Medical Whistleblower’s Canary Notes

Medical Whistleblower

April 2007

As we remember Martin Luther King, Jr., we should remember how thru

non-violent dissent he raised the consciousness of the civil rights move-

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-

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.

Thurman's 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 life

certain universal principles that are inherent in the moral structure of the universe,

and these principles are as inescapable as the law of gravitation.”

It was in 1955 that Rosa Parks bravely stood up and refused to give up

her seat to white man and which lead to the Montgomery Bus Boycott.

This act of non-violent dissent ultimately led to the US District Court

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

In Remembrance of Martin Luther King Jr.

Title VII and Work-place Harassment

2

There is no immunity for violating Civil Rights

3

Payment of Attorney Fees under Title 43 §1983

4

Badges of State Action 4

42 U.S.C.A. § 2000e-5(k)

5

Inside this issue:

Volume 2 Issue 4

From Civil Rights to Human

Rights: Martin Luther King,

Jr., and the Struggle for

Economic Justice by

Jackson, Thomas F.,

Philadelphia: University of

Pennsylvania Press, 2006.

ISBN 978-0-8122-3969-0

Liability exists in connection with hostile environment sexual harass-ment claim under Title VII if either:

1. Tort is committed within scope of employment, i.e. harasser has actual authority over victim, by virtue of his job description;

2. Employer was negligent or reckless in failing to train, discipline, fire 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 et seq.), which provides for peer review and interstate monitoring of incompetent physicians, and grants qualified immunity from dam-ages for those who participate in peer review activities, but the HCQIA excludes from its coverage suits brought under Title VII.

Austin v. McNamara (1992, CA9 Cal) 979 F2d 728, 92 CDOS 9074, 92 Daily Journal DAR 15051, 1992-2 CCH Trade Cases ¶70037

One of the biggest hurtles to getting justice when you are facing a peer

review committee is the statutory peer review immunity that is almost

always given to these governing bodies. The Peer Review Statute (42

U.S.C.A. §§ 1983, 1085, 12101 et seq.) only granted immunity for an act

or communication within the peer review committee’s scope as a review

entity not for violation of a person’s Civil Rights guaranteed under Fed-

eral Law. But if you can prove that someone violated a person’s civil

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-

ute. See the case (available in West Law) Feyz v. Mercy Memorial

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.

Title VII and Workplace Harassment

Page 2 Medical Whist leblower ’s Canary Notes Volume 2 Issue 4

There is No Immunity for Violating Civil Rights

Deprivation of Rights Under

Color of Official Right

8 U.S.C.A. § 1254(e). See § 8

28 U.S.C.A. § 1343. See § 2[b]

42 U.S.C.A. § 1983. See § 1[a], § 1[c], §

2[a], § 2[b], § 3,

§ 4, § 5, § 6, § 7, § 8, § 9, §

10, § 11, § 12, § 13

42 U.S.C.A. § 1985. See § 2[b]

Explore for Yourself:

A Strange Freedom: The Best of

Howard Thurman on Religious

Experience and Public Life. By

Howard Thurman; Walter E.

Fluker; Catherine Tumber (1998).

Beacon Press, 6. ISBN

080701057X.

Another major hurtle that the Medical Whistleblower has to face is the

need to obtain a competent, dedicated and ethical lawyer who would

fight a long hard battle to obtain justice for the Whistleblower. Because

of retaliation in the workplace, the Whistlebower often loses employment

and ability to use his/her professional skills and credentials to get future

employment. Thus the Whistleblower is severely financially compromised

in attempting to get adequate council. The basic purpose of an award of

damages under 42 U.S.C.A. § 1983 is to compensate persons for actual

injuries caused by the deprivation of constitutional rights. These injuries

can be loss of financial assets, loss of future professional income, emo-

tional injury due to Post Traumatic Stress Disorder or physical injury due

to assault. There are no compensatory damages awarded in a § 1983 suit

if the plaintiff does not prove the actual injury. But a trial court may

award nominal damages to a plaintiff who establishes a violation of his

right to procedural due process even if he cannot prove an actual injury.

This means that if the Whistleblower prevails and is awarded even nomi-

nal damages (due to a Due Process Error) then all the actual costs of the

litigation and the attorney fees may be recoverable under 42 USCA §

1983 . This opens the door for the payment of Attorney Fees from the

Defendants and makes easier for the Medical Whistleblower to get an At-

torney. One of the most unique and attractive facets of a claim for de-

nial of due process or equal protection, however, is that if the plaintiff

prevails and is awarded even nominal damages, all actual costs and attorney

fees may be recoverable under 42 USCA § 1988. The attorney fees must be

reasonable and must be approved by the court.

Page 3 Medical Whist leblower ’s Canary Notes Volume 2 Issue 4

(42 U.S.C. § 1985(3)) Conspiracy to deprive a person of their civil rights is the most commonly appli-cable federal claim that victims are notified they may file.

42 U.S.C. § 3631 provides, in perti-nent part: Whoever…by force or threat of force willfully injure, intimi-dates or interferes with, or attempts to injure, intimidate or interfere with—(a) any person because of his race, color, religion, sex, handi-cap..., familial status..., or national origin and because he is or has been... purchasing, [or] occupying... any dwelling... shall be fined under this subchapter or imprisoned not more than one year, or both.

18 U.S.C. § 241 provides, in perti-nent part: If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State... in the free exercise or enjoyment of any right or privi-lege secured to him by the Consti-tution or laws of the United States... They shall be fined under this title or imprisoned not more than ten years, or both.

42 U.S.C.

Payment of Attorney Fees on Title 42 § 1983

Badges of State Action To prove that the retaliation was "Under Color of State Law" within the meaning of 42 USCA § 1983 the following can be used to document “Color of State Law” action: receipt of Hill-Burton funds, receipt of medicaid and medicare funds, state regulations relating to the operation of private hospitals, use of public funds for tax free municipal bonds, state and county grants, etc., exemption of the hospital from state and county real estate and income taxes, funding through contributions which are deductible as charitable donations for federal income tax pur-poses.

Dr. Janet Parker

P.O. Box C

Lawrence, KS 66044

We are on the Web!

MedicalWhistleblower.googlepages.com

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 party's rea-

sonable attorney's 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.

29 U.S.C.A. § 791. See § 9 29 U.S.C.A. § 794a(a)(1). See § 9 42 U.S.C.A. § 794a(b). See § 9 42 U.S.C.A. § 1983. See § 2[a] 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 U.S.C.A. § 2000e. See § 3 42 U.S.C.A. § 2000e-5(f). See § 9 42 U.S.C.A. § 2000e-5(g). See § 3 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]

Title VII of the Civil Rights Act

42 U.S.C.A. § 2000e-5(k)

Phone: 360-809-3058

Fax: None

E-mail: MedicalWhistleblower@gmail.com

Supporting the Emotional Health of All Whistleblowers

and their Friends, Supporters and Families.

Medical Whistleblower

Color of State Law- Deprivation of

Right

42 USCA § 1983

42 USCA §§ 1982

42 USCA § 1988

42 U.S.C.A. §§ 11101

The information contained through the Medical Whistle-

blower Canary Notes Newsletter is provided for general

information only. The information provided by the Medial

Whistleblower Canary Notes does not constitute legal or

professional advice nor is it conveyed or intended to be con-

veyed in the course of any adviser-client discourse, but is

intended to be general information with respect to common

issues. It is not offered as and does not constitute legal or

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 facts

of your specific situation. We encourage you in due diligence

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 legal

and medical aspects of these issues .