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Comprehensive Review Update

6/27/2019

27 Comments

 
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:
  • 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 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.
27 Comments
Betty Pimples
7/3/2019 10:57:46 am

If this appeal fails is that the end of the road for Kearney or are there other appeals left to make? If the appeal succeeds does that mean we go straight to a jury trial?

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Dan Noonan
7/4/2019 06:10:35 am

Thanks for the comment Betty. I do not have answers for these questions, but my best guess is that if Dr. Kearney loses this appeal the Whistleblower-Retaliation case is over. I am not exactly sure what happens if he wins, meaning I do not know if the University-hired lawyers get a chance to appeal the appeal or if it goes to a jury trial?

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JD
7/4/2019 11:44:19 am

Beyond the UK law degree and wife who is a pathologist, I think you should also be looking at the fact that Judge Nickell appears to be a very religious person (a deacon at the church he attends). This is something he has in common with Bill Thro (wife is the Pastor at Presbytery of Transylvania) and Cliff Iler (Chairman of the Board of Directors for Lexington Christian Academy). There is definitely nothing wrong with a lawyer being devoutly religious (am a believer myself), but I could envision a potential struggle separating church and state for lawyers and judges with deeply religious backgrounds and beliefs. Using the Lord’s name in vain or simply using abrasive language might be a sin in some folk’s religious beliefs, but it is not against the law here in the USA. Furthermore, it is definitely no justification for trying, convicting and sentencing a person in his absence and in the absence of any representative on his behalf. Especially when the sentence is basically a death sentence. This might work well in Iraq but not here.

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Dan Noonan
7/5/2019 09:38:27 am

Thank you for the comment JD. I might tend to agree with you as this consideration applies to the university lawyers, but I think a judge plays by a totally different set of rules. Our university lawyers, as we have seen, can reward an accused sexual abuser like James Harwood with a nondisclosure agreement and six months salary, while at the same time attempt to destroy Dr. Kearney’s career for a claim that he used offensive language while saving a life. The judge on the other hand, in this scenario at least, is only defining whether or not this case merits a jury trial. Personally, I would think any judge with these perceivable conflicts of interest would either recuse themself from the decision making process (e.g. Judge Reynolds) or simply pass on that decision making process to a jury. We will just have to wait and see.

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Judge Nutmeg
7/5/2019 02:33:36 pm

Nobody could accuse Judge Scorsone of having a deeply religious background and he ruled against Kearney. I think its time to stop second guessing.

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Dan Noonan
7/5/2019 03:31:12 pm

Thanks for the comment Judge Nutmeg. I know very little about Judge Scorsone’s religious background, but we do know a lot about his education background. It includes an undergraduate degree from the University of Kentucky and a Juris Doctorate degree from the University of Kentucky College of Law (I believe he was also the class valedictorian). Furthermore, Judge Scorsone continues a close relationship with his alma mater.

http://law.uky.edu/news/uk-college-law-co-hosts-first-law-camp

Rather than second guessing, I would prefer to call this a perceivable conflict of interest.

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Judge Cinnamon
7/7/2019 05:34:26 am

Judge Bunnell who ruled against UK/KMSF in the recent open records decision is also a UK law grad. So the theory that all judges with UK connections are pro UK doesn't always apply.

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Dan Noonan
7/7/2019 09:15:57 am

Thanks for the comment Judge Cinnamon. I totally agree with you that "the theory that all judges with UK connections are pro UK doesn't always apply". My point being that a judge that has an undergraduate degree from UK, a law degree from UK and is still actively involved in UK Law School activities would have to be perceived as "potentially" influenced by these connections. This is not stating that all judges graduating from UK Law School would always decide in favor of UK, but rather that the potential could easily be avoided by assigning a judge who did not have this perceivable bias.

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Judge Nutmeg
7/8/2019 11:50:43 am

https://en.wikipedia.org/wiki/Robert_E._Wier

Robert Wier who ruled in favor of Raynor Mullins in his whistleblower suit against UK has similar associations with UK and the UK College of Law to those of Judge Scorsone. I bet his basketball seats got a lot worse after that ruling :-)

Wier received his Bachelor of Arts with high distinction and departmental honors, from the University of Kentucky, and his Juris Doctor, with high distinction, from the University of Kentucky College of Law, where he was valedictorian, and served as editor-in-chief of the Kentucky Law Journal.

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Dan Noonan
7/12/2019 02:05:06 am

Thanks for the comment Judge Nutmeg. I simply refer you back to my reply to Judge Cinnamon's comment. I might also add that I doubt either of these cases required three judges before a ruling was made.

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Shell's Answer Man
7/11/2019 02:29:32 pm

If Kearney wins the appeal the case is remanded back to Scorsone's court for a jury trial. UK does have legal right to appeal the decision to the Kentucky Supreme Court. If Kearney loses the appeal, he has the opportunity to appeal to the Kentucky Supreme Court. So don't look for an end to this anytime soon I know what you are all thinking: way too many lawyers!

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Dan Noonan
7/12/2019 02:06:16 am

Thanks for the comment and information answer man.

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Michelin Man
7/15/2019 08:41:52 am

And of course the majority of the justices on the KY supreme court are UK Law grads. Does a defeat at the level of the supreme court end the process once and for all?

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Bobby Kindle
8/29/2019 01:30:22 pm

Anyone want to start a save Dr Shi facebook group?

LEXINGTON, Ky. (Aug. 23, 2019) - Two professors and a staff research scientist are responsible for significant research misconduct in a number of scholarly papers, an internal investigation at the University of Kentucky has concluded.

As a result, UK will seek retraction of the publications in question and, absent their agreement to resign, begin a University process to terminate the employment of professors Xianglin Shi and Zhuo Zhang in the Department of Toxicology and Cancer Biology in the College of Medicine, said UK Provost David Blackwell. The University has already terminated the employment of Donghern Kim, a staff research scientist who worked in Zhang's lab.

The faculty labs were shut down Thursday, and their access to University equipment has been discontinued. Furthermore, without University Legal Office approval, the three researchers are not permitted to contact members of the University community or come on campus except for medical care.

Because College of Medicine Dean Robert DiPaola is a co-author on a paper with Shi, Zhang and Kim that was examined by the investigation committee, he recused himself from the process. DiPaola was not a respondent in the investigation, and the committee found that he was not responsible for direct oversight of the research in the paper. However, that paper will be retracted.

The measures being taken are the result of a more than yearlong internal investigation by a team of scientists at UK with expertise in the methods of the research being reviewed. The investigation committee produced a more than 1,000-page report that demonstrated several examples of falsified or fabricated data that were among numerous irregularities in seven grant proposals and at least 13 scholarly papers sampled from their work.

"As the University of Kentucky supports outstanding research to address Kentucky's most significant and protracted challenges, we are committed to a continual examination of our processes, policies, and procedures to protect against research misconduct. Our research must be conducted in an ethical and responsible manner, consistent with our published policies and standards," Blackwell and UK Vice President for Research Lisa Cassis said in a joint statement. "In the rare instances when researchers violate our expectations and standards, the University will act forcefully and without hesitation to investigate the misconduct, correct it, and take steps to prevent recurrence."

UK was alerted to the potential of misconduct from a source outside the University. Cassis immediately initiated an inquiry committee that determined there were sufficient concerns for the process to continue to a full investigation.

The investigation and findings were turned over Thursday to the federal Office of Research Integrity, which will determine next steps, such as whether further review is warranted or regarding the status of grants on which Shi and Zhang were principal investigators. Additional notifications to federal funding agencies, such as the National Institutes of Health, will also occur.

Background regarding those charged with misconduct includes:

Xianglin Shi is a professor in the Department of Toxicology and Cancer Biology but has been removed as the William A. Marquard Chair in Cancer Research and Associate Dean for Research Integration in the UK College of Medicine.
Shi also was Principal Investigator (PI) and program director on a P30 grant from the National Institutes of Health's (NIH's) National Institute of Environmental Health Sciences (NIEHS), which established the UK Center for Appalachian Research in Environmental Sciences (UK-CARES). UK has asked NIEHS to accept that UK is replacing Shi as PI/director, and an interim director has been named, Ellen Hahn, College of Nursing, who has been affiliated with the grant since its inception.
Zhuo Zhang is a professor in the Department of Toxicology and Cancer Biology
Donghern Kim was a research scientist in the Department of Toxicology and Cancer Biology
UK will work with graduate students and postdoctoral fellows in the labs in question to minimize disruption to their academic career progression.

With the closure of the two labs, the positions of five additional staff have been eliminated because they are supported by research grants that must be terminated. UK Human Resources is working with those impacted on a transition from the university and appropriate assistance packages.

More details about the results of the UK investigation include:

From seven grant proposals submitted to the NIH and 60 manuscripts published from 2012-2018 by Shi, Zhang and Kim, the committee identified patterns of potential data inconsistencies. This served as the basis for further review of data for a selection of 19 items (seven grants and 12 manuscripts), plus three manuscripts which were retracted during the investigation.
Overall, nine distinct classes of significant departur

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Dan Noonan
8/31/2019 02:06:54 am

Thank you for the contribution Bobby. It appears that this blog program has limits on the size of comments, but we get the picture. This sounds more like the Eric Smart incident rather than the Dr. Kearney vendetta. It is good to see that this was not handled with the standard nondisclosure agreement and 6 months salary. It is also good to see that they spent over a year investigating these charges, as opposed to the the Dr. Kearney case wherein it was an almost instantaneous dismissal administered by a highly biassed Chief Medical Officer. Maybe they are learning?

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Kearney Konnection
8/31/2019 06:21:57 am

The most interesting aspect of the shi zhang case is their close relationship with uk com dean robert dipaola- publications together and a multi pi grant. As a corresponding author of one of the papers that will be retracted and a pi of a grant that contained fraudulent data dipaola should have responsibility for oversight of the research. Yet the report goes out of its way to excuse him from these responsibilities. I wonder if this is why it took so long to conduct the review?

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Smokin token
9/3/2019 12:46:15 pm

Apparently dr shi is going to fight this all the way and has retained none other than dr kearneys attorney bernie pafunda to represent him. Cant wait to see how this turns out!

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Niles standish
9/14/2019 10:16:14 am

Never mind about this shi fiasco how about an update on the kearney case!

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Dan Noonan
9/25/2019 08:03:54 am

Thanks for the comment Niles. The most recent update I have with respect to Dr. Kearney's Appeal is: "No word on the outcome yet. Slow!".

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Spoonie luv
9/25/2019 03:13:48 pm

https://uknow.uky.edu/uk-healthcare/inabnet-named-chair-uk-department-surgery


Zwischenberger is finally gone

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Not surprising
11/18/2019 04:04:49 am

https://www.kentucky.com/news/state/article237108084.html

In contrast, seven hospitals earned D’s or F’s. Three of those — University of Kentucky Chandler Hospital and UK Good Samaritan Hospital in Lexington along with Sts. Mary & Elizabeth Hospital in Louisville — worsened from a C in the spring to a D.

In the Leapfrog analysis on patient safety, UK Hospital got low marks for performing below average on surgery problems. The hospital got lower than average scores in the following categories: object left in patient’s body; surgical wound that splits open; death from serious treatable complications; collapsed lung; serious breathing problems; and dangerous blood clots

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Aluminion
11/24/2019 08:38:35 am

https://appellate.kycourts.net/CA/COADockets/CaseDetails.aspx?cn=2018CA001270


21 11/21/2019 ORDER ON COURT'S OWN MOTION JUDGE SHEA NICKELL WAS RECENTLY ELECTED TO SUPREME COURT. JUDGE JONATHAN SPALDING WILL BE SUBSTITUTING AS PRESIDING JUDGE AND CHIEF JUDGE DENISE CLAYTON AS ASSOCIATE JUDGE.

Judge Spalding comes to the court after 20 years in the private, general practice of law based out of Lebanon. Judge Spalding is a 1995 graduate of Campbellsville College and a 1998 graduate of the University of Louisville Brandeis School of Law.

Does not appear to have any relationship with the University of Kentucky.

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Dan Noonan
12/4/2019 03:15:55 am

HAPPY BIRTHDAY DR. KEARNEY!!!!

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Save Dr Ryan
12/6/2019 01:30:07 pm

Members of Our Campus Community,

Recently, a federal court dismissed a lawsuit filed by Associate Professor Buck Ryan against a number of University of Kentucky officials. Professor Ryan claimed his rights were violated when the University initiated proceedings to fire him based on findings of misconduct. The federal court found his suit baseless.

Professor Ryan has now sued our University and our Title IX Coordinator in state court. This suit, which also is without merit, claims his rights were violated when the University’s Office of Institutional Equity and Equal Opportunity investigated multiple student complaints. In an unconscionable effort to intimidate, Professor Ryan also has sued one of our students who bravely came forward.

We will not allow a member of our community to be intimidated. In addition to defending our University and Title IX Coordinator, we will be paying for our student’s defense.

Every member of our community must be able to seek assistance without fear of retaliation. Reporting behavior that is perceived as threatening, unwanted, or harassing is essential to the safety and security of our campus.

You can learn more about reporting and services available at these links: https://www.uky.edu/eeo/; https://www.uky.edu/vipcenter/content/campus-resources.


Eli Capilouto

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Dan Noonan
12/8/2019 04:30:18 pm

Thanks for your post Save Dr Ryan. For those unfamiliar with this case I refer you back to the 5/19/2018 post and comments "UK In The News", and the 5/26/2018 post and comments "Censorship Of University Faculty".

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Whats going on here?
12/8/2019 03:29:13 pm

H. RETIREMENTS

Kearney, Paul A., College of Medicine, Professor (with tenure), Surgery, after
31 years and 3 months of consecutive service, under AR 3:1, Section
VIII.B, effective 10/15/19.

https://www.uky.edu/trustees/sites/www.uky.edu.trustees/files/PR%202%20December%2010%2C%202019%20Combined.pdf

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Dan Noonan
12/8/2019 04:39:55 pm

Thanks for your post "What's going on here". Yes, Dr. Kearney is of retirement age and is officially retiring from the university. I can tell him from personal experience, "retirement is totally underrated". I have no information as to the impact this might have on his court case, but truly wish him all the best in his new life "post UK vendetta".

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