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Is a whistleblower always legally protected?
Case illustrates how imperative it is to follow the rules of reporting
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Nancy J. Brent, MS, JD, RN, brings more than 30 years of experience to her role as’s legal information columnist. Brent’s posts are designed for educational purposes only and are not to be taken as specific legal or other advice. Individuals who need advice on a specific incident or work situation should contact a nurse attorney or attorney in their state.
According to an article in the
Encyclopedia of Bioethics
, whistleblowing occurs when a disclosure is made by a member (or former member) of an organization about some practice — usually illegal, unethical and/or unsafe — within the organization.
Whistleblowing can be within an organization or external to the organization. If you report to your CNO that diversion of controlled substances is being done by certain staff on your unit on a regular basis, you are probably whistleblowing within the healthcare facility in the hope that the practice will stop and that you are protecting patients.
If, however, you take your inside information to the state agency that licenses your healthcare facility, the disclosure is now an external, unauthorized disclosure, meaning your employer did not approve the reporting.
In either case, as a nurse your whistleblowing, especially if external, must be “responsible.” This includes having clear evidence that the conduct you are reporting is
illegal, unethical and/or unsafe
; that your report is accurate against not only the facility, but against specific individuals; and that the reporting is to correct the harmful conduct, according to the article.

Whistleblowing is both an ethical and legal responsibility. Nursing codes of ethics, including the
American Nurses Association Code of Ethics for Nurses with Interpretive Statements
and state nurse practice acts require you to report unethical, illegal, unprofessional or unsafe practices to the appropriate authorities.
There is no question that whistleblowing is often difficult for the nurse who, with moral courage, takes his or her concerns to others. It is risky and can result in an unexpected outcome, as the following case illustrates (Eke vs. Maxim Healthcare Service, Inc.).
Is a whistleblower always legally protected?
By Nancy J. Brent
Eke worked at Maxim Healthcare Service, Inc. as a home care nurse. For two years, she provided care daily to a child suffering from hypoxic-ischemic encephalitis. The condition required “constant intensive care” and ventilator support, according to the court report.

About a year into providing care to the patient, Eke alerted her nursing supervisor that the patient’s mother was not administering the proper medications to the patient for him to be able to complete his physical therapy.

The nursing supervisor said she attempted to contact the patient’s mother to no avail. The nursing supervisor told Eke she would make a home visit. Eke said the mother continued to not administer the ordered medications to the patient and consequently, the patient’s suffering from symptoms increased.
Eke called the state’s Division of Youth and Family Services about her concerns surrounding the mother’s conduct. A few days later, the supervisor told Eke her patient was too sick to go to school and that Eke should not come to work until further notice.

Shortly thereafter, Eke received a notice to report to Maxim’s human resources department to discuss a recent client-related report or she would be terminated for “non-cooperation with an investigation.”
There is no question that whistleblowing is often difficult for the nurse who, with moral courage, takes his or her concerns to others. It is risky and can result in an unexpected outcome ...”
— Nancy Brent, RN

The burdens of whistleblowing
Eke’s nursing supervisor told her it was “no longer safe” for her to work at the patient’s home. Later, on the same day, Eke met with Maxim’s director of nursing who told her she was being terminated from her employment, adding that Eke’s “actions were right, but that [she] went a little too far.”
Eke filed a complaint with the District Court, alleging her reporting was protected by the state Conscientious Employee Protection Act and that she was wrongfully discharged in violation of public policy.
Maxim filed a motion to dismiss the case.
The District Court, in an unpublished opinion (meaning it cannot be cited as authority and is only binding on the parties) held the state CEPA existed to prevent retaliatory action by an employer against an employee “who blow(s) the whistle on organizations engaged in illegal or harmful activity … [and is] limited to activities, policies or practices of ‘employers.’” The act does not protect reports alleging the misconduct of nonemployers. Because the patient’s mother, who was not Eke’s employer, was the party cited as acting harmfully, CEPA protections could not be invoked.
Eke’s second argument that she was wrongfully discharged was then evaluated by the court. It opined that her reports to Maxim and to DYFS were as a result of her concern for the mother’s conduct and not due to her employer’s conduct. Eke did not report facts to support that her termination was in retaliation for the reports she had made. Indeed, the court stated, Eke had acknowledged Maxim’s efforts to take action in the situation after Eke had reported the mother’s noncompliance.
For these reasons, the court granted Maxim’s motion to dismiss the case with prejudice (meaning that Eke cannot refile the case against Maxim).
Review of child abuse laws might've helped
As can be seen from the court’s reasoning, the protection for whistleblowing requires
strict adherence to the legal formula
contained in its state statute. Likewise, an allegation of wrongful discharge must meet the requirements set out in state statute.
The outcome of this case is unfortunate because Eke was acting on a sincere, and most probably correct, belief that the safety and well-being of her patient was at risk. Although the law did not protect her when she was terminated, she clearly acted in accordance with her moral and ethical responsibilities.
If Eke had relied on her state’s laws pertaining to child abuse and neglect when reporting her concerns, a different legal outcome for her might have occurred. As a mandated reporter, Eke would be required to report her concerns. If her employer then had discharged her for reporting the mother’s conduct, under state law Eke would have been legally protected from any employer retaliatory action against her.
If you find yourself in a situation where you believe you have an ethical and legal obligation to report unsafe, illegal or harmful activity, consult with a nurse attorney or attorney before going forward with a report to a required agency.
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