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Reporting a Health Care Employee to DOH May Result in Liability

By Carly Van Thomme, Esq.

While in many cases, those who report health care workers to the Department of Health (DOH) enjoy immunity from claims filed against them by the personnel they reported, there are some exceptions to the rule. Pursuant to Fla. Stat. § 456.073(12), there is no immunity where the reporting party committed intentional fraud or acted with malice.

Intentional Fraud Exception:

The reporting party has committed intentional fraud where he or she made a misrepresentation about a material fact that he/she knew to be false. Uche v. St. Lukes St. Vincents Healthcare, Inc., 2015 U.S. Dist. LEXIS 13846, 36 (M.D. Fla. 2015). An example of intentional fraud might be falsely reporting a health care worker for diverting controlled substances when that is untrue.

Malice Exception:

The United States Supreme Court has defined “malice” in certain situations as meaning that someone was “motivated by evil motive or intent.” Kolstad v. ADA, 119 S. Ct. 2118, 2125, 527 U.S. 526, 536, 144 L. Ed. 2d 494, 506 (1999). An example of malice might be to report a health care worker for inadequate documentation for the sole purpose of making that person’s life difficult. The information reported is not completely false; however, the reporting party is selectively reporting this health care worker but not reporting other health care workers who have made similar documentation mistakes.

Applicability:

Where these exceptions apply, a reported health care worker may be able to file a lawsuit alleging a whistleblower’s claim, a retaliation claim, a defamation claim, and/or other causes of action.