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RN whistle-blowers summon moral courage

Monday April 2, 2012
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If only whistle-blowing were as simple as taking a deep breath and making a lot of noise. In reality, any nurse who, according to the profession’s ethical obligations, detects wrongdoing and decides to pursue all avenues necessary to correct it probably is facing a grueling and complicated task.

Whistle-blowing is much like being alone in the wilderness, said John S. Murray, RN, PhD, FAAN, a member of the American Nurses Association’s Center for Ethics and Human Rights Advisory Board.

As an officer in the Air Force, he raised ethical concerns about academic and research practices in his workplace. He was reassigned. Colleagues shunned him.

Murray said the experience can chip away at whistle-blowers’ self-worth, and even their faith in humanity. "It’s a very, very dark place for people," he said, adding they can lose sleep, have trouble eating or eat too much, struggle socially and become emotionally numb. "That’s why … if you asked them if they were faced with a similar situation, would [they] do things differently, most people say they would just look the other way," he said.

Whistle-blowing, as the ANA defines it, is the act of going outside a place of employment to report serious problems (see sidebar), such as those that endanger patients. According to the nonprofit National Whistleblowers Center in Washington, D.C., studies have shown whistle-blowing is the most important resource for detecting and reporting corporate fraud.

Acting as a whistle-blower requires moral courage, a centuries-old ethical concept that involves standing up for one’s responsibilities regardless of risks. For whistle-blowers, those risks include distress and anxiety, threats to personal reputation and even firing or other retaliation, Murray said. Whistle-blowers also can find themselves isolated by their peers, who are afraid they will be next to face retaliation.

"Oftentimes these kinds of dilemmas go on and on and on," said Murray, director of nursing research in surgical programs and the ED at Children’s Hospital Boston. "Individuals really do need to pay attention to whether they can endure adversity for an extended period."

Ideally, all organizations swiftly would resolve circumstances that threaten patient or worker health, or are otherwise unethical or illegal. The facility already would have mechanisms through which problems are reported and analyzed so they can be prevented in the future.

"Any place where a nurse works … there’s a responsibility to have a culture of safety as opposed to a conspiracy of silence," said Cynthia Haney, JD, senior policy fellow for the ANA. Nurses, she added, have a vital role in shaping and supporting this type of environment, known as a "Just Culture."

Most people know up front how their supervisors will address a serious problem, Murray said.

"They either provide the resources and demonstrate concern for what the individual has brought forward, or they do everything they can to dismiss it, change the topic and ask the individual to let it go," Murray said. "Most people who go outside have reached a plateau where they’re so frustrated and have endured so much hardship that they don’t see any other option."

Yet navigating "outside" isn’t easy, either.

Know your options

Multiple government agencies, partners, laws and regulations might come into play.

Among these:

The False Claims Act allows people with direct knowledge of fraudulent claims made by any entity receiving federal funds, such as Medicaid and Medicare, to pursue action. Because most hospitals and nursing facilities, as well as many private physician practices, participate in these federal programs, "it’s really a powerful tool for fighting fraud and abuse," Haney said.

Anyone with evidence of fraud against a federal agency can seek the aid of an attorney specializing in "qui tam" cases, said Nayna Philipsen, RN, JD, PhD, CFE, FACCE, director of program development and assistant to the dean for legal affairs at Coppin State University’s Helene Fuld School of Nursing in Baltimore. "Qui tam" refers to someone else’s suing on behalf of the government and recovering a substantial portion of funds if the suit is successful.

The Occupational Safety and Health Administration addresses workplace safety. Issues such as exposure to hazardous materials and use of personal protection equipment fall under OSHA’s jurisdiction. Federal law related to job safety includes a protection called the "general duty clause," which requires employers to provide safe environments for workers. That clause, Haney said, has been extended to include protection against circumstances that create hostile or threatening work environments.

The Affordable Care Act protects whistle-blowers in healthcare settings when patients’ consumer rights under the law are violated, Haney said. For instance, it protects nurses who report insurance company abuses or discrimination against patients with government-subsidized coverage.

The National Labor Relations Board can protect employees, both union and nonunion, who engage in certain "concerted activities," such as discussing concerns related to safety — false charting and record tampering, for example — or other workplace conditions with colleagues.

Quality improvement organizations. In each state these are designed to ensure the effectiveness, economy and quality of care delivered by providers serving Medicare beneficiaries. These organizations address various complaints related to patient well-being, such as unneeded treatment, and concerns regarding healthcare law and appropriateness of care and billing.

State professional boards. These monitor professional behavior and are charged with protecting public welfare. When two nurses in Winkler County, Texas, thought a physician was providing unsafe patient care, they turned to the Texas Medical Board.

Arduous ordeals

The Texas nurses’ action was just the start of their journey. The two women were fired by the hospital that employed them, and county officials pursued felony charges of misuse of official information against them. The charge against one nurse was dropped, and the other was acquitted. They eventually accepted a $750,000 settlement in a lawsuit stemming from the incident.

Because whistle-blowing can be a long and grueling process, depression is common among whistle-blowers, said Don Soeken, LCSW-C, PhD, a former whistle-blower and founder and president of the nonprofit Whistleblower Support Fund. "They’re facing a terrible onslaught on their minds and bodies because society is set up so you have to have a job" to support yourself and your family, he said. Soeken asks potential whistle-blowers: "Do you have a family that can help support you?"

It’s hard for potential whistle-blowers to imagine the immensity of the challenge they face, said Soeken, who helped launch an Internet archive (archive-it.org/collections/1833) that catalogues and preserves details of past whistle-blowing cases to inform future whistle-blowers. "What you have are David and Goliath stories," Soeken said, noting the government, corporations and other organizations can hire top lawyers and tap a wealth of research resources.

Still, Soeken said, whistle-blowers persist because their moral and ethical beliefs override a sense of self-preservation. "They’re almost like soldiers going into war," he said. "They pay a high price. They do a great service. What we have to worry about is: What are we going to do to help them survive?" •

Resources

The American Nurses Association Code of Ethics for Nurses: www.nursingworld.org/MainMenuCategories/ThePracticeofProfessionalNursing/EthicsStandards/CodeofEthics.aspx

ANA materials on moral courage and distress: www.nursingworld.org/MainMenuCategories/EthicsStandards/Courage-and-Distress

The False Claims Act Legal Center: www.taf.org/whyfca.htm

The Whistleblower Support Fund: www.whistleblowing.us

The International Whistleblower Archive http://archive-it.org/collections/1833

ANA information about the Texas nurse whistleblowers case: www.nursingworld.org/FunctionalMenuCategories/MediaResources/legal#below

ANA’s position statement on the Just Culture concept: http://nursingworld.org/psjustculture

Quality Improvement Organizations: https://www.cms.gov/QualityImprovementOrgs/



Karen Patterson is a freelance writer. Write to editor@nurse.com or post a comment below.
When and why to blow the whistle

Although whistle-blowing can be a long and lonely road, egregious circumstances, combined with inaction of managers and others within an organization, might make it necessary to report a problem externally. Among those circumstances are:

• Threats to patient safety or welfare;

• Unsafe working conditions;

• Fraud;

• Specific violations of state or federal law or government regulations.

How to blow the whistle

• Exhaust internal options: If the chain of command has failed, other options such as ethics hotlines, a hospital ethics committee or HR support mechanisms or safety programs might help. “Most employers want to do the right thing,” said Nayna Philipsen, RN, JD, PhD, CFE, FACCE, director of program development and assistant to the dean for legal affairs at Coppin State University’s Helene Fuld School of Nursing in Baltimore.

•Decide whether its worth it: Consider whether the harm caused by the problem is substantial enough to warrant action outside the organization, Philipsen suggested. If possible, talk the situation over with a workplace mentor or trusted peer. On the other hand, the greater the harm, the greater the obligation to follow through.

• Be prepared:
Be ready to prove the case and defend yourself and your livelihood. Philipsen advised potential whistle-blowers to get a lawyer with expertise in such cases, and have their CV or resume and letters of recommendation in order. Also, they should keep employment records and performance evaluations at home.

For an extensive list of considerations and preparatory steps for whistle-blowers, go to: whistleblowing.us/2011/10/preparing-to-blow-the-whistle-a-survival-guide-for-nurses.