Friday, December 14, 2007

How do we interpret the State's whistleblower law?

If the Second Circuit is asked to decide a complicated issue of State law, it sometimes certifies the issue for the New York Court of Appeals, which then finds an answer and returns the case to the Second Circuit. This happens because State law claims can be raised in Federal court so long as the plaintiff also seeks relief under a Federal statute. On the assumption that the State's highest court is better qualified to intrepret State laws, the Second Circuit certifies some issues for which there is no easy answer.

That happened in Reddington v. Staten Island University Hospital, decided on November 14. The plaintiff brought an action under the Federal age discrimination law and the State whistleblower statute. The age discrimination claim dropped away from the suit, leaving only the whistleblower claim. The trial court dismissed the whistleblower claim and Reddington asked the Second Circuit to reinstate the claim. But the Circuit court is unable to do so, at least for now.

The problem is that the New York whistleblower statute is not as broad as a Federal whistleblower claim that plaintiffs can bring against the government. These First Amendment claims allow the plaintiff to argue that she was fired for speaking out on matters of public concern. That option was not available to Reddington, so she sued under the State law. Under Labor Law sec. 741, an employer cannot, among other things, “take retaliatory action against any employee because the employee . . . discloses or threatens to disclose . . . an activity, policy or practice of the employer or agent that the employee, in good faith, reasonably believes constitutes improper quality of patient care.” The statute defines “employee” to mean “any person who performs health care services for and under the control and direction of any public or private employer which provides health care services for wages or other remuneration.”

Was Reddington covered under the statute? That is, was she an "employee"? As the Second Circuit noted, "It is not plain on the face of the statute whether health care services may include services beyond the provision of medical treatment." Reddington did not render medical treatment. The Court stated, "The term 'health care services' might be read to encompass, for example, a hospital’s pharmacist, who would likely learn if a doctor at the hospital was illegally prescribing medication, or even a hospital’s insurance claims processor. But the legislative history does not clearly indicate whether the definition extends to someone like Reddington whose job description includes functions such as: (1) “[c]oordinat[ing] and develop[ing] with Chief Medical Officer and appropriate medical personnel[] services to be offered to international patients”; (2) “[d]istribut[ing], collect[ing,] and analyz[ing] patient satisfaction questionnaires”; and (3) “[m]anag[ing] and train[ing] personnel providing translation services.”

The question of whether someone like Reddingon may invoke the protections of the whistleblower law has never been resolved by the New York Court of Appeals. Reluctant to pass judgment on this fresh legal issue, the Second Circuit sent it to the State's highest court for a ruling. Once the State Court of Appeals decides this question, the case returns to the Second Circuit, which can dispose of the appeal once and for all.

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