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DiLisciandro v. Atlantic Medical Imaging

May 27, 2010

FRANCA DILISCIANDRO, PLAINTIFF-APPELLANT,
v.
ATLANTIC MEDICAL IMAGING, DEFENDANT-RESPONDENT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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