Health Care Whistle Blower: language every nurse must read
By Gloria Craven, RN, MS  and Stacey Ober, RN, JD 

In November 1999, Governor Cellucci signed a state budget that included MNA-filed legislation to provide whistle blower protection to all health care providers in the Commonwealth. We believe this is the strongest language of its kind in the country. Further, upon reading this new law, as a practicing nurse and or health care professional you will easily recognize the power it now provides for you to truly be patient advocates. We include the entire text of the legislation so you may: understand the law, understand its’ parameters and celebrate this incredible accomplishment for nurses, providers and most specifically for patients. 

Massachusetts Whistleblower 
Protection for Health Care Workers

SECTION 146 (S85) Said chapter 149 is hereby further amended by adding the following section:-Section 187.

(a) As used in this section, the following words shall have the following meanings:-

"Health care facility", an individual, partnership, association, corporation or trust or any person or group of persons that employs health care providers, including any hospital, clinic, convalescent or nursing home, charitable home for the aged, community health agency or other provider of health care services licensed, or subject to licensing by, or operated by, the department of public health; any facility as defined in section 3 of chapter 111B; any private, county or municipal facility, department or unit which is licensed or subject to licensing by the department of mental health pursuant to section 19 of chapter 19, or by the department of mental retardation pursuant to section 15 of chapter 19B; any facility as defined in section 1 of chapter 123; the Soldiers’ Home in Holyoke, the Soldiers’ Home in Massachusetts; or any facility as set forth in section 1 of chapter 19 or section 1 of chapter 19B.

"Health care provider", an individual who is a licensed health care provider under the provisions of chapter 112 including, but not limited to, registered nurses, licensed practical nurses, physicians, physician assistants, chiropractors, dentists, occupational therapists, physical therapists, optometrists, pharmacists, podiatrists, psychologists and social workers or any other health care provider who performs or has performed health care related services for and under the control of a health care facility for care-related services. 

"Manager", an individual to whom a health care facility has given the authority to direct and control the work performance of the affected health care provider, who has authority to take corrective action regarding a violation of a law, rule, regulation, activity or policy or violation of professional standards of practice of which the healthcare provider complains or who has been designated by the health care facility on the notice required under subsection (h).

"Public body", the United States Congress, any state legislature, including the general court, or popularly elected local government body or member or health care provider thereof; any federal, state or local regulatory, administrative or public agency or authority or instrumentality thereof; any federal, state or local law enforcement agency, prosecutorial office or police or peace officer; or any division, board, bureau, office, committee or commission of any of the public bodies described herein. 

"Retaliatory action", the discharge, suspension, demotion, harassment, denial of a promotion or layoff or other adverse action taken against a health care provider affecting the terms and conditions of employment.

(b) A health care facility shall not refuse to hire, terminate a contractual agreement with or take any retaliatory action against a health care provider because the health care provider does any of the following: 

(1) discloses or threatens to disclose to a manager or to a public body an activity, policy or practice of the health care facility or of another health care facility with whom the health care provider’s health care facility has a business relationship, that the health care provider reasonably believes is in violation of a law or rule or regulation promulgated pursuant to law or violation of professional standards of practice which the health care provider reasonably believes poses a risk to public health;

(2) provides information to or testifies before any public body conducting an investigation, hearing or inquiry into any violation of a law, or rule or regulation promulgated pursuant to law or activity, policy or professional standards of practice of a health care provider, by the health care facility or by another health care facility with whom the health care provider’s health care facility has a business relationship, which the health care provider reasonably believes poses a risk to public health;

(3) objects to or refuses to participate in any activity, policy or practice of the health care facility or of another health care facility with whom the health care provider’s health care facility has a business relationship which the health care provider reasonably believes is in violation of a law or rule or regulation promulgated pursuant to law or violation of professional standards of practice which the health care provider reasonably believes poses a risk to public health; or

(4) participates in any committee or peer review process, files a report or a complaint, or an incident report discussing allegations of unsafe, dangerous or potentially dangerous care.

(c)

(1) Except as provided in clause (2) of subsection (b), the protection against retaliatory action provided by clause (1) of said subsection (b) shall not apply to a health care provider who makes a disclosure to a public body unless the health care provider has brought the activity, policy or practice in violation of a law or rule or regulation promulgated pursuant to law or violation of professional standards of practice which the health care provider reasonably believes poses a risk to public health, to the attention of a manager of the health care provider by written notice and has afforded the health care facility a reasonable opportunity to correct the activity, policy or practice.

(2) A health care provider shall not be required to comply with paragraph (1) if he: (i) is reasonably certain that the activity, policy or practice is known to one or more managers of the health care facility and the situation is emergent in nature; (ii) reasonably fears physical harm as a result of the disclosure; or (iii) makes the disclosure to a public body for the purpose of providing evidence of what the health care provider reasonably believes to be a crime.

(d) Any health care provider or former health care provider aggrieved by a violation of this section may, within two years, institute a civil action in the superior court. Any party to such action shall been entitled to claim a jury trial. All remedies available in common law tort actions shall be available to prevailing plaintiffs. The remedies shall be in addition to any legal or equitable relief provided herein. The court may:

(1) issue a temporary restraining order or preliminary or permanent injunction to restrain continued violation of this section;

(2) reinstate the health care provider to the same position held before the retaliatory action, or to an equivalent position;

(3) reinstate full fringe benefits and seniority rights to the healthcare provider;

(4) compensate the health care provider for lost wages, benefits and other remuneration, and interest thereon; and

(5) order payment by the health care facility of reasonable litigation costs, reasonable expert witness fees and reasonable attorneys’ fees. A health care provider may bring an action in the appropriate superior court or the superior court of the county of Suffolk for the relief provided in this subsection. The health care provider or former healthcare provider shall deliver a copy of the complaint to the attorney general. The attorney general shall establish and maintain a register of all complaints made by health care personnel under this section.

(e)(1) Except as provided in paragraph (2), in any action brought by a health care provider under subsection (d), if the court finds the action was without basis in law or in fact, the court may award reasonable attorneys’ fees and court costs to the health care facility.(2) A health care provider shall not be assessed attorneys’ fees under paragraph (1) if, upon exercising reasonable and diligent efforts after filing the action, the health care provider moves to dismiss the action against the health care facility, or files a notice agreeing to a voluntary dismissal, within a reasonable time after determining that the health care facility would not be found liable for damages.

(f) Whenever he believes it to be in the public interest, the attorney general may bring an action in the name of the commonwealth against any health care facility violating the provisions of subsection (b) or subsection (h). Such an action may be brought in the superior court and any party thereto may claim trial by jury. In any action under this section, in addition to the remedies the court may provide in accordance with subsection (d), the court may require the health care facility to pay to the commonwealth a civil penalty of not more than$10,000 for each violation, as well as the cost of reasonable attorneys’ fees and reasonable expert witness fees.

(g) Nothing in this section shall be deemed to diminish the rights, privileges or remedies of any health care provider under any other federal or state law or regulation or under any collective bargaining agreement or employment contract. 

(h) A health care facility shall conspicuously display notices reasonably designed to inform its health care providers of their protection and obligations under this section and use other appropriate means to keep its health care providers so informed. Each notice posted pursuant to this subsection shall include the name of the persons the health care facility has designated to receive written notifications pursuant to subsection (c). Any health care facility which violates the provisions of this subsection shall be punished by a fine of not less than $250 nor more than $2,500. The provisions of this subsection shall be enforced by the attorney general.

(i) The attorney general may promulgate rules and regulations necessary and appropriate to enforce the provisions of this section.