In Turner v. Memorial Medical Center, Docket No. 107317 (June 18, 2009), the Illinois Supreme Court affirmed the dismissal of plaintiff’s retaliatory discharge claim, which was brought on a whistle blower/compliance theory. Plaintiff, a trained and licensed respiratory therapist, alleged that the hospital terminated him because he told an official from the Joint Commission on Accreditation of Healthcare Organizations (the “Joint Commission”) that the Hospital’s respiratory therapy department did not comply with the Joint Commission’s standard of electronically charting a patient’s file immediately after providing care to the patient and that this was a “patient safety issue.” The plaintiff alleged that he was terminated less than a week after he made the report to the Joint Commission.
The Court found that even assuming that all of the facts alleged in the complaint were correct, plaintiff failed to properly allege a retaliatory discharge claim because he did not allege that his discharge violated a “specific expression” of public policy. A specific expression of public policy concerns a matter that “strike[s] at the heart of citizen’s social rights, duties and responsibilities.” Plaintiff had alleged that by reporting to the Joint Commission that the hospital was not following its standards, his discharge violated the public policy of patient safety. He claimed that the Joint Commission’s standards, the Hospital Report Card Act and the Medical Patients Rights Act all established the existence of this public policy. The Court rejected this argument, concluding that plaintiff’s concern regarding when during a shift a chart is electronically updated is not significant enough to rise to an expression of a public policy concern. Simply put, the Court found that while “good medical care by hospitals is in the public interest” employees are not “immune from the general at-will employment rule simply because they claim to be reporting on issues that they feel are detrimental to health care.”
The Court further found that nothing in the Joint Commission’s standards or the Medical Patients Rights Act referenced a public policy of patient safety with respect to the preparation of patient records, and noted that plaintiff forfeited his argument regarding the Hospital Report Card Act because he did not reference this statute in his complaint or in response to the Hospital’s motion to dismiss.
This is a good decision for health care employers in Illinois. The Illinois Supreme Court has stated on many occasions that the tort of retaliatory discharge is to be narrowly construed, and has thus only applied the public policy exception in a few circumstances, including retaliatory discharge for asserting worker’s compensation claims and retaliatory discharge for providing information regarding a colleague to law enforcement. Nonetheless, it is not unusual for terminated health care employees to contend that they raised “compliance” issues during their employment, and then try to make out a case for “whistle blowing” discharge.
Here, the Illinois Supreme Court decided that the issues the plaintiff raised were simply not significant enough to rise to the level of a public policy concern, but were essentially business practice issues.
Note: Health care employers should continue to review disciplinary decisions to make sure they are not unfairly implicating employees who have raised issues under the discrimination, safety, workers’ compensation or other compliance laws to minimize risk.