By NurseZone Staff Writer
Nurses who report cases of patient neglect or abuse know that doing so is a risky proposition. They immediately put their credibility and medical knowledge on the line and may face serious backlash from their superiors. Absent federal whistleblower legislation, many states have written their own statutes protecting nurses from possible retaliation from an employer. Read about what nurses can do to protect their patients’ rights as well as their own jobs.
If you were to put a human face on the need for whistleblower protection, that face just might belong to Mary Hochman. A respected and experienced convalescent home nurse, Hochman committed suicide rather than continue to face the fury directed at her by her supervisors after she reported to state regulators cases of patient neglect and abuse in the Santa Barbara nursing home where she worked.
Hochman had reported that a nurse’s aide hit an 81-year-old patient who suffered from dementia. Her employer allegedly told her to cover up the information, and when she refused to participate in the cover up, Hochman’s supervisors targeted her for retaliation.
What is “Whistleblower”?
“Whistleblower” is the name given to legislation at the state and federal level that protects nurses and other healthcare staff from retaliation by their employers when they report cases (or "blow the whistle") of patient neglect and abuse. Though federal legislation has yet to be enacted, many states have incorporated ethics requirements that call for nurses to report illegal or incompetent practices in the healthcare setting.
According to the American Nurses Association, some nurses are protected by whistleblower legislation while some are not. A number of variables are involved in determining who is protected under whistleblower statutes, including industry type, public or private sector and state and federal laws, including Medicare standards for healthcare facilities, Joint Commission on Accreditation of Healthcare Organizations standards and Centers for Disease Control and Prevention guidelines.
The following states – as a result of the cooperation between state legislatures and state nursing associations – have enacted whistleblower legislation since 1998: Alaska, Arkansas, California, Colorado, Connecticut, Florida, Illinois, Kentucky, Minnesota, Missouri, New Jersey, North Dakota, Texas, Utah, Washington and Wisconsin.
Whistleblower legislation has since been introduced in Alabama, Arizona, Hawaii, Idaho, Massachusetts, New York, Ohio, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia and West Virginia.
Many states provide protection to private-sector employees from retaliation, with most states protect nurses from being fired. Nurses who work for the government have more comprehensive protection – some statutes imply a responsibility for nurses to report violation of law, gross mismanagement, waste of funds, abuse of authority and potential danger to public health or safety. For private- and public-sector nurses, the recourse allowed (reinstatement, back pay, damages) vary.
Whistleblower legislation was included in the Dingell-Norwood bill, the Patients Bill of Rights passed by the U.S. House of Representatives in 1999.
Even though whistleblower statutes protect nurses from retaliation by their employers, it is up to the courts to decide whether the retaliation took place. In August 2000, two hospital nurses sued a Texas medical center under the state’s whistleblower act. The nurses claim that hospital staff retaliated against them after they reported instances of the hospital forcing unwanted medical procedures on patients. One of the nurses was awarded compensatory and punitive damages, as well as reimbursement for legal fees, while the other nurse-plaintiff was awarded nothing.
How Nurses Can Protect Themselves
Mary Hochman thought she had done the right thing when she reported the abuses in the nursing home. Her employers reacted as if she was the enemy.
Though she had previously received glowing performance reviews, her record of achievement and integrity as a nurse was now being placed into question. Hochman said that she was verbally reprimanded and could not return to work. She could not bear to see her family dragged through such an ordeal, even though she knew that she was right to defend her patients. She stated in her suicide note: “If a nurse cannot protect her patients I do not want to be a nurse…I cannot continue to watch my husband and my daughter suffer because I was a whistleblower.”
Nurses who speak out against unsafe or abusive practices know that reporting such practices is not an easy decision to make. The American Nurses Association (ANA) lists a number of tips for potential whistleblowers. This advice is intended to insulate nurses from retaliation and could help make the decision to blow the whistle easier.
- Educate yourself about your state’s whistleblower protection and process. Contact your state nurses association with questions or clarifications.
- Contact an attorney. (Some nurses advise doing this first.)
- Document instances that compromise care in a journal, such as a patient being withheld pain medication or unsafe practices. Include dates, times and outcomes to create a “paper trail” and make copies of all documentation.
- Submit “assignment despite objection” forms when working in unsafe situations.
- State only the facts and follow the healthcare organization’s chain of command before contacting an outside agency. Make sure that all documents sent to outside agencies are sent certified mail so that you may verify receipt of the materials.
- Be professional when dealing with your organization’s administration – don’t make it personal.
These are only some of the steps that nurses can take to protect themselves should they report negligent or potentially unsafe situations in their healthcare facility. For more information, contact your state nurses association and the ANA.
While Mary Hochman’s final action was extreme, many whistleblowers can recognize the feelings of betrayal and helplessness that led her to suicide. Luckily, as the number of cases of patient abuse and neglect rise so, too, is the number of cases being reported by brave nurses and healthcare staff. With whistleblower protection in place, nurses can continue to be advocates for their patients while ensuring that they won’t be penalized for it.
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