New Whistleblower Retaliation Opinion

In Romeka v. RadAmerica II, LLC, a new Maryland Supreme Court opinion, a radiation therapist, sued her former employers, including names we know like MedStar and Helixcare Medical Group.

The basis for her lawsuit was that she was fired and she was fired because she was a whistleblower under the Maryland Health Care Worker Whistleblower Protection Act (HCWWPA).

The circuit court granted summary judgment in favor of the employers, which was affirmed by the Appellate Court of Maryland. She then petitioned for a writ of certiorari, which was granted by the Supreme Court of Maryland.


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Explanation of the HCWWPA

Before we get into the case, let’s talk about the HCWWPA. This law aims to protect employees in healthcare settings from adverse employment consequences when they raise health and safety concerns in the workplace.

The statute aims to foster a safe and compliant healthcare environment by empowering health care workers to act as whistleblowers without the fear of losing their jobs, facing demotions, or suffering other negative employment consequences.

Motivation Behind the HCWWPA

The motivation behind the HCWWPA is multifold. Firstly, it recognizes that health care workers are often the first to witness or become aware of actions that may compromise patient safety or violate laws and regulations. So you want people on the line being able to report safety risks to patients or employees with risk of getting fired for it.

Secondly, it acknowledges that workers may hesitate to report such incidents if they fear retaliation from their employers. By providing legal protections for these workers, the HCWWPA aims to encourage more reporting of unsafe or illegal practices.

The act represents a balance of interests, attempting to protect the public and improve healthcare outcomes while also providing a legal framework under which employers can operate. You do not want people getting fired for reporting safety problems. But you also do not want people hiding behind manufactured “there is a safety problem” when they should be fired.

How to Win This Case Under the HCWWPA

To prevail under the HCWWPA, a plaintiff must prove that but for their protected disclosure, the employer would not have taken the adverse personnel action. This means that the plaintiff must establish a causal link between their protected disclosure and the adverse employment action.

This is not easy in the real world, right?  It is hard to discern why someone made the decision they made.  So proving but-for causation can be challenging since employers do not usually send around emails saying, “Hey, let’s fire this whistleblower for her whistleblowing activities.”

Facts of Romeka v. RadAmerica II, LLC,

The appellant, who had served as a licensed radiation therapist for over 17 years and held the position of chief radiation therapist for 15 of those years, found her employment in jeopardy.

There were a lot of nickel and dime reasons why the defendants claim they fired the plaintiff. But the big reason for the firing is apparently the allegation that plaintiff allegedly falsified medical records, which is a big deal, obviously. The issue arose during a routine peer review  where it was discovered that a patient had undergone treatment without a completed and signed consent form in their Electronic Medical Records (EMR).


The treatment had been administered by the plaintiff who, when questioned about the missing consent form, unilaterally altered the EMR. She falsely indicated that the consent form had been signed and uploaded prior to the commencement of treatment by marking “Yes” on the patient’s initial weekly chart check. Additionally, she backdated the patient’s first weekly chart assessment, marking it as complete.

The plaintiff saw it differently. She said she input into the system that she had obtained a patient’s consent but lost the physical form.

Finally, during a treatment session, she triggered an alarm on the TrueBeam radiation machine.  The defendant said she was putting people at risk.  The plaintiff’s argument was that having previously raised safety concerns about the machine, her complaint was ignored, she was wrongly accused of crashing the machine.

A meeting was scheduled which she says she thought was to address her concerns.  But rather than addressing the machine malfunction and safety issues the appellant raised, she got fired.

For what it is worth, it is striking that this woman was the chief radiation therapist.  You do not get that job by being incompetent.

Court’s Opinion

The appellant argued that summary judgment is not the appropriate avenue for a trial court to give weight to specific facts while ignoring others.  Her lawyers reasoned that when determining if a factual dispute exists at the summary judgment stage, all inferences should be resolved against the party making the motion for summary judgment, even if the core facts are not disputed. So, in a case like this where everything hinges on motive or intent, the court should not grant summary judgment.

The court saw it differently.  Plaintiff did not put up any evidence to refute the defendants facts.  This means there is no dispute of material fact. Accordingly, the court found that upon review of all relevant facts presented during summary judgment proceedings, the defendants had valid reasons unrelated to any alleged protected disclosure for terminating the appellant’s employment.

Law to Pull Out of This Case

In this case, the Supreme Court of Maryland clarified that plaintiffs can establish but-for causation through the McDonnell Douglas burden-shifting framework. Under this framework:

  1. Prima Facie Case: The plaintiff must present evidence showing that they engaged in protected activity under the HCWWPA; their employer took adverse action against them; and there is a causal relationship between their protected activity and the adverse employment action.
  2. Employer’s Nondiscriminatory Reason: If the plaintiff establishes a prima facie case, then it shifts the burden to the employer to provide evidence of a legitimate nondiscriminatory reason for their employment action.
  3. Pretext: If an employer provides a legitimate reason for its action, then it falls back on the plaintiff to show that this reason is merely pretextual and that retaliation was actually at play.

If you are an employment lawyer, you have seen all of this before but it is laid out nicely here.

But-For Causation

The other point of interest is that Maryland courts will use a “but-for” causation criteria for determining the motivation for the termination.

What is But For Causation

“But-for” causation is a legal standard used to establish a direct link between an action and its consequences. In other words, “but-for” the defendant’s action, the result would not have occurred. This standard is often used in both criminal and civil law to determine liability or fault.

For example, in a wrongful termination case like this,  if this is the standard a plaintiff must show that “but-for” their whistleblowing activity, they would not have been fired. If the employer can show that they had other valid reasons for the termination that would have led to the same action regardless of the protected activity, the “but-for” causation standard is not met, and the employer may not be held liable.

The “but-for” test asks whether the harm would have occurred absent the conduct in question. If the answer is “no,” then the conduct is a “but-for” cause of the harm. It is a way to clarify the direct cause-and-effect relationship between an action and its outcome, and it serves as a threshold that must be crossed to establish liability.

What the Court Found

The plaintiff pushed back on this as the test but the court was clear that Section 1-506 establishes a “but-for” causation criterion.

The court said that a valid defense exists if the personnel action was based on reasons other than the employee’s exercise of protected rights under this subtitle. In simpler terms, even if the employee did engage in protected activities, the employer will still win the case if they can demonstrate that the same employment action would have been taken regardless of the employee’s protected behavior.