New Jersey Supreme Court Raises the Bar for Health Care Whistleblowers under CEPA

Clarifying the burden placed upon health care workers alleging New Jersey Conscientious Employee Protection Act (CEPA) violations, the New Jersey Supreme Court’s recent decision in 218 N.J. 8 (2014) illustrates the barriers facing employees who point to alleged violations of codes of ethics or employer policies to support whistleblowing claims.

The Facts: Registered Nurse James Hitesman served as shift supervisor for a nursing home operated by Bridgeway, Inc. (“Bridgeway”). In 2008, Hitesman e-mailed Bridgeway management expressing concerns that seasonal respiratory and GI symptoms were rising at an alarming rate at the nursing home. Unsatisfied with Bridgeway’s response to his concerns, Hitesman reported the increase in infections to governmental agencies and the media. In his communications with the media, however, Hitesman provided partially redacted copies of Bridgeway administrative logs that nevertheless disclosed information that could lead to the identification of patients. Bridgeway ultimately terminated Hitesman for his disclosure of patient information to the media in violation of the facility’s confidentiality policy and the Health Insurance Portability and Accountability Act (HIPAA).

Hitesman filed suit alleging that his discharge violated CEPA’s prohibition of retaliatory action against a health care employee who reports on, or objects to, employer activity that the employee reasonably believes constitutes “improper quality of patient care” or is “incompatible with a clear mandate of public policy concerning the public health.” Hitesman pointed out that “improper quality of patient care” is defined by statute as a violation of “any law, or any rule, regulation or declaratory ruling adopted pursuant to law or professional code of ethics.” To support his claim of a reasonable belief that Bridgeway’s infectious disease practices constituted improper quality of patient care, Hitesman relied upon the American Nursing Association’s Code of Ethics that obligated him to improve patient care, as well as Bridgeway’s Internal Code of Conduct and its Statement of Resident Rights as the governing standard for assessing Bridgeway’s misconduct.

The Finding: At trial, the jury found in favor of Hitesman on his CEPA claim. However, on appeal the New Jersey Supreme Court agreed with the finding of the Appellate Division that Hitesman was not a protected whistleblower under the CEPA statute. The Court reasoned that although the ANA Code of Ethics addressed a nurse’s obligation to report inadequate medical care, it did not set forth any standards governing Bridgeway’s control of infectious diseases.   Similarly, the court concluded that Bridgeway’s Code of Conduct and Statement of Resident Rights also failed to set forth a governing standard for Bridgeway’s response to infectious diseases in its facility. Because Hitesman failed to identify an appropriate authority governing Bridgeway’s conduct, the court ruled that a jury could not determine whether Hitesman reasonably believed that Bridgeway was in violation of standards relating to the quality of patient care. 

The Take-Away: Notwithstanding , employers are not immune to CEPA claims by health care workers arising from alleged violations or professional codes of ethics or internal employer policies. However, raises the bar for CEPA claims by requiring these employees to identify language in these sources that relates to the employer conduct in question and governs how the employer should have acted under the circumstances. 

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