November 14, 2017

In whistleblower suit, UNM lawyers focus on key meeting about alleged rape

The sixth day of a trial in a whistleblower lawsuit against the University of New Mexico Hospital featured former and current hospital employees testifying about when former UNM resident Dr. Cynthia Herald told her bosses a colleague raped her and how her supervisors  treated her afterwards.

Neither side disputes that in September 2009, a few months after the alleged attack, Herald met with her supervisors and one woman tasked with taking notes. But neither side agrees what was said at the meeting.

That meeting is a key event.

Herald’s story about being kicked out of the residency program hinges on that meeting. During that meeting more than eight years ago, Herald said, the school’s then-Dean of Graduate Medical Education Dr. David Sklar slammed a stack of papers on the table and verbally expressed his concern for keeping the matter quiet as to not tarnish the medical school’s reputation.

Sklar testified that he did not recall saying anything about keeping the matter quiet. Instead, Sklar said, he went out of his way to make sure he and his colleagues were supportive of Herald, offering her counseling and encouraging her to file a police report.

“I explained to her that with a police report, they would be able to gather information and that they would be able to pursue some of the details of what happened,” Sklar said.

All the jury has to go on, however, are scribbled notes from Herald on a single sheet sheet of paper from a medical note pad.

Herald’s lawyer, Lisa Curtis, asked Sklar about if the notes taken by a hospital employee that day were  destroyed.

“I believe they were,” Sklar replied.

Later in the day, Kymbra Williams, a program coordinator for the school’s Graduate Medical Education department testified that a senior program manager asked her to attend the meeting and take notes. She said she didn’t remember specifics of what was said but that she remembers the tone of the meeting.

“It was civil and everyone wanted to help Dr. Herald,” Williams said.

When asked what she did with the meeting notes, Williams said she shredded them like most everything else that ends up on her desk.

“Over time, everything that I have is shredded because it starts building on my desk,” Williams said.

Herald testified earlier in the trial that her residency bosses asked specific and personal details about the alleged attack. Sklar, on the other hand, said Herald volunteered specifics after he asked her what qualified as rape.

“I asked her to explain what she meant by rape,” Sklar said. “People use that term in many different ways.”

Sklar testified that he decided to remove Herald from the program because she made potentially fatal mistakes in the operating room. He also said she had a prescription drug problem and lacked the ability  to take responsibility and called her “dishonest.”

“She put lives at risk in the operating room,” Sklar said. “Second, was that she lied and did not admit to the addiction problem she had with benzodiazepines.”

According to both her lawyers and her own testimony, Herald had legal prescriptions for Ativan, a benzodiazepine often used to combat anxiety, and Ambien, a sleep aid. Sklar claimed Herald showed signs of impairment so he sent her to get a drug test. Sklar said he subsequently checked Herald’s prescription records and found in addition to a prescription from out of state, she was also prescribed benzodiazepine from two separate residents at UNMH, which Sklar testified was against hospital policy. In her earlier testimony, Herald admitted to getting prescriptions from her peers, calling the practice a “curbside consultation.”

The trial is expected to continue through the week. If the 14-person jury decides in Herald’s favor UNM could be forced to reinstate her into the residency program and pay out the salary she would have received had she not been fired.