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Nurse has claims after getting fired

Whistleblower and ‘Bowman’ counts

Paul Fletcher//September 6, 2021

Nurse has claims after getting fired

Whistleblower and ‘Bowman’ counts

Paul Fletcher//September 6, 2021//

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A nurse claiming she was fired for raising concerns about her hospital’s refusal to accept certain patients has a whistleblower claim under the Emergency Medical Treatment and Labor Act, a federal judge in Lynchburg has ruled.

The nurse also has a state-law Bowman claim for dismissal in violation of a public policy, the judge found.

The case is Hartman v. Centra Health Inc. (VLW 021-3-362). U.S. District Judge Norman K. Moon wrote the opinion.

Two patients rejected

The plaintiff, Kimberly Hartman, was a licensed professional nurse who managed the child and adolescent psychiatric unit at Virginia Baptist Hospital in Lynchburg.

One day in June 2019, Hartman, whose job included monitoring the intake of patients, noticed the count was low. She learned that the previous day, the intake department had denied requests to transfer to two children from other hospitals in Virginia.

She also learned, Moon wrote, that Dr. Jitendra Annapareddy, a psychiatrist and the only juvenile autism specialist in Lynchburg, “had denied the transfer requests because the children had autism and lived outside the Lynchburg area, a set of circumstances that made post-discharge care arrangements difficult.”

EMTALA requires participating hospitals with “specialized capabilities or facilities” to accept “an appropriate transfer of an individual who requires such specialized capabilities or facilities if the hospital has the capacity to treat the individual,” the judge said.

Hartman reported the denial to her superiors the next day. In an email, she said, “We cannot de[n]y kids with autism based on being out of the area. This is a[n] injustice to the children and frankly an EMTALA violation. We could face two [$]50,000 fines over this.”

One superior responded by warning her  to“[b]e careful about admitting ‘fault’” in communications with the emergency rooms that had requested the transfers, noting that the hospital “could be opening up a larger can of worms and indicting” itself.

In a meeting four days later that Hartman had organized to correct the problems that led to the transfer request denials, she again described the transfer request denials as EMTALA violations.

Her bosses immediately asked to meet with her.

During this second meeting, one superior warned Hartman that her email messages referencing the purported EMTALA violations “could get circulated” and were “over the top,” Moon said. Another told Hartman her email was “manic and pressured.”

Hartman stated that she needed to stop the meeting because she would not participate in a cover-up of the EMTALA violations and that she wanted a human resources department representative present. She was asked to leave the hospital. As she walked to her car, Hartman received a text message from one superior — intended for HR — asking whether she could take Hartman’s keys and badge.

Moon wrote, “After leaving the hospital that day, Hartman compiled and preserved evidence of the EMTALA violations, including the intake logs documenting the transfer request denials.

She also reported the EMTALA violations to the Virginia Department of Health’s Office of Licensure and Certification, a state agency responsible for investigating hospitals’ compliance with federal laws and regulations.

The next day she was terminated.

She filed suit in federal court.

Moon reviewed the EMTALA statute and cases construing its whistleblower protections

The statute states, “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.”

After reviewing Centra’s arguments, Moon wrote, “The Court finds that Hartman’s factual allegations are sufficient to state a plausible whistleblower retaliation claim under EMTALA. Hartman alleges that Centra violated EMTALA’s nondiscrimination provision when its intake department denied two transfer requests from other hospitals’ emergency departments to the CAPU for children in need of immediate emergency psychiatric care and stabilization.”

He added, “She also alleges that, at the time the transfer requests were made, the [hospital] had beds available and specialized capabilities—including medical personnel, such as Annapareddy, the only juvenile autism specialist in Lynchburg—needed to treat these children suffering from psychiatric crises. … The intake department’s justification for denying the transfers—that the children had autism and were located outside Lynchburg—did not comply” with the hospital’s scope of services.

Taken as true, the judge said, Hartman’s allegations support a reasonable inference that Centra refused to accept appropriate transfers of two individuals who required the hospital’s specialized capabilities or facilities, even though the CAPU had the capacity to treat those individuals.

She was terminated four days after she first reported the EMTALA violations to her supervisors, by email, and just one day after those supervisors ordered her to leave the hospital following a meeting she organized to discuss the violations, he noted.

“The Court concludes that Hartman alleges sufficient facts to show that she reported EMTALA violations and that Centra penalized or took adverse action against her for reporting those violations. Thus, Hartman has stated a plausible EMTALA whistleblower claim,” he wrote, denying the motion to dismiss.

‘Bowman’ claim

Since 1985, Virginia courts have recognized a narrow exception to employment at will for an employee who is wrongfully terminated in violation of a public policy.

The watershed case of Bowman v. State Bank of Keysville gives the name to Bowman wrongful termination claims.

Bowman claims cannot be based on federal statutes; they must rely on a state law, Moon wrote.

But here, he said, Hartman alleged that Centra violated the public policy expressed in Virginia Code § 32.1-125.4, which states: “No hospital may retaliate or discriminate in any manner against any person who (i) in good faith complains or provides information to, or otherwise cooperates with, the Department or any other agency of government or any person or entity operating under contract with an agency of government having responsibility for protecting the rights of patients of hospitals, or (ii) attempts to assert any right protected by state or federal law.”

Moon wrote, “Hartman has alleged sufficient facts, taken as true, to support reasonable inferences that (1) Centra violated the public policy explicitly expressed in Virginia Code § 32.1-125.4 by terminating Hartman’s employment in retaliation for attempting to assert her right to report EMTALA violations at VBH to her supervisors and (2) Hartman, as a VBH employee, was a member of that class of persons directly entitled to the protection enunciated by the public policy.

He let the Bowman claim go forward, denying Centra’s motion to dismiss.

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