WILLIAM M BETTS, Complainant

BAY AREA MEDICAL CENTER, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge (copy attached) is affirmed.

Dated and Mailed June 9, 2011

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

In his petition for commission review the complainant argues that he was discharged for internally reporting an error regarding medication ordered for a child. He states that the documentation was discovered on the patient's chart several months later, when the complainant reported a number of incidents of continuing harassment.

This case arises under the Health Care Worker Protection Act (HCWPA), and presents the initial issue of whether the complainant engaged in any conduct that was protected under the HCWPA.

The complainant worked for the respondent as a respiratory therapist. The evidence presented at the hearing established that one of the respondent's doctors prescribed some medication for a child in an amount that exceeded the manufacturer's recommended dosage. Prior to administering the medication, the complainant contacted the pharmacist, who in turn contacted the doctor who had placed the order. The doctor confirmed that he wanted the child to receive the dosage prescribed.

The complainant informed his supervisor about the matter, and the supervisor commended the complainant for bringing the matter to his attention.

The complainant administered the prescribed dosage, but added the following note to the patient's chart:

"Xoponex is only recommended TID for peds 6 years and under. Spoke with pharmacist and informed RN. RT [the complainant] remembered peds pt with CP 6 y.o. who had to be intubated and flown to G.B. several years ago who received same type of order."

Based on those facts, the commission agrees with the administrative law judge that the complainant did not engage in conduct that was protected by the HCWPA.

The HCWPA provides, in relevant part:

(2) REPORTING PROTECTED. (a) Any employee of a health care facility or of a health care provider who is aware of any information. . . that would lead a reasonable person to believe any of the following may report that information. . . to any officer or director of the health care facility or health care provider; or to any employee of the health care facility or health care provider who is in a supervisory capacity or in a position to take corrective action:

1. That the health care facility or health care provider or any employee of the health care facility or health care provider has violated any state law or rule or federal law or regulation.

2. That there exists any situation in which the quality of any health care service provided by the health care facility or health care provider or by any employee of the health care facility or health care provider violates any standard established by any state law or rule or federal law or regulation or any clinical or ethical standard established by a professionally recognized accrediting or standard-setting body and poses a potential risk to public health or safety.

Wis. Stat. § 146.997(2).

A notation on a patient's chart does not constitute a report made to an officer, director or supervisor of the medical center, as contemplated under the HCWPA. Indeed, the complainant's own argument that the notation was "discovered" several months later in conjunction with another matter underscores the point that, while the complainant may have recorded his concerns, he did not actually report a problem to anyone in a position to take corrective action.

Moreover, while the notation on the patient's chart implied that the complainant questioned the dosage prescribed for the patient, the complainant did not indicate that he believed any law or regulation had been violated in prescribing that dosage, nor did he suggest that the quality of health care services provided violated any legal or professional standard and posed a potential risk to public health or safety. At the hearing the complainant testified that it was the doctor's prerogative to order a higher dose than recommended.

While not specifically referenced in the complainant's petition for review as a reason for his discharge, the commission notes that at the hearing the complainant also testified that a patient's daughter was harassing him and that he complained to the respondent about this situation. He contended that this constituted additional protected conduct that played a role in his discharge. However, the complaint about the patient's daughter did not relate to any subject matter covered by the HCWPA and, like the chart notation discussed above, did not constitute "protected reporting" under that statute.

For the reasons set forth above, the commission agrees with the administrative law judge that the complainant failed to establish he engaged in any conduct that triggered the protections of the HCWPA. Accordingly, the dismissal of his complaint is affirmed.

cc: Attorney Daniel T. Dennehy

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uploaded 2011/06/10