"Once again, for those new to this blog site, at present there are 49 posts on the blog and each has its own set of comments. To read the comments you have to hit the word "Comments" at the beginning or end of the post. Somewhat confusing is that when you bring up the comments for a specific post it eliminates the other posts from the screen. To bring the other posts back up simply go back to the top of the page and click on Blog. Feel free to comment should you wish. No email address is required to make a comment so anonymity is strong. Due to some previous abuse of this right to anonymously comment, I have had to include an approval option, but I try to approve constructive comments within 24 hours. One last point of note, to read the earliest posts you have to click on the word "<<Previous" at the very bottom of the posts available. Finally, for those just looking for a good summary of the Dr. Kearney case, simply scroll down to the previous 12/10/2016 post. For social media developments on the Dr. Kearney situation I would encourage you to visit the excellent "Save Dr. Kearney Facebook Page":
https://www.facebook.com/Save-Dr-Kearney-1039697039481791/
So here we go again. As noted in the previous blog post, on March 20, 2018, the three lawyers hired by the University and the lawyer for Dr. Kearney will go before a judge to determine whether or not this new judge will finally side with the most powerful University and dismiss the Whistleblower lawsuit Dr. Kearney has filed against the University. The University lawyers have filed their “Motion for Summary Judgment” (see here) and Dr. Kearney’s lawyer has filed his “Response to Motion for Summary Judgment” (see here). As I understand it, after reading and cogitating over these documents, the judge then decides whether or not to allow this matter to proceed to the next level, that being a jury trial. I have no knowledge as to whether or not the judge hears verbal arguments from both sides or whether he just acts upon the evidence presented in these documents. As noted previously, both documents are fairly long (26 pages for the Motion and 24 pages for the Response) with hundreds of pages of “Exhibits”. In an effort to give folks an opportunity to understand what is being dealt with here I will attempt to summarize.
UK’s Motion vs. Dr. Kearney’s Response:
- The first five pages of the Motion are background wherein the UK-hired lawyers present evidence for Dr. Kearney’s “history of bad behavior” and the justifications for the disciplinary actions taken against Dr. Kearney. This is clearly their attempt to discredit Dr. Kearney as a physician and teacher, which they then wish to use to discredit any retaliation aspect to Dr. Kearney’s Whistleblowing lawsuit. It basically paints Dr. Kearney as almost an evil and dangerous person, and the evidence and pretense for almost all of this is predicated upon what boils down to be "a history of unprofessional vocabulary." This is somewhat easy for Dr. Kearney’s attorney to respond to because they fail to once again mention the "25 years of outstanding performance evaluations, promotions and awards" that Dr. Kearney has received and that the administration has signed off on throughout this time period of this so called bad behavior.
- The UK-hired lawyers then move into attempts to justify the MSEC trial and the actions they took in their attempt to silence and destroy Dr. Kearney’s medical career. In this they surprisingly include Dr. Zwischenberger’s December 2012 reprimand letter (see page 9 of this document) that, as we have seen, is unsigned by Dr. Kearney so we can’t even be sure he even received it. This report then goes on to discuss the MSEC investigation and the formation of the two member ad hoc investigative committee that was assigned to investigate the complaints used as a premise by the CMO (Dr. Boulanger) to suspend Dr. Kearney’s clinical privileges. I know that Dr. Kearney’s lawyer did not note this, but item 9.2.1 of the UK Healthcare Medical Staff Bylaws (see here) states: “The ad hoc committee shall be comprised of three members of the Medical Staff, which will include the Vice President at the primary practice site of the affected Practitioner and at least one other who is a member of the Active Medical Staff at the primary practice site of the affected Practitioner.” I feel certain this is to assure, as the UK lawyers put it, “the suspension is not motivated by a personal or professional vendetta.” With that in mind, one might reasonably ask, did these people have trouble counting to three or were they unable to find a putative third party to fit their desired end? Of course, as we have noted previously, Dr. Kearney’s Whistleblowing lawsuit targets KMSF money management and both of the ad hoc investigators assigned in this instance are paid through KMSF. A final point of issue here is the observation that this team of “two” very busy physicians were given just “one week” to investigate claims that were the premise for revoking Dr. Kearney’s clinical privileges, barring Dr. Kearney from entering campus, barring Dr. Kearney from conversations with anyone on campus and basically barring Dr. Kearney from creating a defense.
- Then in an attempt to make these charges more pervasive the UK-hired lawyers cite the single anonymous student complaint. Unfortunately they fail to note that it is the only one on Dr. Kearney’s 25 year record of teaching and needs to be balanced against 29 teaching awards. Furthermore, I believe that a recording of this lecture (they probably forgot that these lectures are actually recorded) in which the anonymous student complaint was lodged suspiciously identified nothing offensive in this presentation. In fact, I believe he received an ovation at the end of it.
- Finally we have what the UK-hired lawyers would like you to believe was the “last straw”, that being the quadriplegic patient complaint that claimed Dr. Kearney called him a f**king quad. A few things that they don’t mention about this complaint (that by the way originated as a Facebook post by the patient’s mother) was: a) that the patient was under the influence of mind altering drugs during this procedure, b) The “two” assigned MSEC investigators looking into this incident interviewed those present in the endoscopy suite where this was alleged to have occurred and everyone denied hearing Dr. Kearney call this patient a f**king quad, c) Dr. Kearney denied calling the patient a f**king quad, d) the patient tried to sue for damages and the court “dismissed the case with prejudice”, and e) the university submitted this case and their other historical evidence to the Board of Licensure in an attempt to get Dr. Kearney’s medical license revoked and this came back with: “there is insufficient evidence to warrant a complaint”. In all of their interviews the worst these two investigators could come up with was Dr. Kearney admitting saying to the patient, “Hey dumb-ass we are trying to help you, just relax”. So what it appears we have here is the University hiring outside lawyers to defend a mother’s Facebook claim that her drug-impaired son believed that the doctor attempting to save his life insulted him. I suspect we would have very few physicians left in the hospital if this were the standard premise for revoking patient privileges.
I think more to the point here, the evidence that these UK-hired lawyers have presented here in their efforts to denigrate Dr. Kearney's character and to detract from the possibility that these extreme measures to silence Dr. Kearney had something to do with Dr. Kearney’s Whistleblowing lawsuit, had just the opposite effect. The contradictions of the many accomplishments and accolades this hospital administration has awarded Dr. Kearney over this same time period they now wish to claim this aberrant behavior, along with the many inconsistencies in the allegations being made and the severity of the punishment inflicted upon Dr. Kearney, "just doesn’t fit". With that in mind one must then begin to ask “what really is behind this sudden attempt to silence Dr. Kearney and drive him out of the hospital/physician environment and preferably out of the University?"
The next section of the UK-hired lawyers Motion for Summary Judgment document attempts to discredit Dr. Kearney’s Whistleblowing case. The crux of their argument is pretty much the same one they made in their last 2 attempts to get this case dismissed. I suspect, because this is a new judge, they had to provide some form of excuse why their motion to dismiss was itself dismissed twice before, so they used the old benevolent “court granting Dr. Kearney time to conduct limited discovery on limited topics”. Of course they had no good explanation for why the court dismissed this motion the second time. Strange, they also did not mention anything about the many times they tried to drag this whole process out by blocking attempts to depose individuals central to the case Dr. Kearney’s lawyer was trying to make.
It is clear that these University-hired lawyers recognize that the strength of Dr. Kearney’s Whistleblowing case rests in: a) the January 2014 Faculty Council meeting that brought up the topic of the infamous KMSF Practice Plan Committee that didn’t meet for over 4 years yet was thought to be actively involved in a variety of money management decisions UKHC administrators had been making over this time period, and b) the April 2014 Faculty Council meeting that Dr. Karpf and General Counsel Bill Thro called to discuss this “legal matter” related to the Practice Plan Committee concerns aired by Dr. Kearney and others in the January Faculty Council meeting. The contentions of the University-hired lawyers are that: a) Complaining about publicly known or available information is not a “disclosure” for purposes of whistleblowing, b) Complaining about the Practice Plan Committee’s communication or lack thereof is not a report about the violation of any law or rule, c) Dr. Kearney did not complain to an appropriate official, and d) Dr. Kearney cannot prove his alleged whistleblowing was a contributing factor to the disciplinary action taken against him. In responding to these Dr. Kearney’s lawyer argues that a) the law/rule violated and cited by D. Kearney in the April Faculty Council meeting was AR 3:14, b) in essence Dr. Kearney complained to both the EVPHA and General Counsel for the University, c) Dr. Kearney was verbally disciplined at the Faculty Council meeting for suggesting an audit of KMSF to clear up any confusion with respect to money management issues, and d) KMSF money management is not published public information and even Open Records requests to obtain it as we have seen are being denied.
I think, or perhaps I should say I hope, when the judge takes everything into consideration, including the issues at hand, the timing and severity of the disciplinary actions taken by the hospital administration against Dr. Kearney, and the coincidental disappearance of many of the major UKHC and KMSF employees involved in these proceedings, a case can be made for advancing this to the next level, that being a jury trial.
https://www.facebook.com/Save-Dr-Kearney-1039697039481791/
So here we go again. As noted in the previous blog post, on March 20, 2018, the three lawyers hired by the University and the lawyer for Dr. Kearney will go before a judge to determine whether or not this new judge will finally side with the most powerful University and dismiss the Whistleblower lawsuit Dr. Kearney has filed against the University. The University lawyers have filed their “Motion for Summary Judgment” (see here) and Dr. Kearney’s lawyer has filed his “Response to Motion for Summary Judgment” (see here). As I understand it, after reading and cogitating over these documents, the judge then decides whether or not to allow this matter to proceed to the next level, that being a jury trial. I have no knowledge as to whether or not the judge hears verbal arguments from both sides or whether he just acts upon the evidence presented in these documents. As noted previously, both documents are fairly long (26 pages for the Motion and 24 pages for the Response) with hundreds of pages of “Exhibits”. In an effort to give folks an opportunity to understand what is being dealt with here I will attempt to summarize.
UK’s Motion vs. Dr. Kearney’s Response:
- The first five pages of the Motion are background wherein the UK-hired lawyers present evidence for Dr. Kearney’s “history of bad behavior” and the justifications for the disciplinary actions taken against Dr. Kearney. This is clearly their attempt to discredit Dr. Kearney as a physician and teacher, which they then wish to use to discredit any retaliation aspect to Dr. Kearney’s Whistleblowing lawsuit. It basically paints Dr. Kearney as almost an evil and dangerous person, and the evidence and pretense for almost all of this is predicated upon what boils down to be "a history of unprofessional vocabulary." This is somewhat easy for Dr. Kearney’s attorney to respond to because they fail to once again mention the "25 years of outstanding performance evaluations, promotions and awards" that Dr. Kearney has received and that the administration has signed off on throughout this time period of this so called bad behavior.
- The UK-hired lawyers then move into attempts to justify the MSEC trial and the actions they took in their attempt to silence and destroy Dr. Kearney’s medical career. In this they surprisingly include Dr. Zwischenberger’s December 2012 reprimand letter (see page 9 of this document) that, as we have seen, is unsigned by Dr. Kearney so we can’t even be sure he even received it. This report then goes on to discuss the MSEC investigation and the formation of the two member ad hoc investigative committee that was assigned to investigate the complaints used as a premise by the CMO (Dr. Boulanger) to suspend Dr. Kearney’s clinical privileges. I know that Dr. Kearney’s lawyer did not note this, but item 9.2.1 of the UK Healthcare Medical Staff Bylaws (see here) states: “The ad hoc committee shall be comprised of three members of the Medical Staff, which will include the Vice President at the primary practice site of the affected Practitioner and at least one other who is a member of the Active Medical Staff at the primary practice site of the affected Practitioner.” I feel certain this is to assure, as the UK lawyers put it, “the suspension is not motivated by a personal or professional vendetta.” With that in mind, one might reasonably ask, did these people have trouble counting to three or were they unable to find a putative third party to fit their desired end? Of course, as we have noted previously, Dr. Kearney’s Whistleblowing lawsuit targets KMSF money management and both of the ad hoc investigators assigned in this instance are paid through KMSF. A final point of issue here is the observation that this team of “two” very busy physicians were given just “one week” to investigate claims that were the premise for revoking Dr. Kearney’s clinical privileges, barring Dr. Kearney from entering campus, barring Dr. Kearney from conversations with anyone on campus and basically barring Dr. Kearney from creating a defense.
- Then in an attempt to make these charges more pervasive the UK-hired lawyers cite the single anonymous student complaint. Unfortunately they fail to note that it is the only one on Dr. Kearney’s 25 year record of teaching and needs to be balanced against 29 teaching awards. Furthermore, I believe that a recording of this lecture (they probably forgot that these lectures are actually recorded) in which the anonymous student complaint was lodged suspiciously identified nothing offensive in this presentation. In fact, I believe he received an ovation at the end of it.
- Finally we have what the UK-hired lawyers would like you to believe was the “last straw”, that being the quadriplegic patient complaint that claimed Dr. Kearney called him a f**king quad. A few things that they don’t mention about this complaint (that by the way originated as a Facebook post by the patient’s mother) was: a) that the patient was under the influence of mind altering drugs during this procedure, b) The “two” assigned MSEC investigators looking into this incident interviewed those present in the endoscopy suite where this was alleged to have occurred and everyone denied hearing Dr. Kearney call this patient a f**king quad, c) Dr. Kearney denied calling the patient a f**king quad, d) the patient tried to sue for damages and the court “dismissed the case with prejudice”, and e) the university submitted this case and their other historical evidence to the Board of Licensure in an attempt to get Dr. Kearney’s medical license revoked and this came back with: “there is insufficient evidence to warrant a complaint”. In all of their interviews the worst these two investigators could come up with was Dr. Kearney admitting saying to the patient, “Hey dumb-ass we are trying to help you, just relax”. So what it appears we have here is the University hiring outside lawyers to defend a mother’s Facebook claim that her drug-impaired son believed that the doctor attempting to save his life insulted him. I suspect we would have very few physicians left in the hospital if this were the standard premise for revoking patient privileges.
I think more to the point here, the evidence that these UK-hired lawyers have presented here in their efforts to denigrate Dr. Kearney's character and to detract from the possibility that these extreme measures to silence Dr. Kearney had something to do with Dr. Kearney’s Whistleblowing lawsuit, had just the opposite effect. The contradictions of the many accomplishments and accolades this hospital administration has awarded Dr. Kearney over this same time period they now wish to claim this aberrant behavior, along with the many inconsistencies in the allegations being made and the severity of the punishment inflicted upon Dr. Kearney, "just doesn’t fit". With that in mind one must then begin to ask “what really is behind this sudden attempt to silence Dr. Kearney and drive him out of the hospital/physician environment and preferably out of the University?"
The next section of the UK-hired lawyers Motion for Summary Judgment document attempts to discredit Dr. Kearney’s Whistleblowing case. The crux of their argument is pretty much the same one they made in their last 2 attempts to get this case dismissed. I suspect, because this is a new judge, they had to provide some form of excuse why their motion to dismiss was itself dismissed twice before, so they used the old benevolent “court granting Dr. Kearney time to conduct limited discovery on limited topics”. Of course they had no good explanation for why the court dismissed this motion the second time. Strange, they also did not mention anything about the many times they tried to drag this whole process out by blocking attempts to depose individuals central to the case Dr. Kearney’s lawyer was trying to make.
It is clear that these University-hired lawyers recognize that the strength of Dr. Kearney’s Whistleblowing case rests in: a) the January 2014 Faculty Council meeting that brought up the topic of the infamous KMSF Practice Plan Committee that didn’t meet for over 4 years yet was thought to be actively involved in a variety of money management decisions UKHC administrators had been making over this time period, and b) the April 2014 Faculty Council meeting that Dr. Karpf and General Counsel Bill Thro called to discuss this “legal matter” related to the Practice Plan Committee concerns aired by Dr. Kearney and others in the January Faculty Council meeting. The contentions of the University-hired lawyers are that: a) Complaining about publicly known or available information is not a “disclosure” for purposes of whistleblowing, b) Complaining about the Practice Plan Committee’s communication or lack thereof is not a report about the violation of any law or rule, c) Dr. Kearney did not complain to an appropriate official, and d) Dr. Kearney cannot prove his alleged whistleblowing was a contributing factor to the disciplinary action taken against him. In responding to these Dr. Kearney’s lawyer argues that a) the law/rule violated and cited by D. Kearney in the April Faculty Council meeting was AR 3:14, b) in essence Dr. Kearney complained to both the EVPHA and General Counsel for the University, c) Dr. Kearney was verbally disciplined at the Faculty Council meeting for suggesting an audit of KMSF to clear up any confusion with respect to money management issues, and d) KMSF money management is not published public information and even Open Records requests to obtain it as we have seen are being denied.
I think, or perhaps I should say I hope, when the judge takes everything into consideration, including the issues at hand, the timing and severity of the disciplinary actions taken by the hospital administration against Dr. Kearney, and the coincidental disappearance of many of the major UKHC and KMSF employees involved in these proceedings, a case can be made for advancing this to the next level, that being a jury trial.