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

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. 

Resources:

• Annotated Guide to the Nurse Practice Act, 12^th edition 2015
• The American Association of Nurse Attorneys Referral (Page lists 15 nurse attorneys in Texas and their areas of practice.)