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Nov 30, 2017

Clear Public Policy Must Support Doctor's Whistleblower Action

ABSTRACT: Whistleblower claims do not apply to all statutory violations. A Missouri trial court erred in allowing a whistleblower claim to go to the jury, because the doctor's cited statutes did not reflect a specific and clear public policy supporting the whistleblower's claim. Whether the doctor reasonably believes an act violates public policy is irrelevant to his or her wrongful discharge claim.

In Yerra v. Mercy Clinic Springfield Communities, the Missouri Court of Appeals for the Southern District of Missouri held that the trial court erred in giving the jury a whistleblower verdict-directing instruction, reversed the jury’s verdict for the whistleblowing doctor, and directed that the trial court enter a verdict in favor of the defendant employer.

Dr. Yerra, an internal medicine physician, treated a Medicare patient in her 60’s who had been hospitalized several times for heart issues and other conditions. After the patient was stabilized, Dr. Yerra referred the patient to Dr. Cavagnol for a gall bladder removal procedure. Dr. Cavagnol accepted the referral and asked a cardiologist to consult as to whether the patient could tolerate anesthesia and surgery.  Upon learning of the cardiac consult order, Dr. Yerra canceled it because she deemed it an unnecessary cost.  Dr. Cavagnol re-ordered the cardiac consult and the cardiologist cleared the patient for the procedure. 

Dr. Yerra complained to Mercy’s Medical Staff Services, stating that the cardiac consult was inappropriate, an unnecessary cost, and disrespectful to her.  She threatened to report the conduct to Medicare if it continued.  Mercy investigated the matter and determined that the consult was appropriate, within the standard of care, and not an unnecessary cost. 

Dr. Yerra, who had previously been put on “improvement plans,” was put on a new “improvement plan.”  However, following subsequent incidents, including one involving an ICU patient, Mercy terminated Dr. Yerra. 

Dr. Yerra brought a whistleblower suit against her former employer, citing R.S.Mo. 334.100 and 197.285, asserting that public policy considerations supported her wrongful termination claim.  While generally, an at-will employee may be discharged for any reason, Missouri law protects employees by a very narrowly-drawn public policy exception.  An employee may bring a whistleblower claim against his or her former employer if it is based on a public policy consideration specifically recognized in a statute, regulation, or rule.  Any vagueness is fatal to the at-will wrongful termination claim. 

R.S.Mo. 334.100 identifies a physician’s duty not to willfully and continually perform inappropriate or unnecessary treatment, diagnostic testing, and/or medical or surgical services.  R.S.Mo. 197.285 requires designated healthcare facilities to off protection to employees who report certain matters, such as facility mismanagement, fraudulent activity, or violations of applicable laws related to patient care. 

Although the trial court was skeptical that Dr. Yerra’s cited statutes were “nonspecific” and did not identify a clear public policy that was not vague or general, it agreed to give Dr. Yerra’s requested whistleblower verdict-directing instruction.  The jury returned a verdict for Dr. Yerra and Mercy appealed.

The Missouri Court of Appeals for the Southern District of Missouri was tasked with determining whether the statutes reflected a clear and specific public policy mandate.  Ultimately, it held that Dr. Yerra was not entitled to a whistleblower instruction for reporting what Dr. Cavagnol did because the record did not demonstrate that the pre-surgery cardiac consult violated any provision of the cited statutes and did not amount to serious misconduct contrary to well-established, clearly-mandated public policy reflected in the statutes.  The Court held that Dr. Yerra’s reasonable belief that Dr. Cavagnol’s conduct violated public policy was not relevant to her wrongful termination claim.  Rather, the whistleblower instruction is only proper when the former employee demonstrates that public policy actually forbade the conduct complained of.