Wednesday, June 14, 1995

SUSAN KELLEHER; MICHELLE NICOLOSI
THE ORANGE COUNTY REGISTER

UCI fertility clinic doctors retaliated against whistle-blower Marilyn Killane by transferring her to a series of lesser jobs after she reported their use of unapproved drugs to university officials, according to a confidential report obtained by The Orange County Register.

Excerpts of the UCI report into retaliation against whistle-blowers, written by University of San Diego law Professors Allen Snyder and Charles Wiggins, show the alleged harassment at the Center for Reproductive Health continued until Killane hired an attorney and filed suit against the university. "The adverse evaluations of Killane ... were in response to her reporting allegations of improprieties at CRH by the CRH physicians," the report states. "Criticism of Killane's job performance came after (doctors) knew she was the (source) of the reports on CRH activities."

Killane is one of three whistle-blowers paid a total of $919,370 to settle allegations of retaliation. For that money, the whistle-blowers agreed never to work for the university again and to keep silent about their allegations.

In addition to the report, a UCI official for the first time Tuesday commended Killane for coming forward. University officials in the past have refused to talk about the whistle-blower settlements, saying the accompanying gag orders were made to protect patient confidentiality.

But at a joint press conference with her attorney and UCI representatives, the university gave Killane permission to speak about her ordeal after attorneys for the clinic doctors repeatedly termed the settlements "hush money" paid to hide UCI's role in the controversy.

Killane sat grim-faced while Executive Vice Chancellor Sidney Golub affirmed that her allegations were largely substantiated by investigators, giving UCI officials reason to shut down the clinic.

"Ms. Killane is a consummate health-care professional who, from the beginning, put the well-being of patients ahead of her own career and personal goals," Golub said.

"She deserves our respect and admiration."

Today, Killane will be one of 17 people called to Sacramento to testify at a special state Senate investigative hearing on UCI's fertility clinic. She is scheduled to testify prior to the doctors she accused of running a shoddy practice.

Clinic doctors Ricardo Asch, Jose Balmaceda and Sergio Stone, who were ordered to appear before the committee, have denied doing anything improper. The report obtained Tuesday states: "Killane did not tie Balmaceda to any of the activities at CRH giving rise to this allegation." And Asch's attorney has said the hearings are not an objective fact-finding mission, rather an attempt to further persecute his client.

But for Killane, the hearings represent the end of one of the worst periods in her life.

"My future is very uncertain," Killane, 56, said. "I don't know if I have a future at this point. Do you know anyone who wants to hire a whistle-blower my age?"

The center and its doctors are now the focus of at least seven investigations by federal, state and local officials. Investigations ordered by UCI have found evidence to support allegations that women's eggs were taken, and without their consent, transferred as embryos into other women.

Investigators also said Asch admitted giving two patients the fertility drug HMG Massone, which is not approved by the FDA. The university concluded as many as nine patients were given the drug.

UCI paid Killane more than $325,000 as compensation for being forced out of her job as clinic manager after reporting the allegations to Debra Krahel, then a senior associate director at UCI Medical Center.

Krahel, who was placed on involuntary leave after reporting the allegations to her superiors, also is scheduled to testify today at the senate hearing. Krahel received $495,002 in settlement with the university.

Krahel's settlement with UCI prohibits her from speaking about the matter publicly unless she has been subpoenaed to do so.

The women are referred to as whistle-blowers because of a state law that makes it a crime to retaliate against people who report wrongdoing by a government agency.

Killane's 16-month odyssey has left her bitter and concerned about her future. Since the doctors sent her a letter telling her not to bother coming back to her job, she says she has grown increasingly depressed. She left a job at Cornell University's renowned fertility clinic to move to California to be near her two daughters. Now, she said, she can't wait to go back East.

"This is scary for me," Killane said. "I've always taken care of myself. Things haven't come easy for me, and now I don't know what's going to happen."

She said she had no doubt that she would see the matter through.

"I wasn't going to stop until this thing was finished at any cost," she said. "They cannot play God.

"It's all out now," she said. "Whether people believe me or believe the doctors is up to them."

Register reporter David Parrish contributed to this report.