Medical whistleblower canary notes newsletter 16 mlk title 42 & 1983 april 2007 vol 2 issue 4


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Medical whistleblower canary notes newsletter 16 mlk title 42 & 1983 april 2007 vol 2 issue 4

  1. 1. Medical WhistleblowerApril 2007Volume 2 Issue 4 Medical Whistleblower’s Canary Notes Inside this issue: Title VII and Work- 2 place Harassment There is no immunity for 3 In Remembrance of Martin Luther King Jr. violating Civil Rights Payment of Attorney 4 As we remember Martin Luther King, Jr., we should remember how thru Fees under Title 43 §1983 non-violent dissent he raised the consciousness of the civil rights move- Badges of State Action 4 ment and in 1964 became the youngest person to ever receive the Nobel Peace Prize. His life’s work was dedicated to ending segregation and ra- 42 U.S.C.A. § 2000e- 5 5(k) cial discrimination through civil disobedience and other non-violent means. But the ideas of non-violence he learned from the teachings of great civil rights leader, theologian, and educator Howard Thurman. Thurmans missionary work had taken him abroad where he had met and conferred with Mohandas K. Gandhi. With the assistance from the Quaker Group the American Friends Service Committee (AFSC), Martin Luther King, Jr. visited India and the Gandhi family. This visit pro- foundly affected Dr. King, deepening his understanding of non-violent resistance and his commitment to America’s struggle for civil rights. In a radio address made during his final evening in India, King reflected: “Since being in India, I am more convinced than ever before that the method of nonvio- lent resistance is the most potent weapon available to oppressed people in their struggle for justice and human dignity. In a real sense, Mahatma Gandhi embodied in his lifeFrom Civil Rights to Human certain universal principles that are inherent in the moral structure of the universe,Rights: Martin Luther King, and these principles are as inescapable as the law of gravitation.” Jr., and the Struggle for Economic Justice by It was in 1955 that Rosa Parks bravely stood up and refused to give up Jackson, Thomas F., Philadelphia: University of her seat to white man and which lead to the Montgomery Bus Boycott. Pennsylvania Press, 2006. This act of non-violent dissent ultimately led to the US District Court ISBN 978-0-8122-3969-0 ruling that ended racial segregation on all Montgomery public buses (Browder v. Gayle). See Nojeim, Michael J. (2004). Gandhi and King: The Power of Nonviolent Resistance. Greenwood Publishing Group, 179. ISBN 0275965740
  2. 2. Page 2 Medical Whistleblower’s Canary Notes Volume 2 Issue 4Explore for Yourself: Title VII and Workplace HarassmentA Strange Freedom: The Best ofHoward Thurman on Religious Liability exists in connection with hostile environment sexual harass-Experience and Public Life. By ment claim under Title VII if either:Howard Thurman; Walter E. 1. Tort is committed within scope of employment, i.e. harasser hasFluker; Catherine Tumber (1998). actual authority over victim, by virtue of his job description;Beacon Press, 6. ISBN 2. Employer was negligent or reckless in failing to train, discipline, fire080701057X. or take remedial action upon notice of harassment; or 3. Offender relied upon apparent authority or was aided in commis- sion of tort by agency relationship Civil Rights Act of 1964, §§ 701 et seq., 42 U.S.C.A. §§ 2000e et seq. Bonenberger v. Plymouth Tp., 132 F.3d 20 (3d Cir. 1997). Health Care Quality Improvements Act of 1986 (42 U.S.C.A. §§ 11101 Deprivation of et seq.), which provides for peer review and interstate monitoring Rights Under of incompetent physicians, and grants qualified immunity from dam- Color of Official ages for those who participate in peer review activities, but the HCQIA Right excludes from its coverage suits brought under Title VII. 8 U.S.C.A. § Austin v. McNamara (1992, CA9 Cal) 979 F2d 728, 92 CDOS 9074, 92 1254(e). See § 8 Daily Journal DAR 15051, 1992-2 CCH Trade Cases ¶70037 28 U.S.C.A. § There is No Immunity for Violating Civil Rights 1343. See § 2[b] One of the biggest hurtles to getting justice when you are facing a peer 42 U.S.C.A. § review committee is the statutory peer review immunity that is almost 1983. See § always given to these governing bodies. The Peer Review Statute (42 1[a], § 1[c], § U.S.C.A. §§ 1983, 1085, 12101 et seq.) only granted immunity for an act 2[a], § 2[b], § 3, or communication within the peer review committee’s scope as a review § 4, § 5, § 6, § 7, § 8, § 9, § entity not for violation of a person’s Civil Rights guaranteed under Fed- 10, § 11, § 12, § eral Law. But if you can prove that someone violated a person’s civil 13 rights there is no protection of immunity. Violation of Civil Rights is a malicious act for which there is no immunity under the peer review stat- 42 U.S.C.A. § ute. See the case (available in West Law) Feyz v. Mercy Memorial 1985. See § 2[b] Hosp., 264 Mich. App. 699, 692 N.W.2d 416 (2005); See also 42 U.S.C.A. §§ 1983, 1085, 12101 et seq.; M.C.L.A. §§ 37.1101 et seq., 331.351.
  3. 3. Medical Whistleblower’s Canary Notes Volume 2 Issue 4 Page 3Payment of Attorney Fees on Title 42 § 1983Another major hurtle that the Medical Whistleblower has to face is theneed to obtain a competent, dedicated and ethical lawyer who wouldfight a long hard battle to obtain justice for the Whistleblower. Becauseof retaliation in the workplace, the Whistlebower often loses employmentand ability to use his/her professional skills and credentials to get futureemployment. Thus the Whistleblower is severely financially compromisedin attempting to get adequate council. The basic purpose of an award ofdamages under 42 U.S.C.A. § 1983 is to compensate persons for actualinjuries caused by the deprivation of constitutional rights. These injuriescan be loss of financial assets, loss of future professional income, emo-tional injury due to Post Traumatic Stress Disorder or physical injury dueto assault. There are no compensatory damages awarded in a § 1983 suitif the plaintiff does not prove the actual injury. But a trial court may 42 U.S.C.award nominal damages to a plaintiff who establishes a violation of hisright to procedural due process even if he cannot prove an actual injury.This means that if the Whistleblower prevails and is awarded even nomi- (42 U.S.C. § 1985(3)) Conspiracynal damages (due to a Due Process Error) then all the actual costs of the to deprive a person of their civil rights is the most commonly appli-litigation and the attorney fees may be recoverable under 42 USCA § cable federal claim that victims are notified they may file.1983 . This opens the door for the payment of Attorney Fees from theDefendants and makes easier for the Medical Whistleblower to get an At- 42 U.S.C. § 3631 provides, in perti- nent part: Whoever…by force ortorney. One of the most unique and attractive facets of a claim for de- threat of force willfully injure, intimi- dates or interferes with, or attemptsnial of due process or equal protection, however, is that if the plaintiff to injure, intimidate or interfere with—(a) any person because ofprevails and is awarded even nominal damages, all actual costs and attorney his race, color, religion, sex, handi- cap..., familial status..., or nationalfees may be recoverable under 42 USCA § 1988. The attorney fees must be origin and because he is or has been... purchasing, [or] occupying...reasonable and must be approved by the court. any dwelling... shall be fined under this subchapter or imprisoned notBadges of State Action more than one year, or both. 18 U.S.C. § 241 provides, in perti-To prove that the retaliation was "Under Color of State Law" within the nent part: If two or more personsmeaning of 42 USCA § 1983 the following can be used to document conspire to injure, oppress, threaten, or intimidate any person“Color of State Law” action: receipt of Hill-Burton funds, receipt of in any State... in the free exercisemedicaid and medicare funds, state regulations relating to the operation or enjoyment of any right or privi- lege secured to him by the Consti-of private hospitals, use of public funds for tax free municipal bonds, tution or laws of the United States... They shall be fined under this titlestate and county grants, etc., exemption of the hospital from state and or imprisoned not more than tencounty real estate and income taxes, funding through contributions years, or both.which are deductible as charitable donations for federal income tax pur-poses.
  4. 4. Medical Whistleblower The information contained through the Medical Whistle- blower Canary Notes Newsletter is provided for general information only. The information provided by the MedialDr. Janet Parker Whistleblower Canary Notes does not constitute legal orP.O. Box C professional advice nor is it conveyed or intended to be con-Lawrence, KS 66044 veyed in the course of any adviser-client discourse, but isPhone: 360-809-3058 intended to be general information with respect to commonFax: None issues. It is not offered as and does not constitute legal orE-mail: medical advice or opinion. It should not serve as a substitute for advice from an attorney, qualified medical professional, social worker, therapist or counselor familiar with the factsWe are on the Web! of your specific situation. We encourage you in due to seek additional information and resources before making any decision. We make no warranty, express or implied, concerning the accuracy or reliability of the content of this newsletter due to the constantly changing nature of the legalSupporting the Emotional Health of All Whistleblowers and medical aspects of these issues .and their Friends, Supporters and Families. Title VII of the Civil Rights Act 42 U.S.C.A. § 2000e-5(k) As part of Title VII of the Civil Rights Act of 1964, Congress included a fee-shifting provision (42 U.S.C.A. § 2000e-5(k)) which provides that the prevailing partys rea- sonable attorneys fees will be paid by the non-prevailing party. This means that a lawyer representing the Medical Whistleblower can be paid by the Defendant in the case after the case is won and the courts orders payment of the of the looser to the winner. This helps to get a lawyer to represent you. Color of State Law - Deprivation of Right 29 U.S.C.A. § 791. See § 9 29 U.S.C.A. § 794a(a)(1). See § 9 42 USCA § 1983 42 U.S.C.A. § 794a(b). See § 9 42 U.S.C.A. § 1983. See § 2[a] 42 USCA §§ 1982 42 U.S.C.A. § 1988. See § 2[a], § 2[b], § 3, § 7[b], § 25 [a], § 29[a] 42 U.S.C.A. §§ 2000e et seq.. See § 1[a], § 2[a], § 3, § 28[a] 42 USCA § 1988 42 U.S.C.A. § 2000e. See § 3 42 U.S.C.A. § 2000e-5(f). See § 9 42 U.S.C.A. §§ 42 U.S.C.A. § 2000e-5(g). See § 3 11101 42 U.S.C.A. §§ 2000e-16. See § 9 42 U.S.C.A. §§ 7401 et seq.. See § 2[a] 42 U.S.C.A. § 2000e-5(k). See § 1[a], § 2[a], § 2[b], § 3, § 5, § 7[b], § 9, § 17[b], § 18, § 25[a], § 26[a], § 26[b], § 34[a], § 34[b]