Fouled Nest

Tu Nidito's lawsuit saga continues.

Teetering toward the loss of its state license as a children's hospice in late 1999, Tu Nidito got what it desperately needed, a full-time registered nurse who could care for kids through their final days and hours.

But that nurse, Anne Peters, found conditions so appalling that she was forced into a whistle-blowing role she had not intended (see "Spin Cycle," December 14, 2000).

Tu Nidito is the prime recipient of cash raised from participants in the annual El Tour de Tucson bike ride (as well as Tucson and Pima County taxpayers, who help subsidize the event). But the agency lacked physician plans for patients; operated from outdated treatment plans; had no registered nurse to supervise care; failed to provide on-call, 24-hour care; left nurses to fend for themselves in obtaining medication for patients' pain and other needs; and could not readily rely on insurance authorizations or contracts.

State regulators had already cracked down on Tu Nidito and told its executive director, Elizabeth McCusker, that the agency must fix its deficiencies or lose its license.

In a statement that is part of the regulatory file, Peters said: "Liz McCusker told me that she had filled out the physician's plan of treatment and that I could sign it if I wanted to. I declined as I had no idea whether the plan was accurate with regard to medications, etc."

For her work to seek quick remediation, Peters was forced out of her job. For challenging McCusker and Tu Nidito, which surrendered its hospice license in the face of revocation by the state Department of Health Services, she was temporarily stripped of her First Amendment rights and was sued.

McCusker, formerly on the staff of the Make A Wish Foundation, sprinted to silence Anne and Stuart Peters with a defamation suit she had her lawyer file in Pima County Superior Court just two weeks after Tu Nidito lost its license to operate a hospice.

McCusker sought $1 million and an immediate restraining order to prevent Anne and Stuart Peters from uttering anything about McCusker and her operation of Tu Nidito. It failed. Unable to show how she was damaged, the lawsuit was quickly dropped after a settlement was reached that compelled McCusker to pay $5,000 for the Peterses' legal bills.

That didn't end it.

In mid-February, McCusker, 40, instructed her lawyers, led by Dennis Rosen, to file a new suit against the couple alleging a breach of the settlement agreement.

As part of the settlement, "the couple agrees not to speak about Elizabeth McCusker or to discuss the terms of the settlment ... with any parties except when required to do so by court order, when requested to do so by governmental agency, and/or when questions are initiated by third parties requiring a truthful response."

And McCusker is demanding $5,000, plus money to cover the bills she incurs from Rosen.

The case has been assigned to Judge Christopher Browning, who is the son of U.S. District Judge William Browning and a young jurist who, critics say, is at times far too eager to hear meritless complaints.

Anne and Stuart Peters filed a counterclaim, in which they say McCusker "has stated falsehoods about Anne Peters' mental health" and that McCusker "made false and defamatory statements about Anne Peters" causing her "emotional distress and financial loss."

In an interview for a Tucson Weekly story in December about Tu Nidito's licensure problems and its relationship with El Tour de Tucson, McCusker complained that she "suffered" and that "people can say whatever they want about you and there is nothing you can do about it."

McCusker now says that Anne and Stuart Peters signed the settlement--a contract--and must be held accountable "for their breach of contract actions."

She said Tu Nidito, which is not part of the litigation, has survived efforts by Stuart and Anne Peters as they "attempted to or launched investigations into this agency with rumor, innuendo and pieces of information for going on two years."

The case has been set for arbitration before Daniel Quigley this month.

Stuart Peters maintains he and his wife have not breached the agreement. And he believes that the agreement ended when McCusker filed her new suit and because of what she has said about the couple.

"How can we defend ourselves without talking about her?" Peters asks.

EL TOUR AND TU NIDITO are still linked. El Tour's parent, the Perimeter Bicycling Association of America, notes that Tu Nidito will be the recipient of El Tour money, raised by cyclists' pledges, for the 19th El Tour ride in November. Call up the Perimeter Bicycling Association home page and the second bullet is for Tu Nidito "Children's Hospice," which provides "an extensive range of hospice services for children with life threatening illnesses and their families."

The creator of El Tour, Richard DeBernardis, was in Japan to climb Mt. Fuji and unavailable to comment. His ride, which attracted 5,377 cyclists last year, has used more than $400,000 in tax money given by the Pima County Board of Supervisors and the Tucson City Council in the last eight years. El Tour already is marked down for $30,000 from the county this year.

Tu Nidito has received more than $100,000 a year from El Tour since 1997. Tu Nidito also benefits from tight connections to Pima County government. The president of its board, Jim Murphy, was a Democratic member of the Board of Supervisors and City Council before he opted for a long career, from which he retired in 1997, as head of county health services. Deputy County Administrator Enrique Serna and the county human resource director, Gwyn Hatcher, also serve on Tu Nidito's board. So does Jim Ronstadt, the powerful former city parks director whose son, Fred, is a Republican member of the City Council.

Since it surrendered its hospice license, Tu Nidito has fallen back on its five remaining programs. Services, which McCusker says are provided to 350 families a month, range from social-worker assistance and referral to counseling. Tu Nidito's PR material, which includes reprinted, cushy coverage from the Arizona Daily Star, puts its annual operating expenses at more than $300,000 and claims that "over 89 percent of every dollar donated to Tu Nidito goes directly to patient care and assistance."

El Tour has not been Tu Nidito's only benefactor. It received $100,000 from the Angel Charity in 1999, and in the last year received the donation of a home, on North Mountain Avenue south of Roger Road, for its headquarters.

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