[00:00:00] Speaker 02:
We will hear argument next in number 222239, Elkin against Veterans Affairs.

[00:00:08] Speaker 02:
Mr. Solomon.

[00:00:11] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:14] Speaker 01:
In the hearing below, the administrative judge limited the scope of potential reprisals by finding that certain of Dr. Elkin's disclosures were not protected with sublime activity.

[00:00:23] Speaker 01:
This had a cascading effect that resulted in a finding against Dr. Elkin.

[00:00:27] Speaker 01:
For example, the administrative judge discussed Dr. Elkin's position that the genesis of hostile treatment by nursing staff related to Dr. Elkin's blood pressure disclosure but did not broach this much further because they held that the blood pressure disclosure was not protected whistleblower activity.

[00:00:45] Speaker 01:
Similarly, Dr. Elkin was admonished for failure to complete certain administrative tasks

[00:00:49] Speaker 03:
that Dr. Elgin alleges were assigned specifically because he disclosed that his workload was excessive to the point.

[00:01:05] Speaker 01:
So the MSPB's credibility determinations does state at the beginning that they relied on the Hillen factors, but throughout the decision they don't actually rely on those.

[00:01:14] Speaker 01:
So it's a procedural issue.

[00:01:16] Speaker 01:
I do have an issue with that.

[00:01:19] Speaker 01:
But however, what I'm talking about now and kind of our general thesis of the case, I realize that the facts are virtually unreviewable under the substantial evidence standard.

[00:01:29] Speaker 01:
However, what I'm looking at more is the mixed question of law and fact, and specifically the question of law attached to that.

[00:01:39] Speaker 01:
Understanding what the disclosures were, do they constitute protected disclosure?

[00:01:46] Speaker 01:
Specifically, is it a substantial and specific danger to the public health or safety and therefore protected disclosure?

[00:01:58] Speaker 01:
So after he was admonished for failure to complete certain administrative tasks, once again, the administrative judge found Dr. Elkins' claims about his workload were not protected, and therefore the admonishment was not a result of unlawful reprisal.

[00:02:15] Speaker 01:
And to clarify, we are not asking this court to determine if actions like hostile treatment by nursing staff really did arise from the blood pressure disclosures, or if the admonishment really did

[00:02:28] Speaker 01:
result from the disclosure regarding workload.

[00:02:30] Speaker 01:
We are asking the board's narrow reading of what constitutes a whistleblower's disclosure to be corrected and for the trier of fact to consider for the first time if these actions were connected.

[00:02:42] Speaker 01:
The board's incorrect legal conclusions come from an inconsistent reading of the words substantial and specific when considering substantial and specific danger to public health or safety.

[00:02:52] Speaker 01:
They also come from a failure to weigh the severity of the medical issues.

[00:02:56] Speaker 02:
What do you think is the correct interpretation of the legal words that you're saying the board misinterpreted?

[00:03:05] Speaker 01:
Well, I think the correct interpretation is what they use in some of their other cases, such as Chavez and Perique.

[00:03:12] Speaker 01:
I apologize for the pronunciation on that.

[00:03:15] Speaker 01:
But for example, in

[00:03:18] Speaker 01:
Chavez, there was a medical cart that was not being cleaned at the end of nurse shift changes.

[00:03:27] Speaker 01:
And as a result, at the beginning of the next shift, the nurses had to clean the cart and resulted in a delay of the nurse being available for patient care.

[00:03:36] Speaker 01:
That was considered a substantial and specific danger.

[00:03:39] Speaker 01:
Now, in reliance on the chamber's factors and the agency's arguments, they state that, for example, for blood pressure,

[00:03:48] Speaker 01:
the blood pressure disclosure that because Dr. Elkin did not provide the name of the patient, it wasn't substantial or specific.

[00:03:57] Speaker 01:
However, the chambers factors uses an inoperative word in their decision of, or it talks about if there's no specific person, place, or thing, then it's not going to be specific enough for this substantial and specific

[00:04:14] Speaker 03:
What's your best argument that the MSPB erred in finding the disclosures not protected?

[00:04:20] Speaker 03:
Could you give me kind of your best argument in that regard?

[00:04:23] Speaker 01:
Well, for example, the blood pressure disclosure, the patient's blood pressure was 200, systolic pressure.

[00:04:30] Speaker 01:
If untreated, that's an inevitable heart attack.

[00:04:33] Speaker 01:
It's an emergency medical condition.

[00:04:35] Speaker 01:
The nurse had read it is 118, not even remotely close.

[00:04:39] Speaker 01:
That's perfectly normal and healthy.

[00:04:40] Speaker 01:
If Dr. Elkin didn't already mistrust the nurse's ability to read blood pressure and he did not double check that patient's blood pressure, the best case scenario is that patient has a heart attack and recovers.

[00:04:52] Speaker 01:
The worst case scenario is obviously the patient's terminal.

[00:04:55] Speaker 01:
There's other board decisions, for example, the Parikh decision that I referenced, where a patient had a delay in medical care and they had to end up being intubated.

[00:05:09] Speaker 01:
This is really no different.

[00:05:10] Speaker 01:
There's a delay in treatment because an emergency medical condition was completely missed.

[00:05:16] Speaker 01:
And just kind of as a matter of public policy, if we're talking about water protected- So remind me, what did the board say about this incident?

[00:05:24] Speaker 02:
I thought the board found that there just wasn't good enough evidence that the 200 was actually an accurate reading and that there actually was a problem here.

[00:05:40] Speaker 02:
Not that it wasn't a big enough problem, but that I thought the board found that there just

[00:05:46] Speaker 02:
Did not credit the Dr. Elkins testimony about what happened.

[00:05:55] Speaker 02:
Just correct me if I'm wrong about that.

[00:05:57] Speaker 01:
Yes.

[00:05:57] Speaker 01:
So what the board held was that this was kind of more of a routine workplace disagreement about how the numbers were read, but there was no evidence below that would explain other than

[00:06:09] Speaker 01:
kind of a backhanded statement by the agency's leadership executives stating something along the lines of because the patient had to wait for an hour, maybe their blood pressure skyrocketed in the interim.

[00:06:20] Speaker 01:
But there was no explanation given that could be offered to explain this increase.

[00:06:27] Speaker 01:
But it appears that the judge did take it at face value that it was either read incorrectly or that it increased.

[00:06:37] Speaker 01:
But there's no real explanation for the conclusion that this wouldn't rise to a disclosure other than their argument that this was not a substantial and specific danger because just consistently throughout their decision, they seem to raise that to such a high level of a burden that needs to be met with the substantial and specific danger.

[00:07:03] Speaker 01:
And a blood pressure misread in their opinion doesn't appear to reach that level.

[00:07:14] Speaker 01:
Though this case can and should be decided on the plain reading of the language, as the patient safety issues relate, issues raised by Dr. Elkin clearly rise to a substantial specific danger to public health or safety, public policy should similarly be considered.

[00:07:30] Speaker 01:
When the Department of Veterans Affairs physician discloses poor medical treatment that does not meet standards of care, especially when there is an actual risk of severe and entirely avoidable medical emergencies, they ought to be protected from retaliation.

[00:07:47] Speaker 01:
Once again, we are not asking this court to find that the petitioner was a victim of reprisal.

[00:07:52] Speaker 01:
We are only asking the board consider whether he was retaliated against in full consideration

[00:07:59] Speaker 01:
of what should have been considered protected disclosures.

[00:08:05] Speaker 01:
One of Dr. Elkin's disclosures is that the facility was not staffed during their lunchtime.

[00:08:10] Speaker 01:
Though the record shows that the facility accepted walk-ins as urgent care patients and that leadership specifically referred to the facility providing urgent care services, the administrative judge found that there were no issues with the facility failing to prepare for such patients during lunch hours.

[00:08:26] Speaker 01:
There was an instance where a diabetic patient entered the facility with severely low blood sugar.

[00:08:31] Speaker 01:
If Dr. Elkin had not voluntarily worked through his lunch to see the patient, it could have resulted in dire consequences.

[00:08:38] Speaker 01:
Dr. Elkin diagnosed the condition through guesswork because there were no nurses available and he did not have access to their medical parts, so he was not able to actually check the patient's blood sugar.

[00:08:49] Speaker 01:
Luckily, he assumed there was a low blood sugar, gave the patient food, and when a nurse became available, it was discovered that, yes, the patient's blood pressure had been critically low but was recovering based on the added glucose.

[00:09:01] Speaker 01:
If the delays in the availability of the nursing carts was enough to constitute a protected disclosure in Chavez, then it is entirely inconsistent to find the complete lack of availability of any nursing cart would not clearly constitute a protected disclosure here.

[00:09:18] Speaker 02:
And can you remind me again what the board said about that incident?

[00:09:24] Speaker 01:
What the board said in here or in Charlotte?

[00:09:28] Speaker 01:
Here.

[00:09:31] Speaker 01:
The board said that this facility was not an emergency facility, despite the fact that there was testimony saying that they did urgent care in walk-ins.

[00:09:43] Speaker 01:
They said because it was not an emergency care facility, it was a primary care facility that accepted

[00:09:48] Speaker 01:
patients for appointments, that it did not have an obligation to remain open during lunch hours.

[00:09:56] Speaker 01:
And plenty of facilities that take walk-in patients do close during lunch hours for appointments.

[00:10:06] Speaker 01:
However, if you're an urgent care facility, there needs to be at the very least an intake nurse and doctor available, because if you have an urgent care

[00:10:14] Speaker 01:
patient that comes in with an emergency medical situation, they either need to be treated or they need to be referred elsewhere and transferred.

[00:10:24] Speaker 01:
But you can't have a situation where you have veterans walking in during lunch hour expecting urgent care treatment, only to learn that apparently everybody's off to lunch and they sit there with a low blood sugar, potentially going into a hypoglycemic event in which the patient at worst once again can pass out and die in a diabetic coma.

[00:10:44] Speaker 02:
You are into your rebuttal time.

[00:10:46] Speaker 02:
You can continue or save the time.

[00:10:49] Speaker 01:
I will save the remainder of my time for rebuttal.

[00:10:51] Speaker 01:
Thank you very much.

[00:11:04] Speaker 00:
Mr. Burke.

[00:11:08] Speaker 00:
Good morning, Your Honor, and may it please the court

[00:11:11] Speaker 00:
This court should reject the reweighing of the evidence request made by the petitioner in this case.

[00:11:16] Speaker 00:
The board's opinion below is supported by substantial evidence in that Dr. Elkin, in this case, failed to establish he had a reasonable belief that any of the communications that he had made constituted protected activity under the statute or predicted disclosures otherwise.

[00:11:30] Speaker 00:
Turning to the initial point made by a council opposite, the hostile work environment

[00:11:36] Speaker 00:
finding below was simply not challenged in the opening brief in this case.

[00:11:40] Speaker 00:
The opening brief at pages 29 to 30 make at most a skeletal argument about the other personnel action at issue, which is the involuntary resignation.

[00:11:49] Speaker 00:
There's been no argument made about the hostile work environment in the opening brief in this case.

[00:11:54] Speaker 00:
Therefore, that argument should be waived.

[00:11:57] Speaker 00:
In the event even if the court were to address that argument, whether a disclosure or a communication is protected,

[00:12:05] Speaker 00:
logically has no bearing on whether a petitioner makes that a hostile work environment theory as a personnel action.

[00:12:15] Speaker 00:
The protection of a disclosure has no bearing on that as a logical matter.

[00:12:19] Speaker 00:
And to the extent the court finds the argument about the hostile work environment to be waived, there would be no reason for the board to revisit that finding on a potential remand if the court were inclined to do that.

[00:12:33] Speaker 00:
To Judge Cunningham's point about credibility determinations, yes, much of the petitioner's argument in this case is a request to reweigh those determinations.

[00:12:43] Speaker 00:
To the extent that the petitioner makes a point about the Hillen factors in his opening brief at page 25, that argument we established in our response brief is waived as well for being undeveloped.

[00:12:58] Speaker 00:
We pointed out in any event that at pages 37, 40, 41, 72, and 75 of the appendix, there's ample evidence of the board below applying the Hillen factors, as this court does not require a mechanical application of those factors.

[00:13:16] Speaker 00:
And there's ample evidence here that the judges below identified the factual questions, identified the varying evidence on those questions, and resolved issues of credibility based on the record.

[00:13:28] Speaker 02:
Turning to the disclosures at issue in the case, the overarching... Can you address the two that I think we heard argument about, one having to do with blood pressure and one having to do with a diabetic person coming in at the lunch hour and finding a nurse?

[00:13:46] Speaker 00:
Yes, Your Honor.

[00:13:47] Speaker 00:
To the first point that opposing counsel mentioned about the blood pressure readings,

[00:13:53] Speaker 00:
As an initial matter, we're talking here about a very skeletal record of what those disclosures were.

[00:14:03] Speaker 00:
There's an April 2016 allegation of communications verbal with the clinic manager.

[00:14:10] Speaker 00:
There's testimony in the record from Dr. Elkin as to what those communications were, and there's

[00:14:19] Speaker 00:
Controverting testimony about what the manager of the clinic understood those communications to be the board below weighs the testimony finds that as a general matter the evidence suggests and weighing the testimony this court does not reweigh the evidence that the problem was more appropriately that dr. Elkin had a penchant for measuring blood pressure multiple times using multiple different methods and

[00:14:43] Speaker 00:
and that the issue was not really about patient safety or a substantial and specific danger to public health or safety.

[00:14:50] Speaker 00:
But in any event, the board and going on to a judge

[00:14:55] Speaker 00:
the September 2016 written disclosure about blood pressure.

[00:15:00] Speaker 00:
And that simply said quote unquote two words that there were quote unquote major errors regarding blood pressure.

[00:15:06] Speaker 00:
No additional explanation as to what those major errors were, nothing about the cause of those major errors.

[00:15:12] Speaker 00:
And when there is additional evidence in this record as to other causes outside of nurse error that would have caused discrepant readings between the intake blood pressure and what the

[00:15:22] Speaker 00:
examining doctor, Dr. Elkin, would find applying examination.

[00:15:27] Speaker 00:
So we're left with, we're devoid of any, as the board found, any explanation as to those alleged disclosures of a substantial and specific danger to public health or safety.

[00:15:42] Speaker 00:
The opposing counsel pointed to the case Parikh from the board.

[00:15:46] Speaker 00:
There, there was much more explanation in the disclosures that issue about delayed and mismanaged patient care.

[00:15:55] Speaker 00:
There was, as the board put it, confidential patient information that the appellant included in the disclosures relating to particular examples of alleged mystic diagnoses and misdirection of patients within a hospital.

[00:16:09] Speaker 00:
That simply does not exist in this case.

[00:16:10] Speaker 00:
That level of detail does not exist in this case.

[00:16:14] Speaker 00:
And again,

[00:16:15] Speaker 03:
Do you want to also address the Chavez case?

[00:16:17] Speaker 03:
It sounded like he was relying on that, at least in the argument.

[00:16:20] Speaker 00:
Correct.

[00:16:20] Speaker 00:
And the Chavez case, opposing counsel, relied on more specifically with regard to the nursing support disclosure.

[00:16:27] Speaker 00:
But that case as well is distinguishable from this case in that, first of all, it's in a hospital setting where patient care is more acute or patient demands may be more acute.

[00:16:39] Speaker 00:
In any event, in that case, whereas it was found that a delay in patient care was not subject to a, quote unquote, chain of unlikely events, here the nursing support issue that Dr. Elkin alleges to have disclosed is, as the board found, only going to occur based on a chain of unlikely events.

[00:17:03] Speaker 00:
The board, in considering the nursing support disclosure, found that at most this is a policy disagreement about when nurses should be on duty and when they should not.

[00:17:14] Speaker 00:
Because crediting the manager of the clinic's testimony, the board understood, based on her testimony, that it was rare for there to be patients in the clinic at the time Dr. Elkin had alleged patients were there and needed to have adequate coverage.

[00:17:32] Speaker 00:
Turning to the hypoglycemic, seemingly hypoglycemic patient that Dr. Elkin focused on below and before this court, as well the testimony, the evidence before the board points to the unreasonableness of believing that that circumstance was a substantial and specific danger to public health or safety because as the board found,

[00:17:55] Speaker 00:
There was a physician, and this is at appendix 13, there was a physician, a nurse, and a receptionist all occupying the clinic at the time.

[00:18:06] Speaker 00:
And another nurse arrived within minutes.

[00:18:08] Speaker 00:
So we're talking about no delay in patient care as Dr. Elkin would want the court to believe.

[00:18:13] Speaker 00:
And the reasonableness of that belief is certainly undercut by the presence of those other persons able to attend to that matter as rare as it was.

[00:18:28] Speaker 00:
Dr. Elkin, also before this court, just to go back here on our note, I was talking about Chavez to the nursing support disclosure, but I do want to make one additional point about the blood pressure before I close.

[00:18:44] Speaker 00:
Before this court and before the MSPB, the full board, there was a focus on a diary entry about a discrepancy in systolic blood pressure between 118 at the intake

[00:18:58] Speaker 00:
and 200 at the actual examination.

[00:19:00] Speaker 00:
That is a dire reentry, unaddressed to anyone.

[00:19:05] Speaker 00:
That is not a disclosure to anyone of a substantial and specific danger to public health or safety.

[00:19:10] Speaker 00:
To the extent Petitioner continues to focus on that, it simply is misplaced.

[00:19:16] Speaker 02:
The circumstances... Let me just see if I'm understanding.

[00:19:20] Speaker 02:
There are kind of three...

[00:19:24] Speaker 02:
potential disclosures being discussed.

[00:19:27] Speaker 02:
One, you just mentioned the diary, which is just not a disclosure because it wasn't sent to anybody.

[00:19:31] Speaker 02:
I think that's what you said.

[00:19:33] Speaker 02:
Then you had this two word major error disclosure and that, the board said, whatever else that is, that's not specific.

[00:19:42] Speaker 02:
And then the one that you talked about first.

[00:19:47] Speaker 00:
Was the April 2016 verbal communications between Dr. Elkin and the manager of the clinic.

[00:19:54] Speaker 02:
To a person that constitutes a disclosure recipient under the statute.

[00:19:58] Speaker 00:
That was understood to be a disclosure below and we not challenged that before the court.

[00:20:01] Speaker 02:
And what did the board say was inadequate about that one?

[00:20:04] Speaker 00:
That was weighed against testimony by the clinic manager before the board and determined to be

[00:20:12] Speaker 00:
more appropriately categorized as a difference in opinion about how blood pressure should be taken.

[00:20:16] Speaker 00:
Again, there's evidence in the record that Dr. Elkin was, for lack of a better term, obsessive about blood pressure and that he wanted it taken multiple times, using multiple methods, multiple arms, multiple times, different procedures.

[00:20:33] Speaker 00:
However, having received testimony, the board received testimony about the fact that blood pressure taking was a

[00:20:41] Speaker 00:
regimented protocol, none of the other clinicians testified to there being any risks.

[00:20:47] Speaker 02:
Did the board determine that even if it were true what he stated, that wouldn't be a substantial danger or that he couldn't reasonably believe that it was a substantial danger?

[00:21:06] Speaker 00:
It's the latter, Your Honor.

[00:21:07] Speaker 02:
That's a statutory concept.

[00:21:09] Speaker 00:
Correct.

[00:21:10] Speaker 00:
And the undercurrent of the... But the board was weighing the testimony as well, and that Dr. Elkin was testifying that he had disposed a specific, you know, he had a reasonable belief that he had disposed a substantial and specific danger to public health and safety.

[00:21:24] Speaker 00:
But in weighing the testimony and weighing the rest of the evidence in the record, the board found that that reasonable belief was not proven in that there was countervailing evidence in the record

[00:21:35] Speaker 00:
undercutting the reasonableness, regimented procedure in taking blood pressure, more appropriately considered to be a difference in medical judgment about when and how blood pressure should be taken, but not that there actually was any danger to anybody based on how blood pressure was being taken.

[00:21:52] Speaker 00:
And again, in this September 2016 email that we have, the only written disclosure we have about this blood pressure issue

[00:22:00] Speaker 00:
It is simply a broad allegation that there were major errors in how blood pressure was taken.

[00:22:06] Speaker 00:
At the end of the day, again, going back to Judge Cunningham's initial point, the petitioner requests the court to reweigh the evidence and reassess the credibility of the witnesses below.

[00:22:17] Speaker 00:
And that is not this court's province on the Senator review at issue.

[00:22:22] Speaker 00:
And if there are no further questions, I can conclude.

[00:22:25] Speaker 02:
Thank you.

[00:22:26] Speaker 00:
Thank you.

[00:22:36] Speaker 01:
Thank you, your honor.

[00:22:38] Speaker 01:
I want to just start by addressing kind of the last bit of the discussion here.

[00:22:41] Speaker 01:
First of all, Dr. Alkin did not want or require that, you know, blood pressure be checked by nurses three different times in different arms.

[00:22:51] Speaker 01:
He was articulating some of his best practices and beliefs, but his only requirement is that the nurses do it correctly.

[00:22:58] Speaker 01:
That now there's, you know, electronic means of reporting blood pressure that are fairly accurate and reliable.

[00:23:05] Speaker 01:
and yet he had nurses doing it manually and grossly inaccurately.

[00:23:11] Speaker 01:
And it wasn't the first time he had had issues with this in the past, which is part of the reason he became so obsessive here.

[00:23:19] Speaker 01:
But regarding challenges to the factual findings below, the one area that I think is the most subject to question is the judge's conclusion about whether or not he had a reasonable belief

[00:23:33] Speaker 01:
regarding the blood pressure that there was a substantial or specific danger.

[00:23:37] Speaker 01:
And one of the reasons the judge states, because a name wasn't provided, as we've addressed in the briefs, he states in his email that I'm not providing a name here because it's encrypted, but then had an oral conversation in which he discussed the patient with his supervisor.

[00:23:50] Speaker 01:
So a name was provided.

[00:23:52] Speaker 01:
But even with that, that doesn't really matter, as I discussed with Chambers, it's a name, place, or thing is not specified, with or being the operative word.

[00:24:05] Speaker 01:
If there's none of that available, then it's clearly not specific.

[00:24:10] Speaker 01:
But even if you said, I had a patient yesterday at 4 p.m.

[00:24:14] Speaker 01:
and this is what happened, that's specific enough for the

[00:24:19] Speaker 01:
manager to know what's going on, what the error is, and that it needs to be corrected, which is the crux of the whistleblower disclosure.

[00:24:29] Speaker 01:
Regarding the hostile work environment being waived, this is really kind of how we're looking at this is cause and effect.

[00:24:36] Speaker 01:
You have the

[00:24:38] Speaker 01:
protected disclosures, which are the cause, and then the effect being the reprisals that take place.

[00:24:44] Speaker 01:
And those are informed in the context of those protected disclosures.

[00:24:47] Speaker 01:
It's a factor that has to be considered when looking at something like a hostile work environment, whether or not it is illegal.

[00:24:54] Speaker 01:
You have to determine if the actions being taken were a result of these disclosures.

[00:25:00] Speaker 01:
And as I've already explained, for example, with blood pressure, it was determined that

[00:25:04] Speaker 01:
the genesis, at least in Dr. Elkin's admission that the genesis of his kind of hostile treatment by nurses came with the blood pressure disclosure.

[00:25:13] Speaker 01:
Well, because that was not ruled a disclosure, that wasn't even lumped in with the analysis of the hostile work environment.

[00:25:19] Speaker 01:
So we're not asking this court to actually make a ruling that there was or was not a hostile work environment.

[00:25:27] Speaker 01:
We believe that's an issue for the trier of fact.

[00:25:29] Speaker 01:
What we're asking is to send it back down so that they can

[00:25:34] Speaker 01:
examine that in full context of all the protective disclosures that were made and determine if in light of those protective disclosures the hostile work environment took place.

[00:25:51] Speaker 01:
The other point I wanted to address briefly is that one of the cases was differentiated based on the fact that there was more of a hospital setting.

[00:26:00] Speaker 01:
And I wanted to emphasize that this is a rural

[00:26:04] Speaker 01:
VA treatment center.

[00:26:06] Speaker 01:
Patients were traveling sometimes several hours.

[00:26:08] Speaker 01:
That was actually, and it hasn't really been discussed in argument, but one of the disclosures was regarding the nebulizers.

[00:26:14] Speaker 01:
And that was one of the reasons that he preferred those is because when patients are several hours away from a healthcare facility, they need a more effective means of stabilizing themselves from a breathing event with a nebulizer because they might become incapacitated and they're not going to be able to administer an inhaler.

[00:26:34] Speaker 01:
Um, in that same context, you have patients traveling for multiple hours.

[00:26:39] Speaker 01:
So on average, these patients, you know, might be a little bit sicker than your average patient because it's a major inconvenience to get there.

[00:26:46] Speaker 01:
Um, which is part of the reason why the workload issue took place because he's dealing with patients that are coming in very often and that are very sick.

[00:26:54] Speaker 01:
Um, but just comparing it to a hospital, a patient can die at either facility.

[00:27:01] Speaker 01:
Right, just because it's not a hospital doesn't mean a patient who's very sick and has the misguided notion of I should drive to this VA center rather than a hospital.

[00:27:11] Speaker 01:
You know, if they're there and they're untreated for an hour and their condition worsens and they could have been transferred immediately, that's an unacceptable delay.

[00:27:19] Speaker 01:
Once again, and Chavez, we're talking about... Your time is up, so please just wrap up.

[00:27:26] Speaker 01:
In Chavez, we're talking about a delay in patient care because the nurse was a few minutes delayed at the beginning of a shift, and that was significant enough to rise to a protective disclosure, so this should be too.

[00:27:35] Speaker 01:
Thank you.

[00:27:36] Speaker 02:
Thank you.

[00:27:37] Speaker 01:
Thanks to both council cases submitted.