January 10, 2017

How proper documentation can defeat a whistleblower suit

Posted in Employment Law by Gene Killian |

I once had a client who absolutely refused to use e-mail (which was very frustrating, as you can well imagine). He justified his refusal on the ground that, according to him, the “e” in “e-mail” stood for “evidence.” And, to be sure, many lawsuits and political campaigns have been lost because of stupid things that were said in e-mails, including perhaps an election that you recently may have read about.

That said, I’ve litigated many cases in the past 30 years, and I can tell you that, in general, the side with the best documentation (obviously) usually wins. That’s because memories may fade, and witnesses may lie, but documents have an impeccable memory. This point recently came home to me again when reading the recent New Jersey Appellate Division decision in Miller v. Shore Memorial Hospital

Miller is a garden-variety whistleblower case with an all-too-familiar theme. An underperforming employee is kept on staff too long, and when she’s subjected to disciplinary action and suspects that termination is about to rear its ugly head, suddenly she’s a “whistleblower.” This particular case involved a social worker employed by a hospital. The employee’s work performance was, to be charitable, less than stellar.  After receiving a memo warning her about not arriving at work on time, and about failing to review her e-mail on a daily basis as required, she went to HR and claimed that proper procedures were not being followed at the hospital, including the fact that her boss “had allowed a social work intern, rather than a social worker, to deliver a civil commitment application to a judge.”  (I guess that’s a bad thing in hospital-world.)

She also claimed that her boss made comments to her that were “insulting.” (The nerve!)

A couple of months later, Miller was terminated after a patient complained that she’d disclosed confidential medical information to the patient’s family without the patient’s consent, in violation of HIIPA.  This being America, Miller’s next stop was the office of her friendly neighborhood plaintiffs’ lawyer, and she brought suit for violations of New Jersey’s Conscientious Employee Protection Act (N.J.S.A. §§ 34:19-1 et seq.). The question, of course, boiled down to whether she was terminated for a legitimate business reason apart from her alleged “whistleblower” activity.

I will let some of the statements from the Court speak for themselves on the issue of how documents can win cases:

  • “The undisputed evidence, meticulously documented in the hospital’s personnel records, established that plaintiff had endemic attendance and punctuality issues, going back several years. In fact…about four months prior to her termination, plaintiff had been given two warnings, including a third-level final disciplinary warning for ‘poor job performance.’”  
  • “Plaintiff received a memo…once again reminding her of the need to arrive at work at the assigned time, and reminding her to review her e-mail on a daily basis.” 
  • “The hospital’s Vice-President of Medical Affairs…sent plaintiff a detailed letter rejecting her appeals [from disciplinary notices]. [The] letter reviewed plaintiff’s history of attendance problems since 2009, and noted that a failure to follow hospital guidelines could result in termination.”

That’s the documentation that existed from the management side. Now consider the documentation that existed from plaintiff’s side. Remember that the reason given for her termination was that she had improperly disclosed medical information without the patient’s consent. The Court wrote: “At her deposition, plaintiff testified that she did obtain the patient’s consent and documented the consent. However, the patient’s records…contain no such documentation, and defendant submitted undisputed evidence that a patient documentation note, once placed in the computer system, could not be deleted… A check of additional patient records revealed that plaintiff did not document, or failed to timely document, actions taken with respect to other patients.”

The lessons from this case are simple and straightforward. Don’t get sloppy about your documents. If a case winds up in court, timely and complete documentation can prevent a lot of heartache, and in many cases, can end your problems at the summary judgment stage.  (Whether the hospital kept a problem employee on staff too long is a question for a separate post.  I say yes.)

By the way, while we’re on the subject of proper documentation, never throw out old insurance policies. Have them scanned and retained forever. You never know when they might become relevant, and if you can’t find your copy, odds are the insurance company won’t be able to find its copy, either.