New Case Favors Fired Health Care Whistleblower

New Case Favors Fired Health Care Whistleblower

The Maryland Court of Appeals issued an opinion last week in favor of a health care whistleblower.  An employee had made internal complaints about serious safety issues at the hospice facility where she worked.  She was fired before she could take the complaints further.  Under the eight year old law protecting health care whistleblowers, the Court held that she had the right to a trial to prove that she was fired in retaliation for her complaints about the unsafe practices.

Under this particular whistleblower law, a health care employer must correct violations of the law that endanger the health and safety of patients.  In addition, many employees, nurses among them, have personal obligations to report violations to the licensing board.  In this case, the nurse complained to her supervisor about the lax oversight of narcotic dispensation.  For example, “starter packs” of controlled pain medications had been delivered to families of pediatric patients without taking appropriate safeguards to ensure that other children in the house were protected.

Before the employee could go to the nursing board, she was fired.  The Court of Appeals decided that it was counter-productive to require an employee to complain outside of the health care facility, if the complaint resulted in corrective action.  In addition, the highest court rejected the argument that the employees engaging in the illegal behavior were not responsible for setting policy at the facility.

The case is limited to this specific statute, which details the requirements that the employee report the issue internally and give the employer a chance to correct the problem, and that the problem “poses a substantial and specific danger to the public health or safety.”  Still, one statement of the Court is intriguing: it agrees with the commentary of Paul Tobias, a founder of the National Employment Lawyers Association, quoting the following passage:

“Although it would clearly seem to be in employers’ interest to encourage employees to report violations internally before (or instead of) making reports to governmental authorities, a number of courts that have addressed the issue have held that the public policy tort doctrine does not protect a whistleblower from retaliation unless he or she has gone outside the company with reports of wrongdoing.

“The majority (and better) view, however, is that internal protests are enough, and that the viability of a public policy tort claim by a discharged whistleblower does not depend on whether or not the violations or illegal activities were reported to outside authorities.”
Paul H. Tobias, Litigating Wrongful Discharge Claims § 5.13 (1987 & Supp. 2009-10)

The Court then stated: “We agree with that observation.”  This statement may foretell a loosening of the difficult standard facing whistleblowers who do not fit the mold of the health care workers.  For those workers, it has been the law that unless they go to an outside agency, that is report to the “appropriate authorities,” retaliatory firing is perfectly legal.  Perhaps Maryland is ready to join the majority of states which do not require that outside report.

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