Illegal Retaliation Against Whistleblowing Health Care Providers (M.G.L.c. 149, s. 187)
A health care facility cannot take any retaliatory action against a health care provider because the health care provider does any of the following:
discloses or threatens to disclose to a manager or to a public body an activity, policy or practice of the health care facility that the health care provider reasonably believes is in violation of a law, rule or regulation or violation of professional standards of practice which the health care provider reasonably believes poses a risk to public health; potentially dangerous care; (M.G.L.c. 149, s. 187(b)(1))
This protection against retaliatory action does not apply to a health care provider who makes a disclosure to a public body unless the health care provider has brought the issue to the attention of a manager of the health care provider by written notice and has afforded the health care facility a reasonable opportunity to correct the activity, policy or practice. (M.G.L.c. 149, s. 187(c)(1))
A health care provider is not be required to comply with the foregoing paragraph if he is reasonably certain that the activity, policy or practice is known to one or more managers of the health care facility and the situation is emergent in nature; (ii) reasonably fears physical harm as a result of the disclosure; or (iii) makes the disclosure to a public body for the purpose of providing evidence of what the health care provider reasonably believes to be a crime. (M.G.L.c. 149, s. 187(c)(2))
provides information to or testifies before any public body conducting an investigation into any violation of a law, rule or regulation or violation of professional standards of practice by the health care facility or by another health care facility which the health care provider reasonably believes poses a risk to public health; potentially dangerous care; (M.G.L.c. 149, s. 187(b)(2))
objects to or refuses to participate in any activity, policy or practice of the health care facility which the health care provider reasonably believes is in violation of a law, rule or regulation or violation of professional standards of practice which the health care provider reasonably believes poses a risk to public health; or (M.G.L.c. 149, s. 187(b)(3))
participates in any committee or peer review process, files a report or a complaint, or an incident report discussing allegations of unsafe, dangerous or potentially dangerous care. (M.G.L.c. 149, s. 187(b)(4))
A "health care facility" is an individual, partnership, association, corporation or trust or any person or group of persons that employs health care providers, including any hospital, clinic, convalescent or nursing home, charitable home for the aged, community health agency, pharmacy or other provider of health care services licensed, or subject to licensing by, or operated by, the Department of Public Health; any facility as defined in M.G.L.c. 111B. s. 3.; any private, county or municipal facility, department or unit which is licensed or subject to licensing by the Department of Mental Health pursuant to M.G.L.c. 19. s. 19, or by the Department of Developmental Services pursuant to M.G.L.c. 19B, s. 15; any facility as defined in M.G.L.c. 123, s. 1; a state-operated veterans' home; or any facility as set forth in M.G.L.c. 19, s. 1 or M.G.L.c. 19B, s. 1. (M.G.L.c. 149, s. 187(a))
A "health care provider" is an individual who is a licensed health care provider under M.G.L.c. 112 including, but not limited to, registered nurses, licensed practical nurses, physicians, physician assistants, chiropractors, dentists, occupational therapists, physical therapists, optometrists, pharmacists, podiatrists, psychologists and social workers or any other health care provider who performs or has performed health care related services for and under the control of a health care facility for care-related services. (M.G.L.c. 149, s. 187(a))
Any health care provider or former health care provider aggrieved by a violation of this statute may within two years institute a civil action in the superior court. Any party to such action is entitled to claim a jury trial. All remedies available in common law tort actions are available to prevailing plaintiffs. The court may also:
issue a temporary restraining order or preliminary or permanent injunction to restrain continued violation of this statute;
reinstate the health care provider to the same position held before the retaliatory action, or to an equivalent position;
reinstate full fringe benefits and seniority rights to the health care provider;
compensate the health care provider for lost wages, benefits and other remuneration, and interest; and
order payment by the health care facility of reasonable litigation costs, reasonable expert witness fees and reasonable attorneys' fees. (M.G.L.c. 149, s. 187(d))
If the court finds the action was without basis in law or in fact, the court may award reasonable attorneys' fees and court costs to the health care facility. (M.G.L.c. 149, s. 187(e)(1))
A health care provider shall not be assessed attorneys' fees if, upon exercising reasonable and diligent efforts after filing the action, the health care provider moves to dismiss the action against the health care facility, or files a notice agreeing to a voluntary dismissal, within a reasonable time after determining that the health care facility would not be found liable for damages. (M.G.L.c. 149, s. 187(e)(2))