Marie Gillispie v. Regionalcare Hospital Partners

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 16-4307

_____________

MARIE GILLISPIE,

Appellant

v.

REGIONALCARE HOSPITAL PARTNERS INC;

ESSENT HEALTHCARE WAYNESBURG LLC,

d/b/a Southwest Regional Medical Center;

ESSENT HEALTHCARE PENNSYLVANIA INC;

ESSENT HEALTHCARE INC;

ESSENT HEALTHCARE;

SOUTHWEST REGIONAL MEDICAL CENTER

________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D. C. Civil No. 2-13-cv-01534)

District Judge: Honorable Mark R. Hornak

________________

Argued on September 26, 2017

Before: SMITH, Chief Judge, McKEE and RESTREPO,

Circuit Judges

(Opinion filed: June 12, 2018)

Noah Geary (Argued)

Suite 225

Washington Trust Building

Washington, PA 15301

Counsel for Appellant

Marla N. Presley (Argued)

Bethany S. Wagner

Jackson Lewis

1001 Liberty Avenue

Suite 1000

Pittsburgh, PA 15222

Counsel for Appellee

________________

OPINION OF THE COURT

________________

McKEE, Circuit Judge

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

2

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.

3

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 Center 10 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.

4

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

5

insistence that EMTALA required the Medical Center to self-

report, 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.

6

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

7

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.

8

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 Douglas 25 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.

9

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.

10

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)).

11

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.

12

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.

13

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.

14

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.

15

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).

16

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).

17

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)]”).

18

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.

19

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.

20

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.

IV.

For the foregoing reasons, we will affirm the judgment

of the District Court.

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).

21