Here are three court decisions that illustrate how healthcare workers have attempted to use tort (personal injury) law against doctors for bullying behaviors, with varying success.
A bit of background: Although targets of workplace bullying currently do not enjoy abundant legal protections against this form of mistreatment, some have filed tort claims in an effort to gain redress. As I have explained at length in two law review articles (“The Phenomenon of ‘Workplace Bullying’ and the Need for Status-Blind Hostile Work Environment Protection” and “Crafting a Legislative Response to Workplace Bullying,” both available in the Free Articles section of this blog), employees face an uphill battle using this legal route. But some do prevail.
RAESS v. DOESCHER, Indiana Supreme Court (2008)
In the 2008 case of Raess v. Doescher, the Indiana Supreme Court affirmed a jury award of $325,000 for assault to a perfusionist (operator of “a heart-lung machine during open heart surgeries”) who brought an action against a surgeon for an altercation at a hospital. The claim was based on the following factual allegations:
(T)he defendant, angry at the plaintiff about reports to the hospital administration about the defendant’s treatment of other perfusionists, aggressively and rapidly advanced on the plaintiff with clenched fists, piercing eyes, beet-red face, popping veins, and screaming and swearing at him. The plaintiff backed up against a wall and puts his hands up, believing that the defendant was going to hit him…. Then the defendant suddenly stopped, turned, and stormed past the plaintiff and left the room, momentarily stopping to declare to the plaintiff, “you’re finished, you’re history.”
The Court’s decision was based largely on procedural and evidentiary issues. It rejected a challenge to expert testimony about workplace bullying rendered by Dr. Gary Namie for the plaintiff, finding there was nothing in the record to suggest that Namie’s testimony was inadmissible, and ultimately holding that the issue was not properly preserved for appellate review. It also held that the trial court “did not abuse its discretion in refusing” the defendant’s tendered jury instruction concerning workplace bullying.
The legal impact of Raess v. Doescher with regard to workplace bullying is modest because of the limited scope of the Indiana Supreme Court’s holdings. It created no new legal claim, and did not expand substantive tort law in a way that might pave the way for future plaintiffs. However, the decision has received national attention because the media characterized it as a successful workplace bullying claim. It has been cited as evidence of a growing liability risk that counsels employers to take workplace bullying more seriously.
HOLLOMON v. KEADLE, Arkansas Supreme Court (1996)
Most bullying-type lawsuits that allege the a claim of intentional infliction of emotional distress are not successful, with courts holding that the offending behavior was not sufficiently outrageous. Perhaps the most stunning example of this reasoning came in Hollomon v. Keadle, a 1996 Arkansas Supreme Court case that involved a female employee, Hollomon, who worked for a male physician, Keadle, for two years before she voluntarily left the job.
Hollomon claimed that during this period of employment, “Keadle repeatedly cursed her and referred to her with offensive terms, such as ‘white nigger,’ ‘slut,’ ‘whore,’ and ‘the ignorance of Glenwood, Arkansas’.” Keadle repeatedly used profanity in front of his employees and patients, and he frequently remarked that women working outside the home were “whores and prostitutes.”
According to Hollomon, Keadle “told her that he had connections with the mob” and mentioned “that he carried a gun,” allegedly to “intimidate her and to suggest that he would have her killed if she quit or caused trouble.” Hollomon claimed that as a result of this conduct, she suffered from “stomach problems, oss of sleep, loss of self-esteem, anxiety attacks, and embarrassment.”
On these allegations, the Arkansas Supreme Court ruled for the defendant Keadle, holding that Hollomon’s failure to establish that Keadle was made aware of her peculiar vulnerability to emotional distress was fatal to her claim.
SNYDER v. TURK, Ohio Court of Appeals (1993)
The defendant, Turk, was a surgeon performing a gall-bladder operation. According to Turk, a nurse, plaintiff Snyder, was making mistakes and complicating an already difficult procedure. Turk became so exasperated that when Snyder handed him the supposedly wrong instrument, he grabbed her shoulder, pulled her face down toward the surgical opening, say “Can’t you see where I’m working? I’m working in a hole. I need long instruments.”
At trial, after the plaintiff presented her evidence, the judge directed a verdict for Turk, holding that Snyder, among other things, had not established that Turk (1) had not established the elements of intentional infliction of emotional distress; and (2) had not established the elements of battery (offensive or harmful touching).
The Ohio Court of Appeals agreed that the emotional distress claim was not warranted, it reinstated the battery claims finding that a jury could have found the physical contact to be offensive.
THE ROLE OF WORKERS’ COMPENSATION
It is notable that all three of these claims were brought against individual doctors, not the hospitals or clinics where they worked. It is quite possible this was the case because in many states, workers’ compensation precludes workers from bringing individual lawsuits against their employers for intentional harm at work. Workers’ compensation is designed to largely replace personal injury lawsuits as a means of compensating employees for injuries suffered on the job.
However, workers’ compensation may not necessarily insulate individual co-employees from being sued. Doctors should take note, as those who bully and have “deep pockets” (i.e., money to pay damages in a lawsuit) could find themselves personally liable for their own behaviors.
Link to the first in this series of posts on bullying in health care, discussing the Joint Commission standards
Link to the second post in the series, discussing the Vanderbilt University Medical Center remedial program for physicians
Link to the fourth and final post in the series, discussing bullying of nurses and how nurses’ unions can respond