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Because hospital already knew of alleged violation, fired nurse wasn’t ‘whistleblowing’

By Lorene D. Park, J.D.

Affirming summary judgment against a nurse’s claim she was fired in retaliation for reporting to her employer that it violated the Emergency Medical Treatment and Active Labor Act (EMTALA) when it discharged a pregnant patient from the ER, the Third Circuit explained that her own testimony made clear the attendees at a meeting on the incident were aware of the alleged EMTALA violation before she spoke up, so she didn’t actually inform anyone of an alleged violation as required for EMTALA’s whistleblower provision to apply. The employee’s common law wrongful discharge claims also failed because there was a statutory remedy for those claims (Gillispie v. Regional Care Hospital Partners Inc., June 12, 2018, McKee, T.).

EMTALA. In response to the practice of “patient dumping” (refusing emergency treatment to indigent patients or sending them to other facilities before stabilized), Congress enacted EMTALA, which requires hospitals to examine patients for medical emergencies and stabilize patients before discharging them. The Act includes a whistleblower provision stating: “A participating hospital may not penalize or take adverse action . . . against any hospital employee because the employee reports a violation of a requirement of this section.”

Pregnant patient discharged from ER. The employee, a registered nurse, worked for the medical center for 13 years as a quality project coordinator. Her duties included evaluating patient care and addressing issues involving possible medical errors. On October 23, 2012, a pregnant patient came into the ER complaining of discomfort and vaginal bleeding. The medical center did not have a gynecologist on staff and, after examining her, ER personnel discharged her with instructions to go directly to another hospital to see a gynecologist.

Meetings on potential EMTALA violation. The next day, the medical center’s CEO organized a telephone conference to discuss the patient. The day after that, there was a meeting to discuss whether the discharge violated EMTALA and whether there were reporting requirements. The employee claimed that she insisted it had to be reported to the state’s health department or patient safety authority, but the CEO told attendees not to. At the end of the meeting, the CEO instructed two medical center directors to visit the other hospital and follow-up on the patient. The employee testified that, in a second meeting the same day, everyone agreed the patient’s discharge failed to comply with EMTALA and she argued that it had to be reported to a state agency. She allegedly protested several times but the CEO insisted it not be reported, so no one at the medical center reported it to any regulatory authority or agency.

Health Department investigates other complaint. The next day representatives of the Pennsylvania Department of Health came to the medical center to investigate complaints from another patient’s family that he received poor care in receiving his medications and, despite the CEO’s representations, the medical center had done nothing to discipline the nurses involved. The employee was interviewed and informed the state investigators that only one of the two nurses involved had been disciplined for the medication errors.

That same day, the CEO learned the employee wrote a letter about the same patient’s treatment and, though the employee said it was drafted earlier, the IT department discerned it was drafted the day the health department came to visit. The CEO sent the employee home for the day.

Termination. When the employee returned on November 1, she met with the CEO and gave her a letter stating her concerns about the “serious EMTALA violation” regarding the pregnant patient, and stating that while the CEO decided not to report the incident, the employee believed the medical center must self-report in its own best interest. The employee was fired at the end of the meeting. She subsequently reported the discharge of the pregnant patient to a state agency and then filed suit alleging her discharge violated EMTALA’s whistleblower provision.

McDonnell Douglas analysis applied. Affirming summary judgment in the medical center’s favor, the appeals court first took the opportunity to hold that absent direct evidence of retaliation, the McDonnell Douglas burden-shifting paradigm used in Title VII cases should be applied to EMTALA whistleblower claims. Accordingly, the employee had to first make out a prima facie case showing she engaged in protected activity under EMTALA and was subjected to an adverse employment action because of her protected activity. She didn’t need to prove an actual EMTALA violation, but only that “[s]he was acting under a good faith, reasonable belief that a violation existed.”

No “report,” so no protected activity. EMTALA’s whistleblower provision protects employees who have “report[ed] a violation” of the statute. The lower court found that the employee’s conduct was, at most, an expression of disagreement with the medical center’s decision not to report a violation, rather than an actual report of a violation. Though EMTALA does not define “report” the Supreme Court has explained that a “report” is “something that gives information” or “notification” to another person. Here, viewing the record in a light most favorable to the employee, it was clear to the appeals court that she failed to establish that she actually provided any information of an alleged EMTALA violation to anyone.

The employee claimed she voiced that the pregnant patient’s discharge violated EMTALA during the first meeting, but the record did not support her claim. To the contrary the evidence indicated that all attendees were “comfortable” with the conclusion that the medical center had not violated EMTALA, including a written “Staff Timeline” stating as much. Even the employee’s own deposition undermined her contention.

The employee’s testimony also contradicted her assertion that she reported the alleged violation during the second meeting. According to her deposition, the second meeting began with an overview of the discussion the medical center’s directors had with the treatment providers at the hospital to which the pregnant patient was sent and all the attendees were aware of the EMTALA violation and decided not to report it before she expressed any contrary opinion. This indicated they knew of the violation absent any information or “report” from her.

Though the appeals court appreciated that the employee allegedly urged attendees to report the incident, the chronology was important because it made clear that she did not provide an “information” or “notification” about the discharge but merely disagreed with the medical center’s decision. Because she did not give anyone information about the patient’s ER visit or discharge, she failed to show that she engaged in activity protected by EMTALA’s whistleblower provision and could not establish a prima facie case.

In so holding, the appeals court made sure to explain that EMTALA’s whistleblower provision doesn’t require an official report to any governmental or regulatory agency but also protects employees who inform facility personnel of a possible EMTALA violation.

Public policy wrongful discharge claims fail too. Also affirming summary judgment against the employee’s wrongful discharge claims, the appeals court explained that Pennsylvania law does not recognize a common law cause of action for violating public policy if a statutory remedy exists. Here, the employee could have brought her claims under MCARE Act, a state law that prohibits firing a health care worker for reporting a serious event concerning patient safety. Because she had a statutory remedy, her wrongful discharge claims were properly dismissed.