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Legally Speaking: Proceed with caution


 

LEGALLY SPEAKING

Whistleblowing: Proceed with caution

ANDREA J. SLOAN, RN, JD

The author is an attorney in private practice in McLean, Va., and specializes in healthcare and employment law, bioethics, and risk management.

Reporting an illegal or unethical act may seem like the right thing to do, but in some cases, it can cost you your job. Before you do anything, you need to know what's at stake—and what's involved—should you decide to blow the whistle.

Jump to:

Do these scenarios sound familiar?

• Your supervisor orders poorly trained unlicensed assistive personnel (UAPs) to carry out tasks that only nurses should do, but holds you responsible for patient safety and the UAPs' performance.

• An attending physician routinely "up-codes" patients' diagnoses to allow for longer stays or an additional, often unnecessary, treatment.

• A colleague in your department has an obvious substance abuse problem, but administration looks the other way.

You were taught that nurses are patient advocates, that a nurse's greatest duty is to safeguard his or her patients and the public—a duty clearly defined in the American Nurses Association's Code of Ethics for Nurses with Interpretive Statements.1 And you value that role. You want to protect patients and the public from incompetent, dishonest, or impaired practitioners.

But before you blow the whistle on unsafe, unethical, or illegal practices, it's crucial for you to understand what's at stake, how to speak up, and what to say.

Legal rights, nurses' risk

First, a definition: Whistleblowing refers to the act of going public—often to a regulatory agency, licensing board, or the press—to disclose or warn of a serious danger, illegal or unethical practice, or other wrongdoing by an individual or organization.

Typically, taking your complaint up the chain of command within your own institution is a starting point. (It's also the end point if the problem is resolved internally.) To take a complaint beyond that involves a serious commitment, and any nurse who proceeds needs to be aware of the possible consequences.

Never assume, for example, that doing the right thing will protect you, or that others will respect you as a result. On the contrary, speaking up, repeatedly if necessary, could get you fired unless you're protected by a union contract or other formal employment agreement. That's because most nurses, like most workers nationwide, are "at-will" employees, subject to dismissal for good reason, bad reason, or no reason at all.

That's not to say you should never speak out, of course. Case law and state and federal statutes may afford some measure of protection, and many state courts have allowed a "public policy" exception to the at-will doctrine, which may provide some recourse to employees who are fired for whistleblowing. But the scope of this exception is narrow, and it's typically allowed if the reported infraction violates a specific law rather than a hospital policy.

Federal and state statutes designed to protect whistleblowers also tend to be narrow in scope. For example, the Whistleblower Protection Act of 1989 applies only to federal employees, and protects them from punishment for disclosing potentially embarrassing information related to government operations.

The federal False Claims Act, which Congress significantly amended in 1986, provides protection against workplace retaliation for individuals who report on or aid in the investigation of fraud against the federal government. Such fraud would include up-coding diagnoses on Medicare claims or billing the Centers for Medicare and Medicaid Services (formerly HCFA) for services never performed. In such cases where fraud is alleged, whistleblowers can receive a portion of the money recovered as a result of a lawsuit.

At the state level, while many have enacted whistleblower laws, they often apply only to state employees or to certain types of workers. And many have a provision like the one in Florida's Whistleblower's Act that nurses ignore at their peril: To be protected against any "retaliatory personnel action" for disclosing or threatening to disclose an employer's wrongdoing, the individual must first have reported it internally in writing—and given the employer "a reasonable opportunity" to correct it.2

Steps to help you proceed with care

While whistleblower laws offer some protection, they point to the importance of first working through the employer's chain of command and internal procedures, a step many nurses may overlook, or start but fail to complete. For example, a Florida nurse who was fired for blowing the whistle on patient abuse in a nursing home lost her wrongful discharge case because she couldn't produce evidence that she had followed the proper internal protocol for filing a complaint.3 Similarly, an RN in New York who reported her facility for violating local non-smoking regulations without going through its internal reporting and grievance procedures learned she had no basis on which to fight her subsequent dismissal.4

Before making any complaint, even internally, gather the facts. Read the relevant laws, policies, procedures, standards of care, and any other related material. Clarify the issues and make sure your concerns are well founded.

Ask yourself: Does the practice violate an actual law or provision, or does it simply strike you as unfair? Or, if you believe UAPs are doing work they shouldn't be doing, review your hospital policy manual to be sure you're right.

Know your state's laws requiring mandatory reporting. In cases where you have a legal mandate to report, such as suspected child or elder abuse, adhere to the mandated process to the letter. In cases where there's no legal mandate to report, start by talking to your supervisor about the problem. Follow up with a written (typed) complaint, with your supporting evidence.

Don't hand write, but type your documentation of the day, date, time, and circumstances of the incident you're concerned about, and any witnesses to it. A well-written and well-documented complaint that sets out the facts and concerns, not your opinions, is essential. Under no circumstances should you photocopy patient records or incident reports, or breach a patient's privacy in any way.

Keep a copy of your complaint for your records, and send a copy to the director of nursing or to anyone in another department who has a stake in the case. If the complaint involves patient care, consider reporting to the quality assessment or risk management department, or the office of patient care. Go to your hospital's bioethics committee if ethical issues are involved. To report the actions of one or more physicians, take your complaint to the department chair or head of the medical staff and consider seeking out internal peer review committees.

Similarly, bring personnel concerns like evidence of an impaired colleague to the attention of the human resources department.

Be persistent. If you don't get satisfaction from one source, try another, documenting your actions, dates, and any response you receive. When you have exhausted all options for an in-house resolution, you might want to consult an attorney to make sure your concern has legal merit before you take your concerns outside your facility's walls.

Regulatory groups offer recourse

One or more state boards or agencies regulate any licensed healthcare institution or provider. Each regulatory group has reporting procedures and processes for investigating complaints and taking disciplinary action. In my experience, while nurses often complain—sometimes repeatedly—about clinicians' unprofessional or dangerous conduct, few even think about filing a report to the state Board of Medicine or Board of Nursing.

Hospitals, nursing homes, and home health agencies are licensed and regulated at many levels, particularly if they receive funding from Medicare, Medicaid, or other government programs. Each regulatory agency has hotlines and procedures for reporting violations—often anonymously.

For problems of quality of care, consider contacting the Joint Commission on Accreditation of Healthcare Organizations. Its Web site (www.jcaho.org ) has a complaint reporting form that's easy to use. If the problem involves an action or practice of an HMO, try the National Committee for Quality Assurance (NCQA, 202-955-3500), an independent, nonprofit organization that evaluates, certifies, and issues reports on the quality of managed care organizations.

If you find yourself working under unsafe conditions, your local Occupational Safety and Health Administration office can help you determine whether your employer may be in violation of state or federal regulations. If faulty equipment is involved, investigate the reporting requirements under the Safe Medical Devices Act, under the auspices of the FDA, at www.fda.gov/cdrh/mdr.html . Try the U.S. Department of Labor, National Labor Relations Board, Equal Employment Opportunity Commission, or your state or local Human Rights office when problems concerning employment and working conditions arise.

Don't overlook local agencies, such as long-term-care ombudsmen, adult and child protective services, city or county consumer protection agencies, and other social service advocacy groups. Some have the authority to investigate complaints and demand remedies. Many accept anonymous complaints—a practice you should always look for—or keep confidential the identity of anyone filing a report.

If you're still not sure where to turn, look in the phone book under state government or search the Web, and contact any agency whose mission seems related to the issue at hand. To maintain momentum, try not to go it alone. Network as much as possible, and join forces with other healthcare providers or other professionals who share your cares and concerns.

Don't get discouraged—no matter how long it takes. Like nursing, whistleblowing calls for creative thinking, problem-solving skills, and, above all, tenacity.

REFERENCES

1. American Nurses Association. (1985). Code of ethics for nurses with interpretive statements. Washington, DC: American Nurses Association.

2. Fla. Sta. 448.102 (2000).

3. Hyde v. Beverly Enterprises-Florida, Inc. 12 Fla. L. Weekly Fed. D 440 (1999).

4. Bompane v. Enzolabs, Inc. 608 N.Y.S. 2d 989 (1994).

 

Emil Vernarec, ed. Andrea Sloan. Legally Speaking: Proceed with caution. RN 2002;1:67.

Published in RN Magazine.

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