Lark v. Montgomery Hospice, Inc.

MURPHY, Judge. The parties to this appeal from the Circuit Court for Montgomery County, 1 Susan Eynon Lark (Appellant), and Montgomery Hospice Inc. (Appellee), present us with two questions of statutory interpretation. 2 We must determine ²¹⁸ whether a former employee is entitled to assert a wrongful discharge action under the Health Care Worker Whistleblower Protection Act (1) even if he or she never reported to an external board “an activity, policy, or practice of the [former] employer that is in violation of a law, rule, or regulation;” and/or (2) the “unlawful acts” that he or she threatened to report were errors committed by fellow employees who did not have the authority to establish the former employer’s “policy, or practice.” For the reasons that follow, we hold that (1) the report of unlawful acts to an external board is not a condition precedent to a civil action under the Act, and (2) when a fellow employee’s repeated violation of a law, rule, or regulation is reported to a supervisor, the failure or refusal to correct the violation constitutes a prohibited act of the employer. We shall therefore vacate the summary judgment entered against Appellant and in favor of Appellee, and remand for further proceedings not inconsistent with this opinion. Background Appellant filed a three count SECOND AMENDED COMPLAINT that included the following assertions: 2.

This is an action for: (1) wrongful discharge contrary to and in violation of a clear mandate of public policy[, asserted in Count I], (2) breach of an employment undertaking as set forth in [the] Personnel Manual [of Mont ²¹⁹ gomery Hospice Inc., Appellee, asserted in Count II], and (3) the violation of the Health Care Worker Whistleblower Protection Act (Sec. 1-501 through 1-505 of the Health Occupation article of the Maryland Code)[, asserted in Count III]. This action is brought by a former employee of [Appellee]. [Appellant] contends that she was fired for actions, reports and disclosures she took in carrying out duties she had under the laws of the State of Maryland as a registered nurse, as well as legal duties she owed to third parties. [Appellant] also contends that she could have been held civilly liable for failure to carry out those duties and could also be subject to discipline by the State Board of Nursing for failure to so act. 12. Consistent with her obligations under [Appellee’s] Personnel Manual, as well as the Maryland statutes and regulations, [Appellant] attempted to bring to her supervisor’s attention, charting that was not consistent with the health and safety of [Appellee’s] clients. In March of 2004, [Appellant] noted that an admission by one of [Appellee’s] RN was not properly documented and was full of errors. [Appellant] made a complaint to [Appellee’s] Director of Admissions.

It became apparent that the Director of Admissions sought to defend the failures of the RN. No action was taken. 15. More recently and directly leading to [Appellant’s] discharge, on or about January 30, 2007, [Appellant] found that “starter packs” of medications, including narcotics were being sent out. [Appellant] learned that these “starter packs” were being entered into every patient’s chart. So many such packs were being sent out that ... the Director of Week-End and Evening Services and [Appellant’s] immediate supervisor, became overwhelmed. [The Director] gave her name and password to her secretary for the issuance of the “starter packs.” [Appellant], subsequently learned that the “starter pack” orders, which contained adult narcotic doses, were sent to [Appel ²²⁰ lant’s] pediatric patients. [The Director], when confronted by [Appellant], claimed that these “starter packs” did not actually go out.

However, a mother of a patient told [Appellant] the following week that they had received a starter pack at 10:00 p.m. a few nights earlier. [Appellant] learned that such “starter packs” had been delivered to all pediatric patients, including ones where the family situation is unstable with many children and with little close supervision in the house. It took more than a week to get these “starter packs” out of the house. * * * 18. In addition, [Appellant] had during the period from September 2006 to April 2007, complained to management about acts that she understood were inconsistent with generally accepted professional standards of registered nursing practice and threatened the health and safety of third parties. This included: a) Narcotic being sent out to individuals who were not hospice patients; b) Improper documentation of narcotic drugs; c) Treatment with narcotics provided to patients without a physician’s order; d) Treatment of patients without signatures on initial “start of care” orders; e) Treatment of patients without current legal orders or with expired orders; f) Failure of supervisors to follow-up on documentation deficits or on missing medical orders and documentations; and g) Failure to initiate safety precautions with a patient that had a high risk of hemorrhage. 19.

E-mails concerning the above were sent by [Appellant] to Management, including [Appellee’s] Vice-President of Clinical Services and [Appellant’s] supervisor, in an attempt to comply with her legal and ethical responsibilities. All of these E-mails were on [Appellant’s] assigned ²²¹ computer. On April 13, 2007, [Appellant’s] immediate supervisor, requested that [Appellant] come in for her annual evaluation. On April 14, 2007, [Appellant] accompanied [Appellant’s supervisor] to a conference room where [Appellee’s] Vice-President of Clinical Services and [Appellee’s] Vice-President of Medical services, were already present. [Appellee’s Vice-President of Clinical Services] immediately handed [Appellant] a memo dated April 14, 2007 charging [Appellant] with alleged “practices [that] are frequently outside the acceptable and safe standards of nursing practice.” The memo concluded with the statement: “Effective Immediately: Sue EynonLark’s employment with Montgomery Hospice is terminated.” [Appellant] contends the statements were unfounded and was not the real reason for her discharge. 21. [Appellant] had a legal duty to disclose to her supervisors, (including those in management who had authority to take corrective action), the violation of the laws, including but not limited to the Health Occupations Article of the Maryland Code, state and federal narcotic laws, and violations of the rules and regulations of the state Board of Nursing, which require [Appellant] to safeguard clients and the public health and safety, when she had knowledge of [Appellee’s] employees[’] incompetent, unethical, or illegal practices. 22. [Appellant’s] termination, in fact, followed her recent complaints of several breaches in documentation, lack of clinical supervision and the delivery of medications, including narcotics, by others at Montgomery Hospice.

These breaches, failures and acts had been brought to the attention of [Appellant’s] supervisor and discussed with the Medical Director. These instances of errors increased within the last year. Many of these errors would, in fact, constitute “critical offenses” of such “seriousness that it justifies immediate discharge ...,” yet no one at Montgomery Hospice, to [Appellant’s] knowledge, had been even disciplined for such violations. ²²² 26. [Appellant] claims that the reason given for her discharge is pretextual and was in fact the result of her complaints to management which were meant to safeguard patients under her care as a registered nurse and for the health and safety of patients which [Appellant] believed were endangered by incompetent, unethical, or illegal practices. [Appellant] claims that she had a duty to bring these matters to the attention of management under Maryland statutory and regulatory law as well as the [Appellee’s] own personnel requirements. Failure of [Appellant] to bring violations to the attention of management could also subject [Appellant] to civil liability and subject her to a suspension of her nursing license. 29. [Appellee] violated a clear mandate of public policy set forth by Maryland statutes and duly adopted administrative regulations, as set forth above, when it terminated [Appellant’s] employment. [Appellant] had the duty to report to her supervisor and to management, acts and practices, which: (1) violated accepted professional standards in the practice of registered nursing; (2) were inconsistent with the health and safety of a person under [Appellant’s] care and/or were [Appellee’s] clients; (3) or affected public health and safety because of [Appellee’s] incompetent, unethical or illegal practices. [Appellant] also had potential personal liability and was subject to disciplinary action from the Board of Nursing had she failed to make such reports and disclosures.

For this reason the discharge was wrongful and unlawful. Appellee filed a motion to dismiss the Complaint, which was accompanied by a Memorandum that included the following arguments: Specifically, Counts I and III of the Second Amended Complaint challenge [Appellant’s] termination from [Appellee’s] employ as a wrongful discharge in violation of public policy and Maryland’s Health Care Worker Whistleblower Protection Act, Md.Code Ann., Health Occ. § § 1-501-1-506 (the “Act”), respectively; however, [Appellant’s] allega ²²³ tions do not refer to, let alone rely upon any clear mandate of public policy violated by her termination. Moreover, her allegations confirm that she is not entitled to avail herself of the protections of the Act because (1) the wrongdoing she complains of was committed by her fellow employees and not [Appellee]; and (2) she never reported any perceived wrongdoing to the appropriate external board or other authority as required for the Act to apply. Significantly, [Appellant] cannot rely on the only Maryland statute and regulation that could possibly provide a public policy claim on facts such as she has alleged.

Nurses do have a duty under both statute and regulation to report violations of certain statutes and regulations governing the conduct of other nurses and hospitals. Md. Health Occupations, § 8-505; COMAR 10.27.19.02(A)(7). Both Code section 8.505 and COMAR section 10.27.19.02 require, however, that the reports be submitted to the Board of Nursing. Id. [Appellant] does not (and cannot) allege that she made any report to the Board of Nursing, a step that is a necessary prerequisite for any claim of wrongful discharge under Maryland law.

See Thompson[ v. Memorial Hosp. at Easton, Maryland, Inc.], 925 F.Supp. [400] at 407-08 (holding a plaintiffs conduct must conform to the language of the statute on which he bases his claim for wrongful discharge in violation of public policy). For these reasons, [Appellant’s] Count I claim of wrongful termination in violation of public policy should be dismissed with prejudice. Even if this Court were to determine that [Appellant] may have alleged the type of reporting of wrongdoing that is actionable under the Act, it still should dismiss Count III, because [Appellant] never reported the alleged misconduct at issue to the appropriate board. An employee only receives the protections of section 1-502 if: (1) The employee has a reasonable, good faith belief that the employer has, or still is, engaged in an activity, policy, or practice that is in violation of a law, rule, or regulation; ²²⁴ (2) The employer’s activity, policy, or practice that is the subject of the employee’s disclosure poses a substantial and specific danger to the public health or safety; and (3) Before reporting to the board: (i) The employee has reported the activity, policy, or practice to a supervisor or administrator of the employer in writing and afforded the employer a reasonable opportunity to correct the activity, policy, or practice; or (ii) if the employer has a corporate compliance plan specifying who to notify of an alleged violation of a rule, law, or regulation, the employee has followed the plan.

Id. § 1-503 (emphasis added). Hence, a prerequisite to coverage under the Act is the actual reporting of wrongdoing to the appropriate board, which is defined in the Act as “any board established under [the Health Occupations] article.” Id. § 1-501. As written, the statute clearly sets forth what a claimant employee must do prior to reporting the wrongdoing at issue to the appropriate governing board if the employee is to receive the protections of section 1-502. Id. § 1-503(3).

This provision necessarily implies that reporting to the board is a mandatory prerequisite to coverage under the Act. If such external reporting were not necessary, then this particular clause would be stripped of all meaning and be rendered surplusage. “[W]henever possible, a statute should be read so that no word, clause, sentence or phrase is rendered superfluous or nugatory.” Chesapeake and Potomac Telephone [Company of Maryland, et al. v. Director of Finance for the Mayor and City Council of Baltimore], 343 Md. [567] at 579, 683 A.2d [512] at 517 [(1996)]. Since [Appellant] failed to report the activity at issue to a Board, she is not entitled to the protection of the Act and Count III should be dismissed. This analysis is entirely consistent with section 1-502 of the Act.

As stated above, section 1-502 prevents an employer from taking or refusing “to take any personnel action as reprisal against an employee” because the employee “discloses or threatens to disclose to a supervisor or board.” ²²⁵ Md.Code Ann., Health Occ. § 1-502. Section 1-502 clearly contemplates protection for employees who complain about misconduct, but are terminated prior to reporting the wrongdoing to the appropriate board. Section 1-502, however, cannot be read in isolation from the provisions of section 1-503, which acknowledge that an employee ultimately will have reported the wrongdoing to the appropriate board before receiving the protections of section 1-502. Id.

Hence, an employer cannot evade the Act’s mandate by terminating a complaining employee who has not yet been able to notify the appropriate board. Nevertheless, where “a substantial and specific danger to the public health or safety” is at stake, the legislature intended to require an employee to report the situation to the appropriate board prior to running to court to file suit. Id. § 1-503(2). The fact is that the errors [Appellant] alleges she reported were simply not serious or systemic enough in nature for [Appellant] to bother to report to the nursing board.

She should not now be heard to complain of them as having posed a serious threat to public safety, nor should she be permitted to maintain a multi-million dollar lawsuit as a “whistleblower.” During a pre-trial motions hearing, the Circuit Court elected to treat Appellee’s motion to dismiss as a motion for summary judgment, and delivered an on-the-record ruling that included the following analysis: It’s clear ... that [Appellant] at no time threatened [to report] or reported the alleged abuses or infractions to any external board, whether it be a Board of Nursing or whether it be a hospice board, or any governing board that she was employed by, or that would have had supervisory authority over her, or over the hospice, or over the nurses. And clearly, everything she did was internally. And it’s crystal clear that almost all of the abuses that she alleges were done by other employees, other nurses. And she does make reference to the fact of talking to a supervisor, and indicating something about that this is the policy, or this is the way it’s done.

I do draw a distinction here ²²⁶ that that is not the employer, the supervisor, and that’s what I so find in this particular case. There is no allegation that there is a systemic or institutional conduct on the part of the hospice that violates any statute, the litany of abuses deal with things that are done by the employees, such as, narcotics being sent out to individuals who are not hospice patients; improper documents or ... treatment with narcotics provided to patients without physician’s order; and a list of other complaints. There’s no indication before she filed her suit, which is really the key point. Did she ever complain to a governing board?

She kept that internally, which I think is important, a very important distinction, especially when I look at [HO § ]l-502, because it indicates and assume before reporting to the Board, number 3. And that seems to be, to this Court, it’s something that’s not manufactured, it’s not something that I think should be there. It’s something that is there in black and white, and assumes that there is going to be a reporting to another board. * * * ... I find at common law that there’s no ... public policy exception here.

Under the [whistleblower’s] statute, I don’t find that [Appellant] has ... complied with the statute in that there was no threat of reporting to an outside board, nor did she [complain to] an outside board. I also find that there [were] no ... contractual rights bestowed upon [Appellant] by the manuals of the policies of the hospice. Although the Circuit Court entered summary judgment on all three causes of action asserted in the Complaint, Appellant has limited her appeal to the judgment entered against her on Count III. After Appellant noted a timely appeal to the Court of Special Appeals, but before the parties presented their arguments to a panel of that Court, this Court issued a writ of ²²⁷ certiorari on its own initiative. 403 Md. 612 , 943 A.2d 1244 (2008).

Discussion Because the case at bar is one in which the Circuit Court granted summary judgment, we must determine whether that ruling was “legally correct.” Murphy v. Merzbacher, 346 Md. 525, 530-31 , 697 A.2d 861, 864 (1997). To make that determination, we must interpret the Health Care Worker Whistle-blower Protection Act (the Act), a “remedial statute” that has been “on the books” since 2002. In Lockshin v. Semsker, 412 Md. 257 , 987 A.2d 18 (2010), this Court stated: The cardinal rule of statutory interpretation is to ascertain and effectuate the real and actual intent of the Legislature. A court’s primary goal in interpreting statutory language is to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by the statutory provision under scrutiny.

To ascertain the intent of the General Assembly, we begin with the normal, plain meaning of the language of the statute. If the language of the statute is unambiguous and clearly consistent with the statute’s apparent purpose, our inquiry as to legislative intent ends ordinarily and we apply the statute as written, without resort to other rules of construction. We neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute, and we do not construe a statute with “forced or subtle interpretations” that limit or extend its application. We, however, do not read statutory language in a vacuum, nor do we confine strictly our interpretation of a statute’s plain language to the isolated section alone.

Rather, the plain language must be viewed within the context of the statutory scheme to which it belongs, considering the purpose, aim, or policy of the Legislature in enacting the statute. We presume that the Legislature intends its enactments to operate together as a consistent and harmonious ²²⁸ body of law, and, thus, we seek to reconcile and harmonize the parts of a statute, to the extent possible consistent with the statute’s object and scope. Where the words of a statute are ambiguous.and subject to more than one reasonable interpretation, or where the words are clear and unambiguous when viewed in isolation, but become ambiguous when read as part of a larger statutory scheme, a court must resolve the ambiguity by searching for legislative intent in other indicia, including the history of the legislation or other relevant sources intrinsic and extrinsic to the legislative process. In resolving ambiguities, a court considers the structure of the statute, how it relates to other laws, its general purpose, and the relative rationality and legal effect of various competing constructions.

In every case, the statute must be given a reasonable interpretation, not one that is absurd, illogical, or incompatible with common sense. Id. at 274-76 , 987 A.2d at 28-29 (internal citations omitted). This Court has also stated that remedial statutes are to be construed liberally in favor of claimants “to suppress the evil and advance the remedy.” Haas v. Lockheed Martin Corp., 396 Md. 469, 495 , 914 A.2d 735, 750-51 (2007); Montgomery County Bd. of Educ. v. Horace Mann Ins. Co., 383 Md. 527, 544 , 860 A.2d 909, 919 (2004); Marsheck v. Bd. of Trs. of the Fire & Police Employees’ Retirement Sys. of the City of Baltimore, 358 Md. 393, 403 , 749 A.2d 774, 779 (2000); Coburn v. Coburn, 342 Md. 244, 256 , 674 A.2d 951, 957 (1996); Harrison v. John F. Pilli & Sons, Inc., 321 Md. 336, 341 , 582 A.2d 1231, 1234 (1990).

In Sears Roebuck and Co., et al. v. Wholey, 139 Md.App. 642 , 779 A.2d 408 (2001), aff'd, Wholey v. Sears Roebuck, et al., 370 Md. 38 , 803 A.2d 482 (2002), while reversing a “wrongful discharge” judgment entered on a jury verdict in favor of a former employee, the Court of Special Appeals stated: In those Maryland cases recognizing a mandate of public policy well-established enough to form the predicate for an ²²⁹ action for wrongful discharge, there was a preexisting, unambiguous, and particularized announcement, by constitution, enactment, or prior judicial decision, directing, prohibiting or protecting the conduct (or contemplated conduct) in question, so as to make the Maryland public policy on the topic not a matter of judicial conjecture or even interpretation. 139 Md.App. at 660-61 , 779 A.2d at 419 . The Health Care Worker Whistleblower Protection Act, Md.Code Ann., Health Occ. § § 1-501 to 1-506 (2002), is an unambiguous and particularized pronouncement of Maryland public policy. The Act, in pertinent part, provides: § 1-501. Definitions (a) In general.—In this subtitle the following words have the meanings indicated.

(b) Board.—“Board” means any board established under this article. (c) Employee.— (1) “Employee” means any individual licensed or certified by a board under this article who performs services for and under the control and direction of an employer for wages or other remuneration. (2) “Employee” does not include a State employee. (d) Supervisor.—“Supervisor” means any individual within an employer’s organization who has the authority to direct and control the work performance of an employee, or who has managerial authority to take corrective action regarding the violation of a law, rule, or regulation of which the employee complains. § 1-502.

Prohibited acts Subject to § 1-503 of this subtitle, an employer may not take or refuse to take any personnel action as reprisal against an employee because the employee: (1) Discloses or threatens to disclose to a supervisor or board an activity, policy, or practice of the employer that is in violation of a law, rule, or regulation; ²³⁰ (2) Provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of a law, rule, or regulation by the employer; or (3) Objects to or refuses to participate in any activity, policy, or practice in violation of a law, rule, or regulation. § 1-503. Requirements for protection The protection provided against a violation of § 1-502 of this subtitle shall only apply if: (1) The employee has a reasonable, good faith belief that the employer has, or still is, engaged in an activity, policy, or practice that is in violation of a law, rule, or regulation; (2) The employer’s activity, policy, or practice that is the subject of the employee’s disclosure poses a substantial and specific danger to the public health or safety; and (3) Before reporting to the board: (i) The employee has reported the activity, policy, or practice to a supervisor or administrator of the employer in writing and afforded the employer a reasonable opportunity to correct the activity, policy, or practice; or (ii) If the employer has a corporate compliance plan specifying who to notify of an alleged violation of a rule, law, or regulation, the employee has followed the plan. § 1-504. Civil action and venue; limitation of action (a) Civil action; venue.—Any employee who is subject to a personnel action in violation of § 1-502 of this subtitle may institute a civil action in the county where: (1) The alleged violation occurred; (2) The employee resides; or (3) The employer maintains its principal offices in the State. (b) Limitation of action.—The action shall be brought within 1 year after the alleged violation of § 1-502 of this subtitle occurred, or within 1 year after the employee first ²³¹ became aware of the alleged violation of § 1-502 of this subtitle. § 1-506.

Defenses In any action brought under this subtitle, it is a defense that the personnel action was based on grounds other than the employee’s exercise of any rights protected under this subtitle. (Emphasis supplied). I. We are persuaded that § 1-503(3) protects employers against frivolous Whistleblower actions asserted by disgruntled former employees who had (1) never “afforded the employer a reasonable opportunity to correct” the alleged “substantial and specific danger to the public health or safety,” and/or (2) never followed the employer’s “corporate compliance plan specifying who to notify of an alleged violation of a rule, law, or regulation.” The protection provided by the Act does not extend to former employees who made no internal reports at any point in time before their employment was terminated. We are also persuaded, however, that § 1-503(3) was not enacted to protect an employer against a legitimate Whistleblower action asserted by a former employee who was fired before he or she made an external report, provided that the former employee actually “reported the activity, policy, or practice [that poses a substantial and specific danger to the public health or safety] to a supervisor or administrator of the employer in writing[.]” As noted above, Appellee has conceded that the Act “clearly contemplates protection for employees who complain about misconduct, but are terminated prior to reporting the wrongdoing to the