* Note: To see PDF Documents cited in this post simply click on the underlined segment
Having served 4 years in the military and two of those in a war zone, I felt it might be appropriate on this Memorial Day to further discuss the current war being perpetrated by the university administration against one of its tenured faculty members. I recently received a copy of the latest letter sent from General Council Thro to Dr. Kearney's attorney. This letter is disturbing in many ways but most importantly is that it reflects a University official whose bias and hatred of Dr. Kearney have driven him to not only distort the truth but also seemingly redefine university regulations. He clearly has taken this threat of 'take the deal or we will destroy your career' to heart. A copy of this letter can be found here: Document 1.
It is a long letter but let's spend a little time with it. To begin with, General Council Thro states: “When the Board of Trustees’ University Health Care Committee permanently revoked Dr. Kearney’s clinical privileges at the beginning of the academic year, the University of Kentucky had sufficient grounds to revoke his tenure.” General Council Thro is clearly not familiar with the University's Governing regulations (GR;X KRS 164.230) defining the procedural requirements for this process, nor the basic Administrative Regulations (AR 2:1) regarding tenure.
General Council Thro then states: “The University Health Care Committee chose to reaffirm Dr. Kearney status as a tenured professor but without clinical privileges. In taking this step the University Health Care Committee implicitly expressed an expectation of Dr Kearney developing expertise as a researcher and thus making positive contributions to the University.” To begin with, I believe that General Council Thro is referring to the UK Board of Trustees Health Care Committee not the University Health Care Committee. Furthermore, I am not sure what General Council Thro is reading, but the UK BoT Health Care Committee put no explicit or implicit conditions on his return to campus (see Document 12). Almost immediately General Counsel Thro, “speaking for the President”, wrote an August 28, 2015 directive blocking Dr. Kearney from any instructional activities with resident trainees or medical students (see Document 13). In fact, the committee allegedly convened to develop these restrictions was composed of the very same small group of individuals who promulgated the so-called peer review against Dr. Kearney.
General Council Thro then goes on to erroneously state that Dr. Kearney had “the 2015-2016 academic year to transition to his new role.” For the first two months of the academic year, he was banned from the entire UK campus and forbidden to speak with colleagues, residents, students, and staff. Where and from whom did the authority/order to ban Dr. Kearney from campus come from? Did CMO Boulanger have that authority? This would appear to be a clear violation of Dr. Kearney’s constitutional rights guaranteed in the First, Fourth, and Fourteenth amendments. After reinstatement, it took another 8 weeks to get a serviceable office with a functioning computer and telephone. That is hardly the entire academic year. Each and every step taken against Dr. Kearney by General Council Thro since August 24, 2015 has been in direct contravention to the “Final Action” of the Health Care Committee of the Board of Trustees (see Document 12 again).
Moving on, General Council Thro states in paragraph 3: “Dr. Kearney is providing expert testimony in a medical malpractice case without obtaining the required approvals.” I am not sure what legal case General Council Thro is referring to but Dr. Kearney had been providing expert testimony in a number of cases prior to this disciplinary process. He has a legal and ethical obligation to see these through to completion. The fees associated with these cases have been surrendered to KMSF as required in the Practice Plan agreement. What General Council Thro fails to mention is that for the last thirteen months (beginning in March 2015), the Department of Surgery/UKCOM has denied reimbursement to Dr. Kearney for legitimate business/academic expenses. Consequently these expenses have all come out of his pocket
The next few paragraphs General Council Thro goes on to elaborate the restrictions they have imposed on Dr. Kearney (where he can go, what he can’t do, the impossible things he has to do, his salary reduction to $43,500/yr., and all of the negatives he can conger up) and of course his bad boy behavior. General Council Thro states that the latter are: “examples of Dr. Kearney’s neglect of duty and questionable competence.” All evidence to the contrary, beyond this small vendetta group, Dr. Kearney has never been accused of neglect of duty or incompetence. In fact, the disciplinary process acknowledged his clinical excellence, outstanding surgical skills, and teaching record.
General Council Thro further states: “Dr. Kearney engaged in pervasive abusive and harassing behavior directed at patients, medical students, residents, nurses, and other staff members. In addition to being unethical and contrary to the professional standards, Dr. Kearney’s behavior and attitude contributed to an offensive and unacceptable culture within the Department of Surgery that represents and educational shortcoming requiring immediate correction.” It is clear that General Council Thro, along with the small group of individuals who promulgated the so-called peer review must believe that if you repeat something enough it becomes true. It is clear that these allegations are now approaching the level of slander. So lets look a little closer at the real facts behind General Council Thro’s fictional tale?
1. One patient complaint in 27 years of distinguished service. During the fair hearing, two resident physician eyewitnesses, under oath stated that Dr. Kearney never made the statements the patient alleged. The University then refused to provide legal defense for Dr. Kearney after the patient filed an Outrageous Tort Claim. Records show that the University has provided legal defense for other faculty involved in identical claims. General Council Thro also fails to mention that the patient’s lawsuit against Dr. Kearney has been dismissed with prejudice (see Document 7) further eroding the credibility of this claim. In 27 years, there are no other patient complaints in Dr. Kearney’s personnel file.
2. In 27 years of University Service, Dr. Kearney has one anonymous student complaint from a first-year anatomy lecture in which Dr. Kearney received an ovation at the completion of the lecture. A review of Dr. Kearney personnel file documents a record of outstanding teaching with evaluation scores well above the Department and UKCOM faculty means. Moreover, he has 29 teaching awards in 27 years of Academic practice. There are no other student complaints in Dr. Kearney’s personnel file.
3. In 27 years of distinguished service to the University of Kentucky, Dr. Kearney has no resident complaints in his confidential personnel file. Instead, he has the most teaching awards of any active faculty in the Department of Surgery. This list of awards includes the highest teaching award given to faculty member in the Department of Surgery. Even though Dr. Kearney was banned from campus and forbidden to speak with residents and students, the 2015 surgical resident graduating class bestowed a career teaching award for Dr. Kearney speaking to his mentoring, surgical teaching skills, leadership, and professionalism. One of those graduating residents was the Department Chairman’s daughter!
4. There are no faculty complaints in Dr. Kearney’s Personnel file.
5. Dr. Kearney has twenty-six consecutive outstanding performance evaluations and was promoted on time from Assistant Professor to Associate Professor then Full Professor with Tenure. In his confidential personnel file there is no mention of unprofessional behavior. Contrary to General Council Thro’s unsubstantiated allegations, all of his evaluations document his excellence as a tenured faculty member and physician. Dr. Kearney accumulated more teaching awards than any other Department of Surgery Faculty Member including the highest teaching award. He has more teaching awards than the vast majority of faculty in the College of Medicine. There is a two million dollar Endowed Chair in his name and he has an honorary Doctorate of Science from his undergraduate Alma Mater. With his leadership, the ACS verified level I trauma center has achieved national recognition for teaching, research, and clinical care. He has trained countless students and residents many of whom remain at UK, in the community, or the region. Some have gone on to lead other academic programs in the country. The pattern he has established here at UK is not that of unprofessional behavior but rather that of excellence in every facet of academic surgery.
Finally, contrary to what General Council Thro would wish you to believe, Dr. Kearney has not refused to comply with the University’s request. He has made repeated efforts to develop a plan that is suited to his greatest strengths. Simply put, General Council Thro, “speaking for the President”, has intentionally created an untenable position for Dr. Kearney. Furthermore, Dr. Kearney has submitted yet another plan to the Dean in compliance with General Council Thro’s ultimatum. Lastly, perhaps if General Council Thro had either monitored this blog or conversed with CoM administration, he could have saved his secretary some typing because he would have been aware that Dean de Beer restricted Dr. Kearney’s access to Grand Rounds months ago. The bottom line being that General Council Thro has lost all perspective when it comes to this Dr. Kearney matter and for the good of the university should totally recuse himself from the case.
Before I close this, I must add that what I find very interesting about all of this is that General Council Thro reports to the President of the University and has stated multiple times that he is "speaking for the President". However, the discovery request received from the University through Mr. Beauman as part of the litigation in the Kearney WhistleBlower lawsuit (see Document 2: Interrogatory No. 8) categorically denies the involvement of President Capilouto in any aspect of this. Because the discovery request is a legal document, I can only interpret this to mean that this whole thing is a personal vendetta instituted against Dr. Kearney without the knowledge of the president and in the absence of approval from the University President. Whatever the case, I personally view it to be a sad statement for a public university when an administrator, whether it be a President, a General Council, an EVPHA, a Dean, a Department Chair etc. utilizes his/her capacity at said university to vindictively destroy the career of a tenured faculty member.
Of course there still remains the great mystery of WHY???? Conspiracy theorists might interpret this, along with the open records war and the KMSF battle as further confirmation that they have something they are hiding. As you ponder all of this on Memorial Day, keep in your memory all those that have died for our American rights to a fair trial and justice.