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Comprehensive Review II

8/14/2018

43 Comments

 
"Once again, for those new to this blog site, at present there are 55 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.  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/​

This is an update of the review I posted on 12/10 2016. It includes a brief update of events since then including the various legal proceedings in the Dr. Kearney Whistleblower lawsuit that lead to the recent decision by Judge Scorsone siding in favor of his alma mater. As far as I am aware, Dr. Kearney is planning to appeal this decision and hopefully will. It will definitely be an uphill battle, and because every judge eligible to rule on this matter of whether or not this case should go to a jury trial is a Kentucky Law School graduate, the perception of a conflict of interest is unavoidable. Having said that, win or lose we are all winners from this battle Dr. Kearney has chosen to fight for us. Exposing the bullying and miscarriage of justice that the arrogant University administrators and lawyers choose to use in their governing practices has helped to both eliminate a few of these perpetrators as well as unify the rest of the faculty, students and staff.  Please keep monitoring the blog for updates as well as any discussion of new university issues that might arise. 

​Prior to the Dr. Kearney inquisition, I believe sometime in 2007, a University of Kentucky internal auditor, Dan Ross, filed a Whistleblower lawsuit against the University claiming he was fired for blowing the whistle on "suspected mismanagement, waste, fraud, and possible violations of state law" (see Dan Ross Article). This is relevant to the Dr. Kearney case in that one of the reported claims Mr. Ross made was that the University Hospital, through their KMSF money management group, contributed large amounts of money to the state’s RCTF “Buck’s for Brains” program, allowing them to take unfair advantage of this state matching funds program. As much as the leadership of the hospital wished to claim otherwise, KMSF was truly a part of the hospital back then. Beyond the facts that: a) 95% of KMSF employees and their Board of Directors were essentially University of Kentucky Hospital physicians and b) the University of Kentucky human resources department was involved in KMSF hiring, they also: c) used the University’s legal department to litigate for them, d) used the University’s auditing department as part of their financial management program and e) most recently were found to be officially declaring themselves as part of the University by using the Kentucky Department of Revenue to collect debts (see here). Furthermore, even if KMSF were not a part of the university, it would still be completely unethical to use KMSF to launder what is in reality UKHC revenue to tap into this limited pot of state matching funds. This Dan Ross case may have been the first point at which the hospital administration and KMSF management (one and the same) began to recognize that if they wanted to avoid this type of litigation, as well as state procurement laws, they needed to separate KMSF from the university. They didn’t seem to do much about it though until Dr. Kearney began his questioning of the money management practices by KMSF and people began making open records requests to validate their suspicions. Even then KMSF management was a bit slow on the draw, in that university lawyers handled the initial litigation of these KMSF open record request denials, as well as subsequent lawsuits against the filers (see here, and here, and here). Finally catching on that this rather supported the contentions that KMSF is part of the university, the KMSF management eventually went out and hired lawyers from outside the official university contingent to handle these cases (see here).  Keep in mind, KMSF being a nonprofit organization, the money that is being spent here on these lawyers is most probably hospital revenue, and hospital revenue is basically university revenue.
 
In 2009, the board of trustees approved a framework for rules for what's known as Practice Plans, for the College of Medicine and five other health-related colleges. Under the policy, each college was supposed to elect faculty members to a committee that would oversee implementation of its practice plan. In the College of Medicine however, EVPHA Dr. Karpf and top administrators decreed that the practice plan committee would be comprised of the six doctors who are elected to the KMSF Board of Directors.
.
In 2013, through open records requests, Dr. Davy Jones determined that the College of Medicine's practice plan committee had not met for four years, therefore had not overseen any of the changes made during this time period. Furthermore, although several members were listed as being on the committee, they had never been told they were on the committee.
 
In a January 21, 2014 College of Medicine Faculty Council meeting that Dr. Kearney was part of, Dr. Jones presented his findings and discussions were held concerning the KMSF/College of Medicine Practice Plan Committee. Details of the discussion and of the Faculty Council’s concerns were published in the widely circulated minutes of that Faculty Council meeting (see here).  
 
After the wide circulation of the minutes, Dr. Karpf compelled UK Associate General Counsel Cliff Iler to write in a February 17, 2014 email to the Faculty Council that the Office of Legal Counsel would review the issues raised and then schedule a meeting between the Faculty Council and Dr. Karpf to discuss the matter.
 
The Faculty Council Chair Hollie Swanson was then informed in a March 18, 2014 email from the College of Medicine Dean’s Office that “Dr. Karpf and Bill Thro would like to address Faculty Council at their April meeting on Tuesday, April 15 regarding a legal matter.”  Notice, by their own characterization, “a legal matter.”
See Associated emails  
 
In the April 15, 2014 College of Medicine Faculty Council meeting attended by Dr. Karpf, Dean De Beer and General Counsel Thro, the Practice Plan Committee and potential KMSF improprieties with respect to money management were discussed. Dr. Kearney suggested that an audit of KMSF might be the best remedy for this concern. This elicited a response from Dr. Karpf that multiple attendees interpreted as a personal threat and a response from Mr. Thro stating the Practice Plan was “none of their business”. As far as Dr. De Beer's opinion, all I can point to is a statement in Dean De Beer’s October 4, 2016 deposition (see here on page 65): “Well, the Practice Plan Committee in the time I was dean up to this time, you know, I was really unaware of their existence.” Furthermore, in a later Herald Leader interview, neither Mr. Thro nor Chief Medical Officer Dr. Bernard Boulanger could explain why the college's practice plan committee makeup had been changed or why the committee had not met for four years (see: here).
 
Sometime in August of 2014 an anonymous student complaint alleging the use of insulting language during a recorded lecture was added to Dr. Kearney’s personnel file. On August 29, 2014 Associate General Counsel Cliff Iler was provided the opportunity to listen to a recording of Dr. Kearney's lecture and wrote: "I listened to your most recent lecture. There were no issues or concerns about the content of your lecture based upon my review”.  In spite of this, it is believed that the anonymous student complaint was maintained in Dr. Kearney's personnel file and included in the February 5, 2015 MSEC trial. I think we can also feel fairly certain that Mr. Iler’s overview of this lecture was most probably not presented at this MSEC trial. Unfortunately, because there was suspiciously no recording of this trial, nothing said at the trial can be validated. This means we are all relegated to Dr. Boulanger's ultimate interpretation of what happened at this trial, and he has, perhaps not coincidentally, left the University.
 
On September 3, 2014 a trauma patient, Mr. James Wilson, complained about abrasive remarks Dr. Kearney made when Mr. Wilson resisted the care that was being given him to save his life. Mr. Wilson subsequently filed a lawsuit against Dr. Kearney, and that lawsuit on, April 5, 2016, was “DISMISSED with prejudice” by the Fayette Circuit Court. (see Document 7)
 
Shortly after Mr. Wilson’s complaint and lawsuit was filed, Dr. Kearny voluntarily went on administrative leave. Interestingly, a few days later EVPHA Dr. Michael Karpf shared information from Dr. Kearney’s confidential personnel file with Mr. Greg Goodman, a private citizen but also a hospital donor.
 
On January 26, 2015, Chief Medical Officer Bernard Boulanger suspended Dr. Kearney's clinical and teaching privileges, blocked him from using his university email, directed all incoming emails to the hospital counsel's office, confiscated his computer and private hard drive and changed the locks on his office door. Dr. Kearney was banned from coming onto campus and forbidden from speaking with faculty, staff, residents or students. (see CMO Suspension letter)
​
Then there is this email that basically goes along with the suspension:
From: Crocker, Theresa B  [DJ NOTE: This person is in the UK Legal Office]
Sent: Monday, January 26, 2015 8:15 AM
To: Massie, Kevin C.
Cc: Shock, Eric D; Thro, William E [DJ NOTE: William Thro is President Capilouto's General Counsel]
Subject: email access
 
Kevin: at 11:00 today (and not before) can you please suspend access to email for Paul Kearney (pakear0).  Please also preserve and copy his email account, and provide the copy to Eric so he can post it on my server.
 
Can you set the account to remain active, even though access to it is denied?  We may want to check and see what emails are received on that account in the future.
 
Thanks.
Terri
 
terri blom crocker
senior paralegal
office of legal counsel
university of kentucky
309h charles t. wethington jr building
lexington, KY 40536
phone: 859-257-5485
fax: 8590257-5123
tbcroc2@email.uky.edu

Shortly after this Dr. Kearney met with General Counsel William Thro and his Associate Counsel Mr. Cliff Iler.  At this meeting Mr. Thro made a financial offer to Dr. Kearney in an effort to get him to leave the university.  At the end of this meeting Mr. Thro is reported to have said: "You negotiate a buyout and sign this confidentiality agreement or we're going to ruin your career".  As might be expected, Mr. Thro denies this and says he was merely explaining that if Dr. Kearney declined to settle, UK would continue the revocation process. I will let you choose which of these you think actually happened, but first read on.
 
On Nov. 3 2014 Dr. Kearney’s attorney, Bernard Pafunda sent an email to Cliff Iler on behalf of Dr. Kearney in which he rejected the offer made, and he accused the UK legal councils of retaliation for Dr. Kearney’s accusations made in the April 15, 2014 Faculty Council meeting, those related to Dr. Karpf mismanaging KMSF funds in direct violation of university regulations.  Shortly following this, Dr. Kearney, through his attorney Mr. Pafunda, filed a Whistleblower- Retaliation lawsuit against the University of Kentucky. (see The Letter)
 
On January 29, 2015 the Medical Staff Executive Committee (MSEC) met to discuss the Dr. Kearney situation. This committee consisted of 14 physicians from UKHC. Six of these physicians (Bernard Boulanger, Elizabeth Oates, Roger Humphries, Susan McDowell, Andrew Pearson and Darrell Jennings) were or are on the KMSF Board of Directors. Furthermore, all 14 committee members have the major portion of their salaries and bonuses being paid through KMSF. The only advocate for Dr. Kearney, Dr. Bernard, recused himself from this meeting. At this meeting KMSF Board member Dr. Susan McDowell and Dr. Louis Bezold were given the mission to: “investigate the suspension and report their findings to the MSEC voting members one week later on February 5, 2015” (see MSEC Minutes 1 29 15).
 
The February 5, 2015 MSEC meeting was attended by the same 13 committee members, with again the Dr. Kearney advocate, Dr. Bernard, recusing himself. Also in attendance were witnesses for the prosecution, Dean Fred De Beer and associate General Counsel Mr. Iler. As might be expected, in this courtroom there were no witnesses for the defense. In fact the accused, or even any representative for the accused, was not allowed to attend. As opposed to the previous meeting, no recording of this meeting was made and the only notes taken were superficial summaries made by Dr. Boulanger's secretary Ms. Sarah Bentley. The conclusion, as again might be expected, was to uphold the sanctions imposed by Dr. Boulanger (see MSEC Minutes 2 5 15)
 
On March 4, 2015, Dr. Kearney, exercising his rights under Article 10 of the Medical Staff Bylaws, requested a hearing under the Fair Hearing Plan. As I understand it, under this law the Fair Hearing is to take place within 30 days from the request, but as appears SOP for the administration of this university and hospital, laws are merely suggestions, so the Fair or Unfair Hearing Panel met on May 27 and 28, 2015. Three physicians (Dr. Wendy Hansen, Dr. Mark Williams, and Dr. Lisa Tannock) were appointed to hear both sides of the story and make the final decision. Once again, I feel it imperative to point out that in spite of the fact that it was well established that Dr. Kearney’s arguments for the extreme measures being taken against him were predicated upon his questioning of the financial practices of KMSF, the Chief Clinical Officer Dr. Nelson who appointed this panel, chose Wendy Hansen, the Vice President of KMSF, to participate in this decision making process.  I think we are seeing a pattern here. As might be expected, the Fair Hearing Panel sided with KMSF, I mean with the MSEC Committee (see Document 21).
 
On April 21, 2015, in what would appear to be an attempt to make good on their promise to “destroy his career”, UK Associate General Counsel Cliff Iler sent a letter to the Kentucky Board of Licensure together with all of the material they had or created for their revoking of Dr. Kearney’s privileges. Unfortunately for the UK lawyers, in this investigation and court system, a totally unbiased investigator was used to accumulate the relative evidence and Dr. Kearney was given the opportunity to provide evidence on his behalf (e.g. the many years of outstanding performance evaluations signed off on by his division chief, his department chair and his dean; his many teaching awards; and his many other accomplishments and citations). When this body of unbiased evaluators looked over all of the evidence they came to the conclusion that  “there is insufficient evidence of a violation to warrant a Complaint”. (see Document 20) 
 
On July 21, 2015 Dr. Kearney went before an Appellate Review panel of 3 members of the Board of Trustees (Robert Vance, Cammie Grant and Kelly Holland). I attended this meeting so I can state that it was totally scripted and clearly a waste of time (see Document 14). The lawyers were allowed 20 minutes each to present their case, the panel recessed for maybe 10 minutes, the panel returned, Ms. Holland came back and read from a long typed out document (clearly prepared beforehand) that in essence stated that the panel was siding with the university in this case.  The panel immediately voted to adjourn the meeting and fled with their bodyguards. (see Document 23)
 
On August 24, 2015 the Board of Trustees UK Health Care Committee met and after deliberating in closed session for over an hour the Committee came to the conclusion:
“The University Health Care Committee voted unanimously to modify the Recommendation of the Appellate Review Panel. The Appellate Review Panel's recommendation was to revoke Dr. Kearney's clinical privileges permanently. The approved modification will revoke the clinical privileges permanently, but reaffirms Dr. Kearney's current status as a tenured faculty member. Specifically, the University will (1) allow Dr. Kearney to have access to campus; (2) allow Dr. Kearney to have an office in an appropriate location; (3) allow Dr. Kearney to communicate with his university colleagues; and (4) lift the suspension of Dr. Kearney's university e-mail account. Dr. Kearney's access to campus will be no greater or less than those of a tenured faculty member who lacks clinical privileges. This reaffirmation should happen immediately.” (see document 12)
 
On August 28, 2015, believing that the Board of Trustees is only there to advise him, President Capilouto had Mr. Thro assemble a small group of people dedicated to driving Dr. Kearney out of the university, and they, in complete defiance of the Board of Trustees Health Care Committee ruling, instituted a new set of restrictions on Dr. Kearney’s activities as a tenured professor (see document 13). Some of the activities he was prohibited from doing included:
  • Attending Mortality and Morbidity Conferences;
  • Attending Grand Rounds;
  • Attending House Staff Conferences;
  • Attending Presentations by Visiting Professors or Named Lecture Events;
  • Attending any other teaching setting where House Staff attend;
  • Attending any recruitment activities for House Staff;
  • Engaging in an activity that involves Protected Health Information or Patient Safety Work Product; and
  • Engaging in any interaction with medical students except as authorized by the Dean of the College of Medicine.
Just for completeness, here is Dr. Kearney’s lawyer’s August 31, 2015 response to this letter of Mr. Thro’s. (see Document 9)

Then in late October 2015 University President Eli Capilouto attempted to save face by making a public apology for their handling of the Dr. Kearney matter (see here). President Capilouto was not apologizing for the kangaroo court proceedings, the sanctions imposed by this court or even his total disregard of the modification of these sanctions imposed by the Board of Trustees Healthcare Committee. What President Capilouto was apologizing for was the removal of personal items from Dr. Kearney's office, and waiting over 6 months to return them. Because one of those items was Dr. Kearney's computer and hard drive, some skeptics have suggested that President Capilouto might just be attempting to distract from the possibility that the removal of the computer from Dr. Kearney's office could have been an attempt to either search for or destroy evidence relative to Dr. Kearney's Whistleblower lawsuit against the university. As we see above, the law office was willing to shut down and monitor Dr. Kearney's email, and because they are not physicians, one can only speculate that it was for some legal spying motive.  
​
Well this apology did not last long, because on April 20, 2016, in an attempt to make it totally impossible for Dr. Kearney to function even as a tenured professor, Mr. Thro sent a letter of mandates to Dr. Kearney’s lawyer that dictated further what Dr. Kearney can’t do and what he must do. In essence it dictates that Dr. Kearney can’t teach and therefore he must develop a basic research project and obtain research funding for that project. Seeing that he cannot associate with any of his colleagues to do this makes it virtually impossible for him to achieve the mandate. To top it off, Mr. Thro takes it upon himself in this letter to reduce Dr. Kearney’s salary to $43,500. Of course the ultimate goal is clearly to provide Mr. Thro with an avenue for revoking Dr. Kearney’s tenure and of course destroying his career. It is worth reading (see document 10), because you can almost taste the malice in this letter.
 
Meanwhile, in an attempt to block any access or detailed auditing of what KMSF is doing with University of Kentucky money, the university and hospital administration and its lawyers: a) refused to accept the state’s Attorney General’s decision that KMSF is a part of the University of Kentucky and therefore subject to open records laws (see here), b) continued to deny open records requests, c) went so far as to sue KMSF open records requesters (see here), and d) initiated a Herald Leader editorial propaganda campaign to garner support for their need to hide what they are doing with University of Kentucky revenue. One interesting tidbit with regards to these attempts by KMSF to prevent open records requests was that the UK legal office performed initial legal litigation of these open record request denials (see here). Recognizing that this did not fit well with their argument that KMSF is independent from the University, they subsequently were forced to spend more of this University of Kentucky/public revenue to hire a team of outside lawyers (see here).
 
In conclusion, the argument Dr. Kearney is making for this sudden attempt to destroy his career is retaliation for his attempt to expose misuse of UKHC revenue by the hospital administration and KMSF.  Dr. Kearney’s evidence to support his claims I believe include: a)  Dr. Karpf’s threat at the Faculty Council meeting following Dr. Kearney's inquiries into the mysterious Practice Plan Committee that never met for four years but was in part responsible for defining aspects of KMSF money management, b) the UK lawyers adamant refusal of a detailed public audit of KMSF and their blocking and/or suing anyone (including the state's Attorney General) making open record requests into KMSF money management, c) the very extreme measures being taken to destroy his career predicated upon an issue they have signed off on and rewarded for 25 years and d) the straightforward observation that the issue used to initiate these proceedings could neither be validated in interviews with those present nor in a court of law.  UK spokesman Jay Blanton claims that KMSF is thoroughly audited by both outside and inside auditors. You can actually go to their website and see these (see Document 24) (see Document 25).  These audits clearly state in general where University of Kentucky revenue is going, but unfortunately they do not detail what it is being used for. As the saying goes, "the devil is in the details". If these audits were detailed they would show that money heading into the “Dean’s Enrichment fund” could be going to throwing parties at the Iroquois Hunt Club, or to fly private jets from Lexington to Hazard, or to pay for Dr. Karpf’s membership at Keeneland, or who knows what else.  While we are on the subject, although Dr. De Beer trivialized it in his deposition, I am sure others out there are wondering why a person who makes over one million dollars a year in salary would ever request that UKHC/University of Kentucky pay for his box seats at Keeneland? I think Dr. Kearney and other’s believe that a detailed audit might not only expose some of the past misuses of UKHC revenue, but also that this type of transparency may ensure the foundation is functioning within the purview it was created to function and in the best interests of the University of Kentucky.
 
The argument the administration wishes to make to support their actions is supposedly Dr. Kearney’s long history of abusive behavior. Unfortunately, in reality if this should prove to be true, the only logical conclusion is that it is really the administration’s long history of endorsing this behavior that has brought us here. Choosing to now define this behavior as so egregious it merits the destruction of this person’s career, is absurd. The bottom line being, if anyone is to be blamed for this behavior and should be punished, it is the administrators who endorsed it through their history of 25 outstanding performance evaluations, 29 teaching awards and many promotions. Beyond this, it is the simple axiom kids like to cite: “sticks and stones may break my bones but words will never hurt me”. Let’s see, using profane language while saving lives, versus destroying someone’s career simply out of a personal dislike of an individual, or worse yet, to shut him up? I truly feel anyone who might believe that this is a justifiable avenue for solving this problem is totally wasting their time practicing whatever religion they might be involved in.

Finally, please keep in mind that the Dr. Kearney personal issues discussed here are not the only issues we are dealing with. They reflect on bigger concerns of lack of transparency, faculty rights and abuse of authority. As we have seen of late with the open records denials, the suing of the Attorney General, the suing of the student newspaper, the Dr. Kearney vendetta and the James Harwood cover-up, it is easy to understand why many blog and Save Dr. Kearney Facebook page commenters feel the administration of the University of Kentucky and UKHC have abused their authority and have shown very little respect for laws, regulations, due process and the legal rights of the faculty they have been appointed to lead. This is unfortunate for a university where education is supposed to be the prime goal.
 
The Whistleblower Lawsuit:
 
As noted above, sometime at the end of 2014 Dr. Kearney through his lawyer Mr. Pafunda, filed a Whistleblower-Retaliation lawsuit against the University of Kentucky.  As might be expected, this by all standards would have to be classified as a David vs. Goliath battle and clearly has proven to be. The University once again hired a team of lawyers From Sturgill, Turner, Barker & Moloney, PLLC to handle this legal matter, and for the past 3.5 years, 3 attempts at getting this dismissed and 3 different judges, they have managed to drag this out to where the billable hours have to be running into the million dollar range for the University. From the looks of it, their plan seems to be a fairly simple one.  That being to drag the proceedings out long enough till either Dr. Kearney runs out of money or till they can find a judge they feel comfortable with. 
 
Dragging the lawsuit out was a pretty simple matter. Dr. Kearney’s case centered on the extreme measures the University took to silence him for a character trait that they had signed off on and rewarded for 25 years. This, along with establishing the association of these extreme measures with his questioning of KMSF money mismanagement, were vital to Dr. Kearney’s case. To establish that, Dr. Kearney’s lawyer needed to question/depose key individuals involved in the Faculty Council meetings, MSEC trials and the punishment regimen.  As might be expected, the University lawyers did all that they could to either drag this out or ideally prevent it from occurring. The depositions began as far back as July of 2016 and I believe ended in December of 2017. I’m not sure how many depositions there actually were but I know they included: Former Dean of the College of Medicine Dr. Fred deBeer (see here), University President Eli Capilouto (see here and here), former KMSF President Dr. Marcus Randal (see here), Director of Medical Affairs Dr. Kevin Nelson (see here), Chair of the Department of Surgery Dr. Jay Zwishenberger (see here), Dr. Boulanger’s secretary and recorder for the MSEC trials Sarah Bentley (see here), the Executive Director of Public Relations and Marketing Jay Blanton (see here) and the University General Counsel  Bill Thro (see here). I also believe College of Medicine Faculty Council members Dr. Hollie Swanson and Dr. Davy Jones were deposed as well as several of the nurses present in the OR where the Dr. Kearney incident occurred (see here).  Dragging these depositions out was not only costly, but also helped justify one of the most often used responses to critical questions, “I can’t remember”. Still, as we have reported, these depositions did expose some of the lies and abuse of authority  that went into creating this justification of both the MSEC trials and the ultimate verdict. 
 
Perhaps the real battle for Dr. Kearney was in finding a Judge who doesn’t appear to have a potential conflict of interest. The first judge assigned to this case, Judge James Ishmael, a University of Louisville Law School graduate, retired (in December of 2017) prior to the case being available for consideration. As suggested above, this might have been part of the strategy of the UK hired lawyers. I say that because if you look at the remaining available Kentucky Circuit Court 22 Judges: Judge Pamela Goodwine, Judge Thomas Travis, Judge Kimberly Bunnell, Judge Ernesto Scorsone and Judge John Reynolds, you find that they are all University of Kentucky Law School graduates. The second judge assigned to the case, newly appointed Judge John Reynolds, reviewed the documents of the case, listened to a 2 hour presentation by the University hired lawyers and then told everyone that he had to recuse himself from the case because his wife worked over in the UK hospital. With Judge Reynolds departure we get the 3rd Judge assigned to the case, UK Law School graduate Judge Scorsone.  He received and read all of the documents associated with the case and heard the brief oral arguments on June 15th of this year. It then took him 45 days to write up his 14-page (double spaced) decision on this case (see here). I have yet to figure out if he was trying to look contemplative in this decision or simply putting off a decision that he knew would be unpopular to 99% of the people following this case. At any rate, if you read over the decision it looks too much like something out of the UK hired lawyer’s documents as opposed to Dr. Kearney’s lawyer’s documents. It for the most part fails to even mention the extreme and unprecedented measures the University of Kentucky lawyers went to in order to silence a faculty member that questioned the financial practices of KMSF and UKHC. I personally have trouble with a Judge who must trivialize as something insignificant the complete lack of due process the UKHC administration and UK lawyers used in trying and sentencing a highly respected tenured University professor/physician in his absence and in the absence of any legal representation. They even went so far as to prevent anyone who might be an advocate of Dr. Kearney from attending these proceedings. If that by itself does not lend credence to the hypothesis that this is something more than an improper language issue, then you need to go back to law school. Ooops, I forgot that would be UK Law School now wouldn’t it. Maybe that’s our problem. 
 
Where the People Stand With Respect To The Dr. Kearney Case:
 
President Capilouto received over 100 letters of support for Dr. Kearney from people on and off campus.
 
Over 1000 people publically signed a petition on the Save Dr. Kearney Facebook page demanding Dr. Kearney’s patient privileges be returned.
https://www.facebook.com/search/top/?q=save%20dr%20kearney 
 
Fearing reprisal for individual declaration of support for Dr. Kearney, Dr. Kearney’s physician colleagues showed their support by voting him to represent them on the University HealthCare Colleges Council, Dr. Kearny’s faculty colleagues voted him to represent them on the University Senate, College of Medicine faculty voted Dr. Kearney to represent them on the College of Medicine Faculty Council and resident students showed their confidence and support of Dr. Kearney by recently awarding him a Lifetime Achievement Award.
 
Lastly, many believe that it is no coincidence that UK Healthcare ranked either last or near the bottom in physician satisfaction in the last 3 years of the national Press Gainey Survey of over 1200 healthcare facilities from throughout the United States. This survey is not a reflection of the quality of healthcare at UKHC, but rather the quality of healthcare administration, or more specifically, how physicians are being treated by healthcare administrators. This survey may also help to explain the recent significant departure of many talented surgeons from UK Health Care. As one commenter put it, physicians speak with their feet.

The bottom line being, the vast majority of people who know Dr. Kearney and have worked with Dr. Kearney view him as a highly talented and respected trauma surgeon, an excellent educator and a genuinely kind individual. We also feel it is time for the University President and the Board of Trustees to call off the dogs and right this wrong. It is clearly costing the university time, treasure and talent.
43 Comments
Concise Summary- a legal perspective
8/20/2018 02:24:47 pm

I have a lot of sympathy for Dr Kearney. If UK had better leadership in surgery and the college none of this should have happened. However, I think we all have to be realistic about the likelihood of success.
Dr Kearney’s appeal (if he choses to file one) will be of Judge Scorsone’s ruling only. Judge Scorsone is highly regarded and impartial. His ruling is succinct and well argued.
Although its attractive to package this case with all of the historical baggage and conspiracy theories that are expounded on in detail here in reality this case is no different than the dozens of employment law cases the Court and the University deal with every year in which loss of employment or other negative employment decisions that are made for legitimate business, financial, performance or behavioral reasons is alleged to be pretextual and a result of some sort of illegal discrimination or retaliation. The judge had to decide if Dr Kearney’s whistleblower claims were legitimate. To do this he had to determine when Dr Kearney blew the whistle, who he blew the whistle to and what specific allegations he made. The concerns about the KMSF practice plan committee can’t be whistleblowing by Dr Kearney because the claims were made initially by Dr Jones and were thereafter public knowledge. The suggestion that KMSF should be “audited” was not whistleblowing because this was not a specific statement of an information about illegal activities that KMSF were alleged to be involved in. The other supporting information submitted to the court could not have formed the basis for whistleblower retaliation because this information was disclosed after the alleged retaliation had been initiated. Judge Scorsone correctly did not consider any of the claims about “financial mismanagement” at KMSF because the evidence provided in support of these claims came to light after Dr Kearney claimed he below the whistle and none of this information was or could possibly have been known to or disclosed by Dr Kearney as part of his whistleblowing. Considering the facts detailed above there is no need for the Judge to consider the process that led to the termination of Dr Kearney’s hospital privileges in any detail.
So I think there is a very good chance that the court will concur with and uphold Judge Scorsone’s ruling.
In fact, I am quite surprised that Dr Kearney’s legal team are advising him to continue with this case.

Reply
Concise Summary - the law
8/21/2018 07:46:27 am

Concise Summary is well written but ignorant of the existing whistleblower statute. The aforementioned statute and existing case law clearly state the following.

"The complaint must be viewed in a light most favorable to the whistleblower." Scorsone failed.

What Concise Summary states in a "legal perspective" are facts that are in dispute. That statute and case law clearly state that the fact disputes are to be determined by a jury, not a judge. Scorsone failed again.

"Dr. Jones blew the whistle." This was a big reach and again is a matter for the jury, not the judge. The UKCOM Faculty Council blew the whistle. Kearney was a FC member and was an integral part of reporting the violation and the financial mismanagement of KMSF. By statute and case law, Kearney is part of a protected group and entitled to whistleblower protection. Scorsone fails again.

KMSF is not part of UK therefore Kearney blew the whistle to the wrong group. So EVPHA Karpf (who had his hands all over KMSF), Dean DeBeer (a KMSF board member), General Counsel for the University Bill Thro, and Dr. John Wilson elected UK BoT faculty trustee are not the right people? Who would be? Scorsone fails again.

It would be unfair to speculate on Scorsone's motives for this ruling. He is a UK law school graduate so it is possible he simply slipped on a blue shirt and protected the creeps hiding behind the UK logo. Motives aside, he did not follow the existing Whistleblower statute and supporting case law.

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Dan Noonan
8/21/2018 11:12:20 am

Thanks for the comments "a legal perspective " and "the law".  Interesting "perspectives" but I might have to go with "the law" on this one ("I know, shocking"). I primarily say this because if Judge Scorsone really wished to be viewed neutral on this dismissal of a case against his alma mater that has been run through the judicial system multiple times, he could have simply passed it on to a jury. The case doesn't change in any way other than it is being judged for credibility by perhaps a neutral 3rd party, that being the jury. The evidence is the same. The laws are the same. The lawyers are the same. The only difference is the folks deciding right from wrong. At least from where I sit, this protracted effort by the University to keep this away from a jury only supports the argument that they have a relatively weak case and have a good chance of losing should it go to a jury trial. This in turn supports the viewpoint that Judge Scorsone may not be as neutral in his decision making process as one would hope.

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Slow learner
8/21/2018 03:59:14 pm

Can someone post a list of the facts that are in dispute along with a specific statement of dr kerneys whistleblower allegations? Thanks.

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Slow learner
8/21/2018 04:16:26 pm

https://courts.ky.gov/courts/coa/Pages/coa.aspx

Also there are plenty of ky appeals court judges who are not UK grads so perhaps this appeal will work out. Or is there some other way to fast track this to a jury trial?

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Dan Noonan
8/22/2018 11:41:37 am

Thanks for the comment Slow Learner. I don't have that information but as discussed above it centers on retaliation for Dr. Kearney's participation in attempts to expose mismanagement of KMSF funds by the senior management of UKHC. This was predicated upon the exposure of a KMSF/UKHC Practice Plan committee that was supposedly involved in money management decisions but never met for 4 years. As it turned out these concerns might have been justified (and therefore a good reason to silence those attempting to expose this) in that soon after we have the Hazard Cardiology debacle exposure, the exposure of the Dean's fund being used for a variety of party functions and most recently KMSF illegally using the the Kentucky Department of Revenue as a collection agency.

You are correct about the Appeal Court Judges. I hope Dr. Kearney gets someone who is not in any way connected to the University.

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Camille Towe
8/21/2018 04:54:00 pm

This is outrageous!! What will happen if Dr Kearney wins this case?

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Dan Noonan
8/22/2018 11:53:36 am

Thanks for the comment Camille. I don't know the answer to this one either. I would like to add that no matter what the outcome is, Dr. Kearney is already a winner. As noted in the previous blog post, without this battle that Dr. Kearney has waged against this administration we would not have had:

a) The university faculty speaking up with their election of Dr. Kearney to the University Senate.
b) The COM faculty speaking up with their election of Dr. Kearney to the Faculty Council
c) The COM faculty and staff speaking out in the Press-Ganey survey.
d) The exposure and replacement of the instigators of this abuse of authority: Dr. Karpf, Dr. Boulanger, Dr. DeBeer and Dr. Zwischenberger.
e) The exposure of KMSF’s mismanagement of UKHC generated revenue.
f) The exposure of a real need for transparency of what is happening with UKHC-university generated revenue.
g) The exposure of the threatening propensities and tendency towards deceit of the university’s general counsel.
h) The exposure of the spineless nature of the university president.
i) The exposure of the value of having faculty trustees with spines.

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Felix Leiter
8/22/2018 08:49:36 pm

Kearney lost because he lost his job and is unemployable anywhere else. Are people really so delusional that they think UK will take him back? Even if he wins his lawsuit, he gets money, not his job. He hasn't worked in a hospital in over a year. Nobody will hire him.

And he has himself to blame for that. He could have walked away and found a job somewhere else like thousands of people do when they fired or encouraged to resign under real or questionable allegations. But he choose to fight. That's his right. And of course he should have known that his years of bad behavior (which IS documented) would have caught up to him. It's called hubris and UK has that in spades...as does Dr Kearney.

UK lost. Kearney lost. The only winners are the lawyers.

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Dan Noonan
8/23/2018 08:19:36 am

Thanks for the comment Felix Leiter. I tend to agree that the lawyers are big winners in this, but as noted above, I also see winning aspects for the hospital, college and university faculty and staff, and even the taxpayers of this state who contribute to the public university operation budget. I also tend to disagree with your assumption that “he could have walked away and found a job somewhere else like thousands of people do when they fired or encouraged to resign”. Dr. Kearney was not fired. His patient privileges were taken away, the lock on the door to his office was changed, his computer was confiscated, the office staff were told that he is a “dangerous person”, and he was not allowed to enter the campus nor talk to anyone on campus. This was all predicated upon the alleged insult of a quadriplegic whom he was trying to save. An insult by the way that not one but two surgical residents who witnessed these events stated clearly, under oath, that he did not say to that patient. All of this public persecution occurred prior to any attempt to negotiate a buyout, and we all know what happened when Mr. Thro did attempt to negotiate a buyout. So the bottom line being, this was not even close to anything like what happens to thousands of others who are fired. Dr. Karpf, Dr. Boulanger, Dr. deBeer, Dr. Zwischberger, Mr. Thro, Mr. Iler and Dr. Capilouto, in essence, all collaborated in this obvious effort to “destroy Dr. Kearney’s career” prior to any attempt to negotiate a deal. Then after their attempt to negotiate a deal through threats backfired they assembled a kangaroo court and tried Dr. Kearney in his absence, in the absence of any representative for him, with only witnesses for the prosecution, with highly questionable evidence and with no recording device to validate the proceedings. Again not like thousands of others.

Furthermore, Dr. Kearney is the first physician at this university hospital to ever have his patient privileges revoked, in spit of the fact that he is one of the best if not the best trauma surgeon ever to work at this hospital. Yes, he may use blue-collar language while saving lives, but I just can’t see where that merits the above punishment, especially considering that they endorsed and rewarded it for 25 years. Personally I think the hospital administration have their priorities all screwed up. I related earlier two incidents that I experienced at UK hospital (misdiagnosed surgery on the wrong knee by a doctor who never even made it into surgery, and emergency room treatment of atrial flutter with nitroglycerine that almost killed me) that reflected total incompetence, and yet these individuals are still working here and I feel certain are getting bonuses. I am sure there are others, some of which might have even cost lives. Or what about the physician who has reportedly assaulted in anger a number of surgical residents. I believe this person was eventually promoted to Chief Medical Officer, which afforded him the opportunity to organize this vendetta against Dr. Kearney. The bottom line being Dr. Kearney’s punishment does not in any way fit his reported crime, leaving open the obvious that there are motivations beyond this bad language in play here.

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Slow learner
8/23/2018 01:51:12 pm

My understanding is that Kearney has not technically lost his job as a tenured faculty member, he has lost his medical staff credentials. So the allegation must be that the revocation of his credentials was somehow done in retaliation for his whistleblowing. Could the court order UK to restore these privileges?

Anyway, I am still interested in the disputed facts issue. Can we break this down to a Kearney says this: Uk says that list? That would help me a lot.

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Dan Noonan
8/24/2018 09:59:22 am

Thanks for the comment Slow. Yes Dr. Kearney is still a faculty member at the University and yes Dr. Kearney still practices medicine on a volunteer basis at Surgery on Sundays. With respect to his faculty member duties, Mr. Thro and Dr. Capilouto, in defiance of the Board of Trustees verdict (see document 12 above), have dictated that he can’t teach or basically interact with the faculty, students and residents of the hospital (see document 10 above). This of course takes away any opportunities for research (another mandate of Mr. Thro and president Capilouto) with the ultimate intent of using this as a premise for revoking Dr. Kearney’s tenure. Fortunately, this is where the faculty spoke up (which I am sure peeved Mr. Thro and the other small band of administrators trying to drive Dr. Kearney out of the University) by simply voting Dr. Kearney to represent them on the University Senate and the College of Medicine Faculty Council.

I am not sure what the court can order the University to do should Dr. Kearney win this lawsuit. Mr. Leiter above is of the opinion that Dr. Kearney will never practice medicine at the University again, or anywhere for that matter. We already know that to be wrong because he regularly volunteers at Surgery on Sunday. I guess we will just have to keep our fingers crossed that Dr. Kearney wins the appeal and then the jury trial. After that it is simply wait and see.

With respect to the disputed facts I believe it is pretty straightforward as discussed above. Dr. Kearney is claiming the extreme and unprecedented punishment the university and hospital administration have suddenly put him through is not for some history of improper language that they have endorsed and rewarded for 25 years, but rather for his recent participation in attempts to investigate money mismanagement by KMSF and senior hospital administrators. The lawyers hired by the university are claiming the reverse of this. If you want to know why the UK Law School alumnus judge, Judge Scorsone, decided in favor of the lawyers hired by the university you can read it in his court document (see above).

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Felix the cat
8/25/2018 04:21:48 pm

This is just a lot of what aboutism to distract from the fact that the KMSF practice plan whistleblowing claim is weak. Kearney got wind of the fact that his bad behavior had caught up with him and then started making wild claims on the basis of no factual information. The only reason anyone wants this to go to a jury trial is that his last hope is a jury of trump voting conspiracy theorists might buy into this fantasy. Fortunately we will get one more round of judges looking at it and after that I doubt there will be anywhere else left for Kearney to go. The really unethical people in this whole fiasco are Kearney's lawyers who must be feeding him BS about winning while taking his money for a case that can't be won.

Camille towe
8/23/2018 05:42:40 pm

Earlier today the UK Board of Trustees’ Executive Committee approved a plan for UK HealthCare to enter into a joint venture for Lexington Surgery Center, an affiliate of Surgical Care Affiliates, LLC (SCA).

http://ukhealthcare.net/itl/2018/08/23/strategic-purchase-plan-approved-by-uk-board-of-trustees-executive-committee/

Why does UKMD need more surgery when faculty are leaving?

Do you think they did this so they can ban kearney fro surgery on Sunday?

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Dan Noonan
8/24/2018 10:18:02 am

Thanks again for the comment and information Camille. I have no idea why UKHC made this 1.2 million dollar purchase. The article suggests it is because of the crowded conditions and patient load that UK’s surgery center is experiencing. Maybe someone else monitoring the blog might know something more. I am not sure Lexington Surgery Center has anything to do with Surgery on Sunday.

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Taco
8/25/2018 05:04:38 am

Surgery on Sunday uses the Lexington Surgery Center facilities so so once UKHC owns it I assume they can then decide if they want to continue these arrangements or not.

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Dan Noonan
8/25/2018 12:14:25 pm

Thanks for the comment and information Taco. Hopefully this public university's true motivations for investing in and obtaining controlling interest in this Surgery Center is to help the public they are suppose to be serving and not to shut down Surgery on Sunday or block Dr. Kearney from helping the less fortunate of this city.

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Kearney Attorney
8/25/2018 01:50:10 pm

I wouldn't be surprised if Kearney isn't allowed to operate in facilities that are owned and operated by UKHealtcare.

Felix Leiter
8/25/2018 12:21:12 pm

Camille, not sure what you have heard, but the idea that the ORs at UK are a ghost town is inaccurate. Obviously a lot of surgeons have left UK. But what is (not shockingly) missing from this blog is that those surgeons are being replaced.

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Dan Noonan
8/25/2018 01:39:32 pm

Thanks for the comment Felix. I just want to add to this comment that: yes surgery is losing talented surgeons at an abnormal rate, and yes they are gradually being replaced, and yes this replacement process is very expensive and yes this replacement process is very time consuming. There you go, now it is on the blog. :-)

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Kearney Attorney
8/25/2018 01:48:51 pm

Lets be clear that the disputed "facts" are basically team kearney's attempt to package the information about the KMSF practice plan committee with a much less well defined complaint about "financial mismanagement" essentially all of which is predicated on information that came to light well after the claimed whistleblower retaliation happened and could not therefore be based on facts that were known to Dr Kearney. Can Dr Kearney prove that he knew about and told someone about this "financial mismanagement"? Is an allegation of "financial mismanagement" sufficiently specific to constitute whistleblowing? If I worked at UK could I make a broad allegation about financial mismanagement that would then protect me from any adverse actions taken against me? Would this be different if I went to someone with a specific allegation with evidence to prove it?

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Dan Noonan
8/26/2018 06:35:03 am

Ahh, it is good to see the UK attorneys and administrators are still following the blog. Thanks for your opinions Felix the cat and Kearney Attorney (which of course this person isn’t). Just so we get this straight, Dr. Kearney has just one attorney and it is the University that fears these allegations enough to hire a whole company of attorneys, in spite of the fact that they already employ a whole company of attorneys. Also I feel the need to repeat: the CoM Practice Plan “legal matter” discussions that precipitated Dr. Karpf’s threat and Mr. Thros’ “it’s none of this committee’s business” comment occurred shortly before (8 months) the extreme actions taken by Dr. Karpf through Dr. Boulanger (and I have to believe included Mr. Thro and Mr. Iler in at least an advisory capacity). These included taking away Dr. Kearney’s patient privileges, changing the lock on the door to his office, confiscating his computer, telling the office staff that he is a “dangerous person”, tapping into his email account, and not allowing him to enter the campus nor talk to anyone on campus. All of these activities clearly biased any subsequent university, and especially hospital committee, that could be put together to formally uphold any allegations made. This is especially true if you hold a trial with a jury consisting of a group of individuals that are paid through the so-called company that Dr. Kearney was reprimanded by Dr. Karpf for criticizing, and you conduct a trial in the absence of the accused, without any representation for the accused, with only witnesses for the prosecution and fail to record the proceedings.

Again repeating myself, the “university hired lawyers” are contending that the sole reason for taking these unprecedented and extreme disciplinary measures was to punish Dr. Kearney for a documented history of bad behavior that these same administrators had signed off on and rewarded for 25 years. If you are of the opinion that this punishment fits this crime then I can do nothing more than assume that you are either one of these administrators, one of the lawyers, a Dr. Kearney hater or from some country other than the USA.

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Kearney's Counsel
8/26/2018 03:45:24 pm

Kearney attorney does not appear to be the shiniest apple in the basket or he/she is ignorant of the state whistleblower statute or dare I say both? The statute clearly states "known or suspected" rule violations, financial mismanagement, etc. If he (Kearney) suspected it, reported it, and complained about it and retaliation followed then there is a case. I believe that is the essence of the suit. If Kearney allegations are to be believed, EVPHA Karpf, Dean de Beer, general counsel Thro and then Faculty Trustee Wilson were presented with the AR violations, concern about faculty contracts, as well as a request for a KMSF audit. Refer to concise summary-the law above. He/she has it right. Whether Kearney blew the whistle and did that to the right people is a matter for the jury to decide. Not a judge!

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Dan Noonan
8/27/2018 10:32:14 am

Thanks for the comment Kearney's Counsel. I am not fully familiar with the Whistleblower legalese, but I would agree that if there is any question at all as to the possibility that the University is retaliating against Dr. Kearney for his participation in the disclosure of this phony Practice Plan Committee and the potential it had for mismanagement of hospital revenue, then it needs to be decide by a jury and not a judge. Especially a judge whose alma mater is asking that the court drop this case.

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Felix Leiter
8/26/2018 08:56:50 pm

Despite what Dan has suggested, I am not a UK administrator. In fact I am a UK physician who currently is thinking about leaving UK. This is an interesting blog and I feel the need to give a medical perspective since Dan is not a physician.

One of the issues he feels to grasp is the tug of war in academic medicine between the academic mission and the business mission. UK is not alone in the criticism that is puts profits ahead of the science. That debate is going on EVERYWHERE.

One of the more strange contentions that Dan makes about UK/Karpf's questionable finances is the use of a private jet. In fact, Dr Karpf would use the jet to take pleasure trips to Hazard. Does anybody else realize how ludicrous that sounds? Hazard? I have visited Hazard many times for my job and I can guarantee you, it's not a perk of the job. Dan, have you driven there? Do you know what it's like? Any normal, sane CMO would take a plane there. If that is your evidence that KMSF is dirty, please find another example.

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Dan Noonan
8/27/2018 10:37:21 am

Thank you for the comment and perspectives Felix Leiter. I fully appreciate and welcome the fact that yours is a UK physician’s perspective of this Dr. Kearney case, but I also recognize that it is not the only UK physician perspective. Others, including other physicians, have posted comments, both here and on the Dr. Kearney Facebook page, that offer other perspectives on this matter. There is also the Press-Gainey survey, that I had nothing to do with, that resonates a whole lot of UK physician perspectives.

This tug of war between academic mission and business mission may be exactly why we are here. Dr. Karpf’s avarice to fulfill his goal of finding the 500 million dollars to complete the hospital might be exactly why we are here. Because I have heard no reasonable argument (I refuse to buy into “trade secrets”), why UK has not demanded (in actuality lead a legal fight against it) a 10-year public audit of what KMSF is doing with this public university’s hospital public revenue, I can only assume it is because they have something to hide. This possibility first surfaced in the College of Medicine Faculty Council meeting discussions (that Dr. Kearney participated in) of the Practice Plan Committee that never met for 4-years. This committee I believe was interestingly credited with several money management decisions made during this time period. This possibility lead to the subsequent Dr. Karpf, Mr. Thro, Mr. Iler “legal” meeting of the Faculty Council. I may not be a physician but I was part of this Council during these very early meetings so I at least have that going for me.

In fact I have been to Hazard and yes I do not place it into one of the “seven wonders of the world” category. I will say though that the drive is less than 2 hours if you travel maybe 1 mile an hour over the speed limit. On the other hand, my best guess is that getting to a private plane, getting up in the air, landing and getting to wherever you might be going in Hazard is probably well over 2 hours. Furthermore, I am guessing it is much more expensive. But beyond this and the aforementioned Practice Plan Committee suggestions of money mismanagement, there is also the attempt to suppress knowledge of the Hazard Cardiology 5-million dollar payoff, the use of hospital revenue for parties at the Iroquois Hunt Club, and the use of hospital revenue for Keeneland box seats. Finally, as mentioned above, there is that little issue that “if KMSF is claiming not to be part of this state agency”, it would be “illegal” to use the Kentucky Department of Revenue for collecting debts. So all of these possible issues with respect to KMSF mismanagement of UKHC revenue have surfaced since the Practice Plan Faculty Council meeting, and they have surfaced in spite of UK and KMSF’s intense legal battle to keep unknown to the public what KMSF is doing with this hospital’s/public revenue. With that in mind, personally I tend to agree with Kearney’s Counsel above that there is plenty of evidence to minimally support the advancement of this case to a jury trial. But then again, that is just my opinion.

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Simple Question
8/27/2018 04:13:58 pm

This is a well meaning law thats open to abuse and in this case kearney is making a false claim to try to reverse his loss of hospital privileges. So as a matter of law a judge needs to determine if his claims are protected or pretextual. This case has been looked at by multiple judges and everytime its been cut back or rejected. So the appeal if there is one is the last roll of fhe dice. Good luck with it.

If youre really kearneys counsel i hope you are enjoying spending all of his retirement savings..or are you doing this to get a cut of the massive payout whe he wins?

So if this is all so obvious why do you keep losing in court? Is it really all because of biased judges. If/when you lose the appeal with non uk judges what will yoir new excuse be then?

If davy jones and the entire faculty council did the whistleblowing why was kearney singled out for rretaliation? Couldnt they have just sacked davy jones? Who cares about him?

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Dan Noonan
8/27/2018 04:28:44 pm

Thanks for your comments Simple Question. The content of your 5 comments (I left out the non-constructive comment) is fairly redundant and from what I can decipher through the grammar and spelling errors I belief you are saying that: a) you are of the opinion that Dr. Kearney has no case, b) that Dr. Kearney is getting what he deserves and c) that Dr. Kearney will ultimately lose and leave this battle a pauper. I guess in response I would have to state:

a) You are correct in your statement that this case has been looked at by multiple judges, but only one of these judges, the UK Law School graduate Judge Scorsone, ruled on this case.

b) I think that as we have seen with: 1) the thousand signatures on the Facebook page, 2) the University faculty support, 3) the College of Medicine faculty and staff support, and 4) the hundred or so letters to Dr. Capilouto, that your “opinion” of Dr. Kearney’s innocence, the righteousness of the vendetta being used to destroy his career and his right to a trial are in the “minority”.

c) As I have noted above, this battle of Dr. Kearney’s has, in a way, already paid for itself in: 1) the departure of Dr. Karpf, Dr. Boulanger, Dr. deBeer and Dr. Zwischeberger. (hopefully you are not one of them), 2) the exposure of the vindictiveness of the University’s General Counsel, 3) the exposure of the spineless nature of the University president, 4) the exposure of the importance of having strong Faculty Trustees and 5) the the exposure of the importance of having fellow College Faculty Council members who are willing to bring these possible misuse of authority situations to the attention of their faculty colleagues.

d) I am glad you have brought up this last item. We have not discussed this facet of Dr. Davy Jones' participation in the events of this Practice Plan exposure, and why he was not targeted in this matter. This is a good question and one that of course the UK-hired lawyers used in their arguments that this Practice Plan issue had nothing to do with the Dr. Kearney vendetta and Whistleblower case. I am not sure what argument Dr. Kearney’s lawyer made with respect to this issue, but to me it is fairly obvious. Dr. Jones is by far the strongest representative faculty member we have in the College of Medicine. He has served on the University Board of Trustees, University Senate and multiple Faculty Councils. Although I was unfortunately not at this Faculty Council meeting at which he initiated the exposure of the Practice Plan Committee, I am not surprised that he did it. Therefore the obvious question is, “why not retaliate against him", or perhaps more appropriately, "why target silencing efforts towards Dr. Kearney rather than Dr. Jones?” Several reasons stick out for me. They include: 1) Dr. Jones is not a physician, not paid through KMSF and has little to no knowledge of how KMSF manages hospital revenue or pays physicians, 2) although Dr. Jones has been working in the University of Kentucky Toxicology Department for some time his knowledge of KMSF operations was limited to what he was able to obtain through Open Records requests, and we all know the limitations there. Dr. Kearney on the other hand had: 1) worked as a physician at the University of Kentucky for over 25 years, 2) served as the Medical Director of Surgical and Trauma ICUs from 1988-2009, 3) served as Trauma Medical Director from 1992-2012, 4) served as Chief, Section of Trauma and Critical Care from 1992-2012, 5) served as Program Director, Surgical Critical Care Fellowship from 1993-2013, and 6) served in the Department of Surgery Clinical Research Program. Furthermore, Dr. Kearney’s salary and bonus was paid through KMSF, and although he might not have been on any KMSF Boards "that I am aware of", he surely knew the people who were and how KMSF operated. It is obvious that going after both would be the wrong move, so now I ask you the simple question, if you were needing to silence any investigative activities into KMSF, which of these two would you choose?

So once again Simple Question, thanks for your contributions to the blog. Your questions allow us too continue voicing our concerns with respect to the total lack of due process the University lawyers and administration have used in their attempts to drive a fellow faculty member out of this university. This is especially disturbing when you take into consideration that this faculty member has saved the lives of many citizens of this city and state and has in reality done nothing more than use what these administrators are interpreting as “improper language” in doing it.

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JH
8/29/2018 08:23:05 am

Nice blog. Although your summary of the choice of Jones versus Kearney is reasonable, I think you left out the overriding reason Karpf and company chose Kearney over Jones, and that was simply opportunity. Both the complaint by Wilson’s mother and Kearney’s history fit perfectly into their needs. It allowed them to silence the physician Kearney for the reasons you describe, but also send a warning shot out to any other university employee thinking of investigating these matters further. In other words, Kearney was the better candidate and they simply did not have the opportunity nor the means (e.g. a CMO and a MSEC committee) to go after Davy Jones.

Duh
8/28/2018 12:17:00 am

So if Kearney had all of this inside information about KMSF why did he wait until 2015 to make a complaint?

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Dan Noonan
8/28/2018 11:29:44 am

Thanks for your question Simple Question. I am assuming that the “complaint” you refer to here is Dr. Kearney’s Whistleblower lawsuit. That is simple, because it was not until January 26, 2015 that the retaliatory actions were initiated by Dr. Karpf, Dr. Boulanger and Mr. Thro.

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Dan Noonan
8/29/2018 06:25:09 am

Well Simple question, this is the beauty of having your own blog. We have answered your questions and need not go any further. If you wish to continue prophesizing and ranting simply start up your own blog. It is clear that you are a Dr. Kearney hater and, as we have documented many times on this blog, it is also clear that you are in the minority. So it is very simple Simple Question, you can gloat to your administrator friends if Dr. Kearny should lose this case or go on Twitter and claim “fake news” if he wins it, but I can assure you that you will not be able to do it on this blog.

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Rick C.
8/29/2018 06:30:29 am

Your patience Noonan is far greater than mine. This "Simple Question" sounds like maybe one of the investigative committee, or because of the grammar, spelling and typing errors I’m going with an administrator. Is that you Zwisch? If so, I hear they have openings for Walmart greeters.

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Dan Noonan
8/29/2018 06:52:56 am

Thanks for the comment Rick C. I do not know who Simple Question is, nor do I care. As I hope is evident, I am open to other opinions. Everybody has a right to an opinion, but when someone attempts to mix that right with hate and use the blog to spread it, I simply exercise the option to not post their comments.

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Tell them about your theory that all the salaries come from tuituon
8/29/2018 12:41:55 pm

University of Kentucky, College of Medicine Faculty Council
August 21, 2018
Minutes

Present Not Present
Davy Jones Paul Kearney
Wally Whiteheart Stefan Kiessling
Lee Blonder
Julia Martin
Kristy Deep
Martha Peterson
Gaby Gabriel
Ken Campbell
Amy Meadows
Paul Sloan

Invited Guests: Dean DiPaola, Dr. Jim Geddes, Matthew Sanger, Dr. Lon Hays, Dr. Fredrick Ueland

The meeting was called to order at 5:00pm.

Dr. DiPaola (invited guest) addressed the council on the COM Dean’s office organization strategy. Outside consultants have been meeting with select faculty and staff and interviewing stakeholders to give input on the current structure. They will be giving an executive summary of recommendations to the Dean. The purpose is to make our organization function at its best to serve our faculty. The Dean said he would provide updates to the council and at the next General Faculty Meeting.

Dr. DiPaola next addressed the COM transdisciplinary strategy to grow research and impact clinical care (Strategic Research Priorities). The goal is to continue to improve the research component of the COM- it has the potential to improve education and clinical components of the COM as well. The transdisciplinary strategy launch began in 2016 and has grown significantly since.

Dr. Geddes (invited guest) presented the draft proposal for compensation of research-intensive regular title series faculty.
The proposed model is component-based. Faculty members will receive a base salary with an additional variable component based on extramural support, instruction, service, and administration. Base salary would be 70% of the 50th percentile of the AAMC or the current salary, whichever is greater. The threshold for Wethington awards would transition from 30% to 50% extramural salary support over the next two years.
Question- is COM getting the revenue for the teaching we are doing? Answer- funding from tuition does support salaries. However if we add new programs it does not add revenue coming into COM. There are ongoing discussions with the provost about this.

Dr. Whiteheart asked for nominations for a new member for the Productivity Advisory Group to replace Joe Iocono, MD – The council nominated Mimi Behar, MD in Pediatrics.

Dr. Whiteheart announced Faculty Council has been asked by the Dean (in accordance to AR 6.2) to submit four nominations to serve in the Sexual Misconduct Hearing Pool and two nominations to serve on the Sexual Misconduct Appeals Board for the University by October 1. Nominees will participate in a two-day training and will be chosen at random to participate in a hearing panel in sexual misconduct case involving students, staff members, or faculty members. The Board appointees will be chosen at random to decide on appeals. It was discussed and agreed upon that a call for self-nominations should be sent to the COM faculty and the council members should make themselves available for questions regarding this process. The call for nominations will close prior to the next Faculty Council Meeting on September 18th to ensure time to provide the Dean with nominees by the deadline.

The next General Faculty meeting is scheduled for September 25, 2018 at 12pm in HG 611. It will follow a similar structure to the last meeting where refreshments will be provided. Council members are asked to remind colleagues to use the microphones on the desk to ask questions so people listening on Zoom can hear discussion.
Agenda items identified-
Final LCME update before the site visit in October
The Strategic research priorities and organizational strategy update from the Dean
An update on the regional campus expansion
Clinical department compensation committee representative to discuss the guiding principles and process of the ongoing work.
Outgoing Faculty Council members were recognized and thanked for their service over the last three years:
Martha Peterson, PhD
Stefan Kiessling, MD
Ken Campbell, PhD
Amy Meadows, MD
Paul Sloan, MD
No other business identified.

The meeting was adjourned at 6:04 pm.

The updated list of Faculty Council members effective September 1 can be found at the Faculty Council Website: http://med.uky.edu/faculty-council

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Dan Noonan
8/30/2018 07:14:20 am

Thanks for the comment and information Tell. Although I see here that the Dean validates the simple truth that student tuition is used to pay salaries, I do not ever remember theorizing that all salaries come exclusively from tuition. In fact I seem to remember having to argue that some of the state subsidization of the College and University also goes towards salaries. This argument is in fact supported in Mr. Thro’s letter to Dr. Kearney (see Document 10 above) wherein Mr. Thro used it to justify “his” reduction of Dr. Kearney’s salary to $43,500. Along these lines, I notice that there is a proposed change in base salary calculations, that being 70% of what the average salary is for AAMC faculty. I feel certain that this will be substantially more than the $43,500 Dr. Kearney is currently getting. Any bets that Mr. Thro and company will find a way to make him an exception to this new minimum salary number. To a certain degree this is especially interesting in that I hear that Dr. Kearney has just recently been elected by his faculty colleagues to a second 3-year term on the University Senate.

With respect to your name here, my best guess is that you are wishing to twist the evidence I have presented in the past that some faculty lacking research funding support teach enough students to where the tuition revenue generated from their teaching efforts substantially exceeds the salaries they are paid. Here again the argument is fully supported by the available data. Some would wish to argue that the University does not use all of this tuition revenue for salaries. To me, what the University does with this tuition revenue is irrelevant with respect to the argument that these faculty are some sort of burden to the College, a view that some past administrators had wished to use to drive unfunded faculty out of the College.

Reply
JH
9/5/2018 10:25:04 am

Dan, I note one of your favorite topics was discussed in this Faculty Council meeting, that being the Wethington Award. Any thoughts on these changes?

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Dan Noonan
9/5/2018 10:39:47 am

Thanks for the comment JH. I think I have made my radical views with respect to the Wethington Award abundantly clear. I dedicated a post to it on the blog should you need to refresh your memory (see 1/19 2016 post). This latest movement of award maximum from 30% to 50% of ones salary is similar to what we saw in the CoM back when the award was in its infancy and relegated to only the CoM. So too is the maximum on the amount of this award/bonus at $50,000 per year. For those unfamiliar with this award see here:

https://research.med.uky.edu/research-wethington-awards-policy

My concern remains that this salary bonus/award is predicated upon grant direct cost salary reimbursement dollars that the funding agency believes are being used to pay the investigator’s salary. The one change I like in the award since its conception is the option that: “Awards can be provided to the faculty member with a payout to the individual, funds to support the faculty member’s laboratory, or a mixture of these two options.”

I also like the question above asking if the CoM is getting the tuition revenue for the teaching that is being done? As I note in my response to Tell, teaching can be seen to bring considerable revenue into the University (probably well over 20-30 million dollars/yr. in the CoM alone). So I am assuming what this person is really asking is: “why should that not also be eligible for some type of award/bonus?”

Reply
Doh
9/6/2018 07:45:35 pm

Most of the com teaching associated with thr revenue generating programs like the md program is not done by basic scientists. There is not enough teaching to justify the number of basic sciences faculty

Reply
Doh
9/6/2018 07:52:19 pm

Also the wethington award is a bonus based on sponsored research income- its not inapprpropriately using research money for salary support

Reply
Dan Noonan
9/8/2018 06:34:01 am

Thanks for your comments Doh. I am in agreement with these points you make here, but I think perhaps some additional information might be worth including here. With regard to your first comment, this substantial reduction of College of Medicine basic scientists in the teaching of medical students has only occurred within the past 5 years. It appears that the new directive with regards to medical student education is towards an understanding of how to treat medical problems and not the physiological and biochemical mechanisms by which medical problems occur. It is somewhat of a reflection of a medical student comment I heard multiple times while working in the CoM. That being: “I don’t understand why we even need to be taking biochemistry?” This fits well with another sentiment I have heard also about medical school education at the University of Kentucky. That being, although students will drop out of this program, almost nobody is ever failed out of it. I actually had the occasion to experience an aspect of this once when I was the basic scientist assigned to a committee that was considering the removal of three 3rd year medical students from the program. There were very good reasons to remove these students, and in fact when I asked one of these students who managed to fail biochemistry two times, the simple question “why”, his reply (not knowing that I was a biochemistry professor) was that “he could not see the importance of biochemistry and therefore did not put much effort into the course”. The coup de grace being that none of the three students were removed from the program. When I mentioned in our discussions afterward that I felt we appeared to be setting the bar pretty low for a profession of this nature, the response was simply that removing them at this stage of the program was a major hassle. But back to the real point here, some might easily construe that redesigning medical school curriculum in a way that removed basic scientist teachers from medical school teaching served the purpose of both dumbing down medical school education and targeting unfunded basic sciences faculty. Again, only my opinion.

With regard to your second comment, I feel it necessary to repeat that I am defining my concern relative to the years that I was at the university. I guess my question would be: if I as a basic scientist had a million dollar 4-year grant and chose (or was relegated to) 5-10% salary reimbursement, would I get the same bonus/Wethington award that someone with a similar million dollar grant got whose salary reimbursement was 50%. I know when I was in the CoM this was not the case. In fact, when I was on CoM Faculty Council the former Dean for Research stated that the goal was for all basic sciences faculty to have 100% of their salary paid through grants. When asked the obvious question: “are these people now relieved from any teaching and service responsibilities?”, the obvious answer was “no”. This suggested to me that: “laundered salary reimbursement dollars were being used to pay this bonus/award”.

Again these are only my opinions and I know they are not necessarily popular ones. I fully understand the need for attracting and retaining funded research scientists as well as the burden unfunded basic scientists pose in the College of Medicine. In previous post discussions we present constructive solutions to these problems and I encourage you to visit these discussions.

Reply
King Kearnute
9/14/2018 11:31:28 am

https://www.kentucky.com/opinion/op-ed/article218369895.html

University officials placed false documents in my personnel file, created a false narrative about my 30-year career at UK, threatened or retaliated against faculty who spoke to support me, and blatantly ignored exculpatory evidence that refuted their claims.

Can you identify these faculty who were threatened and retaliated against for speaking to support Kearney? Who are they? What specifically were these threats? How were they retaliated against?

Reply
Dan Noonan
9/14/2018 12:44:29 pm

Thanks for the comment King. If you look at the end of this article you will see Dr. Kearney's email address. Feel free to email him your questions.

I do remember being in the July 21, 2015 Appellate Review panel meeting, and while the panel was out supposedly reviewing the 20 minute presentations made by UK's hired lawyers and Dr. Kearney's lawyer, some of the "I believe" residents present there to support Dr. Kearney, began showing emails on their phone from the administration warning them against speaking out at this meeting. That to me is close enough, but I suppose you can add to that the documented situation where the staff in the offices were warned that Dr. Kearney was a dangerous person.

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