iThe United States District Court for the Western District of Wisconsin recently granted summary judgment to a healthcare organization concerning a physician’s wrongful discharge and tortious interference claims regarding allegations that the healthcare organization terminated the physician after he criticized its COVID-19 policies. Hartsuch v. Ascension Medical Group- Northern Wisconsin, Inc., 2021 WL 3809908 (U.S.D.C., W.D. Wisconsin 2021). Ascension Medical Group (“AMG”) operates hundreds of healthcare facilities across more than 20 states. In 2019, AMG reached out to Delta Locums Tenens (“Delta”) to fill a vacancy in the emergency department at one of its facilities, Howard Young Medical Center (the “Hospital”). Delta arranged for its employee, Dr. David Hartsuch (“Dr. Hartsuch”), to fill the locums tenens assignment shortly thereafter.[1]
On March 18, 2020, AMG issued guidance to providers practicing at its healthcare facilities related to the COVID-19 pandemic concerning certain precautionary measures to avoid the spread of the disease.[2] On March 20, 2020, Dr. Hartsuch spoke with Dr. Heong P’ng, the medical director for emergency services at the Hospital, to express his concerns with certain aspects of the guidance issued by AMG on COVID-19 and to suggest certain measures that could be taken in accordance with guidance issued by the Centers for Disease Control (“CDC”) to limit the spread of COVID-19. During this conversation, Dr. Hartsuch expressed to Dr. P’ng that he wasn’t sure he could continue to work in a place that wasn’t making progress toward the improvements he had identified.[3] On March 23, 2020, Dr. Hartsuch sent an email to the Hospital’s supervisor of physician-based services, Jennie Larson, expressing concerns with AMG’s policies on limiting the spread of COVID-19.[4] Dr. Hartsuch sent a follow-up email on March 24, 2020, before anyone had responded to the March 23rd email, stating “if [AMG] does not improve their safety protocols I cannot continue to work at [the Hospital] in good conscience.”[5] Ms. Larson forwarded these emails to Dr. P’ng. Based on the statements made in the emails and the statements made by Dr. Hartsuch to Dr. P’ng, Dr. P’ng became concerned that Dr. Hartsuch would stop showing up for his shifts at the Hospital if his demands were not met. As a result, Dr. P’ng directed Ms. Larson to remove Dr. Hartsuch from the shift schedule at the Hospital.[6]
Dr. Hartsuch ultimately sued AMG and Ms. Larson alleging wrongful discharge and tortious interference with his employment contract with Delta, the staffing agency that placed him at the Hospital.[7] Dr. Hartsuch argued that AMG violated the law by discharging him after he criticized the hospital’s protocols related to COVID-19. Wisconsin’s employee-at-will doctrine generally provides that an employer may discharge an employee for any reason or no reason at all.[8] To get around this general rule, Dr. Hartsuch alleged that AMG committed the common-law tort of wrongful discharge, which applies when “the discharge is contrary to a fundamental and well-defined public policy as evidenced by existing law.”[9] Dr. Hartsuch alleged that he was discharged for attempting to fulfill an affirmative obligation related to the public policies of stopping the spread of COVID-19 and by doing so was following the standard of care for physicians.[10]
The district court granted summary judgment in favor of the Hospital on the basis that (a) Dr. Hartsuch was not fulfilling an affirmative obligation imposed by public policy to prevent the spread of COVID-19, and (b) no reasonable jury could find that AMG canceled Dr. Hartsuch’s shifts because he complained about the safety guidance rather than because he threatened to stop working.[11] Specifically, the district court found that the public orders aimed at stopping the spread of COVID-19, including executive orders by the state declaring a public health emergency, did not constitute an affirmative legal obligation that Dr. Hartsuch was compelled to fulfill.[12] As such, Dr. Hartsuch’s claims were dismissed on summary judgment.
The district court issued its order on August 26, 2021. We will continue to monitor this case and may update this article if and when this matter is appealed.
FOOTNOTES
[1] Hartsuch v. Ascension Medical Group- Northern Wisconsin, Inc., 2021 WL 3809908 at *1 (U.S.D.C., W.D. Wisconsin 2021).
[2]Id.
[3]Id.
[4]Id. at 2.
[5]Id.
[6]Id. at 3.
[7] Ms. Larson was dismissed from the lawsuit on summary judgment on the basis that all of her acts were performed in a ministerial capacity and that Dr. Hartsuch was not able to identify a basis for holding her liable under the stated circumstances. Id. at 3.
[8]Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 567, 335 N.W.2d 834, 837 (1983)
[9]Winkelman v. Beloit Mem’l Hosp., 168 Wis. 2d 12, 20, 483 N.W.2d 211, 214 (1992).
[10] Hartsuch at 4.
[11]Id.
[12]Id. at 5.
