Letter on Academic Freedom

A letter from the dean of medicine and biological sciences regarding issue of academic freedom

What follows is a letter from Donald J. Marsh, M.D., dean of medicine and biological sciences. It was written in the wake of concerns, expressed by faculty and others, that the academic freedom of Dr. David Kern had been compromised or insufficiently supported

In recent weeks, I have received many expressions of concern regarding the academic freedom of Dr. David Kern, an employee of Memorial Hospital and an associate professor of medicine at the Brown School of Medicine. The issue is whether Dr. Kern's academic freedom may have been compromised or insufficiently supported. In an effort to clarify the situation and determine recommended actions, I appointed a committee to review these allegations. I have just received the committee's report and I would like to take this opportunity to share it with you.

First, I want to assure you that Brown University and the School of Medicine have maintained and will continue to support unequivocally the academic freedom of all Brown faculty. President Gregorian met recently with President Frank Dietz of Memorial Hospital, where Dr. Kern is employed, and received assurances that Memorial Hospital is in full agreement that the principles of academic freedom apply to all hospital-based faculty.

Before I discuss the report and its recommendations, let me address a related concern for the people whose working environment is at the heart of this case. Although the parties involved in this matter continue to disagree on significant points, all are united in their fundamental concern for worker health both locally and in the industry at large. The committee concluded that the company is pursuing good-faith efforts to find a solution to the problems experienced by its employees. Another occupational health physician has been hired to continue the work initiated at the company, and the National Institute for Occupational Safety and Health (NIOSH) continues its work on the problem.

I wish to thank Dr. Peder Estrup, dean of the Graduate School and research; Dr. Lois Monteiro, associate dean of medicine (faculty affairs); Dr. Peter Shank, associate dean of medicine (research and graduate studies), and all who contributed to the report for the thoroughness with which they did their work.

It is our understanding that the situation that gave rise to claims of infringement on academic freedom began in December 1994, when Dr. Kern suspected that a patient's lung disease might have an occupational origin. In order to conduct an investigation at the plant, Dr. Kern signed a confidentiality agreement with the company.

More than a year later, Dr. Kern examined a second patient with a similar complaint, who was employed by the same company. Dr. Kern approached the company and recommended that the company hire him through Memorial Hospital to conduct a hazard evaluation and that the company also involve NIOSH. The company agreed, and work proceeded under an oral agreement. The company received a copy of the hospital's operating principles and guidelines for review and signature from Dr. Kern, but signed neither the guidelines nor a written contract. The confidentiality agreement and the failure to secure a contract guaranteeing the right to publish findings are not consistent with the International Code of Ethics for Occupational Health Professionals.

In October 1996, Dr. Kern informed the company that he was preparing an abstract based on his evaluation of the company for the May 1997 meeting of the American Thoracic Society. The company objected, saying the abstract would contain information in violation of the confidentiality agreement. In November 1996, Dr. Kern sought advice from Dean Peter Shank at the School of Medicine on the applicability of the confidentiality agreement, and not on an issue of academic freedom. Dean Shank consulted with several Brown officials and received conflicting interpretations. Because of those conflicting interpretations and because there had been no written agreement between Dr. Kern and the company, as required by professional standards, Dean Shank adopted a conservative approach; he advised Dr. Kern that submitting the abstract would violete the agreement that Dr. Kern had signed. Notwithstanding this advice, Dr. Kern elected to submit the abstract.

The committee has offered several excellent recommendations which are included in the enclosed summary. While the committee offers clear findings and has made important recommendations for preventing a recurrence of these problems, aspects of this case nevertheless remain in dispute and questions remain unresolved:

It is not agreed whether the confidentiality agreement Dr. Kern signed with the company covered only trade secrets or applied to all findings.
While hospital-based faculty are not required to submit grants and contracts for the University's approval, the confidentiality agreement Dr. Kern signed is not consistent with guidelines governing research at Brown University. Moreover, NIOSH refused to sign the same confidentiality agreement and was able to negotiate a less restrictive agreement with the company.
There may be a perception that the School of Medicine or the Department of Medicine sponsors a Program in Occupational Medicine. Brown has a formal process, described in the "Handbook of Academic Administration," to create a University program. Neither the School of Medicine nor the Department of Medicine has formally created a Program in Occupational Medicine.

The School of Medicine has an obligation to protect faculty rights of academic freedomand we are committed to doing so. Although the company strongly objected to the publication of the abstract and attempted to have the hospital stop its publication, the hospital did not comply. Instead, the hospital requested that Dr. Kern reconsider his decision to publish the abstract. Dr. Kern has published his abstract and will present his work to the American Thoracic Society. I believe his rights to publish have been preserved.

A second right is the ability to conduct research. The hospital has discontinued its occupational health service, for which Dr. Kern had been the sole practicing physician. It is important to note that while no faculty member has an unrestricted right to institutional financial support for research, every faculty member should be able to solicit external support for projects that meet the rules of the institution and preserve its interests, and to conduct the research once the support is available. The committee has concluded that Dr. Kern should be free to pursue contracts that support his academic work, and I agree. I will be meeting with the hospital administration to discuss the procedures necessary to assure that all parties understand the rights and obligations attendant to academic freedom.

The committee has raised questions that require full and thoughtful consideration. The complete text is available on request from my office.

Sincerely yours,

Donald J. Marsh, M.D.
Dean