WisBar News: Medical Intern’s Retaliation Claims Not Covered by Health Care Worker Statute:

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  • Medical Intern’s Retaliation Claims Not Covered by Health Care Worker Statute

    An unpaid intern at the Medical College of Wisconsin complained that she was fired in retaliation for reporting potential ethics violations. However, an appeals court majority upheld a ruling that she was not a protected "employee."

    Joe Forward

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    April 2, 2013 – The state’s “health care worker protection” statute did not protect an unpaid intern who was fired from the Medical College of Wisconsin after reporting potential medical ethics violations, a state appeals court has ruled.

    In August 2008, doctoral candidate Asma Masri was an unpaid “psychologist intern” working 40 hours per week in a transplant surgery unit of a Milwaukee hospital. Three months later, she met with Medical College official to report potential ethics violations.

    Shortly after making the report, Masri’s internship was terminated. She filed a retaliation complaint with the Equal Rights Division (ERD) of Wisconsin’s Department of Workforce Development, asserting a violation of Wis. Stat. section 146.997.

    That provision protects health care employees from disciplinary action if they report, in good faith, that a health care facility or provider has violated clinical or ethical standards.

    ERD dismissed Masri’s complaint on the ground that she was not an “employee” protected by the statute. An administrative law judge and the Labor and Industry Review Commission (LIRC) affirmed. The circuit court affirmed LIRC’s decision.

    In Masri v. LIRC, 2012AP1047 (April 2, 2013), the District I Wisconsin Court of Appeals affirmed the circuit court by a 2-1 majority, concluding that LIRC’s decision to exclude interns from the category of protected health care “employees” was reasonable.

    “In short, the statute does not permit non-employees to file a complaint for retaliation for filing a protected report,” wrote Judge Kitty Brennan for the two-judge majority.

    The majority rejected Masri’s claim that she was an employee.

    “LIRC has consistently looked to how an individual is compensated for his or her work when determining whether an individual is an employee, requiring that there be some tangible benefit received apart from salary,” Judge Brennan wrote.

    An intern could receive a tangible benefit, Brennan explained, but Masri did not receive one in this case. The majority rejected the claim that she received a tangible benefit in the form of office space, networking opportunities, and a promise of health care.

    Judge Ralph Adam Fine dissented.

    He said the dominant purpose of the state’s health care worker protection statute is to prevent health care providers and facilities from using retaliation to “keep hidden their dirty linen,” and noted that “hiding health-care dirty linen is widespread.”

    Judge Fine also highlighted the high numbers of unpaid interns working in the U.S., close to 500,000, while arguing that pay or tangible benefits should not be a prerequisite to employment protections under Wis. Stat. section 146.997.

    “Sadly, the agency’s crabbed reading of the statute exiles health-care interns beyond the pale of the statute’s protection even though they may have critical information to safeguard patients,” Judge Fine wrote.

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