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Practice Tip of the Week: Time is of the Essence when seeking Remedies for Retaliation

Monday, June 6, 2016   (1 Comments)
Posted by: Nadia Tamez-Robledo
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By Ellen Martin, PhD, RN, CPHQ

Director of Practice

Texas Nurses Association

 

Patient advocacy is a primary responsibility of nurses and, in Texas, nurses are protected from retaliation for raising patient safety concerns. Remedies are available for nurses who have been retaliated or discriminated against because they engaged in patient advocacy activities or advised another nurse of these patient advocacy protections. However, nurses seeking remedies have a short time frame to file a claim. If successful, the nurse can recover damages, court costs, and reasonable attorney’s fees.

 

Nurse Practice Act Section 301.413 Retaliatory Action specifies that a person may not suspend, terminate, or otherwise discipline, discriminate, or retaliate against a person who:

  • Reports in good faith,
  • Requests in good faith a nursing peer review committee determination,
  • Refuses to engage in conduct (per section 301.352), or
  • Advises another nurse of the nurse’s rights to do the same. 

 

Proving retaliation can be difficult and the burden of proof is on the nurse alleging the retaliation or discrimination. This difficulty is addressed by item (e)(1) which outlines a “rebuttable presumption” that if the retaliation took place within 60 days of the patient advocacy activities it is presumed to be retaliation. The rebuttable presumption prevents the defendant from simply denying the allegation and requires the defendant to present opposing evidence that it was not retaliation. Once the defendant presents their evidence, it can be evaluated and challenged by the nurse. 

 

If you are thinking this all sounds very legal, you’re right. These protections are in statute but they aren’t automatic. Nurses must hire a lawyer and file a claim. The statute of limitations on retaliation claims is not specified in the Nurse Practice Act. In a San Antonio case, the federal court found that the Texas Nursing Practice Act is most analogous to the cause of action provided by Texas Health & Safety Code § 161.134, which provides for a 180-day statute of limitations. Nurse attorney Marc Meyer recommends that nurses who believe they have a retaliation claim should seek legal advice as soon as possible. If the statute of limitation has passed, there may be still be some options but that adds an extra dimension to the case. 

 

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Comments...

Marc M. Meyer says...
Posted Wednesday, June 8, 2016
The statute of limitations issue is by no means settled law. Although federal district courts have held nurses to the 180 day limitation period, there are no appellate decisions in either state or federal court which address the issue. And that opens one possible avenue for advocacy - to have the legislature define the limitation period in the NPA. I would advocate for a longer period, such as two years, because of certain issues that come up in retaliation cases, such as having to respond to the BON at the same time because of a complaint from the employer that terminated the nurse. The BON has no authority to pursue these retaliation cases (remember, they are here to protect the public, not nurses), so do not expect relief from the BON just because you allege retaliation for whistleblowing. If you have a potential case, speak to an attorney ASAP. Marc Meyer, RN, JD Law Office of Marc Meyer, PLLC Past-President, The American Association of Nurse Attorneys - Texas Chapter

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