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Surgeon’s Whistleblower Claim Survives Dismissal

by mjpospis on February 15, 2017

in Employment Law, Pleading, Severance Agreements, Whistleblower Law

In Ruiz v. Lenox Hill Hosp., No. 160377/15, 2017 WL 213802 (N.Y. App. Div. 1st Dept. Jan. 19, 2017), the First Department affirmed (in part) a lower court’s decision addressing plaintiff’s claims under New York’s general and health-care whistleblower laws (N.Y. Labor Law §§ 740 and 741)

Here are plaintiff’s allegations, as summarized by the court:

Plaintiff alleges that, as soon as he took over as Chair of defendant Lenox Hill Hospital’s Department of Cardiovascular and Thoracic Surgery, Dr. [S. Jacob] Scheinerman began signing medical procedure reports for procedures which he had neither performed nor witnessed, contrary to the usual practice of having the performing physicians sign those reports. Plaintiff also alleges that, contrary to accepted postoperative protocol that the lead surgeon report the results of a surgical procedure to the patient’s family, Dr. Scheinerman reported the results of a valve implant procedure on which plaintiff had been the lead surgeon. Plaintiff reported Dr. Scheinerman’s actions to Lenox Hill’s human resources department, and he alleges that, because of that report, he was terminated.

As to plaintiff’s claim under Labor Law 740, the court held:

Liberally construing the complaint, presuming its factual allegations to be true, and giving the allegations every favorable inference, as we must on a CPLR 3211 motion to dismiss, plaintiff has adequately pleaded a claim for retaliatory termination in violation of Labor Law § 740 as against the hospital and corporate defendants. Defendants’ contention that plaintiff has failed to sufficiently allege facts constituting a specific or substantial danger to public health is without merit. Falsification of medical records, including a physician’s false claim to have performed a procedure, has been held to establish a violation of section 740. (Emphasis added.)

As to Labor Law 741, the court explained:

Plaintiff also adequately stated a claim under Labor Law § 741 as against the hospital and corporate defendants. At this early juncture, it is too soon to decide whether reports to a patient’s family constitute improper care of the patient himself. As with his claim under Labor Law § 740, plaintiff need not identify the specific rule that had been violated. Moreover, plaintiff need only allege, for his Labor Law § 741 claim, that he reasonably believed that there had been such a violation, not that there was an actual violation.

However, the court held that “[t]he motion court should have dismissed the Labor Law claims as against Dr. Scheinerman individually, since he is not an ’employer’ within the meaning of Labor Law §§ 740 and 741.”

Finally, the court held that “[t]he motion court correctly determined the plaintiff is not entitled to a severance payment under his employment contract or severance agreement unless he executes the general release provided in the severance agreement.”

Categories: Employment Law, Pleading, Severance Agreements, Whistleblower Law

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