Lawyers generally advise their clients to refrain from public comment on the substance of pending litigation, perhaps on the theory that they might inadvertently say something to damage their cause. But silence occasionally carries its own risks, as appears to be the case in the whistleblower lawsuit filed last month against Dartmouth-Hitchcock health system by Mark Israel, former director of D-H’s Norris Cotton Cancer Center.

As staff writer Rick Jurgens has reported, Israel alleges that he was forced out of his job in retaliation for protesting to senior D-H officials their diversion of $6 million in funds donated for cancer research and cancer patient support services to cover an operating loss for fiscal 2015. (Of that amount, $1.6 million came from The Prouty, perhaps the Upper Valley’s largest, best-known and most successful philanthropic endeavor.) Israel contends that D-H’s senior management, including chief executive James Weinstein, breached its fiduciary duty by using the money in a way “inconsistent with donor intent.” 

D-H’s public response so far has consisted of denying that it wrongfully terminated Israel and asserting that contrary to his allegations, “Dartmouth-Hitchcock took action to ensure proper administration, oversight and compliance with required accounting standards and state law governing all charitable donations.” It expressed appreciation to donors and asserted that it is committed to using their donations “in accordance with donor intent.”

The board of directors of the Friends of the Norris Cotton Cancer Center, the fundraising arm of the center, attempted, but failed, to clarify the situation in a letter to the editor Oct. 28. Indeed it was sufficiently opaque that the only concrete thing we took away from it was the following: “D-H and (Dartmouth) college are working together to develop a governance agreement for the cancer center that will, among other things, specify exactly how Friends-raised dollars may be spent so that donor intent will always be met.” From this we infer that no such governance has been in place, which is astonishing in its own right. 

In a subsequent court filing, D-H sought to have the suit dismissed on the grounds that under a “transition agreement” Israel signed in 2016 governing his separation from D-H, any such claims are subject to binding arbitration and cannot be litigated in court. The filing did not address Israel’s central claim about the diversion of cancer center donations. “We’ll deal with the merits separately,” either in court or in arbitration, Don Schroeder, D-H’s lawyer, told Jurgens.

While that’s certainly a reasonable stance in normal circumstances, it is shortsighted in this one. Whatever venue Israel’s claims are eventually heard in, it will likely take a long time to resolve them. Meanwhile, thousands of well-meaning volunteers who have gone the extra mile to support the cancer center’s mission are left to wonder whether the money they raised was indeed diverted from its intended purpose. D-H’s public statement invokes unspecified accounting standards and compliance with state law, but does not address the substance of the allegation. And even if the diversion — if indeed there was one — met legal standards, that does not speak to D-H’s good-faith obligation to use the funds in a manner consistent with donors’ intent.

If D-H were a purely private, for-profit entity, it would be under no obligation to explain itself until the case gets to court or arbitration. But such a high-profile, not-for-profit local institution owes to the people who have loyally supported the cancer center a full public explanation of exactly what happened and why. Failing to do so and letting the issue fester for weeks or months threatens to materially diminish a signature fundraising event around which the community rallies each summer. This past July, the two-day Prouty event drew 4,300 participants and 1,200 volunteers who raised $3.1 million for the cancer center. Israel is probably right when he says, “People don’t ride in the Prouty to subsidize the hospital.” It would be a shame if D-H decided to find out for sure.