Whistleblower Claim by Health Care Worker Dismissed Creating Questionable Public Policy

Several different whistleblower laws protect Massachusetts employees. In particular, M.G.L. c. 149, §187 protects health care providers from retaliation for disclosing problems within health care facilities. In Romero v. UHS of Westwood Pembroke, Inc.et al., the Massachusetts Court of Appeals recently issued a ruling dismissing a health care provider’s wrongful termination claim after she objected to a proposed policy that she believed was unlawful if implemented.

Unfortunately, the Appeals Court construed the health care whistleblower statute narrowly. Section 187(b)(3) prohibits retaliation against a health care provider who:

[O]bjects to or refuses to participate in any activity, policy or practice of the health care facility or of another health care facility with whom the health care provider’s health care facility has a business relationship which the health care provider reasonably believes is in violation of a law or rule or regulation promulgated pursuant to law or violation of professional standards of practice which the health care provider reasonably believes poses a risk to public health.

In dismissing the employee’s whistleblower claim, the court reasoned that an employee who objects to a proposed unlawful activity, policy, or activity is not protected under Section 187(b)(3).

The ruling creates an obvious disincentive for health care providers to speak out against and oppose proposed policies, which they reasonably believe will pose a risk to public health. Rather, as the court’s decision makes clear, an employee’s conduct is only protected where there is opposition to an existing policy.