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Last week we discussed the anti-retaliation provisions of the Kentucky Patient Safety Act, located in KRS § 216B.165. As a reminder, these provisions require healthcare workers to report issues they notice at work that might jeopardize the quality of their respective facilities’ standard of patient care or safety. Additionally, the statute offers protection for healthcare workers from employer retaliation should they make such a report.

But what if a worker isn’t the specific employee who filed a report about patient care? Suppose that a worker merely assists another co-worker in reporting safety issues – is that person also protected from retaliation under KRS § 216B.165?
According to a recent Kentucky Court of Appeals opinion, the answer is no. The Court, ruling on a pair of consolidated cases, held that persons who only assist in reporting patient care issues, but did not actually submit the report themselves, are not protected employees under KRS § 216B.165. However, the Court affirmed that such employees may recover through another legal theory: wrongful discharge in violation of public policy.

In Foster v. Jennie Stuart Medical Center, et al., ___ S.W.3d ___ (Ky. App. 2013), the plaintiffs were two registered nurses working for a hospital. One of the nurses, Ms. Foster, sent an anonymous email to the Kentucky Board of Nursing outlining a number of substandard nursing practices that had been witnessed at the hospital. The email also stated that the facility’s management had been alerted to these practices, but had done nothing to correct the situation.

The day after the email was sent, the hospital began an investigation to determine the party who authored it. As a result of the investigation, both Ms. Foster and Ms. Oliver were terminated. While Ms. Foster had been the person to actually send the email, Ms. Oliver had only played a role in assisting her make the report.

The Court ruled that Ms. Oliver couldn’t bring a claim against the hospital under KRS § 216B.165. In a very strict reading of the statute, the Court stated that the language of the anti-retaliation provision only offered protection for a person who filed a report. The Court compared the language of KRS § 216B.165 to the language of the Kentucky Whistleblower Act, a similar statute that offers protection for State employees that report fraud, waste, or mismanagement. In that Act, the statutory language allows for the protection of any employee who “supports, aids, or substantiates any employee who makes public any wrongdoing…” Because KRS § 216B.165 doesn’t contain similar language to the KWA, the Court reasoned that the Kentucky legislature did not intend for the statute to carry as broad of protection for healthcare workers.

While this may sound harsh, the Court, perhaps realizing the ramifications of allowing unrestrained employer retaliation, provided another avenue for recovery for Ms. Oliver. Immediately following its discussion regarding KRS §216B.165, the Court held that Ms. Oliver could pursue a claim of wrongful discharge in violation of public policy. This legal theory isn’t created through any legislation, but rather, is based on a common law tort. The elements of this particular claim are:

  1. The employee’s discharge must be contrary to “fundamental and well-defined public policy” which is determined by examining existing law; and
  2. The policy must be supported by statutory or constitutional law.

Ruling on Ms. Oliver’s case, the Court determined that Ms. Oliver’s discharge may meet these elements. The Court looked to the stated goals and purpose of the Patient Safety Act (improving the quality of healthcare facilities), and found that Ms. Oliver’s discharge may have been contrary to this particular public policy. As a result, Ms. Oliver was allowed by the Court to continue pursuing her claim against her former employer.

This bodes well for Kentucky’s healthcare workers. While employees who only assist in making safety reports aren’t specifically protected from retaliation under KRS 216B.165, they may have an alternate basis for relief through a wrongful discharge claim. This decision sets an important precedent for Kentucky’s healthcare facilities: an employer retaliating against any employee that attempts to make a facility safer for patients, whether they file an official report or merely assist in making one, may potentially be held liable for its actions.