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This week the Fifth Circuit Court of Appeals in New Orleans will hear a case from El Paso, Texas that will determine the reach of  Texas anti-retaliation laws that protect nurses who refuse to obey directives that jeopardize patient safety.  Specifically, do these legal protections extend to Texas nurses when the patient happens to be located across state lines?

I am proud to represent two registered nurses: Gloria Almeida and Irma Quiñonez.     Almeida and Quiñonez worked for the same employer, Fresenius Medical Care, in El Paso for 24 and 20 years respectfully.   They are nephrology nurses, which mean they care for patients diagnosed with end stage renal (kidney) disease.   They provide care and compassion to both patients and their families in the most trying of circumstances.

Almeida and Quiñonez had outstanding employment histories, having no disciplinary history and only excellent performance evaluations during their long careers.  Yet they quickly lost their jobs after refusing to comply with an order that they believed could jeopardize a patient’s safety.

Almeida and Quiñonez allege in their lawsuit that a supervisor directed them to provide home hemodialysis training to a patient in Las Cruces, New Mexico.   While most dialysis patients have their treatments in a dialysis facility with trained nurses present, a patient can opt to receive dialysis treatment at home administered by only a family member.   These family members need to be trained by experienced professionals on how to operate the dialysis machinery, and what steps to take if problems occur with the patient or the machinery.   A wrong decision based on poor training can mean life or death for the patient.   The dialysis machine used in a dialysis facility is very different than the one used by patients at home.  Both Almeida and Quiñonez objected because their experience and training was with the dialysis machines used in dialysis facilities, not with the in-home machines.   They felt that they lacked the proper training and experience required by both state nursing regulations, as well as by company policy, to train family members.    Despite these objections, the company continued with the directive and promptly issued Almeida and Quiñonez first and second reprimands, followed by a termination due to the alleged insubordination.

Almeida and Quiñonez filed suit alleging violations of Texas nurse anti-retaliation statutes (Texas Occupations Code §§301.352, 301.4025(b) and 301.413), which prohibit retaliation again nurses who report and/or refuse to engage in practices that the nurse has a reasonable cause to believe exposes patients to a substantial risk of harm, or would constitute grounds for reporting the nurse to the Texas Board of Nursing.

Fresenius asked the trial court to dismiss the case alleging that it was not subject to these Texas laws because the patient care in question occurred outside of Texas.    El Paso federal district judge David Briones agreed, dismissing the lawsuit.

Almeida and Quiñonez have appealed their case to the Fifth Circuit Court of Appeals.  Their appeal is being handled by John P. Mobbs, one of the best appellate attorneys in the state. The Fifth Circuit is a very conservative, pro-employer court, and the odds are against these nurses.  But this case is too important not to appeal.  This court’s decision will not only decide the fate of Almeida and Quiñonez, but also every Texas nurse working  along the borders with neighboring states and treating patients across state lines.  Almeida and Quiñonez are Texas nurses licensed by the Texas Board of Nursing and are subject to its rules and regulations.  They worked in Texas.  Their employer was located in Texas.  They were terminated in Texas.  The Fifth Circuit will determine if the protections of Texas statutes meant to protect Texas nurses and promote patient safety ends once a nurse crosses state lines to care for a patient.  This case will have an impact, in my opinion, on not only the protection of Texas nurses, but on the care of patients who depend on nurses voicing their opposition to dangerous or unsafe directives by healthcare employers.

In the end, the commitment and compassion of nurses do not end when they cross state lines.  Neither should their legal protections.

Primum non nocere.   “First, Do No Harm”

-part of the Hippocratic oath

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