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HomeMy WebLinkAbout2011-1305 (2) CLOYD GATRELL, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : CARLISLE REGIONAL MEDICAL : CENTER, CARLISLE HMA, LLC, : INDIVIDUALLY AND d/b/a CARLISLE : REGIONAL MEDICAL CENTER, : CARLISLE HMA, INC., INDIVIDUALLY : AND d/b/a CARLISLE REGIONAL : MEDIAL CENTER, NEW JERSEY/ : PENNSYLVANIA EM-I MEDICAL : SERVICES, P.C., AND EMCARE, INC., : DEFENDANTS : 11-1305 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFF’S COMPLAINT BEFORE GUIDO, J., EBERT, J. AND MASLAND, J. OPINION AND ORDER OF COURT Masland, J., January 26, 2012:-- Before the court are the Preliminary Objections filed by Carlisle Regional Medical Center; Carlisle HMA, LLC, Individually and d/b/a Carlisle Regional Medical Center (collectively CRMC), and New Jersey/Pennsylvania EM-I Medical Services, P.C.; and EmCare, Inc. (collectively EmCare) to the Complaint filed by Plaintiff, Cloyd Gatrell. After briefing by the parties and argument en banc, we now overrule all preliminary objections in accordance with the following opinion and order of court. I. Introduction Cloyd Gatrell (Plaintiff) filed a complaint on April 19, 2011 against the above-named Defendants arising from his termination of employment. He alleges 11-1305 CIVIL TERM violations of the Whistleblower Law and the Medical Care Availability and Reduction of Error Act (MCARE) against all Defendants, tortious interference with contract against Carlisle Regional Medical Center (CRMC), and wrongful discharge against New Jersey/Pennsylvania EM-I Medical Services, P.C. and EmCare, Inc. (EmCare). CRMC and EmCare filed separate timely preliminary objections to Plaintiff’s complaint. CRMC objects to the following: 1) Plaintiff failed to state a claim upon which relief may be granted for violation of the Whistleblower Law because Plaintiff was not an employee of CRMC as defined by the Whistleblower Law; 2) Plaintiff failed to state a claim upon which relief may be granted for a violation of MCARE; 3) Plaintiff failed to allege sufficient facts to support an award of punitive damages as a matter of law; and, 4) alternatively, Plaintiff’s request for reinstatement, back wages, and fringe benefits should be dismissed. EmCare presents the following objections: 1) Plaintiff’s Whistleblower Law violation claims against EmCare Defendant are legally insufficient and should be dismissed; 2) Plaintiff’s claims under MCARE are legally insufficient and should be dismissed; and, 3) Plaintiff’s wrongful discharge claim against EmCare is legally insufficient and should be dismissed. II. Facts Plaintiff is a medical doctor licensed to practice medicine in Pennsylvania. In November 2006, he began working at the CRMC Emergency Room, where he was employed as a physician. In 2008, EmCare contracted with CRMC to supply the hospital with emergency physicians. On May 1, 2008, Plaintiff entered into -2- 11-1305 CIVIL TERM an Employment Agreement with one of the EmCare entities to act as a physician at CRMC. The agreement specifically provided a termination policy, stating: The employer and employee hereby agree that during the term of this Agreement, and any extensions hereof, this Agreement and the employment of the Employee may be terminated and the Employee’s compensation shall be measured to the date of such termination: (i) at will by either party with 90 days notice; (ii) immediately by mutual consent of both parties; or (iii) immediately upon the Employer providing written notice to the Employee upon the occurrence of any of the following events. Compl. Ex. A (emphasis added). Relevant here, one of the events justifying immediate termination was, “[i]n the event that the appropriate authorities of a hospital at which Employee is providing services request that Employee no longer provide services at the hospital.” Compl. Ex. A. During the time Plaintiff practiced medicine at CRMC, his wife was employed as a registered nurse at the same hospital. Plaintiff contends that during their employment at CRMC, both he and his wife were vocal advocates for patient safety. In February 2008, Plaintiff and his wife met with Nathan Staggs, Chief Executive Officer of CRMC, to report concerns about inadequate nurse staffing at the hospital. At Mr. Staggs’ request, Plaintiff’s wife drafted a letter which reported that the hospital was not staffed to give the patients adequate care and obtained over 100 signatures on the letter. On March 24, 2008, Plaintiff again met with Mr. Staggs to present comparative data showing that other hospitals used a staffing model that produced better nurse staffing than CRMC, and in April of that year, Plaintiff presented this data to the President of the Medical Staff. On May 6, 2008, -3- 11-1305 CIVIL TERM Plaintiff’s wife voiced her concern about nurse staffing in a meeting with the HMA Regional Vice President. Later that month, Plaintiff presented his comparative data in a meeting of the Medical Staff, and the President of the Medical Staff directed Plaintiff to hold physician-nurse meetings in order to get suggestions on how to improve the staffing and support for nurses. In September 2008, Plaintiff submitted a report to the President of the Medical Staff regarding these physician-nurse meetings. He reported that during these meetings, the nurses voiced concern over inadequate staffing at the hospital. On September 18, 2008, Plaintiff’s wife was terminated as a nurse at CRMC, allegedly due to events that occurred two days prior to the termination regarding a particular patient and the patient’s telemetry order. However, Plaintiff contends that his wife’s termination was due to her “personal efforts on behalf of patient safety” and his own acts regarding “nurse staffing, practices and patient safety implications.” Compl. at ¶25. Following the termination of his wife’s employment, Plaintiff continued to be employed at CRMC through EmCare and continued to raise concerns about patient safety and nurse staffing at the hospital. In October 2008, Plaintiff reported the nurses’ concerns over nurse staffing and its effect on patient safety to the Medical Executive Committee, and also wrote to the Chair of the Performance Improvement Committee regarding telemetry orders which were overlooked and delayed. In this letter, Plaintiff referenced the termination of his wife, and noted that in the incident that allegedly led to his wife’s termination, the doctor who gave the telemetry order was never notified as the Patient Safety -4- 11-1305 CIVIL TERM Plan requires for an error, incident, or event. Additionally, neither the patient nor the family of the patient were notified, which is required for a serious event under the Patient Safety Plan and MCARE. As a result of this letter, Mr. Staggs, the CEO of CRMC, made a physician decorum complaint against Plaintiff, alleging that the letter was a breach of physician decorum. The President of the Medical Staff at CRMC, however, determined that no corrective or disciplinary action was warranted against Plaintiff. The Plaintiff further alleges that the President of the Medical Staff informed him that the physician decorum complaint was intended to intimidate the Plaintiff. Complaint at ¶31. In November 2008, Plaintiff wrote to a Patient Safety Officer at CRMC to report the failure of the hospital to comply with its own Patient Safety Plan, and in December 2008, Plaintiff wrote to the Chairman of the Board of Health Management Associates to report concerns about inadequate nursing staffing at the hospital. In January 2009, Plaintiff made a report to the Pennsylvania Department of Health alleging inadequate staffing posed a risk to patient safety, noncompliance with the Patient Safety Act, and the targeting and firing of whistleblowers. As a result of this report, the Department of Health conducted an unannounced investigation at the CRMC on February 13, 2009 and found the hospital to be in violation of the Patient Safety Act. The Department of Health cited CRMC with violations of the applicable state licensure regulations. Later in February 2009, Plaintiff made another report -5- 11-1305 CIVIL TERM to the Department of Health alleging that CRMC was boarding patients in the emergency room because of staff shortages in the hospital. The Department of Health conducted another unannounced investigation at the facility on March 6, 2009 as a result of Plaintiff’s report, and found that the facility did not have sufficient staff to meet the needs of the patients. CRMC was again cited with violation of the applicable state licensure regulations. In April 2009, Plaintiff met with the Chief Operations Officer of EmCare to report his patient safety concerns at CRMC and to provide a packet of documents which detailed Plaintiff’s involvement with issues of nurse staffing and support, patient safety, and violations of the Patient Safety Plan. In May 2009, Plaintiff sent the Chief Executive Officer of EmCare a detailed letter which contained the individuals within CRMC and HMA to whom Plaintiff had reported patient safety and inadequate staffing concerns as well as violations of the Patient Safety Plan. In July 2009, Plaintiff met with the current CEO of CRMC and detailed his involvement with nurse staffing and support and patient safety issues within the hospital, including his observations of violations of the Patient Safety Plan. In February 2010, Plaintiff again expressed concern over inadequate staffing to the CEO of CRMC. In July 2010, Plaintiff made a report to the Director of Human Resources for HMA regarding violations of the Patient Safety Plan in disciplinary actions, including the termination of his wife. Additionally, Plaintiff reported his concerns for patient safety as a result of inadequate staffing at CRMC to an EmCare Regional Client Coordinator. -6- 11-1305 CIVIL TERM By way of a letter dated August 9, 2010 from EmCare Director of Operations, Northeast Region, Plaintiff was advised that his employment was being terminated. The letter cited the provision of the employment agreement that stated that Plaintiff could be immediately terminated “[i]n the event that the appropriate authorities of a hospital at which Employee is providing services request that Employee no longer provide such services at the hospital.” Compl. Ex. A. III. Discussion A. Standard of Review All of Defendants’ objections amount to demurrers to the various causes of action asserted in Plaintiff’s Complaint. A preliminary objection in the nature of a demurrer challenges the legal sufficiency of a complaint. Lutz v. Springettsbury Twp., 667 A.2d 251, 253 (Pa. Cmwlth. 1995). In ruling on preliminary objections in the nature of a demurrer, all well-pleaded facts and all reasonable inferences that may be drawn from them are accepted as true. Id. However, legal conclusions and unjustified inferences are not deemed admitted. Id. A demurrer will be sustained only when the court is certain that no recovery may be had based on the pleaded facts. Id. With this generous standard in mind, we review the preliminary objections of each party in turn. B. Preliminary Objections of CRMC 1. Plaintiff’s Whistleblower Law Claim Against CRMC CRMC contends Plaintiff cannot pursue a Whistleblower Law Claim against it because he was never an “employee” of CRMC as defined by the -7- 11-1305 CIVIL TERM statute. Instead, CRMC argues Plaintiff was an employee of EmCare as evidenced by the employment agreement between Plaintiff and EmCare. We disagree. The Whistleblower Law provides that “[n]o employer may discharge, threaten, or otherwise discriminate or retaliate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee makes a good faith report to the employer or appropriate authority of an instance of wrongdoing.” 43 P.S. 1432 (a). Under the Whistleblower Law, an “employer” is defined as “a person supervising one or more employees, including the employee in question; a superior of that supervisor; or an agent of a public body.” 42 P.S. § 1422. An “employee” is defined as “a person who performs a service for wages or other remuneration under a contract for hire, written, oral, expressed, or implied for a public body.” Id. In order to establish a cause of action under the Whistleblower Law, an employee “must allege that prior to discharge, he made a good faith report of his employer’s waste or wrongdoing to the appropriate authorities, and was discharged in reprisal for that report.” Jakomas v. McFalls, 229 F. Supp. 2d 412, 421 (W.D. Pa. 2002) (emphasis added). In the absence of an employment relationship, a Whistleblower claim cannot survive.” See, e.g., Halstead v. Motorcycle Safety Found., Inc., 71 F. Supp. 2d 464, 472 (E.D. Pa. 1999). There is no dispute that CRMC is classified as a public body. The parties do dispute, -8- 11-1305 CIVIL TERM however, whether Plaintiff was an employee as defined by the Whistleblower Law. The basic inquiry in determining whether there is an employer-employee relationship is whether the person performing the work is subject to the alleged employer's control or right to control with respect to his or her physical conduct in the performance of the services for which the person was engaged. Shafer v. State Employe’s Retirement Bd., 696 A.2d 1186 (Pa. 1997). At this early stage, we conclude that Plaintiff has pleaded ample facts to establish he was an employee of CRMC. As previously recounted, Plaintiff had extensive interaction with CRMC management including the Patient Safety Officer, the President of the Medical Staff, and the CEO. After Plaintiff started to voice his concerns, the President of the Medical Staff directed him to hold physician-nurse meetings to discuss how to improve nurse staffing problems. Ultimately, it is ludicrous to think that one of a hospital’s emergency room physicians would not be subject to that hospital’s direction and control in the performance of his duties. Accordingly, we draw that reasonable inference and conclude that Plaintiff was an employee of CRMC and has therefore stated a cause of action under the Whistleblower Law. CRMC’s preliminary objection is overruled. 2. Plaintiff’s MCARE Claim Against CRMC Based on its previous position, that Plaintiff cannot state a claim under the Whistleblower Law, CRMC argues that, perforce, Plaintiff cannot state a claim -9- 11-1305 CIVIL TERM under the MCARE Law’s similar provision which extends the protections of the Whistleblower Law to healthcare workers. We disagree. The MCARE Law provides: A health care worker who reports the occurrence of a serious event or incident in accordance with subsection (a) or (b) shall not be subject to any retaliatory action for reporting the serious event or incident and shall have the protections and remedies set forth in the act … known as the Whistleblower Law. 40 P.S. § 1303.308(c). CRMC’s sole argument here is that, as a matter of law, if Plaintiff cannot maintain a claim directly under the Whistleblower Law he cannot indirectly bring that claim under MCARE. As we have already concluded Plaintiff can maintain a Whistleblower Law, we need not address the underlying reasoning of CRMC’s argument. CRMC’s preliminary objection to Plaintiff’s MCARE claim is overruled. 3. Punitive Damages CRMC argues that Plaintiff’s Complaint fails to plead sufficient facts to support an award of punitive damages. We disagree. The standard for an award of punitive damages is well-settled. As our Superior Court stated: Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others. As the name suggests, punitive damages are penal in nature and are proper only in cases where the defendant’s actions are so outrageous as to demonstrate willful, wanton or reckless conduct. The purpose of punitive damages is to punish a tortfeasor for outrageous conduct and to deter him or others like him from similar conduct. Daniel v. Wyeth Pharmaceuticals, Inc., 15 A.3d 909, 929 (Pa. Super. 2011). -10- 11-1305 CIVIL TERM Because CRMC is entitled to its day in court for a trial by jury, we reserve judgment on the ultimate facts of this case. However, in the context of this claim for punitive damages, the allegations are nothing short of outrageous. Knowingly endangering patient safety by systematically understaffing nurses demonstrates a reckless disregard for the rights of others. Professionally intimidating and ultimately terminating a physician who draws attention to patient safety violations represents conduct that should be penalized and deterred. And if all of this was done, as Plaintiff asserts, for nothing more than lucre, CRMC’s evil motive is manifest. In sum, Plaintiff has pleaded sufficient facts to justify an award of punitive damages against CRMC. CRMC’s preliminary objection is overruled. 4. Reinstatement, Back Wages, and Fringe Benefits Finally, CRMC asks us to strike Plaintiff’s requests for reinstatement, back wages, and fringe benefits on the basis that he was never employed by CRMC but by EmCare and thus it is would be impossible for CRMC to reinstate him. At this early stage of the litigation, we disagree. The Whistleblower Law provides: A court, in rendering a judgment in an action brought under this act, shall order, as the court considers appropriate, reinstatement of the employee, the payment of back wages, full reinstatement of fringe benefits and seniority rights, actual damages or any combination of these remedies. A court may also award the complainant all or a portion of the costs of litigation, including reasonable attorney fees and witness fees, if the court determines that the award is appropriate. 43 P.S. § 1425. Clearly, this is a discretionary remedy available as the court deems appropriate. It may well be that reinstatement to CRMC will be inappropriate. However, at this early stage, before the filing of an Answer or the -11- 11-1305 CIVIL TERM conducting of discovery, it is premature for the court to strike Plaintiff’s request. Accordingly, CRMC’s preliminary objection is overruled. 5. Conclusion – CRMC Based on the foregoing, the preliminary objections filed by CRMC are overruled in all respects. CRMC will file an Answer within 20 days of the entry of this opinion and order. C. Preliminary Objections of EmCare 1. Plaintiff’s Whistleblower Law Claim Against EmCare EmCare raises an argument similar to that advanced by CRMC’s discussed supra. Here, EmCare contends the Whistleblower Law is inapplicable because it only protects employees who “made a good faith report of his employer’s waste or wrongdoing ….” 43 P.S. §1422. EmCare argues that Plaintiff reported the wrongdoing of CRMC, not EmCare, and states that there are no allegations of EmCare’s misconduct. We disagree. Plaintiff avers that he made several formal reports of patient safety violations occurring at CRMC. Plaintiff further avers that EmCare knew his termination was in retaliation for his reporting of safety violations. With the generous demurrer standard in mind, we conclude that Plaintiff has pleaded sufficient facts to make out a claim under the Whistleblower Law against EmCare. EmCare’s preliminary objection is overruled. 2. Plaintiff’s MCARE Claim Against EmCare EmCare presents two arguments in support of its contention that Plaintiff cannot maintain a claim under MCARE: (1) because EmCare is not a medical -12- 11-1305 CIVIL TERM facility; and (2) because Plaintiff’s general reports regarding patient safety were not reports of “serious occurrences” or “incidents” as defined by statute. We disagree. MCARE contains a reporting requirement that reads: A health care worker who reasonably believes that a serious event or incident has occurred shall report the serious event or incident according to the patient safety plan of the medical facility unless the health care worker knows that a report has already been made. The report shall be made immediately or as soon thereafter as reasonably practicable, but in no event later than 24 hours after the occurrence or discovery of a serious event or incident. 40 P.S. § 1303.308(a) (emphasis added). The law defines “medical facility” as: “[a]n ambulatory surgical facility, birth center, hospital or abortion facility.” 40 P.S. § 1303.302. A strict reading of the statutory definition of medical facility would appear to exclude EmCare. However, one of the stated policy goals of the MCARE Act is that “[e]very effort must be made to reduce and eliminate medical errors by identifying problems and implementing solutions that promote patient safety.” 40 P.S. § 1303.102. Furthermore, the anti-retaliatory provisions in § 1303.308(c) are in no way limited to medical facilities. Thus, we are persuaded by Plaintiff’s argument that, to be effective, the MCARE Act’s prohibition of retaliation must extend to all health care workers at a medical facility. In light of the over-arching policy objective of the Act, the compelling prohibition on retaliation and the early stage of the instant litigation, we decline to determine that it is a certainty that EmCare is not a medical facility. At this point, the full extent of the interrelations -13- 11-1305 CIVIL TERM 1 between EmCare and CRMC are unclear. Therefore, we will not sustain EmCare’s objection on this ground. EmCare next argues Plaintiff fails to state a claim under MCARE because his general reports about his concerns with nurse staffing and patient safety did not relate to a “serious event” or “incident” as defined by statute. As previously discussed, MCARE extends the protections of the Whistleblower Law to “[a] health care worker who reports the occurrence of a serious event or incident ….” 40 P.S. § 1303.308(c). The MCARE law defines “serious event” as: An event, occurrence or situation involving the clinical care of a patient in a medical facility that results in death or compromises patient safety and results in an unanticipated injury requiring the delivery of additional health care services to the patient. The term does not include an incident. 40 P.S. § 1303.302 (emphasis added). The law defines “incident” as: An event, occurrence or situation involving the clinical care of a patient in a medical facility which could have injured the patient but did not either cause an unanticipated injury or require the delivery of additional health care services to the patient. The term does not include a serious event. 40 P.S. § 1303.302 (emphasis added). Plaintiff avers that he reported the understaffing problems to EmCare and that these problems were endangering patients. EmCare asks us to read “occurrence” narrowly to only apply to discrete events. We decline to do so. In addressing these preliminary objections, it would be imprudent and premature 1 to view the relationship between EmCare and CRMC in either a cavalier or callous fashion. We do note, however, if the claims of both Defendants are accurate, arguably, no one would be responsible for the wrongs alleged by Plaintiff. Although that possibility may come to pass, it strikes us that one entity might be liable. To paraphrase Abraham Lincoln’s assessment of the Civil War, “one [defendant] must be, and both may be wrong.” Therefore, we will permit the parties to flesh out the true nature, roles and responsibilities of these entities/facilities. -14- 11-1305 CIVIL TERM Black’s Law Dictionary defines “situation,” in relevant part, as “Condition; position in reference to circumstances <dangerous situation>.” Black’s Law Dictionary, 1392 (7th ed.). We find this definition applicable here. Plaintiff informed EmCare of a dangerous situation--the perilous understaffing of nurses. Accordingly, Plaintiff did relate an “incident” to EmCare. For these reasons, Plaintiff’s MCARE claim against EmCare can go forward and EmCare’s preliminary objection is overruled. 3. Plaintiff’s Wrongful Termination Claim Against EmCare EmCare contends Plaintiff fails to state a claim for wrongful termination for two reasons: (1) his employment was subject to an employment contract; and (2) he fails to allege a clear mandate of public policy upon which to base his claim. We disagree. An employee may maintain a cause of action for wrongful termination when the discharge threatens the clear mandates of public policy. Clay v. Advanced Computer Applications, 559 A.2d 917 (Pa. 1989). However, this claim is unavailable when the terms of employment are governed by a collective bargaining agreement or other contract for a term of years. Phillips v. Babcock & Wilcox, 503 A.2d 36 (1986). The reason being, “like-situated employees are not without recourse when faced with indiscriminate discharge even when the discharge violates public policy.” Id. at 37. Here, the employment relationship between the Plaintiff and EmCare was governed by a written employment agreement. However, unlike a collective bargaining agreement the agreement provides no recourse for a wrongful -15- 11-1305 CIVIL TERM discharge. Nor does it provide for employment for a set term of years. Instead, it empowers EmCare to terminate the Plaintiff immediately “[i]n the event that the appropriate authorities of a hospital at which Employee is providing services request that Employee no longer provide services at the hospital.” Compl. Ex. A. Accordingly, this case is distinguishable from Phillips and Plaintiff’s wrongful termination claim is not precluded by the existence of the employment agreement. Next, we must determine whether Plaintiff’s discharge threatens clear mandates of public policy. Our Superior Court stated: To state a public policy exception to the at-will-employment doctrine, the employee must point to a clear public policy articulated in the constitution, in legislation, an administrative regulation, or a judicial decision. Furthermore, the stated mandate of public policy, as articulated in the constitution, statute, or judicial decision, must be applicable directly to the employee and the employee's actions. It is not sufficient that the employer's actions toward the employee are unfair. Hunger v. Grand Cent. Sanitation, 670 A.2d 173, 176 (Pa. Super. 1996) (citation omitted) (emphasis added). As quoted previously, it is an expressed policy of MCARE that “[e]very effort must be made to reduce and eliminate medical errors by identifying problems and implementing solutions that promote patient safety.” 40 P.S. §1303.102. Further, the mandatory reporting of serious occurrences and incidents coupled with the extension of Whistleblower Law protection of healthcare workers evidence a statutorily articulated public policy to protect employees such as the Plaintiff. Accordingly, the Plaintiff has articulated a tenable claim for wrongful discharge. EmCare’s final preliminary objection is overruled. -16- 11-1305 CIVIL TERM III. Conclusion For all these reasons, all preliminary objections filed by all Defendants are overruled. The Defendants are directed to file Answers to Plaintiff’s Complaint within 20 days of this opinion and order. ORDER OF COURT AND NOW, this day of January, 2012, the preliminary OVERRULED. objections filed by all Defendants are The Defendants are directed to file Answers to Plaintiff’s Complaint within twenty (20) days of this opinion and order. By the Court, Albert H. Masland, J. Stephen M. Greecher, Jr., Esquire For Plaintiff Christopher J. Conrad, Esquire For Carlisle Regional Medical Center and Carlisle HMA, LLC Robert M. Goldich, Esquire For New Jersey/Pennsylvania EM-I Medical Services, P.C. and EmCare, Inc. :saa -17-