November 8, 2017

Whistleblower suit against UNM over rape allegation begins

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Andy Lyman

Second Judicial District Court in Albuquerque

A trial involving the University of New Mexico Hospital began Tuesday morning in an Albuquerque district court room with opening statements from both sides and initial witness testimony from former UNM doctors and a risk management expert.

The whistleblower lawsuit filed against UNMH alleges administrators in the school’s medical residency program unlawfully fired Dr. Cynthia Herald after she told her superiors a male resident raped her.

Both sides made their respective cases to the jury of 4 women and 10 men.

Update, Day Two: Medical school dean testifies in whistleblower lawsuit

Herald’s attorney Randi McGinn painted the picture of a female anesthesiologist, in her second year of post-medical school experience, who was “washed out” of her residency program and is now left with a besmirched record, unable to obtain a well-paying job.

McGinn told jurors after Herald reported the rape, medical school administrators began grading Herald’s job performance negatively. At one point, McGinn said, Herald’s supervisors pulled her out of surgery when they suspected she was physically impaired. McGinn told jurors her client seemed intoxicated at the time because she was “hungover from Ativan,” a benzodiazepine often used to combat anxiety. The anxiety, McGinn said, was part of the emotional aftermath of being raped.

According to Herald’s account, after UNMH residency supervisors denied her paid time off to deal with the aftermath of the alleged rape and was overly critical of her job performance, Herald was eventually cut from the residency program.

McGinn told jurors while the male doctor physically assaulted her, UNM impacted her life and career.

“[UNM] took away her dream and they took way her ability to make a living as a doctor,” McGinn said.

Lorna Wiggins, representing UNMH in the trial, told jurors that Herald was not actually the one to first report the rape. Instead, a colleague told officials.

“Dr. Herald never blew the whistle,” Wiggins said.

Wiggins described Herald as someone  who struggled to make it through her first year of clinical work and was justifiably fired for refusing to seek treatment for a prescription drug problem. Wiggins told the jury they would have to decide whether UNMH unlawfully fired Herald and posed the question, “Or did they simply act to protect its patients from a dangerous doctor with an untreated addiction?”

Wiggins told the jury that Herald abused prescription drugs before the alleged rape occurred and further questioned Herald’s decision not to file a police report or even file a lawsuit against the male doctor she said raped her.

“She wanted the university to treat [the male doctor] as a rapist when she was not willing to do so herself,” Wiggins said.

Three different doctors who either supervised or worked with Herald testified for the plaintiff.

Dr. John Ingle, a former resident and current ear nose and throat doctor in Rochester, New York, testified that Herald confided in him that she was raped. Ingle, who was a couple years ahead of Herald in the residency program, said Herald was “prepared” and “meticulous” when preparing for and working in surgery.

“She stood out to me amongst all her colleagues,” Ingle said.

Ingle also testified that he noticed Herald showed up for surgery one day, acting out of character. He said Herald seemed “fatigued” and “sleepy” so he reported her behavior to a nearby nurse, suspecting Herald was intoxicated. Ingle also testified that he suggested to another colleague Herald “self-report” her intoxication in the event she had a drug or alcohol problem. According to court records and opening statements, Herald was sent for a drug test that day and tested positive for benzodiazepines.

McGinn also called Dr. John Wills, who was Herald’s residency program director, as a witness and peppered him with questions about how he and other supervisors dealt with rape allegations that came out in a 2009 meeting with Herald. McGinn’s questions about hospital policy and sexual assault in general were mostly answered in short, “yes” or “no” answers. But Wills did say that he did not report Herald’s claims to authorities because she did not want him to. When asked about how he dealt with the male doctor Herald accused of rape, Wills said the allegation was just that.

“He has some due process rights regarding those allegations,” Wills said.

When McGinn asked if Wills was trying to protect the male doctor’s rights, Wills answered, “We wanted to protect everyone’s due process rights.”

Wills is expected back on the witness stand Wednesday morning for cross examination from UNM’s lawyers.

Earlier in the day, McGinn called Scott Lewis, a national risk management consultant, as a witness and asked him about best practices for educational institutions in dealing with sexual assault cases. Lewis testified that, in his opinion, Herald’s bosses at UNM did not do enough to fully investigate the rape allegation and any investigation should have been conducted by a qualified person, not in the residency program.

“In no world are these the investigators,” Lewis said.

The trial is scheduled to go through the beginning of next week. A handful of other witnesses, including Herald, are expected to take the stand on Tuesday.

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