We all remember those playground rules that kids grow up by. Rule Number One: Never tell on other kids who do something wrong or you run the risk of being labeled a tattle-tale, a goody-two-shoes, or even worse, getting beat up after school.
Some things never change. In adulthood, we use the term “whistleblower” to describe people who feel it’s their ethical duty to speak up when they see evidence of unethical conduct—whether it’s investor fraud at Enron, consumer deception by tobacco companies or medical incompetence at hospitals.
In the health care community, nurses have taken a lead role as whistleblowers, primarily because they’re in a good position to spot problems, says Winifred “Windy” Carson, JD, nurse practice counsel for the American Nurses Association (ANA).
“Nurses are in a role where they are trusted by their patients and the patients will reveal things to him or her,” she explains. “Nurses are also in a good vantage point to see and know things that are going on, and they can sense when something problematic is occurring.” Billing mistakes and treatment errors are among the most common situations reported by nurses, Carson adds.
To these nurses--and those who support their actions--whistleblowing is a matter of responsibility demanded by their professional code of ethics. “It’s the right thing to do,” says Carson. “The patient is their priority.”
Yet just as in childhood, blowing the whistle often comes with a price. Nurses who threaten to rock the boat by reporting problems may find themselves alienated by their colleagues and superiors, denied promotions and raises or even fired.
An Australian survey of 95 nurses published two years ago in the Journal of Professional Nursing noted severe repercussions for the 70 nurses who reported incidents of misconduct but few professional consequences for the 25 nurses who remained silent.
Fourteen percent of the whistleblowers reported being treated as traitors, 16% received professional reprisals in the form of threats, 14% were rejected by peers, 11% were reprimanded, 9% were referred to a psychiatrist and 7% were pressured to resign.
For minority nurses, the fallout from speaking up can be more serious than for their Caucasian counterparts, warns Carson, who is African American. “Minority nurses are more reluctant [to report incidents] because they’re more apt to be retaliated against, especially if they’re working in non-minority settings.”
She explains the picture this way: “You have a manager who’s white. You have a nurse who’s black. The nurse goes to that particular manager [to report an incident] and what you’re doing, in effect, is upsetting the apple cart [in a mostly white environment]. You get this dichotomy based not only on ‘class’ differences—i.e., manager vs. non-manager—but also on race.”
But that makes it even more important for nurses of color to stand up for what’s right, Carson emphasizes. “You need to stand up and show professionalism. It is about your responsibility as a nurse to your patient, first and foremost.” Getting legal counsel and the support of state and national nursing associations to protect your rights are imperative, she adds.
Risking one’s reputation and livelihood is a tough decision, nursing leaders say, and minority nurses need to carefully weigh the dangers and benefits for themselves. They must also consider the worst-case scenario—being all alone in their fight--and decide whether they’re still up to the challenge, advises Faye Gary, RN, EdD, FAAN, a distinguished service professor at the University of Florida College of Nursing in Gainesville.
“If nurses can’t visualize that scenario, they’re going to be in a lot of distress because people who whistleblow end up being all alone, and I want them to understand the ramifications of that,” she says. “You’ve got to be able to stand there and say, ‘This is what I believe and I’m not backing off.’
“It’s not easy for any whistleblower, but I think it’s especially difficult for a [minority] nurse in a majority institution,” continues Gary, who is African American. “You have a very powerful pecking order in hospitals and health care systems, and [minority nurses] are struggling to find a place to be safe.”
For some minority nurses, cultural issues can further complicate the question of whether to report a problem or remain silent. For example, says Carson, nurses from certain cultural backgrounds, such as Asians, Filipinos and Africans, may be more reluctant to whistleblow because they’ve been raised to respect a clear chain of command and hierarchy.
“The cultural tradition is that you don’t say anything, just keep quiet,” agrees Lolita Compas, RN, MA, CEN, the immediate past president of the Philippine Nurses Association of America and president-elect of the New York Nurses Association.
The same goes for nurses whose first language is not English. “They fear problems related to communication--whether they accurately communicate the magnitude of the problem and whether not speaking English as a first language would be used against them if they continue to challenge authority,” Carson says.
But that can be a Catch-22, Compas cautions. “If you don’t speak up, then information gets distorted, and by the time you get involved, you’re the one being written up for failure to report [the incident],” she says. “Suddenly you wake up and learn a lesson.”
So what can minority nurses do to protect themselves in situations like these? The key to safe and successful incident reporting, says Carson, is to “be smart when you do it.” The following tips from seasoned minority nurses and legal experts cover the basic dos and don’ts that every nurse needs to know before they pick up that whistle and get ready to blow.
Before you do anything else, first make sure the incident you’ve witnessed really is a problem, nursing leaders say. Check resources like the medical library, the Internet and hospital policy manuals to be sure.
“Understand what the gold standard for care is and be very knowledgeable,” recommends Gary. “I think you have to choose your battles. You have to make sure that what you’re reporting is accurate and that you believe it’s reasonable to think that [a better] action should have been established.”
You might even want to get feedback by talking to colleagues to see if they’ve witnessed the same thing. “You want validation,” explains Marvel Davis, RN, MSN, a board member of the National Black Nurses Association and co-service manager of a dual diagnosis service for Yale New Haven Psychiatric Hospital in Connecticut. “What you’re trying to do is to be objective. Ask: ‘This is what I’m seeing on a daily basis. Are you all experiencing it, too?’ Because if something seems like an ongoing problem but you’re the only person who sees or feels or hears it, you may need to look at that.”
Sharing your concerns with a confidante, who may or may not be a minority, can also help you get a broader perspective on the situation, adds Gary. “My confidante for years was a man in the College of Medicine who used to say, ‘Let me tell you another reality about this.’ His reality came from a white male’s perspective and sometimes it was very different from mine.”
One of the basic tenets of whistleblowing is that nurses should first report the problem to their immediate supervisor, who is usually the head nurse. If you don’t get a satisfactory response from that person, you should then take your concerns to the next level of management and, if necessary, keep moving up the ladder until you’ve exhausted all options. Employee manuals typically spell out the proper chain of command.
Says Davis: “When you speak out of turn, or try to go over somebody’s head, you run the risk of getting labeled [as a troublemaker]. Then you run the risk of losing your job and being isolated and getting stuck with the reputation of being a bad penny.”
Always agree on a deadline for getting a response, she adds. “[When you report your concerns to your supervisor], you really need to follow that up with, ‘Can I expect to hear something from you in a couple of weeks?’ or sooner if the situation is critical.”
If you don’t get a sufficient answer within that timeframe, Davis recommends going back to the supervisor first to tell him or her that you’re going to the next rung on the management ladder. “Inform the head nurse that you had brought this to his or her attention, but you feel so acutely concerned and worried and scared and whatever else that you feel compelled to also bring it up with the nursing supervisor.”
This strategy may not always work, however. In a recent high-profile whistleblower case in New Mexico, six nurses at Memorial Medical Center in Las Cruces had independently voiced concerns to their nurse managers over several years regarding the care being given by an osteopath on staff. But for reasons that are still unclear, the hospital failed to act on the nurses’ complaints. The nurses also reported retaliation. The doctor was later accused of negligence and incompetence after one of her patients died from sepsis after the doctor allegedly failed to treat her.
“Sometimes the atmosphere in a hospital is set up so that you cannot work through the system, and that’s what happened here--the system failed,” says Judith Dunaway, RNC, MSN, HNC, president of the New Mexico Nurses Association and a clinical instructor at New Mexico State University in Las Cruces. “If that system refuses to address the complaints, then the process starts breaking down. We’re not exactly sure where the breakdown occurred in this case. Supposedly, the complaints never got to the very top. Whether that’s true or not, we don’t know.”
But when the patient’s family sued the hospital, the case became a major victory for whistleblowers. The judge, responding to arguments from Carson, who appeared in court on behalf of the nurses, ruled that the nurses not only could testify on behalf of the plaintiff--despite objections from the hospital--but also that the hospital would be held accountable for any retaliation again them.
One of the most important self-protection techniques in whistleblowing is to document the problem that is occurring. The simplest way to do that is to fill out an incident report when things go awry.
“Put everything in the incident report and make a copy to bring home,” says Carson. List the time, date, place, who was on the shift at the time (if known) and who witnessed the incident, regardless of how the incident report is formatted.
“Like most things in life, if it’s not put in writing, it didn’t happen,” agrees Davis. “Documentation is so important. I think it helps to keep people honest and informed, because all of us do forget things.”
But the hard reality is that people are not always honest, especially in situations where their livelihood is being threatened. In a few particularly infamous whistleblowing cases, hospital records were actually altered in an attempt to protect the guilty party or cover up the wrongdoing. This is why it’s so crucial to keep a copy of the original documents at home, experts say—especially in cases where it’s a minority nurse’s word against that of a white manager.
Writing letters to supervisors with whom you discuss your concerns is another valuable documentation strategy. “Tell them: ‘This letter is to inform you that I’ve talked to the head nurse and the supervisor, but I feel strongly enough about this that I’m willing to put it in writing,’” explains Davis.
Last but not least, keep a personal diary of everything that happens after you file your incident report. You may need it if the case goes into arbitration—or to court.
As a nurse manager, Davis has had her share of nurses coming to her to report problems or voice complaints. Her advice to nurses who choose to speak up to their supervisors: Avoid being confrontational.
“If you approach them angrily, their immediate response will be to go on the defensive,” she points out. “When I’m in that defensive mode, I’m probably not listening to you as well as I would if you had called me to say you need to set up a time to meet with me about X, Y or Z. We all listen better when we don’t feel personally attached.”
Carson agrees. “Nurses are very passionate about their work,” she says. “But when it comes to whistleblowing and understanding the ramifications of what you’re doing, you’ve got to step back from that passion and use all the intellect that got you through nursing school to handle the situation effectively and develop a case.”
Many nurses say they don’t even like to use the term “whistleblowing” because of the strong emotions it conjures. “Instead of framing it as whistleblowing, I think you can just make an appointment to see your immediate supervisor and say there’s a practice you have some concern about,” Gary suggests.
“There might come a time when you do have to draw a line in the sand,” she adds. “[But I believe it’s better] to make every possible human effort to resolve the problem in a very quiet, close to the chest way.”
Given all the potential risks involved in whistleblowing, is it ever better to just remain mum? “Only when you don’t have all the information,” Carson insists. “When you do have all the facts and you’ve confirmed that there is something wrong, you have an affirmative responsibility to get that information out there and try to correct the problem.”
What if you have followed all of the above steps but still find that, for one reason or another, bringing your concerns to the attention of your facility’s leadership is not leading to resolution? If you’re absolutely sure you’ve exhausted all internal options, consider going outside the system and bringing the issue to the attention of an industry oversight group, such as the Joint Commission on Accreditation of Healthcare Organizations (JCAHO).
The Joint Commission is responsible for accrediting and reaccrediting nearly 20,000 health care organizations nationwide, including hospitals, home health agencies, nursing homes, outpatient clinics, laboratories and managed care plans. Because a key part of that process is monitoring quality of care issues at the institutions it certifies, JCAHO regularly receives and evaluates complaints reported by caregivers, patients and their families.
“In many instances, [problems at a facility] are known for years and years, but they’re not brought into the JCAHO process,” says Carson.
Know where your hospital is in its accreditation cycle. If the facility is going through the certification process or is up for reaccreditation, incidents that affect the quality of care or reflect a problem with the hospital system, such as physician errors, misdiagnoses or safety concerns caused by staffing shortages, can be raised at JCAHO public hearings, which are a standard part of the accreditation process.
Carson encourages whistleblowers who have failed to get results by working within the system to take advantage of this option. “Sometimes nurses may feel uncomfortable [testifying at a JCAHO hearing],” Carson notes, “but the patient who’s a party to the incident may well be the better person to testify anyway. Let that person know about the hearing so that they can testify. It places them on record and it further buttresses the nurse’s incident report.”
In addition, nurses and patients can report complaints directly to JCAHO’s Office of Quality Monitoring by phone, mail, fax or email, according to Joe Cappiello, the Joint Commission’s vice president of accreditation field operations. “We’d like to know about it and we follow up on complaints,” he says. The agency receives about 1,700 complaints per month. Whistleblowers who wish to protect their identity can file their complaint anonymously, Cappiello adds, but if you give your name, the complaint will have stronger teeth.
The JCAHO complaint investigation process can take a matter of hours or weeks. If the agency determines that the complaint is justified, the hospital could be required to correct the situation and undergo a follow-up visit before accreditation is granted. In some cases, JCAHO may give the facility conditional accreditation, or accreditation could be denied altogether.
For more information about how to report a complaint to JCAHO, call (800) 994-6610 or visit www.jcaho.org and click on “Report a Complaint About a Health Care Organization.”
Laws protecting whistleblowers vary depending on where you live. Currently, 11 states have passed whistleblower legislation. Some of these state laws prohibit retaliation, although the standards for proving retaliation also vary from state to state. Some states will compensate whistleblowers for attorneys’ fees; others do not.
Whistleblower laws are on the books in California, Florida, Kentucky, Massachusetts, Minnesota, New Jersey, Ohio, Texas, Wisconsin and, most recently, Oregon and West Virginia. Similar laws are pending in another nine states: Connecticut, Florida, Hawaii, Illinois, Maryland, Missouri, New York, Pennsylvania and Rhode Island.
Massachusetts has one of the nation’s strongest whistleblower protection laws, passed in large part through the congressional testimonies of two nurses, Barry Adams and Cathleen Kyle, who were fired from their respective health care facilities for reporting unsafe conditions.
If an employee reports legitimate violations of policy or patient care standards, the Massachusetts law requires the employer to correct the violations and prohibits them from taking retaliatory action against the whistleblower, including discharge, suspension, demotion or denial of promotion. If these actions occur, the employee can report the employer to the Attorney General’s office, which may act on the public’s behalf to protect the employee.
Legal protection for whistleblowers also exists at the federal level in cases involving activities that defraud the government, such as Medicare and Medicaid fraud--and more recently, says Carson, in cases based on quality of care issues as well. To have a case brought to trial under federal law, the nurse must first exhaust his or her internal chain of command, then file a complaint with the Department of Health and Human Services. If the HHS decides that the complaint is valid, the government proceeds with litigation against the employer, and the nurse receives a percentage of the damages awarded.
A whistleblower can also initiate an independent lawsuit regardless of whether the federal government takes the case. The nurse would be responsible for hiring the attorney, who would proceed on behalf of the nurse. If the court rules in favor of the individual who brings the whistleblowing action, “that person is awarded substantial damages,” says Carson.
And don’t forget that there’s strength in numbers, the ANA attorney adds. “When nurses know of wrongdoing at a facility, it’s essential that they join together, and that they work with other nursing organizations so that we can work to help them,” she emphasizes. “Those nurses in New Mexico would have been retaliated against even more had they not been members of the New Mexico Nurses’ Association. That’s how they brought in the ANA to help defend them. We have placed a national focus on this case, and we are going to continue to do that.”