Romeka v. RadAmerica II, LLC
| Decision Date | 27 April 2022 |
| Docket Number | 1207, Sept. Term, 2020 |
| Citation | 254 Md.App. 414,274 A.3d 451 |
| Parties | Bridget ROMEKA v. RADAMERICA II, LLC, et al. |
| Court | Court of Special Appeals of Maryland |
Argued by: Gregg H. Mosson (Mosson Law, LLC, on the brief), Towson, MD, for Appellant
Argued by: Jennifer L. Curry (Alison C. Schurick, Chelsea N. Hayes, Baker, Donelson, Bearman, Caldwell & Berkowitz PC, on the brief), Baltimore, MD, for Appellee
Panel: Arthur, Leahy, Deborah S. Eyler (Senior Judge, Specially Assigned), JJ.
In the Circuit Court for Baltimore City, Bridget Romeka, the appellant, sued RadAmerica II, LLC, MedStar Health, Inc., and Helixcare Medical Group, LLC (collectively "RadAmerica"),1 the appellees, alleging that she was terminated from employment in violation of the Maryland Health Care Worker Whistleblower Protection Act ("HCWWPA" or "the Act"), Md. Code , §§ 1-502 through 1-506 of the Health Occupations Article ("HO"). The circuit court granted summary judgment to RadAmerica on the ground that, as a matter of law, Ms. Romeka's termination from employment was not causally connected to her alleged protected disclosure under the Act. It also ruled that RadAmerica's refusal to allow Ms. Romeka to resign immediately after she was fired was not actionable in a suit under the HCWWPA. We shall affirm the judgment.
The HCWWPA was enacted in 2002 by passage of House Bill 329, Acts 2002, c. 504, § 1, eff. October 1, 2002. The Act is designed to advance public health and safety by protecting whistleblowing health care workers.
HO § 1-502(1) prohibits an employer from "tak[ing] or refus[ing] to take any personnel action as reprisal against an employee[2 ] because the employee ... [d]iscloses or threatens to disclose to a supervisor or board an activity ... of the employer that is in violation of a law, rule, or regulation[.]"3 That provision is "subject to" HO § 1-503, which requires, for protection under the Act, that an employee have a reasonable, good faith belief that the employer engaged in an illegal activity posing a substantial and specific danger to the public health and safety, and that the employee take certain procedural steps, including reporting the activity to a superior with authority to correct it.4
An employee "who is subject to a personnel action in violation of § 1-502" may bring a civil action against the employer. HO § 1-504(a). In such an action, a court may issue injunctive relief, reinstate the employee, remove any adverse personnel entries for the employee, reinstate fringe benefits and seniority rights, require compensation for lost wages, benefits, and other remuneration, and assess reasonable attorneys’ fees against the employer if the employee prevails or against the employee if the action was brought in bad faith. HO § 1-505. It is a defense "that the personnel action was based on grounds other than the employee's exercise of any rights protected under this subtitle."5 HO § 1-506.
In essence, the Act provides protection from retaliation. Its gist is succinctly summarized in the Fiscal Note that accompanied House Bill 329:
The bill prohibits an employer from taking or refusing to take certain personnel actions regarding licensed or certified health care employees who disclose unlawful behavior or refuse to participate in unlawful behavior. The employees must have a good faith belief that the employer is engaged in unlawful activity, and that it poses a substantial and specific danger to public health or safety.
MD. Fisc. Note, 2002 Sess. H.B. 329.
Lark v. Montgomery Hospice, Inc. , 414 Md. 215, 229, 994 A.2d 968 (2010), is the only reported Maryland appellate opinion about the HCWWPA. There, the Court interpreted HO § 1-502 to mean that it is not a condition precedent to a suit under the Act that the plaintiff report the employer's alleged wrongdoing to an external board or agency before being terminated.6
RadAmerica, a wholly owned subsidiary of MedStar Health, Inc., was under contract with Mercy Medical Center, Inc., ("Mercy") to furnish medical physicists and radiation therapists for Mercy's Radiation Oncology Center ("ROC"). The RadAmerica employees in the ROC worked and interacted with the Mercy physicians and other Mercy medical and nursing staff.
Ms. Romeka was hired by RadAmerica in 2001 and worked in the ROC for most of her tenure with the company. In 2002, she was promoted to Chief Radiation Therapist. At all times relevant to this case, her direct supervisor was Christopher Osik, RadAmerica's Technical Director. Coleman Rosen, M.D., RadAmerica's Vice President of Technology Management, was Mr. Osik's manager. Ms. Romeka also worked under Fritz Lerma, M.D., RadAmerica's Chief Medical Physicist for the ROC. Maria Jacobs, M.D., not a RadAmerica employee, was Medical Director of the ROC.
Patients were referred to the ROC for radiation treatment, including stereotactic radiosurgery
("SRS").8 Dr. Jacobs planned and oversaw the radiation therapy with the assistance of Dr. Lerma, who also maintained calibration of the equipment used for SRS treatments. The RadAmerica radiation therapists were responsible for administering the SRS treatments to the patients in accordance with their treatment plans.
The ROC was equipped with a "TrueBeam" machine, manufactured by Varian, Inc. ("Varian"), that was used to administer SRS to patients with cancerous tumors in the head, neck, lung, breast, prostate, or liver. The TrueBeam consists of a "linear accelerator" that delivers the high dose beam of radiation to the tumor; an imaging system, for visualizing the beam and the area of the patient's body receiving the radiation; and a treatment couch, on which the patient lies, in a prescribed position, when the beam is being delivered. The proper angle for the beam is set by rotating the gantry of the accelerator around the patient while precisely positioning the treatment couch on which the patient is situated. Ordinarily, the treatment couch is moved mechanically, using a remote-control button on a control panel immediately outside the treatment room or a remote-control device inside the treatment room. It is possible to move the treatment couch manually, however.
At the start of each day, a radiation therapist would warm up the TrueBeam and perform various checks to make sure it was working properly. Any problem with the machine would be reported to Mercy's biomedical engineer, and if not resolved, to Varian.
Before a patient underwent treatment, the assigned radiation therapist was required to determine that all the necessary documents were in the patient's chart, which was kept in an Electronic Medical Record ("EMR"). These documents included a written consent form signed by the patient, a physician, and a witness, which was scanned into the patient's EMR. Radiation therapy was not supposed to be delivered to a patient without a completed and scanned consent form.
In this case, Ms. Romeka claims that on Thursday, May 17, 2018, she made a protected disclosure under the HCWWPA to Mr. Osik; she was terminated from employment on Monday, May 21, 2018; and her termination was causally connected to her protected disclosure. Ms. Romeka's allegations focus on the events that took place during that time frame. RadAmerica maintains that it terminated Ms. Romeka for falsifying a medical record and other serious deficiencies in her job performance.
Its defense focuses on events that took place during April and May 2018, until the date Ms. Romeka was fired. We shall recite the facts in chronological order and, when in dispute and material, in the light most favorable to Ms. Romeka.9
One of Ms. Romeka's patients underwent "radiation simulation" on April 6, began radiation treatments on April 9, and completed treatments on April 20.10 On April 27, a routine peer review of randomly selected EMRs of ROC patients revealed that this patient's completed consent form had not been scanned into his EMR and his first weekly chart assessment had not been completed. Obtaining and filling out these forms and entering them in the patient's EMR had been Ms. Romeka's responsibility. The completed consent form should have been scanned into the patient's EMR before treatment (including simulation) started.
Ms. Romeka was confronted about the missing document on the day of the random peer review. Without authority from a superior, she accessed the patient's EMR and marked the patient's consent form as having been signed and scanned into the EMR, when it had not been. She also backdated the first weekly chart assessment to April 9 and marked it as complete. Thinking that at one time she had had the consent form in hand, and that it had been misplaced, she then searched for it, without success.
On May 1, Ms. Romeka told Dr. Jacobs that the patient's consent form was missing but the patient had undergone treatment. Dr. Jacobs was "very disturbed and very disappointed" about this. Aware that Dr. Jacobs was "pretty upset with [her,]" Ms. Romeka also told Mr. Osik about the missing consent form. Mr. Osik directed her to submit a report about the situation to MedStar's Patient Safety Event System. Ms. Romeka did so.
Also on May 1, Scott Blackburn, one of three radiation therapists working under Ms. Romeka's supervision, complained to Mr. Osik that she was subjecting them to harsh and unfair treatment. Mr. Osik relayed the complaint to Dr. Rosen and they met with Mr. Blackburn that day. Mr. Blackburn reported that Ms. Romeka was bullying the radiation therapists, not training her staff, and making mistakes that she blamed on others. He complained that Ms. Romeka did not understand "basic concepts of radiation treatment" and was disrespectful to the medical staff in the ROC. Mr. Blackburn told Mr. Osik and Dr. Rosen that all three radiation therapists were prepared to resign if Ms....
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Romeka v. Rad America II, LLC
...was to advance public health and safety by protecting whistleblowing health care workers from retaliation by their employers. Romeka, 254 Md.App. at 455. After defining basic terms in section 1-501, the Act gets right to the point in section 1-502 by prohibiting covered employers from takin......
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