Ms D had worked as an oncology nurse in the cancer unit of a local hospital for almost 10 years, and she cared for medical and surgical patients as well as cancer patients. In mid-December, Ms D developed an itchy rash. A few weeks later, she learned that several other nurses working on the oncology floor had developed similar rashes. Ms D began to suspect that the rashes were caused by a patient in the oncology unit who had been treated in November. The patient, Mrs S, was bedridden and experienced multiple health issues including a thick, itchy rash that covered her body.
In mid-January, Ms D reported to employee health services that she and at least 1 other hospital employee had rashes that she believed to be caused by scabies. Ms D was directed to Ms J, the hospital’s director of infection prevention and control. She told the director that she and another employee had been experiencing a rash for several weeks and that she believed they had contracted the rash from the former patient, Mrs S.
Ms D was told that she should have reported her concerns sooner. “Rashes are supposed to be reported immediately,” stated Ms J. She instructed the nurse to see a dermatologist. Ms J reviewed the chart of the former patient with the hospital’s chief medical officer, who was an infectious disease specialist, and they concluded that the former patient was not the source of the rash.
The next day, Ms D called employee health services to inform them that she had consulted with a dermatologist and was diagnosed with scabies. Upon hearing this, Ms J notified the county health department of a scabies outbreak in the hospital. She also prepared and distributed a memorandum to hospital employees and volunteers about the symptoms and management of the condition.
Ms D remained concerned that the former patient was the source of her infection despite disagreement from hospital administration following an internal investigation. During Ms D’s examination by the dermatologist, the physician noted that people with a weakened immune system may develop scabies in a more severe, highly contagious form. He showed Ms D a picture of the condition, and it closely resembled the rash she had seen on Mrs S.
Ms D decided to visit Mrs S at a skilled nursing facility where the patient had been discharged to determine if she had been treated for scabies. The patient was confused and did not recognize the nurse. The patient did not speak English, but Ms D was able to converse with her in Spanish.
The following day, Ms D called Ms J to tell her that she had visited the former patient to find out if she was being treated for scabies. Ms J informed Ms D that by visiting the patient, she may have violated the patient’s privacy and that her actions were completely inappropriate. Ms J notified the hospital’s privacy director and the hospital began an investigation. In the meantime, Ms D called the county health department to report the scabies outbreak although it had already been reported by the hospital.
The hospital investigated Ms D’s visit to the skilled nursing facility. Through a translator, the patient reported that Ms D looked familiar, but she did not know who she was. The patient reported that Ms D had asked whether she had been treated for scabies, as some of the nurses at the hospital had been treated for the rash and they wanted to make sure that the patient was treated. The patient was upset and worried that she had made someone ill.
Ms D hired an attorney and sued the hospital, claiming that she was fired in retaliation for reporting the outbreak. The hospital made a motion for summary judgment, asking that the case be dismissed. The lower court granted the hospital’s motion and dismissed the case. Ms D appealed.
On appeal, Ms D’s attorney contended that there were triable issues of fact concerning the hospital’s retaliatory intent or animus in terminating Ms D’s employment. The hospital maintained that Ms D’s termination was not because of her reporting the outbreak but because she violated hospital policies and HIPAA by going to a skilled nursing facility to check on a discharged former patient.
A summary judgment motion is granted only if there are no material issues of fact in dispute, and instead the issue is one of law. The appeals court noted that the hospital had reported the outbreak to health authorities first; therefore, Ms D was not a whistleblower and could not have been fired in retaliation for reporting the outbreak. In addition, the other employees who reported the rash were not terminated. The sole reason for Ms D’s termination, agreed the court, was her violation of the hospital’s privacy policies.
The appeals court agreed with the lower court and dismissed Ms D’s case against the hospital.
It is worth noting that Ms D did not access medical records or use protected health information to locate the patient. This was confirmed by the hospital during its investigation. Instead, Ms D’s familiarity with the patient’s condition and family circumstances allowed her to deduce that she may have been released to a nearby skilled nursing facility. Ms D then went to the facility as a visitor and asked for the patient by name.
Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, New York.