Update: On February 24, 2014, the U.S. Supreme Court issued an order declining review of the 10th Circuit's decision.

As noted in several recent posts to this blog, the number of whistleblowing claims in the healthcare industry is rapidly rising, and there are a growing number of private and federal initiatives supporting whistleblowing in this field.  Nevertheless, a recent case from the U.S. Court of Appeals for the Tenth Circuit establishes that not all “whistleblowing” activity is statutorily protected.  In Genova v. Banner Health, a physician claimed that a hospital terminated his staff privileges in retaliation for reporting overcrowded conditions in a hospital emergency room.  The Tenth Circuit affirmed the U.S. District Court for the District of Colorado and held that the physician’s report did not qualify for protection under the whistleblower provision of the Emergency Medical Treatment and Labor Act (EMTALA).

Hospitals have two primary obligations under the EMTALA.  The first is that the hospital must examine everyone who arrives at its emergency room seeking treatment, regardless of ability to pay.  Second, if the examination reveals that the patient has an emergency medical condition, the hospital usually must attempt to stabilize the patient before trying to transfer the patient elsewhere.  As explained by the Tenth Circuit, “the basic statutory point is plain: a patient requiring emergency care may not be dumped on another hospital when there is no medical justification for doing so.”  To give force to its policy objectives, the EMTALA allows individuals who suffer personal harm as a direct result of a hospital’s violation of the statute to sue the hospital for damages.  The statute also contains a whistleblowing provision, which provides that:

A participating hospital may not penalize or take adverse action [1] against a qualified medical person . . . or a physician because the person or physician refuses to authorize the transfer of an individual with an emergency medical condition that has not been stabilized or [2] against any hospital employee because the employee reports a violation of a requirement of this section.

In Genova, the Tenth Circuit found that none of these provisions provided the physician with a cause of action.  The “personal harm” provision and the second clause of the whistleblower provision protect individuals who are directly harmed by, or report, an EMTALA violation.  Here, the physician did not claim that he suffered personal harm as a result of the hospital’s alleged violation, nor did he claim that he was discharged for reporting the hospital’s failure to examine or stabilize a patient or to transfer a patient who could not be stabilized.  The Tenth Circuit therefore found that his complaint, which was effectively that the hospital refused to transfer patients, was not about an EMTALA violation but rather its inverse.  Such a complaint, therefore, was not protected activity under the statute.

The first clause of the whistleblower provision likewise did not provide protection for the physician’s complaint that he was retaliated against for wanting to send patients elsewhere.  The Tenth Circuit found that this provision protects physicians who refuse to authorize the premature or improper transfer of a patient.  The EMTALA does not address physician complaints regarding a hospital’s alleged refusal to send patients elsewhere. Thus, the physician’s complaint did not qualify as whistleblowing activity under the plain language of the statute.

Although the Tenth Circuit concluded that the EMTALA did not provide the physician with a cause of action, it did acknowledge the potential implications of patient hoarding raised by the physician. The Tenth Circuit acknowledged that patient hoarding could, at some point, lead to patient dumping, which would implicate the EMTALA.  Nevertheless, based on the language of the statute, the court found that the EMTALA provides coverage only when the plaintiff was harmed by or reported an existing EMTALA violation, not an impending violation.  The Tenth Circuit noted that, because the EMTALA’s language is plain and not absurd on its face, its role is limited to enforcing the statute according to its terms.

The Tenth Circuit’s holding is a positive development for healthcare employers on the whistleblowing front.  This case establishes that, despite the current favorable landscape for whistleblowing claims, courts will still strictly construe statutory language and will not find that all “whistleblowing” activity warrants protection.

Photo credit: Courtney Keating