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Nurses and the Right to Free Speech During the Covid-19 Crises
Spiga & Associates • Apr 10, 2020
Recently there have been several incidents of nurses being fired for critical comments they made either online or in the media about their hospital’s preparedness for the Covid 19 crises. See: https://www.nytimes.com/2020/04/09/business/coronavirus-health-workers-speak-out.html
This of course raises the question of whether nurses have a right to free speech to point out dangers and wrongdoing in the workplace during the Covid-19 crises. The answer may disturb you.
The first amendment to the United States Constitution enshrines the right to free speech. However, there is no right more riddled with exceptions. One does not have the right to use “fighting words” or to threaten other people. One does not have the right to yell fire in a crowded theater or to incite a riot. One does not have the right to lie to obtain a public or private benefit. One does not have the right to use a curse word on their license plate, etc. ad infinitum. When our founding fathers wrote of free speech, they meant political speech. They were primarily concerned with preserving the ability to critique the prevailing power without fear of governmental retribution. And that is the rub, the constitution only restrains the government. It does not restrain private actors such as private hospital administrators from firing you because they do not like your online comments or a comment you may have made to a reporter or media personality. However, if you work for a public hospital you may have slightly more right to speak out, but even then you do so at your own peril.
Here is why:
Traditionally public employees had little free speech protection. As Justice Oliver Wendell Holmes Jr. famously wrote in McAuliffe v. New Bedford (1892): “The petitioner may have a constitutional right to talk politics, but he does not have a constitutional right to be a policeman.” That prevailing judicial view relaxed somewhat over the years culminating with the Supreme Court decision in the late 60’s, Pickering v. Board of Education. There, the Supreme court held that Illinois public school teacher, Marvin Pickering, had a free speech right to write to the editor of his local newspaper critical of the school board’s allocation of money.
Justice Thurgood Marshall opined: “The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees.”
However, two United States Supreme Court cases, Connick v. Myers (1983) involving Harry Connick Sr., District Attorney for New Orleans (father to the famous crooner) and Garcetti v. Ceballos (2006), involving Gilbert Garcetti, District Attorney for the County of Los Angeles, virtually eliminated public employees’ right to make any comments concerning their work or working conditions.
In Garcetti, the court declared that public employees have no free speech protection when making statements pursuant to their official duties. And that is true even if the speech blows the whistle on governmental malfeasance or corruption. So, unless there is a specific whistle-blower statute in your state even a state/government agency can fire you for exercising your right to free speech. Garcetti’s reach is expansive encouraging courts to dismiss employee free speech cases even when an employee is not making a comment related to his or her official duties. Because, based on Connick and Garcetti courts give great deference to an employer’s judgment that the employee’s inflammatory posts will impact public services by causing disharmony in the workplace or by putting the employer in a bad light.
So, the bottom line is whether you are a nurse working for a private or a public hospital the price for being a good citizen and speaking out will most likely be your job.
Carlo A. Spiga
Nursing License Defense Lawyer
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You see him or her on your television, in your professional journals, and on your home page . . . the “Poster Child.” The Physician existing on the fringe of the profession, who gets arrested for overwriting prescriptions for Schedule II substances . Their example is easy to dismiss. The average M.D. engaged in legitimate practice seemingly has nothing to worry about. This fate befalls the slacker, the greedy, the foolhardy. Don't be so sure, any M.D. who prescribes Schedule II substances as a regular part of their practice is only one adverse patient outcome away from California Medical Board and possibly criminal investigation. For example, Surgeons and Physicians practicing in Emergency Medicine, Oncology, and Pain Management, routinely write hundreds, if not thousands of prescriptions for Schedule II substances. There is no way for a Physician to control the patient’s use of controlled substances, yet a dangerous and influential myth is being propagated that a physician is a fortune teller and can predict which patients will misuse the substances provided. Further complicating the issue is the difficult ethical landscape navigated by Physicians dealing with patients presenting legitimate symptoms demanding treatment with Schedule II and III substances, but who are nevertheless, drug dependent. Long term pain management patients are at particular risk of overdose due to their high tolerances leading to increasing dosages and the difficulty in weaning them off the substances they have become dependent upon. Should a patient die or suffer an adverse outcome that is somehow connected to a prescription for a schedule II substance, a criminal and California Medical Board investigation is sure to follow. Oftentimes the investigation will be spearheaded by investigators for the California Department of Consumer Affairs working in conjunction with local law enforcement but who also work on behalf of the Medical Board of California. These investigators are sworn peace officers and have the power to arrest and working with the Attorney General or local District Attorney also have the ability to bring criminal charges against a Physician. These investigations start out invisibly with scrutiny of CURES II reports detailing a Physician’s prescription history. All patients receiving scheduled substances will be given particular attention. Soon after, the physician will receive a request for patient records, followed by a letter of investigation from a California Department of Consumer Affairs Investigator indicating that a complaint has been made and requesting an interview. They do not inform the Physician of his or her right to counsel or whether the Physician even has the right to refuse the interview. Nor do they inform him or her of their right to review the complaint. Believe it or not, one of the common mistakes Physicians make in dealing with these investigations is not taking it seriously. They will delay responding or not respond at all. Often Physicians confident in their prescribing practices will have a false sense of confidence going in to such an interview and will wing it without consulting consul. Those Physicians learn the error of that approach through hard experience. If you are facing such an inquiry. Take it very seriously, Your medical license is your most important asset. If you have an adverse patient outcome that has come to the attention of your Hospital Administration, The Medical Board of California or local law enforcement, call Spiga and Associates immediately. Because of our 25 years of experience in both Criminal and Administrative defense we are uniquely qualified to defend you and your medical license.
WHAT DO YOU DO WHEN AN INVESTIGATOR ACTING ON BEHALF OF THE CALIFORNIA MEDICAL BOARD CALLS YOU DEMANDING AN INTERVIEW?
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