Posts

Mississippi Qui Tam Attorneys Discuss Complication in Determining Statute of Limitation for Whistleblower’s Termination

This blog previously has addressed protections for whistleblowers who are terminated for pursuing a qui tam claim or otherwise disclosing wrongdoing by their employer. However, many people do not understand the complex legal and procedural challenges to pursuing a qui tam action or a wrongful termination lawsuit related to disclosing employer false billings and/or schemes to defraud federal and state governments of public funds. Although some people attempt to navigate the whistleblower process without legal representation, there are procedural and timing deadlines that must be satisfied to avoid derailing your claim or forfeiting employee whistleblower protections.

While the statute of limitations might seem like a straightforward issue, whistleblowers can face challenges in determining the date by which a lawsuit must be filed when an employer retaliates. In Community Care Center of Aberdeen v. Barrentine, 160 So.3d 216 (2015), the Supreme Court of Mississippi considered whether a wrongful termination claim based on retribution for reporting abuse in a nursing home was subject to the statute of limitations for breach of contract or tort actions.

The plaintiff was the employee of a nursing home who filed a wrongful termination lawsuit more than a year after her discharge, which occurred shortly following her report to the state of suspected abuse of a patient. The nursing home sought to have the case dismissed based on the contention that the legal claim was barred by the one-year statute of limitations for breach of a written employment contract. The plaintiff contended that the appropriate statute of limitations was the three-year period applicable to torts based on the public policy exception.

In analyzing these competing statute of limitation arguments, the state’s highest court initially observed that the state recognized a narrow exception to the employment at will doctrine. Generally, this doctrine permits an employer to fire an employee for any reason or no reason at all. The Supreme Court of Mississippi noted that in a previous decision it ruled that “an employee shall not be barred by the common law rule of employment at will from bringing an action in tort for damages against an employer when the basis for the termination is a refusal by the employee to participate in illegal conduct.” (McArn v. Allied Bruce-Terminix Co., Inc., 626 So.2d 603 (Miss. 1993). In McArn, the employee alleged he was terminated for reporting to the Department of Agriculture that customers’ properties were not being treated properly with extermination chemicals. (Citations Omitted).

The Supreme Court of Mississippi considered the conflicting decisions from other states while acknowledging the issue had not been previously determined by Mississippi’s highest court. The court found two competing approaches in its prior decisions regarding the appropriate statute of limitations on employment-related claims. Decisions where the dispute concerned issues related to “traditional employer-employee situations,” such as non-payment of a benefit granted under the employment agreement, the one year statute of limitations was applied. However, the court observed that tort claims for wrongful discharge in violation of public policy, such as retaliation against a whistleblower, have no relationship to the terms of the employment agreement. Therefore, the court reasoned that wrongful termination under these circumstances amounts to “an independent tort action” unconnected to the traditional employment agreement.

Based on this analysis, the employer’s motion for summary judgment was denied. This permitted the employee who disclosed illegal conduct by the nursing home that resulted in harm to the public to be protected from retribution from his or her employer. When you are considering a qui tam action to disclose wrongdoing by your employer, our Mississippi qui tam lawyers recognize that you will be concerned about your job and your employer’s ability to punish you for disclosing misconduct.

Because our law firm represents whistleblowers in actions under a range of statutes based on false, fraudulent, and illegal conduct committed against the federal government and the State of Mississippi, we can effectively represent clients in pursuing whistleblower actions and advise them regarding their right to protection from retaliation. If you have evidence of illegal activity or fraud by your employer, you are invited to contact the experienced Qui Tam Attorneys at Barrett Law to learn how we can help. Our Mississippi Whistleblower Lawyers have been representing conscientious employees throughout Mississippi for over 75 years. We offer personalized legal representation and zealous advocacy. We provide a free initial case evaluation so call us today at 662-834-2376. No Recovery No Fee!

 

 

/by

Court Denies Protection from Wrongful Termination to Whistleblower Based on Allegations Employee Participated in the Illegal Activity

While there are a plethora of protections available to a whistleblower under Mississippi and federal law, employees often have justifiable concerns about retribution by their employer.  Mississippi employment law is based on the premise that employees are hired on an at-will basis absent a written employment contract.  Generally, the at-will doctrine permits an employer to terminate an employee for a good reason, bad reason, or no reason at all subject to certain exceptions.

Whistleblowers that report illegal activity by their employer might qualify under the public policy exception to the “at-will employment doctrine.”  However, employees concerned about reprisals by their employer should seek legal advice and representation before “blowing the whistle.”  Although there are protections for employees who disclose illegal conduct, financial fraud, and other forms of misappropriation of public funds, the public policy or statutory authority for the claim will impact the requirements and criteria for seeking protection from an employer after reporting misconduct.  A decision from the Supreme Court of Mississippi, Galle v. Isle of Capri Casinos, Inc., 180 So.3d 619 (Miss. 2015) demonstrates the peril of whistleblower’s moving forward without the benefit of legal advice.

The former employee of a casino was discharged after reporting the employer’s illegal conduct.  The employee filed a wrongful termination lawsuit based on the public policy exception to the employment-at-will doctrine.  The employee, who worked in the poker room, was promoted to “poker room manager.”  The promotion required the employee obtain a special license from the gaming commission.  The commission denied the employee’s application because of a prior conviction for burglary that was inadvertently omitted from the application.  After the application was denied, the casino demoted the employee to a supervisor in the poker room.

While the employee’s prior badge indicated he was a supervisor, he received a badge with the title “poker room manager” after new badges were issued.  When Gaming Commission agents inquired of the employee, he first indicated the casino did not have a poker room manager but subsequently admitted he was functioning in that capacity.  The casino received a letter from the Gaming Commission directing that the employee be removed from any position requiring a Key License.  After receipt of the letter, the employer fired the employee.

The employee filed a wrongful-discharge lawsuit based on the public policy exception to the at-will doctrine.  He alleged that he was fired for reporting his illegal employment as poker room manager.  While Mississippi’s highest court did acknowledge the McArn exception to the at-will doctrine for “wrongful discharge in violation of public policy … based on an employer’s duty not to thwart the public interest in terminating employees for speaking the truth.”  While reporting the illegal scheme of the casino to keep an employee in a position without proper licensing might otherwise have provided a basis for a wrongful termination claim, the court emphasized the employee’s participation in the illegal conduct.  Because the employee did not report the illegal scheme prior to discovery by the Gaming Commission, the employee could not make a wrongful discharge claim based on public policy.

Prospective whistleblowers need to recognize the importance of legal advice to maximize recovery and minimize the risk of reprisals when disclosing illegal conduct by an employer.  An experienced qui tam lawyer can guide employees through the process of blowing the whistle.  If you have evidence of illegal activity or fraud by your employer, you are invited to contact the experienced Qui Tam Attorneys at Barrett Law to learn how we can help.  Our Mississippi Whistleblower Lawyers have been representing conscientious employees throughout Mississippi for over 75 years.  We offer personalized legal representation and zealous advocacy.  We provide a free initial case evaluation so call us today at (601) 790-1505.  No Recovery No Fee!

 

 

/by

Whistleblowers Speak Out Against Alleged Wrongdoing at Veterans Hospital

Over the past few years, an alarming number of whistleblowers have filed disturbing complaints concerning the G.V. (Sonny) Montgomery Department of Veterans Affairs (VA) Medical Center, located in Jackson, Mississippi.  The allegations raise serious questions about the hospital’s management practices and ability to care for veterans.  Due to the high number of complaints, their serious nature, and their likelihood of truth, congressional hearings are being held on the matter.

The problems brewing within the VA hospital were first brought to light in 2009 thanks to a whistleblower employee.   The Office of Special Counsel, in a letter sent to the Whitehouse last year, said that the initial 2009 report by a whistleblower alleged that the staff failed to properly sterilize and clean medical equipment that is routinely reused, such as scalpels and bone cutters.  The VA investigated the case and substantiated many of the allegations concerning a lack of adequate cleaning and sanitizing.  It vowed to take steps to correct the problem.

Less than two years later, however, a whistleblower employee named Gloria Kelley, who chose to identify herself, claimed the problems at the VA persisted.  Ms. Kelley worked in the Sterile Processing Department and stated that the incorrect procedures placed both employees and patients at risk.  Though her complaint was referred to the VA for investigation, they did not interview her.  The VA stated that it did not substantiate the allegations, but the Office of Special Counsel felt that the VA’s conclusion was unreasonable.

Since that time, many more whistleblowers, comprised of a diverse group of at least seven former and past employees, have made a variety of allegations concerning patient care. This past November, a congressional hearing was held wherein two whistleblowers described a shocking culture of negligence within the hospital system.

The hearing was held by the House Veterans Affairs’ Subcommittee on Oversight & Investigations.  Two whistleblowers provided key testimony: Dr. Phyllis Hollenbeck, M.D., a former physician of family medicine at the facility, and Dr. Charles Sherwood, M.D., the former chief of ophthalmology at the VA hospital.  Both doctors had complained to the Office of Special Counsel concerning misdiagnoses, poor sterilization, understaffing, and other management practices that jeopardized patient safety.

Dr. Hollenbeck said that a high number of unsupervised nurse practitioners outnumbered the doctors by a ratio of three to one.  The lax attitude allowed these nurse practitioners to prescribe narcotics without physician oversight and absent the required Drug Enforcement Administration registration numbers.  This practice was in violation of numerous federal and state laws as well as the VA’s own regulations.  Hollenbeck said that veterans were frequently misdiagnosed due to the shortage of physicians and the frequency with which nurse practitioners did the job, causing them to suffer needlessly and, at times, die.

Dr. Sherwood, who worked at the VA for thirty one years, felt the VA’s performance based model for senior executive services has led to an emphasis on pay and job security, which comes at the expense of the safety of patients.  The performance based model has recently been scrutinized by congress.

Other evidence of a culture of neglect emerged during the hearing.  One poignant story concerned a patient who was also a VA employee.  This patient never saw a physician for over two years, despite repeated requests.  He was seen solely by nurse practitioners.  It took a cancer diagnosis and removal of his entire stomach to finally see a doctor, and then the doctor refused to provide him with leave from work, resulting in his termination from the VA.

The VA hospital has refused to comment on specific cases but has stated that it is reviewing the findings of the Office of Special Counsel and remains dedicated to its mission of providing high quality care to veterans.

Since 1936, Barrett Law PLLC has protected Mississippi’s brave whistleblowers in their quest to stop illegal and unethical behaviors. Under Whistleblower Protection Act, whistleblowers are protected from retaliation and can be rewarded for shedding light on unlawful practices.  To stop workplace injustice, call us today at 1 (601) 790-1505 to schedule a free initial consultation.

/by

Johnson and Johnson Settles Massive Lawsuits with Huge Payouts to Whistleblowers

Johnson & Johnson, one of the nation’s oldest and one of the world’s largest companies, has recently settled a massive series of lawsuits involving allegations that Johnson & Johnson, through two of its subsidiaries, engaged in marketing drugs for unapproved uses and giving kickbacks to physicians and nursing homes.  Johnson & Johnson will pay a total of $2.2 billion in damages and fines and damages in both civil and criminal cases.  Criminal fines amount to $485 million, and $1.72 billion will be allocated to civil settlements with both the federal government and several states.  The global settlement is one of the largest health care fraud settlements in the history of the United States.

Allegations against Janssen Pharmaceuticals, one of Johnson & Johnson’s subsidiaries, regarding Risperdal spanned a course of conduct over the years 1999 through 2005.  Johnson & Johnson, through its subsidiary, promoted the use of Risperal to treat specific individuals and conditions for which the drug had not been FDA-approved.  During the time period, Risperdal was approved for use only to treat schizophrenia.  However, Risperdal was improperly promoted for use treating behavioral problems in elderly dementia patients, including anxiety, agitation, and depression.  Its use with this population was promoted, despite Johnson & Johnson’s awareness that Risperdal posed increased health risks to elderly patients, including stroke.  It was also improperly promoted for use treating children suffering from conduct disorders, as well as in treating children with attention deficit hyperactivity disorder.  This, too, was despite Johnson & Johnson’s awareness that Risperdal posed an increased health risk to children, including risk of increased hormone levels.  Finally, Risperdal was improperly promoted for use in treating conduct disorders in individuals with development disabilities.  Allegations involving Risperdal also included that Johnson & Johnson, through Janssen, violated the federal Anti-Kickback statutes by making illegal payments to health care providers and long-term care pharmacy providers for promoting the aforesaid uses of Risperdal.

With regard to Invega, a drug approved only for treatment of schizophrenia and schizoaffective disorder, allegations included that Johnson & Johnson, and Janssen Pharmaceuticals, marketed it for off-label uses from 2006 through 2009.

The allegations also include that the company paid kickbacks to Omnicare, Inc., the largest pharmacy in the United States.  It specializes in dispensing drugs to nursing home patients.  The kickbacks were designed to induce Omnicare and its consultants to encourage the use of Risperdal by nursing home patients.

Other allegations include that Johnson & Johnson, through another of its subsidiaries—Scios, Inc.—cause false and fraudulent submission of claims to federal health care programs related to the drug Natrecor.  Natrecor is used to treat severe heart failure.  Johnson & Johnson, through Scios, Inc., marketed the drug for use with patients with less than severe heart failure, which use was not scientifically supported.

The civil settlement includes damages for violations of the federal False Claims Act related to Risperdal, Invega, and Natrecor.  Johnson & Johnson, through Janssen Pharmaceuticals, will pay $1.391 billion to resolve the False Claims Act allegations related to Risperdal and Invega and $184 million to resolve the False Claim Act allegations related to Natrecor.  The company will also pay $149 million to resolve the kickback allegations related to Omnicare, Inc.

The massive settlement includes damages for whistleblower in three states.  Whistleblowers in Pennsylvania will receive $112 million.  Whistleblowers in California will receive $28 million. And, whistleblowers in Massachusetts will receive nearly $28 million.

As part of the settlement, Johnson & Johnson’s subsidiary, Janssen Pharmaceuticals, has also agreed to plead guilty to two counts of introducing a misbranded drug, Risperdal, into commerce, which is a violation of the Food and Drug Act.

Barrett Law PLLC has a long history of representing individuals in whistleblower cases.  We have been advising clients as to their rights and helping them through all variety of whistleblowing matters for 75 years.  Barrett Law PLLC will be there to help you, too. Contact us today at (601) 790-1505 to schedule an initial consultation.

/by

New Concerns Raised About Staffing at G.V. Montgomery VAMC in Jackson, Mississippi

Over the span of the past several years, beginning in 2009, serious complaints about the management of G.V. Montgomery Veterans Affairs Medical Center located in Jackson, Mississippi, have surfaced.  The issue boiled over earlier this year when, in March, the United States Office of Special Counsel sent a letter to the White House indicating that the Office of Special Counsel had found a pattern of problems at G.V. Montgomery Veterans Affairs Medical Center.

The United States Office of Special Counsel is an independent federal agency responsible for receiving whistleblower complaints and prosecuting claims under the Whistleblower Protection Act.  It received the complaints in question.  The Office of Special Counsel conducted interviews and ultimately issued the letter to the White House mentioned above.  The complaints involved a wide array of issues, from improper sterilization practices, poor staffing, and missed diagnoses.  Furthermore, the complaints indicated that these issues occurred over a lengthy span of time—six years.

The first of the complaints, dating to 2009, involved allegations that the VAMC failed to properly sterilize equipment.  In 2011, another employee made allegations that sterilization workers were not following proper procedure, including wearing protective clothing.  In 2012, a primary care doctor made allegations that nurses were prescribing medications that they were not authorized to prescribe.  Dr. Phyllis Hollenbeck also complained that, because of inadequate physician staffing in the primary care unit, nurses were providing care that they were not licensed to provide.  Finally, in 2013, a retired ophthalmologist complained that a former radiologist at the VAMC regularly marked images as read when, in fact, they were not.

In response to the whistleblowers’ complaints and the letter from the Office of Special Counsel, the United States Department of Veterans Affairs opened an investigation.  The public disclosure of the details of the complaints by the Office of Special Counsel, which was highly unusual, also lead to an outcry by patients at the VAMC.   The VAMC and the Department of Veterans Affairs attempted to assuage concerns by holding open meeting with patients on April 3, 2013.

Earlier this year, Joe Battle, the director of G.V. Montgomery Veterans Affairs Medical Center, hired a new assistant director, who started in May.  In June, Mr. Battle also issued statements indicating that he would be recruiting a new chief of staff and nurse director.  However, despite his attempts to remedy the problem, one of the key whistleblowers—Dr. Hollenbeck—indicated that the VAMC remains seriously understaffed.  Dr. Hollenbeck’s continued concerns also came amidst statements from Representative Jeff Miller of the House Committee on Veterans Affairs that G.V. Montgomery Veterans Affairs Medical Center needing to be taking more aggressive action to remedy problems plaguing it.

Earlier this month, the Department of Veterans Affairs issued findings that G.V. Montgomery Veterans Affairs Medical Center did not have adequate physician staffing in its primary care unit, leading to nurses being responsible for too many patients.  The findings also suggested that further investigation may be necessary.

Although it does not appear that the whistleblowers in this situation suffered retaliation by G.V. Montgomery Veterans Affairs Medical Center for voicing their complaints, such is not always the case.  Unfortunately, whistleblowers often face retaliation, including termination, harassment, demotions, and the like.  There are federal laws preventing this type of retaliation if you are a federal employee.  Certain protections for private employees also exist in Mississippi.

If you are an employee and find yourself in a situation in which you have voiced or believe you need to voice complaints about practices by your employer and are facing retaliation or have concerns about potential retaliation, Barrett Law, PLLC can help you understand your rights and the protections to which you may be entitled.  We have a long history of protecting the rights of whistleblowers.  Contact us today at (601) 790-1505 to schedule an initial consultation.

/by