CORRUPT DEFEAT OF NEW JERSEY'S CONSCIENTIOUS EMPLOYEE PROTECTION ACT

 2.32 NEW JERSEY CONSCIENTIOUS EMPLOYEE PROTECTION ACT (N.J.S.A. 34:19-1 et seq.) (6/91)

Under the law, a licensed or certified health care professional is protected from retaliation in his employment if he:

Disclosed to a supervisor or public body an activity, policy or practice of defendant that plaintiff, who is a licensed or certified health care professional, reasonably believes constitutes improper quality of patient care .

Improper quality of patient care means, with respect to patient care, any practice that violates a professional code of ethics.

To prevail on this claim, the plaintiff has the burden of showing by a preponderance of the evidence that: (1) he reasonably believed that an activity, policy or practice of his employer was in violation of a professional code of ethics; (2) he disclosed or threatened to disclose to a supervisor or to a public body that activity, policy or practice; (3) retaliatory action was taken against him (i.e., an adverse employment action occurred); and (4) there was a causal link between the plaintiff's action and the retaliatory or adverse action of the defendant.

To establish the first element of his claim, it is the plaintiff's burden to prove by a preponderance of the evidence that in light of the circumstances facing him and the knowledge possessed by him at the time he formed his belief, he had a reasonable belief that the defendant was violating a professional code of ethics. In making such a determination, you are to consider whether or not plaintiff possessed the qualifications necessary to establish a reasonable belief. In other words, you are to take into account plaintiff's educational background and employment responsibilities.

As I stated previously, the second element plaintiff must establish is that he disclosed or threatened to disclose to a supervisor or to a public body an activity, policy or practice of the employer that the employee/plaintiff reasonably believed was in violation of a professional code of ethics. Thus, plaintiff must prove by a preponderance of the evidence, that he, in fact, threatened to make his claim or actually made his claim of improper activity known to either a supervisor or a public body. Plaintiff's own belief that certain conduct may have been improper or illegal is insufficient unless he threatened to disclose his belief or his belief was actually made known to a supervisor or to a public body.

A "supervisor" is an individual within defendant's organization who has the authority to direct and control plaintiff's work performance, who has the authority to take corrective action regarding the violation of the professional code of ethics of which plaintiff complains, or who has been designated by defendant to receive written notices concerning any violation of a professional code of ethics of which an employee may complain.

I also charge you that plaintiff was required to bring the complained-of activity to the attention of a supervisor by written notice before making the disclosure to [the public body], and to have afforded defendant a reasonable opportunity to correct the activity before making such disclosure, unless you find that either: (1) plaintiff was reasonably certain that the activity, policy or practice was known to one or more supervisors of defendant; or (2) plaintiff reasonably feared physical harm as a result of giving the required notice, and that the situation was emergency in nature.

 Finally, in establishing the third and fourth elements of his claim, the plaintiff must prove by a preponderance of the evidence that there was some retaliatory action taken against him and that there was a causal link between his actions and the retaliation. In establishing the element of retaliation, plaintiff must prove that he was discharged, suspended or demoted, or that some other adverse employment action was taken against him in the terms and conditions of his employment.

However, even if plaintiff shows that adverse action was taken against him, that does not end the inquiry. Plaintiff must prove that the action taken by his employer was retaliatory in nature. Plaintiff cannot prove his claim of retaliation merely by conclusory statements or by speculating that the action taken against him was in response to disclosure he made or threatened to make. Rather, plaintiff must adduce tangible evidence of retaliatory action. He must adduce support for his feeling that the action taken against him was retaliatory.
You should note that evidence that the defendant's decision regarding the adverse action was made before plaintiff's disclosure or threatened disclosure is evidence that a retaliatory motive was not at work. Defendant cannot be charged with a retaliatory motive if you find that its conduct towards the plaintiff did not change perceptibly following the disclosure or threatened disclosure of his allegations.



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 SECTION 3.5 OF THE
CODE OF NURSING ETHICS

 The Code of Ethics for Nurses can be viewed on the American Nurses Association official web site
www.nursingworld.org.

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3.5 Acting on questionable practice. The nurse’s primary commitment is to the health, well-being, and safety of the patient across the life span and in all settings in which health care needs are addressed. As an advocate for the patient, the nurse must be alert to and take appropriate action regarding any instance of incompetent, unethical, illegal, or impaired practice by any member of the health care team or the health care system or any action on the part of others that places the rights or the best interests of the patient in jeopardy. To function effectively in the role nurses must be knowledgeable about the code of ethics, standards of practice of the profession, relevant federal, state, and local laws and regulations, and the employing organization’s policies and procedures.

When the nurse is aware of inappropriate or questionable practice in the provision or denial of health care, concern should be expressed to the person carrying out the questionable practice. Attention should be called to the possible detrimental effect upon the patient’s well being or best interests as well as the integrity of nursing practice. When factors in the health care organization threaten the welfare of the patient, similar action should be directed to the responsible administrator. If indicated the problem should be reported to an appropriate higher authority within the institution or agency, or to an appropriate external authority.

There should be established processes for reporting and handling incompetent, unethical, illegal, or impaired practice within the employment setting so that such reporting can go through official channels, thereby reducing the risk of reprisal against the reporting nurse. All nurses have a responsibility to assist those who identify potentially questionable practice. State nurses associations should be prepared to provide assistance and support in the development and evaluation of such processes and reporting procedures. When incompetent, unethical, illegal, or impaired practice is not corrected within the employment setting and continues to jeopardize patient well being and safety, the problem should be reported to other appropriate authorities such as practice committees of the pertinent professional organizations, the legally constituted bodies concerned with licensing of specific categories of health workers and professional practitioners, or the regulatory agencies concerned with evaluating standards or practice. Some situations may warrant the concern and involvement of all such groups. Accurate reporting and factual documentation, and not merely opinion, undergird all such responsible reporting. When a nurse chooses to engage in the act of responsible reporting about situations that are perceived as unethical, incompetent, illegal, or impaired, the professional organization has a responsibility to provide the nurse with support and assistance and to protect the practice of those nurses who choose to voice their concerns. Reporting unethical, illegal, incompetent, or impaired practices, even when done appropriately, may present substantial risks to the nurse; nevertheless, such risks do not eliminate the obligation to address serious threats to patient safety.

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