Legal Eagle Eye Newsletter for the Nursing Profession (6)12 Dec 98

Quick Summary: Nurses have the right to speak out without fear of retaliation from their employers, if certain conditions exist.

   If they are speaking out on a matter of political, social or other public concern to the community, employees are protected by the First Amendment.

   By contrast, speaking out in an attempt to redress a purely personal grievance is not a matter of public concern and gets no special dispensation under the rubric of freedom of speech.

   In this case the nurses reported the program director of their hospital unit for formulating treatment objectives based on patients’ ability to pay, practicing medicine without a license, engaging in insurance fraud, subjecting patients and staff to religious harassment and sexually harassing staff.

   The court must reject the hospital’s and administrator’s contentions these matters are the nurses’ purely personal grievances.

   These nurses have the right to sue for retaliation.  UNITED STATES COURT OF APPEALS, TENTH CIRCUIT, 1998.

   Two registered nurses complained to the hospital’s administrator, chief financial officer, medical director and the medical director of their inpatient unit, that their unit program director was guilty of serious misconduct.

   They sued the hospital, the administrator and their unit program director for retaliating and forcing them to resign their nursing positions.

   The U.S. District Court for the District of Colorado and the U.S. Circuit Court of Appeals for the Tenth Circuit sided with the nurses.

   Both courts ruled the nurses were exercising their constitutional right to freedom of speech when they spoke out against their unit program director’s abuses. Since they were exercising a legal right, their employer had no right to retaliate against them. Because their employer did retaliate, they had the right to sue.

   The court cautioned that freedom of speech applies only to issues of concern to the public. A person with a purely private grievance against another private citizen is not protected by the First Amendment. In the employment context, an employee voicing a grievance which has no overtones of public importance is not exercising the right to freedom of speech, the court ruled.

   However, in this case the nurses’ complaints were made to senior management, who were in a position to do something about their complaints, which the court took as evidence the nurses were motivated by concern for the public good, rather than a personal vendetta.

   Stopping a hospital from basing patients’ lengths of stay on finances or insurance coverage, and stopping harassment of patients and other staff, are public issues, not private personal grievances, the court ruled, giving the nurses legal protection from retaliation for voicing their complaints. Paradis v. Montrose Memorial Hospital, 157 F. 3d 815 (10th Cir., 1998).