The University of New Mexico may be facing another lawsuit from the former anesthesiology resident who claims she was retaliated against and terminated after reporting that another resident raped her.
UNM in November agreed to pay an undisclosed sum to settle its case with Cynthia Herald. But Herald’s attorneys have signaled their intent to sue again after emails among UNM faculty surfaced this week that they say violated the settlement’s confidentiality terms and defamed Herald.
In one of them, Dr. Hugh B. Martin, UNM anesthesiology department chair, updated the entire department on the case. His Nov. 17 message, obtained and published this week by NM Political Report, called Herald a “former dismissed problem resident” and described UNM’s decision to settle for what he called a “modest amount.”
In a Nov. 30 email, Martin told anesthesiology faculty that money he planned to use for “retention bonuses” had instead gone to pay settlement legal costs to Herald and attorney Lisa Curtis.
Curtis described the potential new claims in a Jan. 3 notice to UNM leadership. She cited breach of the settlement’s confidentiality covenant and possible liability “for the intentional or negligent infliction of emotional distress upon Ms. Herald for their continued false statements about her.”
Martin could be individually liable, Curtis wrote, as could Dr. Sally Vender, another member of the anesthesiology department, whose emails were also published.
Vender wrote to Martin after the case settled, saying: “So glad it’s over. I was dreading the thought of her being a resident again.”
UNM fired Herald in 2010. She lost an initial lawsuit in 2013, but successfully appealed and the case went to trial last fall.
The university had argued that her termination was actually for poor performance and drug use.
Curtis’ tort notice said the emails could prevent future sexual misconduct victims from coming forward.
“Informing the entire Anesthesiology Department that their bonuses are being cancelled because of a settlement with an anesthesiology resident who was raped while in the residency program adds another layer of guilt to the shame and blame that already discourages reporting of this type of misconduct,” she wrote.
Another Herald attorney, Randi McGinn, called the emails disappointing.
“I thought UNM had learned its lesson and was going to start supporting people in the program who report sexual violence,” she said in an interview.
Asked if Martin was facing discipline for the emails, a spokeswoman for the UNM Health Sciences Center declined comment, saying it would constitute a personnel matter.
But spokeswoman Alex Sanchez said Martin’s reference to bonuses was a “bad choice of words” as such pay is actually incentive compensation – a portion of faculty member’s pay “held at risk” and distributed only based on meeting performance metrics.
Funds from the anesthesiology department were used in the case, Sanchez said, though she said she could not specify whether they went toward the settlement or other expenses like attorney’s fees. State risk management funds also covered some portion of the case’s costs, she said.
Sanchez added in a written statement: “The Health Sciences Center is committed to constantly reflecting and improving how we avoid, stop and address sexual harassment and/or assault on any faculty, staff, student or patient at our facilities. We have a zero-tolerance policy for sexual misconduct.”