Hitesman v. Bridgeway, Inc.

• Decision Date: 16 June 2014
• Citation: 93 A.3d 306,218 N.J. 8
• Parties: James HITESMAN, Plaintiff–Appellant, v. BRIDGEWAY, INC., d/b/a Bridgeway Care Center, Defendant–Respondent.
• Court: New Jersey Supreme Court

218 N.J. 8

93 A.3d 306

James HITESMAN, Plaintiff–Appellant,

v.BRIDGEWAY, INC., d/b/a Bridgeway Care Center, Defendant–Respondent.

Supreme Court of New Jersey.

Argued Nov. 18, 2013.

Decided June 16, 2014.

Paul R. Castronovo argued the cause for appellant (Castronovo & McKinney, Morristown, attorneys; Mr. Castronovo and Megan Frese Porio, Morristown, on the brief).

Craig S. Provorny, Warren, argued the cause for respondent (Herold Law and Jackson Lewis, attorneys; Mr. Provorny, Gregory T. Alvarez, and James McDonnell, Morristown, of counsel).

Sarah Fern Meil, Milford, argued the cause for amicus curiae New Jersey Chapter of the National Employment Lawyers Association.

Justice PATTERSON delivered the opinion of the Court.

In this appeal, the Court considers a health care worker's claim asserted under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19–1 to –8, premised upon standards set forth in a professional code of ethics, an employee handbook, and the employer's statement of patient rights.

Plaintiff James Hitesman's employment as a registered nurse in a nursing home operated by defendant Bridgeway, Inc. (Bridgeway) was terminated in January 2008 after he complained to the facility's management about the rate of infectious diseases among patients, reported his concerns to governmental agencies and the press, and disclosed partially-redacted records of patient care to a television reporter.

In this action, plaintiff alleged a claim under CEPA's provision barring employer retaliatory action against a licensed or certified health care employee who reports on, or objects to, an employer activity, policy, or practice that the employee reasonably believes to constitute “improper quality of patient care.” N.J.S.A. 34:19–3(a)(1); N.J.S.A. 34:19–3(c)(1). He also asserted a claim under another CEPA provision barring retaliatory action against an employee who objects to an employer activity, policy or practice that the employee reasonably believes to be “incompatible with a clear mandate of public policy concerning the public health.” N.J.S.A. 34:19–3(c)(3). Plaintiff cited the American Nursing Association (ANA) Code of Ethics and two Bridgeway documents—a portion of its Employee Handbook and its Statement of Resident Rights—in support of his claim.

The trial court denied Bridgeway's motion to dismiss at the close of plaintiff's case and the jury returned a verdict of liability under CEPA, but awarded no damages. The parties cross-appealed, and an Appellate Division panel reversed plaintiff's liability verdict, holding that plaintiff's CEPA claim failed as a matter of law because he did not demonstrate an objectively reasonable belief that Bridgeway's conduct gave rise to an improper quality of patient care or was incompatible with a clear mandate of public policy.

We affirm. We hold that claims asserted under N.J.S.A. 34:19–3(a)(1) and (c)(1)'s “improper quality of patient care” provision must be premised upon a reasonable belief that the employer has violated a law, rule, regulation, declaratory ruling adopted pursuant to law, or a professional code of ethics that governs the employer and differentiates between acceptable and unacceptable conduct in the employer's delivery of patient care. N.J.S.A. 34:19–3(a)(1); N.J.S.A. 34:19–3(c)(1). We further hold that a plaintiff asserting that his or her employer's conduct is incompatible with a “clear mandate of public policy concerning the public health” must, at a minimum, identify authority that applies to the “activity, policy or practice” of the employer. N.J.S.A. 34:19–3(c)(3).

Applied here, that standard warrants dismissal of plaintiff's CEPA claims. Although a professional code of ethics governing an employer's activities may constitute authority for purposes of N.J.S.A. 34:19–3(a)(1), (c)(1) and (c)(3) in an appropriate setting, the ANA Code of Ethics (ANA Code) invoked by plaintiff provided no standard for his employer's control of infectious disease, and accordingly does not support plaintiff's CEPA allegations. The Bridgeway Employee Handbook and Statement of Resident Rights neither defined acceptable patient care nor stated a clear mandate of public policy for purposes of N.J.S.A. 34:19–3(a)(1), (c)(1), or (c)(3). Accordingly, we concur with the Appellate Division panel that the trial court should have granted Bridgeway's motion to dismiss.

I.

We derive the facts of this case from the evidence presented by the parties at trial.

Bridgeway operates the Bridgeway Care Center, a nursing home in Bridgewater. In January 2008, Bridgeway employed 177 people and served approximately 145 patients, most of them elderly. Bridgeway's management team included Chief Executive Officer Donald Pelligrino, also a part owner of Bridgeway, as well as Medical Director Anthony Frisoli, M.D., Director of Nursing Frances Gerber, R.N., and Administrator Wayne Blum.

In December 2003, Bridgeway hired plaintiff to work as a staff nurse in the subacute unit of the nursing home. At the time of his hiring, plaintiff executed a confidentiality agreement in which he agreed not to disclose confidential patient information and acknowledged that if he did so, he would be subject to termination. After a brief period in the subacute unit, plaintiff was assigned to work as a staff nurse in Bridgeway's long-term care unit.

In 2006, Bridgeway promoted plaintiff to the position of shift supervisor, with responsibility to oversee nursing staff in all three wings of the facility during the three p.m. to eleven p.m. evening shift. In that capacity, plaintiff created records that he termed “administrative logs” or “shift logs,” in which he would record the entry of new admittees into the nursing home, patient hospitalizations, employee absences for illness or other reasons, extra monitoring provided for particular patients, and facility maintenance issues.

In January 2008, plaintiff recorded in his administrative log that five Bridgeway staff members had missed work due to respiratory and gastrointestinal symptoms, and noted a prevalence of similar symptoms among patients. Plaintiff testified that he attempted to contact Dr. Frisoli about these symptoms during the evening of January 10, 2008. According to plaintiff, he learned of fifty cases of respiratory or gastrointestinal symptoms at Bridgeway. Nursing Director Gerber testified, in contrast, that Bridgeway staff noticed no commonality among the patient illnesses reported at that time.

At about midnight on January 11, 2008, plaintiff sent Bridgeway management an e-mail expressing concerns about the “seasonal prevalence of respiratory and GI symptoms” in the facility. Later that day, Gerber responded with an e-mail in which she stated that illnesses could be spread by contact, and noted the importance of hand-washing for staff and residents.

According to plaintiff, at some point on January 11, 2008, he presented to Gerber an article from the Centers for Disease Control and Prevention (CDC) website entitled “Clinical Signs and Symptoms of Influenza.” ¹ That night, in an e-mail to Gerber, plaintiff demanded an explanation as to how Dr. Frisoli had determined that the illnesses were spread by contact, and inquired as to whether tests or lab work had been performed. Plaintiff testified that he instructed Bridgeway staff about hand-washing and the use of gloves, goggles, masks, and hospital gowns to avoid transmission of infection.

On January 14, 2008, using the pseudonym “Bill Yates,” plaintiff reported to the Bridgewater Township Board of Health that there was an increase in respiratory and gastrointestinal symptoms at Bridgeway. According to plaintiff, the Board stated that it had no responsibility to oversee health issues, other than kitchen sanitation, at Bridgeway.

The following day, using the same pseudonym, plaintiff contacted the Somerset County Department of Health. The Somerset County Department of Health promptly contacted Gerber, told her that it had a report of major illnesses in the facility, and requested information pertaining to any hospitalizations of residents. Gerber immediately gathered information about patient symptoms and hospitalizations and provided it to the Somerset County Department of Health.

On January 16, 2008, again using the pseudonym “Bill Yates,” plaintiff contacted the New Jersey Department of Health and Senior Services (HSS). Plaintiff testified that this third contact with government officials was prompted by his belief that the situation at Bridgeway had not improved and that he had not made progress with municipal or county officials. According to plaintiff, the state health official with whom he spoke advised him that HSS would not get involved with Bridgeway unless asked to do so by Somerset County.

Nonetheless, the day after plaintiff's call, an investigator from HSS contacted Blum, Bridgeway's administrator. According to Blum, the investigator stated that HSS was following up on an anonymous call reporting an “epidemic” at Bridgeway, and asked Blum what his facility was doing to combat the epidemic. Blum testified that he advised the HSS investigator that there was no epidemic, just “our usual things that are going on.” The investigator requested that Bridgeway report any issue of concern and advise HSS of its remedial steps and their outcome.

Shortly after the HSS investigator's call to Bridgeway, Gerber and Blum convened a meeting with plaintiff in Blum's office. According to plaintiff, Gerber and Blum asked him whether he had contacted county and state health officials, and plaintiff denied having made the calls.

According to his testimony, plaintiff then learned from another nurse that a patient complaining of gastrointestinal symptoms had been admitted to a hospital during the weekend of January 19–20, 2008, and had died there of septicemia.² When no investigator from Bridgewater Township, Somerset County, or the State of New Jersey appeared at Bridgeway over the weekend, plaint...