In Galbraith v. Westchester County Health Care Corp., 2016 NY Slip Op 04176 (App. Div. 2nd Dept. June 1, 2016), the court affirmed the trial court’s finding in favor of plaintiff, a perfusionist (Wikipedia definition here), on his whistleblower claim under New York Labor Law § 741.
Here’s what happened:
In October 2008, [plaintiff] was appointed as the defendant’s chief perfusionist on a probationary basis, to become permanent after one year. On June 17, 2009, the defendant informed the plaintiff that the perfusionists would be responsible for operating a rapid infusion device in the operating room during liver transplant surgeries beginning on July 1, 2009. The plaintiff raised various concerns with his supervisors about implementing the policy. On October 2, 2009, the defendant terminated the plaintiff’s probationary appointment as chief perfusionist and returned him to his prior position as a per diem perfusionist. After that date, the defendant gave the plaintiff no further work.
The plaintiff subsequently commenced this action to recover damages for violation of Labor Law § 741, alleging that he was demoted and denied further work in retaliation for his objections to the rapid infuser policy, which he asserted because he was concerned that it threatened the quality of patient care.
The cited statute “prohibits an employer from taking retaliatory action against an employee because the employee discloses, threatens to disclose, objects to, or refuses to participate in any activity, policy or practice of the employer or agent that the employee, in good faith, reasonably believes constitutes improper quality of patient care.”
Applying the law, the court explained its decision to affirm the lower court’s finding for plaintiff:
[T]he Supreme Court properly found that the plaintiff, in good faith, reasonably believed that the rapid infuser assignment constituted improper quality of patient care. 8 NYCRR 29.1(b)(10) prohibits “delegating professional responsibilities to a person when the licensee delegating such responsibilities knows or has reason to know that such person is not qualified, by training, by experience or by licensure, to perform them” (8 NYCRR 29.1[b][10]). The trial evidence showed that the effective date of the rapid infuser policy required the perfusionist staff to assume responsibility for operating the device (which entails, inter alia, the professional duty of administering medication) during liver transplant surgeries before they would have received sufficient training to do so without jeopardizing patient safety, and that the plaintiff raised that concern with his supervisors. The Supreme Court also properly concluded that the defendant terminated the plaintiff’s probationary appointment as chief perfusionist and denied him further work in retaliation for his complaints about the alleged improper quality of patient care rather than his performance.
The court also held, however, that the lower court correctly declined to direct defendant to reinstate plaintiff to his prior position. “Although reinstatement is one of several forms of relief authorized by Labor Law § 740(4)(d), the record supports the view that reinstatement would not have been feasible under the circumstances presented”, which included the fact that plaintiff’s perfusionist certification had lapsed.