Brian J. Graber, Ltd., is a Chicago hospital whistleblower lawyer representing medical employees retaliated against in violation of Illinois and federal law. There are many Illinois and federal hospital whistleblower laws that will protect medical employees from retaliation and wrongful termination. Effective on January 1, 2004, Illinois passed the Hospital Report Card Act, 210 ILCS 86/1, et seq., which contains whistleblower protections for hospital employees. However, because the Whistleblower Protections of the Hospital Report Card Act are so watered down, the Illinois Whistleblower Act, 740 ILCS 174/1, et seq., is a better hospital whistleblower law for medical employees suffering workplace retaliation.
Hospital Report Card Act – Whistleblower Protections
The Hospital Report Card Act, 210 ILCS 86/10, defines “hospital” for the purposes of this Act as a health care facility licensed under the Hospital Licensing Act.
Under 210 ILCS 86/10 “retaliate” means to discipline, discharge, suspend, demote, harass, deny employment or promotion, lay off, or take any other adverse action against direct-care nursing staff as a result of that nursing staff taking any action described in this Act.
Statutory Protected Activity
Under 210 ILCS 86/35(a) a hospital covered by this Act shall not penalize, discriminate, or retaliate in any manner against an employee with respect to compensation or terms, conditions, or privileges of employment who in good faith, individually or in conjunction with another person or person, does any of the following or intimidate, threaten, or punish an employee to prevent him or her from doing any of the following:
- Discloses to the nursing staff supervisor or manager, a private accreditation organization, the nurse’s collective bargaining agent, or a regulatory agency any activity, policy, or practice of a hospital that violates this Act or any other law or rule or that the employee reasonably believes poses a risk to the health, safety, or welfare of a patient or the public.
- Initiates, cooperates, or otherwise participates in an investigation or proceeding brought by a regulatory agency or private accreditation body concerning matters covered by this Act or any other law or rule or that the employee reasonably believes poses a risk to the health, safety, or welfare of a patient or the public.
- Objects to or refuses to participate in any activity, policy, or practice of a hospital that violates this Act or any other law or rule of the Department or that a reasonable person would believe poses a risk of the health, safety, or welfare of a patient or the public. However, 210 ILCS 86/35(b) states that nothing in this Section prohibits a hospital from training, educating, correcting, or otherwise taking action to improve the performance of employees who report that they are unwilling or perform an assigned task.
- Participates in a committee or peer review process or files a report or complaint that discusses allegations of unsafe, dangerous, or potentially dangerous care within the hospital.
No Illinois appellate courts have issued any opinions interpreting the required elements hospital employees need to prove to receive protection for whistleblower activity. It would be reasonable to presume that hospital employees seeking whistleblower protections under this Act would have to prove at a minimum the following elements:
- He/She engaged in one or more the the above described statutory protected activities in good faith;
- The decision-maker knew about the hospital employee’s statutory protected activity; and
- The decision-maker took adverse employment action against the hospital employee because of his/her statutory protected activity.
The Act offers broad protections allowing hospital employees to internally report violations to hospital management or report violations to outside third parties like union representatives and private accreditation organizations. However, this hospital whistleblower law seems to favor management.
Whistleblower Protection Requires Hospital Employees To Act In Good Faith
An employee seeking the whistleblower protection described above must act in good faith. Under 210 ILCS 86/35(b) an employee is presumed to act in good faith if the employee reasonably believes that:
- the information reported or disclosed is true; and
- a violation has occurred or may occur.
Under 210 ILCS 86/35(b) an employee is not acting in good faith if the employee’s report or action was based on information that the employee should reasonably know if false or misleading.
Unless an Exception Applies Whistleblower Protection Requires Written Notice of the Violation to a Hospital Manager
In order for a hospital employee to obtain whistleblower protection, 210 ILCS 86/35(b) requires a hospital employee to give written notice to a hospital manager of the activity, policy, practice, or violation that the employee reasonably believes poses a risk to the health of a patient or the public and provides the manager a reasonable opportunity to correct the problem.
Under 210 ILCS 86/35(b) requires the manager to respond in writing to the employee within 7 days acknowledging that the notice was received and provide written notice of any action taken within a reasonable time of receiving the employee’s notice.
Under 210 ILCS 86/35(b) this Notice Requirement shall not apply if the employee is reasonably certain that the activity, policy, practice, or violation:
- is known by one or more hospital managers who have had an opportunity to correct the problem and have not done so;
- involves the commission of a crime; or
- places patient health or safety in severe and immediate danger.
Under 210 ILCS 86/35(b), the Notice Requirement shall not apply if the employee is participating in a survey, investigation, or other activity of a regulatory agency, law enforcement agency, or private accreditation body that was initiated by the employee.
Hospital Employee’s Private Right of Action for Damages
Under 210 ILCS 86/40 any health care facility that violates the provisions of 210 ILCS 86/35 may be held liable to the employee affected in an action brought in a court of competent jurisdiction for such legal or equitable relief as may be appropriate to effectuate the purposes of this Act.
Illinois Whistleblower Act
The Illinois Whistleblower Act, (IWA), 740 ILCS 174/1, et seq., seems to provide the broadest protections to medical employees from retaliation as well as the broadest remedies to medical employees whose rights are violated.
Medical Employers Covered by the Illinois Whistleblower Act
Under 740 ILCS 174/5 the IWA’s whistleblower protections apply to all employees of any hospitals, medical groups, corporations, partnerships, associations, nursing homes, or any other medical entity that has one or more employees in the State of Illinois. Under 740 ILCS 174/5 the IWA’s Whistleblower protections applies to units of local government like county hospitals.
The IWA, 740 ILCS 174/5 defines the term “employee” as a licensed physician who practices his or her profession, in whole or in part, at a hospital, nursing home, clinic, or any medical facility that is a health care facility funded, in whole or in part, by the State.
Protected Activity under the Illinois Whistleblower Act
The IWA, 740 ILCS 174/30 allows medical employees to bring a civil action against their employer if the employer takes any action against the medical employee in violation of 740 ILCS 174/15 or 740 ILCS 174/20. The IWA, Section 15 and 20 define three types of statutory protected activity:
(a) An employee may not retaliate against an employee who discloses information in court, an administrative hearing, or before a legislative commission or committee, or in any other proceeding, where the employee has reasonable cause to believe that the information discloses a violation of a State or federal law, rule, or regulation.
(b) An employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of a State or federal law, rule, or regulation.Illinois Whistleblower Act, 740 ILCS 174/15(a) & (b)
An employer may not retaliate against an employee for refusing to participate in an activity that would result in a violation of a State or federal law, rule, or regulation . . . .Illinois Whistleblower Act, 740 ILCS 174/20
A medical employee who engages in any of the above-described statutorily protected activities may have whistleblower protections under the IWA. The IWA provides broader protection to medical employees and includes adverse employment action short of an actual termination. The IWA, 740 ILCS 174/20.1 states:
Any other act or omission not otherwise specifically set forth in this Act, whether within or without the workplace, also constitutes retaliation by an employer under this Act if the act or omission would be materially adverse to a reasonable employee and is because of the employee disclosing or attempting to disclose public corruption or wrongdoing.740 ILCS 174/20.1
IWA, 740 ILCS 174/20.2 states that an employer may not threaten any employee with any act or omission in that act or omission would constitute retaliation against the employee under this Act.
Medical employees of local government like county hospitals likely have protection under 740 ILCS 174/15(b) when internally reporting suspected violations of State or federal law, rule, or regulation to management. The plain language of the IWA, 740 ILCS 174/15(b) supports a cause of action for disclosing suspected unlawful activity to one’s own employer who happens to be a government or law-enforcement agency and is also the employer. Brame v. City of North Chicago, 955 N.E.2d 1269, 1271 (2nd Dist. 2011). Medical employees employed by Cook County Hospital who report suspected violations to their managers have likely engaged in protected activity. Medical employees who suffer retaliation for reporting suspected violations of the law to Cook County Hospital’s Police Department have likely engaged in protected activity.
However, 740 ILCS 174/15(b) does not protect employees who simply note the impropriety of conduct with the alleged wrongdoer, as that does not constitute the disclosure of information under the Whistleblower Act. Sweeney v. City of Decatur, 79 N.E.2d 184, 189 (4th Dist. 2017). Therefore, to receive protection under the IWA, 740 ILCS 174/15(b) medical employees of local governments should report the wrongdoer’s suspected unlawful activity to their government employer’s management level employee who has some authority to take action.
An employer cannot adopt any rule, regulation, or policy preventing medical employees from disclosing information to a government or law enforcement agency regarding a violation of a State or federal law, rule, or regulation.
An employer may not make, adopt, or enforce any rule, regulations, or policy preventing an employee from disclosing information to a government or law enforcement agency if the employee has reasonable cause to believe that the information discloses a violation of a State or federal law, rule, or regulation.Illinois Whistleblower Act, 740 ILCS 174/10
A medical employee obtains whistleblower protection under 740 ILCS 174/20 refusing to participate in any activity that would would result in a violation of a State or federal law, rule, or regulation.
Illinois Whistleblower Act Burden of Proof
Generally, a medical employee civil action for violations of the IWA must prove the following elements:
- The medical employee engaged in one or more the protected statutory activity listed above;
- The decision-maker knew the medical employee engaged in protected statutory activity;
- The decision-maker took adverse employment action against the medical employee because of the protected statutory activity.
The IWA provides medical employees with generous remedies for an employer’s unlawful retaliation for whistleblower activities. Click here to learn more about The Illinois Whistleblower Act.
Selected Regulations Pertaining to Hospitals
The Illinois Department of Public Health enforces several regulations for the safety of patients listed in the index to the Illinois Administrative Code. This index contains a number of emergency provisions related to the coronavirus pandemic.
The Illinois Department of Public Health has adopted a number of standards as part of The Illinois Administrative Code by reference. Click here to see the safety standards that were adopted by reference and are now regulations contained in The Illinois Administrative Code. The Illinois Department of Public Health adopted quite a number of private and professional association Standards, and federal government publications that now apply as hospital regulations. Violations of these regulations may support a hospital whistleblower claim for retaliation.
The Illinois Department of Public Health has enacted regulations pertaining to Patient Rights the violation of which may support a hospital whistleblower claim for retaliation. There are hospital regulations dealing with staffing levels and nursing services the violation of which may support a hospital whistleblower claim. Refusing hospital management orders to falsify nursing records and reports would likely support a hospital whistleblower claim.
Where to Report a Hospital Violations
The Illinois Department of Public Health (IDPH) is the Illinois government agency that regulates hospitals. Click here to learn about how to file a health care complaint with the IDPH.
Other Hospital Whistleblower Laws:
Illinois Retaliatory Discharge
Medical employees may have claims for Illinois common law retaliatory discharge if they are terminated in retaliation for internally reporting to management a violation of law or for protecting the health and safety of the public or otherwise refusing an employer’s demand to violate the law. This is also known as a wrongful termination claim.
False Claims Act
Medical employees may have whistleblower protections under the False Claims Act, 31 U.S.C. 3730(h) and the Whistleblower Reward and Protection Act, 740 ILCS 174/4(g) for bring qui tam claims against their employers or for trying to stop their employer from submitting false or fraudulent claims to the federal or Illinois government. Fraud against the United States and the State of Illinois is rampant in the medical industry.
Retaliatory Discharge – Reporting Workplace Violence
Medical employees have protection from being terminated for reporting workplace violence. Click here to learn more about wrongful termination claims for reporting workplace violence. The Illinois Department of Public Health has enacted regulations dealing with Workplace Violence Prevention Programs.
Illinois Human Rights Act – Hostile Work Environment
The Illinois Human Rights Act was amended to provide stronger protections for sexual harassment and racial harassment claims in the workplace. Click here to learn more about workplace sexual harassment.
Retaliatory Discharge for Seeking Worker’s Compensation Benefits
Medical employees have protection from being terminated in retaliation for exercising their rights under The Illinois Worker’s Compensation Act. Click here to learn more about Retaliatory Discharge – Workplace Injury. Coronavirus anti-retaliation protections for seeking worker’s compensation benefits may be available.
Public Medical Employee Civil Rights
Medical employees employed by local government entities like county hospitals have civil rights. Click here to learn about Public Employee Civil Rights.
Nursing Home Care Act – Whistleblower Protections
Medical Employees employed by long-term care facilities have whistleblower protections under The Illinois Nursing Home Care Act. Click here to learn about the Nursing Home Care Act-Whistleblower Protections.
Coronavirus Anti-Retaliation Protections
Medical employees may have certain coronavirus anti-retaliation protections. Click here to learn about coronavirus anti-retaliation protections.
Contact Brian J. Graber, Ltd., at (312) 291-4648 for free consultation to see if you have a claim against your medical employer for retaliation in violation of hospital whistleblower laws.