NIAL LUU v. FALLON SERVICE, INC., & Another

APPEALS COURT

NIAL LUU vs. FALLON SERVICE, INC., & another[1]

Docket:

23-P-340

Dates:

October 7, 2024 - January 30, 2025

Present:

Blake, Ditkoff, & D'Angelo, JJ.

County:

Worcester

Keywords:

Employment, Termination, Retaliation. Emotional Distress. Ambulance Worker. Workers' Compensation Act, Exclusivity provision, Serious and wilful misconduct of employer. Statute, Construction. Public Policy. Practice, Civil, Judgment on the pleadings.

Civil action commenced in the Superior

Court Department on December 27, 2021.

The case was heard by J. Gavin Reardon,

Jr., J., on a motion for judgment on the pleadings.

Nial Luu, pro se.

Timothy O. Egan for the defendants.

DITKOFF, J. The plaintiff, Nial Luu, filed a complaint in

the Superior Court alleging whistleblower, wrongful termination, and tort

claims against Fallon Service, Inc. (Fallon), and its vice-president, Kevin

Mont, arising from his termination as an emergency medical technician (EMT)

after he photographed an injured patient and used that photograph to report

alleged medical misconduct by Fallon to the Office of Emergency Medical

Services (OEMS). A judge dismissed the

complaint for failure to state a claim.

Concluding that G. L. c. 149, § 187 (b), prohibits

retaliation by an ambulance service against an EMT employed by it for reporting

medical misconduct to the government, we reverse the dismissal of the

whistleblower claim. Further concluding

that, based on the arguments raised in the Superior Court, the judge properly

dismissed the other counts, we otherwise affirm.

1.

Background.[2] On November 30,

2019, the plaintiff, an EMT employed by Fallon, responded to a call at

Encompass Health Rehabilitation Hospital to transport a patient experiencing an

altered mental status to a hospital. The

plaintiff and his partner placed the patient in the ambulance. The partner remained in the back of the

ambulance with the patient, where he was supposed to provide care to the

patient, while the plaintiff drove the ambulance to the hospital. The plaintiff alleges that he witnessed his

partner on his cell phone and neglecting to provide care to the patient as they

traveled.

Upon arrival at the hospital, the

plaintiff became aware of a new hemorrhage wound on the patient's arm. The plaintiff questioned his partner about

how the injury resulted, but the partner was not able to provide an

explanation. Believing that the injury

was a result of his partner's misconduct and neglect of the patient, the

plaintiff used his personal cell phone to take photographs and one video

recording of the patient's arm injury prior to taking the patient into the

hospital.

The plaintiff reported the incident to his

field supervisor that same day and showed her the photographs and video

recording. She praised the plaintiff and

requested that he forward the images to her.

The plaintiff did so on December 4, 2019. This was the last that the plaintiff heard

about the incident from his supervisor, despite numerous attempts to follow up

on the status of the report.

Thirty days later, the plaintiff still had

not heard anything about the report from his supervisor or otherwise. Despite this, he experienced a change in his

job duties during this period which he believed was a result of his reporting

the incident. Whereas the plaintiff had

previously worked in the field providing EMT care, his job duties now included

sweeping, mopping, and sanitizing the station and paramedic trucks -- duties

usually reserved for more junior trainees.

The plaintiff rarely, if ever, was asked to do these tasks prior to his

reporting the incident to his supervisor.

On January 8, 2020, the plaintiff met with

Fallon's vice-president, human resources director, and senior

vice-president. These individuals

notified the plaintiff that his possession of the images was in violation of company

policy and instructed him to delete the photographs and video recording. The plaintiff, however, believed that he was

required to file a report with OEMS if Fallon did not pursue an internal

investigation. The plaintiff

subsequently filed a report with OEMS on January 14.

On January 17, 2020, the plaintiff again

met with Fallon's vice-president, at which time he deleted the images. Nonetheless, Fallon terminated the plaintiff,

explaining in a letter that he was terminated for failing to "comply with

company policy FP-247" by not deleting the images at the direction of his

superiors.

The plaintiff filed a complaint in the

Superior Court against Fallon and Fallon's vice-president for a whistleblower

violation (count 1), wrongful termination in violation of public policy

(count 2), and negligent infliction of emotional distress (count 3).[3] The complaint labeled the whistleblower count

as falling under G. L. c. 149, § 185 (b) (3).

The defendants moved for judgment on the

pleadings. Both sides briefed the

whistleblower claim under G. L. c. 149, § 185 (b) (3),

and accepted that the statute applied to Fallon. (In fact, it applies only to governmental

entities, G. L. c. 149, § 185 [a] [2].) In ruling, the judge sua sponte raised the

inapplicability of G. L. c. 149, § 185 (b) (3), to

Fallon and dismissed on that basis. The

judge also found that the termination did not violate public policy and that

the tort claim was barred by the exclusivity provisions of the workers'

compensation act, G. L. c. 152, § 26.

The plaintiff filed a prompt motion for

relief from judgment under Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974),

arguing that the whistleblower claim falls under G. L. c. 149,

§ 187 (b), the statute prohibiting retaliation against whistleblowers

in the medical context, and suggesting that the complaint could be amended to

change the label on the whistleblower count, if necessary. The judge denied the motion, concluding that

the plaintiff had not shown excusable neglect and that any amendment would be

futile because G. L. c. 149, § 187, did not apply to the

plaintiff either. This appeal followed.

2.

Standard of review. "A

motion for judgment on the pleadings under Mass. R. Civ. P. 12 (c) is

'actually a motion to dismiss . . . [that] argues that the complaint

fails to state a claim upon which relief can be granted.'" Mullins v. Corcoran, 488 Mass. 275 , 281

(2021), quoting Jarosz v. Palmer, 436 Mass. 526, 529 (2002). "We review the allowance of a motion for

judgment on the pleadings under Mass. R. Civ. P. 12 (c) . . . de

novo." C.M. v. Commissioner of the

Dep't of Children & Families, 487 Mass. 639 , 646 (2021), quoting Marchese

v. Boston Redev. Auth., 483 Mass. 149, 156 (2019). "We draw our facts from the well pleaded

allegations of the complaint and the admissions or failures of denial presented

by the answer." Ridgeley Mgt. Corp.

v. Planning Bd. of Gosnold, 82 Mass. App. Ct. 793, 804 (2012). To survive a motion to dismiss, the plaintiff

must present factual allegations that rise above the level of speculation, and

plausibly suggest an entitlement to relief.

See Cournoyer v. Department of State Police, 93 Mass. App. Ct. 90, 91

(2018).

3.

Scope of the medical whistleblower statute. General Laws c. 149, § 187, sets

forth a statutory scheme that prohibits health care facilities from terminating

or otherwise retaliating against health care providers who report certain forms

of believed misconduct to supervisors or public authorities.[4] The parties agree that Fallon is a health

care facility.[5] They disagree whether

the plaintiff, an EMT, qualifies as a health care provider under the statutory

definition.

"Our primary duty in interpreting a

statute is 'to effectuate the intent of the Legislature in enacting

it.'" Commonwealth v. Sabin, 104

Mass. App. Ct. 303 , 305 (2024), quoting Commonwealth v. Sousa, 88 Mass. App.

Ct. 47, 49 (2015). "The language of

the statute is the starting point for all questions of statutory

interpretation." Sabin, supra,

quoting Bank of N.Y. Mellon v. Morin, 96 Mass. App. Ct. 503 , 507 (2019). "Statutory language should be given

effect consistent with its plain meaning.

Where . . . that language is clear and unambiguous, it is

conclusive as to the intent of the Legislature." Bank of N.Y. Mellon, supra, quoting Patriot

Resorts Corp. v. Register of Deeds for the County of Berkshire, N. Dist., 71

Mass. App. Ct. 114, 117 (2008).

Under G. L. c. 149,

§ 187 (a), a "health care provider" is

"an

individual who is a licensed health care provider under the provisions of

chapter 112 including, but not limited to, registered nurses, licensed

practical nurses, physicians, physician assistants, chiropractors, dentists,

occupational therapists, physical therapists, optometrists, pharmacists,

podiatrists, psychologists and social workers or any other health care provider

who performs or has performed health care related services for and under the

control of a health care facility for care-related services."

The plaintiff

here falls squarely within "any other health care provider who performs or

has performed health care related services for and under the control of a

health care facility for care-related services." G. L. c. 149,

§ 187 (a). As an EMT employed

by Fallon, the plaintiff performed care-related services for and under the

control of Fallon, a health care facility, including driving an ambulance and

providing patient care in transport.

During the incident in question, the plaintiff responded to a call at a

rehabilitation hospital for a patient experiencing a medical emergency. The plaintiff was responsible for driving the

ambulance as his partner provided medical care to the patient in the

vehicle. In each of these tasks, the

plaintiff interacted directly with the patient, who required immediate health

care service. This falls within the

patient care that G. L. c. 149, § 187, was designed to

safeguard.

We are not persuaded by Fallon's argument

that Perez v. Bay State Ambulance & Hosp. Rental Serv., Inc., 413 Mass. 670

(1992), requires a different result. In

Perez, the Supreme Judicial Court determined that the definition of

"health care provider" in G. L. c. 231, § 60B, the

medical malpractice tribunal statute, did not include EMTs. Perez, supra at 675-676 . General Laws c. 231, § 60B, states,

"For the

purposes of this section, a provider of health care shall mean a person,

corporation, facility or institution licensed by the commonwealth to provide

health care or professional services as a physician, hospital, clinic or

nursing home, dentist, registered or licensed nurse, optometrist, podiatrist,

chiropractor, physical therapist, psychologist, social worker, or

acupuncturist, or an officer, employee or agent thereof acting in the course

and scope of his employment" (emphasis added).

The Supreme

Judicial Court held that, because EMTs are not specifically enumerated within

the Legislature's list of "provider[s] of health care," G. L.

c. 231, § 60B, did not apply.

Perez, supra. This circumscribed

definition does not bear on the meaning of the open-ended phrase "any

other health care provider who performs or has performed health care related

services for and under the control of a health care facility for care-related

services" that appears in the medical whistleblower statute, G. L.

c. 149, § 187 (a).

It is unsurprising that G. L.

c. 149, § 187 (a), incorporates expansive phrasing not found in

G. L. c. 231, § 60B, such as "including, but not limited

to" and "or any other health care provider," given its

difference in purpose. General Laws

c. 231, § 60B, was enacted to establish medical tribunals to

"guarantee the continued availability of medical malpractice

insurance" by "discourag[ing] frivolous claims whose defense would

tend to increase premium charges for medical malpractice insurance." Lane v. Winchester Hosp., 101 Mass. App. Ct.

74, 77 (2022), quoting Brodie v. Gardner Pierce Nursing & Rest Home, Inc.,

9 Mass. App. Ct. 639, 641 (1980). In

contrast, G. L. c. 149, § 187, was "designed to safeguard

patient care by protecting the rights of health care providers who expose

deficiencies in care that violate laws or regulations or professional standards

that endanger public health."

Commodore v. Genesis Health Ventures, Inc., 63 Mass. App. Ct. 57, 66

(2005). The number of individuals who

require protection for reporting misconduct to supervisors or public

authorities exceeds those whose duties expose them to liability for medical

malpractice. As such, there is nothing

odd in the notion that the scope and coverage of "health care

providers" protected under G. L. c. 149, § 187, is more

expansive than those "health care providers" included in G. L.

c. 231, § 60B.

To be sure, the complaint wrongly labeled

the whistleblower count as a "violation of G.L. c.149

§ 185(b)(3)." Massachusetts

Rule of Civil Procedure 8 (a), 365 Mass. 749 (1974), however, "does not

require a plaintiff to even allege the correct legal theory if the facts as

alleged entitle him to any form of relief." Windross v. Village Automotive Group, Inc.,

71 Mass. App. Ct. 861 , 867 n.4 (2008).

Accord Jones v. Boykan, 464 Mass. 285, 288 (2013); Tetrault v. Mahoney,

Hawkes & Goldings, 425 Mass. 456, 463 (1997). Where the complaint made out a cognizable

whistleblower claim under G. L. c. 149, § 187 (b), but

cited the wrong statute, its dismissal for failure to state a claim was in

error.

To be sure, the plaintiff did not invoke

G. L. c. 149, § 187 (b), in opposing the defendants' motion

for dismissal. Usually, an argument not

raised in the Superior Court is waived on appeal. See K & K Dev., Inc. v. Andrews, 103

Mass. App. Ct. 338 , 350 n.22 (2023).

Here, however, the reason why the plaintiff did not raise that argument

is that the defendants never challenged -- and, indeed, accepted -- that

G. L. c. 149, § 185 (b) (3), applied to Fallon and the

plaintiff. Although the judge was

entitled to raise the inapplicability of that statute sua sponte, the plaintiff

was entitled to notice of this possible, unbriefed ground for dismissal and to

an opportunity to respond with the argument that the complaint also stated a

claim under G. L. c. 149, § 187 (b). We cannot attribute waiver to the plaintiff's

failure to anticipate and preemptively respond to the judge's sua sponte ground

for dismissal. Accordingly, the

whistleblower count should not have been dismissed.

4.

Termination in violation of a recognized public policy. "As an exception to the general rule

that an employer may terminate an at-will employee at any time with or without

cause, we have recognized that an at-will employee has a cause of action for

wrongful termination only if the termination violates a clearly established

public policy." Barbuto v.

Advantage Sales & Mktg., LLC, 477 Mass. 456, 471 (2017), quoting King v.

Driscoll, 418 Mass. 576, 582 (1994), S.C., 424 Mass. 1 (1996). "[T]he public policy exception to

at-will employment has been recognized 'for asserting a legally guaranteed

right (e.g., filing a worker's compensation claim), for doing what the law

requires (e.g., serving on a jury), or for refusing to do that which the law

forbids (e.g., committing perjury).'"

Meehan v. Medical Info. Tech., Inc., 488 Mass. 730 , 733 (2021), quoting

Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass.

145, 149-150 (1989). The law recognizes

a fourth category to the exception, for "performing important public

deeds, even though the law does not absolutely require the performance of such

a deed." Meehan, supra, quoting

Flesner v. Technical Communications Corp., 410 Mass. 805, 810-811 (1991).

The only argument made by the plaintiff in

the Superior Court was that "M.G.L. c. 111, § 72G required

Mr. Luu to create a detailed patient neglect report, and his termination,

as a result of the contents of his report, is a direct violation of the

statute." This section, however,

did not impose an obligation on either the plaintiff or Fallon. General Laws c. 111, § 72G, imposes

a duty on an expansive list of medical and nonmedical persons[6] (and creates a

right for "any other person") to report abuse, mistreatment, neglect,

or misappropriation committed against "an individual who receives health,

homemaker or hospice services at home from an individual employed by a home

health agency or a hospice program" or a person "who resides in a

long term care facility."

G. L. c. 111, §§ 72F, 72G, first & second pars. Here, the complaint does not allege that the

patient was at home at the time of the injury and, indeed, alleges that the

patient was being cared for by another EMT working for an ambulance

service. Accordingly, this statute

provided no duty for the plaintiff to report the injury and created no public

policy against his termination.

We do not suggest that there is no other

basis in public policy to forbid the termination of an EMT because he reported

an injury to a patient to the government.

(Indeed, as stated, G. L. c. 149, § 187 [b], appears

to forbid just that.) Here, however, the

defendants specifically argued that there was no basis in public policy to

forbid the plaintiff's termination, and the plaintiff raised only G. L.

c. 111, § 72G, as a basis for finding such a public policy. When given notice, an appellant may not raise

on appeal grounds for opposing the motion to dismiss that were not raised in

the Superior Court. See Slive & Hanna,

Inc. v. Massachusetts Comm'n Against Discrimination, 100 Mass. App. Ct. 432 , 441

n.17 (2021). Accordingly, we have no

cause to disturb the dismissal of this count.

5.

Exclusivity of the workers' compensation act. "The [workers' compensation act]

provides the exclusive remedy for claims brought by an injured employee against

an employer." Meehan v. Lazer Spot,

Inc., 104 Mass. App. Ct. 690 , 692 (2024), quoting Molina v. State Garden, Inc.,

88 Mass. App. Ct. 173, 178 (2015).

"Under [the exclusivity provision], an injury is compensable where

the plaintiff is an employee who suffers a 'personal injury' that arises 'out

of and in the course of his employment.'"

Saab v. Massachusetts CVS Pharmacy, LLC, 452 Mass. 564, 619-620 (2008),

quoting Green v. Wyman-Gordon Co., 422 Mass. 551, 558 (1996). "Claims for negligence, gross negligence,

and even wilful misconduct by the employer, whatever the genesis, are all

covered under the exclusive remedy provision of the act." Estate of Moulton v. Puopolo, 467 Mass. 478,

490 (2014).

The plaintiff argues that his claim for

negligent infliction of emotional distress is not barred because "'serious

and willful misconduct' by a supervisor or employer is an exception to the

exclusivity provision of the Workers' Compensation Act and . . . Luu

is entitled to a claim under Chapter 152 Section 28." General Laws c. 152, § 28, however,

does not negate the exclusivity of workers' compensation, but merely increases

the recovery obtained through workers' compensation.[7] See, e.g., CNA Ins. Cos. v. Sliski, 433 Mass.

491, 494-495 (2001) ("A worker who is injured by the 'serious and wilful

misconduct' of an employer must forgo the recovery of tort damages that would

likely be far more substantial and a common-law claim with a greater likelihood

of success than his recovery or claim could be for injuries resulting from an

employer's mere negligent conduct"); Drumm's Case, 74 Mass. App. Ct. 38,

41 (2009) ("The 'serious and wilful misconduct' . . . lays the

foundation for double compensation under § 28 . . .").

6.

Conclusion. So much of the

judgment as dismissed count 1 is reversed.

The judgment is otherwise affirmed.

The denial of the motion for relief from judgment is affirmed.[8]

So ordered.

footnotes

[1] Kevin Mont.

[2] "We

summarize the facts alleged in the complaint, which we accept as true in

reviewing the allowance of the motion to dismiss, and supplement those facts

with the procedural history . . . ."

SurTan Mfg. Co. v. Flagship Ins. Agency, Inc., 102 Mass. App. Ct. 342 ,

343 (2023).

[3] The plaintiff

also proceeded against the vice-president for intentional interference with

contractual relations. The plaintiff

raises no issue concerning the dismissal of this count in his brief, and thus

it is not before us.

[4] Specifically,

G. L. c. 149, § 187 (b), provides the following:

"A health

care facility shall not refuse to hire, terminate a contractual agreement with

or take any retaliatory action against a health care provider because the

health care provider does any of the following:

"(1)

discloses or threatens to disclose to a manager or to a public body an

activity, policy or practice of the health care facility or of another health

care facility with whom the health care provider's health care facility has a

business relationship, that the health care provider reasonably believes is in

violation of a law or rule or regulation promulgated pursuant to law or

violation of professional standards of practice which the health care provider

reasonably believes poses a risk to public health;

"(2)

provides information to or testifies before any public body conducting an

investigation, hearing or inquiry into any violation of a law, or rule or

regulation promulgated pursuant to law or activity, policy or professional

standards of practice of a health care provider, by the health care facility or

by another health care facility with whom the health care provider's health

care facility has a business relationship, which the health care provider

reasonably believes poses a risk to public health;

"(3) objects

to or refuses to participate in any activity, policy or practice of the health

care facility or of another health care facility with whom the health care

provider's health care facility has a business relationship which the health

care provider reasonably believes is in violation of a law or rule or

regulation promulgated pursuant to law or violation of professional standards

of practice which the health care provider reasonably believes poses a risk to

public health; or

"(4)

participates in any committee or peer review process, files a report or a

complaint, or an incident report discussing allegations of unsafe, dangerous or

potentially dangerous care."

[5] The statutory

definition of "health care facility" is

"an

individual, partnership, association, corporation or trust or any person or

group of persons that employs health care providers, including any hospital,

clinic, convalescent or nursing home, charitable home for the aged, community

health agency, pharmacy or other provider of health care services licensed, or

subject to licensing by, or operated by, the department of public health; any

facility as defined in section 3 of chapter 111B; any private, county or

municipal facility, department or unit which is licensed or subject to licensing

by the department of mental health pursuant to section 19 of chapter 19, or by

the department of developmental services pursuant to section 15 of chapter 19B;

any facility as defined in section 1 of chapter 123; a state-operated veterans'

home; or any facility as set forth in section 1 of chapter 19 or section 1 of

chapter 19B."

G. L.

c. 149, § 187 (a).

[6] The list

contains a

"physician,

medical intern or resident, physician assistant, registered nurse, licensed

practical nurse, nurse aide, orderly, home health aide, hospice worker,

homemaker, administrator, responsible person, medical examiner, dentist,

optometrist, optician, chiropractor, podiatrist, coroner, police officer,

speech pathologist, audiologist, social worker, pharmacist, physical or

occupational therapist or health officer, paid for caring for a patient or

resident."

G. L.

c. 111, § 72G, first par.

[7] General Laws

c. 152, § 28, states, "If the employee is injured by reason of

the serious and wilful misconduct of an employer or of any person regularly

intrusted with and exercising the powers of superintendence, the amounts of

compensation hereinafter provided shall be doubled."

[8] The plaintiff

raises no argument on appeal regarding the denial of the motion for relief from

judgment relating to counts other than the whistleblower count. Because we are reversing the dismissal of

count 1, we need not further explore whether the judge erred in denying

relief from judgment regarding that count.