Cynthia Herald has tried to be heard since June 2009 when she says a fellow anesthesiology resident at the University of New Mexico School of Medicine raped her, thus initiating a cataclysm of events that torpedoed her career and her life, just as she had feared.
This week, she gets another chance to be heard when her case – not against the accused rapist but the institution she alleges failed to listen or protect her – goes to trial in Albuquerque for a second time.
It has been a long, painful and mostly quiet fight. Herald’s first trial against the University of New Mexico Health Sciences Center in 2013 went largely unnoticed.
She lost that case. But she successfully appealed a previous ruling by state District Judge Shannon Bacon and added tough-as-nails attorney Randi McGinn to her legal team. So Herald, 52, is back to be heard again.
And, yes, maybe it was not easy to hear her at first. Voluminous court documents, depositions and testimony describe how in 2009 she feared the repercussions speaking up would have on her future in the residency program. Her accused rapist, she said, was well-liked, well ahead of her in the program and in a supervisory position.
She told only a few friends, quietly went for a medical exam, hid the photos of the bruises, hid – or tried to hide – the damage done.
She confided in the chief resident, asking that she stop being scheduled to work the same shifts as her accused rapist.
In September 2009, word of her accusations got out to her supervisors – Dr. David Sklar, associate dean for graduate medical education; Dr. James Harding, residency program director; and Dr. John Wills, chairman of the department of anesthesiology – who grilled her on the details of her accusation.
No records of that meeting were kept, no investigation or interview of the accused colleague was conducted, no report was made to law enforcement, and, she says, she was encouraged not to go to police for the sake of the school’s reputation.
In the meeting, she said she asked for medical leave and was denied.
“We find that with these things it is much better to get back on the horse,” she said one of them told her.
So she persisted.
According to her lawsuit, things changed after her meeting with her supervisors. Her once stellar job performance since becoming a resident in June 2008 came under stricter scrutiny, adding to the stress of working long hours with her accused rapist.
At some point, she began taking Ambien for insomnia, other medications for anxiety.
In January 2010, Harding asked her to resign, citing “performance deficiencies and unspecified global problems.”
Instead, she asked again for medical leave, citing a new diagnosis of post-traumatic stress disorder, and was granted a month off.
On the day she was to return to work, she was told her clinical performance was deficient and she would be placed on a three-month period of formal remedial training. That period ended April 2010 with no re-assessment.
On May 4, 2010, several staff members at the hospital reported seeing Herald behaving strangely. She was babbling, confused, forgetful, according to reports. She bumped into things, could not remember patients, placed a patient in danger with her fumbling.
UNM attorneys contend that Herald was removed from her shift and ordered to take a taxi to an off-site laboratory for a drug test but was found wandering the hospital hallways and meddling with a package of medications.
Herald contends she was not given specific information on the lab or how to get there, so she opted for LoboCare, an on-site clinic for UNM employees, and reported the next day that her drug test came back clean other than for her prescription medications.
“I simply just want to learn, to work and to not feel constantly hassled and working within an environment that is hostile to me,” she wrote her supervisors in an email the next day.
But UNM contends she failed to follow orders by not going to the proper lab, refused to cooperate, lied about how many prescriptions she had and who prescribed them and likely had a substance abuse problem.
Herald was terminated from the residency program in June 2010. The man she accused of raping her graduated from the program, was recommended by his UNM supervisors for a pain specialty fellowship.
He is now believed to be a physician at a pain clinic near Austin. He is not named as a defendant in Herald’s lawsuit.
Efforts to seek comment from attorneys on both sides of the case were unsuccessful. But, in the 2013 case, UNM’s attorney Patricia Williams told jurors that the rape allegations were a ruse to hide Herald’s substance abuse problem, which she refused to admit.
Herald’s attorneys had argued that she might never have needed medication had UNM provided a safe work environment, investigated her allegations and focused on removing her accused rapist rather than removing her.
This week, jurors will hear both sides of Herald’s story. In a climate in which women have only recently felt empowered and safe to speak out against powerful men and institutions, maybe this time she will be heard.
UpFront is a front-page news and opinion column. Comment directly to Joline at 823-3603, firstname.lastname@example.org or follow her on Twitter @jolinegkg. Go to www.abqjournal.com/letters/new to submit a letter to the editor.