Former neurosurgery resident at AU brings second lawsuit, claims retaliation

Note: A previous version of this story misstated the month John Lott began working for Augusta University. The story has been updated and we regret the error.

A former neurosurgery resident at Augusta University and AU Medical Center last month filed a lawsuit  claiming retaliation and a failure by the institutions to follow proper procedures when suspending, and eventually terminating, her in 2019.

This is the second lawsuit Dr. Sarah Kavianpour has filed against the university and AU Medical. She filed a complaint in 2019 that charged the university with discrimination around her dismissal, allegedly for missing a drug test.

This second lawsuit from Kavianpour is based on information that came forward during discovery for her first lawsuit in October 2021, and for actions that occurred after that initial lawsuit was filed. It names the Board of Regents for the University System of Georgia, Augusta University Medical Center, Dr. Philip Coule, chief medical officer for AUMC, and others.

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"They're hiding the ball, and they did something that there's no clear policy about, and so there's no real way I could hold them accountable because there was no policy to discuss what happened to me," Kavianpour told the USA Today Network.

Kavianpour said that there was a document that was eventually shared in March called "Terms and Conditions of House Staff services, AU Health." It outlined the processes somewhat, but neither Kavianpour nor her advisor had access to it at the time she was dismissed. Instead, when her access to the hospital was suspended, effectively halting her training, she was not given the correct appeal process to restore it.

In a follow up email to the USA Today network, Kavianpour said that this document means that the Board of Regents could have overturned the decision to suspend her access to the hospital that began the termination process, even though the Board of Regents has claimed it could not.

None of the defendants in the second lawsuit have filed responses yet to the complaint.

"As is normal protocol, we do not comment on pending litigation," wrote Rick Plummer, a spokesperson for Augusta University Health, in an email. "That said, I know you have a copy of the original suit filed several years ago, and many of the same allegations made in the new suit have already been considered by the court and dismissed.  The facts of the case haven’t changed."

On March 29, 2021, a judge in the first lawsuit granted a motion to dismiss Kavianpour's complaints against a number of Augusta University and Augusta University Medical Center staff, as well as some of her claims against the University System of Georgia Board of Regents and Augusta University Medical Center itself.

District Court Judge Michael L. Brown wrote that even if all of Kavianpour's factual statements were correct, many of her legal claims would not be supported by them, and that a number of the defendants had legal immunity.

On Friday, Kavianpour sent a follow up statement re-iterating that her first lawsuit is ongoing. According to court records, her attorneys challenged the motion to dismiss several of the claims.

"Sham appeal and grievance hearing process"

The new complaint charges that Kavianpour's hospital access was suspended and then she was terminated after being told the suspension could not be overturned.

"Defendants then provided her a sham appeal and grievance hearing process that did not allow her to contest the suspension," the complaint reads. "After officials from the University System of Georgia informed Defendants that they had not provided the necessary process to Dr. Kavianpour, Defendants alleged that they reinstated Dr. Kavianpour in order to provide that process, but they continued to provide a sham process and she was terminated on August 23, 2020."

It also notes that Kavianpour's initial dismissal was grounds for a citation from the Accreditation Council for Graduate Medical Education, the organization that provides accreditation for medical schools. That citation was issued on Dec. 3, 2021, and a copy entered into evidence. ACGME did not immediately respond to a message seeking comment.

"It's not really made clear ... who the employer is."

Part of the trouble, Kavianpour said, was that having multiple organizations involved allowed them to obscure what her rights were, allowing the university and medical center to reach a pre-determined conclusion and dismiss her.

"It's not really made clear when you're signing your contract and when you're joining, you know, this enterprise, who the employer is," Kavianpour said.

Dr. Pringl Miller, founder and executive director of Physician Just Equity, is supportive of Kavianpour and said that residency programs do sometimes make determinations and then fit the policy around them.

"If they don't want to keep someone in their training program, they invoke various methods to get rid of them that don't usually comport with (Graduate Medical Education) process," she said.

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In this case, Kavianpour''s residency was funded by the federal government.

"The institution had money benchmarked for her training that she then doesn't have access to because she's not in training," said Miller.

According to Kavianpour, it was the AU Medical Center that received the funding but the university is bringing on the residents because they are the ones accredited.

"It gets really hard to separate the two," Kavianpour said. "One entity is saying the other entity did it and we're separate, and the other entity is saying, no the other entity did it, we're separate. So that's part of the problem."

From a missed drug test to two lawsuits

Kavianpour's initial lawsuit was based around special conditions that were imposed when she accepted a contract as a neurosurgery resident, the only woman then in the department. According to her first lawsuit, a pre-employment drug test came back positive for marijuana, while a confirmatory test of the same test came back negative for marijuana. Kavianpour appealed, and as a separate, second test also came back negative she was offered a contract on July 11, 2018.

Kavianpour was notified in August that she would have to appear for random drug testing, and, according to her lawsuit, was called in for same-day drug testing regularly for months, always with negative results, until missing a drug test in February 2019 because she was on call. Instead, Kavianpour went the next day for testing. On Feb. 21, 2019, two HR personnel – Susan Norton, the chief HR officer, and Debra Arnold, director of employee relations for HR – drafted a letter suggesting Kavianpour's termination over the missed test.

Kavianpour's first lawsuit dealt with the specifics of the policy, including her appeals. John Lott, a third-party contractor who stepped in as Augusta University's new chief compliance officer in May 2019, determined in July that the university has broken its own random drug testing policy in regards to Kavianpour. On July 16, 2019 Lott was fired by AU. Later, he began working closely with Kavianpour on her case.

"The most succinct way to state what happened to Sarah was that they decided they were going to breach her contract under false pretenses," Lott said. "And then moved forward with that, and that's what they've been doing in court ever since, they've literally been moving the ball and changing the reasons for saying she can't come back."

Kavianpour said that her key goal in filing the lawsuit was clearing her name. Beyond that, she wants to finish up her neurosurgery training.

"I want to return to my residency. I want to continue my training," she said. "I want to, you know, get the processes I was owed."

This article originally appeared on Augusta Chronicle: Augusta University, AU Medical sued for alleged retaliation