Mid-Atlantic Health Law TOPICS

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Whistleblowers

Maryland's Health Care Whistleblower Protection Act (the Act) protects a heath care employee from personnel actions taken as a reprisal to the protest of wrongful acts. The protection generally only applies if the employee reasonably believes that the employer's conduct violates the law, the conduct poses a specific danger to public health or safety, and before reporting the conduct to an applicable board, the employee reports the problem to the employer.

Last May, the Maryland Court of Appeals, Maryland's highest court, ruled in Lark v. Montgomery Hospice, that health care employees who never complain to a board, but only make internal complaints, are, nevertheless, protected by the Act.

During her employment at Montgomery Hospice, Susan Lark, a registered nurse, complained in writing to multiple supervisors about charting errors, improper narcotics control, unauthorized treatment of patients, and inattention to safety protocols.

Subsequently, the hospice discharged Lark because she frequently acted outside the standards of nursing practice. Lark sued for wrongful discharge, arguing that the hospice used this justification as a pretext for retaliating against her for her complaints.

The trial court initially dismissed the claim, crediting the hospice's argument that the Act required Lark to have complained to a state board. The Court of Appeals, however, overruled that decision.

The Court of Appeals surmised that the legislature intended to encourage employees to take the quicker, less disruptive step of making an internal complaint before taking external action. However, the court reasoned that the legislature could not have made such an external complaint a necessary condition of whistleblower protection because if it had, the purpose of the Act to encourage swift and thorough correction of improper conduct in health care organizations would be defeated.

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Date

09.28.10

Type

Publications

Authors

Rosen, Barry F.

Teams

Health Care