After ignoring an affair with a patient, illegally prescribed drugs, and falsified papers, a practice finally goes too far.
Ms. K, 45, worked as a physician assistant in a large suburban practice outside a major city. She’d been employed there for more than 12 years and took pride in her work. Until shortly before she left the clinic, she greatly enjoyed the job, but then she became privy to some information that eventually led to her termination.
One of the doctors in the practice, Dr. S, had been having an affair with a male patient under his care. That alone was unethical enough to make Ms. K uncomfortable, but then she learned that Dr. S had also falsified a workers’ compensation form on behalf of the patient and had been improperly prescribing narcotics to him for the past year.
A couple of weeks before Ms. K was fired, Dr. S called a meeting with one of his partners and Ms. R, a nurse practitioner who was the group’s director of operations. At the meeting, Dr. S confessed the affair, the unlawfully prescribed narcotics, and the falsified workers’ compensation form. Stunned, the partner and Ms. R looked at each other and began planning damage control. “Who else knows about this?” they asked. The only other person who was aware of his affair, said Dr. S, was Ms. K.
It didn’t take long for Ms. R to corner the PA. “Do the right thing,” the director advised. It soon became clear what she meant by that: If the Department of Health, Office of Professional Medical Conduct, or Workers’ Compensation Board contacted Ms. K, she was to “be a team player,” Ms. R instructed.
Ms. K interpreted this to mean that she was being asked to lie about the doctor’s conduct, and she told Ms. R that she would not do that. She’d worked hard for her PA’s license and had no intention of doing anything that might jeopardize it.
Ms. R was not pleased. She accused Ms. K of “not looking out for the best interests of the practice.” Then she turned on her heel and walked away.
Two weeks later, another incident occurred. When a former patient filed a malpractice lawsuit against the practice and Ms. K, the plaintiff’s attorney made the usual request for the chart. He also notified the practice that he intended to take depositions from all staff members who had been involved in the patient’s care.
But before giving the chart to the attorney, Dr. S altered it to make the practice appear less guilty. Other staff members, including Ms. K, were instructed to do the same. Ms. R also told the PA that she should lie if questions were asked at the deposition about whether the records had been altered.
“That’s illegal and unethical. I won’t do it,” Ms. K declared.
“Well, if you won’t be a team player, then we have decided to let you go,” Ms. R replied, and she fired Ms. K on the spot.A month later, Ms. K learned that an employee at the practice had told a patient Ms. K was fired because she’d had “a mental breakdown.” The same employee told another patient that Ms. K had quit without warning or explanation, and it had something to do with Ms. K’s son.
At that point, Ms. K hired an attorney and sued the practice on two grounds: wrongful termination of employment and defamation. Not only was she fired for objecting and refusing to participate in illegal activities, she charged, but her professional character had been ruined by the employee’s comments to the two patients. She sought $1.5 million, including back pay, punitive damages, and her attorney fees.
The defendants filed a motion to dismiss both causes of action, arguing that Ms. K had not been slandered and that her status as an “at-will employee” meant that she could be fired at any time, for any reason.
The judge dismissed Ms. K’s defamation suit but ruled that the issue of wrongful termination should be decided by a jury. A week before trial, the defense lawyers offered a settlement of $650,000. Ms. K accepted.
Most states have “whistleblower” statutes, anti-retaliation laws to protect employees from being fired or otherwise punished if they object to or report the employer’s illegal activities.
The state in which this case took place prohibits retaliatory action against an employee who objects to or refuses to participate in practices that would constitute “improper patient care.” The judge refused to dismiss Ms. K’s claim that she had been fired in retaliation for refusing to remain silent about illegal prescribing of narcotics to one patient and the alteration of another patient’s chart. He ruled that she had valid cause to believe that these actions would constitute improper patient care and that she had every right to sue for wrongful termination.
Ms. K was not as successful with her second cause of action: defamation. In order to sustain that charge, a plaintiff has to show not only that a false statement was made but that the statement caused specific, tangible harm. For example, the clinic employee’s gossip, although false and upsetting to Ms. K, did not cause actual damages. Had the statements been made to a potential employer, causing Ms. K not to be hired, the judge might have sent this part of the case to the jury as well.
Obviously no medical professional should take part in altering medical records, falsifying forms, or illegally prescribing narcotics. No court or ethical employer would expect being a “team player” to include breaking the law or even turning a blind eye to illegal activities.
Personal ethics aside, Ms. K was also rightly concerned about protecting her own professional license. For that reason alone, she was certainly entitled to object and to refuse to become involved in anything illegal.
If you need to report illegal activity and fear being persecuted because of it, whistleblower laws can protect you. But keep in mind you have to blow the whistle first. In other words, as in Ms. K’s case, these laws can help you get compensation for retaliatory actions, but they can’t prevent the retaliation itself.
The best way to protect yourself is to simply do the right thing. Ms. R’s advice notwithstanding, that includes not going along with anything that compromises patient care. If you are being asked to do something illegal or unethical, and you fear that your employer or supervisor will retaliate in some way should you refuse or object, consider consulting an attorney who is familiar with the whistleblower laws in your state. He or she should be able to explain how to document the situation, so you will have the strongest case possible if you have to file a whistleblower suit.