Mid-Atlantic Health Law TOPICS
“But For” Whistleblowing
In 2002, the Maryland General Assembly passed the Maryland Health Care Worker Whistleblower Protection Act (Act) which bars health care organizations from firing or otherwise retaliating against employees who in good faith “blow the whistle” on their employer’s alleged illegal conduct. In 2022, Maryland’s intermediate appellate court, for the first time addressed the proof needed for an employee to win a case brought under the Act.
The court ruled that a successful employee must demonstrate that “but for” the disclosure of the employer’s wrongdoing, the employee would not have been fired or subjected to a reprisal by his or her employer.
Under the Act, a licensed or certified health care professional is protected if: (1) the worker discloses to a supervisor or board a violation of “a law, rule or regulation” that poses a danger to public health or safety; (2) the employee reasonably and in good faith believes such a violation has occurred; and (3) the employer retaliates against the employee for making the disclosure.
If so, the employee is entitled to a wide range of possible remedies under the Act, including injunctive relief, reinstatement, compensation for lost wages and benefits, and reasonable attorneys’ fees and litigation costs.
Under the Act, however, the employer has a defense if the personnel action was based on grounds other than the employee’s exercise of protected disclosure rights.
In Romeka v. RadAmerica II, the court considered whether the firing of Bridget Romeka by her employer RadAmerica violated the Act. Romeka was Chief Radiation Therapist assigned to the Radiation Oncology Center at Mercy Medical Center in Baltimore.
In her complaint, she alleged that she disclosed to a supervisor on May 17, 2018, that a broken couch on which radiation treatment was administered to patients posed a safety hazard. She further alleged that as a result of her disclosure she was terminated from employment on May 21, 2018.
The employer, on the other hand, maintained that Romeka was terminated for falsifying a medical record and other serious problems with her job performance—all of which had occurred prior to her disclosure.
The trial court dismissed Romeka’s complaint ruling that there was not a dispute that warranted a trial.
On appeal, the appellate court held that because there were substantial deficiencies in the employee’s performance that predated her disclosure of alleged wrongful conduct by her employer, Romeka was not entitled to a trial since she had failed to establish that there was a factual dispute as to whether she would have been fired “but for” her disclosure on May 17, 2018.
Theodore P. Stein
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