S. 4086 — Patient Safety and Whistleblower Protections Act

This section establishes definitions for terms used in the Act, including (1) "communicate," with respect to health care safety information, as written or oral communications; (2) "government official" as any local, state, tribal, or federal governmental official or their staff; (3) "health care facility" as any facility providing health care services (e.g., hospitals, clinics, nursing homes, federally qualified health centers); (4) "health care practitioner" as a state-licensed or authorized individual providing health care services; (5) "health care service" as care, treatment, or procedures affecting physical or mental conditions (e.g., medical, nursing, dental, behavioral services); (6) "patient safety concern" as a communication about an issue materially affecting or potentially affecting patient health (e.g., quality of care, staffing, equipment sufficiency); and (7) "retaliation" as any adverse action against a health care practitioner that would dissuade raising patient safety concerns, including against former practitioners.

This section prohibits health care facilities from retaliating against health care practitioners for communicating patient safety concerns to (1) supervisors, colleagues, or others with authority over facility operations; (2) state oversight authorities; (3) government officials; (4) patient safety organizations (as defined in 42 U.S.C. 299b-21); (5) investigators responding to other practitioners' communications; or (6) after 90 days without significant corrective action following an initial communication under (1), (2), or (4), the news media. The section establishes a rebuttable presumption of retaliation for any adverse employment or materially adverse action against the practitioner within 180 days of such a communication. It attributes retaliation by related entities (e.g., managers, staffing companies, contractors) to the facility, which may seek indemnification; voids contractual provisions prohibiting such communications; releases practitioners from related non-competition agreements; and clarifies that it does not prohibit non-retaliatory actions or civil suits for bad-faith communications validated by independent investigation.

This section establishes civil enforcement for health care facilities that retaliate against health care practitioners for communicating patient safety concerns, including (1) individual actions allowing recovery of actual damages, attorney's fees and costs, and punitive damages up to $1,000,000; (2) class actions for practitioners at the same facility or facilities under common management or ownership, with damages of the greater of $10,000 or actual damages per named individual, the greatest of actual damages, $500,000, 1% of the facility's net worth, or 1% of a parent entity's net worth if applicable for all other class members, and attorney's fees and costs; (3) a three-year statute of limitations from the last retaliatory action; and (4) prerequisites of filing complaints with the relevant state licensing authority (and, for hospitals, the Joint Commission on Hospital Accreditation), with actions allowable after investigation completion or 180 days from filing.

This section prohibits the use of a health care practitioner's communications about patient safety concerns to draw adverse inferences about the quality of health care services provided by that practitioner in any civil or criminal professional liability action against the practitioner or their health care facility. This protection applies only to communications made prior to the filing of the action.

This section requires Medicare providers of services to establish, as a condition of participation, (1) a mechanism allowing a health care provider or practitioner to anonymously report patient safety concerns and (2) a process for investigating and addressing such reported concerns, effective one year after enactment.

This section specifies that nothing in this Act, including its amendments, limits or supersedes protections for health care providers reporting patient safety events under part C of title IX of the Public Health Service Act (i.e., Patient Safety and Quality Improvement Act of 2005, 42 U.S.C. 299b-21 et seq.) or any other federal or state patient safety reporting laws. (Thus, confidentiality and privilege protections for patient safety work product reported to patient safety organizations remain intact.)