Riggio v. Burns

711 A.2d 497, 1998 Pa. Super. LEXIS 542

• Court: Superior Court of Pennsylvania
• Decided: March 30, 1998
• Status: Published

Opinions

HUDOCK, Judge:

This is an appeal from the order of the trial court granting summary judgment in favor of Rosalie A. Burns, M.D. (Dr. Burns), Lawrence Brown, M.D. (Dr. Brown), and the Medical College of Pennsylvania (MCP), (collectively Appellees). We granted en banc review to determine the applicability of the Pennsylvania Whistleblower Law, 43 P.S. sections 1421-1428, to a private medical institution which receives some funding from the Commonwealth. For the following reasons, we affirm the order granting summary judgment, albeit on grounds different from those relied upon by the trial court. See, e.g., Smith v. Smith, 439 Pa.Super. 283, 653 A.2d 1259 (1995).

The facts and procedural history may be summarized as follows: Appellant is a neurologist who was employed as an instructor in the Neurology Department at MCP. From January 1990, to June 1991, she served as Surgical Director and Associate Director for MCP’s Mid-Atlantic Regional Epilepsy Center (MAREC). During this time Dr. Burns was the Chairman of the Department of Neurology at MCP. Dr. Brown was the Director of Pediatric Neurology at MAREC from 1989 until May of 1991, when he became the Director of MAREC. On July 1, 1991, Appellant was reappointed “without tenure” to the MCP faculty through June 30, 1992.

Dr. Burns terminated Appellant’s employment in February of 1992, citing failure to follow departmental leave procedure as the cause. Appellant asserts that the reason stated was clearly prétextual and that her termination resulted from the following events: In 1990, several MAREC patients were referred to MCP’s Department of Neurology for epilepsy surgery, wherein electronic strips, or depth electrodes, were to be placed in or over the brains of the patients. Although H. Warren Goldman, M.D. (Dr. Goldman), Chief of Neurosurgery, was the supervising surgeon for these procedures, he was not physically present while residents actually inserted the electrodes. One of the patients died and another lapsed into a coma as a result of these procedures.

Appellant and Richard N. Hamer, M.D. (Dr. Harner), Director of MAREC at the time and Vice Chair of MCP’s Department of Neurology, vigorously opposed Dr. Goldman’s definition of “supervision” and demanded that he either personally perform all future epilepsy surgeries, or that he be physically present to supervise the residents. Dr. Goldman twice provided assurances that he would conduct future surgeries in compliance with these demands. However, shortly after each promise, Dr. Goldman again permitted residents to place the electrodes while he was not physically present in the operating room. On November 23, 1990, Appellant and Dr. Hamer sent a letter to Harry Gottlieb, M.D. (Dr. Gottlieb), Vice President of Clinical Affairs at MCP, in which they specifically outlined their objections to Dr. Goldman’s activity.

Following a meeting between Dr. Goldman, Dr. Gottlieb, and Dr. Hamer, Dr. Goldman agreed to personally perform the surgeries until such time as he and the neurologists could agree on guidelines governing the residents’ participation. Thereafter, several meetings were held in which Dr. Har-ner and Dr. Goldman exchanged drafts of proposed surgical guidelines. The doctors were unable to reach an agreement with respect to (1) whether Dr. Goldman must be physically present during the surgeries; and (2) whether only residents who had attained the later stages of their residency would be permitted to operate. Because an agreement could not be reached, and because Dr. Goldman had again permitted a resident to operate while he was not physically present, Dr. Gottlieb and Dr. Burns decided to stop the surgical component of the epilepsy program.

On May 13 and 14, 1991, respectively, Dr. Hamer and Appellant resigned from their respective positions at MAREC, but retained their other positions at MCP. On July 1, 1991, Appellant was informed that she would not be reappointed to MCP’s faculty for the year commencing July 1, 1992. Dr. Hamer then completely resigned from MCP on December 31, 1991. In January of 1992, after accepting an offer for employment at the Mayo Clinic, Appellant notified Dr. Burns that she also was resigning from MCP, to be effective in March of 1992. However, in February of 1992, Appellant was terminated from MCP for allegedly failing to follow departmental leave procedure in relation to a medical conference she had attended in California.

On July 19, 1992, Appellant filed an amended complaint, asserting the following claims against all Appellees: breach of contract (Count I), wrongful discharge based upon an intent to harm (Count II), intentional infliction of emotional distress (Count III), defamation (Count IV), invasion of privacy (Count V), interference with present or future contract advantages (Count VI), violation of the Pennsylvania Whistleblower Law (Count VII), false light publicity (Count VIII), and wrongful discharge based upon a violation of public policy (Count IX). Upon completion of discovery, Appellees moved for summary judgment on all counts except the breach of contract claim against MCP. On October 11, 1995, the trial court granted summary judgment and dismissed all of Appellant’s claims except the breach of contract claim against MCP (Count I), and the defamation claim (Count IV) against Dr. Brown only. The order was made final by a prae-cipe to discontinue the breach of contract and defamation claims. See Pa.R.AP. 341, 42 Pa.C.S.A This appeal followed wherein Appellant seeks en banc review solely with respect to her claim under the Pennsylvania Whistleblower Law.

When determining whether a trial court properly entered summary judgment, this Court’s scope of review is plenary. Schriver v. Mazziotti 432 Pa.Super. 276, 638 A.2d 224, 225 (1994). Summary judgment is granted when the record demonstrates that there exists no genuine issue of material fact. Pa. R.C.P. 1035(b), 42 Pa.C.S.A¹ We must examine the entire record in the light most favorable to the non-moving party and resolve all doubts against the moving party when determining if there is a genuine issue of material fact. Schriver, 638 A.2d at 225. We will reverse an entry of summary judgment only if the trial court commits an error of law or abuses its discretion. Accur-Weather, Inc. v. Prospect Communications, Inc., 435 Pa.Super. 93, 644 A.2d 1251, 1254 (1994).

In Count VII of her amended complaint, Appellant claimed that her employment was terminated in violation of the Pennsylvania Whistleblower Law. Appellees moved for summary judgment as to Count VII based upon the following: (1) Appellant was not an “employee”; and (2) she did not report a “wrongdoing”, as these terms are defined by the Whistleblower Law. The trial court dismissed Appellant’s claim, concluding that because MCP was not a “public body”, she could not be considered an employee under the statute.

The Whistleblower Law provides, inter alia, that “[n]o employer may discharge, threaten or otherwise discriminate or retaliate against an employee ... because the employee ... makes a good faith report or is about to report, verbally or in writing, to the employer or appropriate authority an instance of wrongdoing or waste.” 43 P.S. § 1423(a). “Employee” is defined as “[a] person who performs a service for wages or other remuneration under a contract of hire ... for a public body.” 43 P.S. § 1422.

Because the Whistleblower Law applies only if Appellant was an employee of a public body, we must first determine whether MCP may be considered such an entity under the statute. A “public body” is defined, in relevant part, as “[a]ny ... body which is created by Commonwealth or political subdivision authority or which is funded, in any amount by or through Commonwealth or political subdivision authority or a member or employee of that body.” Id. (emphasis added). In response to Appellant’s interrogatories, MCP admitted to the receipt of yearly appropriations from the Commonwealth of Pennsylvania.²

Nevertheless, Appellees aver that such appropriations cannot render MCP a public body for purposes of the Whistleblower Law. Appellees argue that finding MCP to be a public body is an absurd result, which could not have been intended by the legislature. In support of their assertion, Appellees attempt to find ambiguity in the legislature’s use of the term “funded,” since this term is not defined within the statute. It appears that Appellees’ argument derives from language in Cohen v. Salick Health Care, Inc., 772 F.Supp. 1521, 1527 (E.D.Pa.1991), wherein the United States District Court for the Eastern District of Pennsylvania considered a much more complicated question from that which presents itself instantly. After commenting that “[i]t is clear that the legislative intent was to make the law applicable to bodies that receive even one dollar of state funding,” the court indicated that the legislative history was silent as to what was meant by “funded.” Cohen, 772 F.Supp. at 1526 (citing Pa.Legis.J.-House, June 18,1985, pp. 1230-32,1277).

The issue in Cohen was whether the following amounted to funding by or through the Commonwealth: The defendant was a publicly owned, for-profit corporation, which was incorporated in the State of California and contractually affiliated with Temple University regarding the operation of a cancer treatment center in Philadelphia. The center treated Medicaid-eligible patients and billed the Commonwealth through Temple University. The Medicaid reimbursement was then remitted to Temple, which in turn paid the defendant a certain amount representing payment for services rendered.

The Cohen court held that such an arrangement did not constitute funding by or through Commonwealth authority, and that, therefore, the defendant was not a public body under the Whistleblower Law. Even if we were bound by this decision, which we are not, the issue of whether Medicaid reimbursements constitute funding is not before us. In this ease, MCP acknowledges, as it must, that it received specific appropriations from the General Assembly of this Commonwealth. A more direct and patent form of funding is difficult to imagine.

Appellees claim that finding MCP to be a public body simply because it received state appropriations would be an absurd result because it would “warp the plain meaning of the term ‘public body* ” to include all otherwise private entities that receive state appropriations. Appellees’ Substituted En Banc Brief at 15. Consequently, Appellees assert, thousands of such entities would unexpectedly be subject to the Whistleblower Law. However, an attempt to divine the intent of the legislature by reference to the common understanding of “public body” is not only unnecessary, it also begs the question. Notwithstanding the everyday meaning of “public body”, this term was expressly defined by our legislature for purposes of the Whistle-blower Law. “Where a statute provides internal definitions, we are bound to construe the statute according to those definitions.” Hodges v. Rodriguez, 435 Pa.Super. 360, 645 A.2d 1340, 1348 (1994) (citing 1 Pa.C.S.A. § 1903(a)).

The statute' plainly and unequivocally makes any body “funded in any amount by or through Commonwealth ... authority” a public body for purposes of the Whistleblower Law. 43 P.S. § 1422. Where the language of a statute is unambiguous on its face, we are bound to give effect to that language. 1 Pa.C.S.A. § 1921(b). Parenthetically, we note that it is not unreasonable for the legislature to condition the receipt of state funds on the acceptance of the responsibilities embodied in the Whistleblower Law. Accordingly, as MCP was clearly funded by the Commonwealth, we find it to be a public body as defined by the statute. Thus, the Whistleblower Law applies to Appellant as an employee of a public body.

We must now determine whether the action taken by Appellant qualifies as a report of “wrongdoing,” entitling her to the protection of the Whistleblower Law.³ “Wrongdoing” is defined as “[a] violation which is not of a merely technical or minimal nature of a Federal or State statute or regulation, of a political subdivision ordinance or regulation or of a code of conduct or ethics designed to protect the interest of the public or the employer.” 43 P.S. § 1422.

Appellant contends that she clearly reported a wrongdoing under the statute because she was objecting to surgical procedures, which placed patients’ safety in jeopardy. Consequently, Appellant asserts, her complaints were in relation to activity that completely disregarded the legal and ethical duties placed upon all health care providers. “[S]ueh duties are expressed not only in the various ethical codes promulgated by State and local medical societies, but by statute.” ⁴ Appellant’s Substituted En Banc Brief at 24. In support of her assertion, Appellant directs our attention to the Health Care Facilities Act, 35 P.S. sections 448.101-448.904, which sets minimum licensing standards for health care facilities. Appellant notes that Section 448.808 provides that a license shall issue to a health care provider when the Department of Health is satisfied, inter alia, “that the health care facility provides safe and efficient services which are adequate for the care, treatment and comfort of the patients or residents of such facility.” 35 P.S. § 448.808(a)(3). Additionally, the department may refuse to renew a license or may suspend or revoke a license due to “incompetence, negligence or misconduct in operating the health care facility or in providing services to patients.” 35 P.S. § 448.811(7).

As further support for her position, Appellant cites the Medical Practices Act of 1985, 63 P.S. sections 422.1-422.45, establishing the licensing standards for medical practitioners. Section 422.41 provides that the State Board of Medicine may impose disciplinary or corrective measures on a medical practitioner for “failing to conform to an ethical or quality standard of the profession,” which is defined as “when the practitioner provides a medical service at a level beneath the accepted standard of care,” or “[ajeting in such manner as to present an immediate and clear danger to public health or safety.” 63 P.S. §§ 422.41(8)(ii), 422.41(9).

Appellant avers that she comported with, and was in fact compelled by, these licensing statutes to prevent future occurrences of epilepsy surgery performed by unsupervised residents. We do not doubt the good faith of Appellant’s belief that Dr. Goldman’s practice of permitting residents to place depth electrodes while he was not physically present constituted conduct which fell below an acceptable standard of medical care. And while we admire Appellant’s dedication to what she believed to be a good cause, we are constrained to hold that she has not presented a cognizable claim under the Whistleblower Law.

The regulatory statutes cited by Appellant are entirely too general and vague to permit the conclusion that a violation had occurred amounting to “wrongdoing” under the Whis-tleblower Law. Both the Health Care Facilities Act and the Medical Practices Act of 1985 provide only general requirements for the licensing of health care facilities and physicians. For example, within one of the sections Appellant cites, it is provided that the Department of Health shall issue a license to a health care provider when it is satisfied “that the health care provider is a responsible person.” 35 P.S. § 448.808(a)(1). Similarly, another section states that a physician may be subject to disciplinary measures for “[b]eing guilty of immoral or unprofessional conduct.” 63 P.S. § 422.41(8). Because standards such as these are subject to interpretation, and do not specifically define prohibited conduct, it is not at all clear when they would be violated in such a way as to amount to “wrongdoing”.

This observation is equally true of the sections emphasized by Appellant: Whether an individual physician or a health care facility has acted in a manner which is incompetent, negligent or below the requisite standard of care, or which presents a danger to public safety, are questions which involve differences of medical opinion. The facts of this case are illustrative: Dr. Goldman was of the opinion that proper supervision of the residents required only that he be present during certain portions of the procedures, and that he be immediately available to assist dining others. Appellant was of the contrary belief that Dr. Goldman should be physically present for the entire surgery. Subsequent to Appellant’s initial complaint,⁵ Dr. Goldman agreed to personally perform future surgeries until an agreement could be reached regarding proper supervision. After Dr. Goldman breached this promise, MCP suspended the epilepsy surgery program until such an agreement could be reached. Appellant was discharged more than a year later, at which time no agreement had been reached and no further surgeries had been performed.

Viewing these facts most favorably to Appellant, it appears that the question of what constituted proper supervision involved a difference of medical opinion. In this regard, we find this Court’s reasoning in the wrongful discharge context persuasive:

An employee who is also a professional has a dual obligation: to abide by federal and state laws, in addition to staying within the bounds of his/her professional code of ethics. Such responsibility may necessitate that the professional forego the performance of an act required by his/her employer. However, when the act to be performed turns upon a question of judgment, as to its legality or ethical nature, the employer should not be precluded from conducting its business where the professional’s opinion is open to question.

McGonagle v. Union Fidelity Corp., 383 Pa.Super. 223, 556 A.2d 878, 885 (1989) (citations omitted).

Assuming, arguendo, that Dr. Goldman’s activity constituted negligent or incompetent conduct,⁶ Appellant would still not be entitled to protection under the Whistleblower Law. Wrongdoing, as defined by the Whistleblower Law, does not encompass tort principles unless a statute, regulation, or code of conduct or ethics is violated by the tortious act or omission. See 43 P.S. § 1422, swpm. Appellant attempts to come within the purview of the Whistleblower Law by claiming that Dr. Goldman’s conduct violated the licensing statutes. However, the licensing statutes are of no assistance to Appellant because they lack specificity as to what acts are proscribed. The statutes merely consist of the legislature’s guidelines for the regulation of the health care industry. Each statute delegates to an independent entity the power to investigate and evaluate whether the individual in question has complied with these general standards.⁷ They then provide that certain consequences may be imposed if the entity determines that the standards have not been met. The statutes are utterly silent with respect to specific conduct. Because the statutes cited by Appellant do not comment on the issue of when a surgeon must be physically present while a resident engages in surgical procedures, we cannot conclude that they have been violated in such a manner as to constitute “wrongdoing” as defined by the statute.⁸

In a final attempt to establish wrongdoing, Appellant notes a Medicare regulation in effect at the time stating, in pertinent part, that in order for a hospital to receive Medicare reimbursement for a major surgical procedure performed by a resident, the attending physician must supervise the procedure in person. 42 C.F.R. § 405.521 (1990). Although the procedures presently in question were undoubtedly “major surgery,” the regulation provides little support for Appellant’s claim. The regulation merely advised of the conditions under which Medicare would reimburse teaching hospitals for surgical procedures. It neither created a duty to supervise in person nor prohibited surgery in the absence of such personal supervision. Therefore, the regulation simply could not be violated as contemplated by the Whistleblower Law.

Order affirmed.

CAVANAUGH, J„ and CIRILLO, President Judge Emeritus, file concurring opinions.

McEWEN, President Judge, files a concurring and dissenting statement.

1 . We recognize that Pa.R.C.P. 1035 has been recently replaced by Pa.RA.P. 1035.1-1035.5, effective July 1, 1996. Because the instant order was entered on October 20, 1995, the new rules are not applicable.

2 . In fact, our legislature appropriated over $4.5 million to "The Medical College of Pennsylvania located in East Falls, Philadelphia,” for the fiscal year July 1, 1990 to June 30, 1991. 1990 Pa. Laws Act 1990-20A. There is no dispute that Appellant was employed at MCP’s East Falls location.

3 . Appellant misrepresents that Appellees moved for summary judgment on the sole ground that MCP was not a public body and that Appellees "posited an entirely new argument” on appeal. Our review of the record reveals that Appellees’ summary judgment motion also specifically averred that Appellant failed to establish that she reported a "wrongdoing” under the statute.

4 . Beyond this general reference to "various ethical codes”, Appellant offers no further identification of a code of ethics or conduct which she believed had been violated. See generally Surmacz v. Department of Public Welfare, 148 Pa.Cmwlth. 585, 612 A.2d 566 (1992) ("code” under the Whistleblower Law requires at least a written document).

5 . Drs. Bums and Brown joined in Appellant’s initial complaint to MCP.

6 . Appellant avers that because Drs. Bums and Brown opposed Dr. Goldman’s definition of supervision as "unacceptable,” it is conclusively established that Dr. Goldman’s conduct was below the requisite standard of care. For the reasons expressed infra, we do not decide this issue.

7 . This function is performed by the Department of Health under the Health Care Facilities Act and the State Board of Medicine under the Medical Practices Act of 1985. See supra.

8 . As noted previously, Appellant does not direct our attention to any code of ethics or conduct that would require a surgeon to be physically present with a resident under these or any circumstances.