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James Hitesman v. Bridgeway Inc.

March 22, 2013

JAMES HITESMAN, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
BRIDGEWAY INC., D/B/A BRIDGEWAY CARE CENTER, DEFENDANT-RESPONDENT/ CROSS-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-278-08.

The opinion of the court was delivered by: Espinosa, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

APPELLATE DIVISION

March 22, 2013

Argued November 26, 2012

Before Judges Graves, Espinosa and Guadagno.

The opinion of the court was delivered by ESPINOSA, J.A.D.

A licensed or certified health care professional may assert a claim against his or her employer pursuant to the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, based upon a reasonable belief that the employer's conduct "constitutes improper quality of patient care[.]" N.J.S.A. 34:19-3a(1) and c(1). The statutory definition of "improper quality of patient care" includes the violation of "any professional code of ethics." N.J.S.A. 34:19-2(f). In this appeal, we consider whether plaintiff's proof, and specifically his reliance upon a professional code of ethics not applicable to his employer, was sufficient to support a liability verdict in his favor. For the reasons that follow, we conclude that, as a matter of law, plaintiff failed to prove the first element of his CEPA claim.

Plaintiff was terminated from his employment as a registered nurse by defendant, Bridgeway, Inc., d/b/a Bridgeway Care Center (defendant or Bridgeway), after he called various governmental agencies and the media to report his concerns about Bridgeway's response to what he considered an inordinate rate of infection among patients. He filed this action, alleging his termination violated CEPA. Plaintiff claimed, and the jury found, he had an objectively reasonable belief that Bridgeway provided "improper quality of patient care," or violated a law or public policy. As support for the reasonableness of his belief, he identified the American Nursing Association's Code of Ethics (the ANA Code of Ethics), Bridgeway's Employee Handbook (the Handbook) and Statement of Residents' Rights. Although the jury returned a liability verdict in plaintiff's favor, it awarded no damages. Plaintiff appeals from the damages verdict and defendant cross-appeals from the liability verdict.

I.

Defendant owns and operates a licensed long-term care nursing home facility, with a sub-acute unit for short-term stays. Plaintiff began working for defendant as a part-time nurse in December 2003, two years after graduating from Raritan Valley Community College. He was required to execute a confidentiality agreement in which he agreed not to reveal confidential patient information and acknowledged that unauthorized disclosure could result in termination of employment.

In January 2008, plaintiff was the evening and weekend shift supervisor at Bridgeway. On January 11, 2008, he circulated the following email to the administrator of Bridgeway and other employees:

To whom it will Concern,

After consulting our Infection control officer, Shiela [sic] Chugani, having received the unit reports, and in light of the increasing rate at which our staff and our residents are succumbing to what is probably respiratory and GI viruses that is prevelant [sic] on all 3 units, I greatly urge that steps be taken to limit further spread of the infection(s). As of this writing, 7 west wing pts have been hospitalized, 15 east wing pts were held on the unit for dinner (between 1st and second sitting). On Pavillion, another 8 pts are showing GI symptoms, and another 7 are showing respiratory symptoms. The evidence requires measures to be taken to protect our residents. This may take the form of limiting visitations, inter unit activites [sic], and meals to the units for a period of time.

On the same day, plaintiff approached Frances Gerber, the Director of Nursing, and Wayne Blum, Bridgeway's administrator, with an article about an influenza epidemic. There were no cases of influenza in the facility. Nonetheless, Gerber discussed plaintiff's email with Bridgeway's Medical Director, Dr. Anthony Frisoli, who did not agree with plaintiff's assessment. Gerber circulated a reply to plaintiff's email, in which she reminded supervisory personnel "that the mode of transmission is contact" and of the "need to stress the importance of hand-washing[.]"

Plaintiff responded with the following email:

Please explain the means and logic by which Dr. Frisoli has determined that the respiratory component of our little epidemic to be solely via physical contact. While clearly, contact precautions and handwa[s]hing will help decrease the rate of infection, I fail to see how ignoring the possibility of airborn[e] infection (coughing, sneezing) and its implications helps to protect our residents and staff. Have any tests/lab work been run? Have any cultures been collected and grown?

The record does not include any response by defendant to this email or any effort by plaintiff to pursue his concerns further with Bridgeway.

On January 14, using a fictitious name, plaintiff contacted the Bridgewater Township Board of Health because he believed "there wasn't enough action being taken by the facility" to address what he considered an inordinate rate of infection. After he was told that the Township had no authority in this area, plaintiff contacted the Somerset County Board of Health (Board of Health), again using a fictitious name, about his concerns.

On January 15, 2008, the Board of Health contacted Gerber and advised it had received a report that there had been a number of major illnesses in the facility and that a number of people had been hospitalized. The Board of Health requested information about the hospitalizations and the symptoms experienced by residents at the facility. Unbeknownst to plaintiff, Gerber gathered the requested information and provided it to the Board of Health the next day.

On January 16, plaintiff placed a call to the New Jersey Department of Health and Social Services (Department of Health). Using the fictitious name again, he stated there was an unaddressed epidemic*fn1 in the facility. The Department of Health contacted Blum the following day.

Following this telephone call, Gerber asked plaintiff to meet with her and Blum. They asked plaintiff if he had contacted the Board of Health and the Department of Health. He denied doing so. On January 21, Gerber asked plaintiff to meet alone with her. She asked him if he had made the anonymous calls and, once more, he denied doing so.

On January 22, defendant contacted local media and alleged there was an untreated epidemic in the facility. New Jersey Network (NJN) elected to pursue the story. Plaintiff removed administrative logs containing confidential patient information from the facility. He attempted to redact confidential information from the logs and then faxed them to Walter Kane, a reporter with NJN. However, plaintiff's attempt at redaction was not completely successful for he had failed to delete some residents' room numbers, which would have allowed a third party to identify and contact the residents.

On the morning of January 23, Kane confronted Donald Pelligrino, the Chief Executive Officer and an owner of Bridgeway, at the facility. Kane told Pelligrino that an anonymous source reported an outbreak of illness at the facility, resulting in one death, and that Bridgeway was not taking appropriate measures. Kane also showed Pelligrino a copy of the partially redacted administrative logs.

Blum and Gerber met with plaintiff and Denise Zulpa, Director of Human Resources, on January 23. In this meeting, which plaintiff secretly recorded, he admitted contacting the government agencies and the news media. Blum and Gerber questioned plaintiff's basis for concluding the facility was not being run appropriately. Plaintiff stated, "[a]ll I know is that 34 patients had GI symptoms, and we did not take proper procedures or precautions, nor did we seem very motivated to find out what it was."

Blum demanded to know what activity required by State regulation had not been taken. He noted that a report to the State was unnecessary because the thirty-four patients were not all suffering the same symptoms at the same time. Gerber stated that some of the patients with respiratory symptoms had aspiration pneumonia. Plaintiff acknowledged that possibility.

Blum expressed disappointment in plaintiff's lack of confidence in his leadership and said, "I know that everything we had to do we followed state regs and got advice from the state." Gerber stated that plaintiff's "[l]ack of integrity" in lying was a concern. The conversation then turned to the release of the administrative logs, which plaintiff conceded was a violation of the confidentiality policy.

Later that day, plaintiff was suspended with pay pending Bridgeway's investigation of the extent of his disclosures to the media. On January 25, 2008, plaintiff was told his employment was terminated as a result of his contacting the news media and violating both the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C.A. §§ 1320d-1 to -9, and Bridgeway's confidentiality policy.

Shortly after plaintiff was fired, NJN aired the story on television. Bridgeway gave a rebuttal statement on the ...


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