The office of the Attorney General of Montana (Photo by Eric Seidle/ For the Daily Montanan).
Montana Attorney General Austin Knudsen and his top deputy warned St. Peter’s Health in Helena of possible legal action arising from claims of mistreatment made by a COVID-19 patient’s family in October, including that the hospital was not administering a pair of unapproved treatments for the virus prescribed by an outside doctor, according to a report released Monday night by the legislative special counsel.
In a late-night text exchange with Mark Taylor, a prominent lobbyist at the capitol and a member of the St. Peter’s board of directors, Knudsen relayed the allegations and said he was “about to send law enforcement in and file unlawful restraint charges,” according to records obtained from the Department of Justice by the special counsel.
“I know it’s after hours, but I’d appreciate some speed,” he told Taylor. “This has been going on since yesterday and I was hoping the hospital would do the right thing. But my patience is almost gone.”
Hours earlier, Deputy Attorney General Kristin Hansen was on a call with providers at the hospital in which she too discussed legal consequences for the alleged mistreatment, which also included claims that the hospital was cutting the patient off from communication with her family and not delivering a legal document granting power-of-attorney to the patient’s daughter, according to the report. The report did not specify the consequences Hansen named, only that she cited “legal ramifications” on the call. It also notes she called a Montana Highway Patrol trooper to the hospital; according to the report, the trooper spoke only with the family and remained outside the building.
The Legislature’s probe came at the request of Democratic leadership after St. Peter’s told the Helena Independent Record last month that three public officials contacted the hospital about the patient’s treatment, conversations that “were deeply troubling to our physicians and staff because they were threatened and their clinical judgment was called into question by these individuals,” a hospital spokesperson said at the time. The report names former lawmaker and Public Service Commissioner Jennifer Fielder as the third official who contacted the hospital to relay the allegations from the patient’s family.
The examination was limited in scope to a review of government records, during which the counsel “spoke with and visited the Attorney General’s Office on several occasions,” though the specifics of those sessions are not listed in the report. Special Counsel Abra Belke, a former Senate GOP Chief of Staff, wrote that she was able to review a “complete and unredacted” investigative file gathered “as part of an ongoing investigation by the Department of Justice.”
The report makes no specific findings of law, a limitation placed on the newly created special counsel position, but lays out the general confines of the dispute, including a series of interactions in which the Montana Department of Justice officials and Fielder raise the specter of legal action due to the patient’s treatment.
Republican officials said Monday the report makes clear that the attorney general did not threaten hospital workers, with House Speaker Wylie Galt and Senate President Mark Blasdel calling claims that he did “misleading and outright false political attacks” by Democrats and the press.
Democratic leaders, who initially requested the special counsel review, countered Tuesday morning that the counsel report indeed showed the officials misusing their power, and said that while the review indicated that the hospital’s CEO did not feel threatened by Knudsen, it did not address the feelings of other hospital staff and administrators whom state officials contacted.
“This clearly shows a pattern of public officials using their power to intimidate people and Montanans doing their job,” House Minority Leader Kim Abbott, D-Helena, told reporters Tuesday.
The AG’s office has and continues to dispute the hospital’s characterization of events, though it previously confirmed that both Knudsen and Deputy Attorney General Hansen had engaged with the hospital, and that the agency had dispatched a highway patrol officer to the hospital to take statements from the family. According to the special counsel report, Knudsen spoke with St. Peter’s CEO Wade Johnson, Chief Medical Officer Shelly Harkins and Taylor via video conference, and Deputy Attorney General Hansen spoke with hospital providers and an advocate for the patient on a speaker-phone call in which she “discussed potential ‘legal ramifications’ of the conduct the family found concerning.”
An attorney for St. Peter’s told the special counsel that Johnson said he did not feel threatened in his conversation with the Attorney General. The report does not document the perceptions of other hospital staff, nor does it document the specifics of Hansen’s phone call, asserting that “no government records reference the … content of this call.”
Belke’s report also confirmed the identity of the third official to contact the hospital as Fielder. On Oct. 11, according to the report, Fielder left a voicemail with the St. Peter’s Risk Management Office in which she identified herself as a former lawmaker, the patient as a staffer and conveyed that the patient “was of sound mind” and had requested to be treated with ivermectin and hydroxychloroquine, an anti-parasitic drug and anti-malarial respectively that the FDA has cautioned against using to treat COVID-19.
“Commissioner Fielder argues that ‘under Montana law’ the patient has ‘a right to try’ these ‘alternative medications’ in search of ‘lifesaving care,'” the report reads. “Commissioner Fielder then advises the recipient that her voicemail is ‘a record’ that she suggests the hospital employee not ‘erase’ because ‘if this doesn’t turn out well there will be a suit.’ Commissioner Fielder concludes the message stating that the patient has an ‘awful lot of friends who care about her’ and that the Commissioner doesn’t ‘think the Senators will be too happy to hear about what’s going on with [the patient’s] case at St. Pete’s right now.'”
Montana does have a right-to-try law on the books designed to allow terminally ill patients to access experimental medications, though it does not compel a doctor to pursue a certain course of treatment. Care providers have been under duress during the pandemic, caring for patients and at times harassed by the public, and in the middle of October, Montana was experiencing another peak in COVID-19 infections.
The patient, a woman in her 80s involved in local Republican politics who had previously worked at the Legislature, has since passed away of COVID-19-related complications.
The report notes the counsel requested to examine records related to Fielder’s interaction with the hospital, though Fielder responded that she was acting in a personal capacity and no government records related to the dispute exist.
Knudsen has said he learned of the patient’s claims through Deputy AG Hansen. According to the report, a family friend of the patient reached out to Hansen the weekend of Oct. 9 and relayed the family’s concerns over “dozens of text messages.”11.22.21 Special Counsel Report St. Peter’s Inquiry (1)
Aside from the requests for alternative treatment, the patient’s advocate told Hansen that a document naming the woman’s daughter as a medical decision maker was delivered to the hospital but ignored for multiple days, and that St. Peter’s cut off the patient from seeing or communicating with her family. A lawyer for the hospital acknowledged to the counsel that there was a delay in giving the document to the patient, but that it was “provided to the patient as the care team was able” and “that the patient was awake, talking, and directing her care during the delay-period.”
It’s not clear why or how the family friend had a direct line to Hansen, and the AG’s office declined this week to answer emailed questions about that interaction.
“Kris Hansen doesn’t post her cell phone number for healthcare grievances. This is about someone with political connections,” said Abbott, the Democratic House leader.
On Oct. 12, Hansen dispatched a trooper to St. Peter’s to get statements from the family. The trooper, according to the report, relayed the statements to Hansen and notified Lewis and Clark County Attorney Leo Gallagher. Hansen would later loop in Knudsen.
The next evening, St. Peter’s CEO Johnson texted Knudsen directly to tell him that the necessary legal documents were delivered and the family had been made aware “of the methods by which to communicate with the patient and providers, and understand how the family can provide alternative medications to the patient that are not clinically approved.”
‘What isn’t included’
Republican leaders released a statement Monday night thanking Belke for her work and calling any allegation that Knudsen or the state highway trooper intimidated healthcare workers “patently false,” though the statement did not reference Hansen’s call with at least one hospital provider.
“We thank special counsel Abra Belke for her diligent work to complete the records examination requested by Democratic minority leadership,” the statement from Galt and Blasdel reads. “She fulfilled their request within the scope of the special counsel’s authority while keeping minority and majority leadership apprised of her progress. The special counsel’s inquiry also identified the third public official referenced by St. Peter’s Hospital, something that was previously unknown, and resulted in St. Peter’s Hospital clarifying important facts.”
But in a press conference Tuesday, Democratic leaders Abbott and Cohenour said several issues have gone unaddressed: the specifics of Hansen’s call with providers, the exact process of Belke’s review and more.
“What I think is just as important is what isn’t included in this report,” Abbott said. “Nowhere in our report did we see what internal policy was used to dispatch law enforcement. We don’t know what the special counsel requested from the AG, and what was denied.”
Knudsen’s office told Belke that the DOJ and all other law enforcement in the state are “duty bound to investigate claims of patient mistreatment,” citing case law. The office had previously cited Montana criminal code and also said its Medicaid Fraud Control Unit had jurisdiction over the incident, though the report does not include any references to Medicaid fraud.
Abbott and Cohenour said the caucus is still evaluating its next steps, but that at least one avenue is to evaluate how to strengthen legislative oversight authority in between sessions. This probe was the special counsel’s first since the legislature created the post. During session, legislative committees can issue subpoenas, for example — but not so during the interim.
“How do we strengthen our ability to do work during the interim?” Cohenour said. “That’s the question that we’re going to be asking ourselves between now and the next session.”
St. Peter’s, meanwhile, has said it’s conducting its own internal investigation of the incident. The hospital said it was still reviewing the report and had no new comment at this time. The AG’s office told Belke it has yet to make a final decision regarding legal action, and until then, is not releasing many of the documents related to the dispute as they are considered “confidential criminal justice information.”
It’s not clear whether the office has an open investigation, and a spokesman for the state DOJ declined to answer questions from the Daily Montanan on the matter.
“We expect for jurisdiction and process to be followed at the AG’s office,” Abbott said. “I’m not here to say that St. Peter’s is perfect, but our job is to hold the AG accountable, or help the public hold the AG accountable.”
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