August 24, 2018

UNM pays $800K in settlement, still secretive on other details

Andy Lyman

University of New Mexico Hospital

The University of New Mexico paid out nearly $1 million to a former medical resident who accused medical school administrators of retaliating against her for reporting she was raped by a male resident. NM Political Report obtained the settlement agreement this week, nearly nine months after the case went to trial.

The agreement, obtained by NM Political Report through a public records request, sheds some light on why the school settled with former University of New Mexico Health Sciences Center anesthesiology resident Cynthia Herald. But other specifics, like how much of the $800,000 settlement came from the school and how much from the state or what prompted the school to settle, remain murky at best.

Herald now lives in Michigan, advocating for victims of sexual abuse and hopes to start a psychiatric residency program soon, according to her lawyer, Randi McGinn. But, McGinn said, even $800,000 can’t replace Herald’s dream of being an anesthesiologist.

“Even though it’s a lot of money, it’s not enough for the loss of that dream that she had,” McGinn said.

The payout is the final piece of a nearly decade-old legal battle that began in 2011 when Herald sued UNM and its medical school for dismissing her from the anesthesiology residency program. Herald and her lawyers claimed the dismissal was retaliation for reporting that a male resident in the same program raped her.  A 2013 trial ended with a jury deciding that UNMHSC officials did not retaliate or discriminate against Herald. But a New Mexico Supreme Court ruling that allowed Herald to sue the school under the state’s Whistleblower Protection Act led to a second trial in 2017. The second trial, which lasted for nearly two weeks, ended last November with a settlement just hours before the jury was set to hear closing arguments and begin deliberation.

In accordance with state law, the settlement remained confidential for 180 days. But now, almost nine months later, there are still more questions than answers regarding the internal processes and decisions that led to settling for nearly $1 million.

Keeping quiet

According to state law, any claims or settlements handled by the state’s Risk Management Division must remain confidential for 180 days. But when the time frame starts is open to interpretation.

The settlement agreement stipulated that Herald would be paid 20 days after the agreement was signed. Then-interim UNM President Chaouki Abdallah signed the document on Jan. 17, 2018, making the official payment date Feb. 6, 2018—almost three months after Herald walked out of an Albuquerque court room for the last time. That payment date meant the specifics of the agreement could finally be released Aug. 5—two weeks ago.

But more than a month before the settlement was signed by anyone, one department chair was already blaming her case for a tight budget.

An email from the medical school’s anesthesiology chair, in which he referred to Herald as a “dismissed problem resident,” cited her settlement as a reason staff and faculty would not receive incentive-based bonuses last year.

That email spurred Herald’s other attorney, Lisa Curtis, to send a letter to Abdallah, UNMHSC Chancellor Dr. Paul Roth and UNM Board of Regents President Rob Doughty, III. She alleged that through the email to anesthesiology staff and faculty, UNM violated the very confidentiality clause UNM cited when denying the release of settlement details to NM Political Report.

Records obtained by NM Political Report show that Doughty forwarded Curtis’ letter to Acting Secretary of the state General Services Department, Ned Fuller, with an added comment.

“And… here we go,” Doughty wrote.

Curtis eventually received a letter from GSD, dismissing that she might have a second claim against UNM for the emails regarding Herald and missed bonuses.

A lack of transparency

The agreement between UNM and Herald was seemingly dealt with, in part, by the state Risk Management Division. But it’s still unclear how, why and if the school’s anesthesiology department had to foot any of the bill to pay Herald.

Alex Sanchez, a spokeswoman for UNMHSC told NM Political Report last December that it was “accurate to say in this situation the anesthesiology department’s finances were used in the proceedings of this case.”

NM Political Report also requested settlement documents from the GSD, which oversees the Risk Management Division. A records custodian initially denied the request based on the confidentiality agreement.

NM Political Report filed a follow-up request earlier this month to GSD, but has not received a response.

During the confidentiality period, NM Political Report also requested additional communications regarding the Herald lawsuit. In response, UNM’s Office of University Counsel said it had at least 1,000 pages of responsive records. These were redacted records in an electronic format, however, and UNM suggested it would cost more than $500 to transfer the documents via email or onto a storage device.

The New Mexico Inspection of Public Records Act (IPRA) allows state and municipal agencies to charge requesters the cost of printing public records or the cost to transfer electronic files through email or onto a storage device, including the cost of the storage device.

A records custodian with UNM confirmed that the cost of transferring a single electronic file would cost $0.38 per page. UNM did offer 20 printed pages of NM Political Report’s choice, for free.

Almost all of the records UNM provided were heavily redacted, with UNM citing attorney-client privilege—an exception for public records under IPRA.

But inspection of the heavily redacted records exposed only more questions.

For example, emails from the last day of Herald’s trial, showed that two reporters from the Albuquerque Journal and this reporter all requested a comment from UNM officials regarding the outcome of Herald’s case. In one internal email, a UNMHSC communications staffer conveyed the media request to higher-ups. The response was “STATEMENT:” followed by about three lines of what is now a redacted message. NM Political Report did receive a statement from UNM regarding the outcome of the trial, but it’s unknown if all the reporters received the same statement. If UNM’s legal department incorrectly deemed statements issued to the public as confidential, attorney-client information, that could mean it also redacted other records incorrectly.

NM Political Report filed an IPRA violation complaint with the New Mexico Attorney General’s Office earlier this month against UNM for both the redaction of records and fees associated with electronic records. According to a letter sent to UNM’s Office of University Counsel, by the AG’s office, UNM has until Aug. 31 to respond.

NM Political Report asked UNMHSC, after the complaint was filed, if the redacted statement was the same as the one released last November. Sanchez, the medical school’s spokeswoman, cited the complaint and referred further questions to the AG’s office.

See documents obtained from UNM below

The settlement agreement between UNM and Cynthia Herald
Emails from UNM with redacted public statements
A letter from Lisa Curtis to UNM, after a department chair blamed Herald’s settlement for a lack of bonuses
A letter from GSD to Lisa Curtis, denying her claim