Physical therapist’s case against Vail Health, former CEO headed to court
January 23, 2019
EAGLE — A local physical therapist is accusing Vail Health Hospital and its former CEO of conduct that crushed her business and is suing for millions of dollars.
Lindsay Winninger, the former head physical therapist for the U.S. Ski Team on the women's World Cup circuit and now Lindsey Vonn's private physical therapist, is suing Vail Health Hospital and former CEO Doris Kirchner for what Winninger says are "false," and "defamatory" claims that she improperly obtained more than 3,000 patient files and, after she left Vail Health's Howard Head Sports Medicine to launch Sports Rehab Consulting in the spring of 2014, she solicited those patients for her new firm.
It's not true, Winninger's attorney Alan Kildow says.
"Ms. Winninger has basically been driven out of business by this," Kildow said during a Wednesday morning hearing before District Court Judge Russell Granger.
"This case is not just about a physical therapist — the underlying facts are about control of physical therapy in the Vail Valley. This case far outstrips a simple defamation case," Kildow said.
Patient files in question
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The hospital's attorney, Janet Savage, says Winninger's colleague, David Cimino, downloaded the patient information as he was ending his employment with Howard Head Sports Medicine. The hospital contends that Cimino provided those patient files to Winninger.
Kildow argued that a forensic audit of Winninger's computer found that Winninger does not have those files, never did and did not solicit any Vail Health patients.
"They have not identified a single patient that has been solicited," Kildow said.
Savage and the hospital have asked Judge Russell Granger to expand the search.
Winninger's lawsuit alleges that Kirchner told Dan Drawbaugh, CEO of the Steadman Clinic and the Steadman Philippon Research Institute, that Winninger had participated when Cimino allegedly downloaded hospital patient files.
Kildow said Winninger did no such thing and that, so far, the hospital has produced no solid evidence to support its claim. John Madden, Cimino's attorney, said Cimino did not knowingly download patient files, and offered to return any patient files if he had. Madden says Cimino returned the USB drives to the hospital.
"These documents did not reach (Winninger's) computer," Madden said.
Savage accused Kildow and Madden of directing and blocking the forensic examination.
"This is tantamount to a bank robber telling the cops where the money is and when and how they can go look for it," Savage said. "Every time we get close to the finish line with the independent expert, it gets blocked."
Kildow countered that they have complied with all the court orders, and that the forensic investigator has everything. He added that the hospital has 33,000 emails it has yet to turn over.
Vail Health claims that when Cimino resigned from his physical therapist position at the hospital's Howard Head Sports Medicine in December of 2015 to join Winninger's firm, he took patient information and other Vail Health Hospital information.
"The safety and well-being of VHH patients and the security of their information is always the highest priority in our hospital," Vail Health's Michael Holton said in a written statement. "VHH believes Mr. Cimino's conduct violated both Howard Head Sports Medicine and Vail Health Hospital patient and confidential information policies."
In April 2016, the hospital posted information about the matter on its website.
"Ms. Winninger and her company have chosen to file a lawsuit against VHH and its former CEO based on their alleged communications about Mr. Cimino and Ms. Winninger," Holton's statement said. "VHH and its former CEO have denied these allegations and have been vigorously defending against their claims."
Vail Health Hospital filed counterclaims against Winninger, her company and Cimino, citing their alleged conduct.
"Because of the pending litigation, VHH does not believe any further comment is appropriate" Holton said.
Vail Health a victim?
Savage argued during Wednesday's hearing that Vail Health is bearing much of the financial brunt of the legal battling.
"We keep getting victimized by this," Savage said. "We have been bearing the cost of this crime, and it is a crime."
No, Madden said, his client committed no crime.
"Mr. Cimino seeks nothing in dollars. He seeks only to have his name cleared." Madden said.
Savage said that according to Sports Rehab Consulting's tax returns, the firm has lost $20,000.
Winninger claims in her lawsuit that any losses are a result of Kirchner's and the hospital's "defamatory conduct." In her lawsuit, she says that her livelihood depends on integrity and trust, and that any accusation that she or her company stole patient records would be "devastating."
"Due to the defendant's false and defamatory statements, the Vail Valley medical community has been led to believe that Winninger is a thief," Winninger's lawsuit states.
Winninger had been a physical therapist for nine years, working with Howard Head Sports Medicine before founding Sports Rehab Consulting in the spring of 2014, specializing in hip and knee injuries. From May 2012 to April 2014 she was the head physical therapist for the U.S. Ski Team, traveling the women's World Cup circuit, which included treating Team USA athletes at the 2014 Winter Olympics in Sochi, Russia.
After the Olympics, Winninger became Vonn's private full-time physical therapist. She has worked with professional, college and Olympic athletes, treating some for more than five years, her lawsuit says.
As for Kildow, he said he is not being paid for his time. If Winninger wins, Kildow will take a percentage of the award. The plaintiffs are seeking between $5 million and $6 million, so far.
Winninger is asking for a jury trial.
Staff Writer Randy Wyrick can be reached at 970-748-2935 and email@example.com.