O'Connor v. Jordan Hosp.
| Decision Date | 17 June 2013 |
| Docket Number | CIVIL ACTION NO. 10-11416-MBB |
| Parties | MARGARET O'CONNOR, Plaintiff, v. JORDAN HOSPITAL, PETER HOLDEN, President and CEO, DEBORAH SULLIVAN, WILLIAM KIRKWOOD, Vice President of Organizational Development, and HARVEY KOWALOFF, M.D., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
(DOCKET ENTRY # 61)
Pending before this court is a motion for summary judgment filed by defendant Jordan Hospital ("Jordan Hospital"). (Docket Entry # 61). Plaintiff Margaret O'Connor ("plaintiff") opposes the motion. (Docket Entry # 65). Jordan Hospital filed a response to plaintiff's opposition. (Docket Entry # 69). After conducting a hearing on October 23, 2013, this court took the motion under advisement.
The six count amended complaint asserts claims against Jordan Hospital; Peter Holden ("Holden"), President and ChiefExecutive Officer ("CEO") of Jordan Hospital; Deborah Sullivan ("Sullivan"), Senior Director of Clinical Reliability and Patient Safety; William Kirkwood ("Kirkwood"), Vice President of Organizational Development; and Harvey Kowaloff, M.D. ("Kowaloff"), Vice President and Chief Medical Officer (collectively "defendants"). (Docket Entry # 44). The amended complaint contains the following counts: violation of the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd ("EMTALA") ("the EMTALA claim") (Count I); retaliation in violation of the Healthcare Provider Whistleblower Statute, Massachusetts General Laws chapter 149, section 187 ("HPWS") ("the HPWS claim") (Count II); violation of article ten of the Massachusetts Declaration of Rights (Count III); violation of article 16 of the Massachusetts Declaration of Rights (Count IV); intentional infliction of emotional distress (Count V); and negligent infliction of emotional distress (Count VI). (Docket Entry # 44).
Defendants filed a motion to dismiss which resulted in dismissal of counts three, four, five and six and left Jordan Hospital as the sole defendant in counts one and two. (Docket Entry # 56). Therefore, the only claims at issue are the EMTALA claim and the HPWS claim. Jordan Hospital moves for summary judgment on these remaining counts. (Docket Entry # 61). Plaintiff opposes the motion and contends that genuine issues ofmaterial fact preclude summary judgment. (Docket Entry # 65). Jordan Hospital filed a reply to plaintiff's opposition asserting that no genuine issues of material fact exist. (Docket Entry # 69).
Summary judgment is designed "'to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required.'" Davila v. Corporacion De Puerto Rico Para La Difusion Publica, 498 F.3d 9, 12 (1st Cir. 2007). It is appropriate when the summary judgment record shows "there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law." Rule 56(c), Fed. R. Civ. P. "A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party." American Steel Erectors, Inc. v. Local Union No. 7, International Association of Bridge, Structural, Ornamental & Reinforcing Iron Workers, 536 F.3d 68, 75 (1st Cir. 2008). "A fact is material if it carries with it the potential to affect the outcome of the suit under the applicable law." Id.
Facts are viewed in favor of the nonmovant. Noonan v. Staples, Inc., 556 F.3d 20, 23 (1st Cir. 2009). Factual disputes, including those set out in footnotes in the factualbackground, are resolved in plaintiff's favor. See id. "Where, as here, the non-movant has the burden of proof and the evidence on one or more of the critical issues in the case is not significantly probative, summary judgment may be granted." Davila v. Corporacion De Puerto Rico Para La Difusion Publica, 498 F.3d at 12; accord Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir. 2006) (). "[I]n order to forestall summary judgment, the record evidence must be 'sufficiently open-ended to permit a rational fact finder to resolve the . . . issue in favor of either side.'" Brown v. United States, 557 F.3d 1, 5 (1st Cir. 2009).
Jordan Hospital and plaintiff submit Local Rule 56.1 statements of undisputed facts. (Docket Entry ## 62 & 66). Uncontroverted statements of fact in a Local Rule 56.1 statement comprise part of the summary judgment record. See Cochran v. Quest Software, Inc., 328 F.3d 1, 12 (1st Cir. 2003) (); Stonkus v. City of Brockton School Department, 322 F.3d 97, 102 (1st Cir. 2003) ().
Plaintiff was employed by Jordan Hospital for over 38 years as a registered nurse and in various other healthcare positions relating to quality control. (Docket Entry ## 66, p. 4 & 66-1, Ex. 1). Starting in 2007 and following the arrival of Holden, Jordan Hospital's new president and CEO, Jordan Hospital began undergoing major personnel and organizational changes. (Docket Entry ## 62, p. 5; 62-2, pp. 3-4; 62-4, pp. 2-3; 62-5, pp. 5-6 & 66-3, Ex. 14). Plaintiff's role at Jordan Hospital consisted of two separate functions: 60 percent of her time was devoted to occupational health while the other 40 percent was dedicated to risk management. (Docket Entry ## 62, p. 7; 62-2, p. 5; 62-3, p. 2; 62-4, p. 3; 62-7, p. 3 & 62-11, p. 2). In September 2008 and November 2009, plaintiff received exemplary performance evaluations from Kowaloff, who supervised plaintiff's work in risk management. (Docket Entry ## 62-45; 66-3, Ex. 19 & 66-5, Ex. 33).
In late 2009, following a decision by Jordan Hospital to outsource the occupational health business to an outside vendor, plaintiff was offered the newly created position of variance manager in the department of clinical reliability and patientsafety. (Docket Entry ## 62, p. 8; 62-4, p. 5; 62-49; 66, p. 4 & 66-5, Ex. 31). The position "builds on the role of a traditional Risk Manager with expanded responsibility to oversee the regulatory interface with the Department of Public Health (DPH) and the Patient Complaint and Grievance function." (Docket Entry ## 62-49 & 66-5, Ex. 31). Plaintiff accepted the position on January 4, 2010.1 (Docket Entry ## 62, p. 8; 62-12; 66, p. 4 & 66-1, Ex. 4). In her new role, plaintiff was also responsible for overseeing the transition of the occupational health department from within Jordan Hospital to the outside vendor. (Docket Entry ## 62, p. 9; 62-17, p. 6; 62-31 & 66-4, Ex. 22).
In or around late 2009 or early January 2010, the Department of Public Health ("DPH") conducted an investigation regarding the death of a patient treated at Jordan Hospital and issued a report. (Docket Entry # 66, p. 5). In response, on or about January 15, 2010, plaintiff drafted a letter to the patient's son regarding his mother's death, which was to be signed by Holden ("January draft letter"). (Docket Entry ## 66,p. 4 & 66-1, Ex. 5). Holden criticized the content of the letter and it was ultimately not sent to the patient's family. (Docket Entry ## 62-5, p. 8; 66, p. 5 & 66-1, Ex. 2).
On or about February 9, 2010, Kowaloff sent a letter to plaintiff addressing: her responsibilities in the role of variance manager; an offer to train plaintiff in any necessary computer programs; and reports that plaintiff's attitude had been "aggressive and less than collaborative of late" ("the February letter"). (Docket Entry ## 62-31 & 66-4, Ex. 22). In the letter, Kowaloff also encouraged plaintiff to take notice of the negative reports concerning her attitude and take steps to improve in the future. (Docket Entry ## 62-31 & 66-4, Ex. 22).
At approximately 8:00 a.m. on March 4, 2010,2 Jordan Hospital received a patient ("the Patient") in its emergency room. (Docket Entry ## 62, p. 4 & 66, p. 5). The Patient was six months pregnant3 with twins and had a history of diabetes. (Docket Entry ## 66, p. 5 & 66-2, Ex. 8). The Patientcomplained of abdominal pain and nausea. (Docket Entry # 66-2, Ex. 8). About two hours later the Patient was diagnosed with preterm active labor. (Docket Entry #66-2, Ex. 8). After this diagnosis was made, the Patient was transferred to South Shore Hospital without the approval of a Jordan Hospital attending physician. (Docket Entry ## 62, p. 5 & 66, p. 5). Upon arrival at South Shore Hospital, the Patient had one of her child's legs protruding into her vagina and an emergency cesarean section was performed. (Docket Entry ## 66, p. 5 & 66-2, Ex. 8). The second child delivered also experienced significant complications during labor. (Docket Entry ## 66, p. 5 & 66-2, Ex. 8).
Two days after this incident a risk manager from South Shore Hospital called plaintiff to voice her concern that the Patient's transfer may have been improper and in violation of EMTALA. (Docket Entry ## 62, p. 5 & 66, p. 6). Plaintiff conducted an investigation into the incident and concluded that an EMTALA violation had occurred and reported it to senior management. (Docket Entry # 66, p. 6). Plaintiff met with Sullivan, Kowaloff and Holden to discuss reporting the EMTALA violation and the penalties and fines that Jordan Hospital could face. (Docket Entry ## 62-4, p. 13 & 66, p. 6). Following this meeting plaintiff drafted a self-report letter dated March 15, 2010, reporting the EMTALA violation to the Centers for Medicareand Medicaid Services ("CMS"), which was signed by Holden and sent to CMS. (Docket Entry ## 62-1; 62-2, p. 11; 62-46; 66-2, ...
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Kaplan v. Blue Hill Mem'l Hosp., 1:14-cv-00276-DBH
...988, 996 (D. Minn. 2013) (borrowing the standard applicable to Title VII retaliation claims); O'Connor v. Jordan Hosp., No. 1: 10-cv-11416-MBB, 2013 WL 3105647, at *6 (D. Mass. June 17, 2013) (same). Defendant argues that Plaintiffs have failed to allege that they reported an actual violati......