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.
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.
- 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 americannursetoday.com/SendLetterstoEditor.aspx to comment on this article.