Court dismisses doctor’s retaliation claims

Where a doctor alleged her former employer violated Virginia law when it allegedly directed her to see patients while she was ill, her claims were dismissed.

Background

Dr. Shaghayegh Mirshahi filed a multi-count amended complaint against Patient First Richmond Medical Group LLC (her former employer), Dr. W. Kent Schuele (her direct supervisor) and Jennifer Cericola (the Clinic’s Director of Medical Support). Defendants have filed a motion to dismiss.

‘Bowman’ claims

Dr. Mirshahi claims that Patient First and Dr. Schuele wrongfully terminated her employment in violation of Virginia public policies, “including but not limited to” those found in Va. Code § 54.1-2915(A)(3), (12)-(13). The court finds that Dr. Mirshahi’s Bowman claim fails because Va. Code § 54.1-2915(A), addressing unprofessional medical conduct, does not “explicitly express” a public policy and because, even if it did, Dr. Mirshahi is not “clearly a member of that class of persons directly entitled to the protection enunciated by the public policy.”

Dr. Mirshahi next asserts a Bowman claim on the basis that heeding the defendants’ instructions to “go see patients” while symptomatically ill would have subjected her to criminal prosecution. This claim fails because the Virginia Whistleblower Protection Act, or VWPA, preempts Type 3 Bowman claims and because, even if it did not, the instructions given did not ask her to commit a criminal act.

VWPA

Dr. Mirshahi asserts a claim for retaliatory discharge in violation of the VWPA, relying on three categories of protected activity: (1) that she “report[ed] a violation of … law or regulation to a supervisor”); (2) that she “[r]efuse[d] to engage in a criminal act that would subject [her] to criminal liability” and (3) that she “[r]efuse[d] an employer’s order to perform an action that violates any federal or state law or regulation and … inform[ed] the employer that the order [wa]s being refused for that reason.”

The court finds that Dr. Mirshahi does not state a VWPA retaliation claim under any of her three pleaded theories. First, because Dr. Mirshahi does not plausibly state that she reported a violation of law or regulation to a supervisor, governing body or law enforcement official, her claim under subsection (A)(1) fails. Second, because Dr. Mirshahi did not refuse to engage in a criminal act, her claim under subsection (A)(3) also founders. Third, because Dr. Mirshahi does not allege that she informed her employer that she refused to perform an action because it violated a federal or state law or regulation, her claim under subsection (A)(4) fails as well.

Defamation

Dr. Mirshahi asserts two bases for defamation: (1) Cericola’s oral statement to co­workers that Dr. Mirshahi was faking her illness and, (2) Cericola’s inaccurate transcription of a patient complaint to implicate only Dr. Mirshahi when the patient’s complaint was also directed at a physician’s assistant.

The court will grant the motion to dismiss both alleged instances of defamation. First, Cericola’s statement that Dr. Mirshahi was “not sick” and was “pretending” is not actionable as defamation because, although it can be proven false, it cannot be read to contain the requisite defamatory “sting.” Second, the incorrect patient complaint transcription does not present an actionable statement for defamation because it is not defamatory per se and because it lacks the requisite defamatory “sting.”

Defendants’ motion to dismiss granted.

Mirshahi v. Patient First Richmond Medical Group LLC, Case No. 3:23-cv-495, Aug. 13, 2024. EDVA at Richmond (Lauck). VLW 024-3-409. 34 pp.