When a nurse faces misconduct allegations and disciplinary charges, the nurse may find it easy to blame colleagues who reported the alleged offenses. After all, those colleagues may have been mistaken or even appear to have acted deliberately, with vengeance, or out of a personality conflict, jealousy, or unduly competitive spirit. Yet any nurse who takes any adverse action toward a colleague who has reported alleged nursing standard violations risks complicating the situation with retaliation charges. If you face disciplinary charges alleging you retaliated against a whistleblowing colleague, you need skilled and strategic defense. For your best outcome, retain the Lento Law Firm's premier Professional License Defense Team to defend your disciplinary charges for retaliation. Call 888.535.3686 or complete this contact form now for our premier attorney representation.
The Definition of Whistleblowing
A whistleblower is one who reports or threatens to report to public officials, violations of law, rule, or regulation occurring within an organization. The classic whistleblower is an employee of the organization against which the employee reports. In other words, a whistleblower is an insider. The whistleblower has observed something unlawful going on within the organization to which the whistleblower objects enough to report or threaten to report the wrongdoing to responsible public officials. In a nurse practice setting, an example of a whistleblower would be a nurse who sees patient abuse and neglect by other nurses within the facility and reports that abuse and neglect to state nursing board disciplinary officials.
The Definition of Retaliation
Whistleblowers are not generally popular within the organization against which they report. After all, the organization's other personnel must be conducting, promoting, or at least tolerating the unlawful activity that the whistleblower reports or threatens to report. When a whistleblower calls the unlawful activity to a public official's attention, the report can bring all manner of consequences down on the organization and its other personnel, especially those who conducted or promoted the unlawful activity. Those other personnel, now the subject of official scrutiny, may have a natural reaction of isolating, ostracizing, and even harassing the whistleblower, sometimes to the point of firing, demotion, or other adverse employment action. That's retaliation. Retaliation involves unlawful or unethical conduct meant to punish or oppress a person who has in some manner objected to the retaliator's conduct. Retaliation is purposeful, deliberate, and directed, in the manner of vengeance.
Whistleblower Protections
Whistleblowers can have several protections, only one of which has directly to do with state nursing board discipline. The federal Whistleblower Protection Act, for instance, protects federal employees who report to public officials suspected wrongdoing by their employer. State whistleblower protection acts, modeled after the longstanding federal Act, may extend protection not only to state and local government employees but also to employees of private employers, who report their employer's suspected violation of law to public officials. These federal and state laws may give a civil cause of action for damages to the whistleblower who suffers retaliation, such as employment discharge. They may also provide injunctive relief restoring employment and prohibiting further retaliation. State nursing board disciplinary officials may reference a nurse's violation of these general whistleblower laws as a basis for disciplinary charges.
Other state laws, outside of traditional whistleblower protection acts, may also protect whistleblowers against retaliation in healthcare settings. Ohio Code Section 3721.24 is an example, prohibiting any person from retaliating against another who reports suspected patient or resident abuse, neglect, or other mistreatment in a healthcare facility. Once again, state nursing board disciplinary officials may cite laws of this sort as grounds to allege a disciplinary violation. These laws, though, have nothing directly to do with nursing licensure. They only lend weight to the nurse licensing rules prohibiting retaliation.
State Nursing Board Prohibitions of Retaliation
In addition to the above general whistleblower protections, from which state nursing board disciplinary officials may imply a standards violation, state nursing board rules may also directly prohibit retaliation against a colleague nurse or other person who reports to board disciplinary officials the suspected misconduct of a licensed nurse. The Texas Nursing Practice Act is an example. Its Section 301.4025 authorizes a nurse to report suspected misconduct in the healthcare facility that exposes patients to a substantial risk of harm. Subsection 301.4025(c) then warns that another nurse's retaliation against a whistleblowing nurse for that report of suspected misconduct violates the Act. Your state nursing practice act and state nursing board rules may have similar protections.
Interfering with a Disciplinary Proceeding
Some acts and rules, or their customary interpretation, may implicitly prohibit an accused nurse from interfering with the nursing board's investigation and disciplinary proceedings. Disciplinary officials do not take kindly to respondent nurses who attempt to obstruct an investigation by intimidating or coercing witnesses. Intimidating a complaining witness may amount to retaliation against one who is, in effect, a whistleblower. One of the worst things that an accused professional can do in a licensing proceeding is to appear to attempt to bully adverse witnesses. That kind of action leaves a strong inference that the accused professional is responsible for the alleged misconduct and trying to avoid such a finding by committing even more serious misconduct. It's one thing to violate a nursing standard. It's another, bigger thing to interfere with a state nursing board investigation of alleged standards violations. File this insight beside the adage “the cover up is worse than the crime.” If you face state nursing board disciplinary charges alleging your retaliation against a complaining witness, get our skilled and experienced defense help. It is a serious charge that can badly complicate your proceeding if not handled properly.
Why Disciplinary Rules Prohibit Retaliation
The foregoing discussion should suggest to you why whistleblower statutes, state nursing practice acts, and state nursing board rules and practices prohibit retaliation against colleagues who report your suspected misconduct. Retaliation undermines the integrity of important accountability systems ensuring safe and competent nursing practice. The first accountability system involves the observation and involvement of your nursing colleagues. Professions, including the nursing profession, are often most effective at self-regulation. Professionals count on one another to hold them accountable to standards. Professions are best when self-policing. Retaliation destroys self-regulation, encouraging others to instead turn a blind eye to poor professional practice. However, retaliation against a complaining witness in a disciplinary proceeding also disrupts the disciplinary process as a backup accountability measure. If you can't trust the disciplinary system to protect witnesses, then why should witnesses come forward at all? Beware of retaliation allegations. They are generally serious allegations in the eyes of state nursing board disciplinary officials. Let us help you defend those allegations.
Examples of Retaliation Against Colleagues
Retaliation can, unfortunately, take many forms. You should obviously avoid any form of retaliation. Obvious retaliatory actions might include:
- vandalism or theft of the whistleblower's personal property;
- sabotage of the whistleblower's professional work;
- harassment and bullying of the whistleblower to embarrass and isolate the whistleblower from work colleagues;
- deliberately false reports blaming the whistleblower for one's own misconduct;
- defaming the whistleblower's reputation with scandalous allegations of personal or professional wrongs or
- for one who has supervisory authority, deliberate false evaluations recommending the whistleblower's termination.
Yet you should also be aware that some actions you may think you are correct or at least within your rights in taking could instead be construed as retaliatory. Those potentially retaliatory actions might include:
- declining to assist the whistleblower in ways that the accused nurse used to assist the whistleblower before the report;
- refusing to include the whistleblower in communications, meetings, or other workplace matters in which the whistleblower used to join;
- leaving the whistleblower out of workplace social, recreational, or other casual and team-building activities, fostering isolation;
- gossiping about the whistleblower in denigrating ways;
- refusing to greet or otherwise interact with the whistleblower in a cordial manner; and
- embarrassing the whistleblower in front of patients, colleagues, or supervisors.
Impacts of Retaliation on the Healthcare Workplace
State nursing boards and healthcare employers condemn retaliation not only for its undermining of important accountability systems but also for its potential direct or indirect impacts on the healthcare facility and workforce. Beware those impacts. If your actions, construed to be arguably retaliatory and subject to discipline, are adversely impacting your workplace, then you are more likely to face disciplinary charges and more likely to suffer punitive sanctions. Examples of potential workplace impacts from retaliation include:
- disruption of staff communications critical to patient care;
- loss of cooperation and collaboration among facility staff;
- damage to or destruction of medical equipment;
- lower morale among healthcare staff;
- increased absenteeism, personal days, and tardiness;
- increased staff turnover requiring additional hiring;
- decreases in patient care and increased patient care lapses;
- increased human resources complaints;
- increased managerial time and resources;
- decreases in staff efficiency and increased staff costs; and
- losses of respect and reputation among patients and family.
Avoiding Disciplinary Charges for Retaliation
You may have substantial opportunities to reduce the likelihood of disciplinary complaints, disciplinary charges, and discipline for retaliation, if you act swiftly to retain us for your defense and rely on us to help you head off those charges. You may get wind that your colleague who reported misconduct to state nursing board officials, your employer, or others believes that you are retaliating against the colleague. That word may come to you from a colleague or from others in whom the colleague has confided. That early notice, before the formal complaint, investigation, and charges, gives us the opportunity to help you make a sensitive, diplomatic, and effective defense of the allegations. We may be able to reach your employer, the disciplinary investigator, or the complaining colleague with helpful information and reassurances that you did not intend retaliation. We may also be able to help you craft a plan to rehabilitate your reputation and relationship with your colleague, your employer, and others who may forestall disciplinary complaints and charges.
Nursing Board Investigation of Retaliation Allegations
If you learn that your state nursing board has already received your colleague's complaint alleging that you retaliated for reporting misconduct, you should retain us immediately to reach out to the state nursing board's assigned investigator. The investigator may contact you, alerting you to the investigation, or the investigation may contact your employer or a colleague who alerts you to the investigation. Or you may learn of the investigation from another source. Provisions like Section 301.414 of the Texas Nursing Practice Act require that the Board of Nursing notify you of the investigation, giving you a chance to respond, unless notice would compromise a confidential investigation. The same provision also requires disclosure of the investigation report. When you promptly retain us, we can present your exonerating and mitigating evidence to the investigator in an accurate, truthful, consistent, and complete manner, while commenting on and correcting the investigation report. If, instead, you respond on your own, without representation or before representation, you may make incomplete, inconsistent, or inaccurate disclosures that later redound against you. Our goal would be to head off formal disciplinary charges.
Protective Procedures Against Disciplinary Charges
If your matter proceeds to formal disciplinary charges that you retaliated against a colleague for reporting violations, your state's nursing practice act will offer you protective procedures as a constitutional right to due process. We can invoke those procedures to ensure that an impartial decision maker hears your exonerating and mitigating evidence so that your charges resolve as favorably as possible. Ohio administrative rules and procedures are an example. Chapter 4723.16 of the Ohio Administrative Code details lengthy protective procedures for contested agency cases. Ohio Board of Nursing disciplinary proceedings must afford equivalent procedures if not following the uniform state administrative procedures. Those procedures include pre-hearing conferences, witness subpoenas to secure attendance, testimony under oath in person at the formal hearing, and attorney representation for witness cross-examination and other advocacy. We can invoke your state's similar procedures to present your best defense case.
Defenses to Retaliation Disciplinary Charges
You may have outright factual or legal defenses to the disciplinary charges you face alleging your retaliation against a colleague for whistleblowing. You may alternatively have a case in mitigation of any sanction, favoring remedial measures over punitive penalties. Depending on the circumstances of your case and the available evidence, we may be able to present one or more of the following defenses to your retaliation charges:
- you did not take the retaliatory actions the charges allege you took;
- your accuser or accusers are mistaken in their misinterpretation of your innocent actions;
- your accuser or accusers are themselves retaliating against you for their own reasons, with false allegations of your retaliation;
- any statements you made or actions you took that your accuser alleges were retaliatory were instead in appropriate self-defense or defense of your employer's reasonable interests;
- you were unaware at the time of your alleged retaliation that the person who accuses you of retaliation had made any report of misconduct for which you would have retaliated;
- any of your actions that one could reasonably construe as retaliatory were instead the product of personality conflicts, workplace stresses, medication reactions, or other factors beyond your control;
- you have a long and clean record of nursing practice that your patients and employer or employers have always valued highly and
- your response to the disciplinary charges of retaliation was prompt, accurate, cooperative, and complete, taking appropriate responsibility for any inappropriate or questionable actions
,while indicating your rehabilitation from any untoward actions.
Post-Hearing Relief from Misconduct Findings
If you have already lost your formal hearing, we may be able to obtain a reversal of the adverse decision through an appeal to the full state nursing board or another assigned appeal official or panel. State administrative rules and procedures routinely offer some form of appeal. An appeal takes the matter before a higher official or panel for review of the factual and legal basis for the decision and for procedural errors or improprieties. Bias or conflict of interest exhibited by the hearing official would be an example, as would due process violations in the course of the proceeding. A lack of credible evidence on any element of the charge or a decision contrary to the great weight of the evidence or demonstrating legal error could be other appeal grounds. Our attorneys know how to prepare, pursue, and perfect administrative appeals. We also know how to pursue judicial review if available under your state procedures and case circumstances. If you have already lost your license, we may be able to obtain its reinstatement under rules and procedures common among state nursing practice acts.
Disciplinary Sanctions for Retaliation
State nursing practice acts authorize a wide range of discipline forms. License suspension or revocation isn't the only possible or probable result. We may be able to make such a strong case in mitigation of any sanction, even if the hearing official finds that you retaliated, that the hearing official imposes no sanction. Or we may be able to keep sanctions to forms that do not interrupt your nursing practice, like a caution, warning, reprimand, or term of probation. Other disciplinary alternatives include a license limitation or restriction, monitoring, and evaluation for counseling or treatment. In the best case, though, we may be able to negotiate for alternative remedial measures like education and training, avoiding any finding of misconduct or imposition of discipline.
Impacts of Discipline on Your Nursing Practice
When deciding how to approach your disciplinary charges alleging that you retaliated against a colleague who reported violations, you should keep in mind the breadth and depth of potential impacts of discipline on your nursing practice. If you do suffer discipline, beware of the direct and collateral impacts. The direct impacts could include loss of employment due to license suspension or revocation. Even if you do not suffer license suspension or revocation, your employer might decide to terminate your employment based on as little as a reprimand or probation, to avoid liability and regulatory risks, and to avoid management and morale issues. We may be able to help you convince your employer not to terminate or suspend your employment during the license proceeding or for minor discipline, with our explanation of the proceedings and the nature of your charges, evidence, and discipline. If you do suffer license discipline and employment termination, you may be unable to regain your license and find new employment for an extended period, potentially ending your nursing practice and career, with all attendant financial, personal, and professional impacts. Let us help you make the best of your difficult disciplinary charges so that you suffer the least possible impact.
The Role of License Defense Counsel
The discussion above of procedural protections should already have suggested to you that administrative license proceedings follow their own complex laws, rules, and procedures. Administrative license proceedings differ from criminal or civil court proceedings. Do not retain an unqualified local criminal defense lawyer for your license proceeding, nor an unqualified local civil litigation attorney. Our attorneys focus their practices on professional administrative license defense. That's how we gain substantial experience and refine the skills to conduct your defense to the best effect. We know what state nursing board officials usually do, can do, and like to do in various disciplinary cases under varying disciplinary charges. We also know the assurances they require and expect to accept our reasonable proposals for remedial measures in lieu of punitive sanctions. We also bring our national reputation and state nursing board relationships to bear on your case. You can do no better than to retain us for your nursing license defense.
Premier License Defense Attorneys Available
If you face state nursing board disciplinary charges alleging your retaliation against whistleblowers, retain the Lento Law Firm's premier Professional License Defense Team for your best possible disciplinary outcome. Join the hundreds of nurses and other healthcare professionals nationwide who have entrusted our attorneys with their strategic and effective defense. Call 888.535.3686 or complete this contact form now for skilled and experienced attorney defense representation.
