Can Hospitals Fire Doctors Who Speak Out During COVID-19?

Photo by Ashkan Forouzani on Unsplash

Doctors and nurses who are doing the heroic, heartbreaking, and exhausting work of fighting the deadly coronavirus may be facing yet another threat. Potential loopholes in a New York law meant to protect medical whistleblowers could in fact allow hospitals to fire doctors and nurses who speak out about dangerous conditions or lack of supplies during this pandemic.

 The Healthcare Whistleblower Protection Act (New York Labor Law § 741), protects medical personnel—anyone “perform[ing] health care services”—who object to practices that put patients in harm’s way. But two loopholes make the protections afforded to doctors potentially hollow at this moment—when, more than ever, the public needs to be able to rely on medical professionals to tell unvarnished truths.

Only Limited Complaints Are Protected

The first loophole comes in the law’s definition of the types of conditions a medical professional may complain about without fear of retaliation. The law bars employers from retaliating against a doctor or nurse who complains about or refuses to participate in practices that he or she “reasonably believes constitutes improper quality of patient care.” 

That sounds broad, but it has a very specific meaning under the law: 

(d) “Improper quality of patient care” means, with respect to patient care, any practice, procedure, action or failure to act of an employer which violates any law, rule, regulation or declaratory ruling adopted pursuant to law, where such violation relates to matters which may present a substantial and specific danger to public health or safety or a significant threat to the health of a specific patient.

So this protection applies only to complaints about a practice “which violates any law, rule, regulation or declaratory ruling adopted pursuant to law” and that presents a danger to the patient or public.

In normal times, this law is broadly protective because New York has detailed and wide-ranging rules and regulations covering everything from staffing and equipment to hospital administration and patients’ rights. But last month, Governor Cuomo suspended those regulations by executive order “to the extent necessary to maintain the public health with respect to treatment or containment of individuals with or suspected to have COVID-19.”

Since the Whistleblower Act protects complaints only about violations of laws and regulations, and now those regulations have been suspended for the duration of the crisis, doctors who speak out about unsafe conditions at this time may have little protection from retaliation.

Speaking to the Media May Not Be Protected

The second loophole could leave medical professionals exposed if they speak out publicly. The law’s protections extend only to objections made to a supervisor or a “public body,” not the press or public.

This law was passed in 2002 “to encourage reporting of improper quality of patient care,” according to the Bill Jacket. The Act’s summary explained that, for example, nurses and doctors “would be able to have their day in court following retaliation for speaking out about their perception of inadequate staffing levels.”

But by permitting disclosure only to supervisors or to a “public body”—government agencies, commissions, prosecutors, and the like—the law leaves doctors who warn the wider public about unsafe practices vulnerable to retaliation, even termination. Indeed, Bloomberg News reported that the NYU Langone Health system has warned employees they could be fired for speaking to the media.

There may be wiggle room. The law bars retaliation against a medical employee who “objects to, or refuses to participate in any activity, policy or practice of the employer or agent that the employee, in good faith, reasonably believes constitutes improper quality of patient care.” The “objects to” language could arguably protect a doctor or a nurse who “objected” by speaking publicly.

 But medical personnel should not have to guess about their right to inform the public about what is going on in hospitals. Nor should they be barred from speaking out about unsafe conditions only because regulations governing those conditions have been suspended. The legislature should make it clear that, at least for the duration of the pandemic, hospitals may not retaliate against medical professionals who speak out publicly about any practice that they, in good faith, believe poses a threat to patients or the public.

 Timely, reliable information about what patients and providers need is essential to getting us through this pandemic. Doctors and nurses shouldn’t have to wait to testify before some government committee, and they shouldn’t have to cross-check their complaints with the Compilation of Codes, Rules and Regulations of the State of New York. They should be empowered to grab the nearest megaphone. We’re counting on them to do so. 

Disclaimer: This post is meant to inform the reader about the state of the law. Nothing in this post is intended to nor does create an attorney-client privilege, convey legal advice, or guarantee any outcome in a legal matter.