Legal Eagle Eye Newsletter for the Nursing Profession(5)8 Aug 97  PDF Version

  Quick Summary: No employer is permitted to retaliate against a nurse who files a formal written report with a state licensing agency regarding a patient who has been exposed to a substantial risk of harm from substandard care. Many states have explicit statutes, regulations and/or case precedents which protect so-called "whistleblowers" from employer retaliation. Whistleblowers who are victims of retaliation have the right to sue.

   However, there is another side to the coin, as the Court of Appeals of Texas pointed out in a recent case. In this case, a home-bound patient had been visited by two home health nurses on the same day. Each nurse administered the same insulin dose to the patient, and the patient died.

   Several nurse managers at the home health agency were already in considerable hot water with their employer over the incident before a verbal threat was voiced to report the incident to the state board of nursing. The threat apparently was a ploy to gain advantage in negotiations over whether the nurse managers would be reprimanded, demoted or fired. After the decision was made to demote them from their management positions, they sent a letter to the board outlining the facts of the underlying patient-care incident.

   The court did not allow the nurse managers the right to sue as whistleblowers. A signed formal written report to the state board cannot be the basis for employer retaliation, but the mere threat to file such a report warrants no special protection under the law. In addition, the nurses had to prove they were demoted because of the signed report they ultimately sent to the board, which they could not do because their employer had already made its decision before they sent anything to the board. Clark vs. Texas Home Health, Inc., 940 S.W. 2d 835 (Tex. App., 1997).

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