2007: The Seattle Times
3/1/2007
ASNE Staff
Award for Local Accountability Reporting
Thursday, March 1, 2007
by: ASNE Staff

Section: Local Accountability Reporting


Article list

The cases your judges are hiding from you

By Ken Armstrong, Justin Mayo And Steve Miletich
Mar. 5, 2006

Four years ago, a lawsuit was filed in King County Superior Court, alleging that a medical device was unsafe. A woman using it wound up in a coma. You'd probably like to know: What's the device? Does anyone in my family use it? Unsafe how?

But you can't know. You're not allowed to know. Medtronic, the multibillion-dollar company that makes the device, asked a judge to conceal the whole file from public view - and the judge said OK.

Twelve years ago, an Eastside family sued KinderCare, one of the country's largest child-care companies, saying it was responsible for the sexual abuse of a child. You'd like to know: Who was accused of sexual abuse? How was KinderCare involved? Were police notified?

But you can't know. That file, too, is sealed - hidden away by a court commissioner who has sealed dozens of cases, stamping his name on one secrecy order after another.

Document after document, file after file, has been sealed - and sealed improperly - by the judges and court commissioners of King County Superior Court. A wrongful-death lawsuit against Virginia Mason Medical Center? Sealed. A lawsuit accusing a King County judge of legal malpractice? Sealed. A lawsuit blaming the state's social-services agency for the rape of a 13-year-old girl? Sealed.

Since 1990, at least 420 civil suits have been sealed in their entirety, The Seattle Times found. That means everything - from the complaint, which says who's accused of what, to the judgment, which says how the case wound up - has been concealed, locked behind electronic passwords or number-coded keypads that restrict access to computer records and shelved files.

These sealed records hold secrets of potential dangers in our medicine cabinets and refrigerators; of molesters in our day-care centers, schools and churches; of unethical lawyers, negligent doctors, dangerous dentists; of missteps by local and state agencies; of misconduct by publicly traded companies into which people sink their savings.

The Washington Constitution says: "Justice in all cases shall be administered openly." To this, many King County judges have effectively added: "unless the parties don't want it to be."

The judges have displayed an ignorance of, or indifference to, the legal requirements for sealing court records. They have routinely sealed files while 1) offering little or no explanation, 2) applying the wrong legal standard, and 3) failing to acknowledge, much less weigh, the public interest in open court proceedings.

At least 97 percent of their sealing orders disregard rules set down by the Washington Supreme Court in the 1980s.

The state's highest court says court records should be sealed only in rare circumstances. Its message is: Your taxes pay for the courts. You're entitled to know what goes on there. You elect the judges. You need to know how they do their job. The public cannot evaluate its court system - nor hold judges accountable - if the courthouse curtains are drawn.

Judges and commissioners have sealed at least 46 cases where a public institution is a party. Is some public agency slipping up? Some public employee? Are taxpayer dollars at risk? Good questions all, but you can't have the answers. Local school districts, the University of Washington, the state Department of Social and Health Services - all have had files sealed.

Judges and commissioners have sealed at least 58 cases where a fellow lawyer is a party, usually as a defendant. Leading firms, prominent lawyers, judges - all have had files about them sealed.

The courts have sealed cases where the person being sued was a licensed professional - for example, a doctor, psychologist or counselor - who was subsequently disciplined by the state. Those lawsuits might have served as a warning, had they not been concealed from the public.

And the courts have sealed one case after another at the request of the rich and influential, including leaders in real estate, advertising, banking, medicine, software development, the Internet, general business and sports.

The 420 cases that we found represent but a sliver of all the sealed records in our courthouses. That number applies only to civil suits in one court: King County Superior. We excluded other types of cases, such as divorce, adoption, paternity or child-custody matters. The 420 also accounts only for cases sealed in their entirety. Many others are sealed in part. We stopped counting those at 1,000.

Two years ago, the Washington Supreme Court wrote: "The open operation of our courts is of utmost public importance. Justice must be conducted openly to foster the public's understanding and trust in our judicial system and to give judges the check of public scrutiny. Secrecy fosters mistrust."

The court wrote that while unanimously reversing a King County judge who had improperly sealed court records in a business lawsuit. And this was a case where the judge sealed part of the file, not the whole thing.

The same judge, Sharon Armstrong, has sealed the entire file in at least 11 cases since 1990. A lawsuit involving a pedophile priest? Sealed. A lawsuit against Metro for hitting a pedestrian in a crosswalk? Sealed. She has also sealed two lawsuits against the state Department of Social and Health Services, and three against lawyers or law firms.

In months to come, The Seattle Times plans to get files unsealed and questions answered. The court's leadership crafted a plan that would have opened files with minimal delay, but other judges rebelled, saying the newspaper should be required to file a formal motion in each case that was improperly sealed.

We're going to be filing lots of motions.

Hiding harm

When something goes wrong - a product fails, a doctor is negligent, a company cheats its customers or investors - lawsuits often follow, generating court files crammed with evidence accumulated by each side.

But by sealing records, judges can conceal that evidence. Many also sign sweeping protective orders that allow the parties to dictate which records the public can see. Many permit the parties to settle secretly, even in cases involving public hazards.

Examples abound nationally of dangers hidden by such steps. Tire treads that separate. Car fuel tanks that explode. Priests who molest children. Heart valves, painkillers and birth-control devices linked to dozens or even hundreds of deaths.

Litigation has become a system of secrecy. A defendant, accused of wrongdoing, wants records produced during a lawsuit to stay between the parties. The plaintiff goes along to pave the way for settlement. The judge signs off because it's the easy thing to do. When the case is settled, the parties sign a confidentiality agreement. You ask the plaintiff about the lawsuit, and he says he can't talk.

One result is that patterns - with products and with people - can get obscured.

Take the case of LaVar Riniker, a Bellevue dentist with an unusual practice. He treated some patients' backaches or hip problems by changing the shape of their jaws, state records show.

In 1996, Riniker's lawyer wanted a malpractice lawsuit against his client sealed. The plaintiff joined in, and a judge signed off. Two months later, the lawyer wanted a second lawsuit against Riniker sealed. The plaintiff went along, and so did a court commissioner. In 1998, the lawyer showed up again - with secrecy request No. 3. But this time, a judge said no. Judge LeRoy McCullough knew the law and said sealing the whole file would be improper. He did, however, allow the settlement terms to remain confidential.

In 2000, the state refused to renew Riniker's dental license, finding he was incompetent. By then, Riniker had been sued for malpractice at least 16 times, court records show. Most of those lawsuits involved some level of secrecy - either the whole file was sealed, or the case was resolved confidentially.

Riniker was, of course, an individual dentist. You probably never went to him. But other sealed lawsuits have alleged malpractice at such medical institutions as Group Health, Swedish, Virginia Mason and Harborview.

Lazy sealing practices have allowed some people to play the courts for a fool.

Michael Cassini, a convicted con man, scammed more than $4 million from banks by pretending to be a Microsoft millionaire. One way he covered his tracks was by changing his name - and, with the help of Preston Gates & Ellis, a prestigious law firm, getting a King County judge to seal the court file.

Seth Warshavsky became rich in the 1990s selling pornography on the Internet. He was profiled extensively - the "Bill Gates of Porn," some stories called him - but proved an elusive figure. That's because the courts kept allowing him to erase his history.

According to King County court records and newspaper reports, Warshavsky managed to seal: one civil suit in which he was accused of overbilling thousands of customer credit cards; a second civil suit accusing him of choking his former girlfriend; and criminal files in adult and juvenile court listing such priors as theft and trying to sell a stolen laptop.

Warshavsky couldn't be reached for comment. Some reports say he fled to Thailand several years ago.

Secrecy triumphs

In lawsuits filed in King County, the parties' desire for secrecy has regularly trumped the public good.

Consider case No. 95-2-22817-8. Because a judge sealed the file, all you're supposed to know about this case is the names of the parties and that it involves a tort - a wrongful act that you can sue somebody for.

But someone made a mistake and left this file open. Every document popped up on the courthouse computer. (The file was closed two weeks ago, after we notified the clerk's office.)

The documents told this story:

In 1995, a young man sued Donald Sidwell, an aerospace worker with "top secret" security clearance whose job was so sensitive that he couldn't divulge what projects he worked on.

The plaintiff accused Sidwell of sexually abusing him when the plaintiff was a child. (The Seattle Times does not name alleged victims of sexual abuse.)

Sidwell denied the allegations. His attorney called them "totally false" and likened them to an extortion attempt.

Still, Sidwell agreed to settle.

On Jan. 30, 1997, the parties filed a document saying Sidwell would pay the young man $212,000. The same day, Sidwell's lawyers asked Superior Court Judge Harriett Cody to seal the whole file.

Here's the reason they offered:

Sidwell worked in the "high-security aerospace defense industry." His employer was Lockheed Martin, in Southern California. (He previously worked for Boeing in Washington state, which is where the alleged abuse occurred.) His "top secret" security clearance was granted to fewer than one in 20 employees.

Sidwell's work made him subject to close surveillance and record-checking. Discovery of this lawsuit could mean loss of his security clearance and job. Without his job, he couldn't pay the young man.

So, out of concern "for the plaintiff's recovery and the defendant's livelihood," the file should be sealed, Sidwell's lawyers wrote.

Judge Cody sealed the file.

The sealing request and the judge's order make no mention of Lockheed's interest in knowing what Sidwell was accused of. Nor do they mention the interest of the federal government, which issues security clearances - and has the power to take them away. Nor do they mention the potential for blackmail created here. What would happen if the wrong people learned of Sidwell's secret?

Sidwell kept his job. The "defendant's livelihood" was protected. Now 67, Sidwell retired about a year and a half ago.

But as for the "plaintiff's recovery"? That didn't work out so well. Nine years after the case was settled and the file sealed, Sidwell has paid only a fraction of the $212,000, according to the young man's lawyer.

Sidwell told The Times that he still owes about $160,000 - and hopes to pay that off by selling some land.

He still denies the sexual abuse. He settled, he said, because his attorney fees were getting too steep. And he's convinced that if Lockheed had learned of the lawsuit and settlement, he would have been fired. (Lockheed declined comment for this story.)

So, in the end, the only person that secrecy served was Sidwell - the man who was accused of molesting a child, the man who agreed to pay $212,000 but hasn't.

Unlawful orders

The Washington Supreme Court says that to seal a file, a judge must: 1) find "compelling circumstances," a demanding legal standard; 2) explain, in an order, why secrecy is needed; and 3) weigh the arguments for privacy against the public's interest in open courts.

We were able to get the sealing orders in 383 of the 420 sealed cases. Here's what they show:

o In 361, or 94 percent, the court failed to find "compelling circumstances." The order used the wrong legal standard - citing "good cause," a much lower threshold - or used no standard at all.

The difference between "good cause" and "compelling circumstances" is the difference between having some reason for secrecy - for example, the defendant doesn't want to be annoyed - and having a superior reason, one so persuasive it outweighs the constitutional presumption of openness.

At right, in Example 1, a judge sealed a file involving a priest accused of molesting children, writing in, by hand, that "good cause" was shown.

o In 196 cases, or 51 percent, the sealing order offered no explanation for secrecy, much less a detailed one. And we were being generous here, counting such throwaway lines as "nature of allegations" as some explanation.

In Example 2, a court commissioner used a fill-in-the-blank form to seal a medical-malpractice lawsuit. The top line is reserved for the court's explanation. She left that line blank.

Note how this form uses the wrong standard - good cause - and leaves little room for explanation. The court is supposed to describe, in detail, the arguments for secrecy and weigh them against the Washington Constitution - but you couldn't even fit this sentence into that space. More than 100 cases have been sealed with this form. Nineteen times, the explanation line was left blank.

o In 373 of the orders, or 97 percent, the judges not only failed to weigh the public interest - they didn't even acknowledge there is such an interest.

This disregard can border on the absurd. In 1998, a King County man asked to have three lawsuits sealed. Two accused him of domestic violence, the other of harassment. A different woman filed each one. Here's why he wanted secrecy: The man wanted to be a security guard - a job that can require background checks - and said these lawsuits were in his way. A commissioner sealed all three.

As you can see, in Example 3, the sealing orders did not take into account the obvious public interest in letting licensing officials and prospective employers view these court files.

Without question, some records can meet these sealing requirements: bank-account numbers; personal information about children; psychiatric records; legitimate trade secrets. But the state Supreme Court has told judges to seal only those documents that need sealing - or, better yet, redact account numbers or use initials for minors.

About half of these 383 cases were sealed by court commissioners, not judges. Commissioners have many of the same powers as judges but are not elected. Commissioners sealed files mostly while in a cattle-call court called the Ex Parte Department, where orders get signed with dizzying speed.

King County judges tend to explain widespread sealing this way: The parties agreed to it - and judges like it when the parties agree. Judges sometimes view their role narrowly: to settle disputes, not start them; to handle issues raised by the parties, not to bring ones up.

Michael Trickey, who became presiding judge of King County Superior Court in January, said: "I think the culture, among the bar and even the bench, used to be that if an agreed order was presented, it was just signed."

Judges' roadblock

Judge Trickey uses the past tense when he describes such relaxed sealing practices. He says judges have become more attuned to the public's right to open records.

After we showed the judges our findings, they began to fix some problems. The court is throwing out its old sealing forms, providing extensive training to judges and commissioners on sealing restrictions, and taking the power to seal away from substitute commissioners.

Late last year, when we alerted the court's leadership to the hundreds of improperly sealed files, a small group of top judges came up with a plan that would have opened many, if not most, with minimal delay. These judges included Trickey; Richard Eadie, the presiding judge from 2002 until this January; and William Downing, one of the state's leading experts on open court records.

Under their plan, the court would have notified parties that files appeared to have been sealed improperly, and that the court would be opening them unless the parties voiced objection.

But other judges on the court objected. In January they overturned the plan, by a vote of 21-9.

Instead, the court is requiring The Seattle Times to file a motion in every case. Feel free to file 400 motions, the court has said, a demand that imposes extraordinary expense and delay.

The judges who voted against the leadership's plan cited General Rule 15, a rule adopted by the Washington Supreme Court in 1989. The rule says that once sealed, records shall be unsealed only upon agreement of the parties, or upon motion and "proof of compelling circumstances."

But this is the same rule that says a file should be sealed only for compelling circumstances.

So: The judges ignored General Rule 15 while sealing hundreds of these cases. Now, they are requiring us to follow that rule to undo something that should not have been done in the first place.

And, if they follow the rule to its letter, they will require the newspaper to show compelling circumstances to unseal, while they sealed on far less. That would flip the presumption of open courts on its head.

Not every judge is going along. Judges are elected individually and can handle their cases as they choose. Dean Lum, the court's chief civil judge, unsealed one lawsuit last month without requiring the newspaper to file a motion. Judge Eadie unsealed another. "I see that the judge has an individual responsibility to step forward," Eadie says. "Not everybody agrees with that view."

In 1999, Eadie sealed a medical-malpractice lawsuit. But he recently looked at his sealing order and said: "It doesn't give any description of why, or reflect any weighing of the public interest, or any indication of why the compelling circumstances outweigh the public interest."

So Eadie sent a letter to the attorneys in January, saying: "This should not have been done. It was inconsistent with the rules in effect at the time and is in conflict with recent case law."

His letter said he would open the file in a month. In the meantime, he wrote, the lawyers could ask that individual documents remain sealed, provided they could show compelling circumstances.

The lawyers made no such request - and the whole file was opened.

But hundreds of other files remain under seal.

We start filing motions tomorrow. We'll let you know how it goes.


Article list

Failures by state, caregiver kept secret in child-rape case

By Ken Armstrong, Jonathan Martin and Justin Mayo
Aug. 27, 2006

Like books on a shelf, every court file tells a story. In King County, file No. 03-2-27609-0 tells how a 13-year-old girl, a slip of a kid with a lost look in her eyes, wound up being raped while in the state's care and protection.

For the state's social-services agency, it's a story of bureaucratic bungling and a lack of backbone. For YouthCare, a high-powered nonprofit that operates several licensed group homes in Seattle, it's a story of unheeded warnings and the consequences of not paying $33 for a criminal-background check. For the state's lawyers, it's a tale of audacity, with attorneys under then-Attorney General Christine Gregoire claiming the teenage victim was partly at fault for being raped by a 29-year-old youth worker.

But important as the story is, this court file has been under seal for more than two years, banned from public viewing. A judge granted a motion by the girl's attorney that said the file "demonstrates unfavorable facts" about both the state of Washington and YouthCare and should be hidden away "to protect all parties from embarrassment."

Nearly all of the file was opened in July after a four-month court battle by The Seattle Times, which argued that such sweeping secrecy should never have been granted. When court files are sealed improperly - as this one was - the public suffers, deprived of information on the workings of its government and on the conduct of contractors entrusted with children's care.

The newspaper pursued this case as part of a continuing investigation of sealed court files. At least 420 civil suits have been sealed in their entirety in King County Superior Court since 1990, the newspaper has found. Almost all were sealed in violation of laws that restrict secrecy and recognize the importance of open courts.

The Times has filed motions to open dozens of those cases, to tell their stories of alleged medical negligence, unsafe consumer products, and wrongdoing in schools, churches and corporate boardrooms.

"I just did not realize it was so loosey-goosey"

For years, Barbara Rosenwald, a licensing inspector for the state Department of Social and Health Services (DSHS), voiced concerns about YouthCare. DSHS ensured that YouthCare met licensing standards and also paid the nonprofit to care for wards of the state.

YouthCare helped troubled adolescents, especially runaways. Its board of directors included powerful business executives, state senators and state Supreme Court Justice Bobbe Bridge. Victoria Wagner, the chief executive officer, was once a runaway herself. She had helped YouthCare grow from an annual budget of $500,000 to $5 million. Pearl Jam and the actor Tom Skerritt pitched in on fundraising.

YouthCare helped more than 1,500 kids a year in its group homes, shelter and street-outreach programs. The group-home residents - maybe three dozen at any given time - had often been victims of abuse. The homes were meant to be safe havens, a place for kids to get direction and supervision from adults they could trust.

But Rosenwald documented chaotic conditions and lax practices that threatened the kids' safety: slipshod record keeping; inadequate staffing levels; assaults among residents not reported to police; and youth workers and supervisors unqualified for their demanding jobs.

The Times obtained Rosenwald's records and thousands of other documents - e-mails, memos, letters, investigative records and deposition transcripts - through the court file and a public-disclosure request to the state.

As early as 1996, Rosenwald expressed alarm that YouthCare allowed some workers who hadn't passed criminal-background checks to be left alone with kids.

In May 2000, Rosenwald was particularly unnerved by a visit to YouthCare's Threshold home, a long-term residential facility. The home's new director was a "novice" in over her head, Rosenwald wrote. Loose supervision allowed one girl to be sexually exploited while away from the home. That incident had not been reported to DSHS.

"I was at YouthCare yesterday - found some really really questionable supervision practices, philosophy, etc.," Rosenwald wrote to her boss. "As I explained to them - they would never pass a [headquarters] review. Like, it would be their programs - gone! zap! poof! I just did not realize it was so loosey-goosey."

In June 2000, DSHS managers met with YouthCare's top leaders, from Wagner on down, and stressed the need for YouthCare to hire qualified staff members.

"All-around nice guy" - with nine criminal convictions

Two weeks after that meeting, James Leonard Gregory Jr. applied to YouthCare for a job. "I would bring professionalism, dedication, creativity and lots of energy to your staff," he wrote.

Gregory's résumé showed he had worked as a corrections officer in South Dakota. His job application said he had no criminal convictions in the past seven years. His employment references described him as honest and trustworthy. One called him an "all-around nice guy."

But unbeknownst to YouthCare, Gregory had been fired from that corrections job for spitting on an inmate. He had been convicted of nine misdemeanors, including reckless endangerment, passing bad checks and making obscene or harassing phone calls. And his three references? Two girlfriends and a brother, Gregory later acknowledged.

YouthCare hired Gregory as a caregiver, at $18,000 a year. He began work in July 2000 at Threshold, the group home that had just caused Rosenwald such anxiety. The two-story brick home, on a dead-end street in Rainier Valley, was home to kids between 12 and 17, nearly all wards of the state.

As required, YouthCare submitted Gregory's name for a criminal-background check. Rosenwald processed the request. Within weeks she learned from the Washington State Patrol of Gregory's reckless-endangerment conviction - a disqualifying offense. (Renton police records say he fired shots while chasing people he suspected of stealing a friend's car.)

Rosenwald asked YouthCare in September for a signed waiver from Gregory, so she could disclose details of his rap sheet. YouthCare sent waivers twice. But Rosenwald, buried in a backlog of hundreds of unfinished background checks, later said she saw neither.

So Gregory kept working.

For 5½ months, DSHS failed to let YouthCare know the seriousness of Gregory's record. YouthCare, meanwhile, failed to push DSHS for details, even knowing something had popped up on his background check.

YouthCare could have learned of Gregory's criminal history on its own. The year he was hired, a private company had offered to do background checks for YouthCare with a turnaround time of two or three days. Gregory's would have cost $33. But YouthCare didn't take up the offer.

While Gregory worked at Threshold, his nine convictions became 10.

Four months into his job, Gregory picked up belongings from an apartment he once shared with a girlfriend - one of his sterling job references. After loading his car, he returned to the apartment, locked the door, and said how glad he was they could be so civil about the breakup, a Kent police report says. Then he slapped her across the face, twice.

He knocked her down, kneed her, then turned up the radio to drown out her screams.

Gregory was convicted of assault in January 2001 and sentenced to 365 days in jail, all suspended.

Meanwhile, his criminal-background check was still on a desk at DSHS, lost in a paperwork shuffle.

"If you ever looked in her eyes, she's lost"

Three weeks after Gregory's assault conviction, DSHS placed a 13-year-old girl in Threshold, leaving her in Gregory's care. Within days, he began grooming her, offering massages and kisses. He called her "Sexy Mama."

Her middle name was Lynn. The Seattle Times does not normally identify rape victims, so we are using only that identifier.

She was a skinny kid, with a background typical of a state ward. Her mother, a housecleaner with 13 kids and a gambling problem, had given Lynn up to DSHS. Lynn, in a court filing, said her mother would force her to stay home from school to care for six younger siblings. The two fought violently, she said.

Lynn's family life was so chaotic that she once ran into a brother but didn't realize they were related until they began talking. She hadn't seen him in about 10 years.

Her mom described Lynn this way: "If you ever looked in her eyes, she's lost."

Lynn filled out papers to move into Threshold on Feb. 8.

Because Gregory's background check hadn't cleared, he wasn't supposed to be alone with Lynn or other residents. But he was. On Feb. 16 he even escorted Lynn and two other girls to a musical performance at Seattle's Benaroya Hall, an evening they called "Girls Night Out."

"Keep it on the down low"

Gregory's shift on Feb. 17, 2001, was to begin at 3 p.m. But before work he got into a fight with and beat up another girlfriend - the YouthCare reference who had called him an "all-around nice guy."

She called police and went to a hospital, where she received five stitches for a split lip. Around 4 p.m., she filled out a domestic-violence form, saying Gregory had abused her at least six other times, leaving her with black eyes and bruises.

At about the same time, Gregory was at Threshold, working alone.

Lynn wanted to buy a soda. Gregory agreed to get one from the office. She followed him upstairs, got the drink and started to leave. Hold up, Gregory said. He locked the door and turned up the radio. "Where's my hug?" he asked.

This same afternoon, Rosenwald was scrambling to alert YouthCare administrators that they had uncleared staff members working alone at another group home, where a teenager had alleged being raped by a visitor. This cannot continue, Rosenwald told a YouthCare executive. He replied that "it would be taken care of immediately."

Inside the Threshold office, Gregory kissed Lynn and pulled down her pants. "I just laid there, because I was scared of him," Lynn said later. "I didn't know what to say. I didn't know what to do. I didn't know if he was going to hit me."

Afterward, Gregory told Lynn: "Keep it on the down low."

At 8:40 p.m., Seattle police arrived at Threshold and arrested Gregory - for the assault earlier that day, not for the rape. Before taking him away, police let Gregory find someone to cover his shift. He was, after all, working alone.

Later, Lynn let Gregory's replacement know what had happened upstairs. But he didn't call police or DSHS. He decided to let someone else handle it the next morning, he later told a state investigator.

Lynn was a "flirty, showtime girl," this worker later told DSHS, adding: "I think it was consensual even though she is only 13."

According to a roommate, Lynn spent the night crying.

It wasn't until 2:45 p.m. the next day that YouthCare took Lynn to the hospital. Police weren't called until 7 p.m., more than 24 hours after the rape.

"How do we justify this?"

Lynn's rape quickly reverberated through state government. The head of DSHS, Dennis Braddock, sent a written alert to then-Gov. Gary Locke's chief of staff - Braddock's third such alert about YouthCare in a week. The two others concerned a group home for young mothers, where one teen had reported being raped by a visitor.

DSHS considered banning admissions to all of YouthCare's programs but instead issued "stop placement" orders on just the two group homes with alleged rapes. These stop placements were the first in YouthCare's 27-year history.

A DSHS spokeswoman let administrators know Feb. 20 that she planned to issue a press release about the YouthCare incidents and the state's response. This news appeared to alarm Nancy Zahn - DSHS's head of group-home licensing statewide - who responded by e-mail:

"Please be aware that Youth Care has a very high powered board in Seattle; it is a long term agency with a ton of community support. Not to say that changes what we do but if we think [a particular boys ranch] had connections; we have seen nothing yet!"

The press release was never issued. What's more, DSHS quickly lifted the stop-placement orders after Wagner, YouthCare's CEO, called Zahn.

The admissions ban triggered by Lynn's rape lasted only four days - even though DSHS initially said the order would be reassessed only after its investigation was completed months later.

Rosenwald, the DSHS inspector, protested in an e-mail to her boss:

"The decision to reverse this action based on a call from a very influential CEO totally undermines our ability to work with this agency and weakens any case for them to actuate any changes. There is no way that they can take [regional DSHS licensers] seriously after this. We have absolutely no clout. How do we justify this when we take more serious action with other agencies for lesser things?"

Zahn declined comment for this story. So did Rosenwald.

Ten days after Lynn's rape, Wagner wrote YouthCare employees a letter, saying there was no single explanation for the series of group-home incidents. "The saying that `bad things happen to good people' is true, they also happen to good organizations," Wagner wrote. "And sometimes they come in clusters."

DSHS investigators continued to turn up more problems at YouthCare' group homes and shelters. One employee described a graveyard-shift worker who slept so soundly while on duty that kids couldn't even wake her to get medication. Another employee said higher-ups told her to schedule staff members to work alone even if they hadn't cleared background checks - and to "cross our fingers that nothing happens."

DSHS ultimately found fault with individual YouthCare workers - lower-level ones, mostly - but decided that the nonprofit as a whole was not negligent, saying it had "no foreseeability" that Gregory would do what he did.

For YouthCare, a neglect finding could have been a virtual death sentence.

"A through-the-looking-glass quality"

In August 2001, Rosie Oreskovich, DSHS's chief of child welfare, wrote to Lynn and apologized for her being raped. "I know my apology cannot right this terrible wrong," she wrote.

But when Lynn sued DSHS and YouthCare two years later, the state's lawyers argued that the girl was partly at fault for what happened.

They contended that Lynn consented to sexual relations with Gregory, and they even objected to any description of what happened as "a sexual assault."

Lisa Erwin, a senior counsel with the Attorney General's Office, said in an interview that the state's lawyers never disputed that a statutory rape occurred. But they argued that any money the state might pay Lynn should be reduced because there was "consent to the touching, even though it was a crime."

"What happened to her was horrendous, whether she consented or not," Erwin said. But Lynn would be owed more were this a forcible attack, Erwin said. The state, she said, had evidence indicating it wasn't: a lack of tears or bruises consistent with an attack, and what Erwin referred to as a "relationship" between Lynn and Gregory.

The state's "fault-of-plaintiff" defense infuriated Lynn's lawyer, Jeffrey Herman, who pointed out that under Washington law, a 13-year-old cannot consent.

"This position has a through-the-looking-glass quality," Herman wrote to the court, adding: "If [Lynn] were capable of consenting to sexual relations on the date of the crime, Mr. Gregory might have an excellent civil-rights claim against the State for unlawfully imprisoning him."

Gregory had already pleaded guilty to second-degree rape of a child and been sentenced to 6½ years.

The state wanted details of Lynn's sexual history. Herman objected, saying this invaded Lynn's privacy. The judge, Robert Alsdorf, concluded the state's request went too far and restricted Lynn's answers to dates of prior encounters and whether they were consensual.

Alsdorf also fined the state $1,000, in part for contending in court documents that there was "no basis" for Lynn's claim of sexual assault.

In 2004, the parties settled the lawsuit. Herman said he didn't want to put Lynn through trial: "I thought it would hurt her. She had been through a lot of sorrow and trauma in her life."

At the same time, Herman filed a motion to seal the entire court file. YouthCare had agreed to settle "only upon execution of a confidentiality provision," Herman wrote. The file, he wrote, "demonstrates unfavorable facts about both defendants" and contains material "very troubling" to Lynn.

Alsdorf granted the motion, even though Lynn's identity had been protected from the outset, with only her initials used in all but two court documents.

Now retired from the bench, Alsdorf said recently that he sealed the file to protect a minor's privacy. As a practical matter, closing the whole file was easier than redacting individual documents. "In hindsight, yeah, it would have been better not to seal it," he said.

Last month, the court's presiding judge opened the file, granting a motion filed by The Times. The newspaper argued that potential embarrassment to the state and YouthCare was no reason to grant such extraordinary secrecy. YouthCare objected, citing Lynn's interests and its concern that she had not been found and notified of the unsealing request.

The file, when opened, showed that the lawsuit was settled for $290,000, with the state paying $140,000, and YouthCare, $150,000.

After attorney fees and costs, Lynn received $157,000.

"I feel horrible about this case," Wagner said in a recent interview. "I always have. The last thing I wanted was to have a child in my care abused. ... This case has haunted me."

"I can defently take care of myself"

Since the 2001 rape:

YouthCare hired the private company that had been offering to do criminal-background checks.

Some workers were fired in YouthCare's lower levels, but Wagner and two deputies left for top jobs at other nonprofit agencies.

Six days after Lynn's lawsuit was sealed, Wagner received a lifetime-achievement award for her work at YouthCare.

Rosenwald, the licensing inspector, received a letter from DSHS taking her to task over Gregory's bungled background check. The rebuke came 10 days before she retired from DSHS, after 31 years.

At YouthCare, problems with unscreened workers continued. In 2002, a supervisor was fired for kissing and hitting on a teenager living in a group home. He had been spending time alone with the girl - even though he had yet to clear his criminal-background check.

In 2003, the DSHS inspector who succeeded Rosenwald visited a YouthCare home and documented violations that caused "great concern." One employee had received a badge saying he was cleared to work with children, but in fact he wasn't, she wrote.

"This type of information is rather alarming," the inspector wrote. "No one," she added, "wants to experience" a repeat of what happened to Lynn.

Gregory remains in prison. He could get out as soon as October.

Lynn was emancipated - given the rights of an adult - at age 17. She wrote to the court in 2004: "I can defently take care of myself."

The next year, she burned through nearly $15,000 of her lawsuit settlement to pay for a hit-and-run accident she caused.

Two months ago she was charged with stealing a car. She failed to show up for her arraignment and has a warrant out for her arrest.

A reporter went to Lynn's last five addresses but couldn't find her.


Article list

District ignored warnings, then silenced girls fondled by teacher

By Ken Armstrong and Justin Mayo
October 22, 2006

She was 10 years old, a fourth-grader in the Northshore School District, when John Carl Leede began fondling her, according to court records.

He was a teacher, but not hers. He would spy her in the school library, approach, turn her away from him and begin grabbing, rubbing her breasts. She'd try to break away, but he would yank her back and put her in a kind of headlock.

The girl told her mother, and the mother called the principal, Ed Young.

It all could have ended there - in the spring of 1996, years before Leede was finally convicted of assaulting girls. Young, the principal at Kokanee Elementary near Woodinville, could have investigated and found other students with similar stories.

Instead, Young called the girl to his office. When she got there, she found the principal and Leede, and no one else. Not her mother. Not a counselor. Young questioned her - and Leede explained it all away. A "misplaced hug," he called it, saying he was a "touchy-feely" kind of guy.

Young didn't discipline Leede. He didn't report the matter to police or Child Protective Services. He didn't even write the girl's story down and file it, to help spot any pattern. His next evaluation of Leede offered only praise, saying: "I have appreciated his professionalism and efforts in helping us `move outside the box.' "

The girl's mother was stunned at Young's response. The girl would later tell police: "This was brushed under the table." She would become violent and defiant, say Leede was what she got for being "a good girl," and scratch her wrists with broken glass.

This family and two others filed a claim that accused the school district and four principals of ignoring repeated warnings about Leede. But you haven't read about that claim before, or of how it was quietly settled for $700,000. A confidentiality agreement ordered documents destroyed, computer records purged, and lips and court records sealed.

David Spicer, the families' attorney, said he was "outraged" and "beyond amazed" at the district's failure to protect students from Leede. But the secrecy agreement, he said, "was a condition the school district had, and we just had to live with it."

Three of Leede's victims - including the girl called into Young's office - cannot say a disparaging word about the teacher who assaulted them or the district that made it possible. Speak ill, and they face a fine of $10,000. The secrecy agreement even restricts what they can tell any therapist.

The Seattle Times unearthed this claim - and the allegations against Young, now principal at Skyline High School in Sammamish - as part of a continuing investigation of sealed court records. A reporter came across a lawsuit against Leede that had been sealed improperly and that referred to a secret settlement involving the Northshore School District.

The families' claim and thousands of other documents were obtained in the past several months through public-disclosure requests and a motion to unseal. Those records tell the story of how one teacher fondled students day after day, year after year, with principal after principal doing little or nothing to stop him.

A teacher pursues his "educational asperarions"

Carl Leede, now 55, taught full time in the Northshore School District for more than 20 years. His personnel file reflects a tumultuous career, making any hands-off treatment all the more baffling.

He applied to the district in 1976, after teaching for two years in Kitsap County. His letter, peppered with typos and misspellings, said he wanted to reduce his "commutation time" and pursue his "educational asperarions." Northshore hired him the following year.

Leede eventually worked at five elementary schools in the district, which straddles King and Snohomish counties and is considered one of the state's best. His students were mostly fifth- and sixth-graders, kids 11 or 12 years old.

His early reviews were mixed. One principal praised Leede's enthusiasm but panned his work ethic and arrogance: "He often assumes he has a better answer than anyone else has ever devised." Leede called the evaluation an "unfortunate and unnecessary slam and assault upon my career" and even filed a grievance.

Another principal attended a math lesson in which Leede let students do whatever they wanted. Some read ski magazines. Some doodled. Others talked. The principal met with Leede and suggested the time be used more productively. Leede stormed out before she could finish, her notes say.

With time, Leede's reviews shined. But other parts of his personnel file reveal a divide among parents, teachers and principals. To some, Leede was lazy, petulant, reckless. To others, he was creative and caring. Some parents called Leede the best teacher their kids ever had. Others pulled their children from his class.

Leede tickled kids and kissed their cheeks. Was this good-natured fun? Or was it creepy? Other times, his conduct left no doubt, veering into cruelty or boorishness, according to personnel records, a district investigative report and, ultimately, police statements.

He used profanity and made sexual remarks in front of kids. He pointed to one girl and said, "This is an example of pretty, but not smart," then to another girl and said, "This is an example of smart, but not pretty." In a teachers' meeting, he went down his class list and categorized each student as "dumber than a stump" or "a little sh - ."

He called boys "jerkballs." One wrote Leede a letter, saying: "Why do you treat the boys like crud?" He hugged the girls, beckoning with "Come here, gorgeous." He'd remark to other adults about the girls' developing bodies and predict who'd get pregnant first.

Once, according to his personnel file, he made students announce their test scores, then he charted them on a board, designating "geniuses" and "idiots." Another time, according to police reports, he had students spell words such as "ejaculation," "pubic" and "tampon," put them in an essay, and read the essay aloud to the class, using a microphone.

Early warnings: "Principals don't like problems"

Warnings of Leede's touching go back at least to the 1980s. Cheryl Cone warned two principals herself - and would have warned others, if she'd known Leede was still around.

Now retired in South Dakota, Cone gave this account to The Seattle Times:

Cone used to be a teaching assistant at Woodinville Annex, a school that's now closed. She walked into Leede's classroom one day - in 1989, she believes - and saw him tickling a girl lying on a table. When Cone appeared, Leede stopped tickling. But the whole time he talked to Cone, he kept his hands on the girl's breasts.

Cone was dumbfounded. She told Anne Boone, the principal. Boone replied that she would take care of it - but Cone never heard anything back.

A few years later, Cone saw somewhere that Leede was now at Woodmoor Elementary: "I thought, `Shoot, what's he still doing around?' " She called Woodmoor's principal: "He sounded really kind of ticked off that I'd brought up a problem. Principals don't like problems, because some of these people have tenure and they have the teachers union behind them."

Years later, news reports said an unnamed teacher was accused of fondling girls at a different Northshore school. Cone checked a registry and saw Leede's name: "I couldn't believe that he was still there and in contact with kids. I felt that I'd been betrayed. They were just pushing it aside.

"How many people were damaged along the way? It's just sickening."

At Woodinville Annex, Boone, the principal, received at least three warnings besides Cone's, according to police and school records.

In the late 1980s, a teacher saw Leede holding a girl on his lap, face to face, tight. The teacher "was so shocked that, if it had been her daughter, Carl would have no hair left on his head," she recounted years later. The teacher told Boone, but Boone never got back to her.

Another teaching assistant saw Leede touch a girl's breasts. She told Boone, who replied that she had scheduled a speaker on inappropriate touching. When the assistant checked back, Boone said Leede hadn't shown up for the training.

Leede's personnel file includes four evaluations by Boone, all positive. None mentions inappropriate touching. Boone called Leede a "very creative educator" and said: "The emotional well-being of the students is an important goal for Mr. Leede."

Boone, now retired in Hawaii, said she remembered three complaints from staff members about Leede's touching. She didn't note them in his personnel file but did tell him once to stop putting girls on his lap: "He sort of admitted it wasn't a good idea, but said there was nothing meant by it.

"I really believed that he was stupid, that he wasn't thinking about what he was doing. But I didn't think he was molesting anyone," Boone said. "If I'd gotten one complaint from a parent, he would have been gone."

"Hi Carl: I circled the area that you may want to look at"

By the time the 1998-99 school year began at Kokanee Elementary, Leede's behavior had become, in the words of a subsequent legal claim, "essentially predatory," so bold that he was fondling some girls almost every day.

Girls tried thwarting him by wearing loose clothing, or crossing their chest when he approached from behind, or elbowing him in the stomach. One girl dreaded sitting at the computer: "It was like I was trapped," she told an investigator. "There was no place to get away." One student said Leede warned girls not to tell or he'd get them in trouble with the principal. Some doubted they would be believed anyway.

When the 1998-99 school year began, Ed Young was coming off a year spent as the district's interim director of personnel. Now he was returning to Kokanee, where he had been principal for three years. Called in one review "a sincere believer in teacher empowerment," Young presented written goals for the year about letting teachers "think outside of the box in a risk-free environment."

Leede was beginning his fifth year at Kokanee. He taught fifth- and sixth-graders in an alternative program, called PACE, that emphasized parental involvement.

By this time, Northshore principals had already been warned of inappropriate touching by Leede at least a dozen times, personnel files and other records show. At least five warnings had reached Young. When he took the personnel position, Young told his fill-in to keep an eye on Leede, saying there'd been reports of touching, according to school records.

Young canceled an interview for this story and didn't return subsequent calls. Leede, who lives in Seattle, declined comment.

The 1998-99 school year offered one chance after another for the school district to put a stop to Leede.

October: A father saw Leede touch his daughter's breast in a school hallway. The newspaper isn't naming the father to protect his daughter's identity, but he gave this account:

He told Leede then and there: "If you ever touch my daughter like that again, one of us is going to the hospital and one of us is going to jail." That night, the father said, "I was in tears for not protecting my daughter better." He met with Young the next day, and Young told him: I'll take care of it. You don't need to put anything in writing. But later, the father said, Young claimed he couldn't do anything without a written complaint.

The girl's mother also met with Young. "Ed said that Carl had a clean file, that ... nobody had ever complained about him," she later told police.

After these meetings, Young sent Leede a note:

Hi Carl,

The personnel office sent us some pamphlets on safe interaction with students. After talking with you last week in regard to [the parents'] concern about you hugging their daughter, I thought that you may want to take a look at it. The pamphlet really helps to clarify what is appropriate or inappropriate. I circled the area that you may want to look at. Thanks again for listening and responding to the concerns.

November: During Thanksgiving week one teacher saw Leede with his hands on a girl's backside. Another saw Leede hug and kiss a girl. Both reported what they saw to Young on Dec. 1. The principal again referred Leede to the pamphlet, according to law-enforcement records.

December: The girl who had been called into Young's office in 1996 told a Bothell police detective what Leede had done. That detective called Young, who told police he remembered Leede hugging a girl in the library. He wrote the detective: "I gave Mr. Leede a warning about touching, shared the district's policy on appropriate and inappropriate touching and directed him to not do it again. He agreed and we had no further incidents."

The detective closed the case, and told the girl that her "perceptions of what took place might have magnified the actual contact," according to his report.

(Families filing a claim against the district later seize upon Young's words - "we had no further incidents" - and allege that he "knew this information not only to be misleading but categorically untrue." Instead of protecting students, they say, Young "sought once again to minimize the conduct and instead protect and cover for Leede.")

January: The father who had met with Young in October turned in a written grievance: "I told him, `Here's your bloody complaint. Now do something.' " The letter said Leede was still hugging children. Young wrote the father back: "I have spoken with him about your concerns and advised him on the district's policy on safe and appropriate touching. ... The inappropriate behavior will stop."

Young later described his talk with Leede to a district investigator: "I told him, `You cannot hug from the front' and showed him the side hug."

March: Because of declining enrollment in Leede's Kokanee class, Northshore was considering moving him to Woodin Elementary next fall. But Woodin's principal had a concern. He asked the district's personnel director if Leede had a problem with touching students, according to a memo the director wrote.

The director got ahold of Ed Young and asked him. "Ed replied that he did not," the director's memo says.

The transfer went through.

A father tells police: "It all makes sense now"

In April 1999, a seventh-grader began having nightmares about the teacher who had fondled her - "about once a day," in her words - in fifth and sixth grades at Kokanee.

The girl told her mother what Leede had done. "I was scared to death," the mother later told police. "I felt horrible, that I'd blown it as a parent."

The mother began making calls and discovered that Leede had also fondled a friend of her daughter's. "It all makes sense now," that girl's father told police. He remembered asking his daughter: "Why are you wearing this heavy sweatshirt to school on the hottest day of the year?"

This girl's father called the Snohomish County Sheriff's Office - initiating the first comprehensive investigation of Leede, 10 years after Cheryl Cone reported him standing there, hands on a student's breasts.

Police arrested Leede on May 20, 1999. He didn't seem surprised or shocked when told he was suspected of child molestation, according to a police report. "I do hug children," he told a detective. But Leede said there was nothing sexual about it. He considered hugs important to a child's development.

A mother writes: "You did this. You live with it"

News of the arrest touched off a series of events colored by secrecy and damage control.

Woodin Elementary parents complained of Leede's pending transfer to their school. A district spokeswoman assured them: "We will not knowingly or consciously place students in an unhealthy environment."

The school district placed Leede on paid leave and conducted an investigation to see if he should be fired. A month after Leede's arrest the investigator completed a confidential report that described how the teacher had repeatedly fondled girls. The report listed eight instances in which administrators had been warned.

Still, in news reports afterward, district officials minimized Leede's misconduct and insisted that officials followed proper procedures in dealing with him.

In August 1999, the district's general counsel wrote a confidential memorandum saying the failure of some administrators to document complaints had obscured Leede's "pattern of misconduct." He also cited "inadequate management skills" for what happened at Kokanee, bemoaning how some administrators shy away from confrontation.

A week later, the district reprimanded Young, saying his "inadequate performance" contributed to the district's "failure to appreciate" Leede's "touching issues" earlier. The reprimand blamed Young for inadequate investigation ("You prejudged the intentions of Mr. Leede"); inadequate documentation ("You relied upon recall from memory rather than writing down information at the time"); inadequate supervision; and for failure to report complaints to personnel.

But Young's annual evaluations made no mention of these failings. One praised his handling of a meeting with parents after Leede's arrest. Another lauded "the integrity with which [he] has handled the challenges of leadership and supervision."

In the summer of 1999, the school district announced it had found probable cause to fire Leede. Leede filed a union grievance and demanded a hearing.

The two sides settled, quietly. Instead of firing Leede, the district agreed to pay him $55,000 for another year's work, to be done away from students. He would be paid even if convicted of criminal charges, the agreement says. Leede, in turn, agreed to resign on June 30, 2000.

When the media disclosed the employment settlement in October 1999, the mother of the fourth-grader who had been called into Young's office wrote Karen Forys, Northshore's superintendent:

"Your settlement does not right a wrong. It just begs for it to go away, to be swept under the rug. It tells the victims that the school district does not care and that coming forth to tell the truth, no matter how painful, doesn't result in any justice, so why should they bother? Is this a proud example to set for our students? Does this show principle or expediency? Does this show courage or fear? You did this. You live with it."

Forys wrote back, saying the outcome of any hearing would be uncertain and that fighting Leede's appeal would cost more than settling. Northshore avoided further "stress and pain" for any victims or witnesses, Forys wrote, and the settlement assured Leede would not teach in the district again.

In March 2000, Leede reached a plea deal with prosecutors and was convicted of seven misdemeanors, including six counts of assault.

The sentencing judge received more than 80 letters of support for Leede, from family, friends, parents, students. They said Leede imbued a love of reading and helped kids overcome their fear of public speaking. He learned sign language to communicate with a deaf child. He spent 45 minutes untangling a hairbrush from one student's hair.

But other letters wrote of trust betrayed and damage done. The girl with the nightmares described sitting in the dark, trying to cut the dirt and germs off her body with a serrated knife, and how, at 14, she used black permanent marker to write "ugly" all over her skin.

Leede was sentenced on June 8, 2000, to eight months in jail. His sentence required him to surrender his teaching certificate, register as a sex offender and complete a 36-month program of "psycho-sexual deviancy counseling" that used "controlled electroshock, boredom tapes and negative olfactory stimulation."

Three weeks later, Leede's resignation took effect. His letter said: "I have enjoyed my tenure in the District and will miss the teaching aspect of education. I believe, however, that it is now best that I pursue other career interests."

Destroy documents, purge files, zip lips

In December 2000, the families of three girls - the girl called into Young's office, the girl with the nightmares, the girl with the heavy sweatshirts - wrote a "claim letter" notifying the school district of their intent to sue.

The letter predicted a jury would be "incensed" at how the school district and four principals had failed to protect students from Leede.

Soon after, the attorneys for these families learned that Leede was selling his house. To preserve his assets, they quickly filed a separate suit in King County Superior Court and obtained an order attaching his home. The only defendants named in this lawsuit were Leede and his wife.

The claim against the district, the principals and Leede went to mediation and was settled in 2001, with the families receiving $700,000.

The settlement agreement demanded secrecy. It required the families and their attorneys to gather whatever documents they had about their allegations, and turn them over to be destroyed. They also had to "purge all computer records" related to their claim.

Even though the Northshore School District is a public entity - making its finances public record - the agreement forbade the parties from disclosing the settlement amount. It also prohibited any party from disparaging another, and set the penalty for any violation at $10,000.

Spicer, the families' attorney, said his clients consented to secrecy because they wanted to settle. Otherwise, these "very vulnerable girls" would have been exposed to depositions and a possible trial, he said.

The King County lawsuit against Leede was also sealed, based upon a motion that said the parties wanted the outcome to be secret. Court Commissioner Carlos Velategui went along, signing an order that violated the rules governing open court records.

It was this order - the only part of the file kept open - that caught the eye of a Seattle Times reporter and led to this story. The newspaper filed a motion and got the file opened this year, and obtained other documents about Leede and the district through a host of public-disclosure requests.

Forys, the superintendent, would not answer questions for this story. Nor would Northshore's general counsel, Joe McKamey.

In November 1999 - six months after Leede's arrest - Forys was named Washington's Superintendent of the Year.

Ed Young left the Northshore School District in 2000 to take a job in the Mukilteo School District. He retired there in 2004, leaving as principal of Kamiak High School.

Last year he returned to school administration. He's now principal of Skyline High School in Sammamish, one of the state's top high schools.

Recently, a reporter told the father who complained to Young in October 1998 about the principal's newest job.

"Are you kidding me?" the father said. He laughed bitterly, then paused. "Oh, wow. He's a good politician."


Article list

What the state didn't know about doctor, malpractice suit

By Ken Armstrong and Justin Mayo
December 13, 2006

Since 2001, Dr. James H. Greene has been accused in two lawsuits of negligence that resulted in extreme injury or death. In both cases, Greene's employer, Group Health Cooperative, paid significant settlements to the patients' families - one for $5.5 million, the other for $800,000.

But when health-care regulators filed disciplinary charges against Greene earlier this year, they knew about only one settlement, the smaller one. The state Department of Health wound up giving Greene its lightest possible punishment.

All the while, the $5.5 million settlement was hidden away, improperly sealed by a King County Superior Court judge.

It shows up in a database used by lawyers, but only as Confidential v. Confidential, in county Confidential. The defense attorneys? Confidential. Medical experts? Confidential.

The Seattle Times recently got this lawsuit opened, as part of a continuing investigation of improperly sealed court records.

The public - and state regulators - can now see what's inside.

The suit accuses Greene of not bothering to examine a pregnant woman well past her due date and entering her 25th hour of labor, leading to devastating injuries to a newborn child. While Group Health denied that Greene and other employees were negligent, it paid millions to the baby's family - so long as they kept quiet about it. Let slip the defendant's name, and they could lose the money.

Even now that the case is unsealed, the family and their lawyer can't talk about it.

Theirs is one of at least two dozen medical-malpractice cases sealed in their entirety in King County Superior Court since 1990.

The lawsuit involving Greene - along with two other Group Health cases unsealed through The Times' efforts this year - illustrates the dangers of secrecy in medical-malpractice lawsuits. Patients, regulators and hospitals need to know all they can about the people entrusted with the public's health.

A difficult delivery

When she was 38 weeks pregnant, an ultrasound showed that her child already weighed an estimated 10 pounds, 4 ounces. The average newborn weighs 7 to 8 pounds, and a full-term pregnancy typically lasts about 40 weeks.

The 35-year-old woman was in the midwife program at Group Health, a nonprofit HMO with more than 500,000 members in Washington and Idaho. Nurse midwives provided prenatal care while doctors handled delivery.

At 40 weeks, she still had not delivered. The child continued to grow.

In June 1999, when she was "42-plus weeks" pregnant, she finally went into labor and was admitted to Group Health Central Hospital in Seattle. After about 24 hours of labor, a midwife contacted the obstetrician on call, Dr. James H. Greene.

But Greene didn't respond by examining the woman, nor did he personally review her chart, according to court records. Instead, he told the midwife to keep doing what she was doing.

About two hours later, the baby's head appeared. The midwife called another Group Health doctor. She arrived but for 10 minutes was unable to deliver the child, according to court records. The baby's shoulders were stuck. A Virginia Mason obstetrician offered his help, and delivered the baby within two minutes.

The baby boy had no heartbeat. Medical workers resuscitated him - but he wound up with brain damage, spastic quadriplegia and a seizure disorder. He struggles to communicate and must be fed through a tube.

In 2001, the child's family sued Group Health, alleging that the midwives, Greene and another doctor were negligent. Group Health's employees should have recognized the risk factors for shoulder dystocia - large baby, long pregnancy, protracted labor - and warned the expectant mother against regular delivery, the lawsuit alleged. Greene, the plaintiffs argued, should have examined her and prepared for a Caesarean section.

Group Health denied its employees were negligent, court records show.

In 2003, the two sides settled, with Group Health agreeing to pay $5.5 million. A confidentiality clause said the boy's parents could not "reveal to or discuss with anyone, including the media," the names of "the parties released" - that is, Group Health.

The mother recently told The Times: "Basically, we can't talk to you. I'm sorry."

The family's lawyers could publish, or release, the case's facts - but only if the names of the parties, the defense attorneys, the county and the case number were left out. That's why the lawsuit appears in a lawyers' database as Confidential v. Confidential.

The Times asked one of the family's lawyers, Judy Massong, which party wanted the confidentiality agreement. "The defendants," she said. You mean Group Health? she was asked. "I can't say that," she said. The confidentiality agreement won't allow her to say those words.

An attorney appointed to represent the boy's interests also asked that the entire file be sealed, saying this would keep the settlement details confidential. Judge Terry Lukens went along, even though the law doesn't permit such extraordinary secrecy on such slim grounds.

When The Times challenged this sealing order, a different judge opened the file.

Group Health officials declined to comment on this or any other case, citing concern for patient privacy.

"A crack in the system"

In Washington, companies that provide liability insurance to physicians must notify state regulators of any malpractice settlement above $20,000.

But the way the Department of Health reads the law, the reporting requirement wasn't triggered in the late-birth case settled for $5.5 million. That's because the lawsuit didn't name Greene as an individual defendant, and it was Group Health's insurers who paid, not Greene's.

But many medical-malpractice lawsuits name only a hospital or HMO as a defendant, even when individual doctors are accused of negligence.

State Rep. Tom Campbell, vice chairman of the House Health Care Committee, said: "This is a classic example of a crack in the system. This was never an intention of the Legislature, I can tell you that."

Campbell said he will propose changing this law in the next legislative session to require greater reporting. He'll also ask for a stiffer penalty. Insurers that violate the reporting law can currently be punished only by a fine - and the maximum is $250.

The Department of Health's records show the $5.5 million settlement was never reported to the state. Because Group Health was self-insured up to $3 million, it paid most of the settlement, according to court records. An outside insurer paid the rest.

But Sally Yates, associate general counsel for Group Health, would not say whether Group Health had filed a report with state regulators.

Greene, 43, declined to comment for this story, referring questions to a Group Health spokeswoman. "That's what I was instructed to do," he said. He now works for Group Health in Tacoma.

"Dr. Greene will call you"

In May 1999, Greene performed a cervical biopsy on Deluvina Gonzalez, a seamstress who lived in Seattle. She received written after-care instructions that said: "Dr. Greene will call you."

The biopsy results showed Gonzalez had cervical cancer. But, according to a lawsuit filed by Gonzalez's family, Greene failed for five months to notify Gonzalez of that news.

Gonzalez died in December 2000 at the age of 56. Her family's lawsuit, filed in 2002, alleged that Greene's neglect created a five-month delay in treatment that proved fatal. Medical experts hired by the family said a hysterectomy performed after diagnosis could have saved her.

Group Health denied the allegations of negligence. And its experts concluded that cancer would have killed Gonzalez no matter what.

In January 2004, the two sides settled the lawsuit for $800,000. This settlement included a confidentiality agreement, but the court file itself was not sealed.

This year the state filed disciplinary charges against Greene, stemming from the Gonzalez case. The charges said Greene could produce no contemporaneous notes showing he had tried to contact Gonzalez. The state also accused Greene of other incompetence - saying, for example, that he did not remove the entire tumor during the biopsy.

Greene insisted that he had contacted Gonzalez twice by phone. He also made other attempts to reach her regarding follow-up care, he told the state.

Four months ago, the state and Greene cut a deal, called a "stipulation to informal disposition." Greene did not admit unprofessional conduct but did agree to corrective action.

The deal requires Greene to serve as an example of sorts. He must tell his Group Health colleagues what happened in this case and describe the steps he'll take to notify future patients of a life-threatening diagnosis: alerting the patient in writing, delivering word by certified mail, sending a messenger to the patient's home.

Larry Berg, a staff attorney for the Department of Health, said that when Greene met with regulators to settle the disciplinary charges, his responses were consistent and his demeanor credible. "For the sake of settlement negotiations," Berg said, the state accepted Greene's claim that he had called Gonzalez. But the state "still determined that disciplinary action was appropriate," Berg said, based on Greene's failure to follow up those initial calls.

When the state reached this deal, it knew of two other settlements in Greene's past, one for $250,000, the other for $42,500.

Berg recently searched state files and confirmed that the late-birth lawsuit, settled for $5.5 million, was unknown to regulators when they investigated Greene. "If other complaints were known at the time of settlement negotiations, then they also would have been considered and would have influenced the [state's] decision regarding appropriate sanctions in this case," Berg said.

Yates, the Group Health attorney, declined to say if the HMO had ever taken action itself against Greene: "We do not divulge that kind of information about our staff." But she said Group Health does "rigorous reviews" of its employees every year, including an analysis of any claims or lawsuits filed.

Four boxes not to be opened

Carol Johnston, a Bainbridge Island lawyer who specializes in medical-malpractice cases, represented Deluvina Gonzalez's family. Johnston also represented another family that sued Group Health, in a lawsuit that was sealed.

A reporter recently visited Johnston in her office. On her floor were four boxes, stuffed with documents from those two lawsuits, including records that were exchanged by the parties but never filed publicly. Johnston said she wanted to share what was inside those boxes. But she couldn't. Confidentiality agreements made that impossible.

In both cases, Johnston said, she and her clients agreed not to discuss who did what, or how much was paid. Such agreements, she said, are "common." Asked who requests them, Johnston said: "The defense - always, in my experience. And it is made a condition of settlement."

Yates, the Group Health attorney, declined to answer questions about confidentiality agreements in any particular case.

But, she said, in general: "Confidentiality clauses in settlement agreements are commonly used by parties in all kinds of civil disputes. ... They can serve to protect the privacy of individuals involved in a dispute. They can protect families."

Johnston, a former nurse, bristles at these secrecy agreements: "It prevents the public from having access to information that they're entitled to, and which can be used to improve health care."

Demands for confidentiality frustrate her clients, Johnston said. "The vast majority of my clients say, `All I want is for this to not happen to someone else.' " But secrecy agreements prevent them from helping others, she said, so now they suffer guilt with everything else.

And the incentives to settle are great, Johnston said. Someone may be dying or in immediate need of care. A trial means delay, stress, expense and risk.

Johnston said that because of the confidentiality agreement, Gonzalez's family cannot talk to the media.

They can't even provide a picture of Deluvina.


Article list

Woman's coma leads to secrecy, silence

By Ken Armstrong and Justin Mayo
December 17, 2006

Sylvia Lane, a diabetic, lay in her apartment bed in Lynnwood, comatose and alone, her blood and brain in desperate need of sugar.

But the medical device she'd just received instead kept pumping insulin into her body, pumping and pumping, starving her brain and making it more unlikely she would ever wake up.

Lane was 17 weeks pregnant. Her husband was on an aircraft carrier, halfway round the world. Relatives were calling but getting no answer.

The pump, about the size of a cellphone, had a safety feature designed to stop the insulin flow in emergencies like this. But the feature wasn't on. The pump had been shipped to Lane with the option turned off, and the device's instructional video devoted only 15 seconds to it, saying nothing about why the feature should be used.

Ultimately, Lane suffered severe and permanent brain damage. Her family sued Medtronic Inc. - the parent company of the pump's manufacturer - alleging the pump was unsafe. Medtronic had already sold 150,000 insulin pumps in the United States.

What happened to Sylvia Lane could have yielded insight into the pump's design and instructions, alerting patients and health-care providers to the importance of this safety feature, originally called a "Deadman's Switch."

But when Medtronic settled the lawsuit three years ago, the entire court file was improperly sealed, hiding every allegation and discovery behind an electronic password.

What's more, Medtronic failed to disclose Lane's injury to the federal government, which uses such reports to spot problems with medical devices and to protect the public.

Lawsuits and regulatory reports allow patterns to emerge and warnings to sound. Here, there was merely secrecy and silence.

The Seattle Times got this file opened three months ago as part of a continuing investigation of improperly sealed court records.

Lane's family also sued the state of Washington, alleging the University of Washington Medical Center committed medical malpractice while instructing Sylvia on the pump's use. The state settled, using taxpayer dollars. But the UW, despite being asked for all its records a year ago, has yet to reveal the amount.

The following account relies on the court file. The lawyer for Lane's family said he cannot comment, nor can the family, because the parties agreed to confidentiality as a condition of settlement. Medtronic also declined comment, citing the settlement agreement and Lane's privacy.

A pump that mimics the pancreas

Michael Lane and Sylvia got married in 1989, then moved about as his Navy career dictated. In 1995, they were living in Naples, Italy. That's when Sylvia learned she had type 1 diabetes.

Her pancreas didn't work. It wasn't producing the insulin she needed.

Insulin, a hormone, counteracts rising blood sugar. When blood sugar goes up, a healthy pancreas releases more insulin. When blood sugar goes down - during sleep, for example - insulin production decreases. The pancreas acts as a regulator, keeping blood sugar from going too high or low, either of which can mean sickness or death.

Sylvia now needed to inject herself with insulin, using a syringe.

The couple moved to Washington in 2000. In August of that year, Sylvia, then 34, learned she was pregnant. Soon after, Michael, a lieutenant, left for duty in the Persian Gulf.

Sylvia lived alone in their Lynnwood apartment.

Because her blood sugar wasn't under control, Sylvia went to the UW's Diabetes in Pregnancy clinic. A doctor there prescribed an insulin pump. Sylvia's insurance helped her buy a pump, a model 508, for about $5,100. The pump arrived in October 2000.

Insulin pumps came onto the market in the 1980s. Today's models weigh just a few ounces and can hold a several-day supply of insulin. A thin tube runs from the pump, worn on a belt or in a pouch under clothes, into the user's stomach. Mimicking a pancreas, the pump steadily releases small amounts of insulin. It can also be programmed to release larger doses - to anticipate a meal, for instance.

Pumps help minimize the highs and lows, reducing diabetes' long-term effects, such as kidney failure, limb loss and blindness.

But pumps also carry risk. If someone's blood sugar drops too much, he can go into a hypoglycemic coma. Hypoglycemia demands sugar, not insulin. But the pump doesn't know that. It keeps pumping insulin - and the user, unconscious, can't turn it off.

MiniMed, the maker of Sylvia's pump, recognized this danger early on. It created a safety feature in the late 1980s that would stop the insulin flow if the user didn't press a button for a set number of hours. Company documents initially called it a "Deadman's Switch." It later became known as the "Auto-Off."

Medtronic, a multibillion-dollar company based in Minnesota, acquired MiniMed in 2001. This took place a year after Sylvia received her pump and a year before her family filed suit.

When Sylvia's pump arrived, the Auto-Off was deactivated. That's how the company ships all its pumps, to this day.

Sylvia's pump came with an instructional video. The video, 48 minutes long, devoted only 15 seconds to the Auto-Off, and that came more than a half-hour into the tape. "A safety feature which can be helpful for every pump user," the video called it. But the video didn't say why anyone might want the pump to stop pumping. It didn't say how the feature could save users from harm.

That video would become emblematic of this question:

Insulin pumps help diabetics. The 508 appears to be a good pump. The Auto-Off appears to be a smart feature. But how can it be a safety feature if many people don't know why they need it?

17 calls - and no answer

On Oct. 25, 2000, a Wednesday, Sylvia met with Emily Holing, a diabetes educator at the UW clinic. Holing hooked up Sylvia's pump and showed her how to use it.

This same afternoon, Holing documented two episodes of hypoglycemia for Sylvia, 15 minutes apart. Each time Sylvia needed to drink orange juice.

Holing didn't activate the Auto-Off on Sylvia's pump. She understood the feature, Holing said later, but didn't think Sylvia should use it. "I don't want the insulin interrupted during pregnancy," Holing said in a deposition. She advised Sylvia to use a "buddy system," with a friend or relative making regular checks on her.

Sylvia had pizza that evening, then drove home. She wouldn't be heard from for three days.

Friends and family tried calling Sylvia on Thursday, Friday and Saturday, leaving 17 messages. Sylvia's twin sister lived three hours away. On Saturday she traveled to Sylvia's and, with another relative, went inside. They found Sylvia on her bed, unconscious, lying in vomit. Her insulin pump was attached and running.

Sylvia was in a hypoglycemic coma. Paramedics injected her with sugar water and transported her to the hospital.

She gradually emerged from the coma but suffered permanent and severe brain damage. Memory, comprehension, reading, writing, walking, problem solving, judgment - all were impaired. Sylvia could speak only in combinations of two or three words, such as, "I'm fine." Medical experts said they expected little improvement. She would need round-the-clock care for the rest of her life.

Doctors terminated Sylvia's pregnancy Nov. 11, at 20 weeks, fearing the unborn child had suffered serious injury.

10 deaths - with few details

In May 2002, Michael Lane filed suit in King County Superior Court, on his and Sylvia's behalf.

The lawsuit named two sets of defendants.

Medtronic, the lawsuit alleged, violated Washington's product-liability law: The pump's warnings were insufficient and its design unsafe. The Auto-Off should be automatic, not an option, the lawsuit alleged. Had the feature been activated and the insulin cut off, Sylvia could have emerged from her coma and sought help before suffering brain damage, the lawsuit contended.

The lawsuit also accused the UW Medical Center of medical malpractice, saying Holing failed to advise Sylvia adequately on the pump's use and risks.

Christopher Otorowski, a Bainbridge Island lawyer, represented Michael Lane.

A year into the suit, Otorowski cited 15 reports filed with the U.S. Food and Drug Administration (FDA) for a nine-month period ending in March 2003. Although light on detail, the reports disclosed 10 deaths and five injuries suffered by people using Medtronic's insulin pumps.

The reports, Otorowski said, constituted "a trend or pattern of deaths." He said Medtronic should divulge more information about each case. The company, he wrote, was concealing information about the pump's risks "from the public, the medical community and the government."

Before approving a new medical device, the FDA requires clinical studies or testing for safety and effectiveness. But MiniMed had bypassed that step by saying the devices were "substantially equivalent" to a generic infusion pump used for medical fluids, Otorowski said. That general-purpose pump was approved before 1976.

The company made and sold insulin pumps "without anything more than a rubber stamp," Otorowski wrote.

Medtronic defended its pumps in general and the safety option in particular. The Auto-Off "is not some mysterious and nefarious device that dooms unsuspecting pump users to hypoglycemic comas," wrote Douglas Hofmann, a lawyer representing the company.

Medtronic said the role played by Holing, the UW diabetes educator, should free the company from any claims of liability. How could Medtronic be blamed for shipping the pump with the safety feature off, the company argued, when Holing had decided Sylvia shouldn't use it anyway?

The company also said the law does not require it to warn users about risks. The pump is available only by prescription, Medtronic said, so the company's duty is to ensure that health-care providers prescribing the pump understand its features. And in this case, Medtronic said, Holing understood the safety option and chose not to activate it.

Medtronic tested Sylvia's pump afterward and determined that it "performed flawlessly," Hofmann said. The company called any demand for a redesign "manifestly irresponsible."

Medtronic also challenged the relevance and reliability of the 15 reports to the FDA. The reports said little or nothing about the Auto-Off feature. Plus, none of the reports concluded that a pump had caused a death or injury, Medtronic said.

Motions that become moot

As the October 2003 trial date approached, Otorowski demanded more and more information from Medtronic. He wanted records of other lawsuits; customer complaints; details of adverse-event reports to the FDA; documents on the government-approval process.

Medtronic and Otorowski sparred over what documents the company would have to produce. Ultimately, the judge would have to decide.

In August 2003, the UW settled the claim against it. But the university has yet to disclose what it paid, even though that figure is a public record.

The same month, just before a hearing to determine if there was enough evidence to warrant trial, Medtronic and Michael Lane also settled. The judge had not yet ruled on Otorowski's demands for additional records - so those motions became moot.

Together, Lane, Medtronic and the UW asked for the entire file to be sealed. They said they wanted to keep private Sylvia's medical information and Medtronic's proprietary records; to protect the Lanes from financial predators; and to honor the parties' settlement agreement, which required that the amount remain confidential.

The joint sealing request also made one other argument - a perplexing one, given Otorowski's prior reference to the pump's "insidious danger."

"It is unlikely that the sealing of this court file would be of interest to any other individuals," the request said. "This is a unique case involving the claims of a single individual."

In October 2003, Judge Richard Jones sealed the file.

This year The Times challenged that order. Just because the parties want their settlement a secret is no grounds to seal an entire file, the newspaper argued. And where legitimate privacy concerns exist, limited parts of documents can be blacked out.

Jones opened the file back up.

"Tip of the iceberg"

Manufacturers must file reports with the FDA when they become aware that a medical device has malfunctioned or may have contributed to a death or serious injury.

The key word is "or." That's the word used in federal regulations: malfunction or injury.

In the Lane lawsuit, Medtronic acknowledged that it did not report Sylvia's injury to the FDA. A Medtronic director wrote in court documents that the company makes a report "if a malfunction is identified and it meets" reporting requirements.

He used the word "and."

"By making this convenient word substitution, the defendant has created an imaginary loophole," Otorowski wrote. Medtronic's interpretation requires a malfunction - in effect, erasing injury as grounds for reporting, he argued. Lane's lawsuit didn't claim malfunction. It alleged that Sylvia suffered severe brain damage because of a flawed design and insufficient warnings.

Otorowski said Medtronic's reporting practices were "deceptive" and put the company's "credibility squarely at issue."

One of Lane's experts, William Damaska, once directed the FDA's Division of Compliance Operations. The FDA uses "adverse-event" reports to issue recalls, safety alerts and labeling changes, Damaska wrote. Doctors use them to make choices about treatment and medical devices.

Sylvia's injury "clearly" met the reporting criteria, Damaska wrote. Medtronic's failure to alert the FDA, he said, suggested that "what is reported is only the tip of the iceberg."

Medtronic said any suggestion that it had not reported other events was "entirely speculative."

Nationally, other lawsuits have also accused Medtronic of reporting lapses. Medtronic, a Fortune 500 company with annual sales of $11 billion, makes all kinds of medical devices. Other lawsuits have alleged that Medtronic failed to make timely warnings to the public and physicians about problems with implantable heart defibrillators and with the tubing on insulin pumps.

In addition, the company agreed last summer to pay a $40 million fine to settle civil allegations that it provided kickbacks to doctors, to encourage them to use its spinal products. The kickbacks included sham consulting and royalty agreements, as well as lavish trips, the U.S. Justice Department said.

Which device? The words are blacked out

Some lawsuits allege a broad threat. But sealing the file can make it nearly impossible to figure out what happened.

When The Times began this investigation, it identified 420 sealed civil suits in King County. The names of the parties were available, but little else.

The Medtronic case stood out. The company sells pacemakers, defibrillators, insulin pumps, heart-valve products. Did the lawsuit claim some device was defective? And if so, which one?

Because the UW - a public entity - was also a defendant, The Times asked for its records from the lawsuit. A sealing order applies to the courts; it does not suspend open-records laws for other public entities.

In January the university turned over the complaint, a document that lays out the allegations. This provided a first glimpse inside the court file. But the university - citing patient privacy - had blacked out just about every meaningful detail in it.

The complaint said some medical device was unsafe. Which device? That information was marked out.

The newspaper contacted Medtronic. In February, a spokesman said the company couldn't comment on the lawsuit because the file was sealed. But his e-mail added:

"Medtronic and the entire medical technology industry follow strict guidelines and regulations stipulated by the FDA regarding product development, safety, effectiveness and quality. We take those guidelines and regulations very seriously, and must - by law - report any incidents that could potentially harm our patients. Medtronic would not intentionally hide information that could potentially jeopardize patient safety by sealing a court file."

Lawmakers do an about-face

The Washington Legislature passed two laws in 1993 to prevent secrecy in product-liability cases.

One barred parties from entering confidentiality agreements that concealed a public hazard. The other kept judges from signing orders that hid such dangers.

But in 1994, lawmakers did an about-face. The former law was repealed, and the latter, diluted.

Gone was the rousing endorsement of the public's right to know about hazards. The new law said the public has two interests: knowing about threats to safety - and making sure that businesses can keep trade secrets. A judge must balance the two before approving secrecy.

The new law has rarely, if ever, been used. A search of published appellate opinions failed to turn up even one case where it has been applied.

But the law still allowed an outsider to challenge a confidentiality agreement as contrary to the public interest. And that's what The Times is doing.

The newspaper has asked a judge to void the confidentiality agreement between Medtronic and Michael Lane. Doing so might free the parties to discuss the case and reveal how much Medtronic paid.

The newspaper's motion is still pending.

Related Articles
2007 Awards: ASNE recognizes excellence in writing, photography

^Top

Post a Comment

Name
Email
Comment