Third Circuit Clarifies Definition of “Report” in the Emergency Medical Treatment and Active Labor Act’s Whistleblower Protection Provision
In Gillispie v. RegionalCare Hospital Partners, Inc., No. 16-4307, 2018 WL 2926041 (3d Cir. June 12, 2018), the Third Circuit recently concluded that the plaintiff had not made a cognizable “report” within the meaning of the whistleblower protections provision of the Emergency Medical Treatment and Active Labor Act (“EMTALA”), 42 U.S.C. § 1395dd. While rejecting the lower court’s conclusion that a “report” necessarily required notification to a governmental authority, the Third Circuit ultimately affirmed the award of summary judgment to the defendant medical center on the ground that the would-be “report” offered no new information beyond the information of which the medical center was already aware.
Congress enacted the EMTALA to eliminate “patient dumping” – the practice of refusing emergency medical treatment to patients unable to pay or the practice of transferring such patients before stabilizing their emergency conditions. If the patient is suffering from an emergency medical condition, under EMTALA, the hospital usually must stabilize the patient before trying to discharge or transfer the patient. At its most basic level, a hospital violates EMTALA if it either (1) fails to properly screen a patient, or (2) releases a patient without first stabilizing the emergency medical condition.
EMTALA includes a “whistleblower protections” provision to increase the likelihood that violations will be reported, and that the reporter will not be punished by his or her employer. That provision states in relevant part: “A participating hospital may not penalize or take adverse action . . . against any hospital employee because the employee reports a violation of a requirement of this section.” 42 U.S.C. § 1395dd(i) (emphasis added).
The Third Circuit’s Decision
In Gillispie, a registered nurse (who performed the function of quality project manager) claimed that her employer, a medical center, fired her in retaliation for reporting an EMTALA violation. The issue in Gillispie was whether the plaintiff made a cognizable EMTALA “report,” and thus engaged in protected whistleblower activity.
The Third Circuit noted that EMTALA does not define “report,” and there is a dearth of case law examining the term as it is used in EMTALA. Relying on the U.S. Supreme Court’s case law and Black’s Law Dictionary, the Third Circuit determined that “a report is something that gives information or a notification, or an official or formal statement of facts or proceedings.” Slip. Op. at 5 (internal citations and quotations omitted). Stated another way, “it is an account brought by one person to another.” Id. So, the term “reports” “ordinarily refers to nothing more than the transmission of information.” Id. The Third Circuit expressly disagreed with the District Court’s more narrow reading that an EMTALA report must be filed with a governmental authority or regulatory agency. Requiring such an “official report” would undermine the purpose of EMTALA and “would encourage medical facilities to quickly fire any employee who made an internal report of a violation before the report was made to an outside authority.” Id. at 8.
Notwithstanding its determination that an EMTALA report need not be made to an official body, the Third Circuit affirmed the District Court’s grant of summary judgment in favor of the medical center-employer, finding that the plaintiff had failed to establish that she provided any new information of an alleged EMTALA violation to her employer. On the contrary, the record evidence showed the plaintiff attended two meetings at which the alleged EMTALA violation was discussed. At the first meeting, during which the plaintiff met with the Chief Nursing Officer, the Chief Quality Officer, and the Director of the Emergency Department and Intensive Care Unit, all attendees agreed there had been no EMTALA violation. Notably, when asked to recount the details of that meeting, the plaintiff did not testify that she told the attendees she believed there had been an EMTALA violation. At a second meeting, however, management determined that while there had been an EMTALA violation, it was not necessary to report it. The plaintiff disagreed with this decision, and protested that the violation should be reported to the appropriate agency. The Court noted that according to plaintiff’s own deposition testimony, all the attendees of the second meeting were aware of the potential EMTALA violation, absent any information (or “report”) from plaintiff. Plaintiff’s deposition testimony established that she expressed a contrary opinion about the care of the patient at issue only after it was determined that an EMTALA violation had occurred but would not be reported. Based largely on this testimony, the Court found that the plaintiff did not notify the medical center of any information that was not already known to management. Unlike Title VII’s anti-retaliation provision, which provides retaliatory protection for an employee who “‘opposed’ a Title VII violation or ‘participated in any manner’ in an investigation into a violation,” id. at 7, the EMTALA whistleblower protection is narrower in that it only protects an employee who reports new information related to a possible violation; after the fact disagreement by the would-be whistleblower is not EMTALA protected activity.
Implications for Defendants in Whistleblower Suits
While Gillispie recognizes that the EMTALA whistleblower protections are not as robust as the analogous Title VII anti-retaliation protections, once a whistleblower comes forward – under any statutory scheme – companies must properly and promptly investigate the complaint. Timing in an internal investigation can be critical; the investigation should be undertaken as soon as reasonable and practicable. Waiting too long could lead a whistleblower to conclude that the company has not been sufficiently responsive. As always, companies are well advised to apply internal policies consistently and, whatever the statutes or regulations at issue, prudence and the law require that a company not retaliate against the whistleblower.