A real buzzword in legal and policy circles, as well as general news media, over the last few years has been “whistleblower.” Whistleblowers have played a tremendous role in bringing to light illegalities and improprieties across government agencies, corporations and businesses, international institutions, and plenty of other places, sectors and industries. In the area of healthcare, whistleblowers were recently vital in bringing to light the secret waiting lists at Veterans Affairs health care facilities, about which we have previously written on this blog. Whistleblowers in the healthcare sector, including at nursing homes and long-term care facilities, are vital to making public the issues that adversely plague patients.
Details of the Case
Unfortunately, a whistleblower was not vindicated in the highest court in the state of New Jersey in a case of alleged nursing home abuse and neglect. The New Jersey Supreme Court affirmed a lower appellate court’s reversal of a trial court’s decision in favor of the whistleblower, who was a former nurse at the Bridgewater Senior Healthcare nursing home. The plaintiff alleged that the nursing home fired him as a result of his having reported inadequate patient care at the facility to government authorities. He brought his lawsuit on the basis of the conscientious Employee Protection Act (CEPA) that was passed to protect employees who blow the whistle on illegality or impropriety observed in their place of work.
The whistleblower alleged that there was an unsettling amount of infections among the resident patients, a rate of which was a result of improper quality of care. He first made this disclosure in an early January 2008 email to other fellow employees. He then anonymously also contacted health authorities at the municipal, county and state levels. The man claimed to reasonable believe that he would be violating the American Nursing Association Code of Ethics. Later in January 2008, the nursing home fired him because of contact with a New Jersey Network reporter in which he also allegedly handed over facility administrative logs which contained unredacted private patient information. In spite of this given reason, the plaintiff alleged that he had made disclosures which he reasonably believed evidences improper patient care and thus resulted in infections.
In spite of a win at the trial level, an intermediate appellate court overturned the trial court’s decision. On a final appeal to the New Jersey Supreme Court, the high court decided overwhelmingly (5-1) to uphold the dismissal of the plaintiff’s claims. While the whistleblower cited to ethics codes requiring his speaking up, the court saw that the nursing code did not have any provisions dealing with how to control infections or to treat the specific illnesses of Bridgeway’s patients. As a result of this lack of specific direction, the court held that he could not have reasonably believed any improprieties took place, and thus his disclosures were not protected. Additionally, the appellate court’s decision stated that the cited ethics code applies to nurses but was not appropriate as a basis for a CEPA claim.
While this post asserts no opinion or view on the New Jersey court system’s decisions in this case, it is nevertheless an important case in the area of ensuring that nursing homes give adequate care to patients. Regardless of the grounds of dismissal – which keep in mind were of whistleblower retaliation as the court did not actually weigh in on the existence of illness and negligence at the facility – this presents a scenario where a nursing home staffer believed the right thing to do was raise concerns about a high rate of patient illness in order to remedy the situation. Whistleblowers will continue to be important going forward in nursing home healthcare.
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