Eaves-Voyles v. Almost Family, Inc.

Filing 28

MEMORANDUM re. mtn to dismiss for failure to state a claim 17 (Order to follow as separate docket entry). Signed by Honorable Sylvia H. Rambo on 7/27/16. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TRACEY EAVES-VOYLES,
Plaintiff,
v.
ALMOST FAMILY, INC. d/b/a OMNI
HOME CARE,
Defendant.

:
:
:
:
:
:
:
:
:
:

Civ. No. 1:15-CV-2421

Judge Sylvia H. Rambo

MEMORANDUM
In this retaliation and wrongful termination action, Plaintiff alleges that
her former employer unlawfully terminated her employment for her refusal to
violate Pennsylvania nursing regulations and for reporting those violations to her
employer’s corporate representatives. Presently before the court is Defendant’s
motion to dismiss the complaint (Doc. 17), which challenges whether Plaintiff
sufficiently pleaded any cause of action. For the reasons that follow, Defendant’s
motion will be granted in part and denied in part.
I.

Background
A.

Facts1

Plaintiff Tracey Eaves-Volves (“Plaintiff”) was employed by OMNI
Home Care (“OMNI”) in Harrisburg, Pennsylvania as a Registered Nurse Clinical
1

For purposes of disposition of the instant motion to dismiss, the court has carefully reviewed
the complaint and exhibits attached thereto, and will, as required when deciding a motion to
dismiss, accept as true all well-pleaded factual allegations and view them in the light most
favorable to Plaintiff. See infra Part II.

Manager. (Doc. 15, ¶¶ 1, 3, 8.) OMNI is owned and operated by Almost Family,
Inc., a Kentucky corporation that provides home health nursing, rehabilitation, and
personal care services. (Id. at ¶¶ 2-3.) On July 2, 2015, Plaintiff emailed her
supervisor and a regional director to express concerns regarding “OMNI’s noncompliance with Pennsylvania’s healthcare regulations and her unwillingness to
violate the law.” (Id. at ¶ 9.) Plaintiff believed that OMNI was accepting patients
despite being unable to meet their medical needs, in violation of 28 Pa. Code
§ 601.31, and that accepting those patients without OMNI’s staff obtaining the
proper training and certification fell below the competency requirements for home
care agencies and/or home care registries, in violation of 28 Pa. Code § 611.55. (Id.
at ¶¶ 10-11.) Plaintiff also expressed concern that OMNI had asked her to schedule
registered nurses without the proper medical training to perform peripherally
inserted central catheter procedures, and that doing so would have violated
Pennsylvania law, specifically 49 Pa. Code § 21.12. (Id. at ¶¶ 13-15.) Similarly,
OMNI had also asked her to staff mental health nurses to non-mental health
patients, despite the nurses lacking the proper medical training and certification to
fulfill the needs of those patients. (Id. at ¶ 16.) Plaintiff was further concerned that,
had she complied with OMNI’s instructions, she would have personally violated
Pennsylvania’s Standards of Nursing Conduct. (Id. at ¶ 19 (citing 49 Pa. Code

2

§ 21.18).) Upon sending her email, Plaintiff intended that “her concerns would be
reported in accordance with state and federal reporting requirements.” (Id. at ¶ 12.)
After failing to promptly receive a response to her email, Plaintiff
telephoned Almost Family’s corporate compliance office to convey her concerns,
and the director of corporate compliance informed her that her concerns were
justified and that her supervisor would be tasked with ensuring OMNI’s future
compliance with Pennsylvania law. (Id. at ¶¶ 18-19.) The following day, Plaintiff’s
supervisor indefinitely suspended Plaintiff from her employment, (id. at ¶ 20), and
on July 15, 2015, Plaintiff was terminated and offered a separation agreement with
severance pay, which Plaintiff rejected (id. at ¶ 21).
B.

Procedural History

Plaintiff initiated this action by filing a complaint on December 16, 2015
(Doc. 1), followed by an amended complaint on March 4, 2016 (Doc. 15). In her
amended complaint, Plaintiff asserts that Almost Family d/b/a OMNI
(“Defendant”) violated both the Patient Safety and Quality Improvement Act
(“PSQIA”), 42 U.S.C. § 299b-22(e), and the Pennsylvania Whistleblower Law, 43
P.S. § 1423, by terminating her in retaliation for making a good faith report of
serious wrongdoing to Defendant’s representatives. (Doc. 15, Counts I & III.)
Plaintiff also asserts that Defendant violated Pennsylvania public policy by

3

wrongfully discharging her in retaliation for her refusal to engage in conduct
prohibited by law. (Id. at Count II.)
In response to the amended complaint, Defendant filed the instant
motion to dismiss for failure to state a claim on March 18, 2016 (Doc. 17),
followed by a brief in support on April 1, 2016 (Doc. 20). On April 18, 2016,
Plaintiff filed her brief in opposition (Doc. 21), and Defendant replied on May 2,
2016 (Doc. 22). Thus, the motion has been fully briefed and is ripe for disposition.
II.

Legal Standard
Defendant moves to dismiss Plaintiff’s complaint pursuant to Federal

Rule of Civil Procedure 12(b)(6). For purposes of a motion to dismiss, Rule
12(b)(6) works in conjunction with Federal Rule of Civil Procedure 8, which
requires that a complaint set forth “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). For a
complaint to survive dismissal, it “must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). The plaintiff’s short and plain statement of the claim must “give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.”
Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In
evaluating the sufficiency of a complaint, a court must accept all well-pleaded
4

factual allegations as true and draw all reasonable inferences in favor of the nonmoving party. See Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008).
“Factual allegations must be enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555. Further, “[a] pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not
do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (internal citations omitted)
(citing Twombly, 550 U.S. at 555, 557). However, this “‘does not impose a
probability requirement at the pleading stage,’ but instead ‘simply calls for enough
facts to raise a reasonable expectation that discovery will reveal evidence of’ the
necessary element.” W. Penn Allegheny Health Sys. Inc. v. UPMC, 627 F.3d 85, 98
(3d Cir. 2010) (quoting Phillips, 515 F.3d at 234). When conducting this inquiry,
the court considers “only the allegations in the complaint, exhibits attached to the
complaint[,] and matters of public record.” Schmidt v. Skolas, 770 F.3d 241, 249
(3d Cir. 2014) (quoting Pension Benefit Guar. Corp. v. White Consol. Indus., Inc,
998 F.2d 1192, 1196 (3d Cir. 1993)).
III.

Discussion
Plaintiff’s amended complaint asserts claims under the PSQIA, the

Pennsylvania Whistleblower Law, and Pennsylvania’s public policy exception to
at-will employment. In the instant motion to dismiss the complaint, Defendant
5

argues that Plaintiff has failed to state a claim as to each count. The court will
address each of Defendant’s arguments in turn.
A.

Pennsylvania Whistleblower Law

Count I of Plaintiff’s amended complaint asserts a claim against
Defendant pursuant to the Pennsylvania Whistleblower Law in which she alleges
that she was wrongfully discharged from her employment in retaliation for her July
2, 2015 email and telephone reports of wrongdoing. In moving to dismiss this
claim, Defendant argues, in pertinent part, that it does not qualify as a “public
body” under the Whistleblower Law and therefore it cannot be subject to liability
under the act. (Doc. 20, pp. 16-19.) Plaintiff argues in response that Defendant’s
receipt of Medicare and Medicaid funding qualifies it as a “public body” under the
act. (Doc. 21, pp. 6-8.)
The Pennsylvania Whistleblower Law provides that “no employer may
discharge, threaten, or otherwise discriminate or retaliate against an employee . . .
[who] makes a good faith report . . . to the employer or appropriate authority [of]
an instance of wrongdoing or waste by a public body or an instance of waste by
any other employer as defined in this act.” 2 43 P.S. § 1423(a) (emphasis supplied).
Because Plaintiff’s amended complaint alleges that Defendant committed an

2

The parties cited to an older version of the statute that was in effect prior to the 2014
amendments to the Pennsylvania Whistleblower Law. The court, however, will apply the current
version of the statute.
6

instance of “wrongdoing,” rather than an instance of waste (Doc. 15 at ¶¶ 28-30),
Defendant must qualify as a “public body” in order for Plaintiff’s Pennsylvania
Whistleblower claim to survive. A “public body” includes government officers,
political authorities, and any other body which is created or “which is funded in
any amount by or through Commonwealth or political subdivision authority.” 43
P.S. § 1422. Whether Defendant can be considered a “public body” hinges on
whether the phrase “funded in any amount by or through Commonwealth or
political subdivision authority” includes Defendant’s receipt of Medicare and
Medicaid funding.
The Supreme Court of Pennsylvania has not interpreted the phrase
“funded in any amount by or through Commonwealth or political subdivision
authority” and, as a result, this court “must predict how the [Pennsylvania]
Supreme Court would decide the issue currently before it.” Lampenfeld v. Pyramid
Healthcare, Inc., Civ. No. 14-cv-0283, 2015 WL 926154, *7 (M.D. Pa. Mar. 4,
2015) (citing City of Phila. v. Lead Indus. Ass’n, Inc., 994 F.2d 112, 123 (3d Cir.
1993)). A court “must consider relevant state precedents, analogous decisions,
considered dicta, scholarly works, and any other reliable data tending convincingly
to show how the highest court in the state would decide the issue at hand.”
Covington v. Cont’l General Tire, Inc., 381 F.3d 216, 218 (3d Cir. 2004) (quoting
Packard v. Provident Nat’l Bank, 994 F.2d 1039, 1046 (3d Cir. 1993)).
7

Intermediate state court decisions are “particularly relevant and [should not be]
‘disregarded by a federal court unless it is convinced by other persuasive data that
the highest court of the state would decide otherwise.’” Id. (quoting C.I.R. v.
Bosch’s Estate, 387 U.S. 456, 465 (1967)).
In support of its argument that Medicare and Medicaid funding does not
qualify an employer as a “public body” under the Pennsylvania Whistleblower
Law, Defendant cites to Cohen v. Salick Health Care, Inc., 772 F. Supp. 1521
(E.D. Pa. 1991). In Cohen, the Eastern District of Pennsylvania predicted that the
Pennsylvania Supreme Court would hold that the receipt of Medicaid payments
without more is insufficient to qualify a private entity as a “public body” for
purposes of the Pennsylvania Whistleblower Law. 772 F. Supp. at 1527. After
considering the nature of Medicaid, the court observed that “the purpose
underlying the . . . program is to extend financial benefits to the patients eligible to
receive their medical care at government expense.” Id. at 1526 (quoting Geriatrics,
Inc. v. Harris, 640 F.2d 262, 265 (10th Cir. 1981)). The court found that “the
legislature did not intend that the mere receipt of monies from a state source[, such
as Medicaid,] for services rendered should bring the recipient within the
Whistleblower Law.” 772 F. Supp. at 1527. The court reasoned that allowing such
an expansive interpretation “would extend the reach of the Whistleblower Law to
every hospital, nursing home, institution for the mentally retarded, institution for
8

the mentally ill, home health care provider, physician, chiropractor, podiatrist,
ambulance company, dentist, and optometrist that treats patients whose medical
expenses are reimbursed by Medicaid.” Id. at 1526. Instead, the court concluded
that the legislature intended the phrase “funded in any amount by or through
Commonwealth or political subdivision authority” to be “limited to monies which
were appropriated by the legislature for the purpose of aiding ‘public bodies’ in
pursuit of their ‘public goals.’” Id. at 1527.
In arguing that the receipt of such funding qualifies a private entity as a
“public body,” Plaintiff cites to Denton v. Silver Stream Nursing & Rehabilitation
Center, in which the Superior Court of Pennsylvania expressly rejected the Cohen
analysis. 739 A.2d 571, 576-77 (Pa. Super. Ct. 1999). The Denton court relied, in
part, on the Superior Court’s decision in Riggio v. Burns, 711 A.2d 497, 499 (Pa.
Super. Ct. 1998), which held that a private medical provider qualified as a “public
body” because it received funds that were annually appropriated by the state
legislature. Denton, 739 A.2d at 576 (citing Riggio, 711 A.2d at 499). The Riggio
court reasoned as follows:
An attempt to divine the intent of the legislature by reference
to the common understanding of public body is not only
unnecessary, it also begs the question. Notwithstanding the
everyday meaning of ‘public body,’ this term was expressly
defined by our legislature for purposes of the Whistleblower
Law. . . . The statute plainly and unequivocally makes any body
‘funded in any amount by or though Commonwealth . . .
authority’ a public body for purposes of the Whistleblower
9

Law. Where the language of a statute is unambiguous on its
face, we are bound to give effect to that language.
Id. at 500. (citations omitted). The Riggio court noted, however, that
Cohen had addressed an altogether different funding question and acknowledged
that “the issue of whether Medicaid reimbursements constitute funding is not
before us.” Riggio, 711 A.2d at 499. Nonetheless, the Denton court expanded upon
Riggio and found that the “statutory language differentiates between appropriated
and ‘pass-through’ funds and extends the law to cover both types.” Denton, 739
A.2d at 576. The court thus reasoned that the plain meaning of the Pennsylvania
Whistleblower Law “clearly indicates that [the term “public body”] is intended to
be applied to bodies that receive not only money appropriated by the
Commonwealth, but also public money that passes through the Commonwealth.”
Id. As a result, the court found that a nursing facility that received Medicaid
reimbursements

qualified

as

a

“public

body”

under

the

Pennsylvania

Whistleblower Law. Id. at 576-77.
This court is persuaded by the reasoning and holding in Cohen and finds
that the Supreme Court of Pennsylvania would hold that the receipt of Medicaid
and Medicare reimbursements, without more, is insufficient to transform a private
employer into a “public body” subject to the Pennsylvania Whistleblower Law.3

3

To the extent that Plaintiff also alleges that Defendant qualifies as a public body due to its
receipt of Medicare, rather than Medicaid, reimbursements, the court finds that the same
10

The phrase “funded in any amount by or through Commonwealth or political
subdivision authority” most naturally refers to specific appropriations. A contrary
result would unreasonably expand the scope of the Pennsylvania Whistleblower
Law beyond the legislature’s intent by virtue of government assistance programs
meant to benefit individuals as opposed to private business entities.
Plaintiff argues in the alternative that, insofar as the court finds that
Defendant does not qualify as a public body under the Whistleblower Law,
Plaintiff is nonetheless entitled to the law’s protections because the Pennsylvania
Medical Care Availability and Reduction of Error Act (“MCARE Act”), 40 P.S.
§ 1303.308, extends those protections to health care workers such as Plaintiff in
situations where the act may otherwise not apply. (Doc. 21, pp. 7-8.) The court
disagrees.
The MCARE Act provides that “a health care worker who reports the
occurrence of a serious event or incident . . . shall have the protections and
remedies set forth in the . . . Whistleblower Law.” 40 P.S. § 1303.308(c). A health
care worker is defined as “an employee . . . authorized to provide services in a

reasoning applies. Medicare is a healthcare program that reimburses healthcare providers “‘for
the reasonable cost’ of providing services to Medicare beneficiaries.” Albert Einstein Med. Ctr.
v. Sebelius, 566 F.3d 368, 373 (3d Cir. 2009) (quoting 42 U.S.C. § 1395f(b)(1)). Because
Medicare, like Medicaid, is intended to directly benefit qualified individuals as opposed to
private providers, the court finds that the Medicaid analysis provided by the court in Cohen is
also applicable to Medicare reimbursements.
11

medical facility,” and a medical facility, in turn, is defined as “an ambulatory
surgical facility, birth center, hospital or abortion facility.” Id. § 1303.302.
In addressing whether the MCARE Act extends the Pennsylvania
Whistleblower Law’s protections to Plaintiff, the threshold issue is whether
Plaintiff provided services for Defendant in a “medical facility.” In her first
amended complaint, Plaintiff alleges that Defendant is “a provider of home health
nursing, rehabilitation and personal care services.” (Doc. 15, ¶ 2.) Plaintiff has not
alleged facts suggesting that Defendant operates as “an ambulatory surgical
facility, birth center, hospital or abortion facility.” 40 P.S. § 1303.302.
Accordingly, the court finds that Plaintiff did not provide services in a medical
facility while employed by Defendant and, therefore, she cannot avail herself of
the MCARE Act to receive the protections of the Pennsylvania Whistleblower
Law.
For the reasons provided above, Plaintiff has failed to state a claim under
the Pennsylvania Whistleblower Law, and Count I will be dismissed without
prejudice.
B.

Public Policy Exception4

In Count II of her amended complaint, Plaintiff claims that she was
unlawfully discharged from her employment for her refusal to violate Pennsylvania
4

Because the court will dismiss Count I of Plaintiff’s First Amended Complaint, Defendant’s
argument that Count I preempts Plaintiff’s claim under the public policy exception is now moot.
12

law and that such a discharge offends clear mandates of the public policy of
Pennsylvania. In moving to dismiss this claim, Defendant argues that Plaintiff’s
termination does not violate public policy because the nursing regulations Plaintiff
relies upon do not contain provisions that, if violated, would rise to the level of a
public policy exception necessary to remove Plaintiff from her at-will employment
status. (Doc. 20, pp. 19-24.)
Pennsylvania adheres to the at-will employment doctrine, which allows
employers to terminate employees “with or without cause, at pleasure, unless
restrained by some contract.” Smith v. Calgon Carbon Corp., 917 F.2d 1338, 1341
(3d Cir. 1990) (citations omitted). However, an employee may bring a cause of
action for termination of an at-will employment relationship “where the
termination implicates a clear mandate of public policy.” Weaver v. Harpster, 975
A.2d 555, 563 (Pa. 2009). The public policy must be expressly recognized in
legislation, administrative regulations or decisions, or judicial decisions. Murray v.
Gencorp, Inc. 979 F. Supp. 1045, 1047-48 (E.D. Pa. 1997) (quoting Yetter v. Ward
Trucking Corp., 585 A.2d 1022, 1026 (Pa. Super. Ct. 1991)). The exception is
limited “to situations in which an employer: (1) requires an employee to commit a
crime; (2) prevents an employee from complying with a statutorily imposed duty;
[or] (3) discharges an employee when specifically prohibited from doing so by

13

statute.” Brennan v. Cephalon, Inc., 298 F. App’x 147, 150 (3d Cir. 2008) (citing
Hennessy v. Santiago, 708 A.2d 1269, 1273 (Pa. Super. Ct. 1998)).
Although courts will determine whether an employee’s discharge violates
public policy on a case-by-case basis, the Third Circuit has provided some general
guidance in this regard. Herskowitz v. Cty. of Lebanon, Civ. No. 13-cv-0431, 2013
WL 5719250, *8 (M.D. Pa. Oct. 21, 2013) (citation omitted). Significantly, it has
been held that “[a]n employee’s discharge [ ] offend[s] clear mandates of public
policy if the discharge result[ed] from conduct of the employee that is required by
law, or from the employee’s refusal to engage in conduct prohibited by law.” Id.
(citing Clark v. Modern Group Ltd., 9 F.3d 321, 327 (3d Cir. 1993); Smith v.
Calgon Carbon Corp., 917 F.2d 1338, 1344 (3d Cir. 1990); Woodson v. AMF
Leisureland Ctrs., Inc., 842 F.2d 699, 701-02 (3d Cir. 1998)).
Here, Plaintiff alleges that Defendant terminated her after she refused
Defendant’s requests to schedule untrained registered nurses “to perform []
peripherally inserted central catheter [] procedures,” in violation of 49 Pa. Code
§ 21.12, which prohibits registered nurses from performing venipuncture without
“instruction and supervised practice.” (Doc. 15, ¶¶ 13-15 (citing 49 Pa. Code
§ 21.12).) Plaintiff further alleges that Defendant’s requests would have caused her
to violate 49 Pa. Code § 21.18, which requires registered nurses to safeguard
patients from incompetent nursing practices and prohibits them from knowingly
14

aiding, abetting, or assisting another person in violation of the nursing regulations.
(Id. at ¶ 17.) In contrast to the cases cited by Defendant, see Lampenfeld v.
Pyramid Health Care, Inc., Civ. No. 14-cv-0283, 2015 WL 926154, *12 (M.D. Pa.
Mar. 4, 2015); Consolmagno v. Home Depot, Civ. No. 06-cv-1097, 2006 WL
3524455, *1 (W.D. Pa. Dec 6, 2006); Mikhail v. Pennsylvania Organization for
Women in Early Recovery, 63 A.3d 313, 320-21 (Pa. Super. Ct. 2013); Spierling v.
First Am. Home Health Servs Inc., 737 A.2d 1250, 1254 (Pa. Super. Ct. 1999),
where the plaintiffs attempted to extrapolate specific duties from statutes that
provided only general guidelines, the prohibition on untrained nurses practicing
venipuncture is highly specific. Rather than requiring registered nurses to exercise
their judgment, the regulation expressly prohibits them from practicing the
procedure if they lack “instruction and supervised practice.” 49 Pa. Code
§ 21.12(2). As such, had Plaintiff scheduled untrained nurses to perform
venipunctures, she would have knowingly aided another person in violation of the
nursing regulations, thereby violating 49 Pa. Code § 21.18. Because Plaintiff
alleges that she was terminated from her employment in relation for her “refusal to
engage in conduct prohibited by law,” Herskowitz, 2013 WL 5719250 at *8, the
court finds that Plaintiff has met her burden in showing that her termination
implicated a clear mandate of Pennsylvania public policy.

15

Accordingly, the court finds that Plaintiff has alleged sufficient facts at
this stage of the litigation to support a wrongful discharge claim under the public
policy exception, and Count II will not be dismissed.
C.

Patient Safety and Quality Improvement Act

Defendant contends that Plaintiff’s PSQIA claim should be dismissed
because the PSQIA does not extend general whistleblower protections to medical
or nursing staff and because Plaintiff failed to allege that she reported to, or
intended her reports to Defendant to be forwarded to, a patient safety organization.
(Doc. 20, pp. 25-28; Doc. 22, pp. 12-13.) Plaintiff argues in response that the
PSQIA’s plain meaning and legislative history indicate that Congress intended to
create whistleblower protections for medical and nursing staff and that her claim
satisfies the PSQIA’s requirements. (Doc. 21, pp. 13-16.)
In determining whether the PSQIA provides whistleblower protections to
medical and nursing staff, who report patient safety practices to patient safety
organizations or to a provider with the intention that the information will reach a
patient safety organization, the court must “begin[] with an examination of the
plain language of the statute.” Rosenberg v. XM Ventures, 274 F.3d 137, 141 (3d
Cir. 2001) (citations omitted). In addition, the court may consider the “’overall
object and policy’ of the statute.” Disabled in Action of Pa. v. Se. Pa. Transp.
Auth., 539 F.3d 199, 210 (3d Cir. 2008) (quoting United States v. Schneider, 14
16

F.3d 876, 879 (3d Cir. 1994)). However, “[l]egislative history may be referenced
only if the statutory language . . . is ambiguous.” S.H. ex rel. Durrell v. Lower
Merion Sch. Dist., 729 F.3d 248, 259 (3d Cir. 2013).
The PSQIA protects individuals from adverse employment actions, such
as a loss of employment, if “the individual in good faith reported information – (A)
to the provider with the intention of having the information reported to a patient
safety organization; or (B) directly to a patient safety organization.” 42 U.S.C.
§ 299b-22(e)(1)-(2). A patient safety organization is a federally certified private or
public entity tasked with the mission “to conduct activities that are to improve
patient safety and the quality of health care delivery.” Id. §§ 299b-21(4), 299b24(a), 299b-24(b)(1)(A). The act provides that an individual who suffers an
adverse employment action as a result of his or her good faith report may bring a
civil action “to enjoin any act or practice that violates subsection (e) . . . and to
obtain other appropriate equitable relief (including reinstatement, back pay, and
restoration of benefits) to redress such violation.” Id. § 299b-22(f)(4)(A).
Defendant argues that Plaintiff’s PSQIA claim should be dismissed
because “there is nothing in the text of legislative history of the [PSQIA] to
suggest that it was intended to extend general whistleblower protections to medical
or nursing staff.” (Doc. 20, p. 26 of 30.) However, the legislative history indicates
that the act was established to “foster voluntary reporting” by encouraging
17

“‘providers’ (e.g., physicians, nurses, hospitals, nursing homes, and other health
care providers) to report information on errors, incidents of ‘near misses’ and
enhanced health care quality practices.” S. Rep. No. 108-196, at 3. To ensure a
“nonpunitive environment, the bill contains ‘whistle blower’ protections for those
reporting patient safety data” by “directly prohibit[ing] retaliation against an
individual for making a report in good faith.” Id. at 12.
Defendant also argues that the claim should be dismissed because
Plaintiff failed to allege that she intended for her reports to be forwarded to a
patient safety organization. While the amended complaint would have ideally
included such an allegation, the complaint does allege that Plaintiff intended for
concerns to “be reported in accordance with state and federal reporting
requirements.” (Doc. 15, ¶ 12.) Although the PSQIA establishes a voluntary rather
than a mandatory reporting system, in light of the parties’ burdens at the motion to
dismiss stage, and granting Plaintiff all reasonable inferences, the court concludes
that dismissal of Plaintiff’s PSQIA claim would be premature. Plaintiff’s
complaint, taken as a whole, raises a plausible inference that Plaintiff intended to
have Defendant forward her reports to a patient safety organization. Therefore, the
court finds that Plaintiff pleaded sufficient facts to support a claim for relief under
the PSQIA, and Count III will not be dismissed.

18

IV.

Conclusion
Based on the foregoing discussion, the court finds that Plaintiff has

failed to allege sufficient facts to support her claims under the Pennsylvania
Whistleblower Law. Accordingly, the court will dismiss Count I of the amended
complaint without prejudice and will grant Plaintiff leave to amend her complaint
to provide her with an opportunity to submit an adequate pleading. The court finds
that Plaintiff has alleged sufficient facts, however, to support her claims under the
Patient Safety and Quality Improvement Act and for wrongful discharge under the
public policy exception to the at-will employment doctrine. Therefore, Counts II
and III will not be dismissed.
An appropriate order will issue.

s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: July 27, 2016

19