Wyckoff Heights Medical Center
Wyckoff Heights Medical Center (NYLJ/Rick Kopstein)

A New York whistleblower law for healthcare workers does not apply to pharmacists, a Brooklyn judge has ruled, dismissing a lawsuit by a hospital pharmacist who claimed she was fired for complaining about unsafe working conditions.

Supreme Court Justice David Schmidt (See Profile) also ruled in Von Maack v. Wyckoff Heights Medical Center, 504150/13, that the suit under the whistleblower law was barred by an arbitrator’s finding that the plaintiff was terminated with good cause.

The plaintiff, Dorota Von Maack, began working for Wyckoff Heights Medical Center, a hospital in Brooklyn, in 2004 as a staff pharmacist. Her duties included filling prescriptions and compounding medications.

In 2005, she complained to a supervisor about unsafe conditions in the pharmacy, including poor ventilation, excessively high temperatures, lack of protection for employees who worked with dangerous chemotherapy medications, and leaks in the ceiling. The hospital has denied that these complaints had any merit.

On July 30, 2011, a Saturday, Von Maack failed to accept a delivery of medication to the pharmacy. The hospital maintains that she refused to accept it, saying that it was not her job, while Von Maack maintains that she believed another pharmacy technician would accept the delivery. On Aug. 11, 2011, Von Maack was terminated for this incident.

On Aug. 5, 2011, in the interim between the incident and being fired, Von Maack filed a complaint online with the federal Occupational Safety and Health Administration about conditions in the pharmacy. Von Maack alleges that she was only told that there was a problem with her July 30 delivery after she filed this complaint.

As required by the hospital’s agreement with Von Maack’s union, 1199 SEIU, Von Maack and the hospital went before an arbitrator at the American Arbitration Association. The arbitrator found that, while the incident with the delivery might not have been grounds for termination on its own, it was part of a “sequence of uncooperative behavior” that justified Von Maack’s eventual termination.

Von Maack then sued the hospital under New York Labor Law §741, which authorizes health care workers to file whistleblower retaliation suits.

The hospital moved to dismiss the suit on multiple grounds. It argued that the suit was barred by the arbitrator’s finding. It also argued that Von Maack was not a health care worker under the law.

Von Maack countered that the suit was not barred because the arbitration did not deal with the whistleblower claims.

Schmidt, however, found that Von Maack had “full and equal opportunity” to make her case before the arbitrator and was bound by his decision.

“Moreover, Wyckoff properly contends that plaintiff chose not to raise her allegations of unsafe conditions in the pharmacy during the arbitration hearing and cannot now relitigate the issue of her termination,” the judge said.

According to Barbara Hoey, a partner at Kelley Drye & Warren who represents the hospital, Schmidt’s ruling was the first to find that an arbitrator’s finding precludes a §741 whistlebower suit.

The judge then turned to whether Von Maack was even covered by that law.

The law defines a health care employee as “any person who performs health care services for and under the control and direction of any public of private employer which provides health care services for wages or other remuneration.”

The Court of Appeals interpreted the law in 2008 in Reddington v. Staten Island University Hospital, 11 NY3d 80, when the Second Circuit asked it to determine whether the law applied to a manager of volunteer services at a hospital.

The court found that it did not. It said that covered employees are people who “actually supply health care services, not merely coordinate with those who do.”

The statute, the court said, “is meant to safeguard only those employees who are qualified by virtue of training and/or experience to make knowledgable judgments as to the quality of patient care, and whose jobs require them to make these judgments.”

Schmidt noted that few courts have interpreted that language, but the few that had have done so narrowly.

For example, in 2009, Manhattan Supreme Court Justice Jane Solomon ruled in Phillips v. Ralph Lauren Center for Cancer Care & Prevention, 22 Misc 3d 1128[A], that an endoscopy technician was not covered by the law.

“Despite plaintiff’s contentions, and in light of the case law interpreting the statute, the court concurs with Wyckoff, namely that filling prescriptions and compounding medications at the direction of others directly responsible for providing health care service to patients—albeit an important skill requiring professional training—did not require plaintiff to make judgments about the quality of care for the patients who were to receive medications,” Schmidt wrote.

Finally, Schmidt found that even if Von Maack were covered by the law, her claim would fail because she “failed to identify the specific law, rule or regulation that she in good faith believed defendant violated” or allege that any patient was in danger because of unsafe conditions.

Hoey said the ruling would be important for hospitals throughout the city, both in upholding the arbitration and in finding that pharmacists are not covered by §741.

“Virtually every hospital in the city is unionized,” she said. “Every time someone is discharged from a hospital in the city of New York, there’s going to be arbitration.”

She said the ruling established that “the people covered by §741 are the people who are providing very direct care, the nurses, the nurses aides, the people providing hands-on care.”

Von Maack is represented by Brittany Weiner, an associate at Imbesi Christensen, who could not be reached for comment.