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Update of the Dr. Kearney Vs. UK Lawsuit

10/21/2016

4 Comments

 
Once again, for those new to this blog site, at present there are 31 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 within 24 hours. Finally, to understand the development of the blog it is best to read it from the bottom post (Dr. Paul Kearney Case) up. One point of note here, to read the earliest posts you have to click on the word "<<Previous" at the very bottom of the posts available.

Just to keep the blog going I thought I would add this update on the Dr. Kearney court case. As I have mentioned in previous posts, the case is at the gathering of information stage, which includes taking depositions from key figures in the events that lead to Dr. Kearney’s loss of all of his physician rights and all of his tenured professor rights, as well as his expulsion from the university.
 
Passed on to me through email were two public record documents that highlight the deposition interviews of Jay Blanton, Executive Director of Public Relations and Marketing at the University of Kentucky, and Sarah Bentley.
 
Jay Blanton Deposition: My best guess is that the Jay Blanton deposition was requested because he served as the university’s spokesperson in the Herald Leader newspaper article that discussed the university’s rationale for the death sentence meted out to Dr. Kearney by the Medical Staff Executive Committee. That Herald Leader article can be found here:
http://www.kentucky.com/news/local/education/article42611577.html
 
                                                                      From:
                                             COMMONWEALTH OF KENTUCKY
                                                   FAYETTE CIRCUIT COURT
                                                           DIVISION NO. III
                                                CIVIL ACTION NO. 15-CI-551
 
                                Paul Kearney, M.D. vs University of Kentucky
 
                            Deposition of Jay Blanton, Executive Director of
                                           Public Relations and Marketing
 
                                                    September 12, 2016
 
 
Q So all information you had about the disciplinary process had to come from sources other than yourself?
A Yes, sir.
Q One of those sources was general counsel; correct?
A Yes, sir.
 
 
Q So when you put that phrase out to the press, "Unfit for clinical duty," who gave you that information? [...] Prior to your release of that statement to the press, who did you pass it in front of for approval?
[…]
A I had approval to make – provide that general sentiment, certainly. I don't know if they -- the two words I had approval for, but that sentiment I had approval for.
Q Who did you obtain that approval from?[...]
A I don't recall the specific conversation, sir, but I'm sure I talked to the general counsel.
 
 
Q Go to the next one, "The explicit determination that Dr. Kearney is unfit to perform the duties of a clinician raises significant concerns regarding any interaction with house staff."
A Yes, sir.
Q I take it you got that from general counsel too?
A Yes, sir.
Q The general counsel, and I – this is Mr. Thro?
A Generally speaking, it would be.
 
 
Q … there's also a quote from you, and if you would read that sentence into the record.
A "UK spokesman Jay Blanton said Kearney's interaction with medical employees was being restricted because of possible concerns that might arise from agencies that accredit the hospital."
Q Now, are you familiar with the accreditation process?
A Not intimately.
Q Are you familiar with it at all?
A Not really.
Q Who passed that information on to you that Dr. Kearney's interaction with medical employees was being restricted because of possible accreditation concerns?
A My recollection would be the general counsel's office.
 
 
Q If you'll go on in the statement that you continue to issue on behalf of the University, and if you'll read that next sentence, it begins "The president."
A "The president decided (in consultation with the dean of the college, Chief Medical Officer and the Chair of Surgery) that the University will exercise extraordinary care to avoid any circumstances that might raise questions from our accreditors."
Q From whom did you receive that information?
A I assume the general counsel's office.
 
 
Sarah Bentley Deposition: Ms. Bentley was deposed because she served as the recording secretary for the minutes of the January 29, 2015 and February 5, 2015 Medical Staff Executive Committee meeting at which the decision was made to take away Dr. Kearney’s privileges and expel him from the university.
 
 
                                                                       From:
                                           COMMONWEALTH OF KENTUCKY
                                               FAYETTE CIRCUIT COURT
                                                     DIVISION NO. III
                                            CIVIL ACTION NO. 15-CI-551
 
                              Paul Kearney, M.D. vs University of Kentucky
                         Deposition of SARAH BENTLEY September 12, 2016
 
 
Q I asked you to bring recordings with you today of the Medical Staff Executive Committee meetings in January and February of 2015. Did you bring any recordings? … you brought the January recording and your answer -- you have to say yes or no for the record…
A I e-mailed it to Bryan [Beauman, UK Legal Rep] on Friday afternoon.
 
 
Q On the second page [of the January 29, 2015 minutes] you'll see that Cliff Iler [UK Associate General Counsel Senior] was present at the meeting?
A Yes, sir.
[…]
Q Did Mr. Iler make any comments, if you recall?
A Yes, he did make comments as noted on the second page. He answered questions for the Committee around the process, outlined with the bylaws and the behavioral standards.
[…]
Q If you will read that sentence into the record, please?
A "Foundational information related to the substance of the allegations was presented by Cliff Iler.”
 
Q Is there more on the recording?
A There is always going to be more on the recording. With minutes, commentary is often not captured. And in my minute taking, I will generally always denote any action items or important discussion items, and commentary is not always included in my minutes.
 
 
Q “… the February 5th, 2015 Medical Staff Executive Committee.
  Did you bring that recording?
A No…
 
Q Did anybody tell you not to bring it?
A No.
Q And the reason or reasons why you did not bring it?
A From my recollection, and my additional review, I was not able to find a recording for that meeting.
Q Did a recording exist of that meeting?
A Not that I'm aware of.
Q So that meeting was not recorded?
A No, sir.
Q Despite the fact that you're listed in the minutes as the recorder?
A Yes, sir.
 
 
Q So other than what you've typed up, we don't have any report or record of any questions that were discussed [at the Feb. 5, 2015 meeting], what was told to the Medical Staff Executive Committee; is that correct?
A Yes, sir.
 
_______________________________________________________________
 
I think 2 things become clear from these depositions. The first is that Mr. Blanton is apparently reporting what Professor/Adjunct Instructor/General Council Thro has instructed him to say. The second is that no electronic recording was made of the February 5, 2015 MSEC meeting at which the decisions of Dr. Kearney's innocence or guilt was voted on and his punishment was defined. Either that or the recording was lost, is in hiding or was destroyed.
 
Let’s look a little bit at Mr. Blanton-Thro’s deposition. To begin with, I love the idea that Mr. Blanton had approval to provide a "sentiment" for a meeting he never attended, for a meeting Mr. Thro never attended and for a meeting that the only recording of was a very few superficially written summary notes (https://www.uky.edu/Legal/files/Contracts/MSEC%20Minutes%202%205%2015_Redacted.pdf). Secondly, other than Mr. Blanton-Thro, I have never heard one person even suggest that, “interaction with medical employees was being restricted because of possible concerns that might arise from agencies that accredit the hospital.” Maybe we could find this "sentiment" in the recording for that meeting. Whoops, that recording seems to have disappeared.  On the other hand, I have heard from multiple employees that they were told they couldn't interact with Dr. Kearney because he is a “dangerous person”.  This is even ridiculously implied in the January 29, 2015 meeting minutes (https://www.uky.edu/Legal/files/Contracts/MSEC%20Minutes%201%2029%2015.pdf), wherein it is recorded: 
"
Since the potential of harm to staff and patients remains substantial, on January 26th Dr. Kearney was placed on summary suspension by Dr. Boulanger according to UK Medical Staff Bylaws (section 9.4)" 
Keep in mind, this is the former CMO, Dr. Boulanger, a physician with a long history of personal conflicts with Dr. Kearney. Talk about a conflict of interest, if anyone should have recused himself from this committee it would be him. But no, he, along with undoubtedly the General Council who failed in his original attempt to intimidate Dr. Kearney into leaving, appear to have orchestrated the whole thing. Finally, I think it is important to reiterate that these extreme punitive measures imposed by this MSEC were all instituted in the absence of Dr. Kearney, in the absence of any representative for Dr. Kearney and in the absence of any opportunity for rebuttal of the charges made. The obtuseness of these disciplinary proceedings eventually became very clear when these charges were placed before unbiased judicial bodies. The Fayette Circuit Court, in the James R. Wilson Vs. Paul A. Kearney MD case, "
DISMISSED with prejudice" (see document 7) any wrongdoing with regard to the primary incident that was used as a pretense for the MSEC committee meeting. Then there is the Kentucky Board of Medical Licensure document, wherein after receiving any and all allegations and evidence that the MSEC committee, Dr. Boulanger, Mr. Thro and Mr. Iler could come up with, their judicial body concluded there exists “insufficient evidence of a violation to warrant issuance of a Complaint” against Dr. Kearney. I have to believe that this last one blew the aforementioned accreditation excuse out of the water.

Then there is poor Ms. Bentley, talk about being thrown under the bus. Hmmm, how convenient was it that she was "not able to find a recording for that meeting". One has to ask, if no recording exists who instructed her not to record this February 5, 2015 MSEC meeting? Everyone knows that it is S.O.P. to record these meetings, as is evidenced in the availability of the recording of the January 29, 2015 MSEC meeting. What happened to the recorder in the week between January 29 and February 5? I am surprised that Dr. Kearney’s lawyer did not ask her why she did not record this meeting. Having said that, Ms. Bentley's response of "I was not able to find a recording for that meeting" sounds a lot like “that document does not exist” response often received from the university’s legal office in open records requests. My immediate curiosity is similar to the one I have for these open records requests, “did recorded minutes of this meeting ever at any time exist”, and if not, "WHY"?  

So this miscarriage of justice continues, and with it continues the decline of morale in the hospital, the negative impact on recruitment and retention at all levels and the many lawsuits. There are solutions, but unfortunately it requires a BoT that is in it for more than the basketball tickets, a university president that is in it for more than the ego trip, university lawyers who are willing to place the interests of the university over their personal interests and a hospital administration that is willing to admit it abused its authority and is actually interested in rectifying the situation. I think the Save Dr. Kearney Facebook page illustrates where the vast majority of UK employees and the general public stand on this matter. It is unfortunate that the present university and hospital administrations care so little about justice and public opinion.

4 Comments
Yoda
10/22/2016 02:50:03 pm

These MSEC meetings were nothing more than sanctioning committees. Bentley was probably under orders not to record that meeting. Too many potential incriminating things (lies and half truths) going on.

Furthermore, if you visit the Dr. K FB page you will find a discussion of Zwishenberger and deBeer's deposition. It sounds like they might have lied under oath when they could not produce some large file of documented complaints against Kearney. I guess Zwish claimed deBeer had it and deBeer claimed he doesn't have it, never saw it and doesn't get involved in these administrative matters. Sounds like fun stuff.

Reply
Dan Noonan
10/23/2016 10:39:00 am

Thanks for your comment Yoda. I feel that you are correct in your statement that these MSEC meetings were nothing more than sanctioning meetings. Much of this probably played out in smaller private meetings, and the assembly was simply a formality. They clearly made sure they had no Dr. Kearney advocates present when they tried and convicted him, and they made sure they controlled what was documented as “said at the meeting” by not recording the proceedings and having Ms. Bentley superficially write down what took place. I also feel certain that someone like Dr. Boulanger, ahem, proofread Ms. Bentley’s minutes of these meetings prior to their formalization. Then there is Dr. deBeer who you mentioned claims, like Sgt. Schultz on Hogan’s Heroes, “I know nothing”, in spite of the fact that he is listed as testifying at the February 5, 2015 meeting.

This sanctioning approach reminds me of the BoT meeting I attended wherein they were suppose to go over the charges against Dr. Kearney and decided whether or not to uphold them. Three BoT members listened to 20-minute presentations from a university lawyer and Dr. Kearney’s lawyer. No questions or discussion was allowed. The 3 representatives then recessed for discussions. After 5 minutes they returned and one of them read a typed out lengthy dialog for why they were upholding the MSEC’s decision to revoke Dr. Kearney’s patient and teaching privileges. No further discussion was allowed because they immediately voted to adjourn the meeting. They then got up and left with their bodyguards. It was very clear that this typed out decision was in hand prior to the start of the meeting and that this meeting, like the MSEC meetings, was simply a sanctioning formality. After this experience, I pretty much lost all respect for the BoT, and came to the conclusion that most of them are primarily in it for the ego trip and the basketball tickets.

Reply
El Topo
10/23/2016 05:17:22 am

My recollection is that Kearney initially filed both a wrongful dismissal and a whistleblower retaliation suit and that UK appealed both of these. As a result only the whistleblower retaliation suit is being tried. If that is the case then the focus of team Kearney needs to be on establishing that the motive of UK/UKHC was whstleblower retaliation. Relevant approaches here might be to try to show that procedures were not followed and/or that Kearney was treated differently than other individuals with similar "behavioral problems". However, all of the focus seems to be on the first point but not much if anything seems to be happening to address point 2. It seems to me that a better use of this blog and the Kearney FB page would (instead of going on about what a great guy Kearney is) be to list documented instances of individuals who have done the things Kearney apparently admits to have done (and worse) but that were allowed to continue practicing medicine at UKHC. Having worked there for more than 10 years I know this would not be hard to do.

Reply
Dan Noonan
10/23/2016 11:09:50 am

Thanks for your comment El Topo. I believe you are correct here. Dr. Kearney mentioned that his Whistleblower lawsuit has recently been upgraded to include issues of harassment and retaliation. I know very little about the procedural aspects of a trial of this nature, but I agree that providing documented evidence that the punishment does not fit the crime is important. I am only guessing, but I suspect that they also feel that providing proof that the crime is not what they report it to be (e.g. the missing folder of complaints and perhaps any other contrived or unsupported evidence) will support the contention that the punishment does not fit the crime, and therefore fits better into the contention that this is retaliation. But I agree, there are probably historical comparisons out there that would definitely provide support for the contention that Dr. Kearney is being targeted for reasons beyond what they are claiming.

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