Should Nurses Blow the Whistle or Just Keep Quiet?

Carolyn Buppert, MSN, JD


June 24, 2014

In This Article

Whistleblower Laws

A nurse who is fired for bringing up a patient safety issue may think he or she is protected against retaliation under a "whistleblower law," but in fact, the nurse may not be protected. Whether such protection exists depends on exactly what the state's whistleblower law covers; whether the nurse followed the dictates of the law precisely; and whether there was any other reason, aside from reporting the patient safety issue, for which the hospital could reasonably have fired the nurse. The following case illustrates what can happen when a nurse tries to rely on a whistleblower law.[3,4]

A hospice nurse reported to her supervisors that starter packs of controlled drugs were being given to patients without a physician's order. She was worried because some of the patients were children and because she feared the drugs would be misused. Shortly after she complained about this practice, she was fired. She was denied unemployment compensation because she had been fired. She protested the denial of unemployment and filed for wrongful termination, hoping to use the state's Health Care Worker Whistleblower Protection Act.

The nurse found that the purpose of that law wasn't to protect nurses, but to protect employers against frivolous whistleblower actions filed by disgruntled former employees. A judge found that she hadn't conformed with a provision of the law, so the law didn't apply. (She hadn't reported the problem to an outside agency -- only to individuals within the agency.)

The state's highest court reversed the finding of the lower court, holding that it was enough to have reported the problem internally, and essentially said she could avail herself of the whistleblower law. However, when the case was tried, a jury believed the hospice, her employer, who argued that they terminated the nurse for a reason other than the complaint about the starter packs. The jury believed that the nurse was right in making the complaint, but that didn't help the nurse, ultimately. The nurse spent $150,000 on her legal efforts.

Maryland's Whistleblower Protection Act didn't work for that nurse, but let's look at another state's whistleblower protection for nurses. It appears that Texas law has some protections for a nurse who reports a quality issue[5]:

A nurse may report to the nurse's employer or another entity at which the nurse is authorized to practice any situation that the nurse has reasonable cause to believe exposes a patient to substantial risk of harm as a result of a failure to provide patient care that conforms to minimum standards of acceptable and prevailing professional practice or to statutory, regulatory, or accreditation standards. For purposes of this subsection, an employer or entity includes an employee or agent of the employer or entity.

A person may not suspend or terminate the employment of, or otherwise discipline, discriminate against, or retaliate against, a person who: (1) reports in good faith under this section; or (2) advises a nurse of the nurse's right to report under this section.

This law was added in 2011, after the Texas case described earlier. The key is to research the law of your state, so you know up front whether you have any protections when complaining about a patient care issue.

In a recent article[6] a nurse-attorney and a social worker who have experience with whistleblowers discourage nurses from whistleblowing, for their own good.

Federal whistleblower protection acts exist, which are meant to encourage reporting of healthcare fraud, and if the nurse follows the exact provisions of these laws, the nurse may share in the government's recovery of money. That is a different subject, however, and not addressed here.


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