Should Nurses Blow the Whistle or Just Keep Quiet?

The Nurse's Duty to Protect Patient Safety

What if a nurse doesn't report a quality of care or patient safety issue? Is he or she likely to be disciplined?

Let's look at Texas law on reporting. It appears that reporting of a patient safety issue involving an agency or facility problem is optional ("may report"), but reporting of another nurse is mandatory ("shall report").

Here is the language that says reporting a facility is optional^[7]:

In a written, signed report to the appropriate licensing board or accrediting body, a nurse may report a licensed health care practitioner, agency, or facility that the nurse has reasonable cause to believe has exposed a patient to substantial risk of harm as a result of failing to provide patient care that conforms to:

(1) minimum standards of acceptable and prevailing professional practice, for a report made regarding a practitioner; or

(2) statutory, regulatory, or accreditation standards, for a report made regarding an agency or facility.

Here is the language that says reporting a nurse is mandatory in Texas:

(1) "Conduct subject to reporting" means conduct by a nurse that:

(A) violates this chapter or a board rule and contributed to the death or serious injury of a patient;

(B) causes a person to suspect that the nurse's practice is impaired by chemical dependency or drug or alcohol abuse;

(C) constitutes abuse, exploitation, fraud, or a violation of professional boundaries; or

(D) indicates that the nurse lacks knowledge, skill, judgment, or conscientiousness to such an extent that the nurse's continued practice of nursing could reasonably be expected to pose a risk of harm to a patient or another person, regardless of whether the conduct consists of a single incident or a pattern of behavior.^[8]

A nurse shall report to the Board in the manner prescribed under Subsection (d) if the nurse has reasonable cause to suspect that:

(1) another nurse has engaged in conduct subject to reporting; or

(2) the ability of a nursing student to perform the services of the nursing profession would be, or would reasonably be expected to be, impaired by chemical dependency.^[9]

Under Texas law, therefore, the nurse may, but has no obligation to, report a facility to the appropriate licensing board, when the nurse has reason to believe that a patient has been exposed to substantial risk for harm. But a nurse must report another nurse.

Here is what Texas law says about failure to report: "(a) A person is not liable in a civil action for failure to file a report required by this subchapter. (b) The appropriate state licensing agency may take action against a person regulated by the agency for a failure to report as required by this subchapter.^[10]

In Texas, the Board of Nursing could take action against a nurse who failed to report, but isn't required to do so.

Let's go back to the state law language cited earlier that implies that nurses must safeguard patient safety. A search of the disciplinary actions of the Maryland Board of Nursing indicates that the language "a nurse shall act to safeguard a client..." is invoked when it is the nurse who is incompetent or unethical. The nurse is supposed to report him- or herself, but not necessarily report someone else, or a facility. I found no cases where that clause was used to discipline a nurse who discovered that someone else was incompetent, and failed to report it. I could find no disciplinary actions reported on the Texas Board of Nursing Website against nurses who had failed to report a patient safety issue.

Other states may have different law on this, or no law on this, but it is becoming clear that a nurse doesn't have to report a facility and will do better personally if he or she does not.

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