A Tennessee provider must still face claims that it retaliated against a whistleblower, despite a judge throwing out the original claims.
The long-running dispute is between Murfreesboro-based National Health Corp. and one of its former nurse leaders, Mary Lea Byrd. In 2012, she filed a complaint, alleging that NHC violated the False Claims Act in numerous ways. The U.S. government declined to intervene in the case, and Byrd has now filed an amended complaint, alleging that the skilled nursing provider illegally retaliated against her whistleblowing actions, eventually forcing her to resign.
National Health Corp. — whose affiliates operate 76 skilled nursing centers — had moved to dismiss the complaint, because officials believe it was barred by the three-year statute of limitations.
However, Byrd argued that her amended claims “relate back” to the original complaint because it changed the naming of the party against whom it is asserted. After the case was unsealed in 2017, Byrd filed her amendment, naming “National Health Corp.” rather than the original NHC. Those two are loosely affiliated entities, with the latter an affiliate of and contractor to NHC.
National Health Corp. argued that its access to a copy of the original lawsuit was not enough to make it aware that this retaliation claim had been filed, a contention with which a U.S. District Court of Eastern District of Tennessee judge disagreed in late January.
“To say that an organization so closely intertwined with another would not be aware of ongoing litigation arising from a FCA claim is, at best, a stretch,” wrote Judge Pamela L. Reeves.
NHC also argues that Byrd failed to plead that she had suffered any adverse employment action. She was not fired or demoted, the company said, but instead was “constructively discharged.”
Officials did not respond to a McKnight’s request for comment on the issue.
From the March 1, 2019 Issue of McKnight's Long-Term Care News
