Less than 2 weeks later, the hospital terminated Ms D’s employment. She hired an attorney and filed a suit against the hospital alleging that it had discriminated against her and terminated her employment in retaliation for her good faith report of patient safety matters, including child abuse or neglect and unsafe patient care. The hospital filed a motion to dismiss, denying all claims and asserting that it had a legitimate reason for terminating Ms D. The hospital argued that Ms D was fired for “inappropriately contacting a school nurse” without a current release of information in violation of hospital policies and HIPAA. The trial court agreed with the hospital and granted its motion to dismiss. Ms D appealed.

The Appeal

The appeals court did not agree with the trial court, and instead pointed to the state’s Family Code which makes it clear that the protection of children is paramount in instances of suspected child abuse. The Code imposes reporting requirements on health care professionals who believe that a child has been abused or neglected. The Code specifies that the professional must make a report within 48 hours of becoming aware of the situation, which Ms D did. The Code also provides employment protections for those employees who report suspected child abuse or neglect, so they won’t be subject to retaliation. The Code makes a presumption that if an employee is terminated or suspended within 60 days of making a report of suspected neglect or abuse, that it is assumed that the employee was discriminated against for making the report. In order to overcome this presumption, the employer has to show there is no connection between the report and the termination of employment.

After analyzing the facts, the appeals court found that Ms D had validly made the report, in good faith, and based on concern for the welfare of the pediatric patient. The hospital attempted to argue that Ms D’s termination was based on a HIPAA infraction, for speaking to the school nurse, and not the filing of a CPS report. The appeals court disagreed and found that the call to the school nurse and the report to CPS were intertwined factually as both arose from the same incident involving the same patient. The court also noted that the hospital had included the CPS report on Ms D’s termination documentation, and so it could not argue that there was no connection between the filing of the report and her firing.

The appeals court sided with Ms D and remanded the case to the lower court for a trial.

Protecting Yourself

The safety of your patient is paramount, and particularly when that patient is a child and is unable to protect themselves. Most jurisdictions have protections in place for professionals who report suspected abuse or neglect.

While it’s unfortunate that Ms D has had to deal with these employment issues, her actions in bringing to light the fact that the child was being seen by 2 neurologists who were unaware of each other, and was being prescribed 2 different medications, potentially saved this child’s life.