Once again, for those new to this blog site, at present there are 59 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 basically a repost of the review I posted on 8/14 2018. It includes a brief update of relevant events since then, which hasn't been much. Because this Dr. Kearney case has been dragging on for almost 4 years now and is currently in what many believe to be its final battle(s), I thought it appropriate to put this comprehensive review back to front and center. As I have mentioned previously, although the university may ultimately win this legal battle concerning the retaliation issues, they will have ultimately failed in attaining their primary objective, that being driving our faculty colleague, Professor Kearney, from the university. Furthermore, the exposure of the bullying, threatening and manipulative measures employed by the university administrators and lawyers 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. Putting it into perspective, here we have a small cadre of senior university and hospital administrators and lawyers trying and convicting a university professor and physician (in his absence, in the absence of any legal representative, and with only witnesses for the prosecution) for a putative crime that they spent the past 25 years rewarding him for. In the 4 years following this conviction actions were taken by these same people in attempts to destroy the academic and medical career of this individual. Interestingly, the response of the college faculty (who elected this faculty member to represent them on their "Faculty Council"), university faculty (elected this faculty member to represent them on their "University Senate"), medical center students (awarded this faculty member a teaching award at their annual Resident Ceremony), and general public (wrote hundreds of letters of support and recently awarded this faculty member the prestigious "Governor's Service Award") was strongly in support of this faculty member. Finally, I believe it can also be stated that this legal battle has played a significant role in exposing mismanagement of UKHC hospital/public revenue by senior administrators in UK Healthcare and their money laundering agency KMSF.
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 an update of this KMSF David vs. Goliath battle for Open Records accessibility, it appears, at least for the present, David has come out a winner (see here). In an article entitled "UK HealthCare’s secretive medical foundation must disclose its records, judge rules", it is reported that "Judge Kimberly Bunnell agreed with a 2015 decision from Kentucky Attorney General Andy Beshear’s office that the Kentucky Medical Services Foundation is a public agency because it was created by the University of Kentucky and is still run by doctors at UK HealthCare."
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 counsels 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:
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 and class valedictorian 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.
As might be expected, Dr. Kearney being the battler that he is, filed an appeal of Judge Scorsone's decision and that appeal process is currently underway. I am not sure of the status of that appeal, but posts from previous blog commenters suggest that the attorneys for both sides have filed their paperwork and that this paperwork is in the hands of a Judge Christopher Shea Nickell (see here). If this is accurate information it is definitely a surprise. All previous decisions on this case were being made by judges in the 5th District. Judge Nickell is listed as an Appellate Judged in the 1st Appellate District which covers counties in the extreme southwest corner of the state (see here). Having said that, I need to also note that Judge Nickell "earned his juris doctor degree from the University of Kentucky College of Law, where he served as president of the Student Bar Association". So as noted above, no matter how far away from Lexington we get, it is really difficult to find a judge who does not have this perceivable conflict of interest. If I hear more or any correction to this information I will update this review.
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, resident students showed their confidence and support of Dr. Kearney by recently awarding him a Lifetime Achievement Award, and most recently the state of Kentucky declared their respect for how Dr. Kearney treats his patients and the people he works with by awarding him the "Governor's Service Award" for his volunteer work at "Surgery on Sundays"
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.
https://www.facebook.com/Save-Dr-Kearney-1039697039481791/
This is basically a repost of the review I posted on 8/14 2018. It includes a brief update of relevant events since then, which hasn't been much. Because this Dr. Kearney case has been dragging on for almost 4 years now and is currently in what many believe to be its final battle(s), I thought it appropriate to put this comprehensive review back to front and center. As I have mentioned previously, although the university may ultimately win this legal battle concerning the retaliation issues, they will have ultimately failed in attaining their primary objective, that being driving our faculty colleague, Professor Kearney, from the university. Furthermore, the exposure of the bullying, threatening and manipulative measures employed by the university administrators and lawyers 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. Putting it into perspective, here we have a small cadre of senior university and hospital administrators and lawyers trying and convicting a university professor and physician (in his absence, in the absence of any legal representative, and with only witnesses for the prosecution) for a putative crime that they spent the past 25 years rewarding him for. In the 4 years following this conviction actions were taken by these same people in attempts to destroy the academic and medical career of this individual. Interestingly, the response of the college faculty (who elected this faculty member to represent them on their "Faculty Council"), university faculty (elected this faculty member to represent them on their "University Senate"), medical center students (awarded this faculty member a teaching award at their annual Resident Ceremony), and general public (wrote hundreds of letters of support and recently awarded this faculty member the prestigious "Governor's Service Award") was strongly in support of this faculty member. Finally, I believe it can also be stated that this legal battle has played a significant role in exposing mismanagement of UKHC hospital/public revenue by senior administrators in UK Healthcare and their money laundering agency KMSF.
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 an update of this KMSF David vs. Goliath battle for Open Records accessibility, it appears, at least for the present, David has come out a winner (see here). In an article entitled "UK HealthCare’s secretive medical foundation must disclose its records, judge rules", it is reported that "Judge Kimberly Bunnell agreed with a 2015 decision from Kentucky Attorney General Andy Beshear’s office that the Kentucky Medical Services Foundation is a public agency because it was created by the University of Kentucky and is still run by doctors at UK HealthCare."
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.
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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 counsels 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.
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 and class valedictorian 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.
As might be expected, Dr. Kearney being the battler that he is, filed an appeal of Judge Scorsone's decision and that appeal process is currently underway. I am not sure of the status of that appeal, but posts from previous blog commenters suggest that the attorneys for both sides have filed their paperwork and that this paperwork is in the hands of a Judge Christopher Shea Nickell (see here). If this is accurate information it is definitely a surprise. All previous decisions on this case were being made by judges in the 5th District. Judge Nickell is listed as an Appellate Judged in the 1st Appellate District which covers counties in the extreme southwest corner of the state (see here). Having said that, I need to also note that Judge Nickell "earned his juris doctor degree from the University of Kentucky College of Law, where he served as president of the Student Bar Association". So as noted above, no matter how far away from Lexington we get, it is really difficult to find a judge who does not have this perceivable conflict of interest. If I hear more or any correction to this information I will update this review.
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, resident students showed their confidence and support of Dr. Kearney by recently awarding him a Lifetime Achievement Award, and most recently the state of Kentucky declared their respect for how Dr. Kearney treats his patients and the people he works with by awarding him the "Governor's Service Award" for his volunteer work at "Surgery on Sundays"
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.