Best Ohio Whistleblower Attorney Answer: What should I do if I my employer is putting people’s lives at risk? If I get fired for not going along with a cover-up, can I sue for wrongful termination? Can I be fired for reporting illegal practices or refusing to participate in illegal or unlawful activities?
Have you ever heard the expression that “no good deed goes unpunished”? At Spitz, The Employee’s Law Firm, our employment lawyers help employees every day who have been punished at work simply for doing the right thing. These days, our lawyers hear stories all the time of employees being fired or even in criminal trouble for misdeeds at work. But, does the law protect those employees who actually fight back against illegal activity at work? The term “whistleblower” gets thrown around a lot, but what protections are actually afforded to a “whistleblower” and does the law allow an employee to go after his or her employer in the event that employee does not go along with a cover up of illegal activity? As long as we are throwing around expression, you may also be familiar with the saying that “the cover-up is worse than the crime.” In a recent case coming out of Colorado, a medical sonographer was recently terminated for standing up for the health of her patients.
Employees who report illegal activity at work may risk retaliation by their employers, including wrongful termination. However, the good news is that there are both state and federal laws that offer protections for whistleblowers. In short, an employer may not retaliate against an employee for reporting an unlawful, illegal or unsafe conditions or activities at work. In fact, our lawyers have covered the subject extensively on our employment blog. (See What Protections Do I Have As A Whistleblower?; Can I Be Fired For Reporting Financial Fraud At My Company?;and Can I Be Fired For Reporting A Customer’s Illegal Acts?).
Mary Elizabeth Falcone worked as an ultrasound technician at University of Colorado Memorial Hospital for almost 22 years before Memorial Hospital terminated her in September 2015. Falcone claimed that she had called attention to a major patient safety issue and was terminated for her good deed. Falcone originally went to her supervisors with concerns regarding Memorial Hospital’s sanitation procedures for various pieces of equipment. However, Falcone’s boss ignored her concerns putting patients at risk. Seeing no other option Falcone filed a complaint with the Colorado Department of Public Health and Environment in the summer of 2015. Memorial hospital terminated her just a few short months later. In her complaint Falcone claimed that Memorial Hospital was not following proper maintenance and sanitation procedures in regard to multiple pieces of medical equipment. Later, a Colorado Department of Public Health and Environment surprise inspection found that Memorial Hospital “failed to maintain appropriate infection control processes in the areas of cleaning/disinfection of vaginal ultrasound probes, surgical instruments and procedure rooms,” the Department of Public Health also found other violations of procedures that were in place to prevent infections that may occur from using the probes on multiple patients. That is truly disgusting.
After she was terminated, Falcone sought legal help and filed a wrongful termination and whistleblower lawsuit claiming that she was terminated in violation of public policy because of the complaints she made concerned patient safety and that her employer illegally retaliated against her for said complaints.
The lawsuit Falcone filed against Memorial Hospital stated:
“Falcone made multiple good faith reports and disclosures regarding potential threats to patient safety due to improper and/or inconsistent performance and documentation of HLD [high level disinfection] of vaginal ultrasound probes at UCH-MHS.”
These reports made by Falcone fulfilled her professional obligations to report unsafe practices. But Falcone was doing more than just covering her butt, she was doing what she knew was right to protect her patients. Instead of applauding her for spotting a major risk to patient’s health, Memorial Hospital terminated Falcone for fulfilling both her legal, and moral obligations. Unfortunately, Falcone was not the only person to pay the price for Memorial Hospital’s ignorance. According to a The Denver Post report in May and June that was made in 2016, nine patients at the University of Colorado Hospital, a hospital in the same system as Falcone’s Hospital, developed infections and three died after undergoing surgeries in which a medical device was used that was suspected of causing fatal infections.
Falcone moved forward with her lawsuit claiming that she was terminated in violation of public policy, and that the complaints she made were legally protected activity which Memorial hospital could not use as a basis for terminating her. While Falcone brought her lawsuit under Colorado State law there is similar law in Ohio. A cause of action for wrongful discharge in violation of public policy is recognized in Ohio as an exception to the employment-at-will doctrine. See Greeley v. Miami Valley Maint. Contractors, Inc., 49 Ohio St.3d 228 (1990); Painter v. Graley, 70 Ohio St.3d 377, 382 (1994). To establish a cause of action for wrongful discharge in violation of public policy, an employee must be able to show:
(1) a clear public policy existed and was manifested in a state or federal constitution, statute or administrative regulation, or in the common law (the clarity element);
(2) dismissing employees under circumstances like those involved in the plaintiff’s dismissal would jeopardize the public policy (the jeopardy element);
(3) the plaintiff’s dismissal was motivated by conduct related to the public policy (the causation element);
Let’s walk through these elements using Falcone’s case as an example. Regarding the clarity element, in Falcone’s case there was a clear state law adopted in 2007 that protects health care workers from retaliation when reporting patient safety concerns. See Colo.Rev.Stat.Ann. 8-2-123. When this Colorado law was drafted the Colorado legislature explicitly said
“Patient safety is of paramount importance in the delivery of health care to Colorado citizens. A patient is at his or her safest when a health care worker has the right to speak out on the patient’s behalf without fear of reprisal or retaliation.” See. Colo. Legis. Serv. Ch. 67 (H.B. 07–1133)
This law clearly recognizes a public policy in protecting hospital patients. Many similar public policy protections exist in Ohio. For example, Ohio has a strong public policy against the distribution of faulty or defective products. See R.C. 2307.75. For more examples of Ohio public policy protections from lawful termination click here. Note this is not an exhaustive list, if you feel that you have been wrongfully terminated in violation of public policy than you need to Call the Right Attorney!
Next up is the jeopardy element. In Falcone’s case, it is not hard to argue that terminating a sonographer for reporting issues that endanger patient’s health would cause other health care professionals to think twice before stepping forward for fear of losing their job. Therefore, the jeopardy element should be satisfied in Falcone’s case.
The causation element should also be satisfied in Falcone’s case. Falcone was terminated just a few months after filing a complaint with the Colorado Department of Public Health and Environment. This complaint was the proverbial straw that broke the camels back when it was added to all of Falcone’s internal complaints. It is also important to note that Falcone had worked at Memorial Hospital for over two decades without major incident until she was suddenly terminated following her complaint.
Finally, the overriding justification element. Memorial Hospital claimed that Falcone was terminated for improperly documenting required procedures. This element is usually left to the finder of fact, either the jury or the judge in a bench trial, to determine if the justification for termination given by the employer was legitimate, or a lie. In Falcone’s case, the jury found that while Falcone had made mistakes in documenting certain procedures these mistakes were not severe enough to justify her termination.
The jury in Falcone’s case found that Memorial Hospital violated public policy when they terminated Falcone for making protected complaints both internally, and to state agencies regarding patient safety. The jury then awarded Falcone $148,000 for lost wages and over $800,00 for additional damages including emotional distress, for a total of $948,039.87 in total damages. For more information on Falcone’s case click here.
Ohio law provides job protections to those employees that report or oppose illegal or unsafe conduct or work conditions, such as OSHA violations, embezzlement, unlawful discrimination, or patient abuse, to name a few. However, in order to have the protections under the law, there are a lot of steps that each employee must take, including making a written complaint. That is why it is absolutely critical for any employee confronted with illegal or unsafe conduct or work conditions at work to immediately consult with employment law lawyers in order to make sure that everything is done right. If you wait until you are fired, you may have already lost your claim. Do not wait. If you have seen any illegal or dangerous conduct on your job, then the best thing you can do is call the right attorney to schedule a free and confidential consultation.
Call our office at 866-797-6040. Spitz, The Employee’s Law Firm, and its attorneys are experienced and dedicated to protecting Ohio employees from retaliation after blowing the whistle on unlawful and hazardous activities at work.
The materials available at the top of this whistle blower claims page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “what should I do if I am being harassed for reporting my manager for stealing from patients, “how do I find the best wrongful termination lawyer in Ohio?”, “Can I sue if I was fired today after reporting dangerous conditions to HR?”, “what should I do if my supervisor wants me to help coverup health code violation?” or “can my boss fired me for refusing to hide illegal activities at work?”, it would be best for you to contact an Ohio attorney to obtain advice with respect to particular whistleblower claims questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, attorney Brian Spitz, or any individual attorney.