A jury rendered a $1 million retaliation verdict in favor of a physician, Dr. Margarita Gormus, who was formerly employed at Greystone Park Psychiatric Hospital in New Jersey. The facility treats some patients who are violent and dangerous.

In 2018, Dr. Margarita Gormus testified as a witness in a class action that was filed after a patient was killed by another patient. Her testimony highlighted her employer's poor policies and procedures that created the environment, which resulted in the death. As a result of that class action, the hospital had to pay a large settlement and institute significant changes in the hospital's staffing and security policies.

Gormus alleged in her retaliation lawsuit that, as an act of retaliation for her testimony, her superior began assigning her twice the number of patients. Many of these patients were considered violent and dangerous, making Gormus' increased workload unsafe.

The jury found the additional, dangerous workload to be a form of retaliation.

Source: https://patch.com/new-jersey/morris/doctor-awarded-1m-after-exposing-embattled-nj-psych-facility

Commentary

Retaliation claims do not strictly require termination, demotion, reduction of hours, or decreases in duties to be successful. Any negative, adverse employment action can provide the foundation for a retaliation claim.

For example, in the case above, the physician was assigned additional duties, not fewer. However, given the violent behaviors of the patients, this excessive patient assignment was dangerous. Subjecting the physician to the danger was found to be retaliation by a jury.

In retaliation claims, timing is a critical part of the evidence. In the above case, the physician engaged in protected activity - testifying in a class action - and shortly thereafter was subjected to the increased, unsafe workload. The jury found this timeline persuasive.

Healthcare employers can manage workloads fairly by considering the following:

· Pause all assignment changes and flag for higher-level review after an employee engages in protected activity

· Never alter a workload simply because an employee engaged in protected activity

· Develop and apply a consistent, documented method for patient assignments that apply to all staff with the same roles

· Flag and review any significant assignment changes that affect a particular employee and document the legitimate reason for that assignment

· Compare workload data across all similarly-situated employees before initiating an assignment change

· Require manager and supervisors to obtain secondary, independent approval of assignment changes

· Preserve all staffing and assignment records, across all staff and departments, for review

The final takeaway is any negative employer action taken after an employee engages in protected activity can create a risk of retaliation.