Court Filing Raises Issues Of Criminal Deception by CCF

On September 18, 2015, the Plaintiffs in the taxpayer lawsuit filed an Emergency Motion to Compel Discovery (the “Motion”) against the Cleveland Clinic (CCF) and the Lakewood Hospital Association (LHA) claiming that both entities are withholding critical and relevant evidence. The evidence concerns past and ongoing removal of medical service lines and personnel from Lakewood Hospital—actions that the Plaintiffs say have caused and will potentially cause severe damage to the viability of the hospital.

The Plaintiffs are asking the judge to order CCF and LHA to produce, among other things: (1) all strategic plans for Lakewood and Fairview Hospitals, (2) the current and pending plans for removing, diminishing and decanting any medical services lines from Lakewood Hospital; and (3) Ann Huston, Head of CCF’s Strategic Department for a deposition; and (4) LHA meeting minutes including minutes of committee meetings headed by Mayor Summers.

The Plaintiffs want this additional evidence that they say will “pinpoint the decision-making timetable and process to close and decant Lakewood Hospital.” The Motion references a criminal statute containing the legal definition “deception.”  On September 21, 2015, former Congressman Dennis Kucinich spoke publically about the facts set forth in the Motion and suggested that he may call for a grand jury investigation. It appears from the facts known so far that if the additional evidence shows that CCF was planning to close Lakewood Hospital at the same time CCF made representations and promises to City Council in 2010 that Lakewood Hospital was viable and sustainable in the long term, it may be a crime.   

  1. The Criminal Law—Securing Writings By Deception.

Ohio Revised Code Section 2913.43 sets forth the crime of “Securing Writings by Deception”: “no person, by deception, shall cause another to execute any writing that disposes of or encumbers property...”  Under that criminal law, "Deception" means knowingly deceiving another or causing another to be deceived by any false or misleading representation, by withholding information, by preventing another from acquiring information, or by any other conduct, act, or omission that creates, confirms, or perpetuates a false impression in another, including a false impression as to law, value, state of mind, or other objective or subjective fact.”

  1. A Writing Potentially Secured By Deception---a 2010 Lakewood Council Resolution.

In 2010, City Council passed a written resolution that allowed Lakewood’s trauma and in-patient pediatric care service lines to be transferred to CCF’s Fairview Hospital. The written resolution expressly relied upon an “April 6, 2010 letter from [CCF] leadership to the City of Lakewood” and stated that “The citizens of Lakewood and the elected officials have been assured continued, active participation in key decisions… ”  The April 6, 2010 letter was followed up by a May 24, 2010 letter and accompanying representations by CCF that the resolution “positions the Hospital for future sustainability” and “viability of Lakewood Hospital.”  

Documents obtained so far show less than a year later in 2011; CCF secretly commissioned and began implementing the plan to demolish Lakewood Hospital that was ultimately set forth in the Letter of Intent (LOI) announced in 2015.  “The evidence suggests that a decanting strategy and medical office building plan was secretly under consideration at the very same time that representatives of CCF were providing public assurances and pronouncements as to the long term sustainability of Lakewood Hospital.” 

  1. The Property Disposed of Was Valuable Service Lines.

Trauma and in-patient pediatric care service lines were valuable assets of Lakewood Hospital. In fact, under its agreements with LHA and the City, CCF needed the City’s permission to remove these service lines.  It is assumed that City officials would not knowingly work to destroy their own hospital and that they would only give their permission to give CCF these valuable service lines if CCF had represented to City officials that the service lines promised to Lakewood were of equal or greater value in sustaining the future viability of the hospital. Given the great dollar value of these assets, if the crime is established, it would be a felony. 

  1. The Detailed Facts Concerning Deception.  

The facts from documents and depositions of CCF official taken so far point to a longstanding deception by CCF that is akin to a classic bait and switch scheme.

As mentioned above, the Plaintiffs’ Motion is currently focused on CCF and LHA’s strategic planning related to Lakewood Hospital. In this regard, it is important to note that CCF’s Dr. Stephen Jones testified before City Council that it generally takes about 3 to 5 years from the beginning of planning until the time that patients are seen. So for example, the plans for the removal of trauma from Lakewood to Fairview in 2010 began years earlier. Indeed, John Mills, Chief Operating Officer of Fairview Hospital, testified that in 2007, he developed a business plan to enlarge the Fairview emergency room that was approved by CCF in 2008.

The “Bait” Included New Hospital Buildings and Then CCF Switched to Less Tangible “Centers of Excellence.”

According to documents and testimony, in 2007-2008, CCF initiated a plan approved by LHA Trustees to reconstruct and renovate two of Lakewood Hospital’s oldest buildings with an estimated budget of $65-69 million. CCF withheld its approval for this project and switched to offering Lakewood the so-called “Centers of Excellence” which included “Geriatrics, Orthopedics, Neurological services and Diabetes/Endocrine.” The Centers of Excellence were essentially programs that CCF controlled and were promised to Lakewood in exchange for taking the valuable trauma and in-patient pediatric lines to Fairview. In 2010, CCF wrote to city Council: “We remain committed to investing in facilities and programs at Lakewood Hospital.” Also, on June 10, 2010, Janice Murphy, CCF’s President of Lakewood and Fairview Hospitals told City Council that “Dr. Bronson [CCF’s then President Regional Hospitals] was eager to provide a world class hospital and was duty-bound on that promise.

However, even before the Centers of Excellence were fully developed, the "Decanting Plan" to close Lakewood Hospital was commissioned by CCF in 2011 and fully developed by 2012. According to the Motion, the testimony and documents show “the Decanting Plan was formulated in secret with a confidential Fairview Hospital and CCF steering committee.” Decanting has been described as the removal of hospital medical equipment and service lines from Lakewood Hospital and their transfer to Fairview Hospital and other CCF hospitals—this included the plan to close and demolish Lakewood Hospital and build a medical office building (later called a family health center). CCF officers testified under oath that approval of the decanting of Lakewood Hospital and replacement with the proposed medical office building would have been approved by the Medical Institute Chairs and Board of Governors and would have occurred prior to 2011.  

The Implementation and Cover Up of the Decanting Plan

One exhibit attached to the Motion shows that the secret committee covered up the Lakewood “Decanting Plan” by referring to it as "Market/System Impact" instead of decanting.  

Additionally and similarly, another exhibit (Mayor Summers’ July 3, 2014 letter to CCF’s President of Regional Hospitals) shows that numerous elements of the “decant” had been implemented by 2014. In his letter, Summers referred to  CCF’s “unilateral strategic approach” to disregard Lakewood by “moving Rehabilitation Services” to Avon and other programs in "unilateral" action having a “detrimental impact” and “devastating impact on the financial viability of our hospital.” However, from January, 2015 through present, Summers repeatedly made claims to the public and City Council that "market trends in inpatient beds" and “changes in healthcare” rather than CCF’s unilateral secret actions threatened the viability of the hospital.  

Another exhibit contains an August 26, 2015 CCF solicitation of Lakewood Hospital staff physician Terry Kilroy to work at CCF’s new Avon rehabilitation hospital starting in early 2016. This solicitation of one Lakewood’s best and brightest physicians is in contrast to contemporaneous representations by LHA and CCF that hospital personnel and doctors are not being lured away to CCF’s other facilities.

Summary

The Summers and CCF narratives of "market trends" and “Market/System Impact” appear to be cover stories for the ongoing “decant” of Lakewood into Fairview and Avon. If the evidence currently being withheld by CCF and LHA is ordered to be produced it may show an active criminal deception of Lakewood and the public in 2010.

Evidence is mounting that CCF and those aligned with them are again using deception to obtain another ordinance from City Council that would not just close the hospital, but also reward wrongdoers and absolve them from prior bad actions. On April 30, 2015, Dr. Brian Donley, CCF’s Chief of Staff, told City Council that the long-term success of the proposed CCF facility was largely about the City having “faith” in CCF.

The facts presented so far and the numerous critical questions still unanswered, likely explain why so many Lakewood residents lack faith in the City leaders proceeding with negotiations with CCF and LHA regarding the future of their healthcare, and the demolition of their hospital.     

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Volume 11, Issue 21, Posted 12:08 PM, 09.29.2015