Ms. E had spent the past 20 years as a nurse practitioner. She was hired five years ago by a midsized nursing center in her community. Within a year, she had been promoted to the job of Care Plan Coordinator and was responsible for managing medical care and treatment of all patients in the facility. One of the new responsibilities that came with the promotion was the supervision of less experienced nursing staff. Ms. E thrived in her new position and received high ratings from her superiors. Everything went well until the day that doing the right thing turned out to be the wrong thing for Ms. E’s job security.

Mrs. W, aged 76 years, had been exhibiting disturbing symptoms over the past two weeks, including hallucinations, weight loss, psychiatric symptoms, and acute distress. Ms. E documented and reported all of the patient’s medical difficulties to the staff physician. She attempted to contact the physician several times, but he would not return her telephone calls. Ms. E became increasingly concerned as the patient’s condition continued to deteriorate. It appeared that Mrs. W needed a new treatment plan, but the physician was unresponsive to Ms. E’s attempts to contact him. As the days went by, the patient continued to decline and Ms. E’s anxiety over the situation grew.

Ms. E was not the only person who was concerned. The patient’s adult son, who expressed great alarm over his mother’s situation, approached her one afternoon.

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“What should we do?” he asked Ms. E. “I’m worried about my mother. She has lost so much weight over the past few weeks, and she is agitated and hallucinating. There is definitely something wrong with her.”

“Yes,” replied Ms. E. “I am worried about her condition.”

“What do you suggest we do about it?” asked Mrs. W’s son.

After a brief hesitation, Ms. E looked the son in the eye and said, “I suggest you reconsider your choice of physician. Your mother is not getting appropriate treatment from the one she currently has.”

The patient’s son took Ms. E’s advice. When asked why he was changing his mother’s physician, he answered that it was because Ms. E advised him to do so. One day later, Ms. E was notified that she was being terminated from her position.

Ms. E was devastated by the loss of her job. Her distress was compounded over the next several months as she unsuccessfully tried to get a new position at one of the other medical facilities in her town. She became increasingly depressed. With no job and no prospects on the horizon, things were looking grim. A former colleague eventually suggested that Ms. E consult with an attorney.

The attorney listened to Ms. E’s description of the events surrounding her firing. He explained that as an “at will” employee without a contract, the facility was well within its rights to fire her at any time and for any reason. “Unless,” he said, “terminating you from your job would violate public policy—for example, if you were fired for doing something required by law.” He looked at Ms. E thoughtfully. “I’ll need to do some research,” he said, “but you may have a case for wrongful termination.”

One week later, the attorney called Ms. E to tell her that he had good news. “The state statutes that regulate nursing define the roles of a nurse. One of those roles, according to the statute, is ‘providing teaching and counseling about the patient’s health care.’ And even better,” said the attorney, “the statute goes on to define teaching and counseling as ‘increasing knowledge, assisting the patient to reach an optimum level of health functioning, assessing the patient’s needs and making referrals to appropriate resources.’ That is precisely what you were doing, and you were fired for it. They cannot terminate you for following the law. I recommend you file a lawsuit.”

The ensuing process was slow and painful. After the attorney did file the lawsuit, Ms. E’s former employer responded by filing a motion to dismiss on the grounds that the facility had not violated public policy. The trial court granted the motion to dismiss, and Ms. E was again despondent, but her attorney filed an appeal.

On appeal, the court examined the case more closely. It noted that Ms. E had kept impeccable notes regarding the patient’s care as well as her own unsuccessful attempts to get in touch with the physician about Mrs. W’s state of decline. The appeals court agreed with Ms. E’s attorney that the state statute regarding nursing clearly imposed a requirement on Ms. E to “teach and counsel” the patient and her family, which is what she did by advising the patient’s son that his mother was not getting sufficient care from the existing physician and recommending a change in treatment plan.

The appeals judges found it significant that Ms. E’s advice had been solicited by the patient’s son and was not gratuitous. They noted that because the patient was deteriorating and Ms. E could not reach the physician, her actions were not only appropriate but required by law. The decision of the trial court was reversed. The appeals court held that Ms. E had been wrongfully fired from her position, and she was reinstated with back pay and legal fees.

Legal background

“At will” employment is what occurs in the absence of a contractual arrangement spelling out the details of the job situation. Either the employer or the employee can end the arrangement at any time. An “at will” employee can be fired for no reason or even for an arbitrary or irrational reason. However, an employee cannot be terminated for an unlawful reason or for a reason that violates public policy. There have been several cases in which an employee was (unlawfully) fired for refusing to do something illegal. In Ms. E’s case, she was fired for doing what was required of her by law. Even an “at will” employee cannot be fired for this.

Protecting yourself

The court noted that Ms. E’s extensive notes on the patient’s failing condition, as well as her detailed accounts of her attempts to reach the patient’s physician, were the deciding factors in this case. These records established the foundation necessary for the recommendation she made to Mrs. W’s son when he asked about his mother’s care. This is yet another example of the extreme importance of notetaking. Ongoing, accurate, and consistent documentation of a patient’s health status is essential and always an excellent way to protect oneself.

Ms. Latner, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y.