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Yerra v. Mercy Clinic Springfield Communities

Court of Appeals of Missouri, Southern District, Second Division

November 1, 2017

SHANTI S. YERRA, M.D., Respondent,
v.
MERCY CLINIC SPRINGFIELD COMMUNITIES, f/k/a ST. JOHNS HEALTH SYSTEM, INC., Appellant.

         APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Michael J. Cordonnier, Judge

          OPINION

          DANIEL E. SCOTT, J.

         Dr. Shanti Yerra successfully sued Mercy Clinic for wrongful discharge on a whistleblower theory. Mercy appeals, urging in part that Dr. Yerra failed to make a submissible case.[1] We agree, reverse the judgment, and remand with directions to enter judgment in Mercy's favor.

         General Legal Principles

         Generally, an at-will employee can be discharged for any reason or no reason. Fleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81, 92 (Mo. banc 2010). A "very narrowly drawn" public-policy exception, often called the wrongful-discharge doctrine (Margiotta v. Christian Hosp. NE NW, 315 S.W.3d 342, 346 (Mo. banc 2010)), applies to both at-will and contract employees. Keveney v. Missouri Military Acad., 304 S.W.3d 98, 103 (Mo. banc 2010).[2]

         In this context, a public-policy claim "must be based on a constitutional provision, a statute, a regulation based on a statute or a rule promulgated by a governmental body." Margiotta, 315 S.W.3d at 346. "Absent such explicit authority, the wrongful discharge claim fails as a matter of law." Id. "Moreover, not every statute or regulation gives rise to an at-will wrongful termination action." Id. "A vague or general statute, regulation, or rule cannot be successfully pled under the at-will wrongful termination theory, because it would force the court to decide on its own what public policy requires." Id.

         That said, "a plaintiff need not rely on an employer's direct violation of a statute or regulation." Fleshner, 304 S.W.3d at 96. "Instead, the public policy must be reflected by a constitutional provision, statute, regulation promulgated pursuant to statute, or a rule created by a governmental body." Id. The pertinent inquiry is whether the cited authority "clearly prohibits the conduct at issue in the action." Margiotta, 315 S.W.3d at 347.

         Subject to these parameters, Missouri's public-policy exception protects an employee who reports legal violations or wrongdoing to superiors or third parties ("whistleblowing") or refuses to perform an illegal act. Id. at 346, 347; Fleshner, 304 S.W.3d at 92. An employee terminated for either reason has a common-law tort action for wrongful discharge. Fleshner, 304 S.W.3d at 92.[3]

         To summarize, a whistleblower plaintiff must demonstrate that: (1) she reported serious misconduct that constituted a violation of the law and of well-established and clearly-mandated public policy; (2) her employer discharged her; and (3) her report causally contributed to the discharge. Van Kirk v. Burns & McDonnell Eng'g Co., Inc., 484 S.W.3d 840, 844-45 (Mo.App. 2016).

         However, the public-policy exception affords no "protected status for making complaints about acts or omission he merely believes to be violations of the law or public policy." Margiotta, 315 S.W.3d at 348. To merely cite a statute, regulation, etc., without demonstrating how the reported conduct violated it cannot form the basis for a wrongful-discharge action. Id.

         Thus it is essential that a reported act did violate public policy, not merely that the plaintiff so believed, even if her belief was reasonable. Newsome v. Kansas City, Missouri Sch. Dist., 520 S.W.3d 769, 779 (Mo. banc 2017).[4] Whether a reported act violated public policy is a legal question for the trial court in determining whether the plaintiff has made a prima facie case. Id.

In other words, only after the circuit court decides an act constitutes a violation of public policy as "reflected by a constitutional provision, statute, regulation promulgated pursuant to statute, or a rule created by a governmental body, " Fleshner, 304 S.W.3d at 96, may the circuit court then submit an instruction to the jury based on the act.

Id.

         Case Background[5]

         Dr. Yerra worked for Mercy as an internal medicine physician. She treated a patient in her 60's who had been hospitalized several times over several weeks for heart issues and other conditions. The patient's condition stabilized and Dr. Yerra referred her to a surgeon, Dr. Cavagnol, for gall bladder removal.

         Dr. Cavagnol accepted the referral, admitted the patient, and asked a cardiologist to confirm that the patient could tolerate anesthesia and surgery. Dr. Yerra learned of the planned cardiac consult and canceled it, deeming it unnecessary given her prior evaluation of the patient.

         Dr. Cavagnol re-ordered the consult and a cardiologist cleared the patient for surgery. When Dr. Yerra learned of this, she called Mercy's Medical Staff Services, where her complaint was summarized and emailed to several administrators:

Dr. Yerra called me this afternoon around 2:30. I made no statements to her except to request the patient's medical record number. When Dr. Yerra was finished with her comments, I told her I would convey the message that follows:
Dr. Yerra admitted a patient (Medicare) for surgery by Dr. Cavagnol. Dr. Yerra's documentation did not indicate a need for a cardiology consult but Dr. Cavagnol called for one anyway which was inappropriate and resulted in unnecessary cost. Dr. Yerra said there was no difference in what she documented and what Dr. Cochran documented. She said again, Dr. Cavagnol's action was inappropriate, resulted in unnecessary cost and was disrespectful to her-she will not tolerate it. She will report this to Medicare if it continues. "This type of care sucks!" "If we are an [Accountable Care Organization], these things should not happen."

         Mercy's investigation concluded that the cardiology consult was appropriate, within the standard of care, and not an unnecessary cost. But issues were discerned regarding Dr. Yerra, who had been put on several improvement plans previously. A new improvement plan was devised for her, but after further events, including an intensive care incident, Mercy terminated Dr. Yerra's employment.

         Dr. Yerra sued, citing RSMo §§ 334.100 & 197.285 as public-policy sources for her claim that Mercy wrongfully discharged her for reporting the cardiology consult obtained by Dr. Cavagnol. At trial, the court agreed to give the whistleblower ...


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