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18 JUN 04 PM 3:48
1 KING COUNTY
SUPERIOR COURT CLER
2 E-FILED
CASE NUMBER: 1&-2-141-4&0 SEA
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7
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
8 IN AND FOR THE COUN'IY OF KING
JO Plaintiff, CO:MPLAINT
11 v.
15 Defendants.
16 Tien Thach, M .D., by and through her attorneys, FREY BUCK, P.S., alleges the fhllowing
18 I, PARTIES
23 1.3 Defendant Sean Kincaid, M.D. ("Kincaid") is, on infonnation and belief, aresident
3 Matrix.
4 l.4 Defendant John Costello.MD (" Costello'") is. on information and belief, a resident
5 of King County, Washington. Dr. Costello is a member of Matrix Anesthesia Corporation and
6 acts as ilS Chief Financial Officer. Dr. Costello is also the President of Malrix Anesthesia
7 Overlake.
8 1.5 John Does 1.-XX are currently unknown corpomle leaders of Matrix who were
11 2.1 This court has jurisdiction over this matter because Matrix Ane.~thesia, P.S. is a
12 closely held corporation headquartered and transacting business in King County, Washington.
l3 Upon information and belief l\fatrix, Costello, Does and Dr. Thach all reside, work, and may be
15 2.2 Venue in the Superior Court of King County, Washington is proper because all acts
16 and omissions giving rise to plainllffs claims occurredrn Krng County, \vashington.
17 m. FACTUAL ALLEGATIONS
18 3.1 Plaintiff Tien Thach, M.D., was originally employed by Matrix on October 3, 2010.
19 Matrix has two div,sions Matrix Anesthesia Overlake ('MAO'"), serving Over! ake Hospi ta! and
20 Medical Center in Bellevue, Washington and Matrix Anesthesia Evergreen ('MAE") serving
21 Evergreen Hospital in Kirkland, Washington. Dr. Thach worked in the MAO division, originally
23 3.2 In August of 2013. the MAO divisional board asked Dr. Thach to accept the role of
COMPLAINT· 2
FREY BUCK, P.S.
1200 F!F'lH AVENUE, SUITE l'DO
SEA !TIE, WA 98101
P. (206) 486-8000 F (200) 902·-0
l;[AO' s D1v1sional Compliance a'ficer. Dr. Thach accepted the role. She was elected to the
2 position of MAO Board Treasurer on August 25, 2016 for a two-year term from 2017 to 2019.
4 addressing p<llential legal and practice-related compliance issues. Despite these responsibiliLie,.;,
5 the Matrix board informed Dr. Thach thal she was nol permitted lo contact corporate legal counsel
6 with questions or concerns. Contact with Matrix counsel was expre;.sly limited to the CEO and
7 CFO. Dr. Thach was informed that thi~ rule was enacted by Defendant Kincaid a~ president of
8 Matrix.
10 Defendant John Costello, M.D. and Dr. Dave Knoepfler, then the Chief Medical Officer of
11 Overlake Hospital. Defendant Costello and Dr. Knoepfler announced that a new administrative
l2 position, Medical Director of Surgical Services, had been created al Overtake, and moreover, that
14 3.5 The Medical Director nf Suq,,ical Services salary struc lure described by Defendant
15 Coslello concerned Dr. Thach in her role as compliance officer. Defendanl prop<,sed splitting his
16 time between !he two positions; halftime a., an MAO anesthesiologist, and the other half in the
17 administrative role. However, Defendant sought to retain his full-time anesthesiologist salary of
18 approximately S500,000. Because the new p<>sition included a $150,000 stipend, and half-time
19 anesthesiology work would net approximately $250,000, Dr. Knoepfler sugges1ed Matrix should
20 support Costello in the new poiition; Costello subsequently specifically indicated that Lo support
21 him in the new position MAO would have to make up the difference of approximately $100,000
22 in his prospective lost wages annually. Plaintiff was concerned that this financial ammgement
2 director position salary structure to Matrix Corpornte Compliance Officer Raphael N. Rodriguez,
3 M.D., in accord with proper procedure and to assure transparency. Dr. Rodriguez confirmed that
4 defendant Costello was a.<;king Matrix 10 contribute approximately $100,000 to allow him 10 take
5 the new position without suffering a decrease in his usual earnings. Dr. Rodriguez reported that
6 Matrix Counsel Lee Thorson previously approved a similar ammge ment for two MAE
7 anesthesiologists, and that Mr. TI10rson's blessmg would be sought for the Costello arrangement.
8 Satisfied with Dr. Rodriguez's response, Dr Thach d,d not pursue the matter further.
9 3.7 One of the two MAE anesthesiologists receiving a ,;imilar financial contribution lo
lO the one proposed by Defendant Costello i,, on information and belief, Defendant Sean Kincaid,
12 3.8 In January 2017 Dr. Thach attended the American Society of AnesthesiologisL~
13 Prnctice Management conference in Dallas, Texa.s in her role as divisional compliance officer. On
14 the last day of the conference, she attended a session entitled '"Anti-Kickback Slalule.s/Stark Law
15 Lecture" presented by Marc Vezina, Esq. The pre.senlation provided detailed information on anri-
16 kickback rules and appeared to at lea.st potentially impact the proposed medical director position
17 that Dr Thach had earlier chscussed with Dr. Rodriquez. The presentation rekindled Plaintiffs
18 concerns that the arrangement could expose the group to legal liability given the proposed salary
19 "contributions" required to make up Defendant Costello's lessened earnings in the new position.
20 Dr. Thach, seeking to maintain confidentiality and to protect the group, anonymously approached
21 the presenting attorney at lecture's end to generally describe her concerns. She provided no
23 3.9 The presenting allorney informed Dr. Thach that she had good reason to be
3 3.10 On January 30, 2017, pursuant lo her fiduciary duties as compliance officer and a.~
4 a shareholder of Matrix, Plaintiff contacted Dr. Rodriguez to again express her concern over the
5 legality/propriety of the medical director ammgement given the information she had gleaned al the
6 conference. Dr. Rodriguez expressed concern, as~umed responsibility for all further investigation
7 and follow-up, and accepted Dr. Thach' s offer to provide the presenting attorney's contact
8 information. Dr. Thach took no further action believing Dr. Rodriguez had the aulhority to
lO 3.11 On March 28, 2017, ,vilhout warning and prompted by her report to Dr. Rodriguez,
ll Dr. Thach was publicly allacked al a Matrix Corpornte Board meeting. Defendants Kincaid and
12 Costello displayed a PowerPoint presentation through which they accu,ed plaintiff of a broad
14 supplement arrangements with Matrix that were the cause of Dr Thach', anti-kick-back concerns,
15 as properly presented to Dr. Rodriguez. Each defendant realized personal gain from lhe
16 arrangements. The defendants' presentation was factually inaccurnte and knowingly false. It
17 directly impacted Plaintiff in her profession. Defendant, accused Dr. Thach of several alleged
18 misdee,k
21 • Failure to fulfill fiduciary duties to serve in the corporation's best interest and,
22 • Impennissibly seeking outside legal counsel and ignoring the advice of "trusted
23 legal counsel."
2 actions - that she had expres.sed legitimate concerns through the appropriate corporate slnlcture
3 that the group's agreements with O,:erlake and Evergreen Hospitals may be in violation of anti-
4 kickback laws. Defendants further failed lo express orin anyway recognize that it was Dr. Thach' s
5 fiduciary duty to address such potential problems in her role as divisional n>mpliance otlicer and
6 that it was in her interest as a shareholder of the corporation to bring 10 light and avoid potential
7 corporate improprieties.
8 3.13 Plaintiff had received no warning that such attack was coming; defendants
JO 3.14 On April 3, 2017, Corporate Compliance Chairman Rodriguez told Dr. Thach she
JJ had indeed followed proper protocols by escalating the matter to him, and that he "got in trouble"
l2 with Defendant Kincaid for investigating the mailer. Dr. Rodriguez indicated that he would S()()n
14 3.15 On April 5, 2017, the final board meeting minutes were publishe.d, but in deviation
15 from standard practice, were made available lo MAO members only by wrillen request, and then
16 only via hard copy. Dr. Thach had previously provided a detailed wrillen response to the
J7 inaccumte minutes and lhe unfounded attack by defendants; the approved minutes provided no
18 reference lo her facts and corrections. Instead, the minutes simply reported that Plaintiff
19 "di ,agreed" that her efforts were inconsistent with her duties, and that she had presented "reasons"
20 for her disagreement. The minutes did not provide the shareholders with notice of the potential
22 3.16 Shocked at th.e auack by the defendant~ a.~ corporate leaders and their manipulation
23 of the corpomte structure to intimidate and oppress her in her role as divisional compliance officer
2 le lier of resignation from her positions as MAO Treasurer, Matrix Corporale Board Member, and
3 MAO Division Compliance Officer. Dr. Thach subsequently mmed her focus to the care of her
4 patient,.
5 3.17 Dr. Thach remained an active and engaged shareholder; exercising her shareholder
6 right, and responsibilities, she continued to voice her opinions about issues surrounding the proper
7 governance of the group. Her slalemenLs as a shareholder of the organization were frequently
8 contrary to the defendants' positions on varions issues but unifonnly presented in a respectful and
9 appropriate manner.
IO 3.18 Among the issues facing the corpomtion was a potential sale of the corporation to
J1 an outside org.mization. Corporate leadership, including Costello and Kincaid, strongly supported
J:! the sale. Dr. Thach expressed her opinion to other shareholders that the terms of the sale would
13 not benefit the group in the long term. On information and belief, Matrix corporate officers
14 working lo secure approval of the sale of the group to the outside company were to receive
15 significant personal bonuses from the purchasing company, in addition lo their share value. On
16 information and belief, Defendants Cos1ello and Kincaid were working to achieve the sale and
18 3.19 In addition, on information and belief the payout to individual shareholders in the
19 event of a sale to the outside company would increa,;e if the total number of shareholders were
21 shareholders.
22 3.20 In January '.W18, according to the group's tradition, Dr. Thach began to plan a
23 retirement party for a fellow shareholder. Defendant CosteUo responded lo her communications
2 shareholders subsequently noted the propriety of Dr. Thach's approach and its consistency with
3 prior group practice. Defendant O,stello nevertheless steadfastly hewed to his inaccurate position
4 and directed the issue away from the board's consideration. Defendant Costello's resistance took
5 the character of retaliatory, personal allack bereft of factual support - much like the earlier
6 PowerPoinl defamation.
7 3.21 On January 25, 2018, Plaintiff was told by J:JA0's scheduler that the MAO Board
8 intended to call her out of service for an impromptu" meetmg" The warning stated that Plainhff
9 would be pulled from the operating room in the middle of the morning on January 26 to altend a
10 meeting with Dr. Dorothy Ling: and Dr. Guy Kuo, rather than at an official board meeting:. Dr.
11 Thach located Dr. Ling on January 26 and inquired after the meetmg's purpose: Ling responded
13 3.22 Dr. Thach was concerned about the aberrant meeting demand given her past
14 treatment by the defendants and the Ma1rix board. To help avoid any new surprise a!lacks and to
15 support fairness and !ransparency, on January 26, 2018 Dr. Thach delivered a written message lo
16 Defendant Costello slating Iha! she was concerned about attending impromptu meetings and would
17 not subject herself 10 another unprovoked surprise al!ack. Instead, she requested written
18 notification of any planned meetings, including an agenda or al least some indication of the topic
19 and the names of those expected to a!!end. Plaintiff also requested advance notice so that she could
20 invite counsel lo al!end if possible and stated that she wished "to fully cooperate .. and attend any
22 3.23 On March 13, ~018, the Matrix board responded by terminating Dr. Thach's
23 employment, effective immediately. The Board subsequently sent a message to all shareholders
2 interests of the corpomtion. On information and belief, the mei;sage wa., written by and/or
3 approved by Defendants C<>stello, Kincaid and/or Does. The statement was utterly and knowingly
4 false.
5 3.24 On information and belief, Defendants subsequently started rumors that Plaintiffs
6 termination was due to a "drug problem", that it was premised upon an alleged threat made by
7 Plaintiffs long-time companion, and that the companion had attempted to "hack" the group's
9 3.25 Matrix Anesthesia, P.S. and the Matrix board are responsible for ,folalions of
10 Washington law related lo corporate governance, fiduciary obligations, and minority shareholder
ll rights. Defendants' actions also constitute the tort of Outrage and have defamed Dr. Thach in her
12 professional endeavors.
J3 3.26 On March 13, 2018. Dr. Thach received an anonymous letter from "The Matrix
14 Board" informing her lltal hershareholder righLs had been terminated. In terminating Dr. Thach' s
15 shareholder rights, defendants Matrix, Kincaid, Costello and Does I-XX violated the corporation's
16 bylaws. The termination was beyond the authority of the board and unauthorized under the bylaws.
17
4 5.1 Defendants Kincaid, Costello and Does as <-'orporale officers had a fiduciary duty
5 to the corporntion and ils shareholders and a duty of good faith and fair dealing; Matrix had a duty
6 lo treat minority shareholder Thach reasonably and fairly and acted solely through its corpornte
11 retaliating against plainliff for her effort lo bring potentially significant legal is.~ues lo the
13 5.3 Defendants acted oppressively and in bad faith through pervasive intimidating and
14 retaliatory allacks upon Dr. Thach engineered to protect their own interesL~ over those of the
16 5.4 On information and belief, defendants Kincaid, Costello and Does also acted for
l7 the benefit of their personal interests over those of Dr. Thach in further violation of !heir fiduciary
18 duty.
19 5.5 Defendant Matrix also had a duty to treat minority shareholders fairly and not
20 interfere with shareholders' rights and benefits as owners of the company unreasonably.
22 5.6 As a result of the violations of these dutie.,, Dr. Thach has and continues to be
23 injured.
4 7.4 Defendants' wrongful actions have caused and continue to cause injury to Dr.
5 Thach.
7 8.1 Defendants deprived Dr. Thach of her shareholder status as a result of her efforts
8 to protect Matrix and iL, shareholders from potential legal exposure under anti-kickback statutes
9 and for voicing her opinions and opposition to defendants' corporate leadership Defendants'
10 behavior was exlreme and oulrageous, in violation of fiduciary responsibilities and uuer!y
13 subjecting her, unannounced and wi thou! warning, to a direct, humiliating, unfounded and personal
14 attack in front of the Matrix board in retaliation for her act of exerci.sing her responsibility as a
15 divisional compliance officer and share.holder lo assure that the corporation was not opernling in
18 through relentless intimidation and character assassination even after they constructively removed
19 her from her elected positions of trust a~ the MAO trea"urer and a member of the Matrix board.
21 retaliating against her for pointing out potential legal incongruities in the corporation's business
22 affairs, voicing her opinion contr.rry to corporate leadership and, on information and belief, in their
23 effort lo personally gain through the direction of corpornle affairs at the expense of Dr. Thach.
2 decency, II is atrocious and uuerly inlolernble in a society where laws and regulations exisl 10
4 8,6 Dr, Thach has suffered and continues to suffe.r severe emotional distress caused by
7 9, 1 Defendants ex posed Plaintiff Tien Thach, M,D,, to ridicule and injury to her
8 reputation by publicly and impmpedy castigating Dr, Thach in front of all MAO shareholders,
9 suri,,,ical colleagues, nursing co-workers, and staff at Overlake Hospital Medical Center, the Retinal
lO Surgery Center, and Proliance Highlands Surgical Center, v.ithoul factual basis and Jmov.1ng Iha!
12 9,2 Defendanh further exposed Plaintiff to ridicule and injury lo her reputation by
13 immediately terminating her employment and publicly informing others that the termination was
14 necessary due to either a clinical issue or behavior that was contrnry Lo the corporation's interests.
16 9,3 These acts constitute defamation per se as they have impacted Dr, Thach in her
17 professional capacity,
3
FREY BUCK, P.S.
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B v·/~
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Ted Buck, WSBA #22029
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Attorney for Plnint!f{
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