Balancing Patient Care With Whistleblower Liability Concerns

Editor: What do you credit for the recent uptick in whistleblower cases relating to the healthcare sector?

Kierkut: I believe that there are two major reasons for the uptick. The first is that there is a big increase in the number of hospitals merging in the healthcare industry and that has resulted in less job security for many healthcare workers. Whistleblowing is one way some employees believe they can protect their jobs. The second reason is that the Department of Labor has been cracking down on the healthcare sector for the past few years, especially in the home healthcare area, nursing homes and similar entities. While those are primarily wage and hour issues, when employees see a surge of activity from the Department of Labor, some will feel emboldened to follow suit.

Editor: The New Jersey Supreme Court recently rejected a whistleblower’s attempted claim in Hitesman v. Bridgeway, Inc. Please provide some background on the case and summarize the ruling.

Kierkut: Hitesman is about James Hitesman, a registered nurse in a nursing home, who saw what he perceived to be an outbreak of infectious diseases occurring in the nursing home. He felt that the outbreak was the result of a substandard quality of patient care in the nursing home and became concerned about this. He brought his concerns first to management, abiding by the internal policy, but when no action was taken, he brought his concerns to various government agencies and finally to a local television station to which he gave copies of internal documents – specifically his administrative logs. This prompted the termination of his employment because the nursing home contended that he was not permitted to provide confidential internal documents outside of the entity. In response to that termination, he filed a New Jersey CEPA claim (Conscientious Employee Protection Act Claim) alleging that he was discharged as a result of reporting the alleged substandard care. He cited three standards in support of his claim: The American Nursing Association (ANA) Code of Ethics, the nursing home’s employee handbook and the nursing home’s statement of resident rights. His suit went all the way up to the New Jersey Supreme Court where the Court found that the nursing home did not violate CEPA by firing the nurse for violating the nursing home’s confidentiality policy, because there was no clear standard of care to which he could point to having been violated by the nursing home leading to the outbreak of infectious diseases.

Editor: What is the significance of Hitesman for the healthcare industry and perhaps beyond?

Kierkut: The court’s ruling is instructive for most healthcare entities because it specifically addresses the ANA Code of Ethics, which many nurses feel governs their approach to delivering quality care.While it concedes that the ANA code may require registered nurses to try to improve patient care, and in fact that is the goal of the code, the Court found that the code does not set specific standards for nurses to follow that could provide a basis for a whistleblower case. For example, the ANA Code doesn’t include general standards for infection control in a nursing home or in other healthcare entities. So, the case is instructive to healthcare entities, but it also has the practical impact of reminding employers in other industries that they need to be very aware of the whistleblowing laws and their requirements when they are assessing the scope of their internal regulations and any other internal policies that govern standards in the workplace. Those policies, if they are specific enough, could provide employees with a basis for a whistleblowing claim. It’s a balance, and healthcare employers in particular need to be aware of this delicate balance because the goal is to have good patient care and to make sure nurses and healthcare employees are abiding by proper regulations to ensure the good patient care. However, if policies are too specific and do not provide healthcare workers with enough flexibility, there is risk of liability in this area.

Editor: Is this case getting more attention because it deals with issues relating to infectious diseases, which have become so prevalent on the global stage recently? I’m thinking of the Ebola virus for instance.

Kierkut: I haven’t seen any additional coverage of this particular case of late, but I do think that because of the current outbreak of Ebola, and the concerns about infectious diseases generally, there will probably be more written standards issued by healthcare entities.

Editor: Might this case, or any other recent cases, prompt further legislative or regulatory guidance on the subject of standards?

Kierkut: If things get worse with Ebola, the legislature may step in and try to issue some guidelines. I think that initially healthcare entities will start doing this internally, but in response to public pressure the legislature may step in sooner than we would normally see. In fact, one of the nurses unions has very recently begun to put pressure on the Obama administration and Congress to ensure that such standards are issued. So, it may be that we are heading to a time of increased specific standards around infectious disease. Healthcare entities will have to fight to retain the right to grant a degree of flexibility within those standards while still ensuring proper patient care and while also ensuring proper precautions are taken by and for healthcare workers.

Editor: Do Hitesman and other recent court decisions give cause for a business to consider updating policies and practices to ensure compliance with whistleblower laws?

Kierkut: Healthcare entities and other employers need to be aware of whistleblowing laws and their requirements when they are writing policies and when they are conducting training. Many hospital policies and handbooks set forth very specific requirements for handling patient care issues. These employers need to make sure that they are not boxed in by these policies and still provide a certain degree of flexibility to help healthcare providers use their professional judgment to address unique patient situations rather than having to adhere to a one-size-fits-all policy. In healthcare you can’t govern every type of individual situation with a policy or a handbook. We rely on our doctors and nurses to know how to use their professional judgment and discretion, and we have to trust them to do that, again, within certain parameters so as to ensure patient and healthcare worker safety.

Management training is also crucial around the issue of whistleblowing. What we might take away from Hitesman is that if the internal complaints had been addressed in a different way – if they were taken more seriously at the first communication – and if Mr. Hitesman had felt like he was being heard, he would probably have been far less likely to voice his concerns outside the nursing home. I said earlier that there are issues in terms of how employees might try to protect their job by becoming whistleblowers. The cynical side of me says that scenario does exist, but in many cases whistleblowers are employees with real concerns that they believe they need to bring to light. If they are heard internally by a respectful workplace, they’re far less likely to go outside the organization to resolve the complaint, and many of the issues we saw in Hitesman could be avoided. I think that training managers on how to address internal complaints and how to ensure that retaliation doesn’t take place when internal complaints are raised, even when complaints seem to be without merit, is extremely important.

Employee training is also critical. Employees need to know the channels they should use to report their concerns, and they should be reminded that even if they have concerns, HIPAA and patient confidentiality should not be violated. The other point I want to make, and one that managers often don’t seem to understand, is that courts don’t view retaliation as limited to termination. In Hitesman it was pretty clear, but in many cases retaliation is more subtle than a termination. It might be a change in shift or a diminished opportunity to advance. It could even be harassment. Managers should be trained to know what retaliation looks like and how to prevent it.

Editor: Do the whistleblowing rules do enough to incentivize employees to utilize internal compliance systems?

Kierkut: The whistleblowing laws do protect internal reports if they affect public safety, however, it is not just the laws that are at issue, but the response of the organization. Again, it comes down to employees feeling like their concerns are being heard, and that’s more of an issue to be addressed by management policy than by the law.

Editor: More broadly, what are key considerations for HR governance strategies in today’s business environment? Are there any recent takeaways companies should consider in their efforts to be prepared for litigation and investigations?

Kierkut: Employment litigation in general is on the rise again with the contraction of a lot of industries – not just in healthcare. With the rise in unemployment and with increases in employment terminations we have seen a huge surge of litigation over the last six or seven years, particularly in retaliation claims. What employers often don’t understand is that even if there’s an insufficient underlying claim, an employee may still state a retaliation claim. Employers need to be prepared for these claims. The first step is having a policy regarding retaliation, the second step is training managers, and the third step is making sure that those policies are actually followed.

Editor: Conversely, how might businesses use whistleblower laws to their advantage? Is there an opportunity for companies to use them as a means of promoting customer trust or to reinforce good business practices and competition?

Kierkut: Over the last couple of years, we’ve had a lot of clients interested in developing ethics best practices such as report hotlines. Hospitals have probably been using them longer than most other types of entities because of the unique issues they deal with, but other entities are beginning to see the benefit as well. These hotlines provide employees the ability to report violations anonymously and allow employers to address these sensitive issues quickly. Employers can further benefit because these types of practices tell the public that you are listening to your employees and that when issues are brought to your attention, you will fix them. Using that message as part of your public relations plan can be very beneficial, especially when there is widespread panic as we are seeing with the Ebola situation.

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