the time, had asked me to be involved with it.

Basically, the problem was that there was a nurse who seemed to be associated with a series of deaths on the ward, and the association was that the deaths seemed to be taking place at night, and this was the time the nurse worked. The question was: Could this association, just be a matter of chance because the nurse was unlucky, or was there a real relationship?

Mr. Hutchinson. And how long did it take you to conduct the review, or the statistical analysis?

Dr. Christensen. Well, we started on August 27, and we concluded the initial analysis on September 2. We worked around the clock, through the night, and so forth.

Mr. Hutchinson. And what did you find in your review?

Dr. Christensen. I found that there was an overwhelming association of one nurse. I didn't know which nurse, because they purposely didn't tell me any names. I asked the QA manager not to tell me any names, so she coded all the names.

I knew that there was an overwhelming association of one nurse with codes and with deaths, basically, at least a tenfold increase. The probability of it occurring by accident was so infinitely small that I couldn't calculate the number. It was highly significant, and that was sufficient for me.

Then I gave her the results. This is when Nurse H got the designation, because that was the code letter assigned to that particular nurse. She revealed that that was the nurse upon which the suspicions had focused.

Mr. Hutchinson. What were the statistical probabilities this could have happened by chance?

Dr. Christensen. It was a probability of less than one in a million. My original calculation was less than one in a thousand, because from a statistical point of view, that was all that was important.

My statistical abilities did not allow me to calculate a number smaller than one in a thousand because these numbers don't appear in the normal manuals. The normal statistical tables only report the probabilities of less--1 in 10, or 1 in 20, or 1 in 1,000. They don't go to one in a million, because it is sohighly significant.

Mr. Hutchinson. Dr. Christensen, after you completed your analysis, what did you do with it, and what was the reaction of those to whom you reported?

Dr. Christensen. I called the emergency meeting, and we convened a group of the hospital leaders. I was the acting Chief of Staff on that particular day. The meeting included Mr. Kurzejeski, the QA manager, and a series of other people, and we presented the data, that this was a big association.

At that particular meeting, it was revealed to Mr. Kurzejeski that there was a lot of talk on the ward and that an intern had accused the nurse of killing a patient. As it worked out, that was the last patient who died in the series. I gave them the data and I said it looked like there was very real reason to think there was murder and we should call the FBI or the police or the coroner today. They had to be contacted today because they needed an opportunity to conduct an investigation while the nurse still didn't know that he was under investigation, so that they could gather evidence, perhaps survey the individual, perhaps observe the individual, or do something in order to figure out what was going on.

Mr. Hutchinson. And the reaction?

Dr. Christensen. He (Mr. Kurzejeski) said that we should not report it, that that was his decision to make. He said that he would think about it and that perhaps he would call the OIG.

So what I did was, I continued the analysis, rechecked my calculations, and reapproached him the next morning right after the morning report.

I was no longer the acting Chief of Staff. Dr. Adelstein had taken over at that point as the acting Chief of Staff, and I reiterated my request and told him that the reanalysis and recalculation and recheck of the figures, all confirmed what I had earlier told him, that we needed to call somebody right away.

Mr. Hutchinson. In your own notes, you state that patients appear to have died natural, spontaneous deaths and there was no overt evidence of murder.

Dr. Christensen. That is correct.

Mr. Hutchinson. Yet in your testimony you allege that, in fact, there was a murder and a subsequent cover-up.

Is there an apparent contradiction, or am I misreading, or how do you explain it?

Dr. Christensen. No, you are not misreading at all. You have to recognize, I am talking from a medical standpoint and an epidemiological standpoint. The evidence, or the appearance of murder, is only present in the aggregate and is not present in any individual situation.

We know that in aggregate, looking at all the deaths on the wards, that there were far too many that could be explained. But looking at any one particular individual, just looking at the person there was no overt evidence of death, although there were a number of very funny situations where patients died unexpectedly.

The QA reviewers, who are trained in this did notice that the patient's progression toward death just wasn't normal. Some people were dying simply when they shouldn't be dying, and there were too many of these unexpected or unanticipated deaths. But if you really looked at any individual person, just in and of themselves, you would be hard pressed to say that there was anything particularly unusual.

Mr. Hutchinson. With your statistical data, where you were citing one in a million, I think that was later confirmed by another biostatistician?

Dr. Christensen. Yes, that is correct.

Mr. Hutchinson. Is there any explanation for that spike in deaths apart from, you know, some kind of a homicide or something like that?

Dr. Christensen. Yes. First, you have to realize that we didn't believe it either. Those of us who work in hospitals don't usually think of people killing people in hospitals. You don't work in hospitals to kill people. You work in hospitals to save people. So we actually worked from a bias that it couldn't possibly be.

There were two major concerns. One was that it was just an unlucky association, and two was that there was a shift in the population in the hospital from one ward to another; that there was a realignment of patients.

Now, we did not have a whole lot of data on the realignment, because the possibility the nurse was associated with the deaths emerged so quickly and was, of course, very pertinent to the care in the hospital.

The OHI looked at the realignment issue and was able to detect three different trends. One trend indicated that there was an increase in deaths on the ward which occurred before the nurse started working there and which they thought could be explained by a change in the hospitalization patterns of patients in the hospital.

They also noted a much stronger association of deaths when the nurse went on the ward, a similar and very strong association of the deaths stopping when the nurse went off the ward, and a prolonged low rate of deaths on the ward which they ascribed to the Hawthorn effect. The Hawthorn effect is when the increased attention to the ward made everyone more careful, this is often seen in situations like this.

Mr. Hutchinson. Now you felt so strongly that something illegal had gone on----

Dr. Christensen. Yes.

Mr. Hutchinson (continuing). That this was not explainable, other than foul play, that you eventually wrote a letter to the FBI. Is that correct?

Dr. Christensen. I did contact the FBI later in November of 1993, I wanted to tell them it seemed to me that the investigation was stalled and they needed to do something, either declare the nurse was innocent or declare the nurse was guilty, or something.

I went and approached them about this and also offer my services if they needed some medical input into this situation. I was very concerned because a year had passed by and no decision was made, and of course you can't have a registered nurse forever on nonpatient care activities. We had to make a decision one way or the other, and they were to figure that out.

Mr. Hutchinson. When you raised concerns about the lack of whistle blower protection and breaches in confidentiality and that the system had really failed, and implied that there had been retribution or recriminations against you, can you expand on that? Exactly what communications did you give to law enforcement, and what kind of recriminations, if any, were brought against you?

Dr. Christensen. Okay. My contacts were with the OHI in October of 1992, and then repeated contacts by mail with the Inspector General's Office in February of 1993 and again in May of 1994. My only other contact with the FBIis as I have already described. Over that period of time it seemed like nothing was being done.

Mr. Hutchinson. Can I stop you? When was your first communication? Because you gave several dates there.

Dr. Christensen. My first communication with the Inspector General was with Dr. Connell in Kansas City in October of 1992.

Mr. Hutchinson. October of 1992?

Dr. Christensen. Yes.

Mr. Hutchinson. Then go ahead. I am sorry.

Dr. Christensen. Then I wrote letters to Mr. Trodden in February of 1993 and again in May of 1994, specifying problems and specifically what I anticipated or expected was the obstruction of the process.

Also, at that time (May of 1994), my boss, Dr. Dick, who was Chief of Staff, was being demoted. From my perception this demotion was in direct response to Dr. Dick taking a step which I interpreted to be a violation of his superiors' directives. This violation was to have me speak to the regional site team and deliver the quality assurance.

This presentation was important because, the data that I had developed with QA was protected as confidential by the hospital as quality assurance data, and this was the damning data.

Even at that late date, the official position of the hospital was that this data was protected as confidential information and not to be revealed to anybody, including the FBI.

Mr. Hutchinson. Maybe I missed it. Do you feel that there has been retribution or you have been punished in any way because of your dogged pursuit of this whole case?

Dr. Christensen. I feel like I labor under a tremendous atmosphere of problems. There are a series of situations where I thought I was being threatened.

The most threatening or intimidating to me was when I had proposed to communicate to the State Board of Nursing that the nurse had been associated with these deaths. I felt a moral dilemma. I thought there was murder and I thought the nurse was a danger to other patients and I was not able to communicate this danger to the people who needed the information to deal with it.

When I proposed to inform the State Board of Nursing and Mr. Kurzejeski received my proposal, Dr. Dick came downstairs to my office. Dr. Dick was literally ashen and trembling and said that Mr. Kurzejeski intended to destroy me, not only my career in the VA but my professional career as a physician, if I proceeded with my proposal to contact the State Board.

I felt further intimidation several days later when I received a letter from Mr. Kurzejeski indicating that not only was the VA upset about this but the FBI was upset about this and the Inspector General was upset about this, that I had proposed to make this particular communication. It seemed, from my perspective, the whole world was coming down on me.

In the fall of 1992, the hospital recruited a new Chief of Medicine (Dr. Bauer). Out of the blue one day; in the spring of 1993, he stated that he was going to "get me" for reasons I never fully understood. And then later on, (after he became the Chief of Staff) about a year and a half later (December 1994), I proposed to present the investigation into the deaths on 4 East at a professional meeting because it seemed to me that the VA refused to deal with this problem on an honest basis and I wanted the problem to be addressed. At the time the new Chief of Staff called me into his office and proceeded to tell me that if I made this presentation, it would be taken very badly for me.

Subsequently, for the first time in my professional career, my conduct as an investigator, scientist, and as an administrator was called into question. Never before had I received such questions. Of course, that was after I had already gone public with my complaint of obstruction.

Mr. Hutchinson. I have before me a memorandum from the former director of the medical center to you. I want to quote from that and get your response to it. It is to you through the chief of staff.

"I have been informed that a signed copy of the letter that you said you would not send was, in fact, sent to the Federal Bureau of Investigation, who faxed it to the Inspector General's Office, who faxed it to the region, et cetera, et cetera. Needless to say, I am very disappointed. The memorandum you sent to me was marked 'confidential.' Any confidentiality intended was certainly breached when copies were sent by you to others inside and outside this hospital," and then quoting at the conclusion of the memorandum, "You should, therefore, refrain from further contacts with the FBI and IG about this case. If you are contacted directly by either the FBI or IG, you should inform me of the content of your discussion."

Do you recall that?

Dr. Christensen. Very well so. I was devastated by it. For one thing, that doesn't--what it doesn't clarify is that the FBI requested the letter.

What happened was I spoke with Dr. Adelstein, who was the Chief of Pathology Service and also the Deputy Medical Examiner for Boone County, and he said, "Well, if you do this, you might be interfering with the FBI investigation into the place where this nurse had subsequently gone to. You better let them know what was going on."

I called the FBI and explained what I was doing, and I explained that I had written this letter. I said, "Would you like to see it?" And he said, "Oh, we want very much to see it." I said, "Well, I have got the fax machine here. Would you like me to fax it?"

Now, I did it thinking that if the FBI was conducting an investigation of a murder in the hospital, there really wouldn't be anything confidential from the hospital that the FBI shouldn't have. Why keep information from one from the other? The FBI was doing a murder investigation for the hospital. There shouldn't be any difference in confidentiality between these two constitutions.

So I gave the FBI the letter so they would have an opportunity to know if I was doing something wrong.

Then when I received that letter back, it seemed to me that the entire Federal bureaucracy was down on top of me and I had to shut up. I did shut up. It thoroughly intimidated me.

I will let you know, too, that this is a very difficult situation for me to deal with, because there is reason to think that subsequent injury might have occurred and perhaps it might have been prevented if I had gone ahead and contacted the State Board of Nursing. There is now some interest in the fact that there are additional deaths at another health care facility, and perhaps it was because this information wasn't communicated.

Mr. Hutchinson. Mr. Edwards.

Mr. Edwards. Thank you, Mr. Chairman.

Dr. Christensen, I will not have enough knowledge today of the facts to know whether someone committed a crime or not.

I am not sure if I can agree that you can go from statistical analysis to an assumption that somebody is guilty. The statistics of any of us being alive in this room today are one in trillions, if you want to work out the calculations. The statistical analysis of my being elected a Member of Congress is probably about 1 in 300,000. There are that many adults in mydistrict. Yet I am here.

Having said that, I have great admiration for what you have done, because while statistical analysis, in my mind, doesn't convince me of someone's guilt, it certainly raises a question and a red flag, and had I been in your shoes, I hope I would have had the courage to do exactly what you did to raise that flag.

Dr. Christensen. Thank you.

Mr. Edwards. And despite my frustration at not having enough knowledge to determine at the end of the day what exactly happened, if the FBI can't figure that out in 2 or 3 years, I am not sure I can do it in 2 or 3 hours of hearings.

Despite that, I would say that we need more Federal employees that have the courage that you have had to come forward and put up with all the problems you have had to face.

Not knowing whether there was guilt or innocence in this case on behalf of the nurse that we have talked about, I guess I would just say one of my greatest concerns systematically is that of whistle blower protections. I would like to ask if, as a follow-up to this hearing, if you want to put in writing any additional specific suggestions of how we could do a better job protecting individuals such as yourself who do have the courage to come forward.

Whether your ultimate conclusion is right or wrong isn't important to me today. It is the fact that if there is a red flag out there, if there is a question mark, employees ought to be encouraged to come forward, not discouraged.

And I hope we could also get from you more information about the specific threats that have been made against you, and I hope this committee would pursue those specific threats.

But you are going to have to be very specific to us. We can't indict somebody in the VA system because you generally felt they were out to get you. If there were specific statements made to you or someone else, I would like to know about that, and I would like this committee to pursue that.

In addition to my concern about seeing that we have stronger whistle blower protections, I have some questions about the IG's actions in this case. Why did they delay this so long? And secondly, was their conclusion warranted that there was no effort to cover up?

It appears that at least there is some evidence to suggest that the VA personnel leaders involved did not pursue this as aggressively as they should have.

So those are just some points I wanted to make.

I guess I would like to ask you a question.

You are not suggesting that we ought to presume someone is guilty of a crime based on statistical analysis. Is that correct?

Dr. Christensen. No, no, not at all.

Mr. Edwards. I want to be clear on that.

Dr. Christensen. My concern is that VA employees at all levels, and not just mine but lower, should feel like they can properly approach a legal official, police, FBI, without fear of recrimination if they believe there has been patient abuse, specifically murder. That is all it is.

We do not know that there was specifically, absolutely murder committed in a criminal sense. I think from a medical, epidemiologic sense there is no question about it, but from a legal sense that is entirely different.

But the question really before us is whether or not hospital care workers should have the freedom to inform police authorities when they believe, in good conscience, in good faith, that patients are at risk.

Mr. Edwards. And I absolutely agree with you on that, and if there are some weaknesses in our whistle blower protection laws, I would like to be part of changing and strengthening those.

I was involved in drafting the legislation in Texas. We have had the same problem there. Somebody that did his duty was an honest whistle blower, and, in fact, his allegations turned out to be true. He was awarded by the court millions of dollars, and the State legislature in Texas has refused to pay him. That has put a cold chill upon anybody else who is out there wanting to do what they think is the right thing to do.

The next question: Do you have confidence that the FBI investigation of this matter is proceeding objectively and thoroughly?

Dr. Christensen. I have high faith in the Federal Bureau of Investigation. It has a tremendous reputation, and my dealings with them have been very nice. They have been extremely polite to me and very nice.

I have heard some things which suggested that the things didn't go right for them, but it is only things passed on to me. I have no firm, objective evidence that there was any problem.

Mr. Edwards. Okay.

Dr. Christensen. It would be difficult to prove in the circumstances that it came up.

Mr. Edwards. My time is up. Thank you, Jim.

Mr. Hutchinson. Mr. Volkmer is not a member of the committee but he represents Columbia, MO, and the Medical Center there and we would welcome you to the panel today. And, Harold, you are certainly invited to participate. You are recognized if you have questions.

OPENING STATEMENT OF HON. HAROLD L. VOLKMER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MISSOURI

Mr. Volkmer. Thank you very much, Mr. Chairman.

I wish to first commend you for holding these hearings. I am sorry I was not able to be here at the beginning. As you may or may not know, my wife is very seriously ill, even though she is home at the time, and I am not probably going to be able to stay. It depends on how long this lasts whether I stay through the full hearing or not. But she didn't have a good night last night. So I was a little delayed getting in.

I also want to welcome Dr. Christensen for being here.

I would like to ask a few questions because I can go back in my mind as how I saw this develop basically, mostly in the media, when it was first brought to my attention, et cetera.

When did you first bring this to the attention of Dr. Kurzejeski?

Dr. Christensen. On September 2, 1992.

Mr. Volkmer. And at that time, what was his immediate response? Well, first of all, who was present? Was Dr. Dick present at the time?

Dr. Christensen. No. Dr. Dick was on annual leave. I don't offhand know all the people who were present. There is an acting Associate Director Nurse who is not the one who is in the report but a substitute for that one. I believe Neva Berkey is her name. Dr. Simpson, who----

Mr. Volkmer. Well, Dr. Kurzejeski is the important one anyway. So go ahead.

Dr. Christensen. Right.

Mr. Volkmer. Tell me exactly what his reaction was.

Dr. Christensen. He was very cool. He didn't react one way or the other. He took it under advisement and told us to keep it quiet, that he would be the one to make the decision about reporting and he had to think about it. It surprised me because I would have thought that somebody would be extremely angry at even the prospect that someone would come in and murder patients in a hospital. My response would have been anger but he wasn't. He was very cool and collected.

Mr. Volkmer. Now, I don't want to jump around too much. I am trying to keep this in the time frame. Later on, there was a question as to your statistical analysis; is that correct or incorrect?

Dr. Christensen. The work was sent off to Health Services Research and Development in Ann Arbor. It was sent off on the 24th. Then on the 29th a memorandum was generated saying that there were a series of problems with the material.

Two things disturbed me. One was that they said, send us everything you've got now. I literally picked up everything I had and sent it to them. It was not a research report. It was not anything. It was just a series of documents and charts and tables with no explanatory material.

Mr. Volkmer. No explanation from you at all?

Dr. Christensen. Right. It was criticized as if it was the final product. What bothered me was that no one called me to ask, "can you explain what you did here." "Why did you do this?" "Did you notice you did this?" "What does this mean?" There was nothing like that. Instead, there was a white paper put out the next day, actually technically the day before, stating that the work was flawed and that was all.

Mr. Volkmer. Didn't you--wasn't there another team or group that came to the hospital?

Dr. Christensen. Yes. That was the regional site team and they came down just a couple of days later to provide an official review. That was the group that I was specifically told was coming down to review the information and make the decision to report the nurse. That was the reason they were coming down. I was told that very, very specifically.

But when they came down, I was told I was not on their agenda. They would not review the quality assurance information, and that was it. I told Dr. Dick, "look, you can't do this; if you do this, I am going to go across the street and I am going to tell the police and the FBI; you can't this." So he went back and prevailed upon the committee to have me present.

Mr. Volkmer. Let me interrupt for just a minute, then. So there really was not another review of all the statistical data?

Dr. Christensen. No.

Mr. Volkmer. As far as you know there has never been one?

Dr. Christensen. Well, the OHI began a review in October of 1992. It tookthem 2 years. What I was told was that they kept relooking at it because the numbers wouldn't go away. But they confirmed the basic substance of what I did.

Now, I have also sent the material off for publication. I have recently just gotten a review back, and they accepted it. There is no problem with that. They want me to rewrite the manuscript in a different way, but the basic premise and so forth seems to be accepted.

Mr. Volkmer. Now, were there--I know the deaths in, what was it, Ward 4E----

Dr. Christensen. Right, 4 East.

Mr. Volkmer (continuing). Were unusual numbers to begin with?

Dr. Christensen. Yes, yes. Large numbers. And also it was patients coming in, like I think there was one woman who came into the emergency room for a tube to be changed. They couldn't change it that day so they put her in the hospital overnight and she died suddenly and unexpectedly. There was no real reason. It was a series of deaths like that.

Mr. Volkmer. Right. It is not like somebody is expected to die----

Dr. Christensen. Right.

Mr. Volkmer (continuing). When those things were occurring?

Dr. Christensen. Right.

Mr. Volkmer. Now, during the same time frame, did the total deaths in the hospital drop?

Dr. Christensen. No, no, they did not. The total deaths remained the same. That was an area of concern and confusion. It was not fully explained why that was.

Mr. Volkmer. So your--let me put it this way: At this time, do you feel that, perhaps correctly so, if I may interject, that Dr. Kurzejeski and Dr. Dick were not at all helpful but in fact tried to stymie the full investigation?

Dr. Christensen. I think Mr. Kurzejeski did. Dr. Dick, like everybody else, when he first heard this, was incredulous. He had to work through this himself. He would suggest studies and so forth. One day he actually came down and helped analyze the data. He was amazed. I mean, it was all there, and he believed at that point. And when you see the people believe and understand that there really is a reason to suspect murder, their entire attitude changes.

Then he--what he did was he knew what he was doing as far as his career. If he crossed Mr. Kurzejeski because Mr. Kurzejeski had a terrible history and Dr. Dick worked with him. Nevertheless, Dr. Dick chose patients over his own career, and that is really kind of the crux of the whole situation, is that he chose to do the right thing at the right time.

Mr. Volkmer. Did you ever get a feeling that Mr.--Dr. K, as I always call him, was worried about his own career, something like this happening on his watch?

Dr. Christensen. I didn't have that relationship with him. I can't say.

Mr. Volkmer. You don't know?

Dr. Christensen. I don't know. I can't even speculate.

Mr. Volkmer. All right. Now, as I understand, and you may or may not know--I don't know--is this still under FBI investigation?

Dr. Christensen. That is what I understand, correct.

Mr. Volkmer. Right. That is what they tell me anyway, they are still investigating.

Dr. Christensen. Correct.

Mr. Volkmer. Do you know whether or not--the information that I have is that all 13 of the bodies were exhumed. Is that correct?

Dr. Christensen. That is correct. They exhumed 13 bodies, correct.

Mr. Volkmer. Autopsies were performed?

Dr. Christensen. Yes.

Mr. Volkmer. You don't know what the results were?

Dr. Christensen. I don't know anything about it. I haven't seen anything.

Mr. Volkmer. You don't know what they were?

Dr. Christensen. Right.

Mr. Volkmer. How do you feel at the present time about your status at the VA hospital?

Dr. Christensen. Well, I don't think I likely have much longer there, particularly some people would prefer. It--that--it is a personal bother but I am more concerned about how I think about myself, to be quite honest. I would rather be a failed employee--besides I can always go out and take care of patients and go some place else--if I feel like I have my own integrity.

What I feel bad about is being forced or compromised in a situation where I feel like I am part of a crime or a cover-up of a crime and that is a concern about the possibility of further deaths elsewhere. I just--that just is very hard for me to accept.

Mr. Volkmer. As a physician, the duties that you were performing at the hospital in September of 1992----

Dr. Christensen. Yes.

Mr. Volkmer (continuing). Have those changed to the present time?

Dr. Christensen. No, they have not changed. I was in--in September of 1992 I took care of patients on 4 East. I take care of patients on 4 East still. I was Associate Chief of Staff. I am Associate of Chief of Staff now.

Now, my being Associate Chief of Staff for Research has been called for review. It began this past winter after I became public. It is now requested and set up for a review team to come down to Columbia and review my performance as Associate Chief of Staff for Research.

Mr. Volkmer. All right. But at one time, you were told, who was it, by Dr. K, that the data that formed the basis for your analysis was confidential?

Dr. Christensen. Yes.

Mr. Volkmer. Was not to be reported to the FBI?

Dr. Christensen. That is correct. It was protected as quality assurance information. I didn't know who the confidentiality was for. Obviously, the patients wouldn't be--I think the families would like to know.

Mr. Volkmer. They are dead.

Dr. Christensen. Yes. The nurse has already admitted to the newspapers that he was the subject of the allegations, and that was confirmed by the hospital director in a press conference so there wasn't anything confidential there. It seemed to me that the only thing that was confidential was the fact that it could present a problem for the VA, and I don't think that is the purpose of confidentiality of the quality assurance rules.

Mr. Volkmer. You mentioned one other thing that concerns me. This is getting a little far afield, I know, of the purposes of your hearing but we have got something back home, as we say, that concerns a lot of people. The nurse's identity has now been established; is that correct?

Dr. Christensen. I try to avoid it.

Mr. Volkmer. I am not asking for names. I want that to be very clear.

Dr. Christensen. Yes.

Mr. Volkmer. I know that. But I mean the public now knows it, basically?

Dr. Christensen. Yes.

Mr. Volkmer. And you mentioned something that some deaths had since occurred?

Dr. Christensen. In a nursing home subsequent where the nurse worked, in the first 12 months where the nurse worked, apparently 30 patients died. In the subsequent 10 months after the nurse left, only 6 patients died.

Now, that begins to get into the same pattern we saw in the VA. We get a whole series of deaths when the nurse is there. The nurse goes away, the deaths stop. He goes to another facility and we get a whole series of more deaths. He goes away and the deaths stop. Now, that is just the beginning of the investigation and that is all the information I know, but that obviously is a concern back home.

Mr. Volkmer. Yes. It will be a concern, yes, it is.

Thank you very much, Mr. Chairman. My time has long expired. I appreciate your permitting me to ask questions.

Mr. Hutchinson. We appreciate you being here.

Mr. Bilirakis, you are recognized.

Mr. Bilirakis. Thank you, Mr. Chairman. My apologies for being late. As you know, there is a joint conference over on the House Floor and we substituted for you, Mr. Chairman.

Mr. Hutchinson. Thank you.

OPENING STATEMENT OF HON. MICHAEL BILIRAKIS

Mr. Bilirakis. I have an opening statement that I might ask unanimous consent be made a part of the record?

Mr. Hutchinson. Without objection.

Mr. Bilirakis. Dr. Christensen, I wasn't here for your testimony, and I have already apologized for that so I won't go into any of the details. But maybe from a more generic sense, over the years--and I am one of those people who feels that our veterans' hospitals are pretty darn good. They are not perfect but I haven't seen a perfect hospital yet, whether it be government or private or charitable or whatever the case may be.

But there are problems. There are problems regarding our hospitals and there are problems with other--and this is a health care hearing--but with other veterans' type services, if you will. I think much of those problems, from what we have heard from testimony over the years here, is more of an attitude type of thing on the part of staffs and employees and staffs of those hospitals or those other veterans' facilities.

For instance, we have had testimony that a lot of the employees treat veterans like they are on welfare. They have used those terms every once in awhile, things of that nature, which are pretty darn horrible, but it just happens. And even when they don't communicate that type of language, that is the thinking that many of them have.

I guess I am just wondering generically, this would apply to nurses and I think it should apply, frankly, to physicians and all the way down the line, do we--what sort of a process do we go through, the VA, regarding the making of the decision whether to hire someone? Because every job, in my opinion, is just as important as every other job, all the way down to that lowest level because they deal with veterans and, you know, they can turn off an awful lot of veterans if they go about it the wrong way and be almost as wrong really as this nurse, whatever his or her conduct may be.

[The prepared statement of Congressman Bilirakis appears at p. 103.]

Dr. Christensen. I don't have a whole lot of information on that because that is not my role. I believe there is something like a vetting process for nurses, although it is not as tight for people who get in as contract nurses as opposed to staff nurses but I am not an expert on that.

But if I could back up to what you said earlier, the Harry S. Truman VA Hospital is a wonderful facility and the people there--and I know because I work there--are very caring people. We regularly, and this is literally true, we regularly have patients come specifically to our facility because we are a caring institution. And by far and away, the staff they really do care about what they do. We may not do it perfectly and we may do it slow sometimes and we may not be able to do everything we can, but the attitude of the people is very caring, and people purposely choose to work in the VA because it is probably one of the few places you can really go into altruistic medicine. You don't have to worry as much about, you know, the billing and all those types of things. You can really just take care of people. I would say 99 percent of the people there are superb people and I would not hesitate to be cared for myself in that facility. This is a separate issue but it is a very high issue. It is a management issue. And it does impact upon what we do in particular cases.

My particular concern is not so much that this did happen as that it will happen again. Our inability to recognize the problems that led to this mean that we can't correct them in the future. That actually has been the whole genesis of my approach: Let's fix it. I am not really so worried about that it happened but let's understand why it happened and let's fix it.

Mr. Bilirakis. This is why I went to my questioning, if we could call it that, because I think that is really where the problem lies. I suppose a person can be a mental case and, as history has proven over the years, go on some sort of a rampage after patients or whatever. But the point is, I will worry about attitudes, and I have heard said that many veterans are in the hospital because they are ill because of overdrinking and things of that nature. I mean, it is not my opinion but my point is you do hear these things. And the people who say those things have the wrong idea. They have the wrong attitude in general----

Dr. Christensen. Yes, yes, that is correct.

Mr. Bilirakis (continuing). About the role of the veteran and what the veteran has gone through over the years and that sort of thing.

Dr. Christensen. That is correct.

Mr. Bilirakis. It leads them up to this particular point. So I am not sure really what your role is because I did not hear the first part of your testimony. But, it seems to me that all of us should be greatly concerned that the proper psychological testing, Mr. Chairman, or whatever it takes to keep these things from happening, because as the doctor said, this has happened and it is important, of course, that an investigation is taking place. And somebody else is going to decide whether there is any criminal conduct or whatever the case may be, but our role is to make sure that this sort of thing, along with the other littler things, treatment of veterans and conduct and attitude towards veterans, doesn't continue to happen. And that is why I asked you these questions.

If you have any opinions in that regard, and maybe feel that you don't think you want to make them public and would like to submit anything like that to us here, I would welcome it.

Dr. Christensen. I have some comments at the end of the written testimony about what we could do to make watchdog agencies work and they would address that. I think that would be a big help.

Mr. Bilirakis. Thank you, Doctor.

Thank you, Mr. Chairman.

Mr. Hutchinson. Thank you, Mr. Bilirakis. I assure you that all of your written comments will be included in the record and your suggestions will be taken very seriously.

Let me just go back to the statistical study. Your review and your data in which you came up with the statistical probabilities of this happening by chance, those deaths occurring, that spike in deaths occurring on the shift of one particular nurse. The OHI, when they investigated and reviewed this, did they confirm your results?

Dr. Christensen. Yes.

Mr. Hutchinson. So this was not just your statistical study? This has been confirmed?

Dr. Christensen. Right, right. They confirmed it and then they sent to an external biostatistician at Penn State and the external biostatistician rechecked everything and he too confirmed it.

I think the actual numbers of the OHI were virtually identical to mine. The biostatistician used a slightly different variation on the statistical tests and basically came up with the same set of numbers.

Mr. Hutchinson. As I understand it, basically, you did this study, you did this review and you came up with this what to you was an overwhelming statistical case that something bad was going on.

Dr. Christensen. Right.

Mr. Hutchinson. You felt morally compelled to get law enforcement involved in this.

Dr. Christensen. That is right.

Mr. Hutchinson. You were specifically told by the director, don't talk to the FBI?

Dr. Christensen. That is correct. That is correct, absolutely correct.

You see, part of the problem is that I am a scientist. I am an epidemiologist. These are very real numbers. They are numbers by which all physicians practice medicine. In the some 20 years I have been in science and medicine, I have never seen data this abnormal, this striking. This is the most bizarre situation I have ever seen.

Mr. Hutchinson. This was an issue of morals and ethics?

Dr. Christensen. Yes, very much so. Where I got guidance for it was, when the director was refusing to report, I went to my minister. We sat down and I talked to him. He was one of the few people that I actually revealed this situation to. We discussed it. He said, "Well, this is horrible; you have to take a stand." I feel like I now have to take a stand and that gave me a lot of strength.

Mr. Hutchinson. Now, you are a tenured professor at the medical school; is that correct?

Dr. Christensen. Yes, that is correct.

Mr. Hutchinson. As I read the OIG report and the various reviews that were done, I see very little about the role of the medical school in all of this. Were they passive? What was their attitude toward what you had discovered?

Dr. Christensen. In October, I understand Dr. Dick has told me he briefed the Dean in detail on this. Later on that winter, I briefed the Dean of the medical school in detail on this. Well, not in detail. I briefed him on it and described the problems.

Now, I assumed that he knew what was going on; that he was involved; that he was taking steps. I wasn't going to go and tell him. I assumed that everything was fine.

To my surprise, we didn't discuss it in the hospital. We didn't discuss it in the university or the VA. There was no staff meetings, no faculty meetings. Nothing was said about it even though a graduate student, in essence, a house officer, had been brought up before this board and charged with making a false allegation or a flippant allegation.

Later on, when this was brought up in the meeting, looking at the confirmation of the new Chief of Staff, I brought up the fact that this had not been addressed. I passed out the OHI report and said we really need to take a look at this. The Dean at that point passed over it. The minutes of that contact were not communicated in the minutes of the Dean's committee meeting. The fact that this occurred just doesn't appear. There is a sense of no involvement of the university in this at all, which to me is wrong. I mean, the university is critically involved with the conduct of that hospital.

Mr. Hutchinson. Do you have any feeling as to why they were less concerned, or at least your impression was there wasn't a lot of concern there?

Dr. Christensen. Well, I have no real data. I have a guess, sure, but some people would say I am a conspiracy theorist or something. I have no real data.

Mr. Hutchinson. Now, on the staff, was this commonly talked about? I mean, I read in the report that the nurse was called the "crash cart kid."

Dr. Christensen. Right. The report doesn't provide all the information because there is a lot of controversy about this gentleman. Like in many other situations, he was very skilled. He was talented. There are a lot of people who thought he was really good. There was a lot of controversy. Some people felt very strongly that he was involved. Some people felt very strongly that he was being fingered unnecessarily. So there was a lot of discussion both ways on the ward at this time.

Subsequently, there has been a lot of discussion and whispering in the hospital. What you see before you is not just one person but what you see before you is a large number of people hoping, through me, to express our concern. The hospital itself is very concerned about it. The hospital staff is very concerned about it.

Mr. Hutchinson. Let me return to the issue that Harold raised concerning the autopsies. There had been autopsies after the exhumations by the FBI. But were there any autopsies performed at the time of death prior to that?

Dr. Christensen. I understand there was some. I don't know how many. I understand also some materials were preserved and sent off. I don't have any particular facts about that because I was never involved in that aspect of it, but I understand that something was done.

Dr. Adelstein, who is the Chief of Pathology Service, did come with me here so if there is some questions about that I am sure he would be delighted to answer them.

Mr. Hutchinson. Okay. Well, the FBI has been now involved since 1992, it is better than 2\1/2\ years. I know the FBI and their labs have been stressed with the bombing in New York City, the Oklahoma City bombing, the incidents in the West on the train wreck, and so forth. But I have expressed my concern to the Director that this receive a high priority and that the conclusion of those toxicological tests and the forensic tests, that we see that very soon or that they complete their role in it.

Now, Dr. Christensen, do you reject the idea or the conclusion, I should say, of the OIG report that basically there was no cover-up, that there were a lot of mistakes made but it could all be explained by dysfunctional management? Do you reject that and believe that there was more going on?

Dr. Christensen. Yes. Yes.

Mr. Hutchinson. Can you kind of just expand on why you reached that conclusion?

Dr. Christensen. Why there was a cover-up?

Mr. Hutchinson. Why you concluded that it cannot be explained by dysfunctional management; that there was a conscious, deliberate, I guess for lack of a better word, a cover-up or at least an effort to obstruct the investigation.

Dr. Christensen. Yeah. Just a second. Let me--this is probably the best way to set it up.

This is in December of 1994. I approached the Chief of Staff about presentingthis information in public so that we could publicly discuss how to handle these problems and develop policies and procedures because this had never been done. And this is what the Chief of Staff told me and I documented it in a memorandum.

The conclusion of the Department of Veterans Affairs regarding this affair, the deaths on 4 East, is that there is no conclusion. No comment can be made with the available data and therefore no action can take place. The position of the Department of Veterans Affairs is that nothing worthwhile can be accomplished by publicly presenting this material. Since nothing can be gained by presenting this information, the Department of Veterans Affairs does not want this issue publicized because it will only cause unnecessary damage to the public image of the department. Therefore, the department will not authorize a presentation of this material by an employee of the department. Violations of this directive could be cause for reprimand and possibly further action.

And then verbally, not communicated in the memorandum, because I didn't think he would sign his name to it, he also warned me that if I nevertheless went ahead and presented the data, if I took it upon myself as an individual, as a private individual, my VA superiors would look very harshly upon this action.

I consider that a cover-up and I consider it a very dangerous because, one, it doesn't let the families know. It deprives information from them. And, two, it means we can't do anything about it. And there is no--as far as I could tell, no change in policies, procedures, anything, either locally or system-wide, that would address this type of issue, which was a concern because this appears to be the fourth time this has happened in the VA hospital.

Mr. Hutchinson. What were you quoting from, Dr. Christensen?

Dr. Christensen. That was a memorandum that I wrote up describing my meeting with the Chief of Staff. I wrote it up after he came and counseled me. That is what he told me. So I wrote it down and I gave it back to him. He signed off that that was what he told me.

Mr. Hutchinson. That is your memory of the meeting and he signed off on that?

Dr. Christensen. That is correct. What happened was he called me up to his office. He told me that. I went down to my office, wrote it all out and brought it back up to him. He and the current Hospital Director both signed off saying this is correct instructions that they had given, although they wanted to emphasize that it was not the Department of Veterans Affairs' opinion. It was their own opinion, the Chief of Staff and the Hospital Director.

Mr. Hutchinson. Thank you. Mr. Bishop, do you have questions?

Mr. Bishop. Not at this time, Mr. Hutchinson.

Mr. Hutchinson. Do any other members of the panel have other questions for Dr. Christensen?

Well, let me say, before we dismiss you because I have not complimented you, I want to associate my remarks with Mr. Edwards. I think you are to be commended for your dogged pursuit of this, and I know it could not have been easy and that you have certainly faced a lot of criticism for the actions you have taken, and in my estimation, whether I agree with everything you have alleged or not, or whether I have yet concluded on all of those allegations, that you are a hero and that, had you not been so determined and resolved in bringing this to light we might not have law enforcement involved in this today on this investigation. So I certainly commend you for that, and thank you for your testimony today. And I also would remind you----

Mr. Volkmer. Mr. Chairman.

Mr. Hutchinson. Yes. I will recognize you in just a moment, Harold.

Mr. Volkmer. All right.

Mr. Hutchinson. I also would just like to say that should there be--or should you feel that there are any reprisals or punitive actions taken because of your testimony today, that you should notify the committee. We would like to be aware of that.

Dr. Christensen. Thank you, sir.

Mr. Hutchinson. Mr. Volkmer.

Mr. Volkmer. Yes. Where does the Director of Nursing, at the time, back in 1992, fit into all of this?

Dr. Christensen. Well, she shouldn't and that was a concern about the OIG report. Until the OIG report released their report, it never even crossed my mind that she would be a part of this. The woman is a very nice woman. She was only in an acting position. Now, something happened to her after all of this and she was reduced in her position. She filed an EEO complaint. The EEO came and interviewed me about this because I had written a letter in support of her saying that I thought she had done a very good job and I didn't see any problems with her performance at all. I thought she had a very good performance.

Because of my letter, he came and interviewed me. He said at the end of it, what do you know about how she was responsible for the poor medical care in 4 East? I said, "4 East? Are you talking about the deaths on 4 East? She had absolutely nothing to do with it." And she didn't. I thought she handled it as well as she could. She is not a trained epidemiologist. She was just in an acting position and I thought she actually did a very exemplary job of handling it. I was shocked when I saw what the OIG wrote.

I must say for physicians, nurses, our stock is our reputation. That is all we have. And although it may not seem like much to you, but to have publicly said that you have done terrible things or you have contributed to the abuse of patients, that is horrible. I mean, that just destroys you.

The former Chief of Staff (Dr. Dick) is totally demoralized. This particular woman is totally demoralized. This is just a terrible thing to come out. And at the same time, knowing that the higher officials were not criticized at all when they are the ones who were imposing these things, this is just very bad and that is where a lot of the--where a lot of retribution comes in, I think.

Mr. Volkmer. Could I ask one additional question?

Mr. Hutchinson. Without objection.

Mr. Volkmer. I may be going back over old stuff, but at the present time what is your relationship with the new Director and Chief of Staff?

Dr. Christensen. I have a very poor relationship with the Chief of Staff. It is always cordial but extremely poor, essentially a nonfunctional relationship. My relationship with the Director is that he is a very nice person, and I--I work very well with him. Unfortunately, the times in the past when this has come up, he has failed to take action.

Specifically, when the OHI draft report was released in September, he asked me to come up and to advise as far as a response to that, and I came up, and I said, look, now that it has come out, it seems like this confirms. Why don't you go--we need to tell this to the families what happened. We need to go ahead and do some policies and procedures to prevent this from happening again, and you need to take a look at what happened to people, particularly this young intern who was called up before this board and read a letter of counseling or whatever when actually he really did the right thing. He saw something terrible and reported it. He didn't do it perhaps in the right way but he noticed there was at least some problem. You need to address this and make sure at the VA if this ever becomes public that we did the right thing and we responded to it. And there was no response from the Director.

Mr. Volkmer. And so right now, that is why you say you don't know how much longer you are going to be in your present position, et cetera?

Dr. Christensen. Yes, true.

Mr. Volkmer. That is what leads you to that?

Dr. Christensen. Yes.

Mr. Volkmer. What is your feeling about--if you look at the total VA hierarchy and the strata, the regional office, headquarters up here, how do you feel?

Dr. Christensen. It is very autocratic. I think it creates a lot of buffers between me and you, basically. I mean, yesterday I was making rounds on 4 East. Now I am here. Between me and you is all of these layers of bureaucracy and they kind of, I think, twist the meaning of things and buffer you from me, is what I think. I think it is very difficult for them to admit that a mistake was made, particularly a mistake of this magnitude.

Mr. Volkmer. Thank you, Mr. Chairman.

Mr. Hutchinson. Thank you. Do any other members of the committee have questions before we dismiss Dr. Christensen?

If not, thank you, Dr. Christensen. We appreciate your testimony.

The chair now recognizes our second panel of witnesses.

Our first panelist is Mr. William T. Merriman, Deputy Inspector General of the Department of Veterans Affairs, accompanied by Mr. Jack Kroll, Assistant Inspector General for Departmental Reviews and Management Support.

Thank you, gentlemen, for coming. It is my understanding that Mr. Merriman is going to testify. You are recognized.

STATEMENT OF WILLIAM T. MERRIMAN, DEPUTY INSPECTOR GENERAL, DEPARTMENT OF VETERANS AFFAIRS, ACCOMPANIED BY JACK H. KROLL, ASSISTANT INSPECTOR GENERAL FOR DEPARTMENTAL REVIEWS AND MANAGEMENT SUPPORT, DEPARTMENT OF VETERANS AFFAIRS

Mr. Merriman. Mr. Chairman, I would like to thank the subcommittee for the opportunity to discuss my office's work related to the unexpected deaths at the VA Medical Center, Columbia, MO.

During the past 3 years, my office has expended over 6,500 staff hours reviewing various events related to the unexpected deaths. For example, my Office of Investigations is involved in an FBI-led case to determine if these patients were harmed and, if so, by whom. The investigation is ongoing.

In response to a request from VHA's Central Region, my Office of Health Care Inspections conducted an analysis that confirmed a statistical relationship between the deaths and a particular nurse. The statistical analysis determined that there was less than a one-in-a-million probability that association between the presence of the nurse and the deaths was caused by chance.

My office also reviewed allegations that VA officials failed to respond adequately to information concerning the deaths and tried to cover up the matter. While the initial allegations targeted the former director of the medical center and the VHA Central Region chief of staff, others, including the current medical center management team and my office became subjects of the allegations.

While our review of these allegations concluded that medical center and Central Region management did not intentionally suppress information in an attempt to cover up the deaths, we did determine that the management team in place at the medical center when the deaths occurred was "dysfunctional" and unable to work together to respond effectively to an "out of the norm" situation.

Even though we found no evidence of criminal misconduct, judgmental errors made by management in responding to the unexpected deaths were significant. For example, in our opinion the nurse should have been relieved of patient care duties at least 2 months earlier, and medical center top management should have reported the suspicions about the nurse's possible involvement in harming patients to law enforcement authorities.

In our view, the three top medical center managers share the responsibility for not relieving the nurse in question of patient care duties in a timely manner. These three managers plus the VHA Central Region chief of staff must share the responsibility for their decision not to report the incident to law enforcement authorities.

Because the director and the VHA Central Region chief of staff are no longer employed by the VA, we recommended appropriate administrative action and training for the two remaining employees for their role in not responding to the unexpected deaths in an appropriate and expeditious manner. We also made a systemic recommendation to refine VA policy guidance to better guide managers in handling and reporting incidents like this should they occur at another VA medical center.

I would like to address two other issues concerning this matter. First, there remains the question of whether or not the nurse should be reported to the State Licensing Board. Even though the nurse no longer works for VA, the current medical center director is coordinating this issue with appropriate VA legal staff to determine if anything can or needs to be done at this time.

The other issue deals with allegations concerning the conduct of OIG staff with respect to overseeing the various aspects of the unexpected deaths during the past 3 years. Of particular concern to me is the allegation that the OIG failed to protect the identity of Dr. Christensen. I can assure this subcommittee that we take the confidentiality of our complainants seriously. We have carefully reviewed the allegations made by Dr. Christensen and the applicable law relating to the confidentiality of employees who bring complaints or information to the IG. Although there were two instances where a contact by Dr. Christensen was brought to the attention of VA, neither involved a situation where Dr. Christensen had brought a complaint or information to the IG. Our internal review found that there was no disclosure by the OIG of Dr. Christensen's identity with respect to the allegation of a cover-up.

I am aware of Dr. Christensen's dissatisfaction with our report. It is not uncommon for a complainant to be less than satisfied with the results of an OIG review, especially when the allegations are not fully substantiated. I regret that Dr. Christensen feels this way, but I can assure you that our report represents a comprehensive and objective undertaking designed to fully understand the entire sequence of events surrounding the unexpected deaths. This was an extensive review in which a total of 75 interviews were conducted of over 50 individuals. Many of the interviews were tape recorded under oath. We drew what we believe to be the most balanced set of conclusions from often conflicting testimony.

In closing, I would like to express my opinion that the top management team that is currently responsible for the Columbia VA Medical Center seems to work well together and should be able to respond effectively to serious incidents should they occur in the future.

This concludes my statement. I will attempt to answer any question you may have. Accompanying me today is Jack Kroll, my Assistant Inspector General for Departmental Reviews and Management Support. I have asked Jack to assist me in responding to your questions because he was directly responsible for overseeing completion of our review of the allegations.

Mr. Hutchinson. Thank you, Mr. Merriman. I will ask the questions and then I will let you decide whether you--who wants to give the response.

Mr. Merriman. Yes.

[The prepared statement of Mr. Merriman appears on p. 130.]

Mr. Hutchinson. In October 1992, officials at the Veterans Health Administration Central Region asked the Office of Health Care Inspections to review concerns about a possible excessive death rate on one ward, expressed by managers at the Harry S. Truman Memorial Veterans Hospital in Columbia.

How long did it take your office to initiate this review or how long did it take the OHI to initiate that review and how long did it take to complete it once it was initiated?

Mr. Merriman. It took 2 years to complete it.

Mr. Kroll. Mr. Chairman, the review was initiated almost immediately. Dr. Connell went out to Kansas City and met with the individuals involved in mid-October and then his biostatistician, Margaret Young, became involved in the review. It did take, as Mr. Merriman explained, 2 years to complete.

Mr. Hutchinson. How long did it take to complete, 2 years?

Mr. Kroll. Two years. We issued our report on September 28, 1994, and we started the review in October of 1992.

Mr. Hutchinson. So you are saying that the allegations, that there were several months in which the--the request was not taken seriously, that that is not true; that you immediately responded by sending somebody to the hospital to begin the investigation?

Mr. Kroll. Oh, yes. Dr. Connell was out there in October of 1992 and met with Dr. Christensen, Dr. Dick, and he also met with the FBI. Our criminal investigative staff was also on-site in October, early October 1992.

Mr. Hutchinson. All right. This was the initial investigation regarding the statistical studies, right?

Mr. Kroll. It was.

Mr. Hutchinson. And does it normally take, did you say 2 years, before the report was issued?

Mr. Kroll. Yes, sir.

Mr. Hutchinson. So we have a case in which there were serious allegations of management shortcomings involving multiple patient deaths and it took us 2 years to get a statistical confirmation and verification of what Dr. Christensen had done?

Mr. Merriman. The statistical work did take 2 years. At that time, the FBI was already investigating the circumstances at the medical center. Dr. Connell was asked to validate some of Dr. Christensen's work. Dr. Christensen's initial analysis resulted in the nurse being taken off of the ward. That is of great credit to him. He made that happen.

There was some question in the mind of the Central Region as to the validity of the statistics. They had a Central Region statistician take a look at it, and then Dr. Connell made a more comprehensive review. He looked at what Dr. Christensen did, what the Central Region did and then he extended the analysis to look at death rates beyond the time in question. Once he derived his results, he confirmed them with a statistician from Penn State University.

Part of the problem was Dr. Connell took a different approach. There are many people who have looked at this in different ways statistically. Peg Young, on his staff, used a statistical technique called "time series analysis" which is generally used in the commercial world. All in all, it took us much longer than we would have liked but there were some reasons for this.

Mr. Hutchinson. Okay. The impression that you are giving me is that you just jumped right on this thing. But in--this is the second report?--yes, in the most recent OIG report, you state, on July 21, 1994, the hotline and special inquiries division formally referred the complainant's letter to OHI for action.

Now, that would be several months--that would be many, many months after.

Mr. Kroll. Mr. Chairman, I would like to clarify that. We are talking about apples and oranges. What we were initially talking about was Dr. Connell's review, the blue covered OIG report. That review was triggered by Dr. Falcon, the regional chief of staff, asking us to validate Dr. Christensen's statistical data.

Later on, in February of 1993, Dr. Christensen sent the IG, Mr. Trodden, a letter alleging a cover-up. This was the first time that we were aware of the cover-up allegations. The alleged cover-up is the issue that is addressed in my report, my September 28, 1995, report.

Mr. Hutchinson. Okay. It did take 2 years to complete this?

Mr. Kroll. It did take 2 years for us to respond to Dr. Christensen's February 1993 letter, which is longer than it should have.

Mr. Hutchinson. You stated in your investigation that there were 75 interviews that were conducted. I think in Dr. Christensen's testimony, he says that the OIG report does not refer to the following statement reportedly made by the chief of staff for the Central Region to the former hospital director when informed of the suspicions of murder on September 3, 1992. And Iquote, "the last time I was called about a problem like this we fired the director and the chief of staff. Are you sure you want to continue this discussion?"

Did you, in your investigation, attempt to verify that statement? Was that included among those reviews, those interviews?

Mr. Kroll. Yes, we did.

Mr. Hutchinson. So you found no evidence that the statement was made?

Mr. Kroll. Differing opinions. We found what we thought was a neutral third party who was there during the conversation, and she did not remember those words being said.

Mr. Hutchinson. And for that reason none of that was included in the report?

Mr. Kroll. No. Because of the conflicting testimony, we did not include that issue in our report. We did include that statement in our review.

Mr. Hutchinson. The autopsy issue, some of the deceased patients have been exhumed. How many were exhumed, is it 13?

Mr. Kroll. 13 is the number.

Mr. Hutchinson. Those were all from deaths on Ward 4E; is that correct?

Mr. Kroll. Yes, during that period of time, March to August of 1992.

Mr. Hutchinson. How many autopsies were performed on patients who died on 4E prior to the FBI getting involved in the exhumations? At the time of their deaths, how many autopsies were performed; do you know?

Mr. Kroll. My understanding is that there were 14.

Mr. Hutchinson. And did the VA preserve samples obtained from results of those autopsies?

Mr. Kroll. My understanding is they did not.

Mr. Hutchinson. And so the FBI was not given any--obviously no samples, but any of the information of the results of those autopsies?

Mr. Kroll. That is what we were told.

Mr. Hutchinson. That they do have that, or they do not? Was that information conveyed to the FBI?

Mr. Kroll. The----

Mr. Hutchinson. The results of those autopsies.

Mr. Kroll. I am not sure.

Mr. Hutchinson. Okay.

Mr. Kroll. I am just not sure.

Mr. Hutchinson. If you could provide the committee that information, we would be appreciative.

Mr. Kroll. We will do it.

[The information follows:]

Responsible Medical Center officials have informed the OIG that the autopsy results are filed in the patient's medical record. The FBI obtained the original medical records for all the patients who died on Ward 4 East during the period of time in question. Therefore, the FBI has the autopsy results for the patients who died on Ward 4 East in mid-1992 and were subjected to an autopsy.

Mr. Hutchinson. At pages 20 and 21 of the IG's report, on page 20, we are told, January 28, 1993, the former medical center director wrote a letter to the special agent in charge of the FBI investigation stating his intention to return Nurse H to a direct patient care assignment by February 15, 1993, unless the FBI had any additional information which would negatively affect this decision. A day later, January 29, a representative of the under secretary for health instructed the former medical center director that he was not to return Nurse H to patient care duties without the approval of the under secretary's office. And from that, Nurse H never returned to patient care duties while employed at the medical center.

Should these events involving Nurse H trigger the reporting requirement to the State Licensing Board under 38 CFR section 47.2, which states that the VAhas a mandate to conduct a program to report to the State Licensing Board any separated licensed health care professional who was fired or who resigned after serious concerns about such individual's clinical competence had been raised but not resolved.

You touched upon that in your opening.

Mr. Merriman. That is correct, Mr. Chairman.

They had an obligation to conduct a review, to make a determination whether or not to report to the State Licensing Board. The medical center did not do that. The director should have conducted a review that would have included sworn testimony and a determination as to the reportability to the State Licensing Board. That, I believe, is the requirement.

That wasn't done. We think that review should have been done. I believe that is what is required under the law and regulation.

Mr. Kroll. As you know, we had requested a formal opinion from our Office of General Counsel on that very issue because we wanted, if anything, to err on the side of patient safety vis-a�AE1-vis just meeting some reporting requirement, and they have provided an extensive opinion on that issue.

Mr. Hutchinson. The counsel's opinion--basically, I am paraphrasing, but they basically said they were under no requirement to report to the State Licensing Board. Is that correct?

Mr. Merriman. They needed to make a determination as to where there was a significant increase in deaths.

Mr. Kroll. It is my understanding that the director had a duty to do more than he did before the decision was made not to report to the State Licensing Board. We have held discussions with the general counsel since we have issued our report, and with the IG legal officials on that issue, and I am sure the OGC is going to be talking more about it during panel session, but I think there are some changes at least in under consideration.

Mr. Hutchinson. I have other questions but I don't want to dominate this so let me recognize Mr. Edwards for questions.

Mr. Edwards. Thank you, Mr. Chairman.

I would like to ask you, on the timing of Dr. Christensen's report to the IG's office about his concern about a cover-up, he claims that he, I believe, talked to Dr. Connell in October of 1992. Is that not correct?

Mr. Merriman. He talked to Dr. Connell in October of 1992 in conjunction with the Central Region asking us to look at the statistical analysis.

Dr. Connell went out and talked to Dr. Christensen and others to get their statistical data to begin his review. I don't believe that the allegations of cover-up were included in that conversation. Dr. Connell's recollection was that there was some conversation about protection from retaliation, should there be any retaliation down the line, or words to this effect.

His recollection was that they did not get into the cover-up allegations during that conversation. That was discussed in a letter we received directly from Dr. Christensen, where he laid the allegations. That is what started the cover-up investigation.

Mr. Edwards. Okay. Let me ask you also, in your many, many hours of investigation on this issue, have you spent much time looking at the question of intimidation and threats against Dr. Christensen? And, if so, is there tentatively some wrongdoing there that we need to pursue?

Mr. Merriman. I don't believe Dr. Christensen has claimed retaliation. He has had a number of conversations with the director, one-on-one. He perceives that he is not welcome, things like that. But we have not had claims of retaliation by him.

Obviously he is uncomfortable with our office. Were he to come in with claims of retaliation, I would probably get OSC involved at this point in time.

Mr. Edwards. So one option for him if he feels either someone has retaliated against him or tried to intimidate him because of this, he could report that information to you and you would be willing to look into that?

Mr. Merriman. Well, certainly.

Mr. Kroll. We would be willing, or as Mr. Merriman mentioned, the Office of Special Counsel could get interested in this and he could have his choice. Since he has expressed some displeasure with our other reviews, he may choose the Office of Special Counsel.

Mr. Merriman. He did report to us two cases of retaliation of his coworkers which we did look into.

Mr. Edwards. In your statement a moment ago, you said that you did not find reasonably that there was any criminal action on behalf of the management of the VA Medical Center but clear evidence of poor management in judgment. Could you tell me, what is the difference?

I think you said they should have reported some of these concerns 2 months earlier. What is the difference, in your judgment, or what is the difference legally between a criminal cover-up and a manager's lack of action when there is at least indications that there could be a serious problem?

Mr. Merriman. We looked at the Federal and the Missouri State statutes on criminal obstruction of justice. They are fairly specific. You are talking about physical intimidation, changing records, tampering with juries, things along these lines. So we did not see the criminal obstruction of justice aspect to this case.

When you shift from that to cover-up, then you get into what were the perceptions of management that were going on at that time?

Dr. Christensen clearly believes, based upon his statistics, that there was murder. The medical center and other managers do not take this position. They see only the statistical relationship. They understand the significance of it. However, we felt the suspicions of foul play should have been reported to criminal investigators.

On statistics alone, they could have reported their suspicions to criminal investigators. How do you determine there is a murder without getting the people who are professionally qualified to make this determination involved? So we fault the director on that basis. We think that the director refused to accept the possibility that this nurse was actually injuring people. He hoped that he would identify some statistical relationship, something that went on in that ward, some different mix of patients, something that would explain what was happening other than the actual killing of patients. Very early on they should have gotten some criminal investigators involved.

We fault the chief nurse. Dr. Christensen is amazed that we criticized the chief of nursing. We have sworn testimony that 2 months before they finally got Nurse H off the ward, coworkers had come to the chief of nursing, complained that they thought there was a relationship between this individual and the deaths that were going on. Nurse H himself approached supervisory nurses and complained that people were making these allegations about him and asked for some relief, a change to another position. No action was taken. It was within the power of the chief nurse to have taken some action, she didn't have to make a judgment as to whether it was murder. You don't have to make a clinical judgment. You have a problem with your staff. They are pointing fingers at each other. No action was taken.

Mr. Edwards. It seems to me one of the systemic problems we have to deal with--the military, I am sure, has the same problem--is maybe someone's own personal career path, this will open up potential problems in his or her own backyard and yet they clearly should have the legal and moral obligation to bring forward these kind of things, possible problems or crimes, very expeditiously and very aggressively and somehow we need to deal with that.

One final quick question, if I could, Mr. Chairman. Do you see something wrong with the VA evaluation system that gives the VA Medical Center director in this particular case, I believe, an $8,000 bonus during the time period that serious questions are being raised about the competence and the handling of this case?

Mr. Merriman. I see problems with that evaluation, not necessarily the system.

Mr. Edwards. Thank you.

Mr. Bilirakis. You mentioned the word "systemic," and I think that is very apropos from the bottom all the way up through the system.

Is there a VA-wide clearinghouse for all health care workers, do you know, Mr. Merriman?

Mr. Merriman. I really don't. I would defer that to the next panel.

Mr. Bilirakis. Well, I don't know. I am referring to this, and you probably haven't seen the recommendation, but one of the recommendations made by Dr. Christensen is to create a VA-wide clearinghouse for all VA workers, require all health care workers, including temporary employees, to have clearance before starting their employment. Now, I am not sure exactly what he means by that, whether he is talking about a clearinghouse.

Mr. Merriman. Well, there is a credentialing and privileging system for physicians. At the nurse level, I am just not sure what they have.

Mr. Bilirakis. For physicians?

Mr. Merriman. Yes.

Mr. Bilirakis. I would say the problem lies with more than just physicians.

Mr. Merriman. Well, I would agree.

Mr. Bilirakis. I don't know. This is really quite a story. You used the word "dysfunctional." I imagine probably a stronger word than that is more appropriate.

The nurse was on duty for 45 of the 55 deaths that occurred on Ward 4 East between March 8 and August 22 and then when that person was reassigned the person was reassigned to ICU. Unbelievable.

Do we have any history of any deaths or a death that may have occurred in ICU during the 2 days that that nurse was assigned there?

Mr. Merriman. I don't believe any are claimed.

Mr. Bilirakis. In terms of how they relate to ordinarily expected. Of course, ICU, I guess, is a more expected death rate, obviously.

Mr. Merriman. Yes.

Mr. Kroll. It was such a short period of time, there wasn't any spikes in the death rate. It was only a matter of a few days until the medical center was finally able to relieve that nurse from all patient care duties.

Mr. Bilirakis. Well, the Chairman, and he is very nice and he, without really even saying so, I think, expressed some consternation at the amount of time of the investigation. He kept referring to 2 years, 2 years. And Mr. Merriman, you said that the investigation is ongoing, if I might use your exact words, and we are talking about 2\1/2\ years' worth of ongoing. I realize sometimes these investigations take some time.

Now, you know, I guess it is a twofold thing. One is ongoing from the standpoint of determining whether there is any criminal conduct here and that sort of thing, and punishing the individuals involved if there was any, but the other would be ongoing in terms of trying to determine what is wrong and maybe trying to fix it so that these things don't happen again.

Is your ongoing investigation addressing that second area also?

Mr. Merriman. The ongoing investigation that we would refer to is the FBI investigation.

Mr. Bilirakis. Just the FBI?

Mr. Merriman. Our recommendation to the department is in connection with reporting criminal activity to law enforcement authorities--to clarifying VA's policies on reporting of criminal activity on the mere suspicion that it exists so that we can get professional law enforcement authorities involved in making a determination as to what is going on.

We have an initiative ourselves where we are working with the department on a new quality program review process, whereby we will go out to the medical centers and we will have a series of questionnaires where we talk to a random sample of the patients, patient advocates, staff, and the top three administrators of the hospital center. We administer a questionnaire to the director, associate director, chief of staff. We have hopes that this will give us some fix on the relative health of the hospital in terms of staff morale and what is going on in that hospital. We have prototyped it now at three facilities. We hope to do eight facilities next year with our health care inspection people.

Mr. Bilirakis. With the hope that it might spread throughout the entire system ultimately?

Mr. Merriman. Yes, sir. We are also continuing to work with Penn State University on this statistical process control. We have hopes that it can be used at an individual hospital and it envisions getting a real-time fix on statistical abnormalities rather than waiting for a batch process.

Mr. Bilirakis. Well, I am not trying to belittle your overall job. I am sure you are very busy people. But I would suggest that time is certainly of the essence. This is a terrible story. I am sure we all agree. There is no excuse for it.

Thank you, Mr. Chairman.

Mr. Hutchinson. Thank you, Mr. Bilirakis.

Mr. Volkmer, you are recognized.

Mr. Volkmer. I am sorry. I didn't get all the testimony and all the questions. If you have already covered it, just say so. I can check with the staff later on for the answers.

When you or your office began this investigation, did you discuss or interview Dr. Christensen?

Mr. Kroll. Oh, yes. When we began our review this past January, Dr. Christensen was the first person that we talked to.

Mr. Volkmer. All right. Did you discuss with him the problems he was having as far as comments being made to him; that somebody was going to get him; he had problems with reporting this to the FBI, him being told not to do it, those kind of things?

Mr. Kroll. Yes. When we first contacted him, his allegations were against the former director and the former chief of staff, but as time went on over the next 4 or 5 months, from January to May of this year, Dr. Christensen provided us either in writing or verbally voluminous information of problems at the hospital. We had some 40 pages of material from him.

Mr. Volkmer. In other words, his allegations were based on what I would characterize as basically, shut up and leave it alone?

Mr. Kroll. He discussed allegations of intimidation with us, yes.

Mr. Volkmer. Did you all investigate those?

Mr. Kroll. Yes, we have looked at those and talked with the people involved.

Mr. Volkmer. And what answers do you come up with? Do I find that in your report?

Mr. Kroll. Not directly.

Mr. Volkmer. No, you don't.

Mr. Kroll. No.

Mr. Volkmer. That is why I am curious. Why isn't there something about this in the report?

Mr. Kroll. It was one of these cases where we have two sides to the story. As best we can tell there has been nothing official in terms of a personnel action that has happened to Dr. Christensen. He still has the same position.

Mr. Volkmer. Well, I agree with that. But are you saying--did the persons that you talked to, that supposedly made the allegations or made the statements to him, did they deny those?

Mr. Kroll. We talked to the chief of staff, for instance, and there is, as Dr. Christensen explained, not a good relationship between the chief of staff and Dr. Christensen. I think they see the world through two different sets of eyes. What Dr. Christensen perceives as intimidation, Dr. Bauer would see it as an aggressive management style for what is needed in that hospital. That hospital had suffered for a long time for a lack of aggressive management style on the part of the chief of staff. The new chief of staff comes in and establishes an aggressive style. Dr. Christensen doesn't like that.

Mr. Volkmer. Now, what do you mean by "aggressive management style"? Tell me what that is.

Mr. Kroll. That is a good question. It is a manager who sets a very clear path to follow.

Mr. Volkmer. You used the phrase. I would like to know what it is.

Mr. Kroll. It is a very clear path of what needs to be done, what should be done, and what is expected of the physicians. One of the issues that came up was the development of job standards. I was amazed Dr. Christensen didn't have job standards. The new chief of staff wanted to develop job standards for Dr. Christensen. Dr. Christensen felt that intimidated him. That is a standard thing in the government, to establish job standards, and Dr. Bauer is trying to get things back on track, in our opinion.

Mr. Volkmer. Have you ever talked to Dr.--excuse me--Mr. Kurzejeski or Dr. Dick in regard to any statements that they may have made back in 1992, to Dr. Christensen?

Mr. Kroll. Well, first of all, Dr. Dick and Dr. Christensen are compatriots in this.

Mr. Volkmer. Right.

Mr. Kroll. So there isn't any disagreement between those two. There certainly is a long history of disagreements between Dr. Christensen and Mr. Kurzejeski. We interviewed Mr. Kurzejeski once as a part of this review. Again, they see things totally different, from two different sets of eyes.

Mr. Volkmer. As a result of your investigation, even though it is not in the report, do you have an opinion as to whether or not Dr. Christensen was intimidated in any way during this time frame?

Mr. Kroll. I have----

Mr. Merriman. He doesn't seem to be a person that is easily intimidated.

Mr. Volkmer. Pardon?

Mr. Kroll. I have not noticed any attempt to intimidate him. Earlier on, there was a letter read into the record where the director told him not to contact the IG. After that happened, he sent us volumes of information. So the bottom line was, there was no adverse effect.

Mr. Volkmer. I am not saying there was adverse effects. What bothers me is that people within the bureaucracy there at the hospital may have, and I don't know, I wasn't there, may have attempted to stymie something that should have been looked at; in my opinion, should have been looked at.

Mr. Kroll. We agree.

Mr. Volkmer. When you look at the statistical data as to what occurred, I am not saying anybody was deliberately murdered, killed or anything else, but, hey, there is something funny going on here. Do you agree with that?

Mr. Kroll. We agree. We agree there was a certain amount, if you will, of what is called damage control going on there at the hospital.

Mr. Volkmer. Right. You called it dysfunctional management.

Mr. Kroll. We called it dysfunctional management--bad judgment.

Mr. Volkmer. Couldn't it just have been that somebody was trying to take care of their own reputation? Couldn't it have been that Mr. Kurzejeski really didn't want anybody to know about it because it may affect his ability to continue as director or his ability to continue within VA?

Mr. Merriman. That is a possibility.

Mr. Volkmer. I say could.

Mr. Merriman. That is a possibility. Another possibility is, if you look at it in an extremely positive light, that maybe he is protecting the reputation of the hospital and the patients that are going there. Maybe he is concerned that there is going to be a label of murder placed on the hospital, which he doesn't believe to be the case, and this negative publicity is going effect the view of the hospital.

Mr. Volkmer. The image of the hospital?

Mr. Merriman. Yes, right. He could have looked at it that way, too. There are many possibilities you can draw from this depending on how you look at it and what your insight is.

Mr. Volkmer. Okay. Thank you very much, Mr. Chairman.

Mr. Hutchinson. Thank you, Harold.

You are being very kind to this former director. I mean, the fact was that after the FBI began the investigation, after the statistical studies had come out, he writes a letter to the FBI and asks that the man be put back in patient care. Is that correct?

Mr. Kroll. That is correct.

Mr. Merriman. That is correct, yes.

Mr. Kroll. We point out that was a mistake.

Mr. Hutchinson. Let me go back to this issue of the time on the reports because I am still confused on it. Jack, if I heard you correctly, a moment ago you said, in response to Harold, that when we began our review this past January. Did I hear you correctly?

Mr. Kroll. You heard me correctly, Mr. Chairman.

Mr. Hutchinson. Well, according to the time line that we have, February 16, 1993--1993--the complainant by letter asked the OIG to review management's administrative response to the increased deaths on Ward 4E. That is why I am confused. If the complainant wrote the letter on February 16, 1993, and you said that you began the review this past January and yet you said there was an immediate response, I am confused.

Mr. Merriman. Dr. Christensen wrote a letter of complaint in February 1993 of allegations of cover-up and mismanagement at the hospital. That did take us to January 1995 to start on.

Mr. Hutchinson. Well, that was the point I was trying to make earlier.

Mr. Merriman. I am sorry. We also received a request from the Central Region to look at the statistical review. That started immediately.

Mr. Hutchinson. I know. That was done and completed and you made no recommendations. But here, we have a letter of request, a complaint on February 16, 1993, concerning multiple deaths under suspicious circumstances that you only began a review on this past January. Have I got my sequence correct?

Mr. Merriman. The sequence is correct, but what is missing from the sequence is the fact that the FBI was in there investigating at the time we received the letter from Dr. Christensen. They had already received the allegations of foul play. They had taken over the review. They had medical experts assisting them in taking a look at it. We screwed up by not starting quicker on the administrative aspect of it. The time sensitivity probably wasn't there with the staff because the FBI was in there already investigating.

There is no good reason why our system broke down and we didn't start earlier. We should have. But that doesn't mean during that time period nothing was going on. The FBI was conducting its investigation.

Mr. Hutchinson. I guess the phrase could be "dysfunctional management."

So you did not pursue this aggressively because the FBI was involved?

Mr. Merriman. That is correct.

Mr. Hutchinson. Maybe somebody else can speak up on that.

Mr. Volkmer. Wait a minute.

Mr. Kroll. Can I make one comment?

Mr. Hutchinson. Yes.

Mr. Kroll. There was a series of administrative errors in handling the February 1993 allegations that came in from Dr. Christensen, but the allegations did go immediately to our Kansas City Criminal Investigative Office, and they did contact Dr. Christensen.

He was told we had this ongoing FBI investigation, we are not going to look at these charges right away, and we are going to put them on hold. What happened is, the allegations were put on hold and were forgotten until they were brought back up by Dr. Christensen later on, a year later.

The second time the OIG took a look at the allegations we still didn't do everything we should have done. Finally the allegations came to my office's attention in January of 1995 and to Mr. Trodden's attention. He ordered an immediate investigation.

Yes, we are 2 years late, and we point that out quite clearly in our report.

Mr. Hutchinson. Thank goodness for his doggedness. I mean, here you have a case; even if you are only looking at the administrative and even if the criminal is all in the hands of the FBI, you have got a case in which a dysfunctional management exacerbated a situation in which there were multiple deaths. I mean, I would think that that ought to be a very high priority with the Office of the Inspector General.

Let me move to this issue of the whistle blower--the whistle blower issue. What is the IG's policy regarding confidentiality of disclosures made by VA employees to the IG?

Mr. Merriman. That they are to remain confidential unless they give us permission to otherwise disclose their name, or unless the Inspector General makes the determination that disclosure is necessary to pursue an investigation. That has never been actually done.

Mr. Hutchinson. Did Dr. Christensen grant permission for his expressed concerns to the IG to be made public?

Mr. Merriman. No, he did not.

Mr. Kroll. No, he did not.

Mr. Hutchinson. Were his rights to confidentiality honored?

Mr. Merriman. His rights to confidentiality in terms of allegations he made in general about the medical center were honored to the point where our report that we issued recently talks about the complainant and Dr. Christensen separately.

We get into this issue on two instances. In one case Dr. Christensen sent material to the FBI that was intended, I guess, to go to the State Licensing Board. The FBI sent it to our Investigative Office, who looked at it, and they thought that there was a potential libel suit here. Dr. Christensen must have been accusing the nurse of murder or whatever, and there was also a potential breach of quality assurance information by Dr. Christensen.

The OIG investigators asked for advice from their supervisors in Washington, who said to give it to the district counsel for a judgment as to the nature of the quality assurance information involved. District counsel sent it to the Central Region. The Central Region sent it to the hospital director.

We should have discussed it with Dr. Christensen before giving it to district counsel, but what we were trying to do was, A, to head off a potential libel suit and, B, to prevent Dr. Christensen from violating the quality assurance statutes, which are criminal statutes.

Mr. Hutchinson. So his letter to the FBI went to--or his communication to the FBI was faxed to your--to the Inspector General's Office, which in turn sent it to the regional director, which in turn sent it to the hospital director?

Mr. Merriman. Which in turn--it came to our local Investigative Office, who provided it to district counsel, the attorneys in the district counsel's office.

Mr. Hutchinson. And from the district counsel, it went to the hospital director?

Mr. Merriman. It went to the Central Region and then to the hospital director.

Mr. Hutchinson. At which point, Dr. Christensen was called on the carpet and told not to communicate anymore with the FBI?

Mr. Kroll. Yes, sir.

Mr. Hutchinson. And this is--is that little sequence of events that the--the reason that in your report you acknowledge not only did the administrative inquiry into the complainant's allegations that you took too long but you should have been more careful to protect the confidentiality of the complainant--it is in regard to that?

Well, what should other whistle blowers conclude from this experience? I mean, this breakdown in confidentiality, I would think, would be a disincentive for people to report these kind of things in the future to your office.

Mr. Merriman. I can't think of another case where we have been charged with a breach of confidentiality.

In this particular case, I don't think Dr. Christensen would allege that we breached the confidentiality of his disclosures to us of the problems with management.

What happened was, during the course of this investigation, these early stages when they are exhuming bodies, a lot of things are happening. He sends the material to the FBI. I don't even know why they sent it to our people. They didn't seem to know what to do with it. It comes to our guys. They look at it and say, "Gee, this is a potential breach of the QA standards. It is a potential libel issue. We need to get an opinion on it."

It probably should have come to our own attorneys. If that had happened, we would perhaps have been more sensitive to it. But it goes to the district counsel, who are the ones that make determinations with respect to QA material.

We should have handled it differently. It would have been easy, as soon as we got it, just to call Dr. Christensen and say, "Hey, we have some concerns about this. Did you check with counsel? Do you know what you are doing?"

He had already sent it to the director. The director had the same material. But we had an obligation to talk to him before we did anything further with it, and we fell down on that.

Mr. Kroll. Mr. Chairman, I might also add that Dr. Christensen implies that this somehow put a chill maybe on future whistle blowers after what happened in this particular case.

My office has the hotline operations for the IG, and we have over 20,000 complaints each year. It is the most active complaint center in the entire IG community. My special inquiry staff, which did this review, has a list of reviews the length of my arm backed up, just for lack of staff, that we can't do.

So people are very willing and open to come to the IG with complaints, and, as Mr. Merriman mentioned, these are the only two times I can ever remember where there was a disclosure.

Mr. Hutchinson. I am sure it was something of a shock to Dr. Christensen when he had communicated with the FBI and found that back in the hands of the hospital director.

Did the meeting of the hospital director with Dr. Christensen at that point in which he instructed Dr. Christensen to have no further communications with the FBI or your office--did you consider that reprisal? Did you consider that recrimination?

I mean, I think you have basically said that there weren't any reprisals against Dr. Christensen. Dr. Christensen has testified that he was intimidated, as well as shocked, at this meeting.

Mr. Merriman. The director did not have the authority to tell Dr. Christensen he could not talk to us or the FBI. That was clearly wrong.

Reprisal--in regards to the letter he sent, I wouldn't call it reprisal. I think of reprisal in terms of taking a personnel action or something with his job. He was having this conversation with Dr. Christensen, trying to limit his access to us and the FBI inappropriately because he received the letter. I don't know that I would call it reprisal.

Mr. Hutchinson. If a superior instructs a subordinate to have no communications with a Federal agency, isn't there an implied threat involved?

Mr. Merriman. Well, there certainly would be. He is giving him an order. Any order, if violated, has some potential consequences. He was giving him an illegal order at that point. He shouldn't have. No manager in the department has the authority to preclude an individual from going to law enforcement authorities or to the IG. It was illegal.

Mr. Hutchinson. That was an illegal order?

Mr. Merriman. I am sorry. Wrong terminology. It was inappropriate. I don't know that it breaks any statutes necessarily, but there is free and open dialogue required with the Inspector General. The director did not have the authority to do what he did.

Mr. Hutchinson. Okay. In the first IG report, the September 28, 1994, statistical review, the report contains no recommendations. How frequently does your office provide reports making no recommendations? And under what circumstances do you issue reports without recommendations?

Mr. Merriman. It wouldn't be that common. In this particular case, it is sort of a unique report. What you have is basically an analysis performed for the Central Region to confirm some data.

In other words, the Central Region is coming to us and they are asking for us to validate the statistical information that they have from Dr. Christensen and that their statistician had already looked at. We are concluding that there is validity to the statistical information, and we have come up with the 1 in 1 million probability.

So Dr. Connell wasn't making a recommendation. He was providing an analysis. It is sort of an unusual report.

Mr. Hutchinson. He thought it spoke for itself?

Mr. Merriman. Yes, that is correct. It is an unusual way to do our reports.

Mr. Hutchinson. Let me just state before we dismiss this panel, Harold, do you have other questions? Let me recognize you at this point.

Mr. Volkmer. I just have a brief one.

Just to turn it around and perhaps put yourself in Dr. Christensen's shoes for a minute. Now, you have previously sent this memo out to the FBI, and then you are called in to the director's office, and the director knows about it because he has a copy of it. Now, how would you feel?

Mr. Merriman. Well----

Mr. Volkmer. What would you think?

Mr. Merriman. We agree that it was inappropriate.

Mr. Volkmer. Not just inappropriate. What would you think? Wouldn't you think perhaps that the agencies were working together to try and cover this whole thing up?

Mr. Merriman. I don't have----

Mr. Kroll. I don't know if I would go that far, because Dr. Christensen also gave the director a copy of this letter. We are talking about a letter that made a circuitous route. He gave a copy of this letter to the director, so it wasn't any secret.

Mr. Volkmer. I know that, but now all of a sudden your letter that you sent to the FBI has found its way back to the director's office. Gee whiz, come on. You mean you wouldn't have some suspicion, if that had happened to you, that there was something going on out there among this bureaucracy?

Mr. Kroll. I don't know if I would take it to the step that the whole FBI, the IG, the VHA, and everybody else was in some kind of conspiracy. I don't think I would take it that far.

Mr. Volkmer. You wouldn't take it that far?

Mr. Merriman. I wouldn't take it that far, particularly on that issue.

Mr. Volkmer. You would immediately think that somebody just goofed up the line?

Mr. Merriman. That is one reasonable explanation. In this case, that is what happened.

Mr. Volkmer. Thank you.

Thank you, Mr. Chairman.

Mr. Hutchinson. Thank you, Harold.

Let me go back. I want to pick up on what Mr. Volkmer was questioning concerning the whole issue of a cover-up, and that--you know, it has been pointed out that maybe you were very narrow in your report, in which you rejected the idea of a cover-up or any kind of obstruction or anything like that, and you concluded by saying, quote, "The evidence points to bad management rather than a well-conceived management plan to deliberately cover up or suppress the information about the increase in deaths."

I want to just kind of cite from your report, what you say, on page 21, the former director ignored the district counsel's advice to inform the FBI. The former regional chief of staff ignored the district counsel's advice and recommended not to inform the FBI. The former director and former chief of staff, quote, "withheld statistical analysis from the board members conducting the administrative board of investigation."

The former director denied the request for assistance from the University of Missouri School of Medicine's biostatistician who could have confirmed Dr. Christensen's studies. You concluded that this request should have been granted but it wasn't.

You conclude on page 32 that the former chief of staff, quote, "delayed investigation of the problem by law enforcement authorities," end quote.

The former director refused to report Nurse H to the Missouri State Board of Nursing. If it had been a private hospital in the State of Missouri, such reporting would have been required by Missouri State law.

And you conclude on page 38 that the former director improperly limited communications with the OIG and the FBI in March of 1994, and I quote: "The director's action can be viewed as an effort to impede an official investigation by intimidating employees and is clearly improper."

Those are your words from your report that he intimidated, that he impeded an official investigation.

Yet on page 32 you say, quote, "We found no conclusive proof of an intentional cover-up by the medical center and central and regional officials."

So my question is: What exactly would have constituted conclusive proof?

Mr. Merriman. I honestly believe that these individuals--the director, the regional chief of staff--did not want to take action unless they had clinical proof that something was wrong.

They initiated a number of actions they thought would give them an answer. You can look at that as some sort of cover-up. I just don't think that was what was going on in this particular case.

Clearly, they should have gone to law enforcement authorities. They should have gone to where they could have gotten the expertise to make something happen. They just rejected the possibility that there was a mass killer loose out there.

I am sure that they were trying to contain this within the system until they found an answer that would explain it and relieve them of the publicity that they had such a condition in the medical center. That is what I think was going on.

I don't think they got together and tried to figure ways to cover up what they believed to be a crime.

Mr. Hutchinson. Would they have to get together for there to be a cover-up?

Mr. Merriman. No, they wouldn't have to get together, but they would have to believe that there was a crime committed and try to cover it up. I don't think they did.

Mr. Hutchinson. Well, then your conclusion was, they impeded an official investigation. That is page 38.

Mr. Kroll. It can be viewed as an effort to impede, and certainly some people can view it that way.

Mr. Hutchinson. That was not your view? It was not the view of--now, I think I read, "The director's action can be viewed as an effort to impede an official investigation by intimidating employees and is clearly improper."

Mr. Kroll. Yes. Then I said from a practical standpoint, to the best of our knowledge, it didn't limit the OIG or FBI in obtaining appropriate information.

After all, put it in context just a bit. It is bad, and we admit he should not have done this. I am not defending him, but it wasn't done in October of 1992 when this whole investigation was started, it was done in February of 1994, long after the FBI had been on-site and done all their interviews. The basic criminal investigation was over, for all practical purposes, as far as on-site work. We tried to look at the issue with a certain amount of it practically.

Also, all those quotes from our report are very accurate, but we also got together with our legal people and we asked do all of those things add up to a crime? They looked through all the Federal statutes, all the Missouri statutes, in terms of obstruction of justice and did not get a match.

So that is why we are calling it a series of bad judgments. We describe how bad the management was at that hospital and from the people we have talked to, serious misjudgments were made, and we have got them documented throughout our report, and you accurately pulled them out.

Mr. Hutchinson. Well, I mean I guess we don't want to debate this, but impeding an official investigation, I don't think--that is not technically a violation of law, to impede an official investigation by law enforcement authorities? Because, I mean, you conclude it is clearly improper. What you don't conclude is that it was illegal.

Mr. Kroll. It didn't really impede it. I guess that is what we would say.

Mr. Hutchinson. They were ineffectual in their efforts.

Mr. Kroll. The FBI was already off site by then. That is how I would put it. I am not a lawyer, but that is the twist I would put on it. This is legal language in our report.

Mr. Hutchinson. Yes. The rules permit counsel to make inquiries, and so I would recognize the Minority counsel at this time.

Mr. Ibson. Might I just clarify? The complainant made allegations of a "cover-up." Have you not taken the narrowest possible approach to that by going to the Missouri Code, and invoking criminal statutes, when, in the eyes of a layman, as you said yourself, this was "damage control," this was "containment," a "cover-up," precisely the term any layman would apply in this instance, regardless of what the criminal code might provide?

Mr. Merriman. I am sorry. We didn't go to the Missouri State Code and the Federal Code to determine whether there was a cover-up or not. Criminal obstruction of justice is what we were trying to determine. This was the allegation. We couldn't find a violation of the Code.

Cover-up, a layman might say that. Obviously certain people in the medical center have concluded there is a cover-up. Others would see it as a series of management actions, trying to avoid negative publicity over an event that they weren't convinced happened, the actual killing of individuals at the medical center.

We didn't see the collusion of individuals trying to suppress a known crime. We just weren't willing to call it a cover-up.

Mr. Ibson. Thank you.

Mr. Hutchinson. We thank you for your testimony, and you are excused.

The chair now recognizes Dr. Garthwaite, Deputy Under Secretary for Health, accompanied by Mr. John Carson, FACHE, director of Harry S. Truman VA Medical Center since 1994, and Mr. Robert E. Coy, deputy general counsel.

I understand Dr. Garthwaite will be presenting testimony, and you are recognized at this time.

STATEMENT OF THOMAS L. GARTHWAITE, M.D., DEPUTY UNDER SECRETARY FOR HEALTH, VETERANS' HEALTH ADMINISTRATION, U.S. DEPARTMENT OF VETERANS AFFAIRS, ACCOMPANIED BY: JOHN T. CARSON, FACHE, DIRECTOR, HARRY S. TRUMAN VAMC, COLUMBIA, MO; AND ROBERT E. COY, DEPUTY GENERAL COUNSEL, U.S. DEPARTMENT OF VETERANS AFFAIRS

Dr. Garthwaite. Thank you, Mr. Chairman.

In the interest of time, I have abbreviated some of the testimony.

I appreciate the opportunity to discuss issues related to the recently released Inspector General report entitled, "Alleged cover-up of an Increase in Deaths at the Harry S. Truman VA Medical Center in Columbia, Missouri."

At the outset, let me state that the VA is very concerned about the unexplained pattern of deaths at the Columbia facility. We determined that there was an apparent increase in the number of deaths on Ward 4E through our extensive quality improvement assurance processes, processes that are in place in our facilities throughout the United States and which are designed to alert management when potential problems exist.

In this case, it is also important to note, as has already been noted, that the Federal Bureau of Investigation has not provided us with any conclusive evidence yet of criminal activity. The under secretary for health requested the results of the FBI investigation in a letter to the director a week ago.

I agree with the findings of the OIG special inquiry report that there is no evidence of a cover-up by management. Some actions by VAMC management officials were, in retrospect, errors in human judgment.

In retrospect, for example, the acting associate director for nursing should have notified top management of nursing concerns about the apparent increase in deaths on Ward 4E sooner. Once notified, the director and chief of staff, among others, should have been more aggressive in seeking clinical corroboration of patient-related problems relating to the deaths.

The issue of not notifying the FBI is also complex. On September 2, 1992, a meeting was held with the director, associate director, acting associate director for nursing, the clinical nurse reviewers, and the associate chief of staff for research and development, and his research assistant. The results of Dr. Christensen's preliminary data were reviewed, and a decision to remove the nurse from patient care was made.

The issue of whether the medical inspector, the FBI, or forensic pathologists should be involved was also discussed. Without clinical substantiation of the statistical analysis, the regional office advised that there was no justification for contacting law enforcement authorities. Management followed their guidance.

To assist management in determining when an incident should be reported to the appropriate law enforcement authorities, I will ensure that additional guidance is provided so that there is a mechanism in place to make sure that incidents such as the unexplained pattern of deaths at VA Medical Center in Columbia are in place.

Our current philosophy is one of decentralization of authority and empowerment of our field management officials. We have always expected them to make the best decisions with the information available to them.

With respect to Columbia, it is easy to retrospectively second guess decisions but somewhat more difficult to judge the quality of those decisions when you are not there at the time.

The issue of whether management should have reported the nurse to the State Licensing Board is an important and difficult one. My written testimony and the opinion of the VA general counsel address those issues and their complexity, and we would be happy to take questions regarding those.

Mr. Chairman, let me address your concerns about ensuring a properly functioning top management team. The VA Medical Center in Columbia, MO, has a new management team in place that, from all indications, works well together. The present director was recently selected to become a network director. I will ensure that a fully capable management official is selected to replace him.

In addition, the Veterans Health Administration is undergoing a major reorganization in headquarters and in the field. In March we proposed a reorganization of VA and last month were authorized by Congress to proceed to change the span of control over our facility management teams. Previously, each of VA's four regional offices had a span of responsibility of about 44 facilities.

With implementation of the Veterans Integrated Service Networks, or VISNs, the network directors will be responsible for about 10 facilities. This narrowed span of control will allow for more direct supervision and guidance of management at those facilities.

We believe that we have carefully selected the best qualified candidates as network directors to lead VA as we sit at the threshold of the transformation in VA health care which we are undertaking.

I will note, for Mr. Bilirakis' input, that we took so seriously the selection of those VISN directors that Drs. Kizer, Moravec, Story, and myself interviewed all 52 top-rated candidates personally for at least an hour and probed and attempted to find out what kind of decision-making parameters they might use to make management decisions in the future.

I would also note, for Dr. Christensen, that the number of layers between the under secretary of health and the facility director has been streamlined in our reorganization from five to three.

In closing, let me reiterate that VA discovered the abnormal patterns of death through its quality improvement program. We recognize that we have an obligation to our patients and to society to work with licensing boards to assure the quality of health care professionals. We are also sensitive to the rights that our employees and all citizens have to due process, and we look forward to working with you in applying these important principles, which may at some times seem to conflict.

This concludes my statement. We will be pleased to answer any questions.

[The prepared statement of Dr. Garthwaite appears at p. 136.]

Mr. Hutchinson. Thank you, Dr. Garthwaite.

In your statement, on page 2, you stated that management followed the guidance of the regional office in not contacting law enforcement officials. Was that consistent with legal advice received from the VA District Counsel's Office?

Dr. Garthwaite. I think there was in the very early portion of this a little disagreement and then some clarification.

Maybe Mr. Coy would like to comment on that since he was involved. I was not here at the time.

Mr. Coy. On the 25th of August, a telephone call was received by our district counsel from an individual in Quality Assurance indicating that there was some statistical information that caused some concern with respect to increased deaths on the ward, and seeking some advice as to what the district counsel thought should take place at that point in time. There were discussions between several individuals at one point.

Finally, the district counsel did call the director and make some recommendations with respect to removing the nurse from patient care activities. He also made a recommendation to proceed immediately with further investigation and suggested strongly that consideration should be given to calling in law enforcement individuals.

Over the next couple of days the Region did get involved. There was an attorney outstationed in the region office at Ann Arbor who, based upon information received from the region to the extent that this was an aberration that can be explained, associated with some referral patterns, raised some question as to whether it was appropriate yet to call in law enforcement individuals.

There were, therefore, a number of discussions over a 2-day or 3-day period between our attorneys in the field and our office, and we reiterated the recommendation of the district counsel.

There was obviously some disagreement in the medical community as to the validity of the statistics, and all we had to go on was the concern that was expressed by the individual from the quality assurance office. So we did give advice, and that advice was apparently not followed, based upon additional evidence that the director apparently considered to be relevant.

Mr. Hutchinson. Where was the dispute concerning the statistical data? I mean, I haven't heard any testimony to indicate that anybody disputed what Dr. Christensen claimed--while there was a desire to verify that with an overview, there wasn't any--I mean, am I wrong? Where was the----

Dr. Garthwaite. I think what may have happened, trying to reconstruct this from a large amount of material, is that when this was reported to the region, they said, "We better make sure. This is a very serious accusation."

I don't think anyone wanted to believe that a health care provider was guilty of accelerating the deaths of a large number of our patients. So they gave some of the statistical data to the head of the Health Services Research and Development Office, which happened to, coincidentally, be located in Ann Arbor, and they issued--that individual issued a report which raised some questions. I don't think it totally invalidated the statistics but simply raised some questions.

Any time you get a group of statisticians together, there will be questions. And there were questions raised, and I think that added some doubt in the minds of both the region and the director as to whether or not they had enough basis to accuse--essentially accuse someone of mass murder.

Mr. Hutchinson. Well, let me say that I understand the concerns about due process, and I share them. But I do not think it is a very complex issue, when you have evidence of multiple deaths under suspicious circumstances and allegations of foul play, that you ought to opt always on the side of patient safety and that communication with law enforcement would have been an easy call.

Dr. Garthwaite. I wholeheartedly concur with you, and I have always felt, in my own professional practice, that if there is an issue, there is one standard that cannot be lowered, and that is the patient first, and if there is any question, we need to protect the patient's safety, and then the rights of the health care provider are secondary to that.

Mr. Hutchinson. In your testimony, you gave us assurances that this issue is going to be addressed. Has it been? Have there been policy changes regarding when and under what circumstances law enforcement is notified of deaths under--unexplained deaths or deaths under suspicious circumstances?

Dr. Garthwaite. A significant portion, I think, of what happened here is not a lack of policy but it is, in fact, a lack of judgment.

We routinely reported anything suspicious to the medical examiner in Milwaukee when I was chief of staff there, simply because we felt that was our obligation and duty. At times they would do some follow-up, and at times they would not.

But in terms of statistical analysis identifying a death pattern and something to be alerted to, that is an issue that not only the VA but all health care providers in the United States have only recently become more sensitive to. It is not just a VA issue.

Mr. Hutchinson. Well, in your testimony you did say that there was going to be--you would ensure----

Dr. Garthwaite. Right. We will provide guidance concerning when, how and what kind of statistical suspicions should lead to reporting.

But if you read the general counsel opinion on that, it becomes a very difficult issue to decide when is the threshold to do that.

Had this individual decided to have a slower rate--let's assume that this is a nosocomial murder and that these individuals have had their deaths accelerated by this nurse. If this individual had done this at a slower rate to escape statistical attention, this could be happening in a variety of medical centers throughout the United States today, and it is a frightening thought, but it is true.

Mr. Hutchinson. It is a frightening thought, but I think--well, the previous panel, in talking about the order that the former director issued to Dr. Christensen that he was not to contact the FBI, said that it was an illegal order, and then they backed off of that and said that it was an improper order, was it an illegal--was it illegal for the director to tell an employee not to communicate with the FBI or the OIG?

Mr. Coy. Probably not a crime or a misdemeanor. But it definitely violated clear instructions that have been given by the Secretary of Veterans Affairs and disseminated to all employees, indicating that employees should be free to contact the IG on any matter. They have a hotline number to call which provides for confidential input to the IG.

So without a doubt, it violates the directions, and clear directions that have been given by the Secretary.

Dr. Garthwaite. I would agree, and we are against that.

Mr. Hutchinson. On the issue of the State Licensing Board, that we have talked some about, reporting a separated health care provider to the appropriate State licensing board, the VA has a clear mandate to conduct a program to report to State licensing boards any separated licensed health care professional who was fired or who resigned after having had such individual's clinical privileges restricted or revoked.

Should those health care providers who do not have clinical privileges--and I understand that that is the distinction here, as to why not reporting to the boards of State licensing that the decision was that that was proper not to do that report.

But should health care providers who do not have clinical privileges, such as registered nurses, but who do have a significant amount of unsupervised direct patient care duties, be subject to a similar objective reporting requirement?

I mean, in fact, RN's probably have more direct patient contact than those who do have clinical privileges. So is there a problem in the current policy?

Dr. Garthwaite. We will re-examine the policy from all we have learned from this particular situation. All policy directives are subject to learning from future occurrences.

My suspicion is that, given the nature of how long these investigations take, there is a long period of time between suspicion of a problem and the ability to conclude anything, and that it will behoove all State governments and all health care organizations to try to fill in that gap and protect the public during that time. We take that obligation extremely seriously and work with the interpretation of the laws as they exist to try and make that happen.

Mr. Hutchinson. Okay. If I understand, the position of the VHA was that this particular nurse did not need to be reported to the State Licensing Board because he didn't have clinical privileges and you weren't subject to State law.

Dr. Garthwaite. Right.

I think one way to interpret why the director made a decision not to go forward is, under the law as we read it, the third provision--someone terminated while under suspicion would require a significant evidence file, which was basically at the time in the hands of the FBI, so that what the individual failed to do was to ask the FBI for that evidence file so they could report.

Had we asked the FBI for evidence to make a report, we could have put together an evidence file, which then has to be given to the individual being reported, according to the statute, if I am not mistaken.

Mr. Hutchinson. But the fact that this nurse for 16 months has not been allowed direct patient contact, doesn't that indicate that there was a huge cloud of suspicion? And under the current mandate, a person with clinical privileges, if those privileges have been restricted or revoked, you have to report.

Dr. Garthwaite. But technically these are not privileges.

Mr. Hutchinson. I know technically they are not. That is what I am asking. This RN, who has more patient contact than do most doctors, shouldn't that mandate apply to them?

Dr. Garthwaite. Yes, I agree, and I am sorry if I wasn't clear. I think it should--I think it should. But does it or did it at the time, was the question.

Mr. Hutchinson. I thought what you said was, we will reevaluate, we will look at it.

Dr. Garthwaite. Right. We will make sure that we have the legal basis to do that, and, if we don't, we will request that we get that legal basis.

Mr. Coy. I think the law will not be an impediment. I think there is a way we can work through the process.

I believe the current policy was premised upon situations that we normally deal with, which would have been an isolated incident. Medical misadventure they call it, or a personal problem. And they usually had thought that if the individual was on board, you could work with them, you could retrain them, you could help them deal with their problems thru counseling.

We were not dealing with, nor had we had experience with, a multiple situation such as this. As a result, the policy has limited the reporting requirement to people who had left, not to people who were still on board.

I think there is probably a sound basis for taking a hard second look, because we now have clear examples of a situation where the current policy failed, and we probably do want to take another look.

I don't believe the law itself is a problem, although we may have to do some modifications of routine uses under the Privacy Act so that we can report individuals still employed. Our current Privacy Act routine use, with respect to releasing information to the licensing board, has some limitations based upon due process concerns that probably need to be balanced out against other requirements. But I think we can work our way through this under current legal requirements.

Mr. Hutchinson. All right.

Was the VA prohibited from reporting Nurse H to the State Nursing Board? I understand the determination that it wasn't required. But was there a prohibition from that--from that report being made?

Mr. Coy. I can say that under current policy, and under our current routine use, we would have been prohibited from releasing merely statistics. What we have established was a procedure that would say that, once you have statistics that cause concern, you have further investigation and you get more information. That is the way our routine use for releasing information under the Privacy Act was developed. We could modify that routine use.

I would have to say that today, based upon our current routine use, which can be modified in 45 days, there would be a problem with respect to reporting this nurse based only on the statistics, without additional investigation.

Mr. Hutchinson. Of course, if it had been left to the VA, that clinical evidence would never have been obtained, because the law enforcement would never have been brought in. So we would have been left only with the statistical evidence.

Mr. Coy. I don't want to try to defend everything that happened in the past. I believe, however, that at some point in time, as they worked through this process, that law enforcement people would have been brought in. I would have hoped that would have happened. But it certainly didn't happen soon enough.

Mr. Hutchinson. Well, it was reported in the press that Assistant Inspector General Jack Kroll stated in a press conference--and I quote--"It seems the director, who also acted on the advice of the chief of staff from the region, felt before you report to law enforcement you need a body lying there with a knife in its back."

It seemed to me that, from that statement, that Mr. Kroll didn't think it ever would have gone to law enforcement.

Mr. Coy. Well, I don't know whether he is talking about law enforcement or whether he is talking about a licensure board. Hopefully, good judgment would have said that it should have been reported and would be reported to the law enforcement people. The licensure board issue is more complicated.

Mr. Hutchinson. If I understand, you said that, going back and forth as far as law enforcement and the licensing board, but on the licensing board you would have been prohibited from reporting.

If the State board had requested information about Nurse H, could that then have been communicated to them?

Mr. Coy. If the State board had requested the statistics, which were quality assurance statistics, we could have, under the current law, released those statistics.

What the State board would have done, however, was to ask for an investigation, which is exactly what we said you should do before you report the nurse, per se.

So the answer is yes, with a proper request, we could release the statistics to the State board. I think they now probably have them. But the answer is yes, we could have responded to their request.

Mr. Hutchinson. Did Nurse H's subsequent employer make an inquiry to the VA regarding his past employment?

Dr. Garthwaite. We can find no evidence of that. We have looked.

Mr. Hutchinson. Could you, Dr. Garthwaite, respond to the issue that Mr. Edwards raised earlier concerning the awarding of an $8,000 bonus to the former director at the very time that these allegations of dysfunctional management, possible cover-up were being publicized, and at the same time, the FBI had an open and ongoing investigation that he would have been awarded this bonus?

Dr. Garthwaite. I did not review that specific thing. I will say that during our reorganization, our plan is to tie high management bonuses with objective outcomes for patients, objective patient outcomes, measurable outcomes of patient care improvements in the system. Traditionally, most reward systems in many personnel systems both in and out of government have been determined by an immediate supervisor based on a relatively subjective review of that individual.

As we have tried to make that more objective, sometimes we generate a lot of paperwork, but whether it is substantially more objective or not, I am not always convinced. So if the immediate supervisor subjectively rated that individual, I think that certainly is subject to second-guessing based on what has been presented here today and other information. But I think the key is can we make that system better and can we reward the proper things within the organization and that is our attempt into the future.

Mr. Hutchinson. Well, are you aware of what kind of job evaluations and performance evaluations the former director had prior to the awarding of the bonus?

Dr. Garthwaite. I am not. We can find that out, supply it.

(Subsequently, the Department of Veterans Affairs provided the following information:)

[OFFSET FOLIOS 25 TO 64 INSERT HERE

[MAKES PP. 51 TO 90.]

Mr. Hutchinson. If I understand it, is it your position that this $8,000 bonus was a subjective decision that was kind of a fluke and really isn't reflective of what goes on systemwide?

Dr. Garthwaite. Each medical center director I think at the time was required to submit an extensive evaluation of the medical center and its performance. In part the evaluation was an evaluation of the performance of the medical center as a whole and to some extent the director gets some credit and I assume some blame for the overall performance of the medical center.

Mr. Hutchinson. You have to admit that it is pretty bizarre to get an $8,000 bonus when the OIG is declaring that there is dysfunctional management.

Dr. Garthwaite. Yes, although the OIG reports were well beyond when the bonus was awarded, I believe.

Mr. Hutchinson. Well, the report was issued well beyond but the investigation was ongoing, was it not, at that time? I mean that is what they were basing it on is what was going on at that time in the hospital.

Dr. Garthwaite. I would agree.

Mr. Hutchinson. So has the VHA taken any steps to address how, number one, we could have a top management team at a major medical center declared dysfunctional that in fact instead of helping solve a problem exacerbated the problem, according to the OIG, and awarding bonuses to--to that very management? Have you done anything yet to address these--how this could happen?

Dr. Garthwaite. We proposed a new method by which we propose bonuses. We removed that top management team, replaced it with a different one. I think those are two major actions. We have not, to my knowledge, gone back and reviewed every bonus.

Mr. Hutchinson. So the bonus process has been changed. How has it been changed, the awarding of bonuses?

Dr. Garthwaite. Right. As part of the reorganization, we have proposed a total revamping of executive pay and have proposed to award bonuses based on objective improvements and outcomes for patients and we have identified I think up to 200 objective criteria that we will be measuring, both for VISN directors and for people that report to them. So those may be waiting times for patients, mortality rates for surgery, medication errors, patient satisfaction with services provided, as opposed to the more subjective evaluation done by the immediate management superior.

Mr. Hutchinson. I have got a few more questions.

I will yield to Mr. Volkmer if he would like to--if he has questions at this time.

Mr. Volkmer. I just have a few questions.

I am a little concerned, Dr. Garthwaite, with the comments you made in regard to the review by the team on statistical data when it was done up in, I guess it was Detroit, and the finding that there were some things wrong with it. And that kind of made it look like maybe Dr. Christensen's findings weren't--I am characterizing what you said, but basically I get the thought that they weren't quite accurate, et cetera.

Dr. Garthwaite. We can provide a copy of the report from the HSR&D people. I this that is what probably prompted the region to then ask for the OIG to review the statistics and the OIG felt it was also important for them to ask an outside statistician to review the statistics.

Mr. Volkmer. Well, you heard the testimony of Dr. Christensen, and correct me if I am wrong about this, as I remember, Dr. Christensen said he was never contacted about the team when they did that review of the statistical data. And when they find some things that they thought weren't done properly, they never called him up and said why did you do this or why did you do that?

Dr. Garthwaite. My understanding was that the team rightly or wrongly was asked to come in and review an allegation by a resident that this nurse was killing his patients and they focused largely on that. It may have been expanded somewhat to look at some other pieces of data, and as Dr. Christensen pointed out with Dr. Dick's intervention that he was allowed to present to the team. So I think that perhaps got expanded beyond its original scope.

Mr. Volkmer. Well, maybe I am making a mountain out of a mole hill, but it appears to me that some of the problems when I first reviewed it, if what Dr. Christensen says is true, they came back and said there were some flaws or whatever. I would hope that in the future if something like this ever occurred, and I hope it doesn't occur, but in the event that it would and there was a review that at the time that they would at least contact the person that made the original determination if they think there is something wrong with the way he has done it, to contact that person and say now, why did you do it that way, rather than just take it upon himself to say well, it wasn't any good. Understand what I am saying?

Dr. Garthwaite. Yes, I totally agree and I sincerely believe that most, if not all, the managers might have followed a different course.

Mr. Volkmer. What is going on within the VA now that we know all that has happened and it is all open, everybody can look at it, what policy changes are being made so that we don't have to have it happen again somewhere?

I am not saying--I heard you say it could be happening and everything else. I am not saying you can prevent it altogether. As far as in the event that somebody, I don't care whether it is a worker or whether it is a--I mean, a nurse, or whether it is an intern or whether it is a doctor or whoever it is, somebody in the future says hey, here it is, it is happening in Denver or it is happening in Seattle, are we going to go through this 4 years after that again to say now because the local director and the local chief of staff maybe, or at least the director, I don't want to hurt the image of my hospital?

You understand?

Dr. Garthwaite. Yes, I understand perfectly.

Mr. Volkmer. What policy are we making so that if a person does make that allegation he is not being told now we don't want you reporting that to the FBI?

Dr. Garthwaite. I think we have many rules that would guide us to do the right things. Unfortunately, placed in certain situations, human beings sometimes disappoint us.

It is my hope that as we select individuals and as we reward certain types of behavior and discourage others that as an institution the VA can be consistent in what we reward and discourage. I think we have begun what I would consider a cultural and a massive transformation of the system.

I think decisions are made differently. I think that the fact that Dr. Christensen is here with unedited testimony is important, and frankly, I think he has done a wonderful job at bringing that forward.

I think he is to be commended for his honesty and his persistence in trying to see through what he believes to be the right thing. And so other than to publicly behave in a way that encourages people to follow the rules that are already there and to discourage those people as strongly as we can who fail to meet those expectations, I am not sure what exactly we can do.

There are some other things we do that will try to detect and find those things, but when you talk about a management response, I think my first answer is important. The other things we do is we have more and more statistical evidence as we computerize more and we do better with information as we enhance our quality improvement systems I think we are better at detecting it. We noted this increase that may not have been noted in every hospital in the United States and it may not have led to this investigation.

In addition, we have an enormous database with surgery patients now over 100,000 strong where we are trying to understand what are the risks for going into surgery and how do we improve and correct that process. We have surveyed 100,000 veterans for their satisfaction with their care and we can get that down to the ward level so that we know whether or not--whether we are making a difference, whether they feel good about their care.

We are asking them the questions that they believe are important about their care. So we are doing whatever we can to aggressively pursue the right thing to make people assure people get the best quality care.

When it gets down to the bottom line of people following decisions and being honest and upright, I think that probably the best we can do is to encourage them to model that behavior and to come down hard on people who don't meet our expectations.

Mr. Volkmer. Mr. Carson.

Mr. Carson. Yes, sir.

Mr. Volkmer. What is the morale at the Columbia VA Hospital, at the present time, viewing this situation?

Mr. Carson. I think Dr. Christensen correctly portrayed that when he mentioned his views of the Columbia VA Hospital, I certainly share them. I think it is an excellent VA medical center.

A number of patients come there specifically because of its reputation when they could choose other VA medical centers. Obvious--excuse me, I have a cold. Obviously, one of the difficulties at the medical center has been the impact of this particular concern that is ongoing.

We would all like to see it resolved, hopefully soon, by a report from the Federal Bureau of Investigation. But I believe very strongly in spite of that we have excellent morale at the medical center. It is not good everywhere, as you would expect. There are always some concerns. But it is best voiced I believe very strongly by the fact that many patients come to our medical center very specifically, as I mentioned, when they could choose other VA's and by and large the patients that we deal with and their families, in contacts we have with them, are very pleased with the services they receive.

So I think it gives very, very good care and it has a very committed staff who are dedicated to doing that and this is one of the particular incidents that we would all like to see put behind us. It, in fact, unfortunately, is facing us, but I don't think it has impaired the staff at all in their providing quality patient care.

Mr. Volkmer. Just to put a plug in, you need a little outpatient center, don't you?

Mr. Carson. Yes, sir. We would hope that no one derails our ambulatory care center.

Thank you, Congressman Volkmer.

Mr. Volkmer. Just had to put the plug in.

Mr. Hutchinson. You never miss an opportunity.

Mr. Volkmer. Thank you, Mr. Chairman.

Mr. Hutchinson. The chair would recognize Minority counsel for a question.

Mr. Ibson. Mr. Coy, I would just like to ask one question, if I might.

Dr. Christensen has raised a substantial question regarding the Inspector General's ability to have conducted an independent impartial objective investigation in this case. I would like to ask you for the future, remote as this scenario might be, whether in a case like this where the integrity of the IG's ability to conduct an investigation is called into question, whether there are alternative mechanisms by which such an investigation could be mounted, whether, for example, arrangements could be entered into with another agency's inspector general to investigate a matter within the Department of Veterans Affairs.

Mr. Coy. Well, we try to work closely with law enforcement agencies. State law enforcement agencies, licenser boards, medical examiners.

Could we get involved in a situation you have suggested? Sure, we have had joint investigations before. Usually it has been in situations which involved two departments. But I am sure that that type of a shared activity is permissible under the Economy Act.

Whether it is necessary, is another question. But there are options that can be available. I think by and large most people would say that the IG is not impeded from proceeding without, you know, fear of any problem areas with respect to their independence or objectivity.

But to answer your question specifically, there probably are other investigative approaches that can be utilized if we wanted to, but we try to work together to accomplish a good result.

Mr. Ibson. Thank you very much.

Mr. Hutchinson. Before we dismiss the panel, we appreciate your patience and sticking around so long this morning. I have just a few concluding questions.

I understand there have been a number of tort claims filed against the VA on the basis of what happened in Columbia. How many wrongful death claims have been filed to date against the VA?

Mr. Coy. There have been six administrative tort claims filed relating to deaths that occurred on that ward over the period of time that we are talking about.

Mr. Hutchinson. And what is the status of those claims?

Mr. Coy. Based on our investigation and the lack of specific information with respect to negligence, wrongful death or anything of that nature, four of those claims were denied. One claim is pending. And one claim was settled because there was specific evidence of improper care that we could clearly define.

I believe the patient choked, but there was a clearly defined incident, and that case was settled. So one of the six was settled, one of them is pending and one of them has proceeded to a litigated status, as opposed to an administrative tort claim.

Mr. Hutchinson. The VHA, Dr. Garthwaite, in response to the OIG's recommendation has promised policy guidance changes to cover situations like at the VAMC in Columbia. This is to occur in the upcoming revisions to M-2, Part 1, Chapter 35, Integrated Risk Management program. Can you give us kind of a goal on when we can expect those policy changes to be implemented and what those changes might be?

Dr. Garthwaite. I think we will do that with all due haste. We will move expeditiously to get that done within the next couple of months.

I think the goal is to provide as specific and helpful guidance and guidelines as possible, taking into account some of the complexities that we have already talked about. And I think that the hardest part will be to look at when you have a suspicion, how much data does one need and how much suspicion does one need to contact legal authorities. And I think that we want to make sure that the guidance suggests it is better to err on the side of contacting rather than to err on the side of not contacting. And I think that to the extent that there are a lot of rules and regulations that every VA manager and employee is subject to, we have to make sure that we not only make those rules but then articulate them well and educate our work force to carry them out. So that is where I would aim.

Mr. Hutchinson. Okay.

On the quality assurance teams, does the VA require the inclusion of a biostatistician on those teams?

Dr. Garthwaite. No.

Mr. Hutchinson. No.

Who do the teams look to for validating statistical analysis?

Dr. Garthwaite. Well, typically people with the most expertise, and obviously in this case to--to Dr. Christensen. The medical center that I was at previously, we had a physician who was the sort of the main liaison with that group and he had a biostatistical background as well.

You raise an important issue. It is one I think we ought to look at and see if we can provide that kind of expertise. Certainly at a VISN level we should be able to identify someone with expertise in each of our 22 visions who cannot only be there to answer questions but hopefully to provoke some good questions.

Mr. Hutchinson. Mr. Carson, describe the Quality Assurance program at the Med Center now. Is it essentially the same that was in place in Columbia in 1991 and 1992, or have changes been made?

Mr. Carson. In terms of the number of people doing that task, it is basically the same. In terms of some of the significant changes that have occurred, I think one of the major changes that is particularly important in this case has to do with now we identify number of deaths by ward, where before we tended to do it by service.

We also have gotten more heavily involved in terms of identifying activities by the provider, which I think is the second piece and very important piece for any Quality Assurance program. There had been a tendency in the past to do it more in terms of services provided as opposed to providers providing that service. So that right now we have better trending of where deaths occur so that hopefully we would pick up any unusual occurrence faster. We also are looking more specifically at providers as we use the QA data for their privileging activities.

It is important for us to have information by provider. I think that that has strengthened significantly over the last 3 or 4 years, not only at the VA in Columbia, but I think in the VA system in general.

Mr. Hutchinson. Do you concur with that, Dr. Garthwaite; is that what kind of changes have been made systemwide?

Dr. Garthwaite. Yes. And we always will be able to ask good questions for which we will have not have collected the data. But as we continue to enhance our data systems, that is a significant part of our objective.

Mr. Hutchinson. Mr. Carson, it is my understanding that several of the individuals who contributed to the Dysfunctional Management Environment Report of the OIG report have been placed in different positions. What tools do you have as manager to ensure that your management team is functioning as it should?

Mr. Carson. I think that Dr. Garthwaite touched very effectively on that. And one of the most exciting things I believe about the VISN structure has to be the fact that we are developing for everyone our performance requirements, performance expectations, or performance contract, whatever the terminology might be, so that we are actively developing objective criteria with which to measure everybody.

Unfortunately, that is not totally in place even at our Medical Center, and I believe Mr. Kroll mentioned that some of that activity is presently taking place.

We presently have for most employees their performance requirements, but as Dr. Garthwaite mentioned, over the years, unfortunately, many of those are very subjective and they don't lead to objective measures to determine the effectiveness. But right now we have performance requirements in place. They are being improved so that they will be more like performance contracts.

We are modifying them where they contain subjective measures so that we can utilize objective measures and they all are being aimed at being very patient-centered and patient-specific.

Mr. Hutchinson. Now, if the performance levels are not achieved, do the current Civil Service in Title 38 authorities allow you to effectively reprimand or terminate employees who may not measure up?

Mr. Carson. They certainly allow us to do that. I guess we could debate whether or not we could use the word "effectively" do it. But there is no question if someone fails in their performance that appropriate actions can be taken, sometimes it takes a little longer than we would like. The system over the years has been streamlined but the basic answer to your question is yes, there are measures in place to allow us to take appropriate action.

Dr. Garthwaite. I would say that the effort required often in those situations is extreme and requires a lot of expertise and expert individuals to be involved early in the process. That has impeded some of our attempts at removal in the past.

I mean, it is a laborious process to say the very least. Whether or not it functions well, it functions I think well to remove individuals who would not on a scale--on a grade scale like you get in college, who would receive an F, there is going to be little doubt.

The question may come--I have always had doubt in the system in whether someone who gets a D or D-minus, whether you have--whether that is easily done or not and it is--it often becomes a matter of judgment. It is very difficult and very time-consuming.

Mr. Hutchinson. I want to thank the panel. And I want to express my gratitude to all of the witnesses today for their contribution to this hearing.

And let me echo what Mr. Bilirakis said earlier, I don't think this should undermine confidence in the VA system and that what occurred at Columbia is the rarest of exceptions to the general pattern of good, quality care for our veterans. And I would--I would regret greatly that if what came out of this hearing was in any way undermining the VA mission or the confidence in the VA health care system. We have a good system and we have lots of people who are very committed to the care of our veterans and to providing them the best health care possible.

I do believe that in our oversight responsibilities and fulfilling them that there have been today raised very grave and very serious issues that need to be not glibly addressed but very seriously addressed and very expeditiously addressed, and I will just commit that this subcommittee will continue to monitor the changes in response to the tragedy at VA Columbia.

Thank you for your participation.

And the hearing is adjourned.

[Whereupon, at 12:28 p.m., the subcommittee was adjourned.]