Wednesday, November 26, 2008

Duke As Plaintiff: Sues Its Insurance Company

Both the N&O and the Herald-Sun are reporting that Duke is suing its insurance company, National Union Fire Insurance Co--who Duke accuses of acting in a manner "willful, wanton, malicious, without justification or excuse." The H-S reports,

Sources close to the case say National Union is refusing to pay because it believes its policy is capped at $5 million for legal expenses and Duke has submitted legal bills -- alone -- of about $11 million to date, and that Duke refuses to accept the $5 million cap.

Duke's demands are considerable: it wants National Union to "advance and/or pay all of Duke’s Defense Costs (as defined in the insurance policies) for the Underlying Claims and the full amount of Duke’s settlement with certain claimants," and "a declaratory judgment (i) that National Union is liable to advance the costs for any future defense of Duke in connection with the Underlying Claims, and (ii) that National Union is liable for any reasonable settlement entered into by Duke in the Underlying Claims and/or any judgment entered against Duke in the Underlying Claims."

A key issue in the case seems to be the role of Duke Hospital (home, of course, of former SANE nurse-in-training Tara Levicy), and the degree to which Levicy's misconduct could or should have been supervised by Duke officials. Duke actually has two insurance carriers--National Union, which insures Duke Hospital, and United Educators Insurance, which insures Duke. The H-S reports that sources say the two companies "are bickering over which company -- if not both -- has the responsibility to pay." National Union's argument appears to be that the wrongdoing was either committed by Duke University employees, or, in the case of Levicy, a failure to supervise by Duke University employees, and therefore it has no responsibility to cover Duke's misconduct.

The H-S comments section featured a telling remark:

When one takes out a homeowner's insurance policy and then sets fire to his home, is the insurance company liable? When one takes out a life insurance policy and then commits suicide, should the insurance company have to pay? As far as I'm concerned, Duke negated its coverage when its administration willfully and purposefully undertook wrong and destructive actions against wrongfully accused students, thus violating its obligation to them. Every single Duke administrator who had a hand in perpetrating this gross injustice, and especially Richard Brodhead, should pay whatever damages are awarded out of his/her own pocket. Of the lacrosse scandal triumvirate of Nifong, Brodhead, and Bob Ashley, only Nifong has gone down. Ashley will, alas, remain unscathed. But Brodhead, however much he has suffered, hasn't yet suffered enough. Perhaps this will at last be the beginning of his end.

It will be interesting, to say the least, to read the insurance company's response to this suit. For now, one obvious effect of the lacrosse case: given that the university hasn't acknowledged any specific errors in its handling of the case, nor made changes designed to prevent a repeat performance in future, I suspect Duke's insurance premiums will be going through the roof.

39 comments:

drew said...

I am an insurance broker in my "real" life. Although I have no direct knowledge of the structure of Duke University's, or DUMC's insurance policies, the type of policy that would be issued to either type of entity would usually provide for a "hard" limit; i.e., no situation where allocated claims expenses (the defense costs) would be covered in their entirety unless and until the indemnity limit (the $5MM mentioned in the article) is breached and paid.

I suspect that the lawyers are trying to conflate the policy issued by National Union (btw, an AIG company) with the more "standard" type of Commercial General Liability policies issued by many insurers. My expectation is that both policies (AIG and UE) are placed on the basis of a large (and I mean LARGE) self-insured retention, with the insurer only obligated to pay once the SIR is exhausted.

Alternatively, if National Union structured the policy with expenses **in addition** to the limit, expect to see National Union laying down their limits **real** soon. If Duke is playing a long, drawn-out defense with AIG's money, you can expect that AIG will remind them of who is in charge of the case. Take my word for it, it is the insurer who runs the case when it is the insurer who is footing the bill.

This distinction is why I suspect that Duke selected its own choice of counsel (AIG would never select a bozo like Gorelick), since (at the time) they were playing with their own chips. Now that the numbers have gotten to AIG's position in the limits stratosphere, AIG will exert its control. AIG will either seek a DJ that the policy is null and void on the basis of Duke's actions and the "Expected or Intended" exclusion, or you'll see a quick settlement, even if AIG is obliged to put up their full limits.

From AIG's perspective, it's better to use what is called the "hammer clause" (if it's my money, I get to determine how it's spent) early in the process than to see your full policy limits pissed away by a bunch of overgrown egos in ill-fitting suits.

Ex-prosecutor said...

This is one of, perhaps, the several more shoes to hit the floor.

Given the potential liability of the two companies, it is not surprising that they are bickering over which, if either, must provide a defense and pay for a judgment.

Because of the claims made in this suit, the companies will have the right to depose Duke officials and employees, from President Brodhead on down. Those should be interesting depositions because, given the stakes, I suspect that the Duke officials will not be treated gently by lawyers for the insurance companies. Often in depositions, lawyers like to see if they can goad a deponent into anger, to gauge how to handle the witness if the case should go to trial.

Most states, as far as I know, make available to an insured a civil action called the wrongful refusal to defend. Such an action is appropriate when an insurance company refuses to defend, although it is clear that the company refuses to do so. Such a claim appears to be the basis for the Duke suit.

One interesting note is the potential punishment to the insurance company-defendant.In my state, a judgment in such a case would be for the insured's costs of defending the original suit, the judgment against the insured in the original suit, and a 25% addition to punish the company for its refusal to abide by the insurance contract.

Duke may use this suit to try and delay the civil rights claims against it. Given the complicated and tortured path of this case, I expect that the insurance case will not be decided anytime soon. Until that resolution, Duke likely will have to fund its own defense in the civil rights lawsuit.

Ex-prosecutor said...

I should have added to my previous post that it's likely the defendant in this case, National Union Insurance, will bring into the case, as an additional defendant, United Educators Insurance. The two of them will both claim that Duke has no additional coverage, or, if it does, that the other company is liable.

Basically, a circular firing squad.

Anonymous said...

At long last, the fun is set to begin. Let the depositions roll!

Anonymous said...

Arrogance breeds contempt. Brodhead, Steel and their cronies have never looked at reality. Glad to hear that their insurers are bringing them back to reality. Maybe the absentee Board of Trustees will get a grip on the merits of their actions.

bill anderson said...

When are the BOT at Duke going to deal with the clowns at the top of that institution? Why did Duke permit Levicy to run wild when they knew she was lying?

Duke's leaders brought this on themselves, and they want all of us to blame the lacrosse players? How about blaming Brodhead, Steel, Levicy, Moneta, and a whole host of other liars and criminals?

K.C., you are right. It all is unbelievable.

Gary Packwood said...

Imagine the level of wordsmithing that will be necessary in this discovery process to explain the on-campus organized CASTRATE-POT-BANGING march and Sam's WANTED POSTERS...after they finish up with Nurse Tara.

Slow Higher Education Suicide -"in situ"

Act in haste, repent in leisure. [Publilius Syrus - 50 B.C.]
::
GP

per said...

this is quite confusing. If Duke hospital has a separate insurance policy from Duke university, then presumably they are different legal entities. Even if there is an overarching legal Duke company.

The liability of duke hospital as a legal entity could be completely different from that of duke university. So i agree that it seems entirely likely that insurance companies would try to dodge all the legal and financial liability that they can.

but I am not quite sure who is being sued; is it an overarching duke company, the hospital and university separately ?

will be interesting legally, and interesting probably means expensive.

per

Jim in San Diego said...

An insurance company will sometimes allow its insured to hire counsel the insured is comfortable with, assuming the counsel is qualified.

Attorneys like Gorelick are not going to be automatically categorized as "bozos". Her kind have quality political contacts and referrals. The in-house evaluation process at an insurance company like AIG could hardly find such an attorney to be unqualified. Gorelick had a name and imprimature prior to being hired by Duke.

That she is a legal bozo from many perspectives would not have disqualified her as the insurance attorney, in my opinion. Of course, we do not have the inside skinny on any of this.

It is appalling that defense legal fees to date are $11 million. I would sure like to review the billings professionally, but my going in opinion is Duke has gotten thoroughly screwed. There is some justice, after all.

If legal fees are $11 million so far, they eventually could be north of $50 million, based on the current rate of over-billing.

It would be common in large cases to see this coming, and settle the case. The insurance company would insist on this, or simply proffer policy limits.

Somebody had to make an affirmative decision not to settle. We also do not know the inside scoop on this issue, but sure would like to.

Duke has resoundingly refused to accept responsibility for its many legal and moral failures. Legal fees are part of the consequences.

The plaintiffs causes of action for violation of federal civil rights laws have, I believe, a "one-way" attorney provision. If plaintiffs prevail, defendants will have to pay the plaintiffs' reasonably legal fees, includint attorneys. If defendants prevail, they do NOT get their legal fees unless a court finds the plaintiffs claims were wholly without merit and malicious.

There will probably be other consequences. The wheels of justice grind slowly, but they do grind.

Jim Peterson

Debrah said...

A Happy Diva Thanksgiving to all!

And a special Diva letter from the H-S today:



Piquant irony

The Nov. 13 column by William Chafe is further evidence that various members of Duke's Gang of 88 will continue to attempt to rehabilitate themselves through the same media outlets in which they were previously shown to be such fools.

As a Barack Obama supporter, it's delightful to see those like Chafe now singing the praises of the President-elect. Wasn't it the "poverty king" John Edwards and Hillary Clinton who previously garnered their support?

I also take great pleasure in mentioning the fact that then-Senator Obama was one of few politicians -- along with North Carolina's Walter Jones -- who early on called for a federal investigation into the violation of the civil rights of the innocent Duke lacrosse players, Reade Seligmann, Collin Finnerty, and David Evans.

Oh, the irony.

The constant political and historical analyses Chafe likes to offer local readers are quite superfluous.

Partisan fair-weather kibitzers should dismiss with the fantasy that the current economic crisis is a result, solely, of the Bush administration.

Trying to sell that story is about as odious as the idea of a group of university professors going after students at the university that employs them without any evidence of guilt.

As a strong leader who wishes to accomplish significant things, Obama will govern from the center.

Salivating relics from the academy who thrive off race-class-gender discord and far-left tactics will have to cool their jets for another day.

A piquant season, indeed!

DEBRAH the Diva
November 27, 2008

af said...

Ah, Wonderland is coming to life.
The plot is definitely thickening and the porridge of Duke is about to be so thick that even 88 degrees of separation will not cool it down.
Discovery may not reveal all. I can only hope that the Steelheads and Boardheads of Duke are held personally accountable for expenses.
Poetic justice for those liberal artists (most of the 88 are AA/Women's Studies/English affiliates). Oh how sweet.
In my wildest dreams, I never thought that the pressure to bear would come from the insurance companies. I guess the arrogance so consumed them that they believed in their heart of hearts (assuming they have one) that the insurance companies would pay all costs no matter what.
WOW!
Separate entities? They haven't wanted to be treated as such in the past. Which one is wanting to disown the other? That is an interesting question.
Anyone want to take a field trip down the rabbit hole?????

Anonymous said...

Almost certainly the attorneys for the insurance company(ies) reviewed the two civil suits filed by the lacrosse players against Duke, including DUMC. The allegations in these suits present strong and detailed arguments that Duke's actions against the lacrosse players were reckless, malicious and willful and that Duke violated various federal and state laws as well as its own policies. Presumably ,these arguments provide the insurance company with strong support for refusing to pay Duke's claims.

Duke,in my opinion, has to vigorously contest the insurance company's refusal to pay. By not contesting, Duke would be tacitly admitting that its behavior against the players was so willfully egregious that it was not covered by its own liability insurance. This would weaken Duke's defense against the civil actions filed by the players.

BN

Anonymous said...

Is Broadhead a Communist?

Jhn1 said...

Much more likely to not renew the existing policy than raise the premiums for the existing policy (just the same as if you got a reckless driving conviction); don't renew the existing policy, but offer a different "high risk" policy with appropriate premiums.
As Levicy's actions might be argued that they took place apart from her duties and responsibilities at work, the Hospital insurance at least has a leg to stand upon.
Not much of one as the hospital was using her in a fashion she was not fully qualified for without more supervision, but at least a fig leaf of sorts.
And any egregious negligence clauses in either policy would also come into play here.

Anonymous said...

Bill Anderson is correct in his comments. The people at the top came within a hair of putting people in prison to save their own asses. They thought nothing of subverting the rule of law for theri own benefit and protection. They are scary . . . as it is scary to know that this is the reality in today's America.

Anonymous said...

I believe Nifong has aptly described Duke's growing self-inflicted predicament: "We're f*cked".

Thank God at least the insurance companies appear willing to hold Duke (Brodhead, G88, et al.) to account for their actions/inactions. Couldn't happen to a more deserving set of ass-clowns.

jamil hussein said...

"If legal fees are $11 million so far, they eventually could be north of $50 million, based on the current rate of over-billing."

I'm cheering for the lawyers here. Hope they can bill north of $100M.

As for why Brodhead and Duke are doing this: It's not their money and in general, it was risk-free decision for them (opposing narrative based racists gender/race/class hate-mongers is a career dead-ender in academia).

Jungle Jim said...

I am very surprised Duke picked Gorelick to represent them. That woman carries more baggage than a porter at Grand Central Station.

Between 9/11 and the corruption at Fannie Mae, you would be hard-pressed to find a more unsuitable attorney. I was even more amazed to hear rumors that Obama was considering her for Attorney General. As bad as Holder is, at least Obama has sense enough not to pick Gorelick.

Debrah said...

Oh, my.

I've come to this one late.

The obsession with, and the analyzing of, the fabulous KC dah-ling will go on and on!

Anonymous said...

Well, I got it right for the wrong reason.

In essence, what the insurer is saying is that DUMC committed malpractice, twice.

First, by Tara Levicy and her failure to document and by her false statements.

And second, by failing to correct Levicy's negligence, especially, and critically, in light of the fact that they had every opportunity and every reason to do so.

That is presuming, that DU and DUMC were good faith actors; but as the history suggests, they were not.

And yes, there will be no hiding from the depositions of the insurance companies. As part of one's obligation as a policy holder one agrees a priori to provide any and all information to the insurer.

DU will be forced now to settle the civil complaint. There may be some time for the BOT to chew on their options, but there aren't many, and none better than surrendering to the demands of the plaintiffs in the civil suit.

Otherwise, they will be forced to proceed with their litigation against their insurer which will lead to the ugly, ugly, truth of their actions.

Sucks to be them.

Just sayin'.

river rat said...

Is there not one soul in a decision making position at Duke who can bring a halt to the bleeding of "donor money"?

Rather that throw Brodhead and the "88" to the wolves who deserve the meal - they're going to flush 10's of millions of donor gifts to the University into the pockets of smarmy lawyers?

Instead of using those dollars to educate they are being used to defend the indefensible?

Only in Academia are the rules of a sane and responsible society ignored!

I hope the civil juries are disturbed sufficiently by the behavior of those at Duke and Durham to deal them a financial blow that will shock all of academia into sanity --- and bury the Afro-centric "studies" cabal in the dung heap from which they emerged.

KC Johnson said...

To the 12.09:

I've noticed that Prof. Zimmerman often employs expletives in his posts about me.

He did, however, raise one substantive issue in his very long post: "In that one, the crusading logic is even more obviously in the drivers seat, especially in the rewrite, which panders to DIW loyalists with low-ball rhetoric that Johnson couldn’t get away with on Cliopatria (I hope)."

I thought I would explain why the Cliopatria post differed from the DIW post. The differences between the two posts were marginal--and the differences between the arguments of the two posts insignificant. The "rewrite" was associated with neither "low-brow" (as in, the use of expletives in a post) nor "high-brow" rhetoric but with my decision to pay more attention in the DIW post to Wahneema Lubiano and other members of the Group of 88.

Since DIW is a blog about the lacrosse case and its effects, it seemed reasonable to me to focus on the lacrosse case angle of the petition in my DIW post. This approach placed a spotlight on the peculiar definition of due process presented by Prof. Lubiano, and so I can see where my decision upset Prof. Zimmerman, who has ferociously defended Prof. Lubiano for several months. I apologize for causing him any consternation.

Debrah said...

Zimmerman comes off as quite comical when casting aspersions on Wonderland and its commentary.

He seems almost tethered to scatology, himself, and often employs it on his blog.

Even the titles of his posts have had profanity standing out in bold relief.

It's outrageous that he would bring up such an issue of "low-brow" commentary because his blog is often Exhibit A.

And Zimmerman also muzzles free speech!

KC has been tolerant of most all commentary here and from both sides of the aisle.

Especially of those who most often disagree with him.

However, you can be sure that he doesn't give the verbal middle finger to a detractor the way Zimmerman is fond of doing.

In fact, KC has always been an example of decorum......to the breaking point, really.

I wish he would get risque once and a while....just to shock a few people!

LIS!

f1guyus said...

I'm still curious as to the endowment funds. My limited experience at a local university is that endowment donations generally have strings attached. They (the donations) are given for specific purposes (a chair in a department, a building, a lab, etc.) and the money must be used for that purpose or returned to the donor. Any comments?

jamil hussein said...

Talk about double standards in Durham. In this case, there was an actual rape.

Gattis rape suspect jailed this month


" man charged with the second-degree rape of a then-freshman in February 2007 was arrested on the same charges Nov. 14.

Michael Burch, a Durham resident, is currently being held in Durham County Jail on $1.85 million bond, Durham Police Department clerks said.

Burch also faces charges of first-degree sexual offense and felony aiding and abetting, for crimes which allegedly occurred June 21, said Candy Clark, an administrative assistant in the Durham County District Attorney's Office. He is scheduled to appear in Criminal District Court Dec. 8 before a grand jury.

Burch, who is not a Duke student, was arrested in February 2007 for allegedly raping a then-18-year-old freshman at around 3 a.m. Feb. 11, 2007 at an off-campus party at 405 Gattis St. The party was hosted by members of Phi Beta Sigma Fraternity, Inc., and police had found marijuana, cocaine and Oxycontin in the house.

Burch was held on a $50,000 bond and released from jail the same day. "

Anonymous said...

1. Carrier selected cousnel would have been experienced and have normal not highest market billable rates to stretch out the policy.

Gorelick's are probably excessive and she's not an experienced defense lawyer but a politico hired by a firm to attract business.

Would not surprise me to see over 15 lawyers on the case at her firm, all diffusing knowledge while bumping into each other, conferencing, writing memos and doing duplicative work that has sent the bill sky high for only marginal productivity.

The result: a senior lawyer handling a case that way will need endless "priming" memos to do even a mediocre job.

A more experienced firm would have held the core lawyers at a small number who would grown in knowledge over time.

2. By suing the carriers, Duke has probably lost the chance to "stay" (freeze discovery) in their case against the carriers while the main case proceeds. Its likely that the depositions will indeed go forward.

3. The article didn't seem to say that the carriers were not paying--simply bickering over which has the greater % responsibility. If they're paying, I bet they are protected from any bad faith claims. Now Duke faces the end of the policies. Payment from its own funds. More fees to sue the carriers.

Expect "the failure of the carriers to defend made us settle."

4. Duke's time to shift responsibility to everyone else is running out.

5. Will the players agree to "confidentiality" in return for enough money? Or will they frustrate Duke's seeming interest in burying it all and insist on no secret settlement?

Delicious!

Thank you KC for continuing to monitor this case.

Anonymous said...

Well I read Prof. Zimmerman's blog and happened to listen to some of his "strongest" compositions, "The Sun Rising" and "The Flight Attendant". In his comments about the former he uses a comparison to Coltrane ? After listening to his tortured "music", somehow I find it hard to take anything he writes in his blog very seriously. Suggest you do the same KC.

At least Coltrane could play Slonimsky's scales.

Anonymous said...

Duke stated in its filing that it notified the insurance company on March 30, 2006. This date becomes very relevant. The attorneys for the players in the civil suits will have a strong argument that this was the date that Duke first believed that it could face future litigation from its actions. As such, Duke would have been required to preserve all related documents ( letters, e-mails etc.) from March 30,2006 forward.

Anonymous said...

Duke's endowment is large enough that I am sure that it can find plenty of unrestricted funds to cover all of it's mistakes.

Anonymous said...

My deepest, most sincere hope is that the plaintiffs will resist any and all settlement offers. Duke should burn in Hell for what they did to these young men. Nothing good will come from this Frame unless and until the truth--the full unvarnished and complete truth--emerges. After that, heads must immediately roll, beginning with Steel and Brodhead. Finally, Duke (and the City of Durham) should pay through their teeth. Put them all into Chpt. 11, all of them.

Anonymous said...

Thanks, I suspected as much. Reason I asked was an incident some years ago when a local university tried to divert a donation from a chair in a department to "operating expenses"
Family foundation politely asked for their money back, university refused, whole bunch of lawyers showed up. Family got money back.

Jhn1 said...

Are the depositions between the insurance companies and Duke and the various subsidiaries, subject to discovery?

Duke was (is?) stringing things out to pass the statute of limitations to other (less) damaged parties, all white (other than lacrosse) male athletes and all white male students.
Group of 88 were not the only faculty openly treating all white males as unindicted co-rapists.
Class 1) was the 3 charges students
Class 2) was the other lacrosse players (Devon Sherwood definitely got splatter even if he is black)
Class 3) white male Duke athletes other than lacrosse.
Class 4) white male high school athletes now attending Duke.
Class 5) white males with athletic bodies.
Class 6) all white males attending Duke.
Different 88 supporting faculty members "drew the line" at different levels, and some differentiated between classes.

Duke isn't going to settle until the statute of limitations has passed, but but the aggravating behavior was still going on when AG Cooper exonerated Seligmann, Finnerty, and Evans.
And arguably afterwards.

There will reach a point of diminishing provable actions against the other 4 classes and their passing past filing dates for lawsuits.
At that point, only Duke egos will prevent settling the suit.

I expect it to go to trial if the entire Duke Board of Trustees isn't replaced.
It is their egos, it is their reputations (such as they are), and it isn't their money.

The saddest part is if Brodhead had come down hard on the faculty when the first blatant disproof (bank video) in the case happened, and threatened (and followed through on) disciplinary actions against faculty who didn't withhold actions until a trial...

Anonymous said...

Instead of using those dollars to educate they are being used to defend the indefensible?


Why reinforce failure?

V/r

Col M

Anonymous said...

KC, Thanks for the continuing coverage. It is hard to believe it could keep being so incredible, life is stranger than fiction. This followed by the recent responses by the school, and G88 over the 2nd rape of a student by a non-student African American is particularly telling. I hope all future students think hard before they decide if Duke is the place for them. I'm so glad my kids don't have the shame of saying they went to Duke. It's outrageous and disgusting what has been allowed to continue to go on there. I hope the insurance companies prevail.A sense of fairness and regret has never been there at Duke. I hope the three young men whose lives they almost ruined have continued to put Duke behind them.I hope they got their settlement in cold hard cash upfront.I look forward to hearing about Durham's pay up as well.

qa said...

Re: Carolyn’s Dec 1 2008, 10.33 [LIESTOPPER'S "Duke sues insurer"] comments:

Not only did Duke have a duty to talk to Dr. Manley, it publically states in the Duke GME Trainee Manual 2006 [see 5. below], Duke “assures” that each trainee physician, such as Dr.Manly, is supervised by a privileged member of DUMC’s medical staff:

“[Therefore] the medical staff assures that each participant in a professional graduate medical education program is supervised in his/her patient care responsibilities by a member of the medical staff who has been granted clinical privileges through the medical staff process.”

1. Upon my information and belief Dr. Julie Manly was still an Emergency Medicine Trainee on March 14th, 2006 [See page 58, Duke GME Trainee Manual 2006]:

"Trainee: A physician who participates in an approved graduate medical education (GME) program. The term includes interns, residents, and fellows in GME programs approved by the Duke Institutional Committee on Graduate Medical Education".

The Emergency Medicine Training Program, in which Dr. Manley was then a participant, is such a GME program.

This is a standard requirement of he Accreditation Council for Graduate Medical Education” [ACGME], not peculiar to Duke, but conforms to longstanding National Policies and definitions re Trainees, Attending Physicians, and Supervision of Trainees.


Attending Physicians have “clinical privileges” [ the authority to independently perform specified diagnostic, or therapeutic patient procedures ]. Sexual Assault Diagnosis and Therapy would be an example of such patient procedures.

Such clinical privileges are granted only after formal application from a candidate for such privilege, supported by documented recommendations from senior supervisors. It is a drawn-out, time-consuming process.

In Health Care Organizations accredited by JCAHO [Joint Commission on Healthcare Organizations], such as DUMC, the authority to grant such clinical privileges is reserved to the organization’s Governing Body. Individuals do not have that granting authority except sometimes temporarily in a true emergency, in which case an immediate formal inquiry is required. Trainees do not have independent “clinical privileges, as defined above.

I very much doubt, under those standards, together with those of the Duke GME Manual, that Dr.Manly, then still a Trainee, had the authority necessary to independently perform such of the Sexual Assault evaluation procedure she nevertheless did perform.

2. Longstanding National Trainee policies in general, and Duke’s written policies in particular required that Dr. Manly have a designated Attending Physician supervisor. That Attending Physician supervisor was required to attest to verification and agreement with Dr. Manly’s findings, and both to review and to co-sign Dr. Manly’s History and Physical findings within 24 hours [ see page 59, Duke GME Trainee Manual ].

3. Dr. Manly knew, or ought to have known, all of this on March 14th, 2006. That may to some degree explain, and even justify her subsequent silence and reticence; public acknowledgment of her own provision of this medical service without the required supervision would have created immediate major problems for both herself, and DUMC.

4. I have not seen the Medical Records re Ms. Magnum but I believe that the Plaintiff’s Lawyers have seen them and therefore that they know what designated Attending Physician supervisors, if any, were involved. Dr. Manly is already listed as a defendant and I would expect such Attending Physicians supervisors to be listed as co-defendants. Because, apparently, no such Attending Physicians are so listed I assume that none were involved. One of the Complaints specifies failure to supervise Dr.Manly.

5. Such lack of involvement was contrary to DUMC’s own stated policy
“Therefore the medical staff assures that each participant in a professional graduate medical education program is supervised in his/her patient care responsibilities by a member of the medical staff who has been granted clinical privileges through the medical staff process.” from the context “Attending” medical staff is implied - see pages 58 & 59, Duke GME Trainee Manual 2006

6. The lack of specific reference to this in some Complaints may be covered by the general allegation of failure to supervise, and additionally may be a legal tactical decision, such as a decision not to unnecessarily complicate an already complicated series of allegations, especially given the assertion, and presumably reliance, in the Ekstrand Complaint, that “Dr. Manly had performed many rape examinations in the past”.

7. 3rd-party insurers can successfully demand-back money paid for medical services provided by unsupervised trainees. Such insurers, including Medicare, have recouped millions of dollars in cases of wide-spread intra-institutional failure to supervise trainees. That is one of the reasons why discovery would be so valuable to the public in this case, and why Discovery-Prevention could be so valuable to a defendant medical center in which the provision of medical services by unsupervised trainees is actually a wide-spread problem. Nationally, in my knowledge and experience, it has been widespread.

Discovery-prevention is so valuable to Duke not only for the latter reason, but also to minimize the continuing damage to it’s reputation. Settling the Evans, et al. Lawsuit may have satisfied the immediate needs of those plaintiffs but the accompanying stipulation not to sue Duke employees, was worth far, far more to Duke. The posted comment wryly noting that the apparent $18M payment in the Evans, et al. Lawsuit represented the most expensive Sexual Assault examination in history, overlooks the fact that for Duke it was a bargain.

9. Dr.Manly’s conduct of Crystal Mangum’s examination did produce Rape-Kit samples which, after the suppressed results of their analysis eventually became public, among other findings, lead to the N.C. Attorney General’s declaration, on April 11th, 2007, more than a year later, that the students had been fraudulently accused, and that they were innocent.

The DNA samples were ultimately key to the students’ exoneration.

However, that said, in other respects Dr.Manly’s performance, in my informed opinion, was substandard, and would never have been endorsed by a properly designated Attending Physician Supervisor:

a. Her use of the word “edema” seems inappropriate, and comments previously posted, have even characterized the phrase “diffuse edema in the vaginal walls’ as “meaningless”[5/2/07 6:23 Comment to KC’s Levicy Exam thread : “I am a gynecologist with 40 years experience ...The vaginal edema comments are meaningless....”].

The word “edema’ is not a $64 synonym for any “swelling.” “Edema” refers specifically to swelling caused by abnormal accumulation of fluid in the body tissues or in the body cavities.

There are many causes of swelling other than the accumulation of “fluid”. Dr. Manly provided no objective basis for her implied conclusion that the swelling she perceived was caused by an abnormal accumulation of “fluid” in the vaginal wall, rather than another cause. It would be very sloppy for an Attending Physician Supervisor to that let that stand in such circumstances as the allegations here, especially given Dr. Manly’s belief , later-stated, that at the time Dr.Manly examined her, CMG had been raped a few hours before.

b. The conclusory assumption that the “whitish fluid “ that Dr. Manly apparently noted mentally, but did not record in her report, was semen is incompetent. Dr. Manly had a duty to sample her patient’s “fluid” and send it to the Pathology Department for analyses , including microscopic inspection and microbiological analysis, including bacterial, fungal, and seminal. If it was a yeast, as Dr.Manly belatedly included in her differential diagnosis, or other treatable condition, this could have been established that day, almost immediately, and appropriate treatment prescribed.

It is my understanding that semen and vaginal yeast “fluid” are “whitish fluids” but look different, and should not be confused with each other.

c. Dr. Manly’s report, apparently, does not explain why, in view of CMG’s complaints of intolerable pain/tenderness, the pain/tenderness was not treated with pain-killers. Furthermore, had pain-killers been effective the procedure should have been completed successfully, instead of being abandoned and left incomplete. Of course, if Dr. Manly thought such complaints might have been false her report should so indicate.

d. There are probably a number of affirmative negative statements e.g. “No evidence of blunt force trauma “ that would have been indicated given the allegations contained in the History.

e. Dr.Manly abnegated her duty to write, herself, her own History and Physical Findings.

No competent Attending Physician Supervisor would have approved this deficient performance. Apart from the appropriately-conducted DNA sampling, this procedure was otherwise not a competently performed procedure. This belies statements that “...Manly had performed numerous rape exams”, with their implied message that they were competently performed


Finally, compounding Dr. Manly’s unsupervised deficiencies, Ms Levicy is allowed to insert herself. As a SANE, Ms.Levicy was a pathetically inexperienced amateur. Her self-assurance, unwarranted by her actual knowledge and experience, together with their own misguided zealotry, persuaded her supervisors, and others, to allow her to pose, under the mantle of DUMC, as an authority on matters for which she was unqualified.

Without DUMC’s failure of trainee-supervision the hoax/frame may have been nipped-in-the-bud. Instead, Levicy, through inexperience and malice [making oral and written statements either knowing them to be false or in reckless disregard of their truth or falsity], and Manly, probably through inexperience alone, were integral parts of a tragic fiasco.

If enough of the allegations in the pending Lawsuits survive the motions to dismiss them, as I believe they will, and when Duke can no longer fend-off the formal discovery of the facts it desperately needs to remain formally undiscovered, a classic story will unfold.

Anonymous said...

Not certain about this but normally an insurance company's limit is reached on a per incident basis. Duke may be trying to make the case that each suit or each defendant is a different and separate case in order to have the company pay up to $5 million per incident or per plaintiff. The insurance company may consider the entire mess one incident, which might explain their position that Duke reached the limits of payment of the policy.

Anonymous said...

Didn't Duke Medical run into problems a few years back over its accreditation? It seems to me that Duke Medical was put on probation until it resolved some issues, under pain of revocation of its credentials.

Anonymous said...

Yep, Duke lost NIH approval for research on human subjects for about a week in 1999 -- disrupting 2,000 studies. At issue was proper verification of patients' informed consent and safety in these studies. Details at Chronicle of Higher Education, May 28, 1999.

Anonymous said...

Duke insurer in the news. From Newsweek, March 18, 2009:


[b]The Next AIG Scandal?[b]

by Michael Hirsch

-snip-

The annual report of one major AIG subsidiary, American Home Assurance, shows that it owes $25 billion to another AIG affiliate, [b]National Union Fire[/b], Gober maintains.

But American has only $22 billion of total invested assets on its balance sheet, he says, and it has issued another $22 billion in guarantees to the other companies.

"The American Home assets and liquidity raise serious questions about their ability to make good on their promise to [b]National Union Fire[/b]," says Gober, who has a consulting business devoted to protecting policyholders.

Gober says there are numerous other examples of "cooked books" between AIG subsidiaries. Based on the state insurance regulators' own reports detailing unanswered questions, the tally in losses could be hundreds of billions of dollars more than AIG is now acknowledging.

-snip-

http://www.newsweek.com/id/189917