PROTECTING THOSE THAT CARE FOR US — The Kentucky Patient Safety Act’s Anti-Retaliation Provisions

When our loved ones become ill, injured, or are perhaps just in need of extended care, we turn to hospitals, clinics, nursing homes, and other healthcare facilities to provide the treatment they need. This can be a nerve-wracking experience, handing over a family member to a team of professionals that are, more often than not, strangers. It is not uncommon to worry about the safety of a family member entering into a prolonged stay at a healthcare facility. Will the doctors prescribe the appropriate medication? Will the nurses administer treatment properly? Will staff respond to the patient’s needs or requests?

Fortunately, Kentucky law provides some safeguards for ensuring that the quality of patient care remains a high priority. KRS 216B.165 is a statute found within the Kentucky Patient Safety Act. Under 216B.165(1), any employee of a healthcare facility

who knows or has reasonable cause to believe that the quality of care of a patient, patient safety, or the health care facility’s or service’s safety is in jeopardy shall make an oral or written report of the problem to the health care facility or service, and may make it to any appropriate private, public, state, or federal agency.

KRS § 216B.165(1) (2013).

This essentially means that any employee who has a reason to believe patient care has been placed at risk, not only should report the problem to his or her employer, but is mandated to do so under law. The law goes even further to allow such an employee the option to make the report to an agency tasked with regulating healthcare facility quality, such as the Office of the Inspector General, or the Cabinet of Health and Family Services.

Even though this law operates to protect patient safety, and therefore increase the public trust in healthcare facilities, employers are sometimes less than grateful towards employees that report safety concerns. A report against a facility might, rightfully, result in an investigation, citations for regulatory violations, or in some cases a lawsuit for patient neglect or abuse. In these cases, an employer might often be downright vindictive, going so far as to discipline or even terminate an employee reporting patient care issues.

Take, for example, the case of Highlands Hosp. Corp. v. Castle, 2010 WL 2787906 (Ky. App. 2010). In this case, a nurse, Ms. Castle was instructed by her supervisor to start an intravenous drip on a patient that would induce her into labor. Ms. Castle refused to do so, stating that there were not enough nurses on the floor to properly treat a patient in labor. Her supervisor became very angry, and demanded that Ms. Castle follow through with the treatment. Concerned with the supervisor’s neglectful attitude toward patient safety, Ms. Castle reported the incident to another supervisor later that evening. Shortly after her report, Ms. Castle was terminated.

These types of scenarios are not all that uncommon. Fortunately for healthcare workers like Ms. Castle, the Kentucky Patient Safety Act prohibits healthcare facilities from retaliating against employees who have followed through on their duty to report patient safety concerns. KRS 216B.165(3) states:

No health care facility or service … shall by policy, contract, procedure, or other formal or informal means subject to reprisal, or directly or indirectly use, or threaten to use, any authority or influence, in any manner whatsoever, which tends to discourage, restrain, suppress, dissuade, deter, prevent, interfere with, coerce, or discriminate against any agent or employee who in good faith reports, discloses, divulges, or otherwise brings to the attention of the health care facility or service the circumstances or facts to form the basis of a report [regarding patient care concerns].

The language in the provision, as you can see, sweeps very broadly to make sure that an employee making a report, or even participating in an investigation regarding patient safety, is not subjected to any type of retaliation against him or her from an employer for engaging in whistleblower activity. This type of protection greatly reduces the temptation of a healthcare facility to fire an employee in order to avoid the consequences of running a subpar facility.

Healthcare workers are extremely important members of Kentucky’s workforce. They provide invaluable services to those of us in need of quality medical care, and they should be protected from retaliation against their efforts to ensure that patient care is held to the highest standard. If you are a member of the healthcare community, and feel that you have been retaliated against for performing your duty to report safety concerns, you are entitled to be made whole.