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DiLisciandro v. Atlantic Medical Imaging


May 27, 2010


On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-525-08.

Per curiam.


Argued March 16, 2010

Before Judges Carchman and Ashrafi.

Plaintiff Franca DiLisciandro appeals from a March 20, 2009 order dismissing her complaint with prejudice for failure to state a claim upon which relief can be granted and a May 1, 2009 order denying her motion for reconsideration. We affirm.

Plaintiff worked for defendant Atlantic Medical Imaging as an ultrasound technician. After Atlantic terminated her employment on June 7, 2007, she filed a two-count complaint alleging violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, and common law unlawful termination for "whistle-blowing" conduct. Atlantic filed a motion under Rule 4:6-2(e) to dismiss the complaint for failure to state a claim. After two rounds of briefing and oral argument, the trial court granted defendant's motion. Subsequently, the court denied plaintiff's motion for reconsideration, which included a proposed amended complaint. This appealed followed.

When deciding a motion to dismiss a cause of action under Rule 4:6-2(e), the court must "search[] the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary." Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989) (quoting Di Cristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957)); accord Banco Popular N. Am. v. Gandi, 184 N.J. 161, 165 (2005). Our review must be "generous and hospitable" to plaintiff. Printing Mart, supra, 116 N.J. at 746. Our role is simply to determine whether a cause of action is "suggested" by the complaint. Ibid. (quoting Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)).

In this case, we accept as true all the factual allegations contained in plaintiff's proposed amended complaint. See Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006). We agree with the trial court that those factual allegations do not state a cause of action under CEPA or the common law.

According to plaintiff, on June 5, 2007, while she was employed by Atlantic and performing an ultrasound examination on a pregnant patient, the patient told plaintiff she had experienced profuse vaginal bleeding on an earlier date. The patient said her treating physician had advised her she did not need medical treatment but should rest in bed. Plaintiff expressed concern for the patient's well-being and advised her that she should have promptly sought medical attention by going to a hospital emergency room. Two days after this incident, Atlantic terminated plaintiff's employment.

In her amended complaint, plaintiff alleges Atlantic terminated her to avoid losing referrals from the patient's treating physician, who allegedly heard about plaintiff's advice to his patient and complained to Atlantic. Plaintiff states she reasonably believed that the patient received improper care from the treating physician and that, as a health care provider, she had a right to inform the patient of that belief. She alleges that Atlantic terminated her in retaliation for "refus[al] to participate in [an] activity, policy, and/or practice which the employee reasonably believes is incompatible with a clear mandate of public policy concerning the public health, safety or welfare," and that the retaliatory termination is contrary to CEPA, specifically N.J.S.A. 34:19-3c(1) and (3), and to the common law rights of employees established in Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980). She alleges a "clear mandate of public policy" prohibiting an employer from firing a health care professional because of conduct prompted by a reasonable belief that improper health care was provided to a patient.

The subsections of CEPA that plaintiff alleges her employer violated provide in relevant part:

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

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

(1) . . . if the employee is a licensed or certified health care professional, constitutes improper quality of patient care;

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

[N.J.S.A. 34:19-3c(1) and (3).]

Applying these statutory provisions to the allegations of plaintiff's amended complaint, plaintiff must prove the following essential elements to establish a claim:

(1) plaintiff was a licensed or certified health care professional, who reasonably believed that her employer's activity, policy, or practice constituted improper quality of patient care (subsection c(1)), or was incompatible with a clear mandate of public policy concerning the public health (subsection c(3));

(2) plaintiff engaged in a "whistle-blowing" activity; namely, she objected to or refused to participate in the policy or practice of her employer;

(3) the employer took an adverse employment action against plaintiff; and

(4) a causal connection exists between the whistle-blowing activity and the adverse employment action.

See Maimone v. City of Atlantic City, 188 N.J. 221, 230 (2006); Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003). On its motion to dismiss, defendant challenged the sufficiency of plaintiff's pleadings in alleging the first two essential elements of a CEPA violation as outlined above.

Defendant argues correctly that proof of a CEPA violation under subsection c requires a showing that the employer's activity, policy, or practice constituted improper patient care or was incompatible with a clear mandate of public policy. See Maw v. Advanced Clinical Communications, Inc., 359 N.J. Super. 420, 447 (App. Div. 2003) (Cuff, J.A.D., dissenting), rev'd on dissent, 179 N.J. 438, 444 (2004).

Under subsection c(1), plaintiff must prove that she refused to participate in a policy or practice that constitutes "improper quality of patient care." That phrase is defined in N.J.S.A. 34:19-2f as "any practice, procedure, action or failure to act of an employer that is a health care provider which violates any law or any rule, regulation or declaratory ruling adopted pursuant to law, or any professional code of ethics." (Emphasis added.)

Here, plaintiff's employer was Atlantic. Plaintiff alleges that she reasonably believed the patient's treating physician provided improper care of the patient. Atlantic did not advise the patient to get bed rest when she should allegedly have sought emergency treatment. "In order to determine whether plaintiff states a claim under CEPA, the initial focus is on the employer's 'activity, policy, or practice' that triggers the employee's objection or refusal to participate." Maw, supra, 359 N.J. Super. at 447 (dissenting opinion). The conduct of the other physician cannot be attributed to the employer in this case, Atlantic.

Plaintiff attempts to circumvent this shortcoming of her pleadings by claiming that she refused to participate in Atlantic's alleged policy or practice of remaining silent in the face of improper patient care by a referring physician. The amended complaint, however, has not alleged the existence of any such policy or practice except as manifested through plaintiff's termination after she engaged in the whistle-blowing activity she alleges. Plaintiff claims she refused to participate in Atlantic's policy or practice when she spoke to the patient. She has not alleged that she was aware of a policy or practice of Atlantic to remain silent when she spoke to the patient, that she reasonably believed such silence constituted improper patient care by Atlantic, and that she engaged in whistle-blowing activity recognized by CEPA when she refused to participate in that policy or practice. All of those allegations are necessary to state a claim under CEPA, but plaintiff cannot make those allegations because the facts do not support them.

Plaintiff's amended complaint alleges that her termination was the manifestation of the employer's policy or practice of silence in the face of improper patient care by referring physicians. Plaintiff's termination, however, cannot be the sole proof of both the policy or practice and the retaliatory act that violates subsection c. That is so because the policy or practice must have been known to plaintiff at the time of her whistle-blowing activity and before the retaliatory act. Otherwise, plaintiff cannot prove her reasonable belief in its impropriety for patient care and its incompatibility with a clear mandate of public policy. Protected whistle-blowing activity under the statute presumes knowledge of and refusal to participate in the employer's unlawful or wrongful policy or practice.

Interpreting subsection c in this way does not leave a health care professional without recourse when she reasonably believes that a patient has received improper medical care or advice. Another subsection of CEPA addresses circumstances such as in this case where a health care professional detects improper care and treatment of a patient. N.J.S.A. 34:19-3a prohibits retaliation against an employee who:

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) . . . in the case of an employee who is a licensed or certified health care professional, reasonably believes constitutes improper quality of patient care[.]

[(Emphasis added).]

Had plaintiff disclosed to Atlantic that she believed the patient's treating physician gave improper and dangerous advice, and had Atlantic fired her for making that disclosure to Atlantic, then plaintiff may have been able to state a claim under N.J.S.A. 34:19-3a. But plaintiff did not blow the whistle on the treating physician by notifying doctors at Atlantic, or an appropriate public body responsible for overseeing physicians. She spoke to the patient directly, and that disclosure is not the type of whistle-blowing activity protected by subsections a or c of the statute.

Plaintiff places heavy reliance on our decision in Gerard v. Camden County Health Services Center, 348 N.J. Super. 516 (App. Div.), certif. denied, 174 N.J. 40 (2002). The medical employer in that case had retaliated against the plaintiff, the Assistant Director of Nurses, for refusing to serve disciplinary charges against a head nurse. Id. at 517-18. The plaintiff had investigated the proposed charges and determined that there was no factual substance supporting them. She had refused to serve the charges because she believed they had been "trumped up" as retaliation against the head nurse for disciplining a nursing assistant who was friendly with the hospital administrator. Id. at 518-19. We concluded that the plaintiff had alleged a potentially viable CEPA claim under N.J.S.A. 34:19-3c. Ibid. We said that if the plaintiff's "beliefs are objectively reasonable, plaintiff was engaged in CEPA protected activity" by refusing to serve the charges on the head nurse. Id. at 519. We also said that the plaintiff "could have objectively reasonably believed" that filing false charges against the head nurse "was violative of proper quality of patient care[.]" Id. at 524 (citing N.J.S.A. 34:19-3c(1)).

But consistently with our decision here, the focus in Gerard was on the employer's conduct that was contrary to quality patient care. We stated in Gerard, "[t]he inquiry is whether plaintiff had an objective, reasonable belief that employer conduct within the scope of the CEPA protections was involved." Ibid. (emphasis added). We also stated that CEPA is "designed to protect employees who reasonably believe, and take action consistent therewith, that their employers or co-employees are engaged in activity that either is illegal or constitutes improper patient care." Id. at 520 (emphasis added). We did not find a potential CEPA violation involving improper patient care provided by someone other than the plaintiff's employer.

Plaintiff in this case can only allege that she reasonably believed the conduct of someone other than her employer was violative of quality patient care. Only later, upon being terminated, did plaintiff come to suspect an alleged policy or practice of her employer to silence employees in such circumstances. That alleged policy or practice was not the cause of plaintiff's whistle-blowing activity.

Gerard recognized that the plaintiff's knowledge of the allegedly improper employer conduct is a prerequisite to proving whistle-blowing activity in the form of refusal to participate. We commented in that case that there was a factual dispute regarding when the plaintiff learned of her employer's alleged purpose to retaliate against the head nurse through "trumped up" charges, and that "knowledge of that history at the time is critical to plaintiff's cause of action." Id. at 525. Likewise, in this case, a critical missing element in plaintiff's factual allegations is that she had knowledge of an alleged policy or practice of Atlantic that employees must remain silent.

In addition to failing to plead adequately a policy or practice of Atlantic when she engaged in the alleged whistle-blowing conduct, plaintiff has not shown "a clear mandate of public policy concerning the public health" that was violated by her termination. The question of whether the pleadings and evidence demonstrate such a mandate of public policy is one of law for the court to determine. Mehlman v. Mobil Oil Corp., 153 N.J. 163, 187 (1998); Maw, supra, 359 N.J. Super. at 442; Smith-Bozarth v. Coalition Against Rape and Abuse, Inc., 329 N.J. Super. 238, 245 (App. Div. 2000).

Plaintiff cites medical treatises to demonstrate the risks of profuse vaginal bleeding during pregnancy, and she also cites the American Medical Association (AMA) Code of Ethics to establish a physician's duties to his or her patient. To bolster her claim, plaintiff cites N.J.S.A. 26:2H-1 and In re Certificate of Need Granted to the Harborage, 300 N.J. Super. 363 (App. Div. 1997), as demonstrating a public policy in this State that "health care services [be of] the highest quality."

The medical treatises, however, do not establish public policy regarding who may give medical advice to patients, and the AMA Code of Ethics applies to physicians, not all medical care providers. It does not establish a clear mandate of public policy that an ultrasound technician such as plaintiff may follow her own reasonable beliefs in giving medical advice to a patient that contradicts the advice of her treating physician.

Moreover, our State's public policy to provide high-quality health care is not equivalent to a health care professional taking it upon herself to advise a patient about medical treatment outside the sphere of her expertise or patient relationship. As we stated in Klein v. Univ. of Med. & Dentistry of N.J., 377 N.J. Super. 28, 42 (App. Div.), certif. denied, 185 N.J. 39 (2005), "broad-brush" reference to patient safety and high-quality medical treatment is not sufficient to establish a clear mandate of public policy. In determining whether plaintiff has adequately pleaded violation of a clear mandate of public policy, "there should be a high degree of public certitude in respect of acceptable versus unacceptable conduct." Maw v. Advanced Clinical Communications, Inc., 179 N.J. 439, 444 (2004). We do not have a high degree of certitude about the public policy that plaintiff's cause of action alleges.

We do not decide here whether plaintiff gave good or bad advice to the patient, or whether it was the right or wrong thing for her to do. Those are matters for health care professionals and ethics advisors to determine. We only conclude that CEPA did not protect plaintiff's employment for giving advice directly to the patient contrary to that of her treating physician.

With respect to plaintiff's common law claim, enactment of CEPA did not entirely supplant a common law claim for wrongful termination as earlier established in Pierce, supra, 84 N.J. at 72. See Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 103 (2008). Nevertheless, plaintiff's common law claim also requires proof of a clear mandate of public policy violated by plaintiff's discharge from employment. Ibid.; Pierce, supra, 84 N.J. at 72. For the same reasons discussed with respect to CEPA, plaintiff's proposed amended complaint fails to state a common law claim because it does not establish a clear mandate of public policy.

Finally, we have considered whether the trial court properly dismissed plaintiff's complaint with, rather than without, prejudice. A dismissal under Rule 4:6-2(e) should normally be without prejudice. Printing Mart, supra, 116 N.J. at 746, 772. Also, motions to amend a complaint under Rule 4:9-1 should be liberally granted. Kernan v. One Washington Park Urban Renewal Assocs., 154 N.J. 437, 456-57 (1998). But the trial court has discretion to deny a motion to amend, and that discretion is exercised appropriately where the proposed amended complaint would also be dismissed under Rule 4:6-2(e). Notte, supra, 185 N.J. at 501; Interchange State Bank v. Rinaldi, 303 N.J. Super. 239, 256-57 (App. Div. 1997).

Here, the proposed amended complaint did not state a claim, and plaintiff has no prospect of obtaining additional evidence that would alter the essential deficiencies of her claim. The facts are what they are. We conclude the trial court did not abuse its discretion in denying plaintiff's motion to amend her complaint, and in dismissing her complaint with prejudice for failing to state a claim upon which relief can be granted. See Kernan, supra, 154 N.J. at 457.



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