Home care company faces a lawsuit submitted by a former employee.
U.S. District Judge Mitchell Goldberg in Philadelphia, appointed to his post by former U.S. President George W. Bush, has refused to dismiss a whistleblower case filed by terminated nurse, Michelle Chiancone, involving Bayada Home Health Care Inc. The plaintiff accused the company of not providing sufficient protection against the spread of the coronavirus and trying to hide exposures from patients. She is also alleging she was wrongfully terminated because she spoke up.
According to her October 2020 lawsuit, Chiancone, of Delaware, was hired by the health care company in 2019 to administer hospice and palliative home care. When the COVID-19 pandemic commenced in 2020, she became aware of safety violations and “illegal practices.” The company allegedly provided nurses only three masks (not N95 masks) and told them to wear these “only when treating certain patients.” It also provided hand sanitizer but “kept their supply closets locked.” When one of Chiancone’s colleagues came back with a positive test, she said Bayada sent an email to its employees telling them “not to alert patients or families of possible exposure.”
Chiancone was terminated on April 7 after she voiced her concerns to her supervisor, Christopher Fein, about Bayada’s “improper response to the pandemic and her discomfort with being asked to engage in such unlawful and/or unethical behavior.” The complaint also states that the nurse “told Mr. Fein that she was uncomfortable treating patients who had been exposed to COVID-19 due to Bayada’s failure to provide adequate personal protective equipment to its staff..”
She stated Bayada’s reason for letting her go was that “she refused to see patients, and because she tried to get another person to falsify a patient death certificate.” Fein had said to her that she could not pick and choose which patients to treat and which to avoid treating. The nurse contends in her lawsuit that the accusations about falsifying the document were untrue, and she had actually been fired for “calling out unsafe and illegal conduct.”
Chancone said that “Bayada’s conduct violated the federal Occupational Safety and Health Act (OSHA), as well as and Pennsylvania public health statutes and common law.” She also brought a whistleblower claim under Pennsylvania state law. The legal standard for which the plaintiff’s claims would hold up in court indicates, “a court must (1) “tak[e] note of the elements a plaintiff must plead to state a claim; (2) identify the allegations that are not entitled to the assumption of truth because they are no more than conclusions; and (3) where there are well-pleaded factual allegations…assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.”
Goldberg rule that Chancone “had not established that Bayada was publicly funded…Medicare and Medicaid are not sufficient under the whistleblower law.” Yet, he said the plaintiff could file a wrongful termination suit because she had “made a case that she was fired for complaining of illegal activity.” Thus, this claim can move forward.
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.