Respiratory therapist's complaint of malpractice and cover-up wasn't protected activity under False Claims Act, court rules

by Ben Vernia | April 6th, 2011

On March 31, District Judge Wiley Y. Daniel of the District of Colorado granted a hospital’s motion to dismiss a fired respiratory therapist’s wrongful termination claim under the False Claims Act. In Haynes v. Poudre Valley Health Care, Inc., the plaintiff was discovered attempting to fax to a state regulatory agency a letter complaining that the deaths of two infants were caused by another respiratory therapist, and that the hospital management had covered up the misconduct. During the hospital’s investigation of these allegations, it discovered instances of the plaintiff’s own misconduct, which she did not dispute but characterized as minor. The hospital fired her, purportedly on the basis of her own misconduct; the therapist claimed that this was a pretext, however, and that the real reason was in retaliation for her writing and attempting to send the complaint letter.

Judge Daniel concluded that the therapist:

has not demonstrated that the complaint letter constitutes an activity taken in furtherance of an FCA enforcement action. Significantly, the complaint letter does not mention Medicare or Medicaid, nor does it provide any specific information about false charges other than a single incident involving a patient who was not on Medicare or Medicaid. The complaint letter makes no mention of fraudulent activity against the federal government, and cannot reasonably be construed as an attempt to report Medicare or Medicaid fraud.

Judge Daniel nevertheless denied the hospital’s motion to dismiss a state-law claim for retaliatory discharge in violation of public policy, finding that she had raised an issue of fact concerning the motivation for her firing.

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