Hitesman v. Bridgeway Inc., A-0140-11T3; Appellate Division; opinion by Espinosa, J.A.D.; decided and approved for publication March 22, 2013. Before Judges Graves, Espinosa and Guadagno. On appeal from the Law Division, Somerset County, L-278-08. DDS No. 25-2-9356 [32 pp.]

A licensed or certified health-care professional may assert a claim against his or her employer pursuant to the Conscientious Employee Protection Act (CEPA) based on a reasonable belief that the employer’s conduct constitutes improper quality of patient care. The statutory definition of "improper quality of patient care" includes the violation of any professional code of ethics. In this appeal, the issue is whether plaintiff’s proof, and specifically his reliance on a professional code of ethics not applicable to his employer, was sufficient to support a liability verdict in his favor.

Plaintiff was terminated from his employment as a registered nurse by defendant Bridgeway Inc., d/b/a Bridgeway Care Center, 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 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.

Held: Because he lacked an objectively reasonable belief that Bridgeway’s conduct constituted improper quality of patient care or violated public policy, plaintiff failed to satisfy the first prong of his CEPA claim as a matter of law and the verdict in plaintiff’s favor on liability is reversed.

Plaintiff has not identified any law, or rule or regulation promulgated pursuant to law, or declaratory ruling adopted pursuant to law that he reasonably believed Bridgeway had violated. His CEPA claim therefore rests on a claim that he reasonably believed that Bridgeway’s conduct constituted improper quality of patient care because it violated a professional code of ethics. The issue here is whether plaintiff satisfied the first prong of his CEPA claim, which required him to set forth facts that would support an "objectively reasonable belief" that a violation has occurred.

To prove his claim was based on an allegation of improper quality of patient care, plaintiff was first required to identify the professional code of ethics that he believed Bridgeway violated. Plaintiff identified the relevant authorities as § 3.5 of the ANA Code of Ethics, the code of conduct contained in the handbook, and the statement of residents’ rights. Neither the code of conduct nor the statement of residents’ rights qualify as "any law or any rule, regulation or declaratory ruling adopted pursuant to law or any professional code of ethics." Therefore, neither may support an objectively reasonable belief that Bridgeway’s conduct constituted an improper quality of patient care.

The question remains whether the ANA code of ethics can support an objectively reasonable belief that Bridgeway violated it. As plaintiff acknowledged, the ANA code of ethics does not apply to Bridgeway. He contended, however, that it could provide a basis for a CEPA claim, in part because the ANA code of ethics was incorporated in Bridgeway’s handbook.

The section of the ANA code of ethics relied on by plaintiff provides guidance to nurses who become aware of instances of incompetent, unethical, illegal or impaired practice in the provision or denial of health care. Its purpose is to inform nurses on the proper discharge of their responsibility as patient advocates under such circumstances. As incorporated in Bridgeway’s handbook, the ANA code of ethics provided standards for employees to follow.

Plaintiff questioned the quality of care provided by Bridgeway. If he complied with the ANA code of ethics, such compliance would shed no light on whether his concerns were based on a purely subjective disagreement or an objectively reasonable belief that his employer engaged in misconduct. More important, the ANA code of ethics establishes no standard regarding the patient care Bridgeway was required to provide to its patients. As a result, plaintiff’s belief that Bridgeway acted in violation of the ANA code of ethics was not objectively reasonable as a matter of law.

Plaintiff also claims that he reasonably believed Bridgeway’s conduct was incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment. His reliance on the ANA code of ethics, the code of conduct and statement of residents’ rights is inadequate to support the first prong of this claim as well.

The section of the ANA code of ethics relied on by plaintiff provides guidance to nurses in their roles as patient advocates. It neither expresses any policy based on a constitutional provision, statute, rule or regulation promulgated pursuant to law, nor provides a standard that clearly delineates acceptable versus unacceptable conduct. However, even if the ANA code of ethics were considered a clear mandate of public policy, plaintiff has identified no "incompetent, unethical, illegal, or impaired practice" by Bridgeway that would implicate the code. Further, plaintiff has not identified any action by Bridgeway that was incompatible with any expression of policy in the code. The code of conduct and the statement of residents’ rights fail to reflect a clear mandate of policy.

The appellate panel finds that plaintiff lacked an objectively reasonable belief that Bridgeway engaged in conduct that was incompatible with a clear mandate of public policy based on the ANA code of ethics, the code of conduct or the statement of residents’ rights. Because he lacked an objectively reasonable belief that Bridgeway’s conduct constituted improper quality of patient care or violated public policy, plaintiff failed to satisfy the first prong of his CEPA claim as a matter of law.

The verdict in plaintiff’s favor on liability is reversed.

For appellant/cross-respondent — Paul Castronovo (Castronovo & McKinney; Castronovo and Megan Frese Porio on the brief).For respondent/cross-appellant — Craig S. Provorny (Herold Law).