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Falco v. Community Medical Center

January 13, 1997

KATHLEEN FALCO AND JOSEPH FALCO PLAINTIFFS-APPELLANTS,
v.
COMMUNITY MEDICAL CENTER, PHILLIP BARRECA, *FN1 DR. MICHAEL BAGEAC, JOHN MARKEL, *FN2 JAN CROSBY, AND DR. JAMES PASQUARIELLO, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County.

Before Judges Muir, Jr., Kleiner, and Coburn. The opinion of the court was delivered by Kleiner, J.A.D.

The opinion of the court was delivered by: Kleiner

The opinion of the court was delivered by

KLEINER, J.A.D.

Plaintiffs Kathleen Falco and Joseph Falco appeal from the dismissal of their complaint. Plaintiffs were seeking damages based on Kathleen Falco's termination as a nurse in the Cardiac Catheterization Laboratory of defendant Community Medical Center. *fn3

Kathleen Falco, a registered nurse, was hired by defendant Community Medical Center, located in Toms River, on October 4, 1989. She was assigned to the Cardiac Catheterization Lab on September 4, 1991. Plaintiff's employment was terminated on September 18, 1992.

Plaintiff's complaint, filed on March 30, 1993, alleged that her employment was terminated in retaliation for "whistleblowing activities," in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, (count one). The remaining counts of plaintiff's complaint asserted: a common law claim of retaliatory discharge and intentional infliction of emotional distress (count two); a constitutional tort (count three); negligent infliction of emotional distress (count six); intentional infliction of emotional distress (count seven); a discharge in violation of public policy (count eight); and Joseph Falco's per quod claim (count nine). In counts four and five, plaintiff alleged that her termination violated her contractual rights.

Pursuant to a motion to dismiss filed by all defendants, the motion Judge dismissed counts two, three, six, seven, and eight. The Judge concluded that each of those claims was barred under the CEPA waiver provision as set out in N.J.S.A. 34:19-8. The motion Judge also dismissed count nine, Joseph Falco's per quod claim, relying on our decision in Catalane v. Gilian Instrument Corp., 271 N.J. Super. 476, 493, 638 A.2d 1341 (App. Div.), certif. denied, 136 N.J. 298 (1994).

The only counts then remaining were count one, the CEPA claim, and counts four and five, alleging breach of contract. Thereafter, on a motion for summary judgment filed by all defendants except Dr. Michael Bageac, those counts were dismissed. Plaintiff then filed a motion to amend her complaint to assert a claim for tortious interference with a contractual relationship and prospective economic advantage. In a separate ruling, the motion Judge denied plaintiff's motion.

On appeal, plaintiff challenges each of the pre-trial rulings. After our careful review of the record and our analysis of precedent, we conclude that the motion Judge properly dismissed each count of plaintiff's complaint, either procedurally or summarily, and did not abuse her discretion in refusing to grant plaintiff leave to file an amended complaint.

Each of the motion Judge's rulings requires some Discussion with the exception of the dismissal of count nine, Joseph Falco's per quod claim. R. 2:11-3(e)(1)(E). We affirm.

I

The factual background surrounding plaintiff's employment history is somewhat complex. The crux of plaintiff's complaint is that defendants' reasons for plaintiff's termination were pretextual. Defendants contend that the events of August 27, 1992, involving a particular cardiac catheterization procedure and the resulting investigation of those events, gave them a justifiable reason to terminate plaintiff's employment.

Plaintiff contends that she was terminated in retaliation for complaints that she voiced about her direct supervisor, defendant Phillip Barreca. We are therefore compelled to review the events surrounding plaintiff's termination.

A.

Defendant Community Medical Center (CMC) is administratively compartmentalized. Defendant Jan Crosby was the administrative director of Cardio-Neuro Services. Part of the Cardio-Neuro Services is the hospital's Cardiac Catheterization Laboratory (Cath Lab), managed by defendant Phillip Barreca. Five employees were assigned to that unit during plaintiff's tenure: two cardiovascular technicians, Helen Clanton and Lorraine Camper; a radiology technician, Michael Siemers; and two registered nurses, Barbara Lechner and plaintiff. Vince Joseph is the executive vice president and chief operating officer of CMC. John Markle is the vice president of human resources.

Cardiologists with privileges at CMC perform cardiac catheterizations at the Cath Lab. These cardiologists include defendants Dr. Pasquariello and Dr. Bageac. Although Dr. Pasquariello serves as the medical director of the Cath Lab, neither he, nor Bageac, are employees of CMC, and neither had authority to hire, fire, or otherwise discipline hospital employees.

B.

On August 27, 1992, plaintiff is alleged to have performed a solo Quinton *fn4 recording during a right and left catheterization performed by Dr. Bageac. As Dr. Bageac described it, "on this occasion, the patient was undergoing a diagnostic procedure performed on an urgent basis because an immediate diagnosis of the patient's cardiac condition was necessary." Dr. Bageac certified:

Based upon my initial observations and calculations of the patient's cardiac condition, I made an initial recommendation that the patient immediately undergo open heart surgery, which required that the patient immediately be transferred to another hospital which had the appropriate facilities for that operation. However, I noted that the hemodynamic flow sheet [i.e., Quinton report] prepared by [plaintiff] contained numerous calculation errors, resulting in physiological data that did not comport with my initial observations and calculations. I also noticed that [plaintiff] did not prepare the final computer report that day. As [plaintiff] had left work by that time, I had to wait until first thing in the morning on the next day to tell her.

The next morning I brought these errors to [plaintiff's] attention. I requested that she immediately prepare a corrected flow sheet and final report because the patient was being transferred to Hackensack Medical Center, for emergency coronary and valvula surgery, at noon of that day, but [plaintiff] indicated that she could not correct the errors immediately. She stated that she could not generate a corrected report until all of the cardiac catheterizations scheduled for that day were completed. I attempted to correct the errors on the flow sheet by performing the essential calculations by hand.

As a result, Dr. Bageac had to transfer his patient to another hospital with an initial recommendation that the patient immediately undergo cardiac surgery, although he "was unable to transport the computer generated physiological data to support that initial recommendation."

Dr. Bageac also certified that plaintiff did not disclose that she was unauthorized to operate the Quinton during a right and left catheterization. Dr. Bageac reported the incident to Barreca, who certified that plaintiff had never been authorized to operate the Quinton during a right and left heart catheterization. Barreca declared:

Although fully trained to operate the Quinton computer during left heart catheterization procedures, she had not been fully trained and was never told (explicitly nor implicitly) that she could operate that computer during left and right heart catheterization procedures. In fact, before I left the Medical Center for a one week vacation in August, 1992, I left specific directions with the laboratory staff that only Barbara Lechner was to operate the Quinton computer during any left and right heart catheterization procedures while I was on vacation.

On September 17, 1992, plaintiff attended a meeting with Barreca, Crosby, and Markle. The agenda for that meeting included three items pertinent to plaintiff's employment performance: (1) plaintiff's alleged unauthorized operation of the Quinton; (2) an alleged breach of patient confidentiality; and (3) an allegation that plaintiff had made a disparaging remark about Dr. Bageac to other hospital personnel. At the meeting, according to plaintiff, it was disclosed that Dr. Bageac had threatened the hospital with legal action unless it terminated plaintiff's employment.

Plaintiff testified in a discovery deposition that at the September 17, 1992, meeting the three items on the agenda were discussed. According to plaintiff, "I was told by John Markle that I was a menace to the hospital and I was no longer wanted to work there." Plaintiff claims she was given the option of resigning or being terminated. The following morning plaintiff arrived and handed Crosby a typed letter refusing resignation. Plaintiff was immediately terminated.

II

Plaintiff's complaint, filed March 30, 1993, challenged her discharge, contending that her termination was retaliatory. Her complaint asserts that her discharge was a violation of the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8.

Plaintiff's claim of retaliation focuses on two of her activities as an employee: (a) plaintiff's affiliation with one of two cardiologist factions vying to have one of their members named department chief at CMC; and (b) the fact that she voiced concerns about the "management style" of her direct supervisor, defendant Barreca.

On April 21, 1992, during an informal Discussion, laboratory employees discussed varied complaints about Barreca's management techniques. The employees concluded that they, as a group, would voice these complaints to Kathy Collins, vice president of administration at CMC, on May 14, 1992, at a meeting that was specifically scheduled for that purpose. Plaintiff would later testify that sixteen complaints were discussed at that meeting and that she and the other staff members were promised that no retaliatory action would be taken against any employee for expressing concerns.

In her deposition testimony, plaintiff acknowledged that after Collins told Barreca about the employees' complaints, Barreca's management style improved. Plaintiff also admitted that, with the exception of her termination, she was not targeted for retaliation by Barreca during the remainder of her employment at CMC.

In response to defendant's motion for summary judgment, plaintiff focused on three specific complaints that were made about Barreca's management style in an attempt to demonstrate that her termination was a direct retaliatory response to plaintiff's activities. The three complaints were that: (a) Barreca had administered nitroglycerin to patients, in compliance with doctors' orders, yet, allegedly, contrary to the Nurse Practice Act, N.J.S.A. 45:11-23 to -44; (b) Barreca directed plaintiff to stop administering protamine *fn5 to a patient, after she had administered ten milligrams, which contradicted a physician's order, directing plaintiff to administer fifteen milligrams; and (c) Barreca interfered with plaintiff's nursing judgment when he instructed plaintiff that patients experiencing an irregular heart rhythm, ventricular fibrillation, should not be "shocked" at anything less than 360 joules, contrary to a standard set forth in an Advanced Cardiac Life Support Protocol.

III

The motion Judge granted defendants' motion for summary judgment on the CEPA count for two reasons: (1) plaintiff failed to identify any statute or clear mandate of public policy that she reasonably believed had been violated at her place of employment; and (2) plaintiff failed to proffer any evidence of a causal nexus between her purported whistleblowing activity and her termination. Based upon Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 523, 666 A.2d 146 (1995), the motion was properly granted. The pleadings, certifications, and extensive deposition testimony offered in support of defendants' motion demonstrated that there were no genuine issues of material fact.

The mere fact that plaintiff, in her certification, denied committing the acts that constituted defendant's reasons for plaintiff's termination does not raise a genuine issue of material fact. The dispositive issue is whether defendants had a good faith belief that plaintiff committed these acts and considered those acts in reaching their decision to terminate plaintiff. In other words, were the three acts that were attributed to plaintiff a legitimate rational basis to terminate her employment?

CEPA was enacted to protect employees from retaliatory discharge. See Young v. Schering Corp., 141 N.J. 16, 26, 660 A.2d 1153 (1995); Flaherty v. The Enclave, 255 N.J. Super. 407, 412, 605 A.2d 301 (Law Div. 1992). CEPA represents a codification of the common law rule announced in Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 417 A.2d 505 (1980), that an employee at-will may have a cause of action for wrongful discharge in violation of a clear mandate of public policy. Potter v. Village Bank of New Jersey, 225 N.J. Super. 547, 560, 543 A.2d 80 (App. Div.), certif. denied, 113 N.J. 352, 550 A.2d 462 (1988). Towards that end, CEPA provides, in part:

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 . . . that the employee reasonably believes is in violation of a law, or ...


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