Alan Schorr’s Employment Case of The Week ending June 13, 2014

Hitesman v. Bridgeway, Inc., — N.J. —-, 2014 NJ LEXIS 602 (NJ Supreme Court, June 16, 2014)

I cheated by a day knowing this case would be released on Monday, June 16, but I am considering it the Case of The Week of June 13 because it is an important case that needs to be written about. In Hitesman v. Bridgeway, Inc., the Supreme Court has taken a troubling position of ignoring clear legislative intent in order to make it more difficult for conscientious whistleblowers to sue their employers. With so many CEPA cases on their way to the Suprme Court, this 6-1 decision may be a bellwether that CEPA is no longer a “favored” tort. Or it may just be a mistake based up some accumulated bad law over the past decade. We will know soon as the CEPA cases at the Supreme Court keep being accepted and decided.

James Hitesman was a registered nurse in a nursing home. He noted that several staff members had missed symptoms and as a result the rate of infectious diseases at the facility had increased. He complained to the facility’s management about the rate of infectious diseases among patients, reported his concerns to governmental agencies and the press, and ultimately disclosed partially-redacted patient records to a television reporter. On January 25, 2008, Bridgeway terminated plaintiff’s employment based upon his contact with the media and his disclosure of Bridgeway records, allegedly in violation of HIPAA. Hitesman sued.

At the trial level, the Court permitted the CEPA claim to go to trial based on Hitesman’s claims that the defendant’s actions and inaction violated the American Nursing Association (ANA) Code of Ethics and two Bridgeway policy documents in support of his claims, and cited additional sources of law and public policy, including CDC guidelines and federal and state regulations addressing infection control. The jury found Bridgeway liable, but awarded no damages. On appeal, the Appellate Division reversed the liability verdict, holding that the CEPA claim failed as a matter of law because the authorities that he relied upon — the ANA Code, the Bridgeway Employee Handbook and the Bridgeway Statement of Resident Rights — neither measured the adequacy of patient care nor expressed a clear mandate of public policy. The Supreme Court granted Certification.

The Supreme Court affirmed the Appellate Division’s reversal, holding that CEPA does not protect whistleblowers unless their complaints are specifically protected by statute or regulation. They held that, although a professional code of ethics governing an employer’s activities may constitute authority for purposes of a CEPA action, the ANA Code provided no standard for Bridgeway’s control of infectious disease. In a stinging dissent, Justice Albin accused his benchmates of ignoring the trial record in which Hitesman testified at length regarding violations of law that he had complained about in addition to the ethical violations. Justice Albin complained that the majority had no legal authority to support the new demands being placed upon CEPA plaintiffs.

Unfortunately, Both the majority and the dissent overlooked the clear legislative intent that issues of improper quality of patient care were to be protected even in the absence of specific statutes and regulations. This glaring oversight is especially inexcusable since a detailed amicus brief filed by NELA-NJ had directly addressed the legislative history, the continuation of more than 10 years of Courts misunderstanding and disregarding the legislative intent.

In amending CEPA to add the provision protecting employees who complain about improper quality of patient care, the legislature was crystal clear that it intended to expand the law to include patient care issues that were not specifically protected by statute. In 1998, the Senate Statement for Bill S-878, which became the new law, explained:

This bill amends the “Conscientious Employee Protection Act” to extend the protections of that act against employer retaliation to any licensed health care professional who takes actions regarding an instance of improper patient care which the professional reasonably believes violates the professional’s code of ethics or any law, rule, regulation or declaratory ruling adopted pursuant to law. The bill protects the professional from employer retaliation if the professional discloses such instances to a supervisor or public body or objects to, or refuses to participate in, any activity, policy or practice which violates the code of ethics or any law, rule, regulation or declaratory ruling adopted pursuant to law.

The “Conscientious Employee Protection Act” currently protects from employer retaliation any employee who discloses, objects to, or refuses to participate in, actions which the employee reasonably believes to be illegal, fraudulent or incompatible with a clear mandate of public policy. This bill provides that employer retaliation is also prohibited in any case in which a health care professional reasonably believes that an employer has committed an act which constitutes improper quality of patient care.

In a growing number of cases, health care professionals are being pressured to accept seriously inadequate staffing levels and delegate their responsibilities to unqualified, non-professional staff. It is of the utmost importance that health care professionals are able to speak out against, and refuse to participate in, these and other practices by their employers which endanger the well-being of patients.

In light of the clear legislative intent, it is shocking that the Supreme Court could hold that the American Nursing Association Code of Ethics would not protect a nurse who complains about improper quality of health care. This specific amendment of CEPA was necessary precisely because our statutes and regulations do not adequately address standards of patient care. In the case of Klein v. Univ. of Med. & Dentistry of N.J., 377 N.J. Super. 28 (App. Div. 2005), certif. denied, 185 N.J. 39 (2005), the Court threw out the CEPA claim in which Klein had complained that the use of cell phones on the hospital floor was interfering with monitoring equipment. This case, in which a nursing home was careless in addressing the spread of infectious disease, is yet another example of a situation where the Court seems to give medical providers a free pass to retaliate against conscientious employees who complain about improper patient care.

Hopefully, the Legislature will be heard again, making it even clearer that it is public policy to protect patients and those who complain that the patients are receiving improper quality of care.

Plaintiff’s Counsel: Paul R. Castronovo and Megan Frese Porio, Castronovo & McKinney.

Defendant’s Counsel: Craig S. Provorny, Gregory T. Alvarez, and James McDonnell, Herold Law and Jackson Lewis.

Amicus: Sarah Fern Meil, New Jersey Chapter of the National Employment Lawyers Association.

Opinion by: Patterson.

Dissent by: Albin.