The U.S. Court of Appeals for the Second Circuit recently certified two questions regarding New York’s Whistleblower Laws to the New York State Court of Appeals. The questions involved the waiver provision of New York’s general Whistleblower Law and the scope of New York’s Health Care Whistleblower Law. This month, in Reddington v. Staten Island Univ. Hosp., 2008 N.Y. LEXIS 1932 (July 1, 2008), the New York Court of Appeals answered the questions, holding that: (1) the general Whistleblower Law’s waiver provision does not bar claims under the Health Care Whistleblower Law; and (2) the Health Care Whistleblower Law only protects employees who treat patients, not administrators or others – even if they complain about patient care.
New York’s Whistleblower Laws
The Reddington decision addressed two New York whistleblower laws, the general Whistleblower Law (N.Y. Labor Code § 740) and the Health Care Whistleblower Law (N.Y. Labor Law § 741).
New York’s general Whistleblower Law bars an employer from taking “retaliatory personnel action” against an employee for: (1) disclosing or threatening to disclose “an activity, policy or practice of the employer” that “is in violation of law, rule or regulation” and that “creates and presents a substantial and specific danger to the public health or safety” or that “constitutes health care fraud”; (2) cooperating with an investigation into such a violation; or (3) objecting to or refusing to participate in such a violation.
New York’s Health Care Whistleblower Law provides similar, though in certain respects more expansive, protection to an employee “who performs health care services for and under the control and direction of any public or private employer which provides health care services for wages or other remuneration.” This law is also governed by a longer statute of limitations than is the general Whistleblower Law.
Staten Island University Hospital (the “Hospital”) employed plaintiff Carmel Reddington from 1994 to 2002. The Hospital hired her as a Coordinator of Volunteer Services and subsequently promoted her to Manager of Volunteer Services. In early 2002, she also began providing translation services for the Hospital’s International Patient Program. In August 2002, the Hospital appointed her to be the director of the program. In this position, she was required to coordinate transportation, lodging, and medical services for international patients, and to coordinate marketing and translation services for the program. She was also required to handle administrative program-related tasks.
Reddington alleges that both when she was a translator for and the director of the program, she received numerous complaints from patients and their families of “inadequate and non-treatment.” She reported these complaints to her supervisor. She also “conveyed her uneasiness” about the propriety and legality of the program’s practice of paying fees to certain physicians for referring cancer patients.
Reddington ultimately perceived that another hospital employee was undermining her leadership and raised this concern with the Vice President of Human Resources. One month later, the Vice President allegedly falsely accused Reddington of calling her supervisor after being instructed not to do so. Reddington contended that she was unaware of any such instruction and, in any event, had only done so to coordinate the transportation of a deceased patient’s body back to England. The Vice President indicated that Reddington was only responsible for Italian patients, which Reddington disputed. The Vice President then terminated Reddington’s employment for “disobeying orders.”
The Hospital sent Reddington a letter indicating that it had discharged her “due to probationary failure.” According to Reddington, she was unaware that her position included a probationary period.
The District Court
Reddington filed a lawsuit in the U.S. District Court for the Eastern District of New York against the Hospital asserting, among other causes of action, claims under New York’s Whistleblower Law and Health Care Whistleblower Law. She then voluntarily dismissed the Whistleblower claim, acknowledging that it was time-barred.
The district court dismissed Reddington’s Health Care Whistleblower claim, concluding that it was barred by the waiver provision of the general Whistleblower Law. The court ruled that, in any event, the Health Care Whistleblower Law did not apply to Reddington, because she was not an “employee” as defined by that statute. Reddington appealed.
The Second Circuit
The Second Circuit certified two questions to the New York State Court of Appeals. First, the Second Circuit asked whether the waiver provision of the Whistleblower Law bars a claim under the Health Care Whistleblower Law. Second, the Second Circuit asked whether the definition of “employee” under the Health Care Whistleblower Law encompasses an individual who does not render medical treatment.
New York Court of Appeals
In order to answer the first question, the New York State Court of Appeals considered the text of the general Whistleblower Law’s waiver provision. That provision states that instituting an action under the Whistleblower Law “shall be deemed a waiver of the rights and remedies available under any other ... law, rule or regulation or under the common law.”
The Court interpreted this text as meaning that instituting an action alone “triggers waiver.” According to the Court, the purpose of the provision is to compel plaintiffs to either file a whistleblower claim under the statute or some other claim. Based upon the plain text of the statute and the legislative history, the Court rejected Reddington’s argument that filing a time-barred Whistleblower Law claim or amending the complaint to omit that claim precludes waiver.
Nonetheless, the Court concluded that the waiver provision did not bar Reddington’s Health Care Whistleblower Law claim. The Court reached this conclusion based upon the “uniquely interconnected elements” of the two laws and, specifically, the fact that “every [Health Care Whistleblower Law] claim expressly relies on and incorporates [the general Whistleblower Law] for purposes of The New York Court of Appeals then turned to the second certified question and considered who is an “employee” under the Health Care Whistleblower Law. The Court explained that, unlike the general Whistleblower Law, the Health Care Whistleblower Law “has an exactingly specific definition” of employee. The Court explained that this definition applies “only to those employed by ‘employer[s] provid[ing] health care services.’” The Court explained that this category is narrowed further to include only those “‘perform[ing] health care services.’”
Based upon the plan text of the statute and its legislative history, the Court determined that the phrase, “performs health care services,” means “to actually supply health care services, not merely to coordinate with those who do.” Thus, the Health Care Whistleblower Law does not apply to administrators or other employees who do not treat patients. enforcement.” The Court explained that the Health Care Whistleblower Law does not create a private right of action. Instead, it expressly permits enforcement pursuant to the enforcement provisions of the general Whistleblower Law. Therefore, according to the Court, initiating a claim under the general Whistleblower Law does not bar a claim under the Health Care Whistleblower Law.
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