Let’s say that you’re a registered nurse, employed at a hospice in Montgomery County, Maryland. Pain management being an important part of hospice care, your employer often dispenses high-power, potentially dangerous narcotics to its patients. The problem is, it has recently started providing narcotics to patients without a physician’s order.
Eventually, you come to find out that narcotics are sometimes even being dispensed to individuals who aren’t patients of the hospice at all. You learn that "starter packs" of medications, containing adult doses of narcotics, have been ordered for every patient—including your employer’s pediatric patients, some of whom live in homes with many children and with little supervision in the house.
Naturally, you’re alarmed. You recognize the danger to public safety posed by your employer’s reckless dispensation practices. You believe that, as a registered nurse, you have a legal duty to say something. You send an email to your supervisor describing these lapses. Shortly thereafter, you’re fired.
Do you have a claim for wrongful termination?
The story above isn’t hypothetical. It’s a very short summary of the allegations made by the plaintiff in Lark v. Montgomery Hospice, Inc., 414 Md. 215 (2010). In Lark, the Court of Appeals reversed the trial court, which had dismissed Susan Lark’s claim of wrongful termination under the Maryland Health Care Worker Whistleblower Protection Act, and reinstated her claim against her former employer.
The Health Care Worker Whistleblower Protection Act (the “Act”) is codified under Sections 1-501 through 1-505 of the Health Occupations Article of the Maryland Code. Any employed professional who is licensed by a professional board under the Health Occupations Article is entitled to protection under the Act. This includes, but is not limited to:
· Physician Assistants
· Physical therapists
· Psychologists and
Under the Act, an employer may not take or refuse to take any personnel action as reprisal against an employee because the employee:
(1) Discloses or threatens to disclose to a supervisor or board an activity, policy, or practice of the employer which is in violation of a law, rule, or regulation;
(2) Provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of a law, rule, or regulation by the employer; or
(3) Objects to or refuses to participate in any activity, policy, or practice which is in violation of a law, rule, or regulation.
Unfortunately, the scope of the Act’s protection is more limited than one might wish. In order for an employee’s disclosure to an employer’s activity, policy or practice to be protectable, that activity, policy, or practice must pose a “substantial and specific danger to the public health or safety.” So if, for example, the violation disclosed by the employee relates to fraudulent Medicaid billing, the employee’s reporting activity with respect to that violation would not be protected under the Act.
Moreover, although Maryland enacted a Health Care False Claims Act in 2010, which outlaws false and fraudulent claims under any State health plan or program—and which contains an anti-retaliation provision for employees and others who disclose or oppose activities which they reasonably violate that law—professional employees who are covered under the Health Care Worker Whistleblower Protection Act cannot bring claims of retaliation under the Health Care False Claims Act. Thus, doctors, nurses and most other employed healthcare professionals (who are often in the best position to prevent and detect healthcare fraud) are not protected from retaliation for reporting suspected violations of the Health Care False Claims Act unless those suspected violations pose a danger to public health and safety, and are therefore covered under the Whistleblower Protection Act.
To claim protection under the Act, a healthcare employee must at least report his or her suspicions internally. He or she must either:
(1) report the activity, policy, or practice to a supervisor or administrator of the employer in writing and afford the employer a reasonable opportunity to correct the activity, policy, or practice; or
(2) If the employer has a corporate compliance plan specifying who to notify of an alleged violation of a rule, law, or regulation, follow the plan.
Thus, the protection provided by the Act does not extend to a former employee who made no internal report before his or her employment was terminated. In Lark, the Court of Appeals ruled that the Act does protect a former employee who was fired before he or she made an external report to a board, provided that the employee made a written report internally to a supervisor or administrator of the employer. A “supervisor” under the Act means any individual within an employer's organization who has the authority to direct and control the work performance of an employee, or who has managerial authority to take corrective action regarding the violation of a law, rule, or regulation of which the employee complains.
An employee bringing an action under the Act may recover lost wages, benefits, and other compensatory damages. An employer who has been terminated in violation of the Act is also entitled to reinstatement to the same or an equivalent position held before the violation, as well as the removal of any adverse personnel record entries based on or related to the violation and the reinstatement of full fringe benefits and seniority rights. If the employee prevails, a court may also assess reasonable attorney's fees and other litigation expenses against the employer.
Under the Act, an employer has an affirmative defense if the personnel action complained of was based on grounds other than the employee's exercise of any rights protected by the Act. What this means in a “mixed motive” case, where an employer terminates an employee not only for her reporting activity under the Act but also for legitimate, performance-related concerns, is not clear. The Court of Appeals hasn’t yet been presented with an opportunity to interpret the Act’s “other grounds” defense. However, in other cases involving termination in violation of public policy, the Court of Appeals has ruled that an employee need only persuade a jury that his or her protected activity played a “motivating part” in the employer’s decision to terminate her; the employee is not required to prove that, but for engaging in the protected activity, she would not have been discharged. Ruffin Hotel Corporation of Maryland, Inc. v. Gasper, 418 Md. 594, 686 (2011). One would hope that the Court of Appeals would adopt this less stringent standard for claims arising under the Act, as well.
This gap in protection may have been fixed this year. In February of 2015, Maryland enacted a more comprehensive False Claims Act that protects employees, contractors and grantees from retaliation for disclosing or opposing an activity, policy or practice which that person reasonably believes violates that law—which would include the making of false and fraudulent claims for payment to the State or any county. MD GEN PROVIS § 8-101 et seq. Importantly, healthcare professionals are not excluded from protection under this statute.
David M. Briglia is an attorney who represents physicians, physician assistants, nurses and other healthcare professionals who have been fired, harassed or demoted for reporting fraud, illegal activity, discrimination and other misconduct. The Law Office of David M. Briglia serves doctors and other healthcare professionals in Washington, D.C. and Maryland, including Silver Spring, Takoma Park, Bethesda, Chevy Chase, Rockville, Gaithersburg, Germantown, Columbia, Baltimore, Annapolis and Frederick, and throughout Montgomery County, Prince George's County, Howard County, Anne Arundel County, Calvert County and Baltimore County. You can reach the firm at 240-482-0581.This blog is intended for informational purposes only and cannot be relied upon as legal advice.