Calls Grow for UC Irvine to Release Report : Inquiry: Whistle-blowers in fertility clinic probe have alleged retribution. Document examines their charges.

TIMES STAFF WRITERS

As allegations about human egg misuse by its famed fertility experts mount, UC Irvine is refusing to disclose results of a probe into whistle-blowers' complaints that they were subjected to a "common scheme of retaliation" by top medical center administrators.

University officials repeatedly have declined to release their findings, saying the inquiry is not finished. But Charles Wiggins, one of two UC San Diego professors who investigated the retaliation complaints, said the report has been done for some time.

State Sen. Tom Hayden, (D-Santa Monica), who is among dozens of legislators, attorneys and journalists pushing for copies of the report, said he was told by university officials that the report is being withheld because it lacks the signature of UC Irvine Chancellor Laurel L. Wilkening.

"The longer they hold the report, the more suspicion they generate," said Hayden, who sought the document in preparation for next Wednesday's hearing on the fertility clinic scandal. While that does not prove a cover-up, the senator said, the university's actions raise questions.

Sidney Golub, UC Irvine's executive vice chancellor, would not discuss the contents of the management audit or whether it would be released.

"I believe the university has been very forthright with the public about all the information we're developing," Golub said. "We have not tried in any way to avoid the complex issues that are presented, but we . . . can't [release information] bit by bit."

The university has taken measures to ensure that the three whistle-blowers, all former UC Irvine Medical Center employees, do not speak about their allegations of clinic misconduct.

The university has agreed to pay the three a total of $919,370, according to settlements that include confidentiality clauses. The whistle-blowers' complaints, detailed in a September letter to the university, led university officials to sue fertility specialists Drs. Ricardo H. Asch, Jose P. Balmaceda and Sergio Stone last month. The doctors deny knowingly engaging in any wrongdoing.

The lawsuit alleges that the doctors transplanted human eggs without consent, gave patients a fertility drug not approved by the government and took hundreds of thousands of dollars that should have been reported to the university.

But the university has yet to detail what became of the whistle-blowers' complaints that they were punished for coming forward. In the September letter, an attorney for the three women said they were "subjected to a common scheme of retaliation."

Daniel John Yakoubian, the San Diego attorney who wrote the letter, said the university's willingness to settle with the women increased the more officials investigated the retaliation complaints. The women were paid about $495,000, $325,000 and $98,000.

In a written statement, UC Irvine officials said the agreements were "reached to settle any liability the university had for claims of retaliation and to avoid litigation."

Each of the whistle-blowers faces a substantial financial penalty if she discloses details of the complaints. The university is not bound by the confidentiality agreement because it is subject to disclosure under the California Public Records Act, said John Lundberg, a UC regents attorney.

But correspondence between the university and others involved in the probe documents UC Irvine's unwillingness to disclose the findings of its inquiry.

Irvine attorney Patrick Moore, who represents Balmaceda, reiterated his demand for the report Monday after learning that the report's co-author said the document was complete.

The next day Moore received a letter from Robert H. Rotstein, an attorney hired by the university to handle litigation against the doctors. The two-page letter accused Moore of making a "knowing and unwarranted attempt to interfere with the university's attorney-client and work product privilege."

Rotstein wrote that the report is "part of pending investigation" and accused Moore of improperly communicating with Wiggins, the report's co-author. Rotstein went on to say that if Moore received confidential information from Wiggins "the university reserves . . . the right to make appropriate motions for your disqualification."

In his reply letter to Rotstein on Wednesday, Moore said he never contacted Wiggins but now plans to "take the deposition of Prof. Wiggins to learn whether this report is in fact complete."

The university also issued a written warning May 31 to whistle-blower Debra Krahel, who received $495,000, reminding her that her agreement bars her from talking. The letter accuses her of talking to reporters and two former UC Irvine employees about the fertility clinic.

Krahel, a senior administrator at the university medical center, was the highest-level employee to bring allegations against the doctors.

In a July 18 letter to a university auditor, Krahel said she was told to keep quiet by medical center executive director Mary Piccione. Krahel wrote that the warning came after she brought fellow whistle-blower Marilyn Killane's concerns to Piccione and her deputy, Herb Spiwak.

Piccione has declined requests for interviews. Her staff referred questions to university spokeswoman Fran Tardiff, who declined to comment. Spiwak also has refused to comment.

Krahel wrote that Killane, manager of the fertility center, came to her in January, 1994, to report the doctors' alleged distribution of a non-government-approved drug imported from Argentina. University officials since have contended that Asch imported and distributed the drug, HMG Massone, to at least nine patients.

Krahel said that when she approached Spiwak about the drug issue, he asked her if she thought she should "get rid of" Killane.

"Herb said she sounded like trouble and I should just fire her," Krahel wrote. "This directive continued throughout subsequent discussions, and I was told not to give Marilyn any reassurance of her continued employment." The next week, she wrote, she approached Piccione, who had been on vacation.

"At this meeting Mary advised me that I had loose lips and should keep the facts about reproductive health to myself. Mary instructed me to let Herb handle everything and that I should defer everything to Herb. Mary advised me to 'forget about all of this.' "

She alleged that the "hostility" toward Killane increased--and that Drs. Asch and Stone joined in. Krahel then temporarily removed Killane from her job and assigned her elsewhere, she wrote.

"On several occasions I was told to terminate Marilyn," she said. "Comments were made about 'She's worthless, why do we keep her on,' etc. I continued to insist that I felt we were at risk to terminate her employment."

The situation worsened, she said, when allegations were "brought forth" that Asch and Stone had stolen eggs from one woman and implanted them in another.

"Marilyn and the other staff members communicated that they had concern that everything was going to be covered up and that corrective measures would not be taken," she wrote.

Krahel said in the letter that Killane had received outstanding reviews before she reported alleged misconduct.

Krahel declined to comment Wednesday. Yakoubian said that Krahel was placed on administrative leave after her complaints.

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