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Third Circuit Case Demonstrates How New Jersey’s Whistleblower Law Provides Greater Protection to Health Care Employees Than Federal Employment Law

workplace-615375__340-300x200The United States Court of Appeals for the Third Circuit, which hears appeals from decisions in the federal courts of New Jersey, Pennsylvania and Delaware, recently issued a major decision interpreting the scope of coverage of the federal Emergency Medical Treatment and Active Labor Act (“EMTALA”). As the Third Circuit explained,

[The] shift from medical emergency management to primary care treatment has resulted in a “grave financial challenge” for hospital administrators. Many of them responded to this economic pressure by engaging in a practice known as “patient dumping.” That term refers to the practice of refusing to offer emergency room treatment to indigent patients who lack medical insurance, or transferring them to other medical facilities before their emergency medical condition has been stabilized. Congress attempted to address this situation by enacting EMTALA. EMTALA imposes certain mandates on hospitals regardless of whether a patient who presents to an emergency room has the ability to pay for treatment.

EMTALA requires hospitals to first examine each patient to determine whether an emergency medical condition exists. “[I]f the examination reveals the patient is suffering from an emergency medical condition, the hospital usually must stabilize the patient before getting into the business of trying to [discharge or] transfer him [or her] elsewhere.”[ A hospital that either (1) fails to properly screen a patient, or (2) releases a patient without first stabilizing his or her emergency medical condition thereby violates EMTALA.

The EMTALA includes whistleblower protections for employees who “report[] a violation of a requirement” of the Act.

In that case, Gillispie v. Regionalcare Hospital Partners, Inc., Gillespie sued her employer for violation of the anti-retaliation provisions of the EMTALA. Gillespie was a registered nurse who worked as a quality project coordinator at Southwest Regional Medical Center in Pennsylvania. Her job was to review treatment which may have involved medical error. She claimed that she was fired for “reporting” violations of the EMTALA.

During a meeting with her supervisors about a situation with treatment of a patient, Gillespie testified that all of her supervisors knew of the situation and agreed that it was a violation. Gillespie testified not that she told them of the violation, but that she stated that the violations should be reported to err on the side of caution. She claimed it was this that led to her termination.

The Third Circuit accepted this testimony (it agreed with the lower court that some of Gillespie’s other claims were not supported by any credible evidence). However, because the others at the meeting know of the facts of the situation and, indeed, agreed that it violated EMTALA, she could not have “reported” a violation because she provided no “information” or “notification” to her supervisors. Although the Court said the employee did not have to report to an outside agency, a report to an internal supervisor would satisfy the reporting requirement, she must actually “report” to someone. The Third Circuit therefore held that this fact pattern did not constitute a violation of EMTALA.

 

New Jersey’s Whistleblower Protections Under CEPA

This situation would turn out 180 degrees differently under New Jersey employment law. In New Jersey, the Conscientious Employee Protection Act, known as “CEPA,” protects employees who blow the whistle on employer wrongdoing. Like the EMTALA, CEPA protects employees who go to supervisors rather than outside agencies. However, CEPA goes much further than the Third Circuit narrow interpretation of the EMTALA. It is worth quoting all of CEPA.

An employer shall not take any retaliatory action against an employee because the employee does any of the following:

a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or another employer, with whom there is a business relationship, that the employee reasonably believes:

(1) is in violation of a law, or a rule or regulation promulgated pursuant to law, including any violation involving deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity, or, in the case of an employee who is a licensed or certified health care professional, reasonably believes constitutes improper quality of patient care; or

(2) is fraudulent or criminal, including any activity, policy or practice of deception or misrepresentation which the employee reasonably believes may defraud any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity;

b. Provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation promulgated pursuant to law by the employer, or another employer, with whom there is a business relationship, including any violation involving deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity, or, in the case of an employee who is a licensed or certified health care professional, provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into the quality of patient care; or

c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:

(1) is in violation of a law, or a rule or regulation promulgated pursuant to law, including any violation involving deception of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity, or, if the employee is a licensed or certified health care professional, constitutes improper quality of patient care;

(2) is fraudulent or criminal, including any activity, policy or practice of deception or misrepresentation which the employee reasonably believes may defraud any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity; or

(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.

 

Takeways from CEPA

There are many takeaways from CEPA.

1. CEPA covers much more than just “reporting.” It protects employees who disclose, threaten to disclose, object to or refuse to participate in illegal conduct.

2. The objection can be to a government body, but also to a supervisor, or even another employer if there is a business relationship. (An employee who plans to “blow the whistle” to a governmental body must normally first give a written notice to a supervisor so the supervisor has the opportunity to correct the complained – of conduct unless the employee reasonably fears physical harm or she is reasonably certain the situation is known to at least one supervisor.)

3. It doesn’t have to be a violation of a particular statute. It can be a violation of a “law, rule or public policy concerning the public health, safety or welfare or protection of the environment.” The public policy must be clearly established, however.

4. The employee doesn’t have to be right, as long as she had a “reasonable belief” that the complained of conduct was a violation.

5. CEPA expressly protects licensed or certified health care professionals who “reasonably believe[s]” that acts or inaction by the employer “constitute[d] improper quality of patient care.”

6. It also protects employees who engage in whistleblowing activities about criminal or fraudulent activities.

Thus, it is clear that New Jersey employment law provides far greater protection for health care employees than the EMTALA. Indeed, CEPA is widely believed to provide public and private employees with the strongest whistleblowing protections in the country.

 

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