On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-587-02.
Before Judges Newman, Axelrad and Holston, Jr.
The opinion of the court was delivered by: Axelrad, J.T.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This appeal raises issues of first impression concerning the applicability of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, to a health care professional who asserts patient safety concerns within his medical department and the consequent actions taken against him by that department.
Plaintiff, Dr. Stanford L. Klein, appeals from summary judgment in favor of his employer, University of Medicine and Dentistry of New Jersey (UMDNJ) and Robert Wood Johnson Medical School (RWJMS), and department head, Dr. Lawrence Kushins, dismissing his CEPA claim. The trial judge denied summary judgment on plaintiff's breach of contract and procedural due process claims, which were thereafter voluntarily dismissed. The crux of plaintiff's argument is that defendants retaliated against him by revoking his clinical responsibilities for several days and requiring observation of his clinical responsibilities when restored after he refused to be assigned to the Radiology Department based upon his "reasonable belief that such anesthesia assignments were a threat to patients' safety" in violation of N.J.S.A. 34:19-3c. We affirm the grant of summary judgment.
We review the evidentiary material presented on defendants' summary judgment motion, as we must, in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995); R. 4:46. Dr. Klein, who has been practicing medicine for over thirty-two years, is a board-certified anesthesiologist, as well as a dentist. Defendant RWJMS is a medical school within defendant UMDNJ. From l983 through June l999, plaintiff served as a tenured professor at RWJMS, Chair of the Department of Anesthesiology at RWJMS, and Chief of Anesthesia Services at Robert Wood Johnson University Hospital (RWJUH) in New Brunswick. Plaintiff was then removed as Chair of the Anesthesia Department and Chief of Anesthesia Services.*fn1
Dr. Kushins replaced plaintiff as department chair and Chief of Anesthesiology and became his supervisor after plaintiff returned from a disability and a sabbatical in 200l.
For years while plaintiff was department chair, he complained about "patient safety" concerns involving resuscitation and anesthesia due to the cramped working space in the Radiology Department and lack of essential equipment and staffing. Plaintiff reiterated his concerns to Dr. Clifton Lacy, Chief of Staff at RWJUH, by letter of April 19, 2001. Dr. Lacy advised of the steps taken by hospital personnel in response to plaintiff's concerns and directed him to convey any future observations and comments directly to Dr. Kushins in accordance with the hospital's standard procedure. On June 20, 2001, plaintiff responded to Dr. Lacy, requesting time lines and anticipated dates of completion of some of the changes referenced in Dr. Lacy's letter and specifically commented that some of the special procedure rooms in the Radiology Suite were inadequate in size and "[u]nless they [were] enlarged (a capital budget project) no amount of reduction of clutter and equipment [would] make them safe."
On August 10, 2001, plaintiff sent a memorandum to Dr. Kushins entitled "Radiology Conditions Warrant Serious Changes," stating he had "tried for some time to relay the complaints which [he] and every other member of the department who [he had] spoken to have about working in radiology to Dr. Lacy." The memo expressed plaintiff's feelings that, based on Dr. Lacy's response, the safety issues were not being taken seriously and suggested they "inform the hospital that we will not be able to render care in radiology at the end of the current scheduled cases until we get the appropriate changes in the physical plant and personnel we need."
On August 21, 2001, Dr. Kushins replied that the issue would be discussed at the regularly scheduled departmental faculty meeting on September 11, and he would "meet with the hospital administration to make any necessary changes to enhance patient and occupational safety." Dr. Kushins further requested that if plaintiff knew of any hospital that had an ideal physical plant and personnel set-up for the administration of anesthesia in the radiology suite, he should provide the details to hasten resolution of the issue.
In September 2001, members of the Anesthesiology Department created an ad hoc committee, consisting of plaintiff and two other doctors, to review department procedures and propose changes in the manner of anesthesia care in the Radiology Department. The committee forwarded a report of September 25, 2001 to Dr. Lacy which requested a meeting with him and representatives of the Radiology Department on "an urgent basis" to discuss the following patient safety issues requiring "immediate attention," which, as paraphrased, were: (1) designating separate rooms for fluoroscopy and x-ray with permanent carts and stock; (2) having the Radiology Department coordinate all subspecialties so cases could be done with minimal delays or gaps; (3) requiring nurses to stay with patients at bedside while anesthesia is induced rather than being interrupted for equipment set-up; (4) requiring a radiologist to remain in the room for anesthesia induction to minimize delays between induction and the procedure; (5) making a CCT [cardiac-care technician] available for providing equipment and supplies during a case for duties such as running stat blood tests to the lab; (6) permitting biomedical personnel to respond immediately to calls from the anesthesia team regarding malfunctioning monitors and relocation of anesthesia equipment among the different rooms; and (7) making a recovery room satellite available in the Radiology Department to avoid transport of patients recovering from general anesthesia through the basement kitchen area to the first floor.
According to plaintiff, he told Dr. Kushins that until the changes were instituted, he would refuse to work in the Radiology Department out of concern for the care of his patients. After plaintiff completed his assignments on Friday, October 5, 2001, he was instructed by Dr. Kushins to go to the Radiology Department and relieve one of the doctors. Plaintiff refused the assignment and was directed to go home. On Monday morning, October 8, Dr. Kushins advised plaintiff, and memorialized in a memorandum, that effective immediately plaintiff was no longer assigned clinical duties and was directed to review anesthesia records.
On October l2, Dr. Kushins modified this course of action and reinstated plaintiff's clinical privileges but required they be performed under the supervision of another faculty member. More particularly, Dr. Kushins' memorandum stated:
Commencing October 18, 2001, you will be assigned to administer anesthesia in the operating rooms of Robert Wood Johnson University Hospital under the direct observation of another member of the faculty. I have decided to begin this observation for an indeterminate period of time as a result of events reported by department faculty members and surgeons with regard to your clinical performance and interactions which you have had with patients, faculty and ancillary staff during the first seven months of your reorientation to clinical practice.
On November 6, plaintiff's counsel sent a letter to UMDNJ's counsel demanding that plaintiff's clinical duties be reinstated in full without any direct supervision, and that a written statement be issued that Dr. Kushins and the Anesthesiology Department were confident in plaintiff's clinical skills and abilities and apologizing for the actions taken that had "damaged" plaintiff's reputation. Plaintiff voluntarily withdrew himself from all clinical duties in the interim, contending he had no choice because he "wanted to protect [his] professional reputation, and . . . succumbing to observation would denote [his] 'acceptance' of [those] ludicrous charges" and also because he was concerned about the liability of the hospital and himself.
Plaintiff acknowledged he "refused to accept clinical assignments any longer since the hospital failed to agree to place in writing that [he] had full hospital privileges." On January 9, 2002, plaintiff filed this action, asserting in his complaint that "the actions taken by Dr. Kushins were in retaliation for [plaintiff's] refusal to be assigned to the Radiology Department based upon plaintiff's reasonable belief that such anesthesia assignments were a threat to patients' safety."*fn2
In granting summary judgment to defendants, the court found CEPA was not implicated; rather, this was a private dispute between plaintiff and Dr. Kushins as to whether the Radiology Department should have been expanded or improved for efficiency. The court further noted there was no whistle-blowing activity in that plaintiff's concerns were only reported to the department head and not to any regulatory agency which would have the authority to shut down the department because of a hazard. Nor was there an objective showing of a reasonable belief by plaintiff, a health care professional, of any violation of a rule, regulation, law or public policy. The court also found there was no adverse employment action because there was no reduction in plaintiff's salary or rank; plaintiff was only placed on ...