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Slap: University of Kentucky Sues Its Own Public Radio Reporter

Slap: University of Kentucky Sues Its Own Public Radio Reporter

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If the local children’s hospital that performs heart surgeries on kids has been suspended and is being investigated, the public deserves to know what’s going on.

If the hospital is funded by public dollars, there should not be a fight over letting the public know what’s going on.

And yet, the University of Kentucky is suing Brenna Angel, a reporter at the radio station it owns, WUKY-FM 91.3 in Lexington, to block access to records that, potentially, would let the public know what is going on in the cardiothoracic surgery program at Kentucky Children’s Hospital, which the university also owns. In late 2012, the head of the Kentucky Children’s Hospital cardiothoracic surgery program, Dr. Mark Plunkett abruptly stopped doing surgeries there, and, at some point, the hospital launched an internal review. Angel broke the story in December:

Kentucky Children’s Hospital treats some of the sickest and smallest patients from across central and eastern Kentucky. But for the past several weeks, pediatric heart surgeries have been referred to other hospitals…. Hired by UK in 2007, Dr. Plunkett has an impressive background of clinical training and research. The 52-year-old completed fellowships at Duke University and UCLA and has published dozens of articles in peer-reviewed journals. He was appointed a slew of academic, clinical, and administrative positions, including Associate Professor of Surgery, Chief of Cardiothoracic Surgery, Director of the Pediatric and Congenital Heart Program, and Surgical Director of the Gill Heart Institute. Dr. Plunkett remains on staff at UK with a $700,000 annual salary.

UK denied an open records request for the date of his most recent surgery and his patient mortality rate, citing HIPAA regulations. Records show that the number of children Dr. Plunkett operated on this year is down around 43 percent from two years ago.

Five months later, the public knows very little more about what is going on at Kentucky Children’s Hospital because the University of Kentucky has fought access to records every step of the way. The situation is hard to believe and made even harder to believe by four aggravating circumstances:

Violations of state law. The university is suing Angel even though the state’s attorney general declared that the University of Kentucky had violated the state Open Records act by blocking access to the records. Kentucky's Attorney General Jack Conway wrote:

University of Kentucky violated the Open Records Act by withholding records showing  date of a physician’s last surgery, mortality statistics, and an unspecified program review document under HIPAA, the Patient Safety and Quality Improvement Act of 2005, and KRS 311.377(2); University failed to meet its burden of proof.

Intimidating tactics. The university is suing Angel, and not the radio station – an act that is certain to intimidate other reporters trying to pursue similar stories. The university also is selectively pursuing Angel to the exclusion of other outlets that asked for the exact same records. John Cheves at the Lexington Herald-Leader wrote:

Following the attorney general's ruling in March, the Herald-Leader filed a similar open records request to the pediatric cardiothoracic surgery program. UK denied the newspaper the same records it had denied Angel.

Disregard for public safety. Angel was asking for some very basic records to help people in Kentucky understand how the program operated and what led to its suspension. She asked for, according to the attorney general’s ruling:

1) The number of surgeries performed by Dr. Mark Plunkett in 2010, 2011, and 2012. No patient information is requested.

2) The date of the last surgery performed by Dr. Mark Plunkett.  No patient information is requested.

3) Payments received for surgeries performed by Dr. Mark Plunkett in 2010 and 2011.

4) The mortality rate of pediatric cardiothoracic surgery cases in 2010, 2011, and 2012.

5) Documentation related to any evaluations/accreditation of the pediatric cardiothoracic surgery program from 2010-2012.

This is information that anyone who has had a child undergo surgery at Kentucky Children’s deserves to know, not to mention anyone with a child who has been seen for any other reason there or any of the millions of state and federal taxpayers who contribute to the university.

Gross misuse of federal patient protections. As you can see from the ruling, no information that would identify a single patient is requested – as is most often the case with requests from reporters – and yet the University of Kentucky’s records custodian Bill Swinford wrote to Angel:

We are unable to provide you with the date that Dr. Plunkett performed his last surgery as this is protected by the Health Insurance Portability and Accountability Act of 1996 (‘HIPAA’). HIPAA precludes the University’s disclosure of medical records except as provided by the Privacy Rule.

Conway must have laughed when he read that one. By the end of his ruling, though, he seems just as irritated as we all should be, writing, “Thus, we have consistently held that HIPAA defers to the state Open Records Act and is therefore no obstacle to the public’s access to public records under the Act.”

One can only hope that someone at the University of Kentucky comes to their senses soon.

Image by sochacki.info via Flickr

Here are more of Heisel's posts on the University of Kentucky court case:

Slap: University of Kentucky Has Threatened A Reporter Before

Slap: University Says It Sued Reporter to Protect Patients

Slap: Kentucky Court Case Could Slam Door on Patient Safety Information

Slap: University Fighting Access to Patient Safety Records on All Fronts

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