throbber
Our, GAA TOD
`
`RETURN DATE: 05/16/2023
`
`
`
`SANGO HUWAAMOSIA ASANTE
`
`V.
`
`SUPERIOR COURT
`
`JUDICIAL DISTRICT OF HARTFORD
`
`AT HARTFORD
`
`DATE:May 3, 2023
`
`UNIVERSITY OF CONNECTICUT SCHOOL OF MEDICINE
`
`GRADUATE MEDICAL EDUCATION
`
`MEMORANDUM OF LAW IN SUPPORT OF
`APPLICATION FOR EX-PARTE TEMPORARY INJUNCTION
`
`Pursuant to Connecticut General Statutes § 52-471, et seq., the Applicant, Sango
`
`HuwaaMosia Asante (hereinafter “Dr. Asante”), hereby submits this Memorandum of Law in
`
`support of his Application for Ex-Parte Temporary Injunction.
`
`I.
`
`FACTUAL BACKGROUND
`
`This action arises out of the relationship the Applicant has, as a resident
`
`physician, with the Respondent, The University of Connecticut School of Medicine
`
`Graduate Medical Education (hereinafter “UConn GME”or“the school”).
`
`Specifically, Dr. Asante is a third-year general surgical resident physician in the
`
`school’s general surgical program (hereinafter “the program”). A general surgical
`
`program is a five-year training program in which a program preparesandtrains
`
`residents for independentpractice in the specialty of general surgery. A resident
`
`physician is required to attend and graduate an accredited five-year general surgical
`
`training program in orderto sit for and obtain board certification through The
`
`American Board of Surgery. Pursuant to the program’s requirements, residents are
`
`|G. =9
`
`

`

`
`
`required to be evaluated at six-month intervals in order to track their progress asit
`
`pertains to The Accreditation Council for Graduate Medical Education (hereinafter
`
`“ACGME”) surgical milestones. An explanation for the ACGMEsurgical milestones
`
`andits utility in resident evaluation is described in the following text: “The
`
`Milestones are designed only for use in the evaluation of residents in the context of
`
`their participation in ACGME-accredited residency programs. The Milestones
`
`provide a framework for the assessment of the developmentofthe resident in key
`
`dimensionsof the elements of physician competencyin a specialty or subspecialty.
`
`They neither represents the entirety of the dimensionsofthe six domains ofphysician
`
`competency, nor are they designed to be relevant in any other context” (see exhibit
`
`A). “Programs use in a semi-annual review ofthe resident performance, and then
`
`report to the ACGME.Milestones are knowledge,skills, attitudes, and other attributes
`
`for each of the ACGME Competencies organized in a developmental framework. The
`
`narrative descriptions are targets for resident performance throughouttheir
`
`educational program. Milestones are arranged into levels. Tracking from Level 1 to
`
`Level 5 is synonymous with moving from novice to expert resident in the specialty or
`
`subspecialty. For each reporting period, the Clinical Competency Committee
`
`(hereinafter “CCC”) will review the completed evaluations to select the milestone
`
`levels that best describe each learner’s current performance,abilities, and attributes
`
`for each sub competency. These levels do not correspond with post-graduate year of
`
`education. Depending on previous experience, a junior resident may achieve higher
`
`levels early in his/her educational program just as a senior resident may be at a lower
`
`level later in his/her educational program,there is no predeterminedtimingfor a
`
`

`

`
`
`residentto attain any particular level. Residents may also regress in achievement of
`
`their milestones. This may happen for many reasons, such as over scoring in a
`
`previous review,a disjointed experience in a particular procedure, or a significant act
`
`by the resident. Selection of a level implies the resident substantially demonstrates the
`
`milestones in that level, as well as those in lowerlevels (see the diagram on page V of
`
`exhibit A). Level 4 is designed as a graduation goal but does not represent a
`
`graduation requirement. Making decisions about readiness for graduation and
`
`unsupervised practice is the purview of the program director. Furthermore,
`
`Milestones 2.0 include revisions and changesthat preclude using Milestonesas a sole
`
`assessment in high-stakes decisions(i.e., determination ofeligibility for certification
`
`or credentialing). Level 5 is designed to represent an expert resident whose
`
`achievements in a sub competencyare greater than the expectation. Milestones are
`
`primarily designed for formative, developmental purposes to support continuous
`
`quality improvementfor individual learners, education programs, and the specialty”
`
`(see exhibit A).
`
`On April 19, 2022. Dr. Asante signed a reappointment contract with UConn GME
`
`from July 1%, 2022, to May 30", 2023 (see exhibit B).
`
`On September 12", 2022, the CCC met to discuss Dr. Asante’s progress in the
`
`program andevaluate his performance per the ACGMEsurgical milestones. The CCC
`
`is a group of surgical faculties who are tasked with evaluating resident’s progress
`
`through the program and assess how,and at whatlevel, each resident is performing in
`
`accordance to the ACGMEcore competencies as outlined in the ACGMEsurgical
`
`Milestones. Prior to the CCC meeting on September 12", 2022, Dr. Asante had never
`
`

`

`been found to be academically deficient, nor did he have any disciplinary concerns
`
`raised, in the program. At the conclusion of the CCC meeting on September 12",
`
`2022. Dr. Brian Shames(the general surgery program director) agreed on the CCC’s
`
`recommendation to administer Dr. Asante with a letter of deficiency (hereinafter
`
`“LOD”), (see exhibit C).
`
`On September 19", 2022, Dr. Asante met with Dr. Brian shames, Dr. Kwame
`
`Amankwah(associate program director); and Janice Hutchinson (program
`
`coordinator) at the University of Connecticut outpatient pavilion. During this
`
`
`
`meeting, Dr. Asante was informed that he was being given a LOD. During these
`
`discussions, Dr. Asante wastold that the reason for administering a LOD was due to
`
`deficiencies in four core ACGMEsurgical competencies. The first core ACGME
`competency identified as requiring attention and needing improvement wasin
`
`interpersonal and communication skills (hereinafter “IPC’”). The CCC found Dr.
`
`Asante to be at a level 1.5 for both IPC 1 and 2 (see exhibit C). The second core
`
`ACGMEcompetencyidentified as requiring attention and needing improvement was
`
`in patient care (hereinafter “PC”). The CCC found Dr. Asante to beat the level of1
`
`out of 5 for PC 1 (see exhibit C). The third core ACGME competencyidentified as
`
`requiring attention and needing improvement was in medical knowledge (hereinafter
`
`“MK”). The CCC found Dr. Asante to be at the level of 2 out of 5 in MK I and 2 (see
`
`exhibit C). The fourth core ACGMEcompetencyidentified as requiring attention and
`
`needing improvement wasin professionalism (hereinafter “P). The CCC found Dr.
`
`Asante to be at the level of 1 out of 5 in P2. During this meeting, Dr. Asante inquired
`
`as to other situations reported in which he had performedat a higher level and Dr.
`
`

`

`
`
`Shames was unable to provide him with such examples. Dr. Asante also inquired
`
`about, and attempted to discuss/clarify/defend, the specific examples cited in the
`
`LODbut wastold by Dr. Shamesthat, “the specifics are not important”. Dr. Asante
`
`wasalso informed by Dr. Shamesthat the LOD could not be appealed (see exhibit C).
`
`During this discussion, Dr. Asante was further told by Dr. Shames that meeting with
`
`the CCC was “unnecessary”. Dr. Asante was then given the remediation plan, which
`
`was already set at the time the letter was administered (see exhibit C) and told that he
`
`would be reevaluated in three months for successful completion of the remediation
`
`plan documented in the LOD (see exhibit C). However, at the three month follow up
`
`meeting on December 13", 2022, Dr. Shamesfailed to provide Dr. Asante with
`
`specific reasoning and documentedsituations in which he did not successfully meet
`
`the requirements outlined in the remediation plan (see exhibit D). Dr. Asante again
`
`met with Dr. Shames on January 9", 2023, and was informedthat he was being
`
`placed on administrative leave, effective immediately, for a mandatory goodness of
`
`fit evaluation. Dr. Shames again failed to provide Dr. Asante with specific reasoning
`
`and or documentedclinical scenarios that supported his decision making (see exhibit
`
`E). Since January 9", 2023, Dr. Asante hasstill not been returned to practice, even
`
`after being recommendedfor return to practice by The University of Connecticut
`
`Employee Assistance Program Counselor, David Francis, who conducted the
`
`“goodnessoffit” evaluation on behalf of the university (see exhibit F).
`
`In the Deficiencies and Due Process section of the residency andfellow training
`
`manual of the University of Connecticut School of Medicine,as set forth by the
`
`Graduate Medical Education,it is stated that in the extent a program director’s
`
`
`
`

`

`decision to issue a resident/fellow a LODisa joint decision with the CCC or any
`
`other committee, any mitigating information provided by the resident/fellow must be
`
`shared with the Clinical Competency or other Committee prior to the decision (see
`
`exhibit G). Dr. Asante was not afforded this opportunity to share any mitigating
`
`information that may have negated the CCC’s decision to administer a LOD.
`
`Additionally, in enacting remedial action against Dr. Asante, UConn GMEdid not
`
`fully consider Dr. Asante’s entire academic, and rotation specific performance history
`
`as evidenced bythe fact that the examples given in the observed deficiencies were
`
`referenced from the previous two months as opposedto the entire evaluation period
`
`which would have included Dr. Asante’s performance over the previous six months.
`
`If afforded the opportunity to meet with the CCC,as outlined in the deficiencies and
`
`due process section of the residency and fellow training manual, Dr. Asante would
`
`have been able to provide the CCC with examplesof situations in which he
`
`performedat a higher level than the level assigned during the CCC meeting on
`
`September 12", 2022. For example:
`
`a. While on my general surgery rotation at The Hospital of Central Connecticut
`
`in June of 2022, I delivered complex and difficult information to a trauma
`
`patients’ family as I had to deliver the newsof their family members death.
`
`Additionally, while on my general surgery rotation at John Dempsey Hospital,
`
`I verified understanding of recommendations from the infectious disease
`
`service whentreating a patient with cellulitis. This would have placed meat a
`
`3 out of 5 in IPC level 1 and 2 per the ACGME milestones.
`
`
`
`

`

`
`
`b. While on my emergencygeneral surgery rotation at Hartford Hospital in April
`
`of 2022, I diagnosed and developed a plan to manage multiple healthy patients
`
`with straightforward conditions such as acute cholecystitis, biliary colic, and a
`
`small bowelobstruction. This would have placed meat a 3 out of 5 in PC
`
`level 1 per the ACGMEmilestones.
`
`c. While on my emergencygeneral surgery rotation at Hartford Hospital in April
`
`of 2022, I demonstrated knowledge of the impact of patient factors on
`
`pathophysiology and the treatment of patients with surgical conditions as
`
`evidenced bythe fact that I evaluated, diagnosed, and recognized a patient
`
`with a small bowel obstruction who was not a surgical candidate.
`
`Additionally, while on my hepatobiliary rotation at Hartford Hospital in
`
`Marchof 2022,I identified normal anatomy of the stomach andarticulated the
`
`steps of a gastric wedge resection, which is considered a complex operation.
`
`This would have placed meat a 3 out of 5 in MKlevel 1 and 2 per the
`
`ACGMEmilestones.
`
`d. While on my general surgery rotation at John Dempsey Hospital in August of
`2022. I demonstrated professional behavior in a complex andstressful
`
`situation when dealing with an irate patient in the emergency department
`
`while in the presenceof the attending surgeon, Dr. Ryan Millea. This would
`
`have placed meat a 3 out of 5 in P level 2.
`
`Per the ACGME,“Selection of a level implies the resident substantially
`
`demonstrates the milestones in that level, as well as those in lower levels”. The above
`
`information, as referenced in a-d, if allowed to be given to the CCC, would have
`
`

`

`
`
`demonstrated a level of competency and performanceclose to “graduation goal”as
`
`outlined in the ACGMEsurgical milestones (see exhibit A). Additionally, it would have
`
`demonstrated that Dr. Asante meet the standards as defined in the ACGME milestones up
`
`to level 3 in the four competencies that were identified as being deficient.
`
`In enacting remedial action against Dr. Asante, UConn GME,failed, refused, or
`
`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
`
`American Board of Surgery as evidenced by UConn GME’s failure to adhere to the
`
`Deficiencies and Due Processsection of the residency and fellow training manual.
`
`UConn GMEfurther failing to protect Dr. Asante’s protected liberty interest is evident by
`
`the fact that because ofthe failure of due process experienced by Dr. Asante, he is now
`
`being recommendedfor dismissal from the program. Morespecifically, UConn GME
`
`violated Dr. Asante’s constitutional due processrights in the following ways:
`
`e. Dr. Asante was not able to meet with Dr. Shames and the CCC to discuss the
`
`observed deficiencies or a proposed action plan prior to being administered a
`
`LOD. Dr. Asante could have provided the information referenced in a-d to the
`
`CCC in order to mitigate any grounds for a LOD as he would not have been
`
`considered deficient, as per the ACGME standards, with the above
`
`information in a-d. Additionally, he would have demonstrated a higher
`
`competencylevel in the four competencies that were of identified concern
`
`(IPC, PC, MK, and P).
`f. The LOD was administered to Dr. Asante on September 19%, which is seven
`
`days after the decision was made on September12"to administer Dr. Asante
`
`
`
`

`

`
`
`a LOD as opposed to the three-day time window discussedin the due process
`
`section of the residency and fellow training manual. This would suggest that
`
`UConn GME was outside the statute of limitation for administering a LOD per
`
`their procedures.
`
`Because Dr. Asante was not given the opportunity to meet with the CCC, Dr.
`
`Asante was not able to inquire, clarify, or defend whether the LOD was being
`
`given in a purely academic manner, purely disciplinary manner, or ina
`
`manner consistent with both.
`
`Because Dr. Asante was not given the opportunity as stated abovein “a”, Dr.
`
`Asante was notable to contribute to the academic plan setforth for his
`
`remediation, which certainly, would have been in his protected liberty
`
`interest.
`
`Because Dr. Asante wasnot able to contribute to the academic plan set forth
`
`for his remediation, the academic plan did not accurately reflect the
`
`deficiencies that were identified by the CCC as there weresituations
`
`identified that only Dr. Asante had first-hand knowledgeof. This information
`
`would have mitigated some of the examples that were provided and, as a
`
`result, placed Dr. Asante at the appropriate level of a 3 out of 5 per the
`
`ACGME surgical milestones. Therefore, changing which,if any, deficiencies
`
`needed to be included in the remediation plan, and therefore potentially
`
`negating a need to administer a LOD all together. Dr. Asante’s liberty interest
`
`of a successful remediation, that would haveled to his continuation in the
`
`

`

`
`
`program, wasnotprotected here as having an accurate remediation plan set
`
`forth based on the correctly identified level of the proposed deficiency would
`
`have contributed to his ability to demonstrate improvementin that core
`
`competency.
`
`Given the extent of UConn GME’s disregard of the prescribed residency/fellow
`
`policies and procedures, UConn GMEandits officials have violated Dr. Asante’s
`
`procedural and constitutional rights to due process as further evident by the fact that
`
`because of the circumvention of the policies and procedures, UConn GMEandits
`
`officials would be directly affecting Dr. Asante’s jural relations with other certifying
`
`bodies such as the American Board of Surgery. The failure to afford Dr. Asante the due
`
`processthat is outlined in the residency/fellow policies and procedures, when following
`
`such due process could have changedthe level at which he wassaid to be performing,
`
`clearly demonstrates a substantial departure from accepted academic norms and
`
`additionally demonstrates failure to exercise professional judgement on behalf of UConn
`
`GMEandits officials, which, is also evident when taking into consideration that the
`
`milestones have to be reported to the ACGME,andas discussedearlier, are not entirely
`
`accurate as presented and documented in the LOD. Furthermore,the facts discussed thus
`
`far additionally demonstrate an incursion upon Dr. Asante’s constitutionally protected
`
`interest of the right to due process in regard to protecting his liberty interest to obtain
`
`board certification through the American Board of Surgery in addition to liberty interest
`
`in defending any claims made against him that could either tarnish his reputation/good
`
`standing in the program orbe usedto bring disciplinary or remedial action against him.
`
`Also, the facts, as they have been presented thus far, clearly demonstrate an additional
`
`

`

`
`
`
`
`incursion upon Dr. Asante’s protected procedural due process rights as Dr. Asante has a
`
`protected property right to continued appointmentas a surgical resident in the program.
`
`Dueto the incursion of Dr. Asante’s protected constitutional and procedural due
`
`processrights, he has been adversely affected as he has been refrained from practice
`
`since January 9", 2023 to current. This has caused Dr. Asante to not be able to continue
`
`to meet requirements needed for successful completion of the program (for example,
`
`obtaining his case numbers needed to become boardeligible), in addition to cause him to
`
`lose all health benefits and insurance through the program (see exhibit H). Furthermore,
`
`Dr. Asante will be irreparably harmedsince the program will not be holding his residency
`
`spot after May 9" andhe will not be given credit for his third post graduate year of
`
`training, which will delay his graduation (see exhibit I). Dr. Asante is also being formally
`
`recommended for dismissal from the residency program (see exhibit I) which will cause
`
`irreparable harm as he will not be able to obtain equitable and justrelief in the future
`
`through furtherlitigation absent Court intervention.
`
`I.
`
`LAW
`
`Pursuant to Connecticut General Statutes § 52-471, an injunction may be granted
`
`in equity. “The purpose of a temporary injunction is to preserve the status quo until a
`
`final determination ofthe parties’ rights after a hearing on the merits.” Clinton v.
`
`Middlesex Mut. Ass. Co., 37 Conn. App. 269, 270 (1995). When determining
`
`whether to grant an injunction, the Court utilizes a four- part test. An injunction will
`
`be granted where the movant shows: 1) no adequate legal remedy; 2) irreparable
`
`injury absent an injunction; 3) likelihood of success on the merits; and 4) the balance
`
`

`

`
`
`
`
`of equities favors the issuance of an injunctions. Waterbury Teachers Assn.v.
`
`Freedom of Info. Comm’n, 230 Conn. 441, 446 (1994). Once a party seeking an
`
`injunction showsthat an injunction is necessary to prevent irreparable harm and either
`
`a likelihood of success on the merits or sufficiently serious questions going to the
`
`merits of the claim so as to makeit fair groundsforlitigation, an injunction may issue
`
`so long as the balance of the hardshipstips in favor of the movingparty. Phillip v.
`
`Fairfield Univ., 118 F.3d. 131, 133 (2d Cir. 1997).
`
`'
`
`“A party seeking injunctive relief has the burden ofalleging and proving
`
`irreparable harm anda lack of an adequate remedy at law.” Tighe v. Berlin, 259
`
`Conn. 83, 87, 788 A.2d 40 (2002). “If irreparable injury is demonstrated,thetrial
`
`court ought to issue the temporary injunction, unlessit is clear that the plaintiff will
`
`not prevail on the merits.” Danso v. University of Connecticut, et al. (2007) 919 A.2d
`
`1100, 50 Conn.Supp. 256 citing Olcott v. Pendleton, 128 Conn. 292, 295, 22 A.2d
`
`633 (1941).
`
`lil.
`
`ARGUMENT
`
`The undersigned submits that, based on the above, the Applicantsatisfies all the
`
`elements for obtaining a temporary injunction. Moreover, the undersigned submits
`
`that the entry of an ex-parte injunction is necessary and appropriate here, as UConn
`
`GMEis, quite literally, attempting to tack on an extra year to Dr. Asante’s academic
`
`career, or, not give credit for Dr. Asante’s third academic year because of UConn
`
`GME’s failure to comply with their own written policies and procedures, in addition
`
`to, unsupported and undocumented claims about Dr. Asante’s academic performance
`
`and or remedial success.
`
`

`

`
`
`A. The Applicant Has No Adequate Remedy at Law
`
`“Adequate remedy at law’ means a remedy vested in the complainant, to
`
`which he may,at all times, resort, at his own option, fully and freely, without
`
`let or hindrance.” Stocker,et al. v. City of Waterbury, 154 Conn. 466, 449,
`
`226 A.2d 514 (1967) (internal citations omitted).
`
`An injunction is necessary and appropriate in this case because, absent the
`
`same, Dr. Asante has no other remedyat law as evidenced by the fact that the
`
`LODis not appealable (see exhibit C). More specifically, if the conduct of the
`
`Respondentcontinues, Dr. Asante will not be able to bring claim to “undo”
`
`UConn GME’s actions as he will lose his residency position on May 9" and
`
`his contract will expire on May 30"ofthis year. Thatis, he will not be able to
`
`assert any type of claim that would result in appropriaterelief. If UConn
`
`GME’s conduct continues, Dr. Asante will necessarily miss all opportunity to
`
`continue the clinical and operative work needed to obtain credit for his third
`
`post graduate year of surgical training, which would delay his graduation date.
`
`Oncethis happens, Dr. Asante would haveto redo his third post graduate year.
`
`Dr. Asante would not be able to later sue for an order indicating that he be
`
`allowed to make up workin orderto obtain credit for his third post graduate
`
`year for the purposesof not delaying his graduation. No subsequent lawsuit
`
`could result in the make up for the education that Dr. Asante would (and
`
`should) have received by continuing to practice during this time. Likewise,
`
`Dr. Asante obviously would be unable to successfully assert a claim that he
`
`should be entitled to a degree and/or reappointmentcontract through UConn
`
`
`
`

`

`
`
`GMEonthe basis that UConn GMEprevented him from successful
`
`remediation and thus continuation through the program. Additionally, even if
`
`he wereto try and assert a claim for monetary damages,the injury that Dr.
`
`Asante would suffer is not one that could be repaired by money.
`
`Based onthe above,it is clear that absent an injunction, Dr. Asante has no
`
`remedyat law to addressthis grievance.
`
`B.
`
`Irreparable Harm to Applicant
`
`In order to demonstrate irreparable harm for purposes of an
`
`injunction, an applicant must demonstrate that there is a substantial
`
`probability that the harm complained of will result; and that if that harm
`
`occurs, it will be irreparable. See International Ass’n of Firefighters, Local
`
`
`786 v. Serani, 26 Conn. App. 610, 616, 602 A.2d 1067 (1992). Dr.
`
`Asante’s allegationsfulfill both of these two elements. Specifically, there
`
`is more than a substantial probability that the harm Dr. Asanteis
`
`complaining of (being dismissed from the program andor delayed
`
`graduation) will result; there is an absolute certainty. As set forth above,
`
`UConn GMEhastold Dr. Asante in writing that he will lose his residency
`
`position come May 9"andthat he is also being recommendedfor
`
`dismissal. With the certainty of the harm established, the only element that
`
`Dr. Asante must demonstrate is that there is probable cause that harm
`
`itself will be irreparable.
`
`If UConn GME’s actions stand, Dr. Asante will not only be
`
`dismissed from the program, therefore not being afforded the opportunity
`
`
`
`

`

`
`
`agreed upon,but he will also not be given credit for his third post graduate
`
`year of training therefore extending his training and delaying his original
`
`graduation date. There can be no dispute that such outcomes, in some way,
`
`decrease his academic standing and negatively affect him when he seeks
`
`employment, fellowship opportunities, and board certification through the
`
`to fulfill the five-year appointmenthe and the UConn GMEinitially
`
`American Board of Surgery; not to mention that the delay in an ability to
`
`graduate on time will necessarily mean that he is forced to lose a year of
`
`working in the field of his choice. This will cause unknown(and
`
`unprovable) financial ramifications for Dr. Asante but worse,still it will
`
`also cause a year-long delay in his transition from resident physician to
`
`attending surgeon — and there can be no dispute that he will have no way
`
`to repair the harm oflosing a year ofhis professionallife.
`
`As moreset forth in the affidavit, Dr. Asante has explored the
`
`possibility of transferring to a different university or college to complete
`
`his surgical training, however, based on his research, any such a transfer
`
`(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
`
`relations with other surgical programs, which thus, raises questions of
`
`future jurisdiction. Additionally, Dr. Asante would not be able to graduate
`
`any soonerat another surgical program than he would at UConn GME.
`
`Assuch,the harm that will result to Dr. Asante without the entry
`
`of an injunction is certain and irreparable.
`
`

`

`C. Applicant’s Probability of Success on the Merits
`
`Although generally immune from suit because of sovereign
`
`immunity, injunctive relief may be obtained againsta state official or
`
`entity acting 1) in excessof its statutory authority; or 2) unconstitutionally.
`
`Dansov. University of Connecticut, supra at 262, citing Cox v. Aiken, 278
`
`Conn. 204, 212, 897 A.2d 71 (2006).
`
`Here, Dr. Asante has a meritorious claim that UConn GME
`
`violated his constitutional rights to due process. Specifically, UConn
`
`GME’s disciplinary actions against Dr. Asante, as evidenced by the poor
`
`performance review as documented in the LOD in addition to the
`
`subsequent sanctions that were imposed on Dr. Asante becauseofthe
`
`existence of the LOD (i.e, administrative leave, goodnessof fit
`
`evaluation), violated Dr. Asante’s procedural due processrights, insofar as
`
`UConn GMEdisregarded its own procedures and protocols for enacting
`
`discipline, in the form of remediation secondary to poor performance,
`
`against Dr. Asante. “Undoubtedly...a student attending a state college has
`
`a liberty interest in continuing that education.” Board of Regents v. Roth,
`
`408 U.S. 564, 572, 92 S. Ct. 2701, 33 L-.Ed.2d 548 (1972). “Disciplinary
`
`actions which seriously damagea student’s reputation amongfellow
`
`students and teachers, and which may impair future educational and
`
`employment opportunities affect a liberty interest and such actions must
`
`satisfy procedural due process.” Goss v. Lopez, 419 U.S. 565, 575-76, 95
`
`S. Ct. 729, 42 L.Ed 725 (1975). For arguendo, even if UConn GMEclaims
`
`
`
`
`
`

`

`that their actions against Dr. Asante were done so in a purely academic
`
`manner, that claim could simply not be upheld. Morespecifically, the
`
`ACGMEasserts that the level of the milestones that UConn GMEusedto
`
`deem Dr. Asante ‘deficient’, “do not correspond with post-graduate year
`
`of education”. Additionally, “there is no predetermined timingfor a
`
`resident to attain any particular leve|”(see exhibit A). Therefore, UConn
`
`GME’s actions cannot be considered purely academicas they violate the
`
`standards and purpose of the milestones as outlined by the ACGME.
`
`Therefore, the intention, which surely can be assumedor implied given
`
`whathas been explained thusfar, in addition to the nature ofthe claims
`
`being made which seem to focus more on actions taken by Dr. Asante then
`
`academic benchmarks, of UConn GMEwasto administer Dr. Asante with
`
`a LOD in a disciplinary manner. Furthermore, since UConn GME’s
`
`actions can be deemeddisciplinary, Dr. Asante should have been afforded
`
`the protected liberty interest of right to due process. Especially seeing as
`
`UConn GME’s actions will affect future employment opportunities and
`
`have certainly damaged his reputation among fellow residents and faculty
`
`as many werenotified of and or involved in the remediation process.
`
`Based on the facts set forth in Dr. Asante’s affidavit, UConn GME
`
`did not adhere to its own disciplinary proceduresin one or more ofthe
`
`following ways:
`
`
`
`
`
`

`

`Dr. Asante was not able to meet with Dr. Shames and the CCC to
`
`discuss the observed deficiencies or a proposed actionplan prior to
`
`being administered a LOD.
`
`The LOD was administered to Dr. Asante on September 19", whichis
`
`seven daysafter the decision was made on September 12"to
`
`administer Dr. Asante a LOD as opposed to the three-day time
`
`windowdiscussed in the due processsection of the residency and
`
`fellow training manual.
`
`Dr. Asante was not given the opportunity to share information with
`
`the CCC that may have affected their decision to administer Dr.
`
`Asante a LOD prior to being given a LOD asfurther elucidated in the
`
`Affidavit.
`
`Because Dr. Asante was not given the opportunity to meet with the
`
`CCC, he was notable to inquire,clarify, or defend whether the LOD
`
`was being given in an academic or disciplinary manner.
`
`Because Dr. Asante was not given the opportunity as stated abovein
`
`“a”, Dr. Asante was not able to contribute to the academic plan set
`
`forth for his remediation.
`
`vi.
`
`Because Dr. Asante was not able to contribute to the academic plan
`
`set forth for his remediation, the academic plan did not accurately
`
`reflect the deficiencies that were identified by the CCC as there were
`
`situations identified that only Dr. Asante had first-hand knowledgeof.
`
`

`

`
`
`
`
`This information would have mitigated some of the examples that
`
`were provided and,as a result, placed him at the appropriate level of
`
`a 3 out of 5 per the ACGME surgical milestones. Therefore, changing
`
`which, if any, deficiencies needed to be included in the remediation
`
`plan.
`
`In addition to violating Dr. Asante’s due processrights, it appears that UConn
`
`GMEandofficials also acted against Dr. Asante in excess oftheir statutory authority. As
`
`set forth above, the ACGMEsurgical milestones is a byproduct of the established way
`
`surgical residents are to be semiannually evaluated. As such, when UConn GMEofficials
`
`refused, failed or neglected to follow the accepted academic standards of using the
`
`ACGMEmilestones in a more informative (see exhibit A) rather than disciplinary
`
`manner, UConn GMEexceededtheir statutory authority given that UConn GMEandits
`
`officials were acting on behalf of the ACGMEandnotthe board oftrustees. Per the
`
`ACGME’s website, accredited schools are also recommendedto follow their own
`
`policies and procedures which whoalso suggest that UConn GMEwasstill exceeding
`
`their statutory authority even on behalf of the ACGME.Thelogical claim that could thus
`
`be madeis that, since the ACGMEis nationally accredited, the adherenceto the policies
`
`and proceduresin regard to due process, should fall under the U.S Constitution and or
`
`federal regulations and statutes. I would also argue, that UConn GME’s continued refusal
`
`to allow Dr. Asante to return to practice even with passing and being recommended for
`
`return to practice by their own employeeassistance program counselor, David Francis,
`
`UConn GMEisfurther demonstrating behavior that exceedstheir statutory authority.
`
`Correspondingly, sovereign immunity does not, and should not, apply, and Dr. Asante is
`
`

`

`
`
`entitled to enforce his rights against the schoolin orderto protect his constitutional
`
`liberty interests as previously described.
`
`While the undersigned acknowledges that UConn GMEhasbroad
`
`discretion with the discipling of students and the administration ofits resident/fellow
`
`policies and procedures, it cannot and should not be allowed to completely disregard
`
`prescribed rules and procedures wholesale, as happened here. Furthermore,the
`
`interesting legal question that also arises through the analysis of this caseas it pertains to
`
`the law has to do with the resulting jurisdictional issueit raises. In this specific case,
`
`should UConn GMEbeallowed the deference granted to colleges and universities, with
`
`respect to academic andordisciplinary actions, to circumvent their own prescribed
`
`policies and procedures when that circumvention will affect jural relations with other
`
`state and nationally accredited boards? Also

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket