Fineman v. New Jersey Dept. of Human Services

• Decision Date: 29 April 1994
• Citation: 640 A.2d 1161,272 N.J.Super. 606
• Parties: , 9 IER Cases 895 Milton FINEMAN, Plaintiff-Respondent, Cross-Appellant, v. NEW JERSEY DEPARTMENT OF HUMAN SERVICES, New Jersey Memorial Home for Disabled Soldiers, Sailors, Marines and Their Wives and Widows, Joseph M. Cagno and Robert J. Brezo, Defendants-Appellants, Cross-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 606

272 N.J.Super. 606

640 A.2d 1161, 9 IER Cases 895

Milton FINEMAN, Plaintiff-Respondent, Cross-Appellant, v. NEW JERSEY DEPARTMENT OF HUMAN SERVICES, New Jersey Memorial

Home for Disabled Soldiers, Sailors, Marines and Their Wives

and Widows, Joseph M. Cagno and Robert J. Brezo,

Defendants-Appellants, Cross-Respondents.

Superior Court of New Jersey,

Appellate Division.

Argued Nov. 17, 1993.

Decided April 29, 1994.

Brian P. Ballard, Deputy Atty. Gen., argued the cause, for appellants, cross-respondents New Jersey Dept. of Human Services, New Jersey Memorial Home of Disabled Soldiers, Sailors, Marines & their Wives and Widows (Deborah T. Poritz, Atty. Gen., attorney; Joseph L. Yannotti, Asst. Atty. Gen., of counsel, and Mr. Ballard, on the brief).

John P. Morris, Bridgeton, argued the cause, for respondent, cross-appellant.

Before Judges SHEBELL, LONG and LANDAU.

The opinion of the court was delivered by

LANDAU, J.A.D.

In this appeal by the defendants, New Jersey Department of Human Services (DHS) and the New Jersey Memorial Home for Disabled Soldiers, Sailors, Marines and their Wives and Widows (Home), and the cross appeal by plaintiff, Dr. Milton Fineman (plaintiff), we focus upon N.J.S.A. 34:19-3c(1) and (3), portions of the Conscientious Employee Protection Act (CEPA), N.J.S.A 34:19-1 to 19-8. No less than its common law precursors, CEPA requires judicial resolution of threshold legal issues respecting existence of a statutory, regulatory or other clear mandate of public policy before the trier of fact determines whether an employee has been retaliated against for acting upon an objectively reasonable belief of the existence of such clear mandate by objecting to or refusing to perform acts in violation of the mandate. This opinion reverses a Law Division judgment, entered under CEPA following jury trial, in favor of plaintiff, a "Physician Specialist", who was terminated from his at-will employment after refusing to provide temporary medical care to residents of the Home other than those to whom he had been initially assigned. We affirm the judgment of dismissal entered in favor of defendant Joseph Cagno.

Procedural Setting

Following termination of his at-will employment, plaintiff filed a CEPA complaint in the Law Division against DHS; the Home; Joseph Cagno, its Chief Executive Officer; and Robert J. Brezo, the Assistant Chief Executive Officer. He demanded a jury trial, asserting that his termination constituted unlawful retaliatory action under N.J.S.A. 34:19-3c(1) and 3c(3). ¹ Prior to submission to the jury, the complaint was dismissed as to defendants Brezo and Cagno. Also dismissed were plaintiff's demand for punitive damages, and allegations respecting retaliation for his refusal to perform certain medication review certifications. The cross appeal challenges some of the dismissals.

Essentially, the jury was asked to determine whether plaintiff was terminated for a refusal to see or treat certain patients in excess of his originally assigned work load or for objecting thereto; and whether such refusal or objection was based upon reasonable belief that the temporary assignment evidenced a general policy or practice of patient care which violated a law or regulation ( N.J.S.A. 34:19-3c(1)) or was incompatible with a clear mandate of public policy ( N.J.S.A. 34:19-3c(3)), inclusive of applicable Department of Health regulations, the Hippocratic Oath, and the American Medical Association Principles of Medical Ethics.

On motion at the conclusion of plaintiff's case and again after all evidence was presented, the trial judge considered the threshold legal determinations required by Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 417 A.2d 505 (1980), which predated and furnished the underlay for legislative adoption of CEPA, as well as our opinion in Warthen v. Toms River Comm. Mem. Hosp., 199 N.J.Super. 18, 488 A.2d 229 (App.Div.) certif. denied, 101 N.J. 255, 501 A.2d 926 (1985). The judge concluded, as a matter of law, that the physicians' Hippocratic Oath and American Medical Association Code of Ethics, read in conjunction with N.J.A.C. 8:39-23.1, et seq. (mandatory medical services standards for long-term nursing care facilities) could be found to constitute, for CEPA purposes, a regulation ( N.J.S.A. 34:19-3c(1)) or "clear mandate of public policy" ( N.J.S.A. 34:19-3c(3)) which plaintiff could reasonably ² have believed would be violated were he to provide temporary medical coverage in excess of the one hundred resident caseload to which he was specifically assigned. He then submitted these questions to the jury:

1. Did plaintiff Milton Fineman reasonably believe that the Memorial Home's activity, policy or practice respecting a physician's patient responsibilities was: (A) In violation of a law, rule or regulation promulgated pursuant to law? (B) Incompatible with a clear mandate of public policy governing the public health, safety or welfare?

If you have answered "yes" to either # 1A or # 1B, or both, go to Question # 2.

If you have answered "no" to both # 1A and # 1B, return to the courtroom.

2. Did the plaintiff Milton Fineman object to, either in writing or orally, to the Memorial Home's activity policy or practice, or did the Plaintiff Milton Fineman refuse to participate in the defendant's policy or practice respecting patient care?

3. Was a determinative factor in the defendant's decision to discharge the plaintiff the result of the action taken by the plaintiff, as described in Question # 2 above, and thus, in retaliation for the action taken by the plaintiff as found in Question # 2?

If the answer to Question # 3 is "yes," you have rendered a verdict in favor of the plaintiff and you shall return to the courtroom.

If the answer to Question # 3 is "no," you have rendered a verdict in favor of the defendant and you shall return to the courtroom.

The jury answered "yes" to each question. The trial judge then entered judgment ordering plaintiff's reinstatement, a $1,000 fine for violation of N.J.S.A. 34:19-5g payable by the Home; and damages in the amount of $273,546 together with pre-judgment interest in the amount of $36,389.

Facts

The Home is a long-term care facility (nursing home) for disabled or elderly soldiers, sailors, marines, and their wives and widows. It is not a hospital. It receives federal subsidies as a state veteran's facility which is supervised by DHS, but is also inspected by the Veteran's Administration and the New Jersey Department of Health.

On May 1, 1987, plaintiff was hired as a physician specialist at the Home. The medical director, Dr. Zubeda Rajput, provided plaintiff with information outlining his duties and responsibilities, which included covering for other staff physicians when they were absent or on vacation. Plaintiff was assigned as primary care physician for Units One-A and One-B, containing one hundred residents. He was also to provide on-call duties during certain evenings and weekends. Plaintiff's duties and responsibilities were described in the following fashion at time of hire:

Subject: Duties and/or Responsibilities are as follows but are not limited to:

Assigned to Units 1A and 1B. Responsible for total medical care in that unit. Workdays are 8:30 A.M. to 4:30 P.M.

Share on duty calls with other staff physician. Presently will be every 3rd week.

To make rounds daily on your assigned unit.

To visit all nursing stations on weekends and/or holidays, when on call.

Responsible to complete all patient's medical records in the assigned unit and provide coverage for the facility.

To accept the responsibilities and duties of other staff physicians when they are on vacation, etc.

Directly responsible to the Medical Director and Assistant Chief Executive Officer.

Patient's medical records include:

1. Admission History, Physical, Medical Orders and Care Plans.

2. Medical Care Plan review every six (6) months or as needed.

3. Monthly pharmacy review sheets.

4. Aims--every three (3) months.

5. Monthly progress notes.

6. Annual lab work on members.

7. All verbal orders to be signed the next work day or within 48 hours.

All patient visits must be documented each time.

To attend all Monday morning meetings, and all other required meetings, committees, etc.

To attend case conference on your assigned patients.

[ (emphasis in original) ].

When plaintiff was hired, Dr. Alan Kulick was assigned as primary care physician in Unit Two and Dr. Rajput was to be the primary care physician for Unit Three. The Home had a total of approximately three hundred residents, divided equally among the three units.

Plaintiff testified that he read a prior memo from Cagno stating that there should always be two physicians attending the institution. He also said he received similar information from Dr. Rajput. The record makes clear that when "on-call", or when on the rotating weekend/holiday duty, a staff physician would ordinarily have temporary responsibility for all three hundred residents, subject to back-up provided by local hospitals and physicians.

Prior to his hire in May, plaintiff was given to understand that a salary adjustment request would be made to raise his starting salary by approximately $9,000 per year. That request had not been acted upon as of the end of July, 1987, when the events leading to plaintiff's termination came to a head.

After plaintiff was hired, Dr. Kulick took a vacation from May 26 to June 3. Dr. Rajput was granted sick leave from June 2 to June 21, so that for part of June 2 and all day June 3, plaintiff was the only full-time physician present. The Home also regularly utilized local physicians and hospitals as necessary.

Shortly after Dr. Rajput returned on June 21, she was granted a six-month leave of absence, leaving two full-time physicians at the Home, but no formal vacancy in the three-physician complement. Cagno promised to try to get another physician on a full-time or part-time basis, but left...