“Fired for being overheard speaking to a colleague; anything I can do?”

Question: I worked as a Certified Nursing Assistant in a full-time Alzheimer’s Unit of a residential facility. One resident was acting out violently: he went after me with a rake, grabbed my arm, and threatened to hurt me. These things were reported to my managers, who told me that “This is dementia; deal with it.”

This same resident was seeking out other female residents to get them into his room. He went into the room of a very elderly woman who could not speak or move and put his hands down his pants.

I was talking about this with another co-worker when, by accident, a visiting relative of a different resident overheard me and called the police, who then showed up. At the end of my shift I gave my report, and the next day my supervisor fired me for violating patient confidentiality.

I don’t know what to do. Please help.

(City, State Not Listed)

Answer: Dear R.C.S.:       

Your question is an extremely interesting one. I think there are a few things you can do. Here are my thoughts:      

1. I think it is only fair – and helpful to you – that you acknowledge to yourself that what you did could be interpreted as a “breach of confidentiality.” Technically speaking, information about patients that came out of your mouth was somehow transmitted to people who had no legal interest in knowing that information. As you know, there are many strict laws regarding dissemination of patient information by medical facilities, and I’m confident this is at the center of what happened to you. And, too, having the police arrive at the facility no doubt was very embarrassing to the facility’s management. 

2. That said, practically speaking, I don’t think you knowingly “shared confidential information” with anyone. To my mind, there is an important distinction to be made between an intentional breach of confidentiality – such as sending information to a newspaper – and an unintentional breach of confidentiality – such as what happened here. The only person you knowingly shared this information with – your colleague – had every right to know, and you had every right to tell him or her of the danger to them, and to others.

3. In fact, the confidential patient information may have been illegally or improperly “overheard.” The fact that you were overheard by a different patient’s family member may not suggest you did anything wrong, but possibly that the family member did something wrong: they may have violated your privacy by either (i) listening to a conversation they knew was not intended to include them, (ii) being in a restricted area of the facility where they were not permitted – or expected – to be, or even (iii) lurked secretively in order to learn things they had no right to know.   

4. And, too, your employer may have been acting dishonestly, improperly or even illegally in (a) not taking steps to stop the errant behavior, (b) not taking sufficient steps to protect you or others, and/or (c) not calling the police. Looked at this way, (i) you may have been right in all you did, (ii) the other patient’s family member may not have been right in all they did, (iii) the police may have been right in all they did, and (iv) your supervisors may have done wrong in not taking the situation seriously enough. An argument exists that the facility’s supervisors may have even violated the law in not calling the police.

Indeed, a stronger argument exists that the facility’s supervisors fired you (a) as a scapegoat for their misdeeds, (b) as a cover up for their own failures, and (c) in retaliation for your expressions of concern.  

5. I strongly suggest you write a letter to the facility’s senior-most management, owners and/or Board of Directors, including these things I’ve noted above. I suggest you write a respectful letter to these people – send by Fedex, UPS or over overnight service so you can verify their receipt – and suggest that there is more than one way to view this incident, and that you deserve your job back. I also suggest you advise them of the damage this may do to your career, if not corrected, could be more than enough to hire an attorney to ask a jury of your peers in your community whether it is right that you should be treated in such a fashion for, in effect, protecting patients and others. I think that this is your best bet and, if not successful, then consider consulting an experienced employment attorney in your town or city.

Seen correctly, and expressed correctly, I think you have far more negotiating leverage than you might imagine. I hope you won’t sit back, but rather will be assertive and take your “case” to the people who can correct what’s happened to you.
I hope this is helpful. Thanks for writing in. Don’t be afraid to stand up. What you did does not seem to warrant anything like what has been done to you.

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Al Sklover

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