West Palm Beach Partner, Nicole Wall obtained dismissal with prejudice of an arbitration filed by a faculty member of a private university for alleged violation of the Florida Whistleblower Act. The case involved a nursing student who had taken and shown others pictures on her personal cell phone of a deceased patient in the operating room during an organ procurement procedure she observed as part of her clinical education. The plaintiff, who believed the conduct was in violation of HIPAA, complained about it to campus administration, and was (allegedly) constructively discharged shortly thereafter. Nicole successfully argued that the plaintiff did not engage in the requisite statutorily protected activity necessary to support her whistleblower claim because (1) HIPAA did not apply to the photos, as they were devoid of any individually identifiable health information, and even if the Act had applied, it specifically permits disclosure of a decedent’s health information to organ procurement organizations, and (2) the alleged HIPAA violation was committed by a student, as opposed to the university.
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