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`RETURN DATE: 05/16/2023
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`SANGO HUWAAMOSIA ASANTE
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`V.
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`SUPERIOR COURT
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`JUDICIAL DISTRICT OF HARTFORD
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`AT HARTFORD
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`DATE:May 3, 2023
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`UNIVERSITY OF CONNECTICUT SCHOOL OF MEDICINE
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`GRADUATE MEDICAL EDUCATION
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`MEMORANDUM OF LAW IN SUPPORT OF
`APPLICATION FOR EX-PARTE TEMPORARY INJUNCTION
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`Pursuant to Connecticut General Statutes § 52-471, et seq., the Applicant, Sango
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`HuwaaMosia Asante (hereinafter “Dr. Asante”), hereby submits this Memorandum of Law in
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`support of his Application for Ex-Parte Temporary Injunction.
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`I.
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`FACTUAL BACKGROUND
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`This action arises out of the relationship the Applicant has, as a resident
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`physician, with the Respondent, The University of Connecticut School of Medicine
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`Graduate Medical Education (hereinafter “UConn GME”or“the school”).
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`Specifically, Dr. Asante is a third-year general surgical resident physician in the
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`school’s general surgical program (hereinafter “the program”). A general surgical
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`program is a five-year training program in which a program preparesandtrains
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`residents for independentpractice in the specialty of general surgery. A resident
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`physician is required to attend and graduate an accredited five-year general surgical
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`training program in orderto sit for and obtain board certification through The
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`American Board of Surgery. Pursuant to the program’s requirements, residents are
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`|G. =9
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`required to be evaluated at six-month intervals in order to track their progress asit
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`pertains to The Accreditation Council for Graduate Medical Education (hereinafter
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`“ACGME”) surgical milestones. An explanation for the ACGMEsurgical milestones
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`andits utility in resident evaluation is described in the following text: “The
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`Milestones are designed only for use in the evaluation of residents in the context of
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`their participation in ACGME-accredited residency programs. The Milestones
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`provide a framework for the assessment of the developmentofthe resident in key
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`dimensionsof the elements of physician competencyin a specialty or subspecialty.
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`They neither represents the entirety of the dimensionsofthe six domains ofphysician
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`competency, nor are they designed to be relevant in any other context” (see exhibit
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`A). “Programs use in a semi-annual review ofthe resident performance, and then
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`report to the ACGME.Milestones are knowledge,skills, attitudes, and other attributes
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`for each of the ACGME Competencies organized in a developmental framework. The
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`narrative descriptions are targets for resident performance throughouttheir
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`educational program. Milestones are arranged into levels. Tracking from Level 1 to
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`Level 5 is synonymous with moving from novice to expert resident in the specialty or
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`subspecialty. For each reporting period, the Clinical Competency Committee
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`(hereinafter “CCC”) will review the completed evaluations to select the milestone
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`levels that best describe each learner’s current performance,abilities, and attributes
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`for each sub competency. These levels do not correspond with post-graduate year of
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`education. Depending on previous experience, a junior resident may achieve higher
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`levels early in his/her educational program just as a senior resident may be at a lower
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`level later in his/her educational program,there is no predeterminedtimingfor a
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`residentto attain any particular level. Residents may also regress in achievement of
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`their milestones. This may happen for many reasons, such as over scoring in a
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`previous review,a disjointed experience in a particular procedure, or a significant act
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`by the resident. Selection of a level implies the resident substantially demonstrates the
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`milestones in that level, as well as those in lowerlevels (see the diagram on page V of
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`exhibit A). Level 4 is designed as a graduation goal but does not represent a
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`graduation requirement. Making decisions about readiness for graduation and
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`unsupervised practice is the purview of the program director. Furthermore,
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`Milestones 2.0 include revisions and changesthat preclude using Milestonesas a sole
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`assessment in high-stakes decisions(i.e., determination ofeligibility for certification
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`or credentialing). Level 5 is designed to represent an expert resident whose
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`achievements in a sub competencyare greater than the expectation. Milestones are
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`primarily designed for formative, developmental purposes to support continuous
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`quality improvementfor individual learners, education programs, and the specialty”
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`(see exhibit A).
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`On April 19, 2022. Dr. Asante signed a reappointment contract with UConn GME
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`from July 1%, 2022, to May 30", 2023 (see exhibit B).
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`On September 12", 2022, the CCC met to discuss Dr. Asante’s progress in the
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`program andevaluate his performance per the ACGMEsurgical milestones. The CCC
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`is a group of surgical faculties who are tasked with evaluating resident’s progress
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`through the program and assess how,and at whatlevel, each resident is performing in
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`accordance to the ACGMEcore competencies as outlined in the ACGMEsurgical
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`Milestones. Prior to the CCC meeting on September 12", 2022, Dr. Asante had never
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`been found to be academically deficient, nor did he have any disciplinary concerns
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`raised, in the program. At the conclusion of the CCC meeting on September 12",
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`2022. Dr. Brian Shames(the general surgery program director) agreed on the CCC’s
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`recommendation to administer Dr. Asante with a letter of deficiency (hereinafter
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`“LOD”), (see exhibit C).
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`On September 19", 2022, Dr. Asante met with Dr. Brian shames, Dr. Kwame
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`Amankwah(associate program director); and Janice Hutchinson (program
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`coordinator) at the University of Connecticut outpatient pavilion. During this
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`meeting, Dr. Asante was informed that he was being given a LOD. During these
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`discussions, Dr. Asante wastold that the reason for administering a LOD was due to
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`deficiencies in four core ACGMEsurgical competencies. The first core ACGME
`competency identified as requiring attention and needing improvement wasin
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`interpersonal and communication skills (hereinafter “IPC’”). The CCC found Dr.
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`Asante to be at a level 1.5 for both IPC 1 and 2 (see exhibit C). The second core
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`ACGMEcompetencyidentified as requiring attention and needing improvement was
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`in patient care (hereinafter “PC”). The CCC found Dr. Asante to beat the level of1
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`out of 5 for PC 1 (see exhibit C). The third core ACGME competencyidentified as
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`requiring attention and needing improvement was in medical knowledge (hereinafter
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`“MK”). The CCC found Dr. Asante to be at the level of 2 out of 5 in MK I and 2 (see
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`exhibit C). The fourth core ACGMEcompetencyidentified as requiring attention and
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`needing improvement wasin professionalism (hereinafter “P). The CCC found Dr.
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`Asante to be at the level of 1 out of 5 in P2. During this meeting, Dr. Asante inquired
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`as to other situations reported in which he had performedat a higher level and Dr.
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`Shames was unable to provide him with such examples. Dr. Asante also inquired
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`about, and attempted to discuss/clarify/defend, the specific examples cited in the
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`LODbut wastold by Dr. Shamesthat, “the specifics are not important”. Dr. Asante
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`wasalso informed by Dr. Shamesthat the LOD could not be appealed (see exhibit C).
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`During this discussion, Dr. Asante was further told by Dr. Shames that meeting with
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`the CCC was “unnecessary”. Dr. Asante was then given the remediation plan, which
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`was already set at the time the letter was administered (see exhibit C) and told that he
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`would be reevaluated in three months for successful completion of the remediation
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`plan documented in the LOD (see exhibit C). However, at the three month follow up
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`meeting on December 13", 2022, Dr. Shamesfailed to provide Dr. Asante with
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`specific reasoning and documentedsituations in which he did not successfully meet
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`the requirements outlined in the remediation plan (see exhibit D). Dr. Asante again
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`met with Dr. Shames on January 9", 2023, and was informedthat he was being
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`placed on administrative leave, effective immediately, for a mandatory goodness of
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`fit evaluation. Dr. Shames again failed to provide Dr. Asante with specific reasoning
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`and or documentedclinical scenarios that supported his decision making (see exhibit
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`E). Since January 9", 2023, Dr. Asante hasstill not been returned to practice, even
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`after being recommendedfor return to practice by The University of Connecticut
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`Employee Assistance Program Counselor, David Francis, who conducted the
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`“goodnessoffit” evaluation on behalf of the university (see exhibit F).
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`In the Deficiencies and Due Process section of the residency andfellow training
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`manual of the University of Connecticut School of Medicine,as set forth by the
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`Graduate Medical Education,it is stated that in the extent a program director’s
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`decision to issue a resident/fellow a LODisa joint decision with the CCC or any
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`other committee, any mitigating information provided by the resident/fellow must be
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`shared with the Clinical Competency or other Committee prior to the decision (see
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`exhibit G). Dr. Asante was not afforded this opportunity to share any mitigating
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`information that may have negated the CCC’s decision to administer a LOD.
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`Additionally, in enacting remedial action against Dr. Asante, UConn GMEdid not
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`fully consider Dr. Asante’s entire academic, and rotation specific performance history
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`as evidenced bythe fact that the examples given in the observed deficiencies were
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`referenced from the previous two months as opposedto the entire evaluation period
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`which would have included Dr. Asante’s performance over the previous six months.
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`If afforded the opportunity to meet with the CCC,as outlined in the deficiencies and
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`due process section of the residency and fellow training manual, Dr. Asante would
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`have been able to provide the CCC with examplesof situations in which he
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`performedat a higher level than the level assigned during the CCC meeting on
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`September 12", 2022. For example:
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`a. While on my general surgery rotation at The Hospital of Central Connecticut
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`in June of 2022, I delivered complex and difficult information to a trauma
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`patients’ family as I had to deliver the newsof their family members death.
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`Additionally, while on my general surgery rotation at John Dempsey Hospital,
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`I verified understanding of recommendations from the infectious disease
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`service whentreating a patient with cellulitis. This would have placed meat a
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`3 out of 5 in IPC level 1 and 2 per the ACGME milestones.
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`b. While on my emergencygeneral surgery rotation at Hartford Hospital in April
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`of 2022, I diagnosed and developed a plan to manage multiple healthy patients
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`with straightforward conditions such as acute cholecystitis, biliary colic, and a
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`small bowelobstruction. This would have placed meat a 3 out of 5 in PC
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`level 1 per the ACGMEmilestones.
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`c. While on my emergencygeneral surgery rotation at Hartford Hospital in April
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`of 2022, I demonstrated knowledge of the impact of patient factors on
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`pathophysiology and the treatment of patients with surgical conditions as
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`evidenced bythe fact that I evaluated, diagnosed, and recognized a patient
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`with a small bowel obstruction who was not a surgical candidate.
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`Additionally, while on my hepatobiliary rotation at Hartford Hospital in
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`Marchof 2022,I identified normal anatomy of the stomach andarticulated the
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`steps of a gastric wedge resection, which is considered a complex operation.
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`This would have placed meat a 3 out of 5 in MKlevel 1 and 2 per the
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`ACGMEmilestones.
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`d. While on my general surgery rotation at John Dempsey Hospital in August of
`2022. I demonstrated professional behavior in a complex andstressful
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`situation when dealing with an irate patient in the emergency department
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`while in the presenceof the attending surgeon, Dr. Ryan Millea. This would
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`have placed meat a 3 out of 5 in P level 2.
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`Per the ACGME,“Selection of a level implies the resident substantially
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`demonstrates the milestones in that level, as well as those in lower levels”. The above
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`information, as referenced in a-d, if allowed to be given to the CCC, would have
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`demonstrated a level of competency and performanceclose to “graduation goal”as
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`outlined in the ACGMEsurgical milestones (see exhibit A). Additionally, it would have
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`demonstrated that Dr. Asante meet the standards as defined in the ACGME milestones up
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`to level 3 in the four competencies that were identified as being deficient.
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`In enacting remedial action against Dr. Asante, UConn GME,failed, refused, or
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`neglected to protect Dr. Asante’s constitutionally protected liberty interest in continuing
`his education through the program in addition to future board certification with the
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`American Board of Surgery as evidenced by UConn GME’s failure to adhere to the
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`Deficiencies and Due Processsection of the residency and fellow training manual.
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`UConn GMEfurther failing to protect Dr. Asante’s protected liberty interest is evident by
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`the fact that because ofthe failure of due process experienced by Dr. Asante, he is now
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`being recommendedfor dismissal from the program. Morespecifically, UConn GME
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`violated Dr. Asante’s constitutional due processrights in the following ways:
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`e. Dr. Asante was not able to meet with Dr. Shames and the CCC to discuss the
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`observed deficiencies or a proposed action plan prior to being administered a
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`LOD. Dr. Asante could have provided the information referenced in a-d to the
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`CCC in order to mitigate any grounds for a LOD as he would not have been
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`considered deficient, as per the ACGME standards, with the above
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`information in a-d. Additionally, he would have demonstrated a higher
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`competencylevel in the four competencies that were of identified concern
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`(IPC, PC, MK, and P).
`f. The LOD was administered to Dr. Asante on September 19%, which is seven
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`days after the decision was made on September12"to administer Dr. Asante
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`a LOD as opposed to the three-day time window discussedin the due process
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`section of the residency and fellow training manual. This would suggest that
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`UConn GME was outside the statute of limitation for administering a LOD per
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`their procedures.
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`Because Dr. Asante was not given the opportunity to meet with the CCC, Dr.
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`Asante was not able to inquire, clarify, or defend whether the LOD was being
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`given in a purely academic manner, purely disciplinary manner, or ina
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`manner consistent with both.
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`Because Dr. Asante was not given the opportunity as stated abovein “a”, Dr.
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`Asante was notable to contribute to the academic plan setforth for his
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`remediation, which certainly, would have been in his protected liberty
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`interest.
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`Because Dr. Asante wasnot able to contribute to the academic plan set forth
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`for his remediation, the academic plan did not accurately reflect the
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`deficiencies that were identified by the CCC as there weresituations
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`identified that only Dr. Asante had first-hand knowledgeof. This information
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`would have mitigated some of the examples that were provided and, as a
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`result, placed Dr. Asante at the appropriate level of a 3 out of 5 per the
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`ACGME surgical milestones. Therefore, changing which,if any, deficiencies
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`needed to be included in the remediation plan, and therefore potentially
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`negating a need to administer a LOD all together. Dr. Asante’s liberty interest
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`of a successful remediation, that would haveled to his continuation in the
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`program, wasnotprotected here as having an accurate remediation plan set
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`forth based on the correctly identified level of the proposed deficiency would
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`have contributed to his ability to demonstrate improvementin that core
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`competency.
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`Given the extent of UConn GME’s disregard of the prescribed residency/fellow
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`policies and procedures, UConn GMEandits officials have violated Dr. Asante’s
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`procedural and constitutional rights to due process as further evident by the fact that
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`because of the circumvention of the policies and procedures, UConn GMEandits
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`officials would be directly affecting Dr. Asante’s jural relations with other certifying
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`bodies such as the American Board of Surgery. The failure to afford Dr. Asante the due
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`processthat is outlined in the residency/fellow policies and procedures, when following
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`such due process could have changedthe level at which he wassaid to be performing,
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`clearly demonstrates a substantial departure from accepted academic norms and
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`additionally demonstrates failure to exercise professional judgement on behalf of UConn
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`GMEandits officials, which, is also evident when taking into consideration that the
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`milestones have to be reported to the ACGME,andas discussedearlier, are not entirely
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`accurate as presented and documented in the LOD. Furthermore,the facts discussed thus
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`far additionally demonstrate an incursion upon Dr. Asante’s constitutionally protected
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`interest of the right to due process in regard to protecting his liberty interest to obtain
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`board certification through the American Board of Surgery in addition to liberty interest
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`in defending any claims made against him that could either tarnish his reputation/good
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`standing in the program orbe usedto bring disciplinary or remedial action against him.
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`Also, the facts, as they have been presented thus far, clearly demonstrate an additional
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`incursion upon Dr. Asante’s protected procedural due process rights as Dr. Asante has a
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`protected property right to continued appointmentas a surgical resident in the program.
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`Dueto the incursion of Dr. Asante’s protected constitutional and procedural due
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`processrights, he has been adversely affected as he has been refrained from practice
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`since January 9", 2023 to current. This has caused Dr. Asante to not be able to continue
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`to meet requirements needed for successful completion of the program (for example,
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`obtaining his case numbers needed to become boardeligible), in addition to cause him to
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`lose all health benefits and insurance through the program (see exhibit H). Furthermore,
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`Dr. Asante will be irreparably harmedsince the program will not be holding his residency
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`spot after May 9" andhe will not be given credit for his third post graduate year of
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`training, which will delay his graduation (see exhibit I). Dr. Asante is also being formally
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`recommended for dismissal from the residency program (see exhibit I) which will cause
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`irreparable harm as he will not be able to obtain equitable and justrelief in the future
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`through furtherlitigation absent Court intervention.
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`I.
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`LAW
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`Pursuant to Connecticut General Statutes § 52-471, an injunction may be granted
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`in equity. “The purpose of a temporary injunction is to preserve the status quo until a
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`final determination ofthe parties’ rights after a hearing on the merits.” Clinton v.
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`Middlesex Mut. Ass. Co., 37 Conn. App. 269, 270 (1995). When determining
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`whether to grant an injunction, the Court utilizes a four- part test. An injunction will
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`be granted where the movant shows: 1) no adequate legal remedy; 2) irreparable
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`injury absent an injunction; 3) likelihood of success on the merits; and 4) the balance
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`of equities favors the issuance of an injunctions. Waterbury Teachers Assn.v.
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`Freedom of Info. Comm’n, 230 Conn. 441, 446 (1994). Once a party seeking an
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`injunction showsthat an injunction is necessary to prevent irreparable harm and either
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`a likelihood of success on the merits or sufficiently serious questions going to the
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`merits of the claim so as to makeit fair groundsforlitigation, an injunction may issue
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`so long as the balance of the hardshipstips in favor of the movingparty. Phillip v.
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`Fairfield Univ., 118 F.3d. 131, 133 (2d Cir. 1997).
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`'
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`“A party seeking injunctive relief has the burden ofalleging and proving
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`irreparable harm anda lack of an adequate remedy at law.” Tighe v. Berlin, 259
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`Conn. 83, 87, 788 A.2d 40 (2002). “If irreparable injury is demonstrated,thetrial
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`court ought to issue the temporary injunction, unlessit is clear that the plaintiff will
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`not prevail on the merits.” Danso v. University of Connecticut, et al. (2007) 919 A.2d
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`1100, 50 Conn.Supp. 256 citing Olcott v. Pendleton, 128 Conn. 292, 295, 22 A.2d
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`633 (1941).
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`lil.
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`ARGUMENT
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`The undersigned submits that, based on the above, the Applicantsatisfies all the
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`elements for obtaining a temporary injunction. Moreover, the undersigned submits
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`that the entry of an ex-parte injunction is necessary and appropriate here, as UConn
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`GMEis, quite literally, attempting to tack on an extra year to Dr. Asante’s academic
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`career, or, not give credit for Dr. Asante’s third academic year because of UConn
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`GME’s failure to comply with their own written policies and procedures, in addition
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`to, unsupported and undocumented claims about Dr. Asante’s academic performance
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`and or remedial success.
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`A. The Applicant Has No Adequate Remedy at Law
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`“Adequate remedy at law’ means a remedy vested in the complainant, to
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`which he may,at all times, resort, at his own option, fully and freely, without
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`let or hindrance.” Stocker,et al. v. City of Waterbury, 154 Conn. 466, 449,
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`226 A.2d 514 (1967) (internal citations omitted).
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`An injunction is necessary and appropriate in this case because, absent the
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`same, Dr. Asante has no other remedyat law as evidenced by the fact that the
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`LODis not appealable (see exhibit C). More specifically, if the conduct of the
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`Respondentcontinues, Dr. Asante will not be able to bring claim to “undo”
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`UConn GME’s actions as he will lose his residency position on May 9" and
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`his contract will expire on May 30"ofthis year. Thatis, he will not be able to
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`assert any type of claim that would result in appropriaterelief. If UConn
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`GME’s conduct continues, Dr. Asante will necessarily miss all opportunity to
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`continue the clinical and operative work needed to obtain credit for his third
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`post graduate year of surgical training, which would delay his graduation date.
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`Oncethis happens, Dr. Asante would haveto redo his third post graduate year.
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`Dr. Asante would not be able to later sue for an order indicating that he be
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`allowed to make up workin orderto obtain credit for his third post graduate
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`year for the purposesof not delaying his graduation. No subsequent lawsuit
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`could result in the make up for the education that Dr. Asante would (and
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`should) have received by continuing to practice during this time. Likewise,
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`Dr. Asante obviously would be unable to successfully assert a claim that he
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`should be entitled to a degree and/or reappointmentcontract through UConn
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`GMEonthe basis that UConn GMEprevented him from successful
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`remediation and thus continuation through the program. Additionally, even if
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`he wereto try and assert a claim for monetary damages,the injury that Dr.
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`Asante would suffer is not one that could be repaired by money.
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`Based onthe above,it is clear that absent an injunction, Dr. Asante has no
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`remedyat law to addressthis grievance.
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`B.
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`Irreparable Harm to Applicant
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`In order to demonstrate irreparable harm for purposes of an
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`injunction, an applicant must demonstrate that there is a substantial
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`probability that the harm complained of will result; and that if that harm
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`occurs, it will be irreparable. See International Ass’n of Firefighters, Local
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`786 v. Serani, 26 Conn. App. 610, 616, 602 A.2d 1067 (1992). Dr.
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`Asante’s allegationsfulfill both of these two elements. Specifically, there
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`is more than a substantial probability that the harm Dr. Asanteis
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`complaining of (being dismissed from the program andor delayed
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`graduation) will result; there is an absolute certainty. As set forth above,
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`UConn GMEhastold Dr. Asante in writing that he will lose his residency
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`position come May 9"andthat he is also being recommendedfor
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`dismissal. With the certainty of the harm established, the only element that
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`Dr. Asante must demonstrate is that there is probable cause that harm
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`itself will be irreparable.
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`If UConn GME’s actions stand, Dr. Asante will not only be
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`dismissed from the program, therefore not being afforded the opportunity
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`agreed upon,but he will also not be given credit for his third post graduate
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`year of training therefore extending his training and delaying his original
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`graduation date. There can be no dispute that such outcomes, in some way,
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`decrease his academic standing and negatively affect him when he seeks
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`employment, fellowship opportunities, and board certification through the
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`to fulfill the five-year appointmenthe and the UConn GMEinitially
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`American Board of Surgery; not to mention that the delay in an ability to
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`graduate on time will necessarily mean that he is forced to lose a year of
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`working in the field of his choice. This will cause unknown(and
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`unprovable) financial ramifications for Dr. Asante but worse,still it will
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`also cause a year-long delay in his transition from resident physician to
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`attending surgeon — and there can be no dispute that he will have no way
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`to repair the harm oflosing a year ofhis professionallife.
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`As moreset forth in the affidavit, Dr. Asante has explored the
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`possibility of transferring to a different university or college to complete
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`his surgical training, however, based on his research, any such a transfer
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`(to the extent the same waseven possible) would not result in a resolution
`ofthis issue, and the non-resolution ofthe issue would thus affect his jural
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`relations with other surgical programs, which thus, raises questions of
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`future jurisdiction. Additionally, Dr. Asante would not be able to graduate
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`any soonerat another surgical program than he would at UConn GME.
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`Assuch,the harm that will result to Dr. Asante without the entry
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`of an injunction is certain and irreparable.
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`
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`C. Applicant’s Probability of Success on the Merits
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`Although generally immune from suit because of sovereign
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`immunity, injunctive relief may be obtained againsta state official or
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`entity acting 1) in excessof its statutory authority; or 2) unconstitutionally.
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`Dansov. University of Connecticut, supra at 262, citing Cox v. Aiken, 278
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`Conn. 204, 212, 897 A.2d 71 (2006).
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`Here, Dr. Asante has a meritorious claim that UConn GME
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`violated his constitutional rights to due process. Specifically, UConn
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`GME’s disciplinary actions against Dr. Asante, as evidenced by the poor
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`performance review as documented in the LOD in addition to the
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`subsequent sanctions that were imposed on Dr. Asante becauseofthe
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`existence of the LOD (i.e, administrative leave, goodnessof fit
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`evaluation), violated Dr. Asante’s procedural due processrights, insofar as
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`UConn GMEdisregarded its own procedures and protocols for enacting
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`discipline, in the form of remediation secondary to poor performance,
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`against Dr. Asante. “Undoubtedly...a student attending a state college has
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`a liberty interest in continuing that education.” Board of Regents v. Roth,
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`408 U.S. 564, 572, 92 S. Ct. 2701, 33 L-.Ed.2d 548 (1972). “Disciplinary
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`actions which seriously damagea student’s reputation amongfellow
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`students and teachers, and which may impair future educational and
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`employment opportunities affect a liberty interest and such actions must
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`satisfy procedural due process.” Goss v. Lopez, 419 U.S. 565, 575-76, 95
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`S. Ct. 729, 42 L.Ed 725 (1975). For arguendo, even if UConn GMEclaims
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`that their actions against Dr. Asante were done so in a purely academic
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`manner, that claim could simply not be upheld. Morespecifically, the
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`ACGMEasserts that the level of the milestones that UConn GMEusedto
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`deem Dr. Asante ‘deficient’, “do not correspond with post-graduate year
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`of education”. Additionally, “there is no predetermined timingfor a
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`resident to attain any particular leve|”(see exhibit A). Therefore, UConn
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`GME’s actions cannot be considered purely academicas they violate the
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`standards and purpose of the milestones as outlined by the ACGME.
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`Therefore, the intention, which surely can be assumedor implied given
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`whathas been explained thusfar, in addition to the nature ofthe claims
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`being made which seem to focus more on actions taken by Dr. Asante then
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`academic benchmarks, of UConn GMEwasto administer Dr. Asante with
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`a LOD in a disciplinary manner. Furthermore, since UConn GME’s
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`actions can be deemeddisciplinary, Dr. Asante should have been afforded
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`the protected liberty interest of right to due process. Especially seeing as
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`UConn GME’s actions will affect future employment opportunities and
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`have certainly damaged his reputation among fellow residents and faculty
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`as many werenotified of and or involved in the remediation process.
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`Based on the facts set forth in Dr. Asante’s affidavit, UConn GME
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`did not adhere to its own disciplinary proceduresin one or more ofthe
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`following ways:
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`Dr. Asante was not able to meet with Dr. Shames and the CCC to
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`discuss the observed deficiencies or a proposed actionplan prior to
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`being administered a LOD.
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`The LOD was administered to Dr. Asante on September 19", whichis
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`seven daysafter the decision was made on September 12"to
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`administer Dr. Asante a LOD as opposed to the three-day time
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`windowdiscussed in the due processsection of the residency and
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`fellow training manual.
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`Dr. Asante was not given the opportunity to share information with
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`the CCC that may have affected their decision to administer Dr.
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`Asante a LOD prior to being given a LOD asfurther elucidated in the
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`Affidavit.
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`Because Dr. Asante was not given the opportunity to meet with the
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`CCC, he was notable to inquire,clarify, or defend whether the LOD
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`was being given in an academic or disciplinary manner.
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`Because Dr. Asante was not given the opportunity as stated abovein
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`“a”, Dr. Asante was not able to contribute to the academic plan set
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`forth for his remediation.
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`vi.
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`Because Dr. Asante was not able to contribute to the academic plan
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`set forth for his remediation, the academic plan did not accurately
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`reflect the deficiencies that were identified by the CCC as there were
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`situations identified that only Dr. Asante had first-hand knowledgeof.
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`This information would have mitigated some of the examples that
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`were provided and,as a result, placed him at the appropriate level of
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`a 3 out of 5 per the ACGME surgical milestones. Therefore, changing
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`which, if any, deficiencies needed to be included in the remediation
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`plan.
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`In addition to violating Dr. Asante’s due processrights, it appears that UConn
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`GMEandofficials also acted against Dr. Asante in excess oftheir statutory authority. As
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`set forth above, the ACGMEsurgical milestones is a byproduct of the established way
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`surgical residents are to be semiannually evaluated. As such, when UConn GMEofficials
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`refused, failed or neglected to follow the accepted academic standards of using the
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`ACGMEmilestones in a more informative (see exhibit A) rather than disciplinary
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`manner, UConn GMEexceededtheir statutory authority given that UConn GMEandits
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`officials were acting on behalf of the ACGMEandnotthe board oftrustees. Per the
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`ACGME’s website, accredited schools are also recommendedto follow their own
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`policies and procedures which whoalso suggest that UConn GMEwasstill exceeding
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`their statutory authority even on behalf of the ACGME.Thelogical claim that could thus
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`be madeis that, since the ACGMEis nationally accredited, the adherenceto the policies
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`and proceduresin regard to due process, should fall under the U.S Constitution and or
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`federal regulations and statutes. I would also argue, that UConn GME’s continued refusal
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`to allow Dr. Asante to return to practice even with passing and being recommended for
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`return to practice by their own employeeassistance program counselor, David Francis,
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`UConn GMEisfurther demonstrating behavior that exceedstheir statutory authority.
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`Correspondingly, sovereign immunity does not, and should not, apply, and Dr. Asante is
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`entitled to enforce his rights against the schoolin orderto protect his constitutional
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`liberty interests as previously described.
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`While the undersigned acknowledges that UConn GMEhasbroad
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`discretion with the discipling of students and the administration ofits resident/fellow
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`policies and procedures, it cannot and should not be allowed to completely disregard
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`prescribed rules and procedures wholesale, as happened here. Furthermore,the
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`interesting legal question that also arises through the analysis of this caseas it pertains to
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`the law has to do with the resulting jurisdictional issueit raises. In this specific case,
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`should UConn GMEbeallowed the deference granted to colleges and universities, with
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`respect to academic andordisciplinary actions, to circumvent their own prescribed
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`policies and procedures when that circumvention will affect jural relations with other
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`state and nationally accredited boards? Also