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Date: 06-13-2018

Case Style:

Marie Gillispie v. Regional Care Hospital Partners, Inc.

Western District of Pennsylvania Courthouse - Pittsburgh, Pennsylvania

Case Number: 16-4307

Judge: McKee

Court: United States Court of Appeals for the Third Circuit on appeal from the Western District of Pennsylvania (Allegheny County)

Plaintiff's Attorney: Noah Geary

Defendant's Attorney: Marla N. Presley

Description: We are asked to determine whether the District Court
erred in dismissing a claim under the “whistleblower”
protection provision of the Emergency Medical Treatment and
Active Labor Act (“EMTALA”), 42 U.S.C. § 1395dd. The
dispute here arises from Marie Gillispie’s allegations that the
Southwest Regional Medical Center (the “Medical Center”)
terminated her employment because she reported the Medical
Center’s allegedly improper discharge of an unstable patient
and because she reported its alleged substandard care of an
admitted patient.
The District Court granted summary judgment in favor
of the Medical Center based upon its conclusion that Gillispie
had not established a prima facie case for retaliation under
EMTALA and because various common law claims that
Gillispie included in her complaint were preempted by state
statutes. For the reasons that follow, we will affirm.
I.
A. Legal Background
3
Although hospital emergency rooms were once used
primarily to treat life-threatening injuries and serious medical
conditions, they have since morphed into little more than
primary care facilities for those who cannot afford routine
medical care.1
This shift from medical emergency management to
primary care treatment has resulted in a “grave financial
challenge” for hospital administrators.2 Many of them
responded to this economic pressure by engaging in a practice
known as “patient dumping.” That term refers to the practice
of refusing to offer emergency room treatment to indigent
patients who lack medical insurance, or transferring them to
other medical facilities before their emergency medical
condition has been stabilized.3 Congress attempted to address
this situation by enacting EMTALA.4 EMTALA imposes
certain mandates on hospitals regardless of whether a patient
who presents to an emergency room has the ability to pay for
treatment.5
1 See Kevin Grumbach et al., Primary Care and Public
Emergency Department Overcrowding, 83 Am. J. Pub.
Health. 372, 372 (1993),
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1694659/pdf
/amjph00527-0070.pdf.
2 Genova v. Banner Health, 734 F.3d 1095, 1097 (10th Cir.
2013); Torretti v. Main Line Hosps., Inc., 580 F.3d 168, 173
(3d Cir. 2009) (“Congress enacted EMTALA in the mid-
1980s based on concerns that, due to economic constraints,
hospitals either were refusing to treat certain emergency room
patients or transferring them to other institutions.”) (citing 68
Fed. Reg. 53,222, 53,223 (Sept. 9, 2003)).
3 Torretti, 580 F.3d at 173.
4 Power v. Arlington Hosp. Ass’n, 42 F.3d 851, 856 (4th Cir.
1994) (internal quotation marks omitted) (“Congress enacted
EMTALA to address a growing concern with preventing
‘patient dumping,’ the practice of refusing to provide
emergency medical treatment to patients unable to pay, or
transferring them before emergency conditions were
stabilized.” (citation omitted)).
5 Id.
4
EMTALA requires hospitals to first examine each
patient to determine whether an emergency medical condition
exists.6 “[I]f the examination reveals the patient is suffering
from an emergency medical condition, the hospital usually
must stabilize the patient before getting into the business of
trying to [discharge or] transfer him [or her] elsewhere.”7 A
hospital that either (1) fails to properly screen a patient, or (2)
releases a patient without first stabilizing his or her emergency
medical condition thereby violates EMTALA.8
Congress included a whistleblower provision in
EMTALA to maximize the likelihood that violations would be
reported, and that employees who reported them would not be
punished by the employer hospital. 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.”9
B. Factual Background
Marie Gillispie, a registered nurse, worked for the
Southwest Regional Medical Center10 for 13 years and held the
position of Quality Project Coordinator when she was
terminated in November 2012. Her responsibilities as Quality
Project Coordinator included evaluating patient care as well as
addressing patient care issues involving possible medical
errors.
On October 23, 2012, a pregnant patient, whom we will
call “E.R.,” went to the Medical Center’s emergency room
6 42 U.S.C. § 1395dd(a).
7 Genova, 734 F.3d at 1097 (citation omitted); see also 42
U.S.C. § 1395dd(b)(1).
8 A negligent violation of these provisions can subject a
hospital or physician to civil penalties not exceeding $50,000.
42 USC § 1395dd(d)(1)(A). Additional penalties are
provided for gross violations of EMTALA.
9 42 U.S.C. § 1395dd(i).
10 Appellee Essent Healthcare owns and operates the Medical
Center, which also operates as a subsidiary of Appellee
RegionalCare Hospital Partners, Inc.
5
complaining of discomfort, pain and vaginal bleeding. After
examining E.R., the Medical Center’s emergency room
personnel discharged her and instructed her to “[g]o directly to
Uniontown Hospital” to see a gynecologist. The Medical
Center did not have a gynecologist on staff. 11 The Medical
Center’s personnel did not transport E.R. to Uniontown
Hospital, and they were unable to contact Uniontown to
confirm whether E.R. got there.
The next day, October 24, 2012, Cynthia Cowie, who
was the Medical Center’s Chief Executive Officer, organized
a telephone conference to discuss what had happened to E.R.
the night before. Gillispie participated in that call in her role
as Quality Project Coordinator.
On October 25th, the day after the conference call, a
root cause analysis (RCA) meeting was called to investigate
whether E.R.’s discharge violated EMTALA and to determine
whether the circumstances surrounding E.R.’s discharge
triggered any reporting requirements under EMTALA.
Gillispie contends that she insisted that EMTALA
required the appropriate personnel at the Medical Center to
report the circumstances surrounding E.R.’s discharge to the
Pennsylvania Department of Health and/or the Pennsylvania
Patient Safety Authority.12 Despite Gillispie’s alleged
11 Appellant’s App’x Vol. I 11.
12 The Centers for Medicare and Medicaid Services (CMS)
and the Office of Inspector General (OIG) are jointly
responsible for enforcing EMTALA. The CMS authorizes
investigations of EMTALA violations by State agencies and
determines if a violation occurred. 42 C.F.R. § 489.20(m).
The OIG assesses monetary penalties against violators. 42
C.F.R. § 1003.500(a). Although EMTALA does not require
violators to self-report instances of non-compliance, “[i]t
should be considered a mitigating circumstance if a hospital
took appropriate and timely corrective action in response to
the violation.” 42 C.F.R. § 1003.520(a). Any “corrective
action [though]. . . must include disclosing the violation to
CMS prior to CMS receiving a complaint regarding the
violation from another source or otherwise learning of the
6
insistence that EMTALA required the Medical Center to selfreport,
Cowie instructed the meeting attendees not to report the
incident.13 Nevertheless, at the conclusion of the RCA
meeting, Cowie did instruct two of the Medical Center’s
directors to visit Uniontown Hospital to follow-up on E.R.’s
treatment.
Cowie convened a second meeting on October 25, 2012.
According to Gillispie’s deposition, everyone in that meeting
agreed that the Medical Center’s discharge of E.R. failed to
comply with EMTALA.14 Gillispie claimed that she and two
other attendees argued that the Medical Center therefore had a
legal obligation to report the circumstances of E.R.’s discharge
to the appropriate agency or authority.15 According to her
deposition, Gillispie told the group “I think it’s better to be on
the safe side of safety and report it because they’re gonna find
out anyway . . ..”16 Gillispie also claims that she “protested
with [Cowie] several times, or protested with the group several
times that [they] better let them know because it would come
out.”17 Despite Gillispie’s alleged insistence, Cowie
steadfastly maintained that the incident did not have to be
reported. Consequently, no one at the Medical Center reported
E.R.’s discharge to any regulatory authority or agency.
Representatives of the Pennsylvania Department of
Health did arrive at the Medical Center the next day, but they
did not come to investigate E.R.’s discharge. Rather, they
came to investigate a complaint regarding a patient with the
initials L.S. L.S.’s family had complained that, despite
Cowie’s contrary representations to them, the Medical Center
had failed to discipline nurses for the poor care L.S. had
received at the Medical Center. L.S.’s family had complained
that L.S. was given all of his medications at once despite his
inability to swallow the pills simultaneously. The family also
violation.” Id. Gillispie argues she told Appellees that there
was a duty to report E.R.’s discharge. See Appellant’s Br. 9.
13 Report & Recommendation Mot. to Dismiss 3; SA 186.
14 Appellees’ App’x 206.
15 Appellant’s App’x 206–07.
16 Appellant’s App’x 206.
17 Appellant’s App’x 207.
7
complained that L.S. had not received certain medications on
two separate occasions.
During an interview related to that investigation,
Gillispie told the investigators about her involvement in the
Medical Center’s internal review of L.S.’s treatment. She
informed them that only one of the two nurses who had been
assigned to L.S. had been disciplined for errors in his
treatment. According to Gillispie, Cowie had falsely told
L.S.’s family that both nurses had been disciplined.
That same day, Cowie learned of a letter that Gillispie
had prepared to aid the Department of Health with its inquiry
into L.S.’s treatment. According to Cowie, Gillispie claimed
that the letter had previously been drafted in connection with
the Medical Center’s July 2012 investigation into L.S.’s care.
The document was, in fact, dated July 2012, but the Medical
Center’s information technology personnel determined that the
letter had not been created until the day of the Department of
Health’s investigation into L.S.’s treatment and that it had been
backdated. At the conclusion of the Department of Health’s
visit, Cowie met with Gillispie and told her to leave the
Medical Center’s premises for the day.
Gillispie complied, but, at Cowie’s request, she returned
to the Medical Center on November 1, 2012—six days after
the Department of Health’s visit. Upon her return, Gillispie
met with Cowie and gave her a letter that included the
following text:
I am also concerned about the EMTALA
violation that occurred last week regarding the
pregnant female and transfer of her from our ER
to Uniontown Hospital’s ER. This is a serious
EMTALA violation. As you know, you
informed us that you decided to not report this
incident to the Department of Health. As I stated
to you at the meeting last week, I believe we
must self-report this incident. Pam Carroll spoke
up as well and agreed with me. I struggle to
understand your reasons for deciding to not
report this incident. I again suggest that you do
8
so, immediately, as it would be in the Hospital’s
best interest.18
Cowie terminated Gillispie’s employment at the conclusion of
that meeting.
Although Gillispie had not reported the Medical
Center’s discharge of E.R. to any agency prior to her
termination, she did subsequently report it.19 She also filed this
suit alleging that her termination violated EMTALA’s
whistleblower protection.
C. Procedural History
Gillispie’s original five-count complaint alleged that
her discharge violated EMTALA as well as Pennsylvania’s
public policy. She subsequently amended the complaint by
adding four counts under the Pennsylvania Medical Care
Availability and Reduction of Error (MCARE) Act.20 The
District Court subsequently dismissed those counts because the
applicable statute of limitations had passed.
Thereafter, a Magistrate Judge filed a Report and
Recommendation recommending that the Medical Center be
granted summary judgment on each of the five original counts
because Gillispie had not established that she had engaged in
any protected activity. The judge also recommended that her
remaining state law claims be dismissed because she had a
statutory remedy for any such violations and therefore was not
entitled to relief based upon violation of public policy. The
District Court agreed and entered an order awarding appellees
summary judgment. This timely appeal followed.21
18 Appellant’s Br. 11 (footnote added).
19 SA 24–32.
20 40 Pa. Cons. Stat. § 1303.101 et seq.
21 The District Court had federal question jurisdiction over
Gillipsie’s EMTALA claim pursuant to 28 U.S.C. § 1331. It
had supplemental jurisdiction to hear Gillipsie’s state law
claims pursuant to 28 U.S.C. § 1367. The grant of summary
judgment constitutes a final order. Thus, we have appellate
jurisdiction under 28 U.S.C. § 1291.
9
II.
In reviewing a District Court’s grant of summary
judgment, we apply the same test the District Court utilized,
“viewing those inferences that may be drawn from the
underlying facts in a light most favorable to the nonmoving
party.”22 “Where the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there is no
genuine issue for trial.”23 However, when a party alleges facts
that are blatantly contradicted by the record, we will “not adopt
that version of the facts for purposes of ruling on a motion for
summary judgment.”24
III.
As we noted at the outset, Gillispie claims that the
Medical Center’s Chief Executive Officer fired her in
retaliation for reporting an EMTALA violation based on the
Medical Center’s discharge of E.R., thus violating the
whistleblower protection contained in EMTALA. Gillispie
also contends that, to the extent her termination was motivated
by her participation in the Department of Health’s
investigation of L.S.’s care, it also violated Pennsylvania
public policy. We address each argument in turn.
1.
“In the absence of direct evidence of retaliation, courts
[have applied] the McDonnell Douglas25 burden-shifting
framework to . . . [whistleblower claims]” under EMTALA.26
That familiar approach was developed for claims brought
under Title VII of the Civil Rights Act of 1964.27 Although we
22 Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172, 175 (3d
Cir. 1999) (citation and internal quotation omitted).
23 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586–587 (1986) (citation and internal quotation
marks omitted).
24 Scott v. Harris, 550 U.S. 372, 380 (2007).
25 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
26 See Elkharwily v. Mayo Holding Co., 823 F.3d 462, 470
(8th Cir. 2016) (collecting cases).
27 42 U.S.C. §§ 2000e et seq.
10
have not yet specifically decided if we should apply that
framework to resolve EMTALA claims, “we have found that
if a statute does not provide for a burden-shifting scheme,
McDonnell Douglas applies as the default burden-shifting
framework.”28 Accordingly, we take this opportunity to hold
that, absent direct evidence of retaliation, we should apply the
burden-shifting scheme utilized in McDonnell Douglas to
resolve whistleblower claims under EMTALA.29
Accordingly, Gillispie must first establish a prima facie
case of retaliation by producing sufficient evidence to prove:
(1) she engaged in conduct that is protected by EMTALA; (2)
her employer subsequently took an adverse employment action
against her; and (3) the employer did so because she engaged
in protected activity. 30 As with Title VII claims, Gillispie need
not prove an actual EMTALA violation. Rather, she need only
establish that “[s]he was acting under a good faith, reasonable
belief that a violation existed.”31 The District Court concluded
that Gillispie had not established such a prima facie case
because she had not “made a ‘report’ as that term is considered
under EMTALA.”32
EMTALA’s whistleblower provision protects only
employees who have “report[ed] a violation” of one of the
statute’s provisions.33 The District Court held that Gillispie’s
conduct was, at most, an expression of disagreement with the
Medical Center’s decision not to report a violation, rather than
an actual report of an EMTALA violation.34 On appeal,
Gillispie argues that her EMTALA claim must survive
summary judgment because she produced sufficient evidence
to show that she had made a report within the meaning of the
28 Araujo v. N.J. Transit Rail Operations, Inc., 708 F.3d 152,
157–58 (3d Cir. 2013) (citations omitted).
29 The parties here agree that this is the correct approach to
resolve this dispute.
30 Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 193 (3d Cir.
2015) (citation omitted).
31 Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085
(3d Cir. 1996) (citation and internal quotation marks omitted).
32 Appellant’s App’x Vol. I 3.
33 42 U.S.C. § 1395dd(i).
34 Appellant’s App’x Vol. I 4.
11
statute and that this report resulted in her retaliatory
termination.
A.
The text of EMTALA does not define “report,” and
there is a dearth of case law defining that term as it is used in
EMTALA’s whistleblower provision. Accordingly, we must
begin with the premise that Congress intended the ordinary
meaning of that term.35 If the language is clear, our inquiry is
at an end.36
The Supreme Court has explained that “[a] ‘report’ is
‘something that gives information’ or a ‘notification,’ . . . or
‘[a]n official or formal statement of facts or proceedings[.]’”37
Put another way, it is “[a]n account brought by one person to
another.”38 Thus, the term ordinarily refers to nothing more
than the transmission of information. Given the absence of
ambiguity in the text of EMTALA, our inquiry into the
meaning of “report” need proceed no further. Viewing the
record and all reasonable inferences derived therefrom in the
light most favorable to Gillispie, it is clear that she failed to
establish that she actually provided any information of an
alleged EMTALA violation to anyone.
35 Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997); Gross
v. FBL Fin. Servs., Inc., 557 U.S. 167, 175–76 (2009)
(“Statutory construction must begin with the language
employed by Congress and the assumption that the ordinary
meaning of that language accurately expresses the legislative
purpose” (internal quotation marks omitted)); see also
Araujo, 708 F.3d at 158 (“Statutory analysis begins with the
plain language of the statute, ‘the language employed by
Congress.’” (citation omitted)).
36 Robinson, 519 U.S. at 340 (citation omitted).
37 Schindler Elevator Corp. v. U.S. ex rel. Kirk, 563 U.S. 401,
408–09 (2011) (citing Webster’s Third New International
Dictionary 1925 (1986); Black’s Law Dictionary 1300 (6th
ed. 1990).
38 Schindler Elevator Corp., 563 U.S. at 408 (citing 13
Oxford English Dictionary 650 (2d ed. 1989)).
12
It is undisputed that the aforementioned series of
meetings occurred on October 25, 2012. The first was the RCA
meeting, which Cowie convened to investigate whether the
Medical Center’s care of E.R. complied with EMTALA. The
second meeting was a follow-up to the first.
The parties disagree about exactly what happened in
those meetings. Gillispie alleges that she first voiced her view
that the Medical Center’s discharge of E.R. violated EMTALA
at the RCA meeting.39 However, the District Court concluded
that was not supported by the record. We agree; the record
does not support Gillispie’s claim that she made such an
assertion at the initial meeting.
During his deposition, Michael Onusko, the Medical
Center’s Senior Administrative Director of Emergency
Outpatient and Environmental Services, testified that, at the
end of the RCA meeting, all of the attendees “felt comfortable”
with the conclusion that the Medical Center had not violated
EMTALA.”40 That testimony is consistent with other evidence
in this record. A document labeled “Staff Timeline” indicates
that, on October 25th, “it was decided . . . that this was not a
potential EMTALA violation and would not be reported as
such.”41 In addition, the following people attended the RCA
meeting: Kathi Comandi, the Medical Center’s Chief Nursing
Officer; Pamela Carroll, the Medical Center’s Chief Quality
Officer ; and Bridgett Trump, the Medical Center’s Director of
the Emergency Department and Intensive Care Unit. They
agreed that each attendee believed that the Medical Center’s
handling of E.R.’s visit had not violated EMTALA.42
Gillispie’s contention to the contrary is further undermined by
her own deposition. She testified that the first meeting was a
“fact-finding meeting”43 and that “at the end of [the first]
meeting . . . Cindy had made a decision to send Bridget Trump
and Mike Onusko to Uniontown Hospital that evening.”44
When asked to recount the details of that meeting, Gillispie did
39 SA 187; Appellant’s App’x 268; Appellant’s Br. 19.
40 SA 122–24.
41 SA 101–02.
42 SA 86, 87, 03–04.
43 Appellant’s App’x 204.
44 Appellant’s App’x 205.
13
not testify that she told the attendees she believed the Medical
Center’s discharge of E.R. violated EMTALA and that it
should have been reported.
Although Gillispie is entitled to the benefit of all
reasonable factual inferences at this stage, she must
nevertheless point to some evidence in the record to support
her factual assertions.45 We agree with the District Court’s
conclusion that she failed to do so.
2.
Gillispie also contends that she reported the Medical
Center’s alleged violation during the second meeting. Her
assertion is once again contradicted by her own deposition.
According to her deposition, the second meeting began with an
overview of the discussion Trump and Onusko had with
Uniontown Hospital—the hospital to which E.R. had been
referred. Gillispie testified that after Trump and Onusko
reported on their meeting with Uniontown Hospital, “there was
a discussion. [Cowie] said, [] we won’t report this, we just had
some EMTALA close calls in the last few weeks.”46 Gillispie
testified that she responded by saying: “I think it’s better to be
on the side of safety and report it . . . .”47 She also testified that
“[e]verybody in that meeting” “decided it was an EMTALA
violation but it would not be reported . . . .”48 The decision not
to report the violation—which, according to Gillispie,
everyone acknowledged—went unchanged even after Gillispie
“protested with the group several times that . . . we better let
them know because it would come out.”49
Thus, according to Gillispie’s own deposition, the
attendees in the meeting were all aware of the potential
EMTALA violation absent any information (or “report”) from
45 Fed. R. Civ. P. 56(e); see also Siegel v. Shell Oil Co., 612
F.3d 932, 937 (7th Cir. 2010) (“Summary judgment is the put
up or shut up moment in a lawsuit.”) (citation and internal
quotation marks omitted).
46 Appellant’s App’x 206.
47 Appellant’s App’x 206.
48 Appellant’s App’x 206.
49 Appellant’s App’x 206.
14
her. Gillispie neither alleged nor testified that the Medical
Center personnel concluded that E.R.’s discharge violated
EMTALA only after she notified them of the circumstances
surrounding it. Any such evidence would paint a very different
picture than the one that was before the District Court. Instead,
Gillispie’s deposition establishes that she expressed a contrary
opinion about E.R.’s care only after everyone had already
“decided it was an EMTALA violation but it would not be
reported . . . .”50
We appreciate that Gillispie purportedly urged the
attendees at the October meetings to report the circumstances
surrounding E.R.’s discharge and told them that they “better let
[the regulatory agencies] know because it would come out.”51
However, the chronology is significant here. Gillispie’s
deposition establishes that her efforts occurred only after
Cowie and the other attendees had already concluded that
E.R.’s discharge was a violation of EMTALA. That testimony
is fatal to her attempt to now claim that she is entitled to the
sanctuary of EMTALA’s whistleblower provision because she
made a “report” under EMTALA. It is clear that she did not
provide any “information” or “notification” about E.R.’s
discharge, and she does not allege anything to the contrary.52
Rather, she testified that she merely disagreed with that
decision.
Gillispie’s claimed protests that the better course would
have been for the Medical Center to self-report the violation
was not, without more, a “report” under EMTALA. They did
not inform the Medical Center’s management of anything that
was not already known. As the District Court explained,
Gillispie’s “argument would appear to boil down to an
assertion that EMTALA’s anti-retaliation provisions reach . . .
an employee’s disagreement (which we must and will presume
50 Appellant’s App’x 206.
51 Appellant’s App’x 207.
52 See Schindler Elevator Corp., 563 U.S. at 407–08. We
realize, of course, that the Court was interpreting “report” as
used in a different statute (the False Claims Act) in Schindler
Elevator. However, the Court clearly stated that it was
applying the ordinary meaning of “report” because there, as
here, the statute did not define the term. See id.
15
here to have been made in good faith) with the decision of
hospital management not to report as an EMTALA violation a
specific episode.”53
Title VII’s anti-retaliation provision is once again
illustrative. Unlike EMTALA, Title VII provides protection
against retaliatory discharge of an employee who “opposed” a
Title VII violation or “participated in any manner” in an
investigation into a violation.54 We cannot ignore the
difference between the breadth of that protection and the much
narrower protection Congress provided under EMTALA for an
employee who reports a violation. Congress had the benefit of
hindsight when it drafted EMTALA, and its decision to
exclude certain conduct that would be protected under Title VII
suggests that EMTALA’s whistleblower protection is narrower
than the analogous provision of Title VII.55
It is undisputed that Gillispie did not give anyone at the
Medical Center any information about E.R.’s emergency room
visit or discharge that they were not already aware of. Thus,
Gillispie has failed to demonstrate that she engaged in activity
protected by EMTALA’s whistleblower provision. She did not
make a “report” and cannot establish a prima facie case for
relief as a protected whistleblower under EMTALA.56
3.
53 Appellant’s App’x Vol. I 4.
54 42 U.S.C. § 2000e-3(a).
55 See Richerson v. Jones, 551 F.2d 918, 928 (3d Cir. 1977)
(“[W]here a statute with respect to one subject contains a
specific provision, the omission of such provision from a
similar statute is significant to show a different intention
existed. This principle of construction applies with equal
force to statutory words.” (citation and internal quotation
marks omitted)).
56 The defendants also assert that, even if Gillispie has
established a prima facie case of whistleblower retaliation,
her claim nonetheless fails because Gillispie has not shown
that the defendants’ claim that it fired her only because she
backdated a document was pretextual. Given our holding that
she cannot establish that she engaged in protected conduct,
we need not reach this issue.
16
In dismissing Gillispie’s EMTALA claim, the District
Court explained: “there is no record evidence that the Plaintiff
went to any governmental or regulatory agency with a ‘report’
of an EMTALA violation.” 57 However, no such evidence is
necessary to establish that a “report” of an EMTALA violation
has been made. Had Congress intended to limit EMTALA’s
whistleblower protections to information given to regulatory
agencies or governmental authorities, it could have easily done
so. 58 Title 42 U.S.C. § 1395dd(i) is not limited to employees
who make “official reports” or who report violations to
regulatory or governmental agencies. Rather, Congress more
broadly provided that “participating hospital[s] may not
penalize . . . any hospital employee because the employee
reports a violation of ” EMTALA. Congress clearly intended
to include the transmission of information under the protective
umbrella of a “report.” Thus, covered medical facilities cannot
penalize anyone who informs someone about something that
s/he believes in good faith to be a violation of EMTALA that
was not otherwise known or had not otherwise been
discovered.
Indeed, a contrary interpretation would strip employees
(and patients) of the very protection Congress intended to
provide in enacting this statute. It 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. In such a situation, the hospital could correctly
claim that the employee had not been penalized for any report
under EMTALA because no such report had been made when
the employee was penalized.
Accordingly, we hold that EMTALA’s whistleblower
provision protects employees who inform personnel in a
covered facility of a possible EMTALA violation even though
the employee does not also inform any governmental or
regulatory agency.
4.
57 Appellant’s App’x Vol. I 3.
58 Idahoan Fresh v. Advantage Produce, Inc., 157 F.3d 197,
202 (3d Cir. 1998) (noting that we must construe remedial
legislation liberally).
17
Count II of the amended complaint alleged that the
Medical Center discharged E.R. in violation of the safeguards
provided by statutory and common law.59 Count V alleged that
the Medical Center provided L.S. with poor care by giving him
his medications all at once and twice failing to give him
medications individually.60
In Pennsylvania, an employer may terminate an
employee without cause provided that “the dictates of public
policy,” contract, or a statutory provision do not prohibit such
termination.61 Absent any such prohibition, there is no
common law cause of action in Pennsylvania for “wrongful
termination.”62 Gillispie argues that, even though she claims
wrongful termination in counts II and V, her claims may
nevertheless survive summary judgment because they allege
violations of various public policies. We have previously
determined that Pennsylvania law does not recognize a
common law cause of action for violating public policy if a
statutory remedy exists. As we explained in Wolk v. Saks Fifth
Ave., Inc., “the availability of a [statutory] remedy precludes
other common law remedies even where the statute is not
invoked.” 63 Although Gillispie’s wrongful discharge claims
are cloaked in the rhetoric of public policy, they are clearly
prohibited as common law claims for violation of public policy
because she could have brought them under Pennsylvania’s
MCARE Act.
59 SA 188–89
60 Appellant’s App’x Vol. I 35.
61 Spierling v. First Am. Home Health Servs., Inc., 737 A.2d
1250, 1253 (Pa. 1999) (citation omitted); see also Geary v.
U.S. Steel Corp., 319 A.2d 174, 180 (Pa. 1974) (noting that
“an employee at will has no right of action against his
employer for wrongful discharge” where “no clear mandate
of public policy is violated”).
62 See, e.g., Geary, 319 A.2d at 180; see also, Clay v.
Advanced Computer Applications, Inc., 559 A.2d 917, 918
(Pa. 1989) (“It should be noted that, as a general rule, there is
no common law cause of action against an employer for
termination of an at-will employment relationship.”).
63 728 F.2d 221, 224 n. 3 (3d Cir. 1984).
18
Although counts II and V of Gillispie’s amended
complaint explicitly allege that the appellees “violated,
undermined[,] and implicated . . . the MCARE Act[,]” she now
contends that the MCARE Act is inapplicable. 64 Her belated
attempt to disclaim the MCARE Act, despite relying upon it at
the outset, is likely explained by the District Court’s
determination that counts VI-IX, which were brought solely
pursuant to the MCARE Act, were time-barred by the
applicable statute of limitations.65 If she is correct about the
inapplicability of the statute, the MCARE Act would not
preclude her from recovering based upon common law and
public policy. But Gillispie is wrong. Despite her
protestations to the contrary, Gillispie’s claims are covered by
the MCARE Act, and she is therefore precluded from relying
on the alleged violations of common law and public policy.
Pennsylvania’s MCARE Act expressly incorporates the
provisions of the Pennsylvania Whistleblower Law. The
MCARE Act provides in relevant part as follows:
[a] health care worker who reports the
occurrence of a serious event or incident . . .
shall not be subject to any retaliatory action for
reporting the serious event or incident and shall
64 Am. Compl. ¶¶ 48 (count II), 122 (count V), ECF No. 32.
The “MCARE Act” refers to The Medical Care Availability
and Reduction of Error Act of March 20, 2002.P.L. 154, as
amended, 40 P.S. § 1303.101–1303.910, replaced its
predecessor, the Health Care Services Malpractice Act
(Malpractice Act) of October 15, 1975, P.L. 390, No. 111 §
101 et seq., as amended, 40 P.S. § 1301.101 et seq. The
MCARE Act was established to safeguard reasonable
compensation for victims of medical negligence and
malpractice.
65 Gillispie v. Regionalcare Hosp. Partners, Inc., 2015 WL
1839149, at *1 (W.D. Pa. Apr. 21, 2015) (noting that
Gillispie “failed to assert her claims within the 180-day
statute of limitations set forth in the Pennsylvania
Whistleblower Statute, [43 Pa. Cons. Stat. § 1424(a)]”).
19
have the protections and remedies set forth in . .
. the Whistleblower Law.66
Pennsylvania’s Whistleblower Law generally provides a civil
cause of action for an employee whose public employer
retaliates for reporting the employer’s “wrongdoing or
waste.”67 As we have explained, Gillispie is alleging that she
was terminated in retaliation for reporting the Medical Center’s
discharge of E.R. (count II) and deficient care of L.S. (count
V). Her claims fall squarely within the ambit of the MCARE
Act if they involve either an “incident” or a “serious event.”
Gillispie concedes that she is not alleging she reported a
serious event. Accordingly, we need only determine if her
claim involves an “incident” under Pennsylvania law.68
The Whistleblower Law defines an “incident” as:
[a]n event, occurrence or situation involving the
clinical care of a patient in a medical facility
which could have injured the patient but did not
either cause an unanticipated injury or require
the delivery of additional health care services to
the patient.69
Count II clearly alleges retaliation for Gillispie’s
alleged report of an “incident.” It is uncontested that E.R.’s
discharge could have, but did not, result in injury.70 Gillispie
argues E.R.’s discharge does not qualify as an “incident”
because it did require the delivery of additional health care.
She does not cite to anything in the record in making this
argument. Accordingly, as the District Court correctly held,
Gillispie’s assertion is unavailing because it completely lacks
66 40 Pa. Cons. Stat. § 1303.308(c) (emphasis and footnote
added).
67 43 Pa. Cons. Stat. § 1423(a).
68 A “serious event” is “an event, occurrence or situation
involving the clinical care of a patient in a medical facility
that results in death or compromises patient safety and results
in an unanticipated injury requiring the delivery of additional
health care services to the patient.” 40 Pa. Cons. Stat. §
1303.302.
69 Id. § 1303.302 (footnote added).
70 See Appellant’s Br. 29; SA 220.
20
evidentiary support.71 Thus, we agree with the District Court’s
conclusion that the claims in count II clearly could have been
brought pursuant to the MCARE Act.
Count V, which concerns the treatment of L.S., is
similarly precluded because it too could have been brought
under the MCARE Act. In an attempt to remove the claim
from the ambit of the MCARE Act, Gillispie argues that her
report to the Department of Health regarding L.S.’s care did
not involve an “incident” because the alleged poor care could
not have caused L.S. injury.72 But again, Gillispie has failed
to produce evidence to defeat a motion for summary judgment.
The District Court therefore had “little difficulty finding that a
hospital patient receiving medication in a manner ill-suited for
his physiology as well as failing to receive required medication
as needed could have resulted in an injury to him and/or
required that he received additional health care services.”73
Gillispie has made no attempt to refute this finding, and
contrary evidence does not exist in the record.74
The MCARE Act provides Gillispie with a statutory
remedy, and, as a result, she may not also allege a public
policy-based wrongful discharge claim. Accordingly, counts
II and V of the amended complaint were properly dismissed.
5.
In an eleventh-hour attempt to save counts II and V,
Gillispie now contends the public policy-based claims survive
even in the light of an applicable remedial statute because any
available remedies would be inadequate. In Pennsylvania, a
71 See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (summary
judgment should be entered against nonmoving party who
fails to make showing sufficient to establish existence of
element essential to that party’s case).
72 Appellant’s App’x Vol. I 35.
73 Appellant’s App’x Vol. I 35.
74 At the motion to dismiss stage, the District Court did not
dismiss counts II and V along with counts VI–XI because it
could not, at that stage, determine whether the claims fell
under the MCARE Act. Now that discovery is complete, it is
clear that counts II and V are encompassed by that Act.
21
statutory remedy is inadequate only if it either (1) does not
allow adjudication of the issue raised by the appellant, or (2)
allows irreparable harm to occur to the appellant during the
pursuit of the statutory remedy.75 The MCARE Act provides
whistleblowers with the full “protections and remedies set
forth in the . . . Whistleblower Law.”76 Gillispie cannot
establish that the MCARE Act’s damages are inadequate, and
it is not at all apparent that they are. In any event, the District
Court correctly concluded that the claims are now barred by
the 180-day limitation period that governs claims brought
under the MCARE Act.

* * *

75 LCN Real Estate, Inc. v. Borough of Wyoming, 544 A.2d
1053, 1058 n.8 (Pa. Commw. Ct. 1988).
76 40 Pa. Cons. Stat. § 1303.308(c).

Outcome: For the foregoing reasons, we will affirm the judgment
of the District Court.

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