ED providers have claimed they were fired or disciplined because they reported safety concerns during the COVID-19 pandemic, with the American College of Emergency Physicians and the American Nurses Association condemning these reports as early as March and April.1,2

When these types of issues are reported, “the way hospitals respond has to be done with one eye on how an average jury is going to view your response,” says Sean R. Gallagher, JD, an attorney at Denver-based Polsinelli.

If an ED employee is terminated in retaliation for blowing the whistle on health and safety issues, that employee will have a claim for wrongful termination.3 “We refer to them as public policy discharge claims,” Gallagher explains.

In these claims, the plaintiff alleges he or she reported health and safety concerns to the proper authorities (either within or outside the hospital), and leaders terminated their employment in retaliation for reporting those concerns.

The law says an employee can be fired for any reason as long as it is not discriminatory. “But people on juries don’t think that’s the rule,” Gallagher observes.

Most jurors believe employees are entitled to due process, whereby the appropriate parties address concerns and performance issues properly. “When hospitals are dealing with whistleblowers, the challenge is to respond in a way that’s effective, but also gives you a good story to tell to a jury,” Gallagher says.

The hospital probably cannot disclose specifics on how the concern was investigated, but can at least give a general idea of what it entailed. Administrators could explain there was a meeting with all involved parties in attendance, that a specific number of people were interviewed about the concern, that there was a written report prepared, and that a medical review board of credentialed physicians made a determination. Showing the decision to terminate or discipline the employee was a group decision (as opposed to an individual mandate) is especially important.

“It’s much more difficult for the employee to show that a whole committee of people was out to get him or her,” Gallagher reports.

From the ED provider’s perspective, the more specific the complaint is, the better the chances the hospital will act on it. A complaint such as “I don’t think we have appropriate staffing levels within the ED. I complained to my boss but nothing was done, and I think they retaliated against me” is too general.

A detail-rich complaint with data is far more effective, such as: “I compared the staff level from 2019 to 2020. The number of employees in the ED during any given shift was down by 12%. Volume was 15% higher than it was a year earlier. I complained on March 25 to my supervisor, and then complained to the internal anonymous complaint hotline. Following that, I was transferred from day shift to night shift by the people responsible for staffing the ED.”

It is always possible there was a good reason an ED nurse was put on the night shift. The problem is the employee does not always know the reason — and assumes the worst. “What’s interpreted as retaliation may not be that at all,” Gallagher observes. Lawyers see fewer whistleblower cases when the economy is booming and the job market is great.

“But when layoffs are happening, and it is much more difficult to become re-employed, you find employees who are trying to protect their existing job,” Gallagher notes.

Employees may file complaints internally at the hospital, or go external right away by contacting regulatory agencies, the media, or elected officials. “We haven’t yet seen a large wave of post-pandemic employment litigation. But that’s not to say it isn’t coming,” Gallagher suggests. Most courts have been closed, and only some are starting to re-open.

Traditionally, if an employee is injured in the workplace, the only remedy was filing a workers’ comp claim. “As we all know, nobody ever got rich by filing a workers’ comp claim and cashing the check,” Gallagher says.

One way around that limitation is for employees to claim they were terminated because they blew the whistle on misconduct in the workplace. “Employment lawyers like to bring those cases, as the employee can potentially recover more than if you went through the worker’s comp system,” Gallagher explains.

The employment bar also expects to find sympathetic juries who remember what things were like during the pandemic. If an ED nurse complains about understaffing, the nurse would not have a claim against the hospital for having to work in those conditions. However, if the nurse suffered an adverse job action he or she believed was related to voicing those concerns, then that would be a potential wrongful termination claim. Some of those claims are filed specifically because the employee thinks no one acted on his or her complaint.

“Employers often drop the ball. They do exactly what they should be doing to investigate, but don’t go back to close the loop to whoever raised the concerns and tell them what was done,” Gallagher says.

Right from the start of some depositions, it is clear all the employee wants is for somebody in an authority position to listen. “It’s cathartic,” Gallagher says. “Once they’ve done that, [employees] are more willing to talk about resolving their dispute.”

As for how ED whistleblower cases will turn out, “the answer to this question will also be both state- and fact-specific,” says David B. Honig, JD, an attorney in the Indianapolis office of Hall Render.

Some states offer whistleblower protection and additional cover for employees. Others are “right to work” states with almost no employee shield. “That said, a disgruntled healthcare employee always carries an additional risk beyond reporting of safety concerns,” Honig says.

The employee could argue the discharge was in retaliation for identifying fraud, that the safety risk was so bad it made the claims to a government payer fraudulent. “This, as well as any related allegations that there was fraudulent billing, falls under the federal False Claims Act and related state false claims acts,” Honig explains.

REFERENCES

  1. American College of Emergency Physicians. ACEP strongly supports emergency physicians who advocate for safer working conditions amidst pandemic. March 30, 2020.
  2. American Nurses Association. ANA disturbed by reports of retaliation against nurses for raising concerns about COVID-19 safety. April 9, 2020.
  3. Stone W. An ER doctor lost his job after criticizing his hospital on COVID-19. Now he’s suing. National Public Radio. May 29, 2020.