Judge: Dubuque doctor ignored ban on elective procedures, citing ‘no consequences’

By: - September 22, 2020 12:51 pm

UnityPoint Health-Des Moines is going to court to try to block the creation of two new cardiac catheterization labs. (Photo by Sean Gallup/Getty Images)

A Dubuque plastic surgeon knowingly violated the governor’s ban on elective medical procedures, telling a colleague there would be “no consequences” for violating the order, an administrative law judge has ruled.

The judge’s findings spring from an unemployment claim filed by Jolene Patterson, a registered nurse in the office Dr. Erin Kennedy of Plastic Surgery Aesthetics in Dubuque.

According to state records, Patterson was hired by the clinic on Aug. 29, 2019, as a full-time registered nurse. The clinic performs reconstructive surgery, cosmetic surgery, liposuction, laser surgery, Botox injections and other services, with Kennedy overseeing the business and performing medical procedures.

On March 26, Iowa Gov. Kim Reynolds signed a proclamation continuing a State Public Health Emergency Declaration related to the COVID-19 pandemic. The proclamation stated that “all nonessential or elective surgeries and procedures that utilize personal protective equipment (PPE) must not be conducted by any hospital, outpatient surgery provider, or outpatient procedure provider, whether public, private, or nonprofit.”

Two days after the proclamation, Patterson allegedly asked Kennedy whether the proclamation applied to the clinic and inquired about the treatment of patients and the clinic’s continued use of personal protective equipment, or PPE, in the facility.

Kennedy allegedly replied with a text message, “I think we fall under it. I also found no consequences.” In an apparent reference to her medical malpractice insurance and the prospect of a comprehensive stay-at-home order from the governor, Kennedy added, “My med mal covers even if formal stay at home.”

On March 29, Kennedy sent a text to the staff indicating that all elective surgery was suspended but the office would remain open.

On April 1, law enforcement officials arrived at the office and asked Kennedy whether she was violating the proclamation. According to state records, Kennedy told them she was only providing post-operative treatment for patients.

The office schedule, however, showed at least one coming patient appointment for “cool sculpting,” a medical process for reducing fatty bulges by freezing fat cells. Patterson allegedly asked Kennedy why she continued to see patients for nonessential, medical spa treatments, and Kennedy allegedly replied that she felt her procedures were essential for patients.

Kennedy then reportedly scheduled Patterson in the mornings when she would not have to see Botox-injection and cool-sculpting patients that were seen in the afternoons.

The clinic’s receptionist allegedly reported no change in office hours, wages or appointments after the governor’s proclamation, and Patterson said she saw information of the patient schedule showing nonessential spa procedures still were being performed.

Concerned that her own nursing license might be in jeopardy, Patterson contacted the Iowa Board of Nursing and sought guidance on the issue. State records indicate the board advised Patterson not to work in the office while it was in violation of the governor’s order.

On April 3, Patterson resigned, then filed for unemployment insurance benefits. The clinic contested the claim but Administrative Law Judge Beth A. Scheetz ruled in Patterson’s favor, saying she had quit with good cause that was attributable to her employer.

Patterson, Scheetz ruled, “repeatedly notified the employer of what she considered to be a violation of the proclamation. Dr. Kennedy, in a text, indicated she knew her practice fell under the proclamation and her intent was to violate the proclamation. Dr. Kennedy thought her medical malpractice insurance would protect herself during the violation. She showed no sensitivity for the license of the claimant.”

Scheetz awarded Patterson unemployment benefits.

Kennedy could not be reached for comment at her office Tuesday. The Iowa Board of Medicine indicates Kennedy’s license remains in good standing with the state, with no public record of any disciplinary action.

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Clark Kauffman
Clark Kauffman

Deputy Editor Clark Kauffman has worked during the past 30 years as both an investigative reporter and editorial writer at two of Iowa’s largest newspapers, the Des Moines Register and the Quad-City Times. He has won numerous state and national awards for reporting and editorial writing. His 2004 series on prosecutorial misconduct in Iowa was named a finalist for the Pulitzer Prize for Investigative Reporting. From October 2018 through November 2019, Kauffman was an assistant ombudsman for the Iowa Office of Ombudsman, an agency that investigates citizens’ complaints of wrongdoing within state and local government agencies.