Week 14 Activity

Should Nurses Blow the Whistle or Just Keep Quiet?

Carolyn Buppert, MSN, JD

June 24, 2014

 

Confused? I'm Not Surprised

Apparently, a lot goes on in healthcare that makes nurses uncomfortable, because I am asked this question, in some form, frequently. The answer is complicated. People may differ in their opinions of what falls into the realm of incompetent, unethical, or unsafe practice, and the laws of every state are different. And even though I read law every day, I had trouble figuring out what to advise, given the current law governing nurses. No wonder nurses aren't sure what to do.

Nurses are told that they have a duty to protect patient safety. They learn this from language such as this, in one state's (Maryland) nursing regulations. Under "Ethical Responsibilities," it says: "A nurse shall...Act to safeguard a client and the public if health care and safety are affected by the incompetent, unethical, or illegal practice of any person."[1]

The implication is that when a nurse becomes aware of a patient safety threat, the nurse is supposed to do something.

Maryland is not alone in making such pronouncements. Here is language from the Texas Board of Nursing Website:

Situations involving potential risk of harm to patients or the public are referred to as "violating the nurse's duty to the patient" because all nurses have a duty under Rule 217.11(1)B to maintain a safe environment for patients/clients and others for whom the nurse is responsible.[2]

It makes sense to tell nurses that they are expected to safeguard patient safety. It would be even better if nurses who try to do something were better rewarded for their efforts. However, according to nurses I hear from, when a nurse reports a patient safety problem, the nurse often is surprised to find that he or she is considered the "bad guy." A nurse who raises quality issues that require a change of policy, practice, or staffing can be seen as a disruptor rather than someone who is making constructive criticism. Some nurses who have identified problems have found themselves out of a job.

This is bothersome. It's perfectly legal for a hospital to terminate a nurse, for any reason or for no reason. The only job protections are those granted by contract between the nurse and the hospital (whether it is an individual contract or a contract offered through a labor union) and those granted by the US Constitution and civil rights laws. The latter include the right to be free of discrimination on the basis of age, sex, national origin, race, sexual orientation, and religious preference. If the hospital isn't firing the nurse because of age, sex, national origin, race, sexual orientation, or religious preference, in general the firing is legal. A possible exception is a whistleblower law, which may, in some situations, provide protection for nurses who report patient safety problems. We will get to that shortly.

Although it is legal to fire a nurse for raising a patient safety issue (with a possible exception of whistleblower laws) it is not a situation one would hope for, from a patient's perspective.

Blowing the Whistle, Fighting the System

The following story is an example of a case in Texas where nurses were very concerned about the care being provided by a physician at their hospital, did something about it, and suffered as a result.

Two nurses, one of whom was the hospital's compliance officer, reported a hospital physician to the state medical board, citing patient safety issues. The problems, according to the source listed below, included the following: (1) The physician was taking patients with serious diagnoses off their medications and instead recommending herbal remedies, for which he was the vendor; (2) the physician was performing surgery, including a skin graft, in the emergency department, even though he wasn't a surgeon; and (3) the physician almost never read patient charts nor ordered diagnostic testing, preferring instead to diagnose on the basis of history alone.

The nurses who reported him essentially were relaying the observations and complaints of many nurses. The nurses filed an anonymous report with the medical board. Once the medical board contacted the physician, the physician enlisted his friend, the sheriff, to do some digging, and the sheriff found out who had filed the complaint against the physician. The physician then filed a complaint, with the sheriff, against the nurses, for harassment. The sheriff arrested the nurses, and the local prosecutor charged them with "misuse of official information," a felony punishable by 10 years in prison. (They had accessed patient charts to describe, specifically, the threats to patient safety.)

The prosecutor had a few conflicts of interest. He was not only the doctor's personal attorney, but also the personal attorney for the sheriff and the hospital's counsel. The physician convinced the hospital to fire the nurses. Eventually the case went to trial against one of the nurses, and she was found not guilty. Charges against the other nurse were dropped before her trial, for reasons unspecified. As of 1 year later, the physician still was working at the hospital.

Much later, the sheriff, the hospital administrator, and the prosecutor all were prosecuted for misuse of official information (the same charge that had been applied to the nurses), and all were found or pleaded guilty. The nurses sued the hospital and received a settlement. Eventually, the physician too was charged with misuse of official information and retaliation. He pleaded guilty. The full story can be heard on the radio program Old Boys Network, which originally aired on June 3, 2011. A transcript is also available.

The nurses in this case were vindicated, but both went through several years of extreme stress, joblessness, and legal fees. Reportedly, neither wants to be a nurse any longer.

Whistleblower Laws

A nurse who is fired for bringing up a patient safety issue may think he or she is protected against retaliation under a "whistleblower law," but in fact, the nurse may not be protected. Whether such protection exists depends on exactly what the state's whistleblower law covers; whether the nurse followed the dictates of the law precisely; and whether there was any other reason, aside from reporting the patient safety issue, for which the hospital could reasonably have fired the nurse. The following case illustrates what can happen when a nurse tries to rely on a whistleblower law.[3,4]

A hospice nurse reported to her supervisors that starter packs of controlled drugs were being given to patients without a physician's order. She was worried because some of the patients were children and because she feared the drugs would be misused. Shortly after she complained about this practice, she was fired. She was denied unemployment compensation because she had been fired. She protested the denial of unemployment and filed for wrongful termination, hoping to use the state's Health Care Worker Whistleblower Protection Act.

The nurse found that the purpose of that law wasn't to protect nurses, but to protect employers against frivolous whistleblower actions filed by disgruntled former employees. A judge found that she hadn't conformed with a provision of the law, so the law didn't apply. (She hadn't reported the problem to an outside agency -- only to individuals within the agency.)

The state's highest court reversed the finding of the lower court, holding that it was enough to have reported the problem internally, and essentially said she could avail herself of the whistleblower law. However, when the case was tried, a jury believed the hospice, her employer, who argued that they terminated the nurse for a reason other than the complaint about the starter packs. The jury believed that the nurse was right in making the complaint, but that didn't help the nurse, ultimately. The nurse spent $150,000 on her legal efforts.

Maryland's Whistleblower Protection Act didn't work for that nurse, but let's look at another state's whistleblower protection for nurses. It appears that Texas law has some protections for a nurse who reports a quality issue [5]:

A nurse may report to the nurse's employer or another entity at which the nurse is authorized to practice any situation that the nurse has reasonable cause to believe exposes a patient to substantial risk of harm as a result of a failure to provide patient care that conforms to minimum standards of acceptable and prevailing professional practice or to statutory, regulatory, or accreditation standards. For purposes of this subsection, an employer or entity includes an employee or agent of the employer or entity.

A person may not suspend or terminate the employment of, or otherwise discipline, discriminate against, or retaliate against, a person who: (1) reports in good faith under this section; or (2) advises a nurse of the nurse's right to report under this section.

This law was added in 2011, after the Texas case described earlier. The key is to research the law of your state, so you know up front whether you have any protections when complaining about a patient care issue.

In a recent article [6] a nurse-attorney and a social worker who have experience with whistleblowers discourage nurses from whistleblowing, for their own good.

Federal whistleblower protection acts exist, which are meant to encourage reporting of healthcare fraud, and if the nurse follows the exact provisions of these laws, the nurse may share in the government's recovery of money. That is a different subject, however, and not addressed here.

The Nurse's Duty to Protect Patient Safety

What if a nurse doesn't report a quality of care or patient safety issue? Is he or she likely to be disciplined?

Let's look at Texas law on reporting. It appears that reporting of a patient safety issue involving an agency or facility problem is optional ("may report"), but reporting of another nurse is mandatory ("shall report").

Here is the language that says reporting a facility is optional [7]:

In a written, signed report to the appropriate licensing board or accrediting body, a nurse may report a licensed health care practitioner, agency, or facility that the nurse has reasonable cause to believe has exposed a patient to substantial risk of harm as a result of failing to provide patient care that conforms to:

· (1) minimum standards of acceptable and prevailing professional practice, for a report made regarding a practitioner; or

· (2) Statutory, regulatory, or accreditation standards, for a report made regarding an agency or facility.

Here is the language that says reporting a nurse is mandatory in Texas:

· (1) "Conduct subject to reporting" means conduct by a nurse that:

· (A) violates this chapter or a board rule and contributed to the death or serious injury of a patient;

· (B) causes a person to suspect that the nurse's practice is impaired by chemical dependency or drug or alcohol abuse;

· (C) constitutes abuse, exploitation, fraud, or a violation of professional boundaries; or

· (D) indicates that the nurse lacks knowledge, skill, judgment, or conscientiousness to such an extent that the nurse's continued practice of nursing could reasonably be expected to pose a risk of harm to a patient or another person, regardless of whether the conduct consists of a single incident or a pattern of behavior.[8]

A nurse shall report to the Board in the manner prescribed under Subsection (d) if the nurse has reasonable cause to suspect that:

· (1) another nurse has engaged in conduct subject to reporting; or

· (2) The ability of a nursing student to perform the services of the nursing profession would be, or would reasonably be expected to be, impaired by chemical dependency.[9]

Under Texas law, therefore, the nurse may, but has no obligation to, report a facility to the appropriate licensing board, when the nurse has reason to believe that a patient has been exposed to substantial risk for harm. But a nurse must report another nurse.

Here is what Texas law says about failure to report: "(a) A person is not liable in a civil action for failure to file a report required by this subchapter. (b) The appropriate state licensing agency may take action against a person regulated by the agency for a failure to report as required by this subchapter.[10]

In Texas, the Board of Nursing could take action against a nurse who failed to report, but isn't required to do so.

Let's go back to the state law language cited earlier that implies that nurses must safeguard patient safety. A search of the disciplinary actions of the Maryland Board of Nursing indicates that the language "a nurse shall act to safeguard a client..." is invoked when it is the nurse who is incompetent or unethical. The nurse is supposed to report him- or herself, but not necessarily report someone else, or a facility. I found no cases where that clause was used to discipline a nurse who discovered that someone else was incompetent, and failed to report it. I could find no disciplinary actions reported on the Texas Board of Nursing Website against nurses who had failed to report a patient safety issue.

Other states may have different law on this, or no law on this, but it is becoming clear that a nurse doesn't have to report a facility and will do better personally if he or she does not.

So, Don't Report?

Am I recommending that nurses adopt the "see nothing, hear nothing, speak nothing" attitude? No. I am saying that under current law, it is safer for a nurse not to report than to report. That surprises me, and it may be right- or wrong-minded, but it's the way it is.

To argue the hospital or facility's side, a facility can't have every nurse they fire come back and say he or she was fired because the nurse complained about a patient safety issue. Hospitals will lobby legislators for laws that protect the hospital. And a hospital is going to defend itself against allegations of breach of patient safety, even if that means firing a nurse and discrediting the nurse. In all fairness, with every safety issue that a nurse might identify, there usually is an opposing argument that it isn't a safety issue or is a necessary risk. And some nurses are vulnerable to being discredited because they don't have spotless records.

My purpose in this article is to inform nurses of the things they must do to protect themselves, before complaining, both within their company and to outside agencies.

First, check your state's Nurse Practice Act for any law on reporting patient safety issues. Also check the state's Board of Nursing Website for any direction on this.

Then, look at the whistleblower laws for your state, if there are any. If you decide to blow the whistle, follow the dictates of the law, exactly. Gather your evidence. Keep detailed records.

I urge nurses to conduct a safety analysis on themselves before blowing the whistle on safety problems in the workplace, and even before complaining. I don't like to see nurses get nowhere with their patient safety concerns and also suffer personal setbacks. It is smart to consult an attorney who is experienced in whistleblower cases before complaining. (I am not an expert on whistleblower cases.) It may be best to line up your next job before complaining to higher-ups.

Think before you act. Spend some time thinking about how to raise the issue, and with whom to raise it. Read some of the many books about the ins and outs of workplace communication. Watch and listen, and observe individuals in your workplace who seem skilled at working with others to effect change. It may be best to frame complaints as volunteering to help solve a problem. I don't know of a "charm school" for nurses, but if there is one, I would enroll and would encourage others to do so.

Consider your risk. Be sure that your own practice is in order. If you complain about a policy or practice at your facility and someone wants to get back at you, what would they say? What are your vulnerabilities?

Assess the gravity of the problem. If the problem you have identified is putting a patient or employee at imminent and serious risk, you may need to put all thoughts of yourself aside and report it. If the risk isn't so serious or isn't so imminent, then perhaps volunteering to problem-solve is in order.

Assess the administration and your supervisors. Is there someone you can talk to in confidence whom you trust? Is there a financial reason why the problem is present? If so, be prepared for a struggle, unless you can suggest a legal, more cost-effective alternative.

Taking a big-picture view, I recommend that nurses, throughout their careers, safeguard their ability to find another job, if they need to. Cultivate people who will give you positive references throughout your career, and do the same for them. This means treating colleagues professionally, not sharing personal dramas at work, keeping up with the latest developments in the field, handling disagreements in a way that doesn't leave others feeling bruised, and going up the chain of command when necessary. Conduct periodic self-assessments to identify your own vulnerabilities, and make a plan to minimize them.

The bottom line is: It's always better to prevent problems, in law as well as healthcare.