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Whistleblower Protection Narrowed

This past July, Maryland's highest court ruled, in Parks v. Alpharma, that some health care whistleblowers may not bring wrongful discharge claims against their former employers.


A. The Facts

Debra Parks alleged that, during her employment as a drug marketer at the Baltimore offices of Alpharma, she complained to management that a particular drug's labeling failed to warn doctors and patients of the potential for lethal overdoses when the drug was combined with alcohol, and that soon thereafter she was fired.

In court, Parks claimed that she was fired for her complaints in violation of the public policies embodied in state and federal consumer protections laws prohibiting "unfair and deceptive" commercial practices, and federal drug labeling regulations.

B. The Decision
The court rejected Park's suit, ruling that, even if Parks were fired because of her complaints and not because of poor job performance, she, nevertheless, failed to identify an express public policy that the discharge violated. The court noted that the drug regulations and consumer protection laws contain broad language, making it difficult to say whether Alpharma had done anything unlawful.

Moreover, such laws do not confer a specific right or duty upon drug company employees to blow the whistle. The applicable statutes contemplate enforcement suits by consumers themselves or by law enforcement agencies, such as the FDA.

The court specifically tried to harmonize its conclusion in Alpharma with its recent prior ruling in Lark v. Montgomery Hospice. In Lark, the court allowed a claim brought by a nurse against a hospice, when the nurse alleged that the hospice fired her for making complaints to management about improper patient care.

The court reasoned that, in Lark, Maryland statutes both imposed a duty on the nurse to report the hospice's misconduct to a Maryland health oversight board, and expressly protected licensed health care professionals, such as nurses (and unlike drug marketers), from retaliatory discharges in connection with such reports. No similarly specific statute applied here.

C. Conclusion

The court's ruling in Parks should keep some wrongful discharge claims out of court, especially when made by unlicensed employees. Nevertheless, health care entities in Maryland, especially those employing licensed health care practitioners in frontline care, should continue to exercise caution when contemplating adverse employment actions against putative whistleblowers.

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Date

03.20.12

Type

Publications

Authors

Rosen, Barry F.

Teams

Health Care