Surgeons tossing tissue? Can you hear the whistle blowing?

My partner, Jim Byrom, did an excellent job at the recent School Law Retreat with a review of recent decisions involving the Whistleblower Act.  I think y’all have a good understanding of the basics of this law. It’s designed to protect those good citizens who report governmental wrongdoing and then get hammered for it.

To prevail, the plaintiff has to show that he or she 1) made a good faith report of 2) a violation of law to 3) an appropriate law enforcement authority.  As Jim pointed out, of these three elements, the one most litigated is “appropriate law enforcement authority.” Lawyers who defend these cases can be real sticklers about this, and there are numerous cases that plaintiffs have lost because the entity to which they blew the whistle did not meet the definition of an “appropriate law enforcement authority.”

The cases are usually interesting. For the pure “ewww…that’s gross” factor, I liked the case of Ellis v. Lubbock County Hospital District, 2014 WL 6478627, decided by the Court of Appeals in Amarillo on November 19, 2014.  A surgical technician reported that surgeons were tossing human tissue around the surgery room. To whom did he report this?   A lot of people.  He reported to the head of education, another person in the education department, the person second in charge at the hospital, the hospital compliance hotline and one other unspecified hospital official.

On cross examination the surgical tech was asked: did any of these people have the power to arrest the surgeon?  No. Could any of them file a criminal case against the tissue-tosser?  I guess not.

The court held that none of these folks were “appropriate law enforcement authority.”  Case dismissed.

By the way, the tech was told that this tissue tossing “happens all the time.”  Hmmm.


Tomorrow: The Dawg tells you about a story you won’t want to hear.  But you need to.