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Gillispie v. Regionalcare Hospital Partners Inc.

United States Court of Appeals, Third Circuit

June 12, 2018


          Argued on September 26, 2017

          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

          Noah Geary Counsel for Appellant

          Marla N. Presley (Argued) Bethany S. Wagner Jackson Lewis Counsel for Appellee

          Before: SMITH, Chief Judge, McKEE and RESTREPO, Circuit Judges



         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.


         A. Legal Background

         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]

         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 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 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 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 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]


         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]


         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.


         "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 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 statute and that this report resulted in her retaliatory termination.


         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.

         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 ...

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