Massachusetts is known globally for its outstanding health care.  The health care industry is one of the largest sectors of the State’s economy.  In recent years, health care workers have made up approximately twenty percent of the Massachusetts workforce, and industry-wide growth is projected to continue over the next decade.

Not surprisingly, health care employment issues are numerous, complex and, sometimes may involve patient safety and other risks to public health.  As discussed below, the Massachusetts Health Care Whistleblower Act, M.G.L. c. 149, § 187 (“Whistleblower Act”),  encourages the reporting of patient safety and public health issues and provides robust protections to health care workers who engage in certain legally protected whistleblowing activities.

Who is Protected?

Under the Whistleblower Act, the term “health care provider” is defined broadly and includes, without limitation, registered nurses, licensed practical nurses, physicians, physician assistants, chiropractors, dentists, occupational therapists, physical therapists, optometrists, pharmacists, podiatrists, psychologists and social workers and “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.”^[1]

What Conduct is Protected?

The Whistleblower Act prohibits a health care facility from refusing to hire, terminating or taking other retaliatory action against a health care provider who, inter alia, has disclosed, threatened to disclose, objected to or refused to participate in an activity, policy or practice that the health care provider reasonably believes is in violation of a law, or rule or regulation promulgated pursuant to law, or is in violation of professional standards of practice which the health care provider reasonably believes poses a risk to public health. ^[2]

The whistleblower’s “reasonable belief” does not need to correct.  The whistleblower “does not need to prove that any illegal conduct was actually taking place, it is sufficient that the employee had a reasonable belief that such illegal conduct was occurring.” Amirault v. City of Malden, 335 F. Supp. 3d 111, 120 (D. Mass. 2018), citing Mello v. Stop & Shop Cos., 402 Mass. 555, 560 n.6 (“whistleblowing based on a reasonable, good faith (but erroneous) belief that the employer is violating the law should be protected….”).

It is also well established that unsafe patient care poses a risk to public health. See, e.g. Davis v. Cape Cod Hosp., C.A. No. 06-P-1973, 2008 WL 1820642, at *4 (Mass. App. Ct. Apr. 24, 2008), citing Commodore v. Genesis Health Ventures, Inc., 63 Mass. App. Ct. 57, 66 (2005).  The statute specifically protects health care providers who participate in peer review or who file a report or make a complaint regarding allegations of unsafe, dangerous or potentially dangerous care.

As discussed in the recent case of Rodriguez, MD v. Atrius Health, Inc., CA No. 1984CV251 (Suffolk Superior Court November 11, 2021), retaliation for whistleblowing activity need not be the sole motivating factor for an adverse action.  However, for the statutory protections to apply, retaliation for whistleblowing should be a “determinative” factor.

Proof of that unlawful motive does not require direct (explicit) evidence.  Rather, retaliatory motive may be inferred from circumstantial evidence, such as in Rodriguez where “[her] medical skills were never called into doubt,” there was temporal proximity (closeness in time) between the whistleblowing and the adverse actions, and a colleague testified to being encouraged by the health care facility to complain about the whistleblower’s alleged lack of collegiality.

What Protections are Available?

A healthcare whistleblower is entitled a broad range of remedies for violations the Whistleblower Act, including an award of attorney’s fees.  In addition to ordering otherwise available legal or equitable relief (including an award of emotional distress damages), a Court may:

1. issue a temporary restraining order or preliminary or permanent injunction to restrain continued violation of the statute;

2. reinstate the whistleblower to the same position held before the retaliatory action, or to an equivalent position;

3. reinstate full fringe benefits and seniority rights;

4. award lost wages, benefits and other remuneration, with interest thereon; and

5. order payment of the whistleblower’s reasonable litigation costs, reasonable expert witness fees and reasonable attorneys’ fees.

Regarding emotional distress damages, the Whistleblowing Act  provides that all damages available in common law tort are available to a prevailing whistleblower, and emotional distress damages are such a remedy.  See Flesner v. Tech. Commc’ns Corp., 410 Mass. 805, 813 (1991); see also Bennett v. City of Holyoke, 362 F.3d 1, 11 (1st Cir. 2004).

What Should a Healthcare Whistleblower Do?

The law is filled with traps for the unwary whistleblower, such as required procedures and relatively short filing deadlines.  Also, as in many employment matters, proper documentation may be key to a successfully resolved claim.  For healthcare providers who have engaged in, or who are contemplating whistleblowing, sophisticated legal advice is crucially important.  Members of the Sherin and Lodgen LLP Employment Department are ready to advise and represent at every stage in the process.

FOOTNOTES

[1] The term ”health care facility” is also defined broadly and includes, without limitation, “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, pharmacy or other provider of health care services licensed, or subject to licensing by, or operated by, the department of public health…”

[2] In certain circumstances, the health care provider may be required to first bring a matter to the attention of the health care facility before the statutory protection attaches.  However, this requirement does not apply if, for example, the health care provider is reasonably certain that the health care facility is already on notice and the situation is emergent in nature.