#10 Maryland High Court Broadens Health Care Employer Liability

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01/31/2011 3:18 AM

Employees in the health care field are protected from retaliation by their employers for complaining about violations if those violations affect public health or safety.  In fact, the Health Care Worker Whistleblower Protection Act generally provides that an employer in the health care field may not retaliate against an employee based on an employee’s disclosure of (or threat to disclose) his or her employer’s violation of law, if the violation “poses a substantial and specific danger to the public health or safety.”  If an employer does retaliate, the employee can sue the employer for damages, including attorney’s fees.  The reverse also holds true.  If an employee frivolously sues his or her employer claiming retaliation, a court can require that the employee reimburse the employer for attorneys’ fees incurred in defending the case.

Last year, Maryland’s highest court interpreted the Act for the first time.  In that case, a nurse employed by a hospice company complained to her supervisors that her coworkers were not keeping accurate medical charts, and that her coworkers were distributing narcotics improperly.  After receiving the reports, the employer terminated her, stating that her overall job performance was unacceptable.  The nurse sued the employer, asserting that her termination violated the Act.

A trial court found for the employer, because, among other reasons, the nurse had not reported the alleged violations to any government agency (such as the Board of Nursing).  The nurse appealed, and Maryland’s highest court ruled that the lawsuit should proceed against the employer.  The court stated that an employee can file suit under the Act, even without reporting violations to a government agency.  Instead, the employee need only report the violation to a supervisor.  The court also found that the nurse’s reports of violations by fellow, non-managerial employees entitled her to protection under the Act, even if those employees did not have the authority to set corporate policy.

Health care businesses need to understand and comply with their obligations under the Act, and with court decisions that interpret it.  Failure to do so can result in large damage awards, injunctions, and substantial attorneys’ fees.  For more information on the Health Care Whistleblower Protection Act and other health care law topics, contact Gregory M. Garrett at ggarrett@tydingslaw.com, or by telephone at 410.752.9767.

Source:  Lark v. Montgomery Hospice, Inc.Court of Appeals of Maryland.

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