By Debra Wood, RN, contributor
The American Nurses Association and other nursing organizations have filed an amicus or "friend of the court" brief, in support of a Maryland nurse, Susan Lark, RN, who was terminated for bringing unsafe and illegal practices involving distribution of narcotics, to her employer's attention.
"This is an important case," said Alice Bodley, general counsel for the American Nurses Association. "It is critical when you are a nurse to be able to blow the whistle on improper practice that could endanger patients."
In 2002, Maryland passed the Health Care Worker Whistleblower Protection Act, to help protect nurses and other personnel from retaliation for disclosing activities, policies or practices that are in violation of a law, rule or regulation; providing information or testifying before a public body; or refusing to participate in practices in that violate a law or regulation and are a danger to the public health and safety.
The law requires employees first report the situation to a supervisor in writing and give the employer reasonable opportunity to correct the problem.
After Lark reported to her supervisor that starter packs containing large quantities of narcotics were sent to patient homes before those people were assessed or admitted to hospice services, Montgomery Hospice terminated her in April 2007. Lark sought relief through the courts, claiming, as a nurse, she had a duty to inform the hospice of the unsafe practice and was wrongfully discharged in violation of public policy.
The court dismissed the case in January 2008 at the request of the hospice. It ruled that other employees were responsible for the abuses she reported and that the hospice's institutional conduct did not violate any statute. The court also found that since Lark had not reported it to an outside entity, she had not met all the requirements of the law.
"This places nurses and other health care providers in a difficult situation," said Lee Boothby, Lark's attorney. "There is a period of time they are subjected to being terminated for doing what they are supposed to, reporting their concerns to a supervisor."
Boothby says statutes in other states mirror Maryland's language, and courts in those states have interpreted the law to require only internal notification of a situation to be protected.
Greg Care, a fellow at the Public Justice Center, which pursues social change for people shut out of society, says the legislature did not intend for workers to report both internally and externally to be protected. The center has filed a friend of the court brief.
"[The legislature] tried to provide the most protection possible," Care said. "It was a time of a great nursing crisis and they wanted to promote the retention of nurses. This was seen as one vehicle for doing that."
Lark had worked at Montgomery Hospice since 2004. She received high marks with a full raise in salary on her 2005 and 2006 annual performance evaluations.
Beginning in September 2006, Lark became concerned about several unsafe practices she observed, such as sending narcotics to people who were not patients, improper documentation of narcotics, treating patients with narcotics without a physician's order or with expired orders, failure of supervisors to follow up on documentation, and failure to initiate safety precautions on a patient at high risk of hemorrhage. She reported the concerns to a supervisor.
Lark became more troubled when adult doses of morphine in starter packs were delivered to pediatric patients, as young as five months old, with no labeling to indicate they should not be administered to children. When voicing her concerns to her supervisor did not change what she was told by the supervisor was "standard practice," Lark called the medical director. She also met with the director of human relations for the hospice and explained her worries about the starter packs. She e-mailed the administrative staff she spoke with to document her compliance with any legal and ethical responsibilities she had as a registered nurse. Soon after, she was escorted to a conference room and immediately let go, with no discussion.
The Court of Appeals will hear the case during the week of June 5, 2008. Lark is asking the court for everything provided for in the statute: reinstatement with full fringe benefits and seniority rights, removal of any adverse personnel records based on the violation, compensation for lost wages and benefits, and reasonable attorney fees.
Eighteen states offer whistleblower protection for health care employees. Protections vary. The American Nurses Association, as part of its nationwide state legislative agenda, promotes strong whistleblower laws that provide legal protections for nurses advocating for patients, without fear of reprisal.
"Health care workers have to have legal protection for their courageous acts of whistleblowing, so that they are able to protect the interests of their patients without suffering dire financial and professional consequences," said Linda J. Stierle, MSN, RN, CNAA, BC, CEO of the ANA, in a written statement.
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