DEPARTMENT OF VETERANS AFFAIRS 

Veterans Health Administration 

Washington DC 20420 . 

Ermin Kreso, MD 

165 S. Syracuse St. 

Denver, CO 80230 

MAR 1720" 

In Reply RerarTo: 

SUBJECT: Disciplinary Appeals Board Decision 

Dear Dr. Kreso: 

A Disciplinary Appeals Board was convened to consider the appealef your 

discharge from the VA Eastern Colorado Health Care System, Denver, Colorado. 

At the time of your discharge, you were a full-time permanent employee who had 

completed your probationary period. The action being appealed is a major adverse 

action. The charges, upon which the action is based, in whole or in part, involve issues 

of professional conduct and competence, and the appeal was timely filed. Therefore, I 

find the. Board's jurisdictional determination was proper. 

The Board sustained the charges that you failed to attend to patients presenting 

to the Emergency Department for treatment (3 of 5 specifications sustained); engaged 

in patient neglect due to delay of care to patients (1 of 2 specifications sustained); and 

engaged In disruptive behavior. The Board concluded that the sustained charges were 

sufficient to support the penalty of a removal. After careful consideration of all of the 

evidence, including the Board's analysis and findings, it is my determination to execute 

the decision of the Disciplinary Appeals Board. A copy of the approved Board Action is 

enclosed. This is the final administrative action in this case. 

This is the final administrative action in this case. 

Enclosure 

. cc: Ellen F. Stewart, Esq. 

Berenbaum Weinshienk PC v 

370 1 ih street, Suite 4800 

Denver, CO 80202 

Medical Center Director 

Sincerely, 

f{{;;C£~~ 

Robert Jesse, MD, PhD 

Principal Deputy Under Secretary for Health 

Case No. 1:11-cv-02378-REB Document 1-1 filed 09/09/11 USDC Colorado pg 1 of 26
". 

~ Department of Veterans Affairs BOARD ACTION 

INSTRUCTIONS - Prepare one oopy for Field Station and one oopy for Central Offioe for all employees for 

whom Board Aotion Is forwarded to Centrel Office for review or filing In Board Aotion Folder. 

1. EMPLOYEE/APPLICANT'S NAME 

jKreso I Ermin 

1 B. EMPLOYEE'S GRADE; AND STEP 

!VM-0602/02 

1A. EMPLOYEI"S POSITION 

!Physician 

1C. NAME OF STATION 

IDenver, Colorado 

INITIATING BOARD 

3. STATION OF BOARD 

r PROF. STD. BOARD (0' DISCIPLINARY r PHYSICAL STANDARDS !Denver, Colorado 

5. FINDINGS 

I. INTROOOCTION 

4. DATI; 

By letter dated April 30, 2010, a Disciplinary Appeals Board (Board), appointed by the 

Deputy Under Secretary for Health for Operations and Management, to conduct a hearing on 

the removal of Dr. Ermin Kreso (Appellant) from the Department of Veterans Affairs 

Medical Center, Denver, Colorado; The Proposed Discharge let.te.r was issued by Dr. 

Donald Weinahenker on November 13, 2009. Lynette Raff, Medical Center Director, signed 

the· decision letter on March ,11, 2010, sustaining the following charges: Failure to 

Attend to Patients Presenting. to the Emergency Department for Treatment; Instructing 

Nurses to Send Patients Home from the mmergency Department Without Being Evaluated by a 

Physician; Patient Neglect - Delay of Care· to Patients; and Disruptive Behavior. The 

effective date of the action waS March 20, 2010. The Appellant appealed this action by 

letter dated April 5, 2010. The Disciplinary Appeals Board Hearing was convened October 

13 - 15, 2010, at VA Medical Center in Denver, Colorado. 

II. JURISDICTION 

a. Employee Status: The Appellant was on a full-time permanent 38 usc 7401{l) 

appointment which was effective September 5, 2006. 

b. Action being Appealed: Per 38 O.S.C. section 7462, a Disciplinary Appeals Boards 

appOinted under 38 U.S.C. section 7464 shall have exclusive jurisdiction to review any 

case which arises out of (or which includes) .8 question of professional oonduct or 

competence of a section 7401 (1) employee and in which a major adverse action was taken. 

Per 38 U. s. c. section .7461, a maj or adverse action is an adverse action, which includes 

any of the following: Suspension, Transfer, Reduction in grade, Reduction in basic pay, 

or Discharge. 

VA FORM 

OCT 2008 10·2543 

II 

Page 1 of 2 

Case No. 1:11-cv-02378-REB Document 1-1 filed 09/09/11 USDC Colorado pg 2 of 26
PAGE 2 - Board Action 

DAB - Ermin Kreso, M.D. 

III. PROCEDURAL ISSUES 

A On July 2, 2010, the appellant, through his attorney, n9quested an extension due to 

International travel, and to facilitate preparation upon his return. Accordingly, the 

appellant waived the statutory time frames (See Additional Documents., Memo dated 

June 8, 2010, Ellen E. Stewart), and the Board approved the request. The hearing was 

scheduled to commence October 13,2010, at the Denver, Colorado Veterans Affairs 

Medical Center. 

B. The Appellant raised several procedural issues at the Pre-hearing Conference Call 

and prior to the hearing: The initial issues were raised iti a letter to the Agency, and a 

subsequent Freedom of Information Act (FOIA) appeal to Central Office. (Agency 

Evidence File: Letter: January 15, 2010) As the FOIA Appeal was not scheduled to be 

heard In Central Office prior to the hearing, the Board addressed these issues. 

Defendant's Procedural Issues (FOIA) Analysis: 

On January 15,2010, Dr. Kreso appealed a Regional Counsel decision to the Office of 

General Counsel (OGC) regarding iiems he wished released under FOIA (Agency 

Evidence File: Letter: January 15, 2010). The appeal had not yet been reviewed by 

OGC at the time of the DAB hearing, October 13 - 15, 2010. The Board determined 

that in the Interim the issues, with the exception of item 2 listed below, had been 

resolved. 

Information Requested: 

1 .. Complete complaint of Dr. Nancy Franzoso: 

Provided by the Agency; 

2. Complete Medical records of the patients referenced in the AlB: 

This was not resolved by the time of the hearing. However, Dr. Baker and Dr. 

Weinshenker testified that they had not reviewed the medical record beyond what was 

presented to the AlB. Neither did the Board review any other medical records; 

3. and 4. The staffing lists for the ED at the time of the charges: 

The Agency made good faith attempts to present as complete a record as possible. 

5. The transcript of the testimony of Florence McNeal before the AlB: 

Case No. 1:11-cv-02378-REB Document 1-1 filed 09/09/11 USDC Colorado pg 3 of 26
PAGE 3 - Board Action 

DAB - Ermin Kreso, M.D. 

Ms. McNeal did not testify before the AlB (Agency Evidence File: December 10,2009, 

Letter from Ms. Nelson to Dr. Kreso).· 

6. A copy of all policies, procedures consulted by the AlB In preparing its report, but not 

included in its file: . 

Ms. Nelson testified before the DAB that there was no other documentation referenced 

in preparing its report (Nelson Transcript DAB II, Page 260 Lines 17 - 21). 

7. A copy of the AlB and any drafts that were not provided: 

The report was provided, (albeit delayed). There were no drafts (Nelson Transcript DAB 

II, Page 255 Lines 9-25; Page 256 Lines 1-14) .. 

8. A copy of any notes taken by the AlB, including a listing of questions: 

Ms. Nelson testified that there was no additional AlB documentation, and that the 

panel, not the agency, had developed the witness list and the questions (Nelson 

Transcript DAB II Page 255 Line 25; Page 256 Lines 1-14). 

C. The Appellant qUestioned the summoning and conduct of the AlB: 

The Board was satisfied given the testimony of Ms. Roff: 'When we do have an incident 

that borders on patient abuse, it is my responsibility to immediately look into it" (Roff 

Transcript DAB II Page 195 Line 11). (Medical Center Memo, Patient Abuse ) and Ms. 

Nelson: "We developed the AlB questions" (Nelson Transcript DAB II; Page 246 Line 

5); "The three of us developed the witness list," and by eXamining the AlB time lines, 

that it was appropriate to summon an AlB and that it was conducted according to 

regulations. (Nelson Transcript DAB II, Page 259 Lines 18 - 19). 

0: The Appellant's attorney filed a Motion of Censure regarding an e-mail string that 

occurred just prior to the hearing. (DAB Fite: Additional Documents: E-mail Messages, 

October 8 - 9, 2010): 

The Board addressed this issue in some detail at its commencement. The Board 

agreed with the appellant that the e-mait string was a significant breach of procedure, 

but concluded that, following the discovery of the e-mails, the Agency had acted in good 

faith to correct the matter, and the Board had not.been tainted against the Appellant by 

the inappropriate comments in the e-mails. (Transcript DAB I, Pages 17- 22). 

Case No. 1:11-cv-02378-REB Document 1-1 filed 09/09/11 USDC Colorado pg 4 of 26
PAGE 4 - Board Action 

DAB - Ermin Kreso, M.D. 

IV. DOCUMENTS ANALYZED BY BOARD 

The Board considered as evidence: 

A. The Evidence File; 

B. Testimony before the DAB; 

C. Exhibits (attached) 

V. CREDIBILITY OF WITNESSES. 

The Board considered the credibility of the evidence presented before it. It had the 

benefit that the majority of the witnesses had given sworn testimony in two settings, the 

AlB and the DAB. Some witnesf>6s appeared to have been, not inappropriately, 

coached by their respective counsel, prior to the DAB, and some of the patients may not 

have recalled all details accurately. The Board .considered the testimony presented 

before it credible, but made the following two observations: 

A. The testimony of Ms. Back seemed overly antagonistic towards Dr. Kreso; 

B. Dr. Kreso's testimony before the DAB was often at odds with his testimony before 

the AlB and with his representation of the facts in his two written presentations to the 

Director in response to the proposed removal (See Agency Evidence File) . 

. VI. BACKGROUND 

As a result of several incidents involving Dr. Kreso in the Emergency Department, most 

especially an incident involving his interaction with a patient presenting for lodging, the 

Director at the Denver VA, Ms. Roff, appointed an AlB. The findings of that AlB led to a 

proposal for the discharge of Dr. Kreso. After consideration, the Director decided upon 

discharge. Dr. Kreso is appealing that discharge before a DAB. 

Case No. 1:11-cv-02378-REB Document 1-1 filed 09/09/11 USDC Colorado pg 5 of 26
PAGE 5 - Board Action 

DAB - Ermin Kreso, M.D. 

Charges and Specifications: 

VII. FACTS AND ANALYSIS 

Charge 1 " Failure to attend to patients presenting to the Emergency Department for 

treatm~nt. 

Specification 1: On May 11, 2009, patient WB presented to the Emergency Department 

(ED) with urinary problems. This patient has a history of bladder cancer. Susan West, 

RN, informed you of the care they provided to the patient. You stated to Susan West, 

RN, that you did not need to see the patient and the nurse should tell the patient he 

should watch for fevers and continued dysuria and that he could be discharged from the 

ED. You failed to see the patient in the ED and assess his medical condition. 

Finding: Specification 1 is sustained. 

BOARD'S SUMMARY OF EVENTS (based upon the evidence): 

Patient WB presented to the ED at 5:23 a.m. on May 11,2009, (Triage note). At that 

time on duty in the ED were RN Floris McNeal and RN Susan West. Dr. Kreso had 

retired to the ED M.D. "Night Room". WB was complaining of dysuria and difficulty with 

flow.in his catheter. Nurse McNeal manipulated the catheter and resolved the issue. 

Nurse West informed Dr. Kreso of the presence of the patient at 6:10 a.m. and of the 

treatment provided by Nurse McNeal. Dr. Kreso instructed her to send the patient 

home. At this time Dr. Kreso had not reviewed the Medical Record. Some short time 

later Dr. Kreso left the "Night Room", reviewed the record in the computer, and entered 

a computer note (7:24 a.m.). He did not examine or interact with the patient. 

"Reviewing the medical record had no part in the decision to send the patient home 

"(Kreso Transcript DAB III, Page 184 Lines 14" 25). 

FACTS IN DISPUTE: 

Dr. Kreso argued that manipulating a catheter was within the scope of practice of a 

qualified RN, and therefore (sic. as she was a medical practitioner), that he did not need 

to see the patient. neither as a matter of patient safety, nor as Indicated by the "spirit of 

EMTALA" in practice at the ED, nor as he understood the ESI triage guidelines which 

had been discussed at staff meetings (Kreso Testimony AlB, Page 7 Lines 1 "3). He 

also drew the distinction that he was informed the patient was there, but was not asked 

to see the patient. "To my best recollection Nurse West did not request that I see the 

Case No. 1:11-cv-02378-REB Document 1-1 filed 09/09/11 USDC Colorado pg 6 of 26
PAGE 6 - Board Action 

DAB - Ermin Kreso, M.D. 

patient" (Kreso Transcript DAB III, Page10 Lines 11 -12). He backed up his argument 

with an e-mail string suggesting that WB would be a level 5 triage patient, and so did 

not need to be seen by an MD. Dr. Kreso denied that Dr. Welnshenker had ever told 

him that he must see every patient who presents.to the ER. "That conversation never 

took place." (Kreso Testimony DAB, Page 90 Line 12). 

ANALYSIS: 

Unless they are Advanced Practitioners, RNs are not considered Licensed Independent 

Practitioners (LIP) within the VA, and so would not fulfill the obligation; under EMTALA, 

for a patient to receive a medical exam by a qualified medical practitioner. Discharging 

the patient from the ED without being afforded a medical screening exam ran contrary 

to the expectation that all patients receive a medical screening exam. Dr. Kreso stated 

that he was aware that this was policy, and Dr. Baker and Dr. Weinshenker have 

testified that they had informed him of this policy. "I remember very specifically sitting 

down with him and Dr. Baker ...... you have got to see everyone who comes here" 

(Weinshenker Transcript DAB II, Page 11 Line 22 - 25) in April of 2009" (Weinshenker 

Transcript DAB II, Page 20 Line 17). Dr. Meyer had also discussed this with him when 

he was Chief. I do remember a lot of discussions with him about the fact that it is 

imperative that he see patients that were in the ER {Meyer Transcript DAB I, Page 42 

Lines 23 - 25; Page 43 Lines 1 - 6}. The Board also noted that although in close 

proximity to the patient while looking at the computer, Dr. Kreso did not examine the 

patient. . 

Specification 2. On May 10, 2009, patient OW from Salt Lake City presented to the ED 

for completion of his lodging request. You contacted this patient and refused to 

complete the lodging request or prescribe oxygen for this patient in the ED despite 

being counseled previously by your supervisor, Dr. Sandra Baker, M.D., to evaluate and 

treat lodging patients who present to the ED. You were aware this patient was short of 

. breath; he was having a hard time talking and he had trouble making the telephone call 

to the oxygen company due to his respiratory distress. His physical coMition was 

witnessed by Police Officer Neil Weston who contacted you regarding this patient, his 

shortness of breath and need for oxygen as requested by the patient and you 

acknowledged seeing the patient and again refused to assist this patient. When Officer 

Weston informed you that the patient needed oxygen you replied, "I know, he was just 

back here. He wants lodging." Officer Weston told you, "He can't breathe. Somebody 

needs to get him some oxygen." You replied, 'Well we're not giving him oxygen." 

Officer Weston told you, 'Well what are we going to do, just let him fall out?" You 

replied, "When that happens we will deal with it." Only after Officer Weston informed 

you that you would be held accountable for this patient was the patient checked into the 

ED and provided oxygen. Your actions needlessly endangered the safety of the patient. 

Finding: Specification 2 is sustained. 

Case No. 1:11-cv-02378-REB Document 1-1 filed 09/09/11 USDC Colorado pg 7 of 26
PAGE 7 - Board Action 

DAB - Ermin Kreso, M.D. 

BOARD'S SUMMARY OF EVENTS (based uPon the evidence) 

Mr. OW arrived from Salt Lake City, some 4 hours distant, at approximately 8:00 p.m. 

He had clinic appointments the following day. When he presented to the AOD on duty 

he was not able to go through the administrative lodging process as he had insufficient 

oxygen and possibly insufficient medication for the duration of his stay. The AOD went 

back to the ER and spoke with Dr. Kreso. There are closed doors between the ER and 

the ER waiting room, but it is possible that at some time during this exchange Dr. Kreso 

was able to look at Ow. Dr. Kreso testified that he had to send the patient home, citing 

policy (Inaccurately) (Exhibit M·16: Lodging of Patients Policy); "I am within my legal 

rights to say you do not have any immediate needs." (Kreso Testimony AlB, Page 48 

Lines 23 ·25) and because he was afraid of being reprimanded by nursing staff if he 

gave the patient oxygen. "I had been verbally reprimanded by the nursing staff .... for 

giving people our oxygen supply" (Kreso Transcript DAB III, Page 17 Lines 24·25; 

Page 18 Lines 1 • 2). Dr. Kreso concluded that the patient could not be lodged and 

should return to Salt Lake City. Dr. Kreso stated that he was aware that the patient had 

insufficient oxygen for the return trip. " ... he was about to run out, and he was not going 

to make it home safely with no additional oxygen" (Kreso Testimony AlB, Page 47 Lines 

20 - 22). Dr. Kreso instructed the AOD to give DW the telephone number of an oxygen 

· supply company. OW went to the lobby to use the public phone. While he was having 

difficulty using the phone the patient was observed and then assisted by Nurse Fox. 

Nurse Fox was sufficiently concerned that she called for help. "He was gasping like he 

needed some air.... He didn't have any oxygen" (Fox Testimony AlB, Page 3 Lines 5 -

10) from the nearby dispatch office. "One of the RNs was actually having a break .... 

And came over to the office. I was in the dispatch office." (Weston Transcript DAB I, 

Page 205 Lines 16·21). Dispatch sent Officer Weston who immediately went with Ms 

Fox to OW, and was concerned for the patient. "He couldn't breathe, you could actually 

hear him wheezing" (Weston Transcript DAB I, Page 206 Lines 10 -11) " ... he brought 

· a little tiny bottle ... and it was out obviously.' (Weston Testimony AlB, Page 4 Lines 16· 

18) and Officer Dediemar who was in the basement and arrived a few minutes later. "I 

was In the basement. .. (Dedlemar Transcript DAB II, Page 283 Lines 23 • 24) it took me 

two to three minutes to get there. While Nurse Fox was assisting with the phone call, 

· Officer Weston went to the ER to seek assistance for OW. At this time Officer Dediemar 

and Nurse Fox were with OW, who had by then contacted the oxygen company. 

Officer Weston went through the doors to the ER and found Dr. Kreso. "I went directly to 

Dr. Kreso and say "this guys needs help" (Weston Transcript DAB I, Page 219 Lines 13 

-15). Officer Weston explained his concerns about DW's condition. Dr. Kreso refused 

to see the patient, was told by Dr. Kreso· "no we are not going to see him .. ;" (Weston 

Transcript DAB I, Page 208 Lines 24 • 25) and after a further discussion Dr. Kreso 

walked away. " ... a second time .... I am going to report you ... " (Weston Transcript DAB 

I, Page 2a9 Lines 9 ·21). Dr. Kreso may"have been able to visualize the patient from 

the ED. Officer Weston then went to the AOD desk and after stating that he would 

Case No. 1:11-cv-02378-REB Document 1-1 filed 09/09/11 USDC Colorado pg 8 of 26
PAGE 8 - Board Action . 

DAB - Ermin Kreso, M.D. 

report the incident to the Director if action was not taken "I went to the AOD ... I will tell 

the director ... (Weston Transcript DAB I, Page 211 Lines 8 - 16) when I got back he . 

was sitting in the waiting room with some oxygen." (Weston Transcript DAB I, Page 211 

Lines 24 - 25), obtained hospital oxygen for ow. The AOD took care of the oxygen ... It 

was on twei and he had to bump It up to a 3 ... he was taking shots of an inhaler just to 

talk to me." (Weston Testimony AlB, Page 7 LInes 19 - 21). 

Apparently, the night supervisor was called. "Somewhere along the line Nursing 

supervisor Barrows appeared -I contacted her." (Weston Transcript DAB I, Page 218 

Lines 1 - 5) and arranged for the patient to be lodged. "Officer Dediemar drove him 

over" (Weston Testimony AlB, Page 10 Lines 10 -14). Dr. Kreso did not interact with 

OW directly. Later, Dr. Kreso filed a patient safety report as he wished to address 

systems issues that had patients arriving inadequately prepared to be lodged. 

FACTS IN DISPUTE: 

During testimony Dr. Kreso both acknowledged and denied knowing the details of the 

lodging policy, whicli details the ER physician's role and interaction with patients 

presenting for lodging, including, if necessary, completing a lodging request and 

providing urgent medical care. (CM HAS 136 Lodging of Patients: 3 b (2) (3) ~ See 

Attachments). "There is something called a lodging protocoL .. ; (Kreso Testimony AlB, 

Page 39 Lines 3 - 4) "Yes there is a written lodging policy" (Kreso Transcript DAB III, 

Page 15 Lines 3 - 5). "I was told at the beginning that according to our policy it was not 

the responsibility of the ED .... , and when a lodging patient's medical concerns should 

be addressed." (Kreso Transcript DAB III, Page 15 LInes 11 -15). 

Dr. Kreso acknowledged that the patient should have been medically assessed. "If the 

patient who presented for lodging had an acute emergent medical condition .... That 

they should be evaluated for such a condition." (Kreso Transcript DAB III, Page 15 

Lines 16 - 20). " .. any kind of shortness of breath ... needs to have an immediate 

medical evaluation;" (Kreso Testimony AlB, Page 58 Lines 5 -7). "However, let's say 

that person runs out of oxygen the next hour ... he might become cyanotic" (Kreso 

Testimony AlB, Page 49 Lines 3 - 5). 

Dr. Kreso gave conflicting testimony as to whether he had communicated directly with 

OW which might speak to his knowledge of the level of OW's distress. "Did you see the 

patient? No, he was in the waiting area." (Kreso Testimony AlB, Page 52 Lines 11 -

14). "I told Mr. Willis." (how to get oxygen) (Kreso Transcr'lpt DAB III, Page 19 Line 25; 

Page 20 Lines 1 - 4) "I saw Mr. Willis standing there ... (when talking to Officer Weston) 

(Kreso Transcript DAB III, Page 22 Lines 2 - 3). 

Case No. 1:11-cv-02378-REB Document 1-1 filed 09/09/11 USDC Colorado pg 9 of 26
PAGE 9 - Board Action 

DAB - Ermin Kreso, M.D. 

Counsel for the appellant stressed differences in the accounts of Officer Dediemar 

"Other than the loud talking DW did not appear to be in any distress") (Dediemar 

Transcript DAB II, Page 268 Lines 22 - 24) and Officer Weston - but their testimony is 

compatible, and they may not have been together at any time; "there was nowhere that 

Dediemar was with me" (Weston Transcript DAB I, Page 214 Lines 17 -18). Officer 

Dediemar being present when Officer Weston was in the ED with Dr. Kreso. 

ANALYSIS: 

DW arrived without the requisite paper work and medical supplies that he, as a lodger, 

should have brought with him. This was not an unusual occurrence, and the patients 

would normally be accommodated by the ED doctor who would complete the 

paperwork. There could have been no doubt that DW had severe medical problems, 

and was oxygen dependent. Dr. Kreso showed a severe lack of compassion and a lack 

of concern for DW's medical wellbeing when he directed that the patient be sent to the 

phone to obtain sufficient oxygen supply to return to Salt Lake City, and miss his VA 

appointments the following day. At that time DW was sufficiently in medical distress as 

to concern Nurse Fox, and subsequently Officer Weston. Dr. Kreso disregarded the 

concerns of Officer Weston in regards to the medical distress of DW and simply walked 

away. This behavior falls well below the expected standard of care of any doctor, and 

placed OW at significant risk. In his testimony before the AlB and DAB he remained 

ambivalent over whether he should have cared for DW. (Kreso Testimony AlB, Pages 

39·59): Question: "WOUld you do something different?" Answer: "Because obviously I 

have people who are concerned who complained" (Kreso Transcript DAB III, Page145 

Lines 17 -19). 

Specification 3. On May 10, 2009, patient PA present!,)d to the ED complaining of bugs 

all over his body, laNae in his mouth and excoriations of both his upper and lower 

extremities and ears. You documented in his medical record that he was suffering from 

"delusions of parasitosis." You also documented that after attempts to educate the 

veteran that he was suffering from delUSions, he did not fully believe you despite 

multiple attempts at reassurance. You discharged the patient with an altered mental 

state without performing a mental status examination, a neurological examination, 

obtaining lab tests such as a Complete Blood Count (CBC), Toxicology Screen or Liver 

Panel, or requesting a p$ychiatric consult. When the patient returned to the ED a short 

time later, you failed to complete the assessment on this patient. 

Finding: Specification 3 is not sustained. 

Case No. 1:11-cv-02378-REB Document 1-1 filed 09/09/11 USDC Colorado pg 10 of 26
PAGE 10 - Board Action 

DAB - Ermin Kreso, M.D. 

BOARD's SUMMARY OF Events (based upon the evidence) 

Mr. PA, who was well known in the ED, presented with a complaint of feeling and 

seeing bugs all over his body. Dr. Kreso took a history and examined the patient. He 

made a diagnosis of Delusional Parasitosis secondary to drug abuse. Dr. Kreso did not 

perform any tests, nor seek any consultations, and discharged the patient with a plan for 

follow up in the Mental Health clinic the following day. 

ANALYSIS 

Dr. Kreso's statements may reflect a bias towards a certain section of the veteran 

population, "PA ... was he a Black gentleman? Diagnosis PTSD, heroin abuse, cocaine 

abuse and marijuana abuse; (Kreso Testimony AlB, Page 77 Lines 23 - 25) "". due to 

his ongoing abuse ... " (Kreso Transcript DAB III, Page 30 Line 13), and he might have 

considered supporting his clinical diagnosis with some laboratory testing to rule oul 

other causes of delusion or whether there was acute intoxication. Other physicians may 

have considered that the patient's active delusions would put the patient at some risk of 

harm, and would warrant admission. However, Dr. Kreso's treatment of PA falls within 

the range of acceptable treatment. 

Specification 4. On February 28, 2009, patient CL presented to the ED with an abscess 

on her head. She was complaining of increased pain and redness. You incised the 

abscess. The patient asked you for a single pain pill, you advised her to take ibuprofen. 

You refused to provide pain medication after conducting an invasive procedure. 

Finding: Specification 4 is not sustained. 

BOARD'S SUMMARY OF EVENTS (based upon the evidence) 

Patient CL presented to the ED on the evening of February 28,2009, where Dr. Kreso 

either performed incision and drainage of a scalp abscess, or manipulated a previously 

incised abscess (The full record was not reviewed but the Board did not consider it 

necessary in evaluating the Specification). CL was a Mental Health patient, but did not 

have a history of illicit drug use. Dr.' Kreso examined the site, using local anesthetic. 

He discharged CL with instructions to take Ibuprofen for any further pain. Shortly 

afterwards CL retumed (she mayor may not have physically exited the ED area) with a 

request for narcotic type medication for analgesiafsleep aid. Dr. Kreso considered that 

she had not "checked in" and therefore her request would not be considered. Dr. Kreso 

called the VA Police and had CL escorted from the ED. "CL was denied a pain pill by 

Dr. Kreso, she got upset and the police were called" (Back Transcript DAB I, Page 197 

Lines 10- 17). He subsequently filed an incident report regarding how CL was able to 

re-enter the ED. 

Case No. 1:11-cv-02378-REB Document 1-1 filed 09/09/11 USDC Colorado pg 11 of 26
PAGE 11 - Board Action 

DAB - Ermin Kreso, M.D. 

FACTS IN DISPUTE: 

Dr. Kreso's testimony regarding his reasoning for not considering Cl's request upon her 

return was different at the AlB " .. Cl basically invaded the premises due to a faulty 

security perimeter", (Kreso Testimony AlB, Page 76 Lines 23 - 24) from that given 

before the DAB. " ... could cause a medication-medication interaction .. " (Kreso 

Transcript DAB III, Page 40 Line 11). 

ANALYSIS 

The use of narcotics, and deciding when they are needed, is always a difficult issue for 

ED physicians, and individual physicians have different outlooks on when their usage is 

appropriate. However, a physician should feel a responsibility to address a patient's 

complaint of pain, whether that is by education, physical means, or medication -

narcotic or non-narcotic. Testimony suggested that Dr. Kreso was not in favor of 

narcotic use.· "I have seen him dig his heels in when people asked for narcotics" 

(McNamara Testimony AlB, Page 4 Lines 1- 2). In this instance he might have 

considered re-evaluating CL upon her return, as opposed to being concerned about· 

how CL had re-entered the ED, " .. Cl basically invaded the premises due to a faulty 

security perimeter (Kreso Testimony AlB, Page 76 Lines 23 - 24) but his management 

of the patient's complaint of continued pain did not reach the standard of being 

unacceptable. . 

Specification 5. Patient IS presented to the ED at 3:00 a.m. on April 29, 2009 with a 

complaint of inability to sleep due to coughing, congestion and sore throat. The patient 

is a Registered Nurse and complained that you did not address his Pulse Oximetry of 

92 and that you only listened to the two upper lobes of his lungs. The patient states that 

you told him that there was nothing wrong with him, this was not a true emergency, and 

that you told him to tell his wife not to bring him to the ED unless it is a true emergency. 

Finding: Specification 5 is sustained. 

BOARD'S SUMMARY OF EVENTS (based upon the evidence) 

Patient IS presented to the ED at 3:17 a.m. on April 29, 2009, with a complaint of 

inability to sleep due to coughing, congestion and sore throat. The patient had been 

symptomatic for a few days and came as his wife was concerned that his condition was 

not improving, and because he was worried about possible cardiac symptoms. Dr. 

Kreso examined the patient, and discharged him with a diagnosis of "likely chronic 

Case No. 1:11-cv-02378-REB Document 1-1 filed 09/09/11 USDC Colorado pg 12 of 26
PAGE 12 - Board Action 

DAB - Ermin Kreso, M.D. 

sinusitis with post nasal drip in the setting of obesity/weight gain. "and informed the 

patient that he considered Mr. IS to have visited the ED inappropriately. (Kreso: ER 

Note: "Patient education at discharge: do not utilize the ER resources for issues such as 

this in the future"). The patient was sufficiently upset by his interaction with Dr. Kreso 

that he went to the Patient Advocate the next day and filed a complaint. 

FACTS IN DISPUTE: 

There was differing evidence regarding whether IS had stated to the triage nurse that he 

had chest pain, which would have been a more serious complaint. "I recall telling the 

nurse I had chest pains;" (IS Testimony DAB I, Page 307 Line 17 -19) Question: ""did 

he indicate ... that he had chest pain?" Answer: "No, Never." (Kreso Transcript DAB III, 

Page 47 Lines 14 -16). There was also a discrepancy in the testimony regarding the 

extent of .Dr. Kreso's examination of IS. "He didn't examine my chest, just my upper 

back." (18 Transcript DAB I, Page 319 Lines 13 -14). ' ... I performed a pulmonary 

e)(amination ... " (Kreso Transcript DAB III, Page 48 Line 17). The Board concluded that 

there were some errors in IS's recollection of detailS, but the Board found the majority of 

IS's story credible. . 

ANALYSIS: 

18 presentation to the ED was legitimate and represented concern that his medical 

condition was not improving. It is probable that IS did not emphasize chest pains to the 

triage nurse· and that IS is inaccurately recalling that detail. There is also some dispute 

over the extent of the physical examination provided by Dr. Kreso, although' Dr. Kreso's 

opinion at the time, as revealed by his documentation, gives grounds for concern over 

its thoroughness. There is no doubt that IS was dissatisfied with the encounter, both as 

to how it reassured him concerning his medical condition, " ... was really brief ... told me I 

was abusing the system"told me to tell my wife not to bring me back here", (18 

Transcript DAB I, Page 300 Lines 15 - 21) and in his personal interaction with Dr Kreso. 

"I just felt kind of embarrassed and upset." (IS Transcript DAB I, Page 303 Lines 7 - 8). 

Dr. Kreso acknowledged that IS was upset "Mr. 8 felt that whatever care he 

experienced in the ED was not acceptable to him, and he was concerned for other 

veterans" (Kreso Transcript DAB III, Page 119 Lines 10 - 18). 

Finding as to the Charge 1: SUSTAINED IN PART. 

Charge 2 - Instructing Nurses to send patients home from the Emergency Department 

without being evaluated by Physician. 

Case No. 1:11-cv-02378-REB Document 1-1 filed 09/09/11 USDC Colorado pg 13 of 26
PAGE 13 - Board Action 

DAB - Ermin Kreso, M.D. 

Specification, As evidenced by sworn testimony during the Administrative Investigative 

Board (AlB), Susan West, RN, Sylvia Murray, RN and Fay Salas, RN, Staff RN's in the 

ED testified that you routinely instructed ED Nurses to send patients home without 

being assessed or treated if you believed they did not have a true emergency. The RNs 

testified that patients left the ED very angry about not being treated. Some RNs testified 

that they refused to send patients home and had to insist that you see the patients. 

Finding: Not Sustained, 

BOARD'S SUMMARY OF EVENTS (based upon the evidence 

Dr. Kreso testified that there were times when he went out to the waiting area and 

examined patients in the nursing triage ante room prior to discharging them. ", .. it is 

not routine that I am the one who triages, .. 1 have been known to go out into the triage 

area .. ;" (Kreso Testimony AlB, Page 9 Lines 16 - 19) "At times I performed the triage 

in the ED waiting room" (Kreso Transcript DAB III, Page 155 Line 21), It is probable 

that Dr. Kreso asked nurses to send patients home if their clinical complaint was of low 

aCUity. "I have said that I do not need to see this patient; " (Kreso Testimony AlB, Page 

30 Line 17) . "Can you just go Qut and tell him that he'll have to come back on the next 

shift," (Murray Testimony AlB, Page 3 Lines 12 -14). The Board could not determine 

with certainty during which time period this may have occurred, or elicit testimony 

regarding a specific instance. 

ANALYSIS: 

The Board concluded that the evidence relating to this charge was either hearsay, .. 

"Fay Salas complained to me ... no direct knowledge; " (Baker Transcript DAB I, Page 

85 Line 9). "I did not see it myself' (Salas Transcript DAB I, Page 159 Line 4) or was 

not specific enough to be considered absolute. "I have seen patients being sent home 

from the waiting room without being seen," (Back Transcript DAB I, Page 166 Lines 24 

- 25). "I don't remember details." (Back Transcript DAB I, Page 191 Line 21). There 

was also conflicting testimony. " .. he has refused to see a patient (West Testimony AlB, 

Page 4 Line 24) ..... someone with a sore throat... tell him to come back in the morning .. , 

before we changed ol:lr policy and started bringing everyone back to the ER;" "I have 

never seen Dr. Kreso turn away a patient." (McNamara Transcript DAB II, Page 296 

Line 18). The Board concluded that the evidence was not of sufficient vigor that the 

Board could sustain the charge. 

Finding as to the Charge 2: NOT SUSTAINED IN WHOLE OR IN PART 

Charge 3 - Patient Neglect - Delay of Care to Patients , 

Case No. 1:11-cv-02378-REB Document 1-1 filed 09/09/11 USDC Colorado pg 14 of 26
PAGE 14- Board Action 

DAB - Ermin Kreso, M.D. 

Specification 1. On May 7, 2009, GS, a quadriplegic patient presented to the 

Emergency Department with fever, change in breathing, thick sputum, and difficulty 

suctioning his tracheostomy. You downgraded his Triage Level from a 3 to a 4 and 

because of this change this patient waited two and one half hours (2.5) to be seen by a 

provider. 

Finding: Specification 1 is sustained. 

BOARD'S SUMMARY OF EVENTS (based upon the evidence) 

Mr. GS presented to the ED ~t approximately 16:08 on May 7, 2009. Dr. Kreso 

changed the triage level from a 3 to a 4, which meant that GS would be seen by the 

Nurse Practitioner and not in the ED by the MD. As a consequence of this change in 

triage GS waited four hours before being seen by NP Patricia Hughes, (ER note timed 

22.09 - Agency Evidence File). This was supported by the timeline and the testimony 

of RNSack. "I was in the ED during Mr. S;" (Back Transcript DAB I, Page 189 Line 11). 

FACTS IN DISPUTE: 

In this case, as in the following case, Dr. Kraso argued that as his shift was almost over 

when the patients presented he would not have changed the triage level. "I do not now 

believe I changed the triage level on Mr. S." (Kreso Transcript DAB III, Page 58 Lines 

17 -19). This is contradicted by credible testimony, "Mr. S .... sticks in my mind 

because he came in at 5:00 (Murray Testimony AlB, Page 5 Lines 18 - 21) changed 

him to a 4 before he left ..... he dldn'tleave the ER until 11.00 ..... and Kreso had left .. ;" 

" ... he puts a big 4 on there and crosses out my 3 ... " {Murray Testimony AlB, Page 12 

Lirie 7) and by Dr. Kreso himself. "" I changed the triage lavel from a 3 to a 4 

(Evidence File: Kreso Memo, November 27, 2009, to Director) ... " It is unfortunate that 

the patient came in on a change of my shift and therefore had to wait for non-emergent 

care." 

ANALYSIS 

There could have been no doubt that GS needed to visit the ED. 'We came because 

the doctor always told me when he has a fever you have to bring him to the ~mergency 

room" (MS Transcript DAB I, Page 326 Line 24 - 24; Page 327 Line 1), and that as a 

quadraplegic, with a tracheostomy and known recurrent Urinary Tract Infections he 

should not have had his triage level downgraded. "A humane triage level would be a 

two." (Hughes Transcript DAB II, Page 339 Line 5). Most physicians would consider 

that GS was placed at some risk due to the delay in his being seen. "When everybody 

was gone after many hours it was he and me waiting." (MS Transcript DAB I, Page 327 

Lines 7" 8). 

Case No. 1:11-cv-02378-REB Document 1-1 filed 09/09/11 USDC Colorado pg 15 of 26
PAGE 15 - Board Action 

DAB - Ermin Kreso, M.D. 

Specification 2. On May 7,2009, patient OS, presented to the Emergency Department 

with a fever and sore throat, complaining that he thought his Tonsillitis was back again. 

You downgraded his Triage Level from a 3 to a 4 and because of this change the 

patient was made to wait three (3) hours to be seen by a provider. 

Finding: Specification 2 is not sustained. 

BOARD'S SUMMARY OF EVENTS (based upon the evidence) 

Mr. OS presented to the ED at approximately 4:50 pm on May 7, 2009, the triage note 

was timed at 4:55 p.m. It is likely that Dr. Kreso changed his triage level from a 3 to a 4. 

"" based upon my assessment of the triage notes, I changed the level from a 3 to a 4" 

(Evidence File: Kreso Memo, November 27, 2009, to Director) However, the main 

reason for the delay in the care to OS was that, due to·a concern about him being 

contagious with H1N1 flu, he was placed in an isolation room and inadvertently 

overlooked: "" he did the same thing to him "I put him in isolation and just left him in 

there" (Murray Testimony AlB, Page 7 Lines 2 - 4); ·When I was called back I was put 

into a closed off room" (OS Transcript DAB I, Page 283 Lines14 -15); "i found OS in 

the waiting room or in the ER" (Back Transcript DAB I, Page 176 Lines 23 - 24). Dr. 

Kreso probably had no interaction with OS. "I don't recognize him at all." (OS 

Transcript DAB I, Page 294 Line 11). He was eventually discharged at 23:35. 

FACTS IN DISPUTE: 

Dr. Kreso stated that he did not change the triage level. "I do not recall changing the 

triage level on OS." (Kreso TranSCript DAB III, Page 61 Line 11 -13); Ms. Back stated 

that Dr. Kreso placed OS in isolation. "OS was taken there by Dr. Kreso." (Back 

Transcript DAB I, Page 194 Line 3). 

ANALYSIS 

The testimony of RN Murray and Dr. Kreso's own admission in his written responses to 

the Director support that he changed the triage level. However, the delay was most 

directly related to an oversight where, due to a concern regarding the spread of Hi N1 

influenza, OS was placed in an isolation room and overlooked for a period of time. 

Finding as to the Charge 3: SUSTAINED IN PART 

Case No. 1:11-cv-02378-REB Document 1-1 filed 09/09/11 USDC Colorado pg 16 of 26
PAGE 16 - Board Action 

DAB - Ermin Kreso, M.D. 

Charge 6 - Disruptive Behavior: 

Specifjcation. On May 22, 2009, you verbally confronted the Lead Compensation and 

Pension (C&P) Program Support Assistant, Judy Cooley, in the hallway of Bldg 24, in 

front of Room 47. You were physically blocking her path down the hallway and when 

she stated she couldn't. help you, you stated, ''Yes you will", and continued to tell her in 

a commanding voice what she needed to do for you. You were speaking to her In an 

aggressive manner, insisting that she help you, even though she informed you that you 

needed to speak to Dr. D'Arcy or Dr. Weinshenker, your supervisors, about the. 

scheduling of C&P appointments. She told you that, per Dr. Weinshenker's orders she 

would have to call Dr. Weinshenker in order to include him in the conversation. You 

then told. her it was not necessary to call Dr. Weinshenker. When she walked away 

from you, you followed her into her office on the same floor, Room 48, attempting to 

interfere with her calling Dr. Weinshenker. 

Finding: Specification is sustained. 

BOARD'S SUMMARY OF EVENTS (based upon the evidence) 

Dr. Kreso was detailed to C&P on May 20,2009, while the AlB and its conclusions were 

being processed. Ms. Cooley was in charge of t~e scheduling. Dr. Kreso had, on 

several occasions, requested that his schedule of patients be altered. "He wanted me to 

schedule the patients closer together." (Cooley Transcript DAB I, Page 236 Line 20-

21); "He might have approached me two or three times asking to change his schedule;" 

(Cooley Transcript DAB I, Page 237 Lines 5 - 6); "He would even sometimes call the 

patients and have them come in early." (Cooley Transcript DAB I, Page 254 Lines 6-

7). As a result of discussing Dr. Kreso's request with her supervisor, Dr. D'Arcy, she 

. was instructed not to alter the schedule and to refer further requests to her supervisor .. 

Dr. Kreso initiated a conversation about this on the morning (9:30 a.m.) of October 22, 

2009, and then later, at approximately 3:30 p.m. that afternoon. "That particular day 

there were two contacts with him." (Cooley Transcript DAB I, Page 238 Lines 2 - 3). Dr. 

Kreso approached Ms. Cooley with a request to discuss patient scheduling. Ms. Cooley 

stated that she was unable to discuss the issue. "I was given direction by both of them 

not to speak to him about his scheduling without one of them present." (Cooley 

Transcript DAB I, Page 238 Lines 15 -17). Dr. Kreso was upset and the incident 

evolved, essentially as reported; "Every time I would step to the left he would step to the 

left." (Cooley Transcript DAB I, Page 244 Lines 7 - 8) ... "He was intentionally blocking 

my path." Ms. Cooley fell uncomfortable and threatened by Dr. Kreso's behavior. "The 

way he was carrying his body in a fast, aggressive type of walk." (Cooley Transcript 

DAB I, Page 260 Lines 18 - 20). Dr. Franzoza witnessed the incident and the following 

day was asked to write an incident report. 

Case No. 1:11-cv-02378-REB Document 1-1 filed 09/09/11 USDC Colorado pg 17 of 26
PAGE 17 - Board Action 

DAB - Ermin Kreso, M.D. 

FACTS IN DISPUTE 

There were no significant differences in the facts as presented by the Agency and the 

Appellant. 

ANALYSIS 

Dr. Kreso's reasons for wishing the schedule changed were personal. " ... my concern 

was that I was made to look bad .... That I was providing untimely care." (Kreso 

Transcript DAB III, Page 66 Lines 3 - 6). His account of the interaction is in agreement 

with Ms. Cooley and Dr. Franzoza; "My voice was raised a little bit.. ... I was upset." 

(Kreso Transcript DAB III, Page 68 Lines 11 - 15; "probably got into her personal 

space;" (Kreso Transcript DAB III, Page 70 Lines 12 -14);" I think her perception may 

be accurate;" (Kreso Transcript DAB III, Page124 Lines 13 -16); " .. it was kind of a 

tense discussion." (Franzoza Transcript DAB I, Page 267 Line 15); "She just wanted to 

stop the conversation;" (Franzoza Transcript DAB I, Page 269 Lines 22 - 23); 

"Aggressive means pursuing." (Franzoza Transcript DAB I, Page 272 Line 5); The 

interaction was of moderate, not severe concern to Dr. Franzano. "Not so aggressive 

that I felt I had to intervene." (Franzoza Transcript DAB I,Page 277 Lines 3 - 6). The 

incident report was filed at the request of Dr. Kreso's and Ms. Cooley's supervisor. I 

would probably not have written a report if not prompted to by my supervisor." 

(Franzoza Transcript DAB I Page 279 Lines 11 - 14). 

Finding as to the Charge 6: SUSTAINED INWHOLE 

ANALYSIS - BOARD 

FACTORS CONSIDERED 

VIII. PENAL TV DETERMINATION 

The Board considered these other factors: 

During testimony there were many statements by supervisors that the ED was running 

based on the full implementation of the Emergency Severity Index (ESI), and that the 

EMTALA regulations and philosophy were to'be applied to patients who presented to 

the ED. The Board was troubled that through three supervisors of the ED (Dr. Meyers, 

Dr. Baker, and Dr. Weinshenker) no written policies or guidance had been generated. "I 

doubt there were written policies" (Meyer Transcript DAB I, Page 65 Lines 8 - 11); 

" .. regarding triage there is nothing authored by me or Dr. Weinshenker or the hospital.." 

Case No. 1:11-cv-02378-REB Document 1-1 filed 09/09/11 USDC Colorado pg 18 of 26
PAGE 18 - Board Action 

DAB - Ermin Kreso, M.D. 

(Baker Transcript DAB I, Page 136 Line 10- 11); 'I am not sure exactly how the 

emergency room is trained in this" (Weinshenker Transcript DAB II, Page 18 Line 4 - 5); 

"I don't believe there was a specific policy or communication regarding EMTALA"; "I am 

concerned that you did not find any written policy regarding triage" (Roff Transcript DAB 

II, Page 216 Lines 9 -14). 

There was no dissemination from the Director's office, through Center Memoranda, of 

VHA policy regarding the functioning of VA EDs.'We should have a Center 

Memorandum regarding the implementation of EMTALA at our VA" (Roff Transcript 

DAB II, Page 216 Lines 18 - 22). Nor did it appear that those CM that did exist (e.g. 

CM HAS 136-20 Lodging of Patients) were formally brought to the attention of the ED 

staff. The Agency presented as evidence some educational documentation, consisting 

of a photocopied chapter of a nursing manual, which was made available and 

distributed to nursing staff, regarding the ESI triage mechanism. (Exhibit M3). 

However, the Board decided that through discussions among the staff and directions 

from supervisors that the above had become the expectation in the Department. This 

was supported by Dr. Kreso's own testimony. The triage levels have an Emergency 

Severrty Index, and our staff has gone through training, both nurses and physicians." 

(Kreso Testimony AlB, Page 7 Lines 1 - 3). There is something called a lodging 

protocol (Kreso Testimony AlB, Page 39 Lines 3 - 4). " .. we were all talking about 

EMTALA" (Kreso Transcript DAB III, Page 152 Lines 5 - 9). 

Each of Dr. Kreso's supervisors failed to begin a formal, progressive disciplinary course 

of action that might have altered Dr. Kreso's behavior. "I did not consider my 

discussions with Dr. Kreso formal counseling." (Meyer Transcript DAB I, Page 65 Lines 

17 - 19); "Not written, but we have spoken about that" (Baker Transcript DAB I, Page 

141 Lines 21 - 22); "No fomnal disclplinary action was ever taken" (Weinshenker 

Transcript DAB II, Page 110 Lines 12 -14); "I would say that those individuals have 

missed some steps along the way" (Roff Transcript DAB II, Page 222 Line 1). 

Over a prolonged period Dr. Kreso did have discussions regarding his behavior with 

each of his supervisors. "I met with him more frequently ... "(Meyer Transcript DAB I, 

Page 35 Lines 9 - 10); Regarding retriaging, seeing all patients, failure to attend .. "Yes, .. 

I had spoken to him personally (Baker transcript DAB I, Page 76 Lines 14 - 22) .... 

Prior to May 2009;" "I couldn't have been any clearer," "Dr. Kreso, the patients show up 

at the emergency room, see the patients." (Weinshenker Transcript DAB II, Page 26 

Lines 22 "24); "These incidents took place after the conversation Dr. Baker and I had 

Case No. 1:11-cv-02378-REB Document 1-1 filed 09/09/11 USDC Colorado pg 19 of 26
PAGE 19 - Board Action 

DAB - Ermin Kreso, M.D. 

with Dr. Kreso." (Weinshenker Transcript DAB II, Page 25 Lines 18" 22). The Board 

did not find Dr. Kreso's denial that these discussions took place credible. 'Dr. Baker or 

Dr. Weinshenker did not counsel me regarding changing triage levels" (Kreso Transcript 

DAB III, Page 77 Lines 16 - 22); "That conversation did not take place."(Kreso 

Transcript DAB III, Page 90 Line 12). 

Dr. Kreso's supervisors did not consider alternate approaches to altering his behavior 

as outlined in the Medical Staff By-Laws. 

Dr. Kreso was capable of providing quality medical care. "I think he is a technically 

competent excellent physician." (Meyer Transcript DAB I, Page 47 Lines 6 - 7); "I think 

Ermin was a good physician." (Salas Transcript DAB I, Page 158 Line 17); "" the ones 

he sees he works up pretty good ... " (Murray Testimony AlB, Page 21 Lines 16 -17). 

Yet the tone of Dr. Kreso's testimony at both the AlB and the DAB, and the nature of 

some of his responses, both suggest a certain lack of compassion towards the veterans 

presenting'to the ED. "PA .. was he a Black gentleman? Diagnosis PTSD, heroin 

abuse, cocaine abuse and marijuana abuse?" (Kreso Testimony AlB, Page 77 Lines 23 

- 25); ,,"I am within my legal rights to say you do not have any immediate needs." 

(Kreso Testimony AlB, Page 48 Lines 23 -25); " ... I would also elaborate that 50% or 

so of our veterans have one kind or another of psychosocial dysfunction. (Kreso ' 

Testimony AlB, Page 62 Lines 7 - 10). . 

Ms. Roff testified that Dr. Kreso's behavior was detrimental to the organization. "As the 

leader of the organization I could not tolerate Dr. Kreso's behavior in the ED." (Roff 

Testimony DAB II, Page 219 Lines 23 - 25). 

The Board acknowledges Dr. Kreso's letter of apology to Ms. Cooley, the absence of 

prior disciplinary action; Dr. Kreso's 5' years employment, and his reliability in appearing 

for work. 

After final analysis the Board concluded that: 

Dr. Kreso was fully aware of the expectations of his supervisors, yet persisted in not 

following their directions. 

Dr. Kreso persisted in this behavior over a prolonged period of time and Is unlikely to 

significantly alter his approach to caring for veterans in the ED, 

Dr. Kreso's care was detrimental to the care given to the veterans, and was damaging 

to the public perception of the VA and its mission. In two of the cases presented (OW 

and GS) Dr. Kreso's actions placed the patient at significant risk. 

Case No. 1:11-cv-02378-REB Document 1-1 filed 09/09/11 USDC Colorado pg 20 of 26
PAGE 20 - Board Action 

DAB - Ermin Kreso, M.D. 

IX. RECOMMENDED DECISION 

The Board ackn.owledges that the penalty should be based upon the combfned weight 

of the sustained charges. Further, the Board is aware. of regulatory guidelines 

contained in VHA Handbook 5021, Part II, Chapter I, 7 (2) that cites examples of 

reasons that may warrant considering a more severe disciplinary action. These reasons 

are (a) the facts of the case, (b) degree of willfulness oHhe employee's violation of VA 

conduct rules, (c) the seriousness of the misconduct or deficiency incompetence, and 

(d) thei resultant impact on VA. operations. 

The Board examined the decision making process and analysis, including the Douglas 

Factor Analysis, performed by Ms .. Roff and concluded that she had reached her 

conclusion in an appropriate fashion. 'Douglas Factor Analysis' (Roff Testimony DAB II, 

Pages 175-181). 

The Board agrees that the agency should expect an employee to be compliant with its 

procedures, and to follow the direction of supervisors to support the high quality of care 

provided to its patients. The Appellant demonstrated a pattern of behavior exemplifying 

disregard for established written or verbal procedures which, though they were not 

always presented in writing, he had testified that he was very familiar with them. The 

Appellant lacked recognition of the seriousness of his actions and demonstrated a lack 

of sensitivity to the need for ED procedures. 

DECISION: 

Charge 1. Failure to attend to patients presenting to the Emergency Department for 

treatment: SUSTAINED IN PART (3 of 5 specificatIons sustained) 

Charge 2. Instructing Nurses to send patients home from the Emergency Department 

without being evaluated by Physician: NOT SUSTAINED 

Charge 3. Patient Neglect - Delay of Care to Patients: SUSTAINED IN PART (1 of 2 

specifications sustained) 

Charge 6. Disruptive Behavior: SUSTAINED IN WHOLE 

The Agency's action of Removal (Discharge) is sustained based on the preponderance 

of the evidence. The Board concludes that the Deciding Official's (Director: Ms. Roff), 

in light of the sustained charges and her analysis of the Douglas Factors, decision to 

impose the penalty of discharge 'is appropriate and within the range of reasonableness. 

Case No. 1:11-cv-02378-REB Document 1-1 filed 09/09/11 USDC Colorado pg 21 of 26
PAGE 21 - Board Action 

DAB - Ermin Kreso, M.D. 

X. OTHER BOARD CONSIDERATIONS 

The Board had prolonged discussions regarding its decisions. Not all of these 

discussions concluded with a unanimous decision. In deference to the seriousness of 

the sustained penalty the Chairperson asked the other Board participants to submit a 

summary analysis of their individual deliberations. These are included in Appendix I. 

XI. BOARD REVIEW OF CHARGES 

The Board reviewed the sustained charges to determine which involved some 

component of substandard care, professional incompetence or professional misconduct. 

The Board has concluded the sustained charge(s), or partially sustained charge(s), 

identified below involve a component of substandard care. 

Charge 1: Specification 2 

Charge 3: Specification 1 

Case No. 1:11-cv-02378-REB Document 1-1 filed 09/09/11 USDC Colorado pg 22 of 26
PAGE 22 - Board Action 

DAB - Ermin K~eso, M.D. 

APPENDIX I 

Minority Opinion - Dr Sabharwal: Member 

Here Is my written report. If possible please forward my minority concerns with the DAB 

report. 

I feel this case has been particularly challenging to me. Various testimonies of hearsay 

and more hearsay, the charges that seem to be collected in haste and most importantly 

lack of documented progressive discipline, lack of referral for counseling or professional 

help have been particularly noticeable (Roff Transcript DAB II, Page 221 Lines 20 - 25). 

Penalty phase: 

Charge 1. Failure to attend to patients presenting to the emergency. department 

for treatment 

Partially sustained 

Charge 3. Patient neglect ·Delay of care to patients 

Partially sustained 

For above charges nature of offense thought to be most relevant was 12 in Title 38 

Table of Penalties. 

Mitigating factors - No prior disciplinary action by Veterans Administration, No actual 

harm to patients or VA reputation or public image, lack of documented progressive 

discipline or counseling .No evidence of intentional wrongdoing. Excessive duty hours 

(70 hours in a week) contributing to job related stress. No defined Emergency room 

!triage policy, lack of clarity of instructions and supervision. 

Charge 6. Disruptive behavior 

Sustained 

Nature of offense #16 in the Title 38 Table of Penalties. 

Mitigating factor" Written apology 

Review of Douglas factors of relevance was done for appropriateness of penalty. Table 

38 Table of Penalties reviewed. . 

Two of the board members believed that the penalty of discharge was an extreme! 

harsh choice. 

Even though I believe that the option of discharge was open to the Director, I disagree 

with the penalty of discharge by the Director. 

Case No. 1:11-cv-02378-REB Document 1-1 filed 09/09/11 USDC Colorado pg 23 of 26
PAGE 23 - Board Action 

DAB - Ermin Kreso, M.D. 

Charge Analysis 

After careful review of various documents provided to me throughout the DAB process, 

fol,lowing is my minority opinion of charges not sustained unanimously. 

Charge 1- Failure to attend patients presenting to the emergency department for 

treatment 

Specification 2, Not sustained 

After careful review of the evidence it is my opinion that above charge was not 

supported by preponderance of evidence. 

The veteran presented to emergency room for lodging and not for treatment. There was 

not sufficient evidence that the patient was in respiratory distress requiring medical 

services of a provider and no evidence that patient checked into the emergency room. 

(Dediemar Transcript DAB II, Page 265 Lines 9 -14; Page 266 Lines 2 -10; Page 267 

Lines 13 - 17; Page 268 Lines 3 - 7; Page 276 Line 23) testimony contradicted Officer 

Weston's testimony (Testimony AlB, Page 6 Lines 14 - 19 by the AOD, Page 7 Lines 10 

-12) (Weston Transcript DAB I, Page 206 Lines 7 - 12, Page 215 Lines 13 -14). 

Yeah -more than one, actually two cops. (Fox Testimony AlB, Page 5 Lines 1- 2); 

Above testimonies contradicts two officers opinion and this may have resulted from 

varied level of experience and perception. 

Review of the evidence gives me suggestion that at no point was Dr. Kreso under the 

impression that the patient needed emergency treatment and if he had realized that was 

the case the care would have been provided. Once the patient received oxygen he was 

driven to lodging by Officer Dediemar; (Weston Testimony AlB, Page 10 Lines 10 -14). 

Did that patient at that time have a medical complaint? No. (Kreso Testimony AlB, 

Page 41 Lines 17 - 22). I facilitated getting oxygen supply (Kreso Testimony AlB, Page 

41 Lines 15 -16). ---,medical clearance for lodging is really an administrative role 

(Kreso Testimony AlB, Page 45 Line 25) and I said -is he short of breath? No. (Kreso 

. Testimony AlB, Page 53 Line 12 - 13); I will affirm to this (Kreso Testimony AlB, Page 

58 Lines 3 - 4) purpose of safety note (Kreso Testimony AlB, Page 59 Lines 13 - 21). 

(Kreso Transcript DAB III, Page 18 Lines 22 - 25, Page 19 Lines 14 - 25, Page 26 Lines 

2 - 7). ... with regard to this patient had I been aware the patient was in acute 

respiratory distress, I would have taken all actions---(RoffTranscript DAB II, Page 167 

Lines 18-21). 

Specification 5-The charge 1 of failure to attend ---- written as such is not sustained in 

my opinion. 

Case No. 1:11-cv-02378-REB Document 1-1 filed 09/09/11 USDC Colorado pg 24 of 26
PAGE 24 - Board Action 

. DAB - Ermin Kreso, M.D. 

The patient was attended and given treatment is evident. 

-when somebody comes in with chest pain (IS Transcript DAB I, Page 301 Line 5); did 

you--(IS Transcript DAB I, Page 307 Line 17 - 21), well what I had noticed was that it 

was approximately 88 percent (IS Transcript DAB I, Page 308 Lines 23 - 24) not 

supported by written documentation in medical records, Exhibit G-6 , the medical record 

of the patient (triaged at level4,no mention of chest pain in nurse West's triage npte and 

pulse ox of 92 percent ,no documented chest pain, documentation of medical exam 

including lung exam, statement that patient dozing off in the bed) -well what I had 

noticed was that it was approxir:nately B8 percent (IS Transcript DAB I, Page 308 Lines 

23 - 24). 

MUltiple factors possibly related to incomplete recall of events, medical conditions/other 

factors including medications in this patient raise the question of credibility of this 

patient's testimony. It is clear that the patient was not satisfied with Care, be it related to 

expectations or perception/other factors but the evidence supports the patient was 

attended and given treatment and hence the charge of failure to attend-for treatment not 

sustained. 

Multiple testimonies during the hearing process have stated that Dr Kreso is a very 

good doctor including Dr. Meyer (appellant's former supervisor) "I think that is fair, he is 

technically competent, excellent physician" (Meyer Transcript DAB I, Page 47 Lines 6-

10). I have no reason to believe that if patient had chesf pain he would have been 

triaged at level 4 or Dr. Kreso would not have worked up chest pain had it been patient's 

complaint at the time of presentation. 

Charge 6-Disruptive Behavior 

Not sustained 

The incident related to this charge was witnessed by Dr Franzoso. 

- conscious decision that it was ok to leave the area then, (Franzoso Transcript DAB I, 

Page 277 Lines 3 - 6, Page 272 Lines 5 - 8, Page 269 Lines 7 - B) all provide evidence 

of confrontation that was felt to be by Dr. Franzoso of the intensity that it didn't require 

intervention (Franzoso Transcript DAB I, Lines 22 - 23, Page 267 Line 15). Dr Franzoso 

who was asked to write the report by supervisor next day and llliouid probably not have 

written the report (Franzoso Transcript DAB I, Page 279 Line 11 - 14). 

The available evidence suggests to me that the behavior though inappropriate and 

confrontational did not rise to the level of disruptive behavior. 

Cultural differences, previous experiences Ibackgrourid and probably personality issues 

may also be contributing factors. A written apology (done) and possibly COUnseling 

fnondisciplinary action may have been more appropriate for this charge. 

Case No. 1:11-cv-02378-REB Document 1-1 filed 09/09/11 USDC Colorado pg 25 of 26
BOARD ACTION 

6. AFTER CAREFUL CONSIDERATION OF ALL FACTORS, THE BOARD RECOMMENDS THAT 7. RECOMMENDED GRADE AND STEP THE EMPLOYEE BE (Check one and .xpleln In detal In Ilem 9.) 

r APPOINTED (' PROMOTED r GIVENSPEICIALAOVA!'CEMENr I 

(' NOT APp?IN1ED r DECtAREO INELIGIBLE (i' OTHER (Spet:Jiy) 8. PHYSICAL EXAMINAtiON 

l NOT PROMOTED I, Disciplinary Appeals Board (DAB) r APPROVED (" NOT APPROVED 

9. OTHER RECOMMENDATIONS AND ADDITIONAL REMARKS TO SUPPORT RECOMMENDATIONS IN ITEM 6. 

Charge 1. Sustained in part 

Charge 2 • Not sustained 

Charge 3. Sustained in part 

Charge' 6. Sustained in whole 

The Agency's action of Removal (Disoharge) is sustained based on the preponderance of the evidenoe. The Board 

concludes that the penalty of Removal (Disoharge) is appropriate and within the range of reasonableness given 

the severity of the mboonduct and impact upon the pa.tients. 

10. SIGNATURE(S) OF INITIATING BOARD MEMBERS (All signatures must be dated) 

A. CHAIRMAN B.MEMBER .. ,,, •• .,. .. , ..... """,I ..... w,. 

Ciaran M. O'Hare 194693 ~,l ~,;1.:~~ ... .n:;:::,t:·"'"~"l::·: •.•. :.1:.11.".-"'.1.1_' ... •·• ......... \'>0 ........... ".<' .... I'"'' SHAKTI SABHARWAL tr.;~a~m:.~;a~~::;'!::~i!E!::.!:: 

I 

.. ' .. :.110 .... """"", ..... • ... •• ... " "" .. ,." "' .. ,., .... '... , 

C. MEMBER D.MEMBER E. SECRETARY 

I Dl.lt&l.ly .II"~ Jo\o _ ~ ~"",U 

Dawn R Howell ~~~;=-:;.~."::-~" .. v., .... ""-1, .... 11· •• ...,. 

~"" 'Ol\.!».,' 1,00flll -O~'II' 

11. CerUfioallon of Initiating board teohnlcal advisor . SIGNATURE PATE 

that board aellon Is complete and has been reviewed Jan Sneed DlgllaUy $IQllnd by JI:I1 all()~~ 

1 

for adherence to al11egal and technical requirements ON: Ql"'Jall Sneed, O"'t\lparlmanl Qf V,tKnllll 

before being forwarded to approving authOrity. Maill', oo"YH!\, erlUIII'oJM.5need@va.(JOV.,,"VI;} 

Dale: 2011.02.16 07:20:62 ..()6'i)0' 

REVIEWING BOARD 

12. REVIEWING BOARD RECOMMENDATIONS AND REMARKS 

13. SIGNA TURE(S) OF REVIEWING BOARD MEMBERS (All signatures must be dated) 

A.CHAIRMAN 

I 

C. M"'MBER 

I 

14. ACTION ,. R:. APPROVED r DISAPPROVED 

VA FORM 

OCT 2006 10-2543 

I 

B.MEMBER 

I 

D. MEMBER E. SE;CRETARY 

I 

ACTION BY APPROVING AUTHORITY 

15. PATE 16. SIGNATURE AND TITLE OF APPROVING AUTHORITY 

1

3/17./11 Ipxinc~~.PlJ~~cr.tary for aea1th 

Page 2 of2 

Case No. 1:11-cv-02378-REB Document 1-1 filed 09/09/11 USDC Colorado pg 26 of 26