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You cannot require nurses to speak about a malpractice case through your hospital attorneys, according to a recent court ruling that gives substantially more protection than nurses have had in the past for on-the-job whistle-blowing. Observers are saying it is a big step forward in encouraging nurses to speak up when they see problems that can threaten patients.
The Third Judicial District Court in Washington, DC, provided protection for six registered nurses who acted as whistle-blowers against a physician who allegedly acted incompetently and unprofessionally, and whose actions, according to the plaintiffs, resulted in the death of a patient.
Judge Thomas Cornish, JD, granted the plaintiffs’ motion for rules governing the questioning of nurse witnesses. The American Nurses Association (ANA) had filed an amicus brief in support of the nurses, in which the association detailed the importance of the Code of Ethics and patient advocacy in the context of nursing practice. ANA’s argument was presented by the association’s nursing practice counsel, Winifred Y. Carson, JD.
The general counsel for the ANA, Alice Bodley, JD, says the ruling gives nurses more protection.
Carson tells Healthcare Risk Management that the case sets a precedent and risk managers should take notice. The judge’s ruling makes clear that hospitals cannot bully nurses into keeping quiet about legal disputes, she says. "Sometimes hospitals do think they can compel nurses not to be truthful about matters related to medical malpractice," she says. "They will tell the nurses to forget it or encourage them to have selective memory. It’s been our experience that nurses will go along with it sometimes because they fear retaliation from their employers."
The six nurses involved in the case are, or had been, employees of Memorial Medical Center in Las Cruces, NM. Based on ethical grounds, they testified in support of the patients in a lawsuit brought by Thomas Smith and Irene Dockray against Lorraine Martinez, DO. Martinez is accused of negligence and incompetence involving Smith’s wife, Deborah, who died from sepsis after Martinez allegedly failed to treat her. She also is accused of permanently harming Dockray during a medical procedure.
"There had been numerous complaints about how she handled patients in the past and in this case," Carson says. "The nurses were asked about past and present complaints, and the hospital didn’t want to speak to past complaints so they were telling nurses they couldn’t speak about past complaints or their specific concerns about this physician."
The nurses felt compelled to provide pertinent information because they thought the physician could be dangerous to patients, Carson says. But even those no longer employed by the hospital felt pressured to keep quiet because the small community offers little employment for nurses. Going against the hospital’s wishes could make life difficult even for the ex-employees, Carson says. "They wanted to say, You can’t speak on your own even if you don’t work for us any more.’ It got in the way of fully investigating the case," she says.
The court ruled that Memorial Medical Center could not require its employed nurses to speak only through or with hospital attorneys. Over the hospital’s objections, the judge included a charge nurse within the scope of the court’s protective ruling for the staff nurses. In addition, the court held the hospital accountable for any retaliation against the nurses, stating that retaliatory action will be considered contempt of court.
New Mexico Nurses Association president Judith Dunaway, RNC, MSN, HNC, says the ruling is a major victory for nurses. "This case sends a message in New Mexico and throughout the country that nurses can and will stand up and make their concerns known about inadequate or deficient patient care," she says. "The nurses tried to work internally through the hospital system, but that system didn’t work. When nurses express concern over inadequate care, their concerns should not be ignored."