Is My One Man Quest Against Bullying Failing? "Bully case verdict ..."

Check out the story in the next issue of the American Medical News, Bully case verdict a warning to doctors ... , which gave me considerable pause when a reader who has apparently followed my campaign against the bullying cause of action was kind enough to send it to me last night. You can see some of my earlier posts about a bullying cause of action here, here and here, where more than a year ago I noted "employers will rue the day that either the legislature or judiciary start down this broad and ill defined path."

But at least according to the lead paragraph of the AMN story we appear closer to the top of that slippery slope:

When a jury recently ordered an Indiana heart surgeon to pay $325,000 to a hospital employee on a claim of "workplace bullying," experts who have studied the subject said it was a significant decision in a growing, yet murky, area of law.

Basically, heart surgeon, Dr. Daniel H. Raess, apparently yelled at a perfusionist, (the professional who operates the heart/lung machine), John E. Doescher, one time too many. What Dr. Raess's attorneys would ultimately describe as "nothing more than a shouting match between two adults," where "both men were giving as good as they got" according to a story in the Indianapolis Star, ended up in a lawsuit in Marion County, Indiana.

Curious as to exactly how the Indiana courts managed to become the first state to adopt the new cause of action of "bullying," I was mollified with a little googling, to find that it had not done so, instead it was the standard (albeit not a favorite of mine) cause of action, intentional infliction of emotional distress. See the report of the jury verdict at morelaw.com.

For more on the details of the trial check out the Indianapolis Star post-trial story. Although a verdict for the plaintiff, the jury was not as incensed as it could have been, refusing to award punitive damages. Some of plaintiff's counsel's final argument actually gave a motive rooted in a more traditional claim, whistleblowing:

During his final argument, [plaintiff's attorney] described Raess as a domineering manager who viewed himself as untouchable and wanted to put Doescher in his place when the perfusionist threatened to tell hospital administrators that Raess had verbally abused other members of his staff. "It's not abuse, according to him, to yell and scream and cuss at somebody," Betz said of Raess. "He was on his throne over there."

Still, the importance of this case should not be overlooked for what it is -- a real triumph for the "anti-bullying" forces, which have managed to make this case somewhat of a cause celebre for their budding movement.

First, counsel for Doescher utilized the bullying terminology in describing his case:

This is the story of the ruination of a 17-year career of a perfusionist by Dr. Raess because of a workplace bullying incident," said Kevin Betz, Doescher's attorney.

It also marked the first time that Dr. Gary Namie, the founder of the Workplace Bullying and Trauma Institute, has been allowed to testify in court on his specialty. Not too surprisingly, according to the Star, in Dr. Namie's view:

The case is a clear-cut example of the phenomenon [of workplace bullying]. I concluded based on what I read and heard, Dan Raess is a workplace abuser.

And Dr. Namie not only testified, but was spinning the story to the Indianapolis Star, post-trial, emphasizing his particular cause, claiming, "this is the first time a workplace bullying case has been heard in the United States." The story also notes that laws to make workplace bullying illegal have been introduced in both the Washington and Hawaii legislatures, which of course has been heartily supported by his organization.

Interestingly according to their website, Dr. Namie came to the cause when:

Life for Gary changed in 1996 when his wife -- Dr. Ruth, with her doctorate in clinical psychology -- was trampled by a horrific woman boss. The couple's subsequent fight for justice led to their 1998 founding of the Campaign Against Workplace Bullying, bringing the international adult anti-bullying movement to America.

And the media likes the story, see "Workplace Bullying in the Public Eye" at Dr. Namie's Work Doctor website. For example, the Star followed their trial reporting with a discussion piece on March 20th, Workplace bullies more than mean, Mistreatment on the job on the rise experts say. The first expert noted for that proposition was from none other than the Workplace Bullying and Trauma Institute:

People finally realize what they've been going through has a name," said Natalie Nissen with the Workplace Bullying & Trauma Institute in Bellingham, Wash. "They call and say, 'Oh. That's me. I've been bullied.' We are constantly noticing an increase in the number of calls we get."

Although the Star article does note, "no hard statistics exist to confirm workplace bullying is, in fact, on the rise", that does not preclude the reporter from from saying in the next sentence, "most counselors and psychologists say the phenomenon is explosive."

And now, those like me who practice on the employer side of the docket, are adding to the publicity (including of course this post itself), for example see a report from a leading Indianapolis law firm which notes "a new trend appears to be emerging," which it bases on "the popularity of workplace bullying legislation combined with the jury verdict in the Doescher case," all of which according to the article "suggest[s] that employers must brace themselves for the emergence of a new potential risk of liability." That frankly seems a little overblown since none of the legislation has passed and the Doescher case is a trial court verdict using a traditional cause of action that is being spun to be the bullying case break through.

But, there is no question, that the anti-bullying forces have been successful enough to semantically change the debate, in this one instance from the rather clinical sounding "intentional infliction of emotional distress" to "bullying in the workplace" which may more easily connect with the hearts and minds of jurors, and thus potentially the pocket books of employers. I think we are a few steps closer to that slippery slope.

UPDATE: The case was reversed and remanded for retrial by the Indiana Court of Appeals on December 8, 2006. See First "Bullying" Case Goes Down in Flames .

2nd UPDATE: On 4/8/08, the Indiana Supreme Court reversed the decision of the Indiana Court of Appeals and reinstated the trial court judgment against the surgeon. See, Bullying Indiana Style Makes a (Limited) Comeback.