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Refusal to be party to `trumped-up' charges - retaliatory termination. (Nursing Law Case on Point).

CASE ON POINT: Gerard v. Camden Cnty. Health Srvcs. Ctr., N.J. Supr.App.Div. 3/6/2002 - NJ

ISSUE: In cases involving allegations of retaliatory termination, a supervisory nurse ordinarily is not involved as a complainant. However, in this extraordinary New Jersey case, an assistant director of nursing at a long-term care facility, who refused to participate in serving "trumped-up charges" on a subordinate, was terminated. The nurse brought suit under a New Jersey law designed to protect persons who refuse to participate in such activity from retaliatory termination.

CASE FACTS: Susan Gerard had been the assistant director of nurses at Camden County Health Services Center. The case had its genesis in Nurse Gerard's refusal to accede to a request by a hospital administrator, Anita Geis, to serve disciplinary charges on head nurse Georgiana Young subjecting Nurse Young to a three-day suspension. The charges were allegedly based on five errors in a patient form called "Minimum Data Sets" (MDS). Initially, Geis had directed another supervisor to serve notice of the charges upon Nurse Young. That supervisor, for reasons unknown, refused. Geis then directed Nurse Gerard to serve notice of the charges against Nurse Young. However, Nurse Gerard first investigated the charges. The investigation revealed that four of the five errors that Nurse Young was alleged to have committed did not involve her at all. The fifth error involved a "mistaken misdating" that occurred during a training period on the MDS forms. Further, another supervisor had previously checked the form and had not noted the misdate as an error. In addition to what Nurse Gerard thought was substantially unsupported charges against Nurse Young, there was a history behind them. However, it was not clear as to when Nurse Gerard learned this. The records revealed that Nurse Young had issued a written warning to a certified nursing assistant (CNA) for leaving his patients un-cared for, naked, and soiled. The certified nursing assistant was a friend of Gels and had left the patients to have a smoke with her. Shortly after issuing the warning, Nurse Young was told by another nurse to "withdraw the warning" or "face disciplinary charges." Nurse Young refused. Geis then embarked on directing others, including Nurse Gerard, to serve the notice on Nurse Young. Nurse Gerard brought suit against the long-term care facility, Geis, and other officials including at least one RN pursuant to the Conscientious Employee Protection Act (CEPA). A Superior Court motion judge concluded that the record was insufficient to establish that the activity which was the subject of the alleged retaliation was protected activity within the meaning of CEPA. Nurse Gerard appealed.

COURT'S OPINION: The Superior Court of New Jersey, Appellate Division, reversed the judgment of the lower court. The court held, inter alia, that the case had to be viewed in the context of a motion for summary judgment and had to be resolved in a light most favorable to Nurse Gerard. The court noted that CEPA is remedial legislation designed to protect employees who reasonably believe and take action consistent with their beliefs that their employers or co-employees are engaged in activity that is either illegal or constitutes improper patient care where the plaintiff employee is a licensed or certified health care professional. The act was designed to address fraudulent or criminal as well as acts which are violative of some real, discernible public policy impacting upon the public health, safety, welfare, or environmental protection. The court concluded that the aim of the legislation is to encourage, not thwart, "legitimate employee complaints."

LEGAL COMMENTARY: In the context of a motion for summary judgment, whether the conduct in question was, in fact, violative of a law, regulation, public policy, fraudulent or criminal, was not dispositive. The court concluded that it must be determined whether a fact-finder could reasonably conclude that the conduct which Nurse Gerard found to be objectionable, could objectively have been believed by her to be so outrageous that all reasonably prudent nurses would object to it. Although Nurse Gerard was not sure what `particular violation" of law existed, she "just knew that this was not right." Although she did not think that what was being asked of her was criminal, she did think she was being asked to participate in "fraudulent activity regarding ... false accusation." Nurse Gerard concluded that she only found out later that there had been an incident on Nurse Young's unit, and Nurse Young had written the nursing assistant up for leaving his patients. Nurse Young was told by management "you don't write him up." Editor's Note: Shame on any nurse who would tolerate, let alone participate in the scheming retaliatory action against Nurse Young. Nurse Young was doing exactly what she should have in reporting the dereliction of duty of the CNA. Just to imagine soiled, naked patients lying about while the derelict CNA and the even more derelict Administrator Geis enjoyed their smoke together makes one's blood boil. There is no place in nursing or patient care for the likes of the CNA and Administrator Geis. Kudos for the Nurse Gerards of the profession! Kudos for nurses like Nurse Young who acted in her patients' best interests!
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Publication:Nursing Law's Regan Report
Article Type:Brief Article
Geographic Code:1U2NJ
Date:Mar 1, 2002
Words:861
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