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LINDA PORTNOY* WORKED in an acute care psychiatric unit. One evening when she was starting her shift as charge nurse, the assistant director of nursing (ADON) who'd been managing the unit on the day shift told her that a patient was making threats toward the president and the government. The patient was of Middle Eastern descent.


About an hour into the shift, the patient began shouting threats about the president, the government, and the hospital staff. Hollering that September 11 was "nothing compared to what was coming," he said he'd call his friends and have the president killed. (He had access to a telephone in the unit.) Portnoy and other staff members placed the patient in restraints, isolated him, and administered sedative medication.


Portnoy called the ADON and the assistant hospital director at home asking whether she should report the threats to the authorities. They told her to do what she thought was necessary. She called the Secret Service to report the patient's threats against the president.


Four days later, Portnoy was fired. Her discharge notice stated that she'd violated patient confidentiality and used poor judgment. She sued, claiming that the call was speech protected under the First Amendment to the U.S. Constitution. The hospital countered with a motion for summary judgment, arguing that she'd been terminated for exercising poor judgment and violating patient confidentiality-that no constitutional violation had occurred. The court granted summary judgment.


Appealing the decision, Portnoy had to make these four points to prevail on her First Amendment claim:


* she suffered an adverse employment action


* her speech involved a matter of public concern


* her interest in commenting on the matter outweighed the employer's interest in promoting efficiency


* her speech motivated the employer's action.



The court focused on the second and third points. It concluded that "the life and death of the president are obviously matters of public concern," but that the context of Portnoy's speech was a problem. She'd made the call at night when the patient was restrained and unable to act on his threats, so he wasn't an immediate safety risk. And the court considered his psychiatrist, not Portnoy, the appropriate person to assess the gravity of his threats.


The court ruled in favor of the hospital. It stated that limiting internal disruption to psychiatric care is paramount and that the hospital has a strong interest in maintaining patient confidentiality, so firing Portnoy didn't violate the First Amendment.


Source: Judith Brown Davis v. Allen Parish Service District, 06-30017 (5th Cir., December 18, 2006).


*Names have been changed to protect privacy. [Context Link]