Bayada must face lawsuit by fired nurse who complained about COVID safety

Nurses treat a coronavirus disease (COVID-19) patient in the ICU at SSM Health St. Anthony Hospital in Oklahoma City, Oklahoma, U.S., January 28, 2021. REUTERS/Nick Oxford
  • Ex-nurse said employees were given inadequate masks, told to hide exposure risk from families
  • Judge finds allegation of illegal conduct enough to support wrongful termination claim

(Reuters) - Bayada Home Health Care Inc has lost a bid to escape a lawsuit by a former nurse who says she was fired after complaining that employees were not given adequate protection against COVID-19 and told to conceal possible exposures to the virus from patients.

U.S. District Judge Mitchell Goldberg in Philadelphia ruled Thursday that Michelle Chiancone could go forward with a claim for wrongful termination, though he dismissed a separate claim she brought under Pennsylvania's whistleblower law.

Lawyers for Chiancone and New Jersey-based home health care provider Bayada did not immediately respond to requests for comment.

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According to her October 2020 lawsuit, Chiancone, a Delaware resident, was hired by Bayada to provide hospice and palliative home care in Pennsylvania in March 2019. Chiancone said that, when the COVID-19 pandemic began in 2020, she observed unsafe and in some cases illegal practices.

She said that the company gave nurses only three masks, which were not high-quality N95 masks, and instructed them to wear the masks only when treating certain patients.

After another Bayada nurse got COVID-19, Chancone said, the company sent out an email telling employees not to alert patients or families of possible exposure.

She said she was fired on April 7, not long after she complained to her supervisor about what she regarded as unsafe, unethical and unlawful conduct by the company.

Chancone alleged that Bayada's stated reason for terminating her was that she refused to see patients, and because she tried to get another person to falsify a patient death certificate. She said those accusations were false, and that in fact she had been fired for calling out unsafe and illegal conduct.

Chancone said that Bayada's conduct violated the federal Occupational Safety and Health Act, as well as and Pennsylvania public health statutes and common law.

She also brought a claim under the state's whistleblower law, which protects government employees or employees of publicly funded entities from wrongful termination for whistleblowing.

Goldberg said Chancone had not established that Bayada was publicly funded, as merely participating in Medicare and Medicaid was not sufficient under the whistleblower law. However, he said Chancone had a claim for wrongful termination because she had made a case that she was fired for complaining of illegal activity.

The case is Chiancone v. Bayada Home Health Care Inc, U.S. District Court for the Eastern District of Pennsylvania, No. 2:20-cv-04857.

For Chiancone: Christopher Macey of Bell & Bell

For Bayada: Thomas Collins of Buchanan Ingersoll & Rooney

Read more:

Bayada must face former employees' Medicare fraud claims - judge

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Reporting By Brendan Pierson in New York

Our Standards: The Thomson Reuters Trust Principles.

Thomson Reuters

Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at brendan.pierson@thomsonreuters.com.