Preparing to Blow the Whistle

A Survival Guide for Nurses

Nayna C. Philipsen, JD; Donald Soeken, LCSW-C

Disclosures

Journal for Nurse Practitioners. 2011;7(9):740-746. 

In This Article

Abstract and Introduction

Abstract

Fear of retaliation and the stigma associated with being a "troublemaker" or a "whistleblower" contributes to the underreporting of problems in health care. Any nurses or nurse practitioners placed in the difficult situation of reporting a problem that an employer has not addressed need guidance to decide whether to report, how to report, and what they should do to protect themselves and their families when they do report. They need to maximize the effectiveness of their report and minimize the negative repercussions.

Introduction

Many nurses will recognize this situation: A nurse wants to report a situation at work that he or she truly thinks is a problem but is afraid. Maybe the idea makes the potential whistleblower uncomfortable, or maybe it is creating a moral dilemma, with real stress and even physical symptoms or depression. Nurses study ethics and learn about the American Nurses Association (ANA) Code of Ethics for Nurses.[1] They learn that they must be of good moral character and must act for the public benefit. But if your instincts tell you that doing the right thing can be dangerous, there is a reason why. Blowing the whistle on abuses in the nursing workplace can be hazardous to your employment, along with your mental health.

Fear of retaliation and the stigma associated with being a "troublemaker" or a "whistleblower" are realities that contribute to the underreporting of problems in health care.[2] Nurses are fighting to encourage reporting in health care, and in some states nurses have successfully advocated for laws specifically to protect those who report a problem. Examples include the Texas Nurses Association, which lists whistleblower laws impacting nurses on its Web site.[3]

This situation has impacted other caregivers, too. The more responsibility a caregiver has, the greater the exposure to serious events. Physicians, nurse practitioners (NPs), and nurses in a supervisory position are under pressure to respond to a wide variety of problems at work—everything from unprofessional or incompetent colleagues to kickbacks and fraudulent billing practices. Nurses have unique opportunities to witness both single incidents and patterns of improper behavior, disregard for procedures, or critically dangerous practices in direct patient care.

Nurses may find themselves facing a dilemma if their employer will not correct a bad situation. The nurse may feel that he or she will not be able to sleep at night without reporting the problem. One of these authors is a CLEAR-certified investigator[4] who once assessed complaints from health care whistleblowers. These complaints included the following people:

  • A nurse whose employer-physician's husband was the billing clerk and sent out many unjustified bills, hiding the income in 7 checking accounts and 2 states that the nurse could identify (the abuses included both Medicaid and Medicare billing fraud)

  • A nurse whose employer did not adequately clean examination equipment and committed multiple violations of the Occupational Safety and Health Act (OSHA)

  • Two nurses who were told by psychiatric patients about highly unusual psychiatric exams (and recorded the patient names and dates because of their concern)

  • A nurse whose employer did cash-only, in-office abortions without anesthesia—or billing records—for some patients (and she could identify their charts)

  • An NP who reported a noncompliant "system" of monitoring controlled medications that permitted a colleague to divert large quantities for sale at $50 per pill

  • A nurse whose employer was distributing an inexpensive medication to patients in his clinic but charging for a very expensive medication (Medicare fraud—this case expanded considerably because, unknown to the nurse, this scheme also involved a major pharmaceutical company and physicians at additional sites)

Which of these nurses was recognized by the employer as a hero? None. Which kept their jobs after filing a complaint? As far as we know, the nurses who reported the psychiatrist were the only ones. Which of the complaints led to changes in health care, large or small? All of them. Without the warnings from these nurses, these practices would have continued to harm patients and our society.

These nurses all submitted reports with their identities attached. When a surgeon reported a colleague for billing for procedures that he did not perform on pediatric patients that he actually took to surgery with full anesthesia for a minor and unnecessary procedure in order to bill, the whistleblowing practitioner reported it anonymously to the board of physicians. Unfortunately, the Medical Practice Act required a "signed" complaint, which board members had interpreted to mean "with a name and contact information." But this report had so much detail that the board decided the complaint must have a basis in fact and decided to investigate. After all, it was "signed" by "Anonymous!" The outcome was that the bad surgeon was put out of business, and the good surgeon remains unknown, his or her reputation unscathed in the medical community. From him or her we can learn that, if you decide to report, how you report may be the next critical decision.

An individual nurse (called a "relator") who has a complaint involving abuse of federal funding (Medicare or Medicaid) can file a claim on behalf of the government, with or without the Department of Justice, under the False Claims Act, at 31 U.S.C. § 3729 et seq. This is called a qui tam case. The intent of the law was to encourage this reporting by awarding a percentage of the money that the government was defrauded to the successful whistleblowing relator. The whistleblower must be represented by an attorney to do this.

Nurses should view whistleblowing as an extreme, last-ditch strategy to protect the public welfare, and they should also take a step back before leaping to this response. Consider not only the problem that you are addressing but also its priority among the other items on your life's agenda. Will the ends justify the means? "Doing the right thing" in 1 case is sometimes not the best thing in the bigger picture. According to Lachman,[2] Barry Adams, a nurse who was terminated after he reported problems related to low staffing in a New York hospital in1996, learned that "blowing the whistle can be a life-altering incident. Even though Mr. Adams lost his job, he must have felt a sense of achievement for speaking out about patient safety issues." Do not assume that "a sense of achievement" will be the feeling at the end of the day.

Two very recent cases involving nurses give some hope that reporting may one day be an expected role of the nurse, instead of having the negative connotation of whistleblowing. In Lark v. Montgomery Hospice,[5] a nurse complained to her supervisor about the abusive handling of narcotics. The employer responded by firing the nurse, who then filed a complaint against the employer for wrongful discharge, alleging that the employer violated Maryland's Health Care Worker Whistleblower Protection Act. Maryland's highest court found that the employer's failure to correct the procedures for narcotics was prohibited by law and that the intent of the law did not require the employee to file a complaint outside in addition to an internal complaint. The ANA and the American College of Nurse-Midwives were among those who filed arguments in support of the nurse.

In the second case, 2 nurses in Texas suffered retaliation after they reported a physician to the medical board for unsafe practices. In 2010 the nurses prevailed, and again the ANA was among the groups that supported the nurses.[6]

Our purpose here is to help nurses who are considering an act that would put them on the line to protect the safety of their patients and the integrity of health care by blowing the whistle about a problem at work. Table 1 outlines the steps that potential whistleblowing nurses need to take before they act. These nurses need guidance to decide whether to report, how to report, and what they should do to protect themselves and their families when they do report. They need to maximize the effectiveness of their report and minimize the negative repercussions.

You know who you are. This is for you.

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