Lessons From Winning Cases

Two Nurses Who Spoke Up, Lost Their Jobs, and Sued

Carolyn Buppert, MSN, JD

Disclosures

April 08, 2016

In This Article

Winning Cases

Given that cases of termination in violation of public policy are difficult, why did these nurses win? The answer is in the details of the cases. These two nurses were ideal plaintiffs: They were good witnesses at trial, they were believable, they had good records until they made their complaints or reports, and their stories were compelling. In contrast, the employers couldn't back up their arguments that the nurses were fired for poor performance. In both cases, the employers tried to paint a picture of a nurse who didn't perform well, but when the juries compared the nurses' testimony with the presentations of the facilities, the juries voted for the nurses.

In Landin's case, the facility produced performance evaluations for Landin in years past, but said that recent performance records for Landin and the other nurse could not be located. The implication was that the records had been destroyed. According to court documents, Landin's supervisor, trying to show that Landin had performance problems, made up a document and signed the name of a nurse who had died. (Landin's attorney caught the supervisor in that deception.)

Landin's attorney was able to cast doubt on the validity of technical infractions for which the facility had cited Landin. The supposed violations did not jibe with the medical records. Furthermore, the nurse Landin complained about had been called out as unreliable and incompetent by numerous other nurses and supervisors. The facility's response was to transfer that nurse out of acute care to the long-term care unit. And, that nurse did not make a good witness in court. For example, in a Court of Appeals document, a judge noted that she could not answer basic questions about nursing care of a brittle diabetic, didn't know the significance of "brittle," and couldn't describe the necessary monitoring of a diabetic patient.

Landin, on the other hand, provided the court with a credible description of why the patient who died needed close monitoring for his illness and what monitoring was needed. According to Allweil, Landin's attorney, the facility's attempts to cover up the cause of the patient's death and discredit Landin did not sit well with the jury, nor with the Court of Appeals. "Juries get these types of cases," said Allweil.

In Boly's case, the evidence-gathering by both parties before the trial revealed emails in which hospital administrators discussed cutting costs and cutting nurses. Boly, one of the highest-paid nurses at the hospital, had been targeted for termination, her attorney argued. Some of the hospital's email communications that referred to Boly surprised her. She had not realized that so much was going on, unknown to staff nurses, in the way of targeting specific nurses. And, during trial preparation, Boly discovered that managers at different levels were getting bonuses for cutting nursing costs. Furthermore, the patient care quotas imposed on Boly weren't based on industry standards, nor had they gone through a process specified under the staffing laws in Oregon. Apparently these facts didn't seem right to the jury.

What Makes a Good Case?

Learning from these two cases, as well as cases that have not been successful, the elements of a good case are:

  • A compelling story;

  • A client nurse who is believable and who has a solid performance record;

  • Evidence that the employer tried to cover up a patient safety problem, or ignored it, rather than resolving the problem; and

  • Evidence of retaliation against the nurse.

Why Does the Process Take So Long ?

It took 10 years for Landin to get his damage award. It can take years to bring a case to trial. If the plaintiff wins, a facility can prolong a case by filing an appeal, which can also take years. In Landin's case, the facility's argument on appeal was that Landin's only remedy was the state's whistleblower protection act, and he hadn't complied with the requirements of that act. Landin reported the problem internally but not to an outside agency. The Michigan whistleblower law would have required him to report to a public body and follow certain procedures after that.

Landin argued that he was fired before he could report to a public body, so he was not eligible for whistleblower protection and that public policy called for an alternate remedy. Landin's attorney needed to argue Landin's case three times: to a jury at trial, to the state's court of appeals, and to the state's Supreme Court. Boly's case currently is headed to the state court of appeals.

Sometimes cases move faster, says Allweil, Landin's attorney, because some parties settle out of court, which means that the employee receives compensation for lost wages in a year or less. Settlements often are for less money than jury awards. However, the parties avoid the expense of trial and the time to resolution can be shorter. Nevertheless, the process isn't quick. And not all who sue prevail.

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