Retaliation: Nurse Fired For Reporting Patient-Care Violations Can Sue, Court Says 

Quick Summary: Nursing home employees are legally obligated to prevent abuse and neglect of nursing home residents. They can lose their licenses and face prosecution for failing to report abuse or neglect.

An employer who terminates such an employee for fulfilling this legal obligation is exposed to a civil lawsuit from the employee for retaliation.

There is no legal right to fire an employee summarily when termination would contravene a recognized public policy.

The public policy of protecting nursing home residents from abuse and neglect is fundamental and well-defined.  SUPREME COURT OF WISCONSIN, 1997.

 

   A nurse and a clinical social worker were suspended from their jobs in a private-sector nursing home after they brought their concerns over the quality of patient care to the home’s administration and then took the issue up through channels at the state ombudsman’s office.

   They sued the nursing home in civil court for damages for wrongful retaliation, but their suit was denied by the local trial court. The Supreme Court of Wisconsin overruled the lower court, ruled they had the right to sue, and wrote an extensive opinion for guidance in future cases.

   The state bureau of quality compliance investigated the nurse’s and social worker’s complaints about the facility. The bureau did not issue any citations to the facility or even interview the nurse or the social worker or other members of the interdisciplinary quality control team. However, it was not relevant for the court whether the nurse’s and social worker’s concerns were validated after the fact by state officials. They still were right to go forward with their concerns, and could sue over their employer’s reprisals.

   State regulations for nursing homes forbid facilities from retaliating against employees who voice complaints over patient care issues. This gives state authorities the option of levying fines against nursing homes for such conduct. However, the court ruled, it does not give just anyone a right to sue for employer retaliation.

   Only professionals who have direct responsibility for patient care, and who are dealing with matters directly within the scope of their individual responsibilities are given the right to sue for employer retaliation for complaints to administration or to state authorities over patient care.

   As Resident Care Coordinator, this nurse had wide-ranging responsibility for the quality of patient care, and corresponding broad legal protection for going to the state ombudsman when the facility’s administration ignored her, the court ruled.

   It was critically important to the court that the nurse and social worker were members of the interdisciplinary care team. The nurse was Resident Care Coordinator. The social worker was Director of Social Services. Specific instances of sub-standard care as they reflected the overall quality of care at the institution were directly within the sphere of their job responsibilities. In fact, these two professionals were required, by law and by the ethics of their professions, to take action affirmatively to remedy situations causing them concern for residents’ welfare.

   To sue for employer retaliation, the issue at stake must have some bearing on the public interest, the courts have been saying. This court ruled very explicitly that protecting nursing home residents from abuse and neglect is a very important fundamental public policy concern.

   The other side of the coin is that professional employees do not have a right to sue their employers for retaliation over complaints to administration or to state authorities about goings-on at a care facility that do not involve prevention of abuse and neglect of residents, the court said, unless there is a very specific legal provision, e.g. reporting Medicare/Medicaid fraud, that gives a right to sue. Hausman vs. St. Croix Care Center, 571 N.W. 2d 393 (Wis., 1997).

Legal Eagle Eye Newsletter for the Nursing Profession (6)3 Mar 98