New opinion — Third Circuit rejects EMTALA whistleblower appeal

Gillespie v. Regionalcare Hospital Partners — civil — affirmance — McKee

A pregnant women arrived at Pennsylvania’s Southwest Regional Medical Center complaining of pain and vaginal bleeding. After examining her, ER personnel discharged the woman and told her to go to a different hospital. The nurse at Southwest Regional in charge of evaluating patient care and addressing medical errors believed that discharging the woman violated a federal law against hospital-patient dumping known as EMTALA. Right after she told her supervisor that Southwest Regional had to report the EMTALA violation, she was fired. She sued, alleging that her firing violated EMTALA’s whistleblower protection, and the district court granted summary judgment to the hospital.

Today, the Third Circuit affirmed the ruling against the fired nurse. To be covered by EMTALA’s whistleblower provision, the nurse had to have “reported a violation.” Here, the court explained, the nurse didn’t “report” anything because she alleged her superiors already knew about and to the EMTALA violation but refused to report it anyway. So, no “report.” (I have no EMTALA expertise, but I would have guessed that the medical center’s failure to report was itself an EMTALA violation, separate from the original patient-dumping violation, and one that the nurse did report, but the opinion does not mention this theory so I’m not sure.) Anyhow, a tough case.

Joining McKee were Smith and Restrepo. Arguing counsel were Noah Geary for the nurse and Marla Presley of Jackson Lewis for the medical center.