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“You are killing me” – The parting words of Christopher Kirkpatrick (“Kirkpatrick”), a 38 year-old clinical psychologist at the Veterans Affairs (VA) facility, in Tomah, Wisconsin, who was fired after complaining to his employer that some of his patients were too “drugged” to be medically treated properly.  Kirkpatrick then went home and shot himself in the head.  This tragedy, which prompted a recent hearing before the U.S. Senate Homeland Security and Government Affairs Committee, has brought national media attention to the major problem of retaliation against whistleblowers at VA facilities across the country.

In September 2008, Kirkpatrick began working at the Tomah VA facility, after earning a doctorate degree in clinical psychology about a month before.  Kirkpatrick had experience treating veterans for post-traumatic stress disorder (“PTSD”), substance abuse and chronic pain, as an intern at another VA facility.  When he was hired by the Tomah VA facility, he was excited about the opportunities the job offered and moved from Chicago to rural Wisconsin, leaving his girlfriend behind.

Kirkpatrick soon became concerned about the care some of his patients were receiving at the facility.  They appeared to him to be overly medicated, which conflicted with his ability to treat them.  Kirkpatrick voiced his concerns in early 2009 at a staff meeting with other facility health care providers.  Instead of addressing Kirkpatrick’s concerns, the VA issued a written reprimand that: (1) cautioned Kirkpatrick about engaging in any further criticisms of the VA; (2) advised him to focus on his own work; and (3) counseled that he should avoid advising on the administration of medication as it was outside of his scope of practice.

Thereafter, Kirkpatrick wrote a letter to his supervisor stating that he and his colleagues were troubled by the way patients were being medicated.  As a result, he was summoned to a disciplinary meeting where he was fired on the spot.  The management at the VA claimed they were firing him for various infractions, including leaving early on one occasion and taking vacation/sick leave disproportionately on Mondays and Fridays.  Being terminated was apparently too much for Kirkpatrick to handle, especially where he had given up everything for the job.  After the meeting, Kirkpatrick went home and shot himself.

Kirkpatrick’s concerns about over-medication turned out to be valid.  A veteran at the Tomah VA facility died in August 2014 from “mixed drug toxicity.”  A VA investigation revealed that veterans at the Tomah VA facility were two and one-half (2 ½) times more likely to be prescribed a higher dosage of opiates than the national average, and that these patients were almost twice as likely to take these drugs in dangerous combinations with other medications.  The investigation ultimately concluded that the Tomah VA facility engaged in “unsafe clinical practices.”

Retaliation against whistleblowers is an ongoing problem for the VA and elsewhere.  The U.S. Office of Special Counsel is currently investigating 110 claims from whistleblowers in 38 states across the country.  Last year, the VA Department created a special office to investigate whistleblower retaliation claims.  Also, VA officials state they have implemented whistleblower training for managers and executives at the department and now require all employees to attend a course about whistleblower rights every other year.  Advocates have pushed strongly for the VA to include language that informs the employee of his/her right to appeal under the Whistleblowing Protection Act in its termination notices.  A VA spokesperson said that currently, termination notices are supposed to include that language, but there is lack of enforcement in this regard.  There is a bill pending in Congress to codify the requirement that VA employees be trained on whistleblower protections and which includes mandatory penalties for employers found to have retaliated against whistleblowers.

Most states have whistleblower laws to protect whistleblowers in both public and private sector jobs.  New Jersey has its own comprehensive Conscientious Employee Protection Act (CEPA) to protect whistleblowers within this state.  Hopefully, awareness and enforcement of available whistleblowers protections will increase, thereby ensuring that employees who do the right thing are not punished for it.

 

By Sally A. Sattan, Esq. and Ty Hyderally, Esq.

 

 

These articles are for informational purposes only.  They do not constitute legal advice, and may not reasonably be relied upon as such.  If you face a legal issue, you should consult a qualified attorney for independent legal advice with regard to your particular set of facts.  This newsletter may constitute attorney advertising.  This newsletter is not intended to communicate with anyone in a state or other jurisdiction where such a newsletter may fail to comply with all laws and ethical rules of that state of jurisdiction.

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