Lopes v. Kapiolani Medical Center for Women

• Decision Date: 11 August 2005
• Docket Number: No. CIV. 03-00658ACKLEK.,CIV. 03-00658ACKLEK.
• Citation: 410 F.Supp.2d 939
• Parties: Dwayne L. LOPES, Plaintiff, v. KAPIOLANI MEDICAL CENTER FOR WOMEN & CHILDREN, Dew-Anne Langcaon, Chief Operating Officer, Kapiolani Medical Center for Women & Children, Jen Chahanovich, Director, Respiratory Care and Rehabilitation Services, Kapiolani Medical Center for Women & Children, John Does 1-5, and Jane Does 1-5, Defendants.
• Court: U.S. District Court — District of Hawaii

410 F.Supp.2d 939

Dwayne L. LOPES, Plaintiff, v. KAPIOLANI MEDICAL CENTER FOR WOMEN & CHILDREN, Dew-Anne Langcaon, Chief Operating Officer, Kapiolani Medical Center for Women & Children, Jen Chahanovich, Director, Respiratory Care and Rehabilitation Services, Kapiolani Medical Center for Women & Children, John Does 1-5, and Jane Does 1-5, Defendants.

No. CIV. 03-00658ACKLEK.

United States District Court, D. Hawai`i.

August 11, 2005.

Jerry P.S. Chang and Clayton C. Ikei, Honolulu, HI, for Plaintiff.

Malia E. Kakos, Melanie M. May, Barry W. Marr, Marr, Hipp, Jones & Wang, LLP, Honolulu, HI, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS KAPIOLANI MEDICAL CENTER FOR WOMEN & CHILDREN, DEW-ANNE LANGCAON, AND JEN CHAHANOVICH'S MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF'S CLAIM OF RETALIATION IN VIOLATION OF THE EMTALA (FIRST CLAIM FOR RELIEF) AND DENYING DEFENDANTS KAPIOLANI MEDICAL CENTER FOR WOMEN & CHILDREN, DEW-ANNE LANGCAON, AND JEN CHAHANOVICH'S MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF'S CLAIM OF RETALIATION IN VIOLATION OF THE HAWAII WHISTLEBLOWERS' PROTECTION ACT AND FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (PLAINTIFF'S SECOND AND THIRD CLAIMS FOR RELIEF)

KAY, District Judge.

BACKGROUND

I. Factual History

Defendants assert that Kapiolani Medical Center for Women and Children ("Karpiolani") is a full spectrum maternal and child tertiary medical center. (Defs.' Mot. at 3). The purpose of the Transport Team is to provide support and appropriate medical intervention in the transport of neonatal and pediatric patients throughout the State of Hawaii and the Pacific Rim. (Defs.' Mot. at 3). Patients are transported by ambulance, helicopter, and fixed winged aircraft. (Defs.' Mot. at 3). Team members on a transport may consist of Transport Registered Nurses ("Transport RNs"), Transport Respiratory Therapists ("Transport RTs"), and physicians. (Defs.' Mot. at 3). Defendants Kapiolani Medical Center for Women & Children, Dew-Anne Langcaon, and Jen Chahanovich ("Defendants") maintain that Transport Teams generally consist of a Transport RN and a Transport RT and that, ultimately, the composition of a Transport Team for any particular transport is decided by a physician and the Transport Nurse. (Defs.' Mot. at 3). Defendants allege that Transport Team members undergo a rigorous selection process and training. (Defs.' Mot. at 3-4). Plaintiff contends, however, that Transport Nurses are not trained in certain procedures, which Respiratory Therapists are. (Pl.'s Statement of Facts at ¶ 9). Transport Team members are drawn from the Departments of Nursing and Respiratory Therapy at Kapiolani. (Defs.' Mot. at 3).

Plaintiff Dwayne Lopes ("Plaintiff") began his employment with Kapiolani as a part-time Respiratory Therapist. (Pl.'s Opp. at 2). In June 1992, Plaintiff became a full-time Respiratory Therapist at Kapiolani, and in 1994, he was promoted to the Critical Care Transport Team as a Respiratory Therapist. (Pl.'s Opp. at 2). As a Respiratory Therapist assigned to the Critical Care Transport Team, Plaintiff worked in tandem with Transport Nurses to transport patients to and from hospital facilities in Hawaii and the Pacific Basin. (Pl.'s Opp. at 2).

In 1997, Plaintiff became a Supervisor of the Respiratory Care Department at Kapiolani and in 1999 he was promoted to be a Manager of that department. (Pl.'s Opp. at 3). As a Respiratory Care Manager, Plaintiff oversaw the Respiratory Care Department at Kapiolani and supervised the RTs, including those RTs who were part of the Transport Team. (Defs.' Mot. at 4). As a Respiratory Care Manager, Plaintiff reported to the Director of Respiratory Care, a position that was held by David Fox ("Fox") until October 2001 and by Defendant Jen Chahanovich ("Chahanovich") from July 8, 2002 through the termination of Plaintiff's employment in August 2003. (Defs.' Mot. at 4).

The position of Director of Respiratory Care was vacant from approximately August or October¹ 2001 to July 7, 2002. (Defs.' Mot. at 4 n. 2; Pl.'s Opp. at 3). During that time, Plaintiff acted as the Interim Director of the Respiratory Care Department, while Kapiolani conducted a recruitment for the position of Permanent Director. (Defs.' Mot. at 4 n. 2; Pl.'s Opp. at 3). Plaintiff applied for the position of Permanent Director of the Respiratory Care Department. (Pl.'s Opp. at 3). At all times relevant to this litigation, Defendant Dew Anne Langcaon ("Langcaon") was employed by Kapiolani as the Chief Operating Officer. Fox and Chahanovich, while acting as the Permanent Director of the Respiratory Care Department, and Plaintiff, while acting as the Interim Director, were required to report to Langcaon. (Pl.'s Opp. at 3; Defs.' Mot. at 5).

On August 5, 2001, Dr. Sherry Loo ("Dr. Loo"), a neonatologist at Kapiolani, asked Lori Fairfax ("Fairfax"), a long-time veteran of the Kapiolani Transport Team, to "head up the transport of a premature infant" from the Queen's Medical Center. (Defs.' Mot. at 5). Fairfax was unable to locate a Transport RT on the premises because the shifts were changing. (Defs.' Mot. at 5). Fairfax believed that the on-call Transport RT typically took one hour to reach the hospital. (Defs.' Mot. at 5). Defendants allege that "Fairfax paged Plaintiff, who was the Respiratory Care Manager, but Plaintiff did not return the page." (Defs.' Mot. at 5). Defendants further allege that based on these facts, Dr. Loo authorized a team of three Transport RNs (one of whom was in training) to make the transport from the Queen's Medical Center to Kapiolani. (Defs.' Mot. at 5-6). Defendants allege that the infant was transported without incident and was admitted by Kapiolani upon arrival at the hospital. (Defs.' Mot. at 6).

Plaintiff learned of the August 5th transport several days after it occurred and was concerned because the assigned Transport Team did not include a Transport RT, which Plaintiff alleges violated the protocol established by Kapiolani. (Defs.' Mot. at 6; Pl.'s Opp. at 3). Because of his concern, Plaintiff investigated the transport. (Defs.' Mot. at 6; Pl.'s Depo. at 30). From his inspection of the records of the August 5, 2001 transport, Plaintiff concluded that the breathing tube inserted into the infant was not placed properly; the wrong amount of surfactant had been administered to the infant; blood-gas readings were not performed on the infant; the transport nurses that participated in the transport were not trained to use the portable blood-gas machines; and Kapiolani personnel were available on the date of the transport who possessed the necessary training to perform the procedures the nurses had not been trained to do. (Pl.'s S. of Facts ¶¶ 40-45). Plaintiff reported his findings to Fox, who was just vacating his position as the Director of Respiratory Care. (Defs.' Mot. at 6; Pl.'s Depo. at 30). Fox discussed Plaintiff's report with Dr. Kenneth Ash ("Dr.Ash"), the Medical Director of the Transport Team. (Defs.' Mot. at 6). Dr. Ash concluded that the transport did not raise issues of concern and he so advised Fox. (Defs.' Mot. at 6). Fox reported Dr. Ash's conclusion to Plaintiff. (Defs.' Mot. at 6). Fox informed Plaintiff that based on Dr. Ash's conclusion, he did not intend to take the issue further but that Plaintiff could do so if he wished. (Defs.' Mot. at 6).

In September 2001, Plaintiff made a complaint to Kapiolani's confidential Compliance Hotline, which may be used by any employee or physician to report a potential violation of ethical or lawful business practices.² (Defs.' Mot. at 7; Pl.'s Opp. at 4). The toll-free number allows employees to report concerns anonymously. (Defs.' Mot. at 7). Use of the number does not allow identification of the caller's phone number and callers are not required to give their identity. (Defs.' Mot. at 6). Defendants explain that "[t]he phone message line is not traced and callers are protected from retaliation or discrimination for expressing good faith concerns." (Defs.' Mot. at 7).

In 2001, Kapiolani used an outside vendor, Compliance Concepts, to receive and manage communications from callers using the Compliance Hotline. (Defs.' Mot. at 7). In September 2001, Compliance Concepts received a complaint about the August 5, 2001 transport. (Defs.' Mot. at 7). The caller complained that the transport was made without a Transport RT and was in violation of Kapiolani policy (the "Anonymous Complaint"). (Defs.' Mot. at 7). Kapiolani was not informed of the caller's identity.³ (Defs.' Mot. at 7). Plaintiff testified that apart from the call to the Compliance Hotline, he did not report the August 5th transport to anyone outside of Kapiolani. (Defs.' Mot. at 8).

The Anonymous Complaint was investigated by the Office of Compliance at Kapiolani. (Defs.' Mot. at 8). Several Managers, including Plaintiff since he was the Respiratory Care Manager at that time, were involved in the investigation. (Defs.' Mot. at 9). The investigation included reviewing Kapiolani's policies and determining the facts surrounding the August 5th transport. (Defs.' Mot. at 9).

One issue addressed in the investigation was whether the Transport Team was appropriately composed. Plaintiff believed that a Transport RT was required to be assigned to all transports. (Defs.' Mot. at 9). At the time of the investigation, Kapiolani's "Guideline for Transport Services, Team Composition" provided that "[t]eam members may consist of Transport RNs, licensed in the State of Hawaii; Transport RTs, credentialed; Pediatric Resident, Pediatric Intensivist, Neonatal Fellow or Neonatologist." (Defs.' Ex. 13). The Guideline further provided that "[t]eam composition will be decided by the Accepting Pediatric or Neonatal physician and the Transport Nurse." (Defs.' Ex. 13). Kapiolani had also issued a "Service Goals/ Scope of Services" regarding Neonatal/Pediatric Transport Services, which stated that "[t]he Transport Team consists of Registered Nurses...