A fired hospital nurse who is suing her former employer under a state whistleblower law has waived the right to file other claims, a state appellate court has ruled.
A unanimous panel of the Appellate Division, Second Department, concluded on Oct. 3 that since she claims Good Samaritan Hospital in Suffern violated the state Health Care Employee Whistleblower Act, Blayne Minogue cannot sue for intentional infliction of emotional distress, negligent hiring and supervision and other issues.
New York’s general whistleblower law, §740 of the Labor Law, prohibits an employer from retaliating against an employee who discloses or threatens to disclose to a supervisor or public agency the violation of a law, rule or regulation that “presents a substantial and specific danger to the public health or safety” or refuses to participate in any such violation.
It contains an “election-of-remedies” provision, §740(7), stating litigants who sue under the statute waive “rights and remedies available under any other contract, collective bargaining agreement, law, rule or regulation or under the common law.”
Labor Law §741, the so-called Health Care Employee Whistleblower Act, applies only to healthcare workers. It outlaws “retaliatory action” against an employee who “discloses or threatens to disclose” what the employee “in good faith, reasonably believes constitutes improper quality of patient care.”
Although Minogue claimed that Labor Law §741 contains no explicit waiver requirement, the Second Department in Minogue v. Good Samaritan Hospital, 2011-03889, reaffirmed that the waiver in §740 also applies to healthcare workers who sue under §741.
“Since it was the intent of the Legislature to compel a plaintiff to choose whether to file a Labor Law §740 whistleblower claim or some other claim, it follows, then, that a plaintiff must similarly choose between filing a Labor Law §741 healthcare whistleblower claim or some other claim,” Justice L. Priscilla Hall (See Profile) wrote for the panel.
The ruling upheld Rockland County Supreme Court Justice William Kelly’s dismissal of all of Minogue’s causes of action except the whistleblower claim. Both sides appealed.
The case arises from Good Samaritan Hospital’s January 2007 opening of a cardiac care unit. Minogue, a 24-year employee, and other nurses complained to supervisors and their union that the hospital did not sufficiently adjust staffing to accommodate the added workload.
In 2009, she was fired for failing to remove from the computer schedule a procedure for a patient that a doctor had decided was not needed. Minogue, who said that a substitute secretary had neglected to remove the procedure, argued that the incident had been used as a pretext to retaliate against her for complaining about inadequate care.
In holding that Minogue had waived all but her whistleblower claim, Kelly relied on the Second Department’s 2006 ruling in Pipia v. Nassau County, 34 AD3d 664.
The Pipia court overruled the lower court’s permission to let the plaintiff amend his case to assert a healthcare employee whistleblower claim instead of a general whistleblower claim.
It went on to hold that the plaintiff’s other causes of action should have been dismissed because “the same waiver is effected by the institution of a cause of action alleging a violation of Labor Law §741(2).”
Minogue asked the panel to depart from Pipia. She argued that the waiver part of the decision constituted dicta and did not have to be followed.
“Even if the subject language was dicta, it was a well-reasoned and accurate statement of the law. Thus, we reaffirm our ruling in Pipia that the institution of a cause of action alleging a violation of Labor Law §741 implicates the election-of-remedies provision of Labor Law §740(7), and, as a result, constitutes a waiver of all causes of action relating to the allegedly unlawful discharge,” Hall wrote.
Hall said the Pipia ruling was “consistent” with the waiver provision’s goal of avoiding “duplicative recovery.”
“It makes little sense to prohibit duplicative recovery when a cause of action is brought pursuant to Labor Law §740, but not when brought pursuant to Labor Law §741, especially since the Labor Law §741 cause of action expressly invokes and is enforced pursuant to Labor Law §740(4)(d),” she wrote.
Hall found that Minogue had sufficiently alleged under the surviving whistleblower claim that the hospital engaged in improper patient care and fired her for complaining.
“Granting the plaintiff the benefit of all favorable inferences, the complaint sufficiently alleges that the Hospital engaged in conduct that the plaintiff, in good faith, reasonably believed constituted improper quality of patient care,” the panel said.
Dennis Doyle and Sidney Steinberg of O’Connor, McGuinness, Conte, Doyle, Oleson, Watson & Loftus in White Plains represented Good Samaritan Hospital. Kaitlin Piccolo of Stradley Ronon Stevens & Young in Philadelphia also appeared for the hospital.
Howard Myerowitz of Myerowitz, Jeffrey & Glidden in New City, who represented Minogue, said he was pleased the panel let his client proceed with the §741 action, but said he probably would seek leave to appeal the dismissal of her other claims.
“By imputing the limits of §740 onto §741, it undermines the purpose of the statute” to encourage workers to come forward about good-faith concerns about patient care, he said.
Noting that recovery under the whistleblower law is limited to back pay, legal fees and job reinstatement, Myerowitz said assigning that same recovery to healthcare workers is not enough of an incentive to come forward.
“Why would health care workers put their job on the line?” he said.
@|Andrew Keshner can be contacted at email@example.com.