What Health Care Employers Need to Know about the West Virginia Patient Safety Act

Ryan Brown, a health care attorney at Flaherty Sensabaugh Bonasso PLLC who specializes in medical malpractice defense, health care regulatory work and health care related employment issues wrote this summary of the West Virginia Patient Safety Act.

In 2001, the West Virginia Legislature passed the Patient Safety Act (“PSA”), W.Va. Code § 16-39-1 et seq. The purpose of the PSA was to provide an avenue for health care workers to report instances of waste or wrongdoing without the fear of retaliatory or discriminatory treatment by their employers through termination, demotion, reduction of time, lost wage, or lost benefits. The PSA requires the identity of a health care worker who reports waste or wrongdoing to a health care entity (e.g., hospital, clinic, nursing facility, etc.) or appropriate governmental authority to remain confidential. Health care entities are also required to post a summary of the important provisions of the PSA on the premises for its employees.

It is important for health care entities to understand that the PSA prohibits retaliation or discrimination against a health care worker who made a good faith report; advocated on behalf of patients, services or conditions of a health care entity; or cooperated in any investigation relating to the care, services or conditions of the health care entity. A health care worker who has been retaliated or discriminated against by his or her employer in violation of the PSA may file a civil suit and recover payment of back wages, costs of the litigation, reasonable attorney fees, and even reinstatement.

Many employers in West Virginia have had experience with the West Virginia Human Rights Act (“WVHRA”), W.Va. Code § 5-11-1 et seq, and its exception to the “at-will” employment doctrine. The WVHRA prohibits discrimination on the basis of race, religion, color, national origin, ancestry, sex, age, disability, and familial status. The WVHRA has been used by former employees as a way to defeat “at-will” employment by alleging that they were wrongfully terminated based on a protected status, rather than for unsatisfactory job performance. Although initially designed to improve the quality of patient care, the PSA has also been used by some former health care employees as a way to get around the concept of “at-will” employment. For example, a discharged health care worker could potentially sue his former employer using the PSA to allege that he was discriminated against after he reported instances of the employer’s waste and wrongdoing.

Health care entities must take special care not only to document the unsatisfactory performance of its employees, but also document and investigate complaints of waste or wrongdoing to shield itself from such PSA lawsuits. These lawsuits can be quite complicated as they encompass elements of both employment litigation and medical professional liability litigation.