November 17, 2017

Settlement in UNM whistleblower suit involving alleged rape

Andy Lyman

After a contentious trial filled with tears, frustration and sharp warnings from the judge, both parties in a whistleblower lawsuit came to an agreement late Thursday night. The confidential settlement between the University of New Mexico Hospital and a former resident came after almost two weeks of testimony and hours before the jury was set to hear closing arguments.

Former UNMH medical resident Dr. Cynthia Herald sued the school, alleging she was pushed out of the program after she told her bosses she was raped by a male colleague. UNMH attorneys disagreed, saying they removed her from the residency program because she made many possibly fatal mistakes during surgeries, had a prescription drug problem and did not take responsibility for her shortcomings.

Related: See all our stories from this trial

Herald told reporters after the trial she feels “a huge sense of relief” but that the decision to settle was not an easy one.

“It is hard because there is a part of you that just really wants to see it through to the end and go to a jury,” Herald said. “But another part of you just wants resolution and ultimately, I wanted to have resolution to this whole thing.”

In a written statement head of UNMH Dr. Paul Roth tasked school officials with being better about looking into allegations like Herald’s.

“Ensuring the safety and well-being of our patients is a critical priority,” Roth said. “Cases like this demonstrate the need for us also to renew our commitment to timely and appropriately addressing allegations of sexual harassment and sexual assault.”

Herald’s attorneys argued their client suffered a downward spiral at work after supervisors  forced her to continue working with her alleged attacker.

Herald’s lawyer Randi McGinn told NM Political Report that the specifics of the settlement are confidential for six months. Herald originally asked for back pay and to be reinstated to the residency program. It’s unknown if reinstatement is part of the settlement.

McGinn said they arrived at the settlement 11 p.m. Thursday night.

The jury of four women and 10 men heard hours of testimony from both sides over the course of the trial.

The settlement closes the six-year long case, which  goes back to 2011, when Herald first filed a retaliation and whistleblower lawsuit against the school. State District Judge Shannon Bacon ruled in 2012 that Herald could not sue for both retaliation and as a whistleblower. Then, in  2013, a jury decided the school did not retaliate against Herald.

Herald’s lawyers took the whistleblower issue through the appeals process and the New Mexico Supreme Court ruled in 2015 that Herald should have been able to sue for both retaliation and as a whistleblower. The state’s high court sent the case back to Bacon’s jurisdiction.

The trial this month was full of twists and turns, from a juror who failed to disclose he was on probation until seven days into the trial and removed for missing a day and lying to the court, to three different motions for a mistrial. In the last days of the trial Bacon chastised attorneys for both Herald and UNM for cynical comments and “cantankerous” behavior.

The trial ended Friday morning with Bacon thanking and releasing the jury.

“You can tell that your presence here was really important,” Bacon told the jury. “I really appreciate your time and attention.”

Herald said her disposition throughout the more than seven year process was “more down than up” as she heard plenty of negative things said about her through testimony.

“You are squashed, you no longer are yourself,” Herald said. “I’m hoping that now I can go back to being myself, whatever that is.”