Can a Nursing Home Employee Be Fired for Responding to a Claim of Abuse or Neglect?
Nursing home abuse and neglect is a serious problem in Tennessee. Victims are often unable to stand up for themselves, and even when family members complain, nursing homes may take little or no action. And based on a recent decision by the Tennessee Court of Appeals, nursing home employees who try to protect patients may lose their jobs.
Old Bandage Not “Reasonable Cause” to Suspect Neglect
In September 2013, a man visited his elderly mother at her nursing home in Shelbyville, Tennessee. The patient had a “persistent wound on her ankle” that required weekly visits to a clinic. On this day, the son accompanied his mother to the clinic. When medical personnel removed the patient’s sock, there was a three-week-old bandage at the bottom of the mother’s foot.
Based on this, the son was concerned about the overall level of care his mother was receiving. He registered a complaint with the nursing home’s administrator, who said he would conduct an immediate internal investigation. True to his word, the administrator prepared a written report and gave a copy to the son.
Two days later, the nursing home fired the administrator, citing in part his “overreaction” to the son’s complaint. The now-former administrator sued the nursing home, alleging illegal retaliatory discharge under the Tennessee Public Protection Act (TPPA) and Tennessee common law. The TPPA is a law designed to protect employees from being fired “solely for refusing to participate in, or for refusing to remain silent about, illegal activities.”
In this case, a trial judge summarily dismissed the ex-administrator’s TPPA and common law claims. In January 2016, a divided three-judge panel of the Tennessee Court of Appeals affirmed. The majority held the administrator “did not have reasonable cause to believe that the [nursing home’s] acts or omissions constituted illegal activities,” which is the standard of proof for proving a TPPA claim. The judges agreed with the trial judge’s finding that “leaving a bandage in a sock, where a patient’s wound is in fact otherwise sufficiently bandaged, is not illegal activity.” For this reason, the majority also dismissed the administrator’s common law claim, which was based on his duty under state law to report “abuse or neglect” in a nursing home.
The dissenting judge was not so quick to dismiss the administrator’s case. He argued that if this case were presented to a jury, it could find that the administrator had “reasonable cause” to believe there was abuse and neglect, thereby rendering the discharge illegal. The dissenting judge further explained that the majority had lept to the conclusion there was no abuse, yet “a reasonable juror presented with the foregoing facts could infer the exact opposite: that the discovery of the bandage on [the patient’s] foot was a sign that [the nursing home] was not properly caring for her.”
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It should be noted the court’s decision in this case did not establish, one way or the other, if there was abuse and neglect at this particular nursing home. The case dealt with Tennessee employment law. But based on this decision, how many people working at nursing homes may now be more cautious about reporting abuse or neglect for fear of losing their jobs?
This is why if you suspect a parent or elderly relative is being mistreated at a nursing home, you need to take a proactive role and not just assume the staff will notice and correct the problem. An experienced Knoxville nursing home and abuse attorney can help. Contact the offices of Fox Farley Willis & Burnette, Attorneys at Law, in Clinton or Knoxville if you need to speak with an attorney right away.