Slap: University of Kentucky lost big in bid to keep records secret
I am being blocked on a very basic public records request from a major public institution. I'll write more about it as it progresses, but the struggle to get records that are regularly made public and posted on a public website reminded me of the fight over surgical death rates at a public hospital last year.
A year ago this month, I reported on how the University of Kentucky sued a reporter it had on its payroll because the reporter asked for surgical death rates. The university lost the court fight, and it's worth noting it also lost in four other ways: time costs, reputational costs to the hospital, reputational costs to the surgeon involved, and actual monetary costs.
Wasted time. This all started in December 2012. Dr. Mark Plunkett, a prominent surgeon at Kentucky Children’s Hospital, which is run by the University of Kentucky, stopped performing cardiothoracic surgeries (surgeries on organs inside the chest). Brenna Angel, then a reporter at the University of Kentucky’s WUKY-FM 91.3 station in Lexington, asked for some basic information about the program for a story she broke that month. She wrote:
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.
The hospital could have released the records then and explained what was going on. Instead, it fought Angel’s request and took the unusual step of suing her to block her request. The state’s attorney general declared that the University of Kentucky had violated the state’s open records act, but the university kept on fighting. It wasn’t until CNN’s Elizabeth Cohen wrote about the story in August 2013 that the university changed course. Kind of. It released the data, but it never did explain what prompted it to close its pediatric cardiothoracic surgery program. All that time wasted and parents still aren’t closer to understanding why or even if their children were worse off at the hospital than elsewhere.
Self-inflicted wounds. All those months spent attacking a reporter made the university look like it was hiding something awful. Even if it wasn’t. The released mortality rates show that the death rates in the pediatric cardiothoracic surgery program were higher than the national average and trending higher still, but we also are talking about a program with very few surgeries relative to much larger programs nationally. Here’s a look at the hospital’s year-by-year breakdown on mortality rates for pediatric cardiothoracic surgery patients, provided by the Lexington Herald-Leader:
2008 – 4.5%
2009 – 6.2%
2010 – 5.2%
2011 – 5.7%
2012 – 7.1%
Was it really worth fighting to keep 7.1% secret? There were very few reporters writing about this story before the lawsuit against Angel. The fact that the hospital sued sent off alarm bells, and people from everywhere responded. Here’s how the editorial board in Grayson, Kentucky’s The Journal-Times summed it up:
At the time, UK had sued a reporter from its own public radio station, WUKY, rather than abide by an opinion from the Attorney General’s office that is should release information requested by WUKY’s Brenna Angel under the state open records law. But now that problem has emerged in the national media with a lead story last weekend on CNN about the deaths of infants following surgery at UK. As it did in May, the university chose not to be transparent about a high-profile program that was shut down last year – without explanation – at its medical center.
Casting a cloud over a surgeon. There’s still so little known about what happened at Kentucky Children’s Hospital that it begs the question of whether the surgeon at the center of the controversy was also a victim here. Dr. Plunkett tried to leave the hospital and go to the University of Florida, but that move was held up by the controversy. He finally did get a faculty appointment there, but before he could officially start, Florida let him go, issuing this statement:
After much consideration, we have decided to end Dr. Mark Plunkett's faculty appointment with the University of Florida, which was scheduled to begin on Sept. 1. We have confidence in Dr. Plunkett's capabilities as a surgeon, and this decision is in no way a reflection of concerns about his surgical skills and abilities as a physician. However, at this time, we feel that it is in the best interests of UF that we part ways.
Plunkett took legal action against the University of Kentucky, and hospital CEO Michael Karpf told the Lexington Herald-Leader’s Linda Blackford: “I have very high regard for Dr Plunkett … We think he is a very good pediatric CT surgeon. I'm not somebody who can explain his reasons for resigning, I never, ever laid any blame on Dr. Plunkett for all this.”
Real money. The hospital already had sunk a lot of costs into Plunkett’s employment, paying him $700,000 a year when he was hired in 2007 from UCLA Medical Center. In October 2013, Blackford revealed that University of Kentucky HealthCare had agreed to pay Dr. Mark Plunkett more than $1 million as part of a settlement. Under the agreement, if Plunkett isn’t able to find a job, the university has to pay him $350,000 a year for two years. If he finds a job that pays him less than $700,000, the university will make up the difference.
There’s an argument to be made, of course, that the payments to Plunkett would have happened anyway, but it’s hard to imagine that the university was in a good bargaining position while it was embroiled in a very public battle over secret death records.
Photo by Triple Tri via Flickr.
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