Staffing is an issue at this 150-bed proprietary acute-care hospital. More than 100 of the hospital’s nurses, led by Mary Sims*, RN, signed a letter of concern about staffing to the hospital’s CEO in February. (Note: The nurse’s name has been changed and the hospital and its location have been omitted to protect her identity.)
Shortly thereafter, Ms. Sims provided the same information, along with comparative staffing data, to the medical staff. A considerable brouhaha ensued, and by April, Ms. Sims (who had worked at the hospital for 7 years and always received excellent performance evaluations) was sent home–in the middle of her shift, even though the house was a full and per-diem nurses had been called in to work.
Then, in September Mary Sims made an error: She was working the evening shift, giving direct care to six patients, when at 1928 h another patient was admitted to her unit directly from the post-anesthesia care unit (PACU). Because she was at dinner, another nurse received report on the patient and settled her in a room. When she returned from dinner at 2000 h, she was informed she had a new patient. She entered the patient’s room, checked her I.V. order and replaced the depleted I.V. bag, checked the various drainage tubes, cleaned up the patient’s leaking Jackson-Pratt (JP) drain, changed the patient’s linens, and did an assessment. By this time, it was 2045 h. She then reviewed the rest of the orders, noting that the physician had ordered Lopressor to be given at 1800 and 2400 hours. The 1800 h dose (if given) would have been given in the PACU. The patient’s blood pressure was now within target parameters, but she was still losing blood and her blood pressure was so low (106 mm Hg systolic) at 2400 h that Sims made a nursing judgment to withhold Lopressor and noted this on the chart.
At the end of the shift, Sims gave report to the night nurse and went home. In the press of activity, she missed the physician’s order for telemetry. This error resulted in a 4- to 5-hour delay in its initiation. The night nurse started the telemetry and noted this in the chart. The patient suffered no ill effects, so the physician wasn’t notified. However, an incident report was filed by a nursing supervisor the next day. It doesn’t matter that telemetry usually is initiated in the PACU or that the telemetry equipment didn’t arrive on Mary’s shift, or that she didn’t receive report from the PACU nurse. The fact is, Mary Sims didn’t start telemetry as ordered.
Subsequently, she was escorted to the human resources department and her employment was terminated, effective immediately, for making what the hospital called an egregious patient error—despite no harm done to the patient. There was no investigation, no previous counseling sessions, no previous errors, and no one to inform her of her rights.
Commentary
Retaliation is the number-one high-risk behavior (from a legal standpoint) for employers today1. Whether they like it or not, retaliation in any form is illegal. Moreover, retaliation against nurses who advocate for what reasonably could be considered patient safety is outraging both the public and the courts.
For example, a West Texas jury took only 1 hour to acquit a nurse who’d been fired and then charged with a felony after alerting the state medical board to a doctor’s unsafe practice at her hospital. Jury members wondered why she was fired, no less arrested2. Subsequently, a state grand jury indicted the sheriff, county attorney, and hospital CEO for orchestrating her prosecution, and charged them with retaliation—a third-class felony3.
The Mary Sims case doesn’t involve whistle-blowing4, but the question of retaliation remains. Most people know laws exist to protect employees from discrimination and harassment. But few know these laws also protect them from retaliation. That means it is illegal to punish employees for making complaints. Retaliation includes any negative job action, such as demotion, discipline, firing, salary reduction, or job or shift reassignment5.
In this case, an employee (Mary Sims) was fired. Is it retaliation? Here’s the test: Is this the way any reasonable employer would react to a similar error? Mary had been employed for 7 years and received excellent performance evaluations each year. She made an error in an atypical patient handoff, failing to execute an order. The patient suffered no negative effects. It was her first “offense”—and one that could reasonably be attributed to a systems problem; patient handoffs are notoriously error-prone6. Would the average employer terminate her immediately? Without counseling? Without investigation? Without recourse? And how could they have called this an egregious error? Is this a fair way to treat any employee? If she wasn’t truly terminated for the error but rather for signing the letter about staffing, this is a case of retaliation.
From an ethical perspective, intimidation, arbitrary discipline, and defamation are unacceptable management behaviors. And in Mary Sims’ case, they’re quite possibly illegal behaviors7. From a management perspective, even though this case took place in an employment-at-will state and the hospital isn’t unionized, management still has a duty of fairness to employees. From a practical perspective, hospital leadership is risking8 an unnecessary lawsuit—an inexcusable risk to take; a petty-minded waste of time, money, and resources. How stupid9 can you get?
That’s my opinion. What’s yours?
* The name was changed and the hospital and location omitted to protect the nurse’s identity.
References
- Tuna C. Employer retaliation claims rise. Wall Street Journal. October 5, 2009. http://online.wsj.com/article/SB125470380636663209.html Accessed January 28, 2011.
- Sack K. Anne Mitchell, whistle-blowing nurse, is acquitted in Texas. New York Times. February 11, 2010. www.nytimes.com/2010/02/12/us/12nurses.html. Accessed January 28, 2011.
- Sack K. Sheriff charged in Texas whistle-blowing case. New York Times. January 14, 2011. www.nytimes.com/2011/01/15/us/15nurses.html?ref=kevinsack. Accessed January 28, 2011.
- Sexual Harrassment Law Firms. Workplace retaliation definition. www.sexualharassmentlawfirms.com/resources/sexual-harassment/workplace-retaliation/workplace-retaliation-penalties.htm. Accessed January 28, 2011.
- Bingham McCutchen. Supreme Court broadens the definition of retaliation and exposes employers to more lawsuits. July 2006. www.bingham.com/Media.aspx?MediaID=2829. Accessed January 28, 2011.
- Hohenhaus S, Powell S, Hohenhaus JT. Enhancing patient safety during hand-offs: standardized communication and teamwork using the ‘SBAR’ method. Am J Nurse. 2006;106:72A-72B.
- The lawsuit is now in process, and a court will determine the legality of the employer’s behavior.
- Sandman PJ. The stupidity defense. January 29, 2001. www.psandman.com/col/stupid.htm. Accessed January 28, 2011.
- Tending to make poor decisions or careless mistakes. Marked by a lack of intelligence or care; foolish or careless. www.google.com/search?q=stupid+-+definition&rlz=1I7SKPB_en&ie=UTF-8&oe=UTF-8&sourceid=ie7 For further explication, see www.psandman.com/col/stupid.htm.
Dr. Leah Curtin, RN, ScD (h), FAAN, is Executive Editor, Professional Outreach, American Nurse Today. An internationally recognized nurse leader, ethicist, speaker, and consultant, she is a strong advocate for both the nursing profession and high-quality patient care. Currently she is Clinical Professor of Nursing at the University of Cincinnati College of Nursing and Health. For over 20 years, she was the Editor-in-Chief of Nursing Management. In 2007, she was appointed to the Standards and Appeals Board of DNV Healthcare, a new Medicare accrediting authority. Dr. Curtin can be reached at LCurtin@healthcommedia.com.
Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions or recommendations of the ANA or the staff or Editorial Advisory Board of American Nurse Today. Visit myamericannurse.com/SendLetterstoEditor.aspx to comment on this article.
19 Comments.
I am referring to nurses who work the extended care facilities which were once called nursing homes. The medication load is ridiculous and the paper work is overwelming. Try tod process orders, do incident reports and do patient care at the same time. It’s impossible. Then corporate expects you to get done on time to avoid paying you overtime. Nurses are getting short tempered and subject to verbal abuse. Nursing in the extended care facilities is beyond challenging.
Carole, I am so sorry you were scapegoated! Unfortuately, fear of malpractice most likely led the hospital administration to give the fake MD a month to wrap things up, and to insist on keeping you quiet…as if the public would not find out anyway in this age of transparency! The hospital itself should have exposed this fake: it would have been the smartest thing to do!
…Continueing–“DR YOUNG” in HASTINGS NEBRASKA: in DENVER, his name was ROBERT JOHNSON, he had a wife and three sons, who contacted HBO to put him on their “missing persons” show. He was profiled and I recognized him. But I still knew he was no MD–he had no knowledge of the relationship(s) of sodium and potassium to the conductivvity of cardiac muscle
Treat yourselves to healthy living each and every day and always be ready to put up a fight. Take up martial arts if necessary! If you think it might help, make judicious use of gutter language at meetings. Do what it takes to make anyone think three times before they tangle with you.
I was fired from a job I had for 7 years for exposing a guy on the medical staff who had never gone to med school! Before he was a “DR”, he was a discjockey in Denver. He came to my hometown of HASTINGS NEBRASKA and was on staff as “DR YOUNG”.for six years, killing people. After I exposed him, the local hospital gave him one month to close his practice because “hehada contract”. I was told to keep my mouth shut, and when I did not I was fired. I’m STILL not keeping my mouth shut! In Denver his n
My opinion is: each nurse must understand that failure to act or document with management, whether an unsafe doctor, a drug-addicted nurse, a bully, or critical staffing issues,will compromise your ability and confidence to do your job. We need expose these issues each and every time, through the organizational channels and if there is no resolution and your ability to do your job ins compromised, you should whistle, and whistle loud and long.
Over 50 years in nursing and multiple models of leadership through the years–we do in many areas have competent, effective nursing leaders and managers–unfortunately we still have those who can neither lead nor manage and who take every critique personally. It seems to me that hospitals respond to accrediting organizations–JACHO did institute a leadership standard for conflict resolution-Does anyone in management take it seriously???
This happens more often than anyone thinks. There’s no loyalty, chance at defense, or support from DONs or ADM, especially in LTC. Lack of enuf staff, too much to do/multitasking, rude Dr.s,fear of law suits, finances all contribute. It only takes one emergency or change to upset a routine shift. For too many years, Nurses have allowed ourselves to be “put down”, take the blame. One pt I had called it slavery. So true as I think of those heavy loads of trying to keep peace.Best of luck to all.
As sad as it seems, I think that both JanisR and agednurse are giving people good advice. Neither laws nor unions nor lawsuits can protect you completely — but that does not mean that ‘blowing the whistle’ is wrong…And at least the laws make it both expensive (and stupid) for managment to practice blatant retaliation, and so does a union. But, for the most part, if you blow the whistle you may as well plan on leaving…
I don’t think unions will help anything, especially if it is an at-will state. Unions don’t guarentee jobs. It is often hard to prove retaliation & it is sometimes better to just leave the job. At one place I worked I reported the DON for telling me I “ask stupid questions” during an annual review. Immediately afterwards I was denied days off that I planned a month in advance & found coverage for. After consulting my state nurse assoc (which acts like a union) I got now where.
With over 20years as a nurse I came upon a toxic situation…one where I was not fired…but demoted after many years of exemplary evaluations. I was told by an attorney…either quit or lay low and put up with the treatment…I chose to lay low for a few months, changed jobs (for the better) and went back for a MSN. I now see health care administration with a new viewpoint.
Wow, I can see that this case study really hits a sore spot in nursing! I agree with all the writes, but must emphasize that managers who engage in retalialiatory behavior are at high risk – not just for civil suit but also for crminial charges. It is important for nurses and other employees to know this.But it is also important for managers to understand the liability they incur for such behavior. In today’s wide-open world, do not assume that unethical behavior will go undetected or unpunished
An excellent article outlining typical behavior by management. Thank you for letting us know that even if there is no union in place and it is an at-will state there are recourses that can be put in to effect. What is really sad about this incident is that I’m not surprised by the actions of the hospital.
Things like this happen in the academic world also. A few years ago, I was the focus of bullying efforts and intimidation because I asked questions that exposed incompetence. The chairperson of the department (in cahoots with the program coordintor and selected students) launched an email campaign to have me fired, despite 19 years of exemplary teaching evaluations. While I was not actually fired, the situation became so acrimonious and intolerable that I chose to leave. I should have sued..
Abour 10 years ago I was fired after I had written a 4 page report describing blatant sexual harrassment against Initially the surgeons demanded to the CEO that I be fired but the CEO said that would be “too obvious”. So the DON went on a mission of retaliation against me which I survived for 8 months. Finally I was tricked into making a medication error, the DON fired me next day THEN reported me to the State Board of Nursing Licensure!! I sued and won a settlement.Retaliation is alive and well
I was fired after 10 years despite good annual reviews and an impeccable attendance record on the basis of flimsy circumstantial evidence. Nurses need UNIONS to protect us from being fired on the whims of an employer.
A retaliatory firing despite years of positive evaluations happened to me years ago at a small hospital. I had called the management’s attention to inadequate pediatric resuscitation equipment and staff training for pediatric emergencies. I also supported an unsuccessful effort to unionize the hospital.
I only hope that the nurse can find a good lawyer. After serving on the Board of a non-profit community hospital as the only nurse, I would have demanded an investigation. Looks like the DON needs to escorted out of the building!
It seems to me that an employer who wants you gone, will find a way to fire you, laws or no laws. But this employwer really was stupid to fire this nurse without more cause. The offense was small: the employer’s intent was obvious!