Hartsuch, David v. The Howard Young Medical Center, Inc. et al
Filing
69
ORDER granting 38 Motion for Summary Judgment; denying as moot 26 Motion for Judgment on the Pleadings on Plaintiff's Claim for Wrongful Discharge, 34 Motion for Leave to File Third Amended Complaint, 65 Motion to Strike Dr. Heong P'ng's Proposed Errata Changes, 68 Motion for Extension of Time. Signed by District Judge James D. Peterson on 8/26/2021. (rks)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DAVID HARTSUCH,
Plaintiff,
v.
OPINION and ORDER
ASCENSION MEDICAL GROUP–NORTHERN
WISCONSIN, INC. and JENNIE LARSON,
20-cv-325-jdp
Defendants.
Plaintiff David Hartsuch is a physician who worked at Howard Young Medical Center,
a hospital operated by defendant Ascension Medical Group–Northern Wisconsin, Inc.
Hartsuch has sued Ascension and one of its employees for wrongful discharge and for tortious
interference with his employment contract with Delta Locum Tenens, the staffing agency that
placed him at the hospital. Hartsuch says that Ascension fired him for criticizing its procedures
related to COVID-19.
Defendants move for summary judgment on all of Hartsuch’s pending claims. Dkt. 38.
(Hartsuch has withdrawn a defamation claim. See Dkt. 59, at 15.) Hartsuch relies on the public
policy exception to Wisconsin’s employment-at-will doctrine, under which a termination may
be unlawful if it violates a well-defined public policy clearly established in existing law.
Hartsuch’s concerns over the hospital’s COVID-19 protocols might have been valid ones, but
his termination was prompted most directly by his repeated threats that he would not show up
for his shifts. And, for reasons explained more fully in this opinion, his termination did not
violate any clearly established public policy. The court will grant defendants’ motion for
summary judgment and close the case.
BACKGROUND
The following facts are undisputed.
Hartsuch is a physician based in Iowa who has more than 20 years of experience in
emergency medicine. Defendant Ascension Medical Group–Northern Wisconsin is an affiliate
of Ascension Healthcare, which operates hundreds of healthcare facilities across more than 20
states. Ascension Medical Group contracts with physicians and other healthcare staff to provide
clinical services at facilities in northern Wisconsin that are part of the Ascension Healthcare
family. One of the facilities served by Ascension is Howard Young Medical Center, a hospital
in Woodruff, Wisconsin.
Ascension had a contract with a staffing agency called Delta Locum Tenens under which
Delta would “offer[] pre-vetted healthcare providers . . . to provide services . . . on temporary
assignments.” Dkt. 62, ¶ 34. During the time relevant to this case, Hartsuch had a contract
with Delta under which it would provide Hartsuch with locums tenens–meaning temporary–
assignments.
In fall 2019, Ascension reached out to Delta to find a suitable locum tenens physician
to fill a vacancy in the emergency department at Howard Young. Delta offered Hartsuch, and
Heong P’ng, the medical director for emergency services, approved Hartsuch for the
assignment.
On March 18, 2020, Ascension’s epidemiologists and infection control specialists issued
guidance relating to COVID-19 that was based on the CDC published recommendations and
guidelines in effect at that time. Defendant Jennie Larson, who was the hospital’s supervisor of
physician-based services, emailed the guidance to the hospital’s locum tenens physicians.
2
On March 20, Hartsuch spoke to P’ng about some concerns related to protecting against
COVID-19. Hartsuch’s suggestions included the use of negative pressure rooms for intubating
potential COVID-19 patients and using portable HEPA air filters. Hartsuch also raised
concerns about Ascension’s masking and discharge policies. Hartsuch told P’ng that he wasn’t
sure he could “continue to work in a place that wasn’t making progress” toward the
improvements he had identified. Dkt. 62, ¶ 85.
On March 23, Hartsuch sent the following email to Larson:
I have reviewed your policies and regard them as insufficient to
protect the health and safety of health care workers and the
patients they treat. For starters, your recommendation is that only
surgical masks be w[o]rn with known COVID-19 cases unless
aerosol generating procedures are being performed. The CDC also
recommends the use of respirators by personnel who are caring
for COVID-19 patients for prolonged periods of time.
Your policy was obviously adopted to safeguard the utilization of
N-95 masks rather than protect the health and safety of health
care workers and their patients[.]
Regarding the admission criteria for patients with COVID-19 is
made without regard for the ability of patients to self-isolate at
home. This is in direct opposition to the position of the CDC and
WHO which state that patients not requiring hospitalization
should only be discharged to home if they can indeed self-isolate.
What about a 10 year old child who lives with his elderly
grandparent with medical conditions. CDC and WHO guidelines
would suggest that this patient not be discharged into such a
situation.
Your discharge instructions state that only the patient and the
caregiver should remain in the house and that all others should
seek alternate housing. However, it is likely that those other
household members are already infected and having them seek
alternate housing will merely infect other households. Very
irresponsible and ultimately lead to increased cases which will tax
our medical system. Studies have shown that isolation at home
with a quarantine of the household is more effective at curbing
the spread of disease.
3
Current policy at Howard Young is to limit visitors to 2, even
those in respiratory isolation. At this time no visitors should be
allowed with patients in order to limit possible spread of the
disease, except that those are necessary for patient care.
Additionally, health care workers should social distance among
themselves to prevent infecting each other. The hospital should
provide scrubs that are laundered by the hospital and health care
workers should not wear home dirty scrubs.
On the whole, your policies are minimalist, insufficient, and give
little regard to the health and safety of patients and caregivers. I
would welcome the opportunity to discuss this with you and your
Chief Medical Officer.
Id., ¶ 95.
The next day, in the early morning hours, Hartsuch sent a follow-up email before
anyone had responded to him:
After review of the CDC guidelines for optimizing the supply of
N-95 respirators, I find that your current guidelines are NOT
consistent with CDC guidelines. The CDC does not recommend
the use of normal surgical masks to care for patients with COVID19 as a mechanism for conserving N-95 masks. Specifically, they
recommend that N-95 masks be w[o]rn when caring for patients
with COVID-19. Some conservation techniques that should be
used are:
1) limit the number of patients contacts with COVID-19 patients.
2) Cohort COVID-19 patients so that there is no[] need to reuse
masks[.]
3) Employ COVID-19 positive health care workers to care for
COVID-19 patients.
4) Use portable germicidal air purifiers to reduce exposure to
COVID-19 in the patient’s room and for procedures.
5) Mitigate potential exposure by restricting exposure of health
care workers who have risk factors for death from COVID-19.
Again I must re-iterate that your proscribed policies are not
consistent with CDC guidelines and place health care workers and
patients at risk. I have spoken to Dr. P[’]ng regarding the policies
in force at Howard Young and have told him that if Ascension
4
does not improve their safety protocols I cannot continue to work
at Howard Young in good conscience. He has assured me that the
Safety procedures are being improved. Your correspondence has
done little to allay my concerns.
I would ask that you adopt policies consistent with CDC
guidelines.
Id., ¶ 104.
Larson forwarded Hartsuch’s emails to P’ng, who reviewed them. P’ng didn’t think he
could meet all of Hartsuch’s demands for multiple reasons: the demands had been escalating
over the last four days; Hartsuch wanted Ascension to make changes to become CDC compliant
when it already was CDC compliant; and “there is a limit to how much a large hospital system
can or will do to address the concerns of a single locum tenens doctor in a remote area.” Id.,
¶ 116. Based on statements that Hartsuch made in the email and to P’ng personally, P’ng
became concerned that Hartsuch would stop showing up for his shifts if his demands weren’t
met. As a result, P’ng directed Larson to remove Hartsuch from his remaining shifts and look
for other ways to cover those shifts.
Hartsuch’s claims arise under state law, but Hartsuch is a citizen of Iowa, both
defendants are citizens of Wisconsin, and the amount in controversy is more than $75,000, so
the court may exercise diversity jurisdiction under 28 U.S.C. § 1332.
The court will discuss additional facts as they become relevant to the analysis.
ANALYSIS
A. Defendant Jennie Larson
Hartsuch is suing Larson for both wrongful discharge and tortious interference. Both of
these claims rest on the decision to cancel Hartsuch’s shifts at the hospital. But it’s undisputed
5
that P’ng made that decision, not Larson. She had no authority over Hartsuch or other
physicians, Dkt. 62, ¶ 11, and Hartsuch has adduced no evidence that she participated in P’ng’s
decision. Although she followed P’ng’s instruction to take Hartsuch off the schedule, that was
a ministerial act. Hartsuch identifies no basis for holding Larson liable under these
circumstances, so the court will grant defendants’ motion for summary judgment on Hartsuch’s
claims against Larson. But even if Larson had been involved in the decision, she would be
entitled to summary judgment for the same reasons as Ascension, as will be discussed below.
B. Wrongful discharge
Hartsuch contends that Ascension violated the law by discharging him after he criticized
the hospital’s protocols related to COVID-19. Under Wisconsin’s employee-at-will doctrine,
the general rule is that “an employer may discharge an employee for good cause, for no cause,
or even for cause morally wrong, without being thereby guilty of legal wrong.” Brockmeyer v.
Dun & Bradstreet, 113 Wis. 2d 561, 567, 335 N.W.2d 834, 837 (1983) (internal quotation
marks omitted).1 Exceptions to this rule may be found in an employment contract or in state
and federal statutes, but Hartsuch doesn’t rely on any of those exceptions. Rather, he contends
that defendants committed the common-law tort of wrongful discharge, which applies when
“the discharge is contrary to a fundamental and well-defined public policy as evidenced by
existing law.” Winkelman v. Beloit Mem’l Hosp., 168 Wis. 2d 12, 20, 483 N.W.2d 211, 214
(1992).
A discharge would be wrongful under the public-policy exception if it occurs because
the employee either: (1) refused to violate a public policy; or (2) fulfilled an “affirmative
1
Both sides assume that Wisconsin law applies, so the court has done the same. RLI Insurance
Company v. Conseco, Inc., 543 F.3d 384, 390 (7th Cir. 2008).
6
obligation” imposed by the law. Bammert v. Don’s Super Valu, Inc., 2002 WI 85, ¶¶ 22–23, 254
Wis. 2d 347, 359, 646 N.W.2d 365, 371. In this case, Hartsuch doesn’t contend that he was
discharged for refusing to violate public policy. Rather, he says that he was fulfilling affirmative
obligations related to the public policies of stopping the spread of COVID-19, engaging in the
minimally competent practice of medicine, and following the standard of care for physicians.
Defendants seek dismissal of the wrongful discharge claim on several grounds: Hartsuch
was an independent contractor for Ascension, and only employees can bring wrongful discharge
claims; the asserted policy of “preventing the spread of COVID-19” isn’t based on existing law
because Hartsuch is relying on executive orders rather than a statute or regulation; neither of
Hartsuch’s asserted policies are “fundamental and well-defined”; Hartsuch wasn’t fulfilling an
affirmative obligation imposed by the law when he sent the emails at issue to Ascension; and
Ascension didn’t discharge Hartsuch for criticizing their COVID-19 policies but rather for
threatening to stop working at the hospital if Ascension didn’t meet his demands. All of
defendants’ arguments have merit, but the court will limit its discussion to two: (1) Hartsuch
wasn’t fulfilling an affirmative obligation imposed by the asserted policies; and (2) no
reasonable jury could find that Ascension canceled Hartsuch’s shifts because he complained
about the protocols rather than because he threatened to stop working.
1. Affirmative obligation
A claim for wrongful discharge was originally limited to situations in which the
employee was fired after refusing an order that would violate public policy. See Bushko v. Miller
Brewing Co., 134 Wis. 2d 136, 142, 396 N.W.2d 167 (1986). The supreme court later held
that that an employee’s “compliance with [a] specific legal mandate” or an “affirmative legal
7
obligation” can also be protected under some circumstances. Hausman v. St. Croix Care Ctr.,
214 Wis. 2d 655, 667, 571 N.W.2d 393, 397 (1997).
In Hausman, the plaintiffs were employees at a nursing home facility who were fired
after they reported to facility administrators that abuse and neglect of residents were occurring
at the facility. Id. at 660. The supreme court held that the plaintiffs’ conduct was protected by
a public policy “to prevent abuse or neglect of nursing home residents” that was in statutes
such as Wis. Stat. § 940.295(3), which imposes criminal penalties on workers who knowingly
permit abuse or neglect to occur. The court also cited Wis. Stat. § 50.07(1)(e) and Wis. Stat.
§ 46.90(4)(b), which prohibit nursing homes from retaliating against an employee for reporting
abuse or neglect to a state or county official. “Had the plaintiffs failed to report their concerns,”
the court reasoned, “they could be subject to criminal prosecution.” Hausman, 214 Wis. 2d at
667. By extending a wrongful discharge claim to protect the plaintiffs’ alleged conduct,
“employees would be relieved of the onerous burden of choosing between equally destructive
alternatives: report and be terminated, or fail to report and be prosecuted.” Id. at 669.
The plaintiff bears the burden of proving that the dismissal violates a clear mandate of
public policy. Kempfer v. Automated Finishing, Inc., 211 Wis. 2d 100, 107–08, 564 N.W.2d 692,
696 (1997). In this case, Hartsuch hasn’t met his burden to show that he was fulfilling a
“specific legal mandate” related to preventing the spread of COVID-19, engaging in the
minimally competent practice of medicine, or following the standard of care by criticizing the
hospital’s COVID-19 policies.
a. Preventing the spread of COVID-19
Hartsuch first cites state executive orders declaring a health emergency because of
COVID-19, ordering school closures, prohibiting mass gatherings, and restricting the size of
8
child-care settings, and he says that the orders represent a policy of “preventing the spread of
COVID-19.” Dkt. 59, at 7. Hartsuch also cites information about the dangers of COVID-19
generally and with respect to physicians specifically, see Dkt. ¶ 63, ¶¶ 35–43, and he says that
he acted “for the purpose” of preventing the spread of COVID-19, Dkt. 59, at 10.
The court doesn’t question the cited facts, Hartsuch’s intentions, or the importance of
preventing the spread of COVID-19. But it’s not enough for Hartsuch to show that he was
trying to advance an important public policy. Unlike the statutes at issue in Hausman, the
orders Hartsuch cites did not impose any obligations on him; they are not directed at physicians
and have nothing to do with hospital protocols. “An employer is not liable for wrongful
discharge merely because the employee’s conduct precipitating the discharge was praiseworthy
or the public derived some benefit from it.” Batteries Plus, LLC v. Mohr, 2001 WI 80, ¶ 20, 244
Wis. 2d 559, 569–70, 628 N.W.2d 364, 370.
It is true that “the wrongful discharge cause of action encompasses public policy
embodied in the spirit as well as the letter of” the law. Winkelman, 168 Wis. 2d at 21. But that
doesn’t give courts license to expand the public policy exception to the employee-at-will
doctrine to protect any conduct that might advance the general purpose of a law. The
Wisconsin Supreme Court has repeatedly emphasized that the public policy exception is
narrow. See Bammert, 2002 WI 85, at ¶ 16 (“The cases have emphasized the limited scope of
the exception.”); Tatge v. Chambers & Owen, Inc., 219 Wis. 2d 99, 115, 579 N.W.2d 217, 224
(1998) (“We have often repeated that the Brockmeyer public policy exception to the
employment-at-will doctrine is a narrow one.”). And “[t]he more a court moves beyond the
terms of the statute, the more encompassing the ‘narrow’ public policy exception becomes.”
Batteries Plus, 2001 WI 80, at ¶ 38. In other words, the discharge must clearly violate a policy
9
that is well-defined in the law. Id. The court may not enforce its own notion of what it believes
public policy should protect. Strozinsky v. Sch. Dist. of Brown Deer, 2000 WI 97, ¶ 38, 237 Wis.
2d 19, 42, 614 N.W.2d 443, 454 (“Public policy considerations invariably are vague and beg
judicial caution.”).
Hartsuch doesn’t identify any affirmative legal obligation that he was compelled to
fulfill. Rather, his claim is like the one in Bushko, in which the employee alleged that he was
terminated for complaining about plant safety, hazardous waste disposal procedures, and
record falsification. 134 Wis. 2d at 141–47. Like preventing the spread of COVID-19, those
issues implicate important concerns related to health and safety. But the supreme court rejected
the claim because the plaintiff couldn’t point to a legal command that compelled his safetymotivated complaint. Id. Acting “consistent” with public policy wasn’t enough. Id. at 141. It is
the same in this case, so this part of Hartsuch’s wrongful discharge claim fails.
b. Engaging in the minimally competent practice of medicine and following
the standard of care
Hartsuch next relies on regulations, statutes, and Wisconsin common law related to the
standard of care for physicians. See Wis. Admin. Code § Med 10.01(2); Wis. Admin. Code §
Med 10.03(2)(b); Wis. Stat. § 448.02.
Section 10.01 of the administrative code is titled “authority and intent,” and it sets
forth a general statement of policy:
Physicians act with a high level of independence and
responsibility, often in emergencies. Every physician represents
the medical profession in the community and must do so in a
manner worthy of the trust bestowed upon the physician and the
profession. The minimally competent practice of medicine and
surgery require that care of the patient is paramount. Physicians
must therefore act with honesty, respect for the law, reasonable
judgment, competence, and respect for patient boundaries.
10
Section 10.03(2)(b) defines “unprofessional conduct” as “[d]eparting from or failing to
conform to the standard of minimally competent medical practice which creates an
unacceptable risk of harm to a patient or the public whether or not the act or omission resulted
in actual harm to any person. Section 448.02 of the statutes authorizes discipline against a
physician for “unprofessional conduct.”
Hartsuch concisely summarizes his argument in one of his briefs:
Plaintiff had an affirmative duty to engage in the minimally
competent practice of medicine. Wearing an effective facemask is
the minimally competent practice when treating patients with a
contagious and deadly disease. By warning Defendants about
their unsafe COVID-19 policies, Plaintiff was fulfilling his
affirmative duty to engage in the minimally competent practice of
medicine.
Dkt. 32, at 9.
As an initial matter, it is not clear that the duties to engage in the minimally competent
practice of medicine and follow the standard of care are “well defined” public policies within
the meaning of Brockmeyer and its progeny. “Not every statutory, constitutional, or
administrative provision invariably sets forth a clear public policy mandate.” Bammert, 2002
WI 85, at ¶ 12. And the duties Hartsuch cites are much broader than those the Wisconsin
courts have previously recognized. See Winkelman, 168 Wis. 2d at 18 (regulation prohibiting
nurses from performing work they aren’t qualified to perform); Kempfer, 211 Wis. 2d at 113–
14 (statute imposing penalties for operating a commercial vehicle without meeting the
statutory requirements); Hausman, 214 Wis. 2d at 667 (statute imposing penalties for
knowingly permit abuse or neglect to occur); Strozinsky, 2000 WI 97, at ¶ 50 (tax law
prohibiting employees of corporations and limited liability companies from falsifying records,
accounts, and documents).
11
Recognizing Hartsuch’s asserted public policies as “fundamental and well-defined”
could be in tension with the supreme court’s views that protected conduct must be “sufficiently
certain to allow courts to easily identify covered cases,” Hausman, 214 Wis. 2d and 668, and
that employers must “retain sufficient flexibility to make needed personnel decisions.”
Brockmeyer, 113 Wis. 2d at 574. The term “minimally competent practice of medicine” is not
self-defining; the standard of care is likewise a concept difficult to apply in the individual case.
If Hartsuch prevailed on his claim, nearly any disagreement between a physician and his or her
employer about patient care could give rise to a claim under the public policy exception. The
supreme court has rejected other wrongful discharge claims that would rely on an employee’s
subjective view of a broad standard. See Tatge v. Chambers & Owen, Inc., 219 Wis. 2d 99, 117–
18, 579 N.W.2d 217, 225 (1998) (“Were we to apply the Brockmeyer exception to the facts of
this case, at-will employees could indiscriminately decline to sign non-disclosure/non-compete
agreements which in their own minds are ‘unreasonable,’ and subsequently bring a wrongful
discharge claim if terminated for doing so.”).
But even if both of the asserted policies were sufficiently fundamental and well-defined,
the court concludes for several reasons that Hartsuch’s emails weren’t fulfilling an obligation
to comply with any duty imposed by those policies. First, Hartsuch points to nothing in the
law requiring him to complain about hospital policies that he believed were inadequate. The
laws he cites are about how to practice medicine; they do not impose on physicians a duty to
report or to try to influence hospital policies and procedures.2 The Wisconsin Supreme Court
2
Hartsuch’s summary judgment materials don’t rely on Wis. Stat. § 448.115, which imposes
on physicians a duty to report certain types of misconduct by another physician, so the court
doesn’t consider that statute.
12
has declined to recognize a “wide-ranging whistle-blower exception” that generally protects
“reporting infractions of rules, regulations, or the law pertaining to public health, safety, and
the general welfare.” Hausman, 214 Wis. 2d at 666.
Second, Hartsuch points to no evidence other than his own belief that Ascension’s
policies resulted in practices that fell below the standard of care or didn’t qualify as the
minimally competent practice of medicine. He concedes that he has no specialized training or
experience in infection control, that Ascension’s mask policy was consistent with CDC
guidance at the time, and that he was requesting policies that went “above and beyond what
the CDC and the WHO were recommending at the time.” Dkt. 62, ¶¶ 86, 92, 98, 99, 102.
Although he points out that the CDC has since changed its policies, he identifies no basis for
finding that following the then-current CDC guidance fell below the standards Hartsuch cites
simply because the CDC later revised its guidance.
Third, Hartsuch identifies no way in which Ascension prevented him from complying
with his duties as he perceived them. It’s undisputed that he was permitted to wear an N95
mask if that’s what he believed was appropriate, id., ¶ 106, and he doesn’t otherwise allege that
Ascension interfered with his treatment of COVID-19 patients. In fact, the hospital had not
yet received any COVID-19 patients at the time Hartsuch expressed his concerns. Id., ¶ 103.
Fourth, Hartsuch identifies no adverse consequences that he might have suffered if he
had chosen not to complain. In concluding that that the employees’ whistleblowing was
protected in Hausman, the court noted multiple times that the employees’ faced a risk of
prosecution if they didn’t report abuse and neglect at the nursing home. 214 Wis. 2d at 667,
669. The supreme court has since noted that the risk of prosecution “[i]nfluenc[ed] the
Hausman decision.” Masri v. State Lab. & Indus. Rev. Comm’n, 2014 WI 81, ¶ 53, 356 Wis. 2d
13
405, 437, 850 N.W.2d 298, 314–15. And the Wisconsin Court of Appeals has stated that an
employee “must demonstrate” that she faced adverse consequences if she didn’t act. Goggins v.
Rogers Mem'l Hosp. Inc., 2004 WI App 113, ¶ 24, 274 Wis. 2d 754, 765, 683 N.W.2d 510, 515.
See also Lewis v. Bay Indus., Inc., 51 F. Supp. 3d 846, 858 (E.D. Wis. 2014) (imposing same
requirement). In this case, Hartsuch doesn’t contend that he was confronted with a similar
dilemma. Although he cites the statute that authorizes discipline against a physician for
“unprofessional conduct,” Wis. Stat. § 448.02, he identifies no basis for finding that he could
have been disciplined for failing to complain under the circumstances of this case.
For all of these reasons, the court concludes that Hartsuch hasn’t shown that he was
fulfilling a legal obligation when he complained about Ascension’s COVID-19 policies.
Ascension is entitled to summary judgment on the wrongful discharge claim.
2. Reason for discharge
Even if the court assumes that firing Hartsuch for complaining about Ascension’s
COVID-19 protocols would violate a fundamental and well-defined public policy, no
reasonable jury could find that Ascension canceled Hartsuch’s shifts for complaining. Rather,
the following undisputed facts show that Ascension made its decision because it was concerned
that Hartsuch was going to stop showing up for work.
First, P’ng expressed no hostility when Hartsuch first raised some of his concerns. In a
conversation with P’ng on March 18, 2020, Hartsuch told P’ng his ideas for protecting against
COVD-19, including those related to masks and discharge instructions. In response, P’ng told
Hartsuch that “Ascension was always looking for ways to improve,” and he encouraged
Hartsuch “to bring him new ideas, especially about COVID-19, which the scientific community
was still learning about.” Id., ¶ 87. P’ng then began looking into obtaining portable HEPA
14
filters, which was one of Hartsuch’s suggestions. Id., ¶ 89. Even after Hartsuch wrote his March
23 email, which included sharp criticism of Ascension, P’ng wrote to a colleague, “He does
bring up some important points which [are] being addressed.” Dkt. 63, ¶ 73. Hartsuch points
to no evidence that P’ng was angry about Hartsuch’s criticism.3
Second, P’ng cancelled Hartsuch’s shifts only after Hartsuch threatened multiple times
to stop working at the hospital if his demands weren’t met. During his March 20 conversation
with P’ng, Hartsuch said that he wasn’t sure he could “continue to work in a place that wasn’t
making progress” toward the improvements he had identified. Dkt. 62, ¶ 85. In his March 24
email, he was less equivocal, writing, “if Ascension does not improve their safety protocols, I
cannot continue to work at Howard Young in good conscience.” Id., ¶ 104.
Third, P’ng had a legitimate concern about the consequences of Hartsuch failing to
show up for work. The hospital was experiencing staffing shortages at the time, and P’ng knew
from experience that it was hard to find last-minute coverage for shifts in the emergency room.
Id., ¶¶ 113–14. Without a physician, the ER couldn’t remain open. Id., ¶ 115.
Hartsuch doesn’t contend that it would violate public policy for a hospital to discharge
a physician for failing to come into work, and he doesn’t cite evidence that Ascension had any
reason for canceling his shifts other than a concern that he wouldn’t show up. Instead, he says
that Ascension shouldn’t have assumed that he would follow through on his threat because he
never said “definitively” that he wasn’t coming back to work. Dkt. 59, at 11. But that’s not a
reasonable view. Hartsuch told P’ng multiple times that he was questioning whether he could
3
Hartsuch does allege that Larson was angry about Hartsuch’s emails, but, as already noted,
it’s undisputed that Larson wasn’t involved in the decision to cancel Hartsuch’s shifts, so her
reaction to the emails isn’t relevant.
15
continue working at the hospital. And Hartsuch had already told P’ng during one of their
conversations that he had previously followed through on a similar threat: Hartsuch left an
assignment at a different hospital because of a requirement to submit to an x-ray for a
tuberculosis screening. Dkt. 62, ¶ 57. It was reasonable for Ascension to take proactive steps
to help ensure that the hospital wasn’t left without an emergency room physician. When
deciding whether a discharge violates public policy, the court must consider whether the
employee’s conduct “jeopardized significant lawful interests of either the employer or of the
public,” which may include concerns about staffing shortages. Reilly v. Waukesha Cty., 193 Wis.
2d 527, 530, 535 N.W.2d 51, 52 (Ct. App. 1995).
Hartsuch has adduced no evidence that Ascension cancelled his shifts for criticizing
Ascension’s COVID-19 policies. Rather, the undisputed facts show that Ascension made its
decision for legitimate reasons related to the proper functioning of the hospital. Ascension is
entitled to summary judgment on Hartsuch’s wrongful discharge claim for that reason as well.
C. Tortious interference
This claim is premised on a view that Hartsuch was the employee of Delta Locums
Tenens rather than Ascension. Dkt. 59, at 11. Hartsuch contends that Ascension’s decision to
cancel his shifts tortiously interfered with his contract with Delta because Delta didn’t pay him
for the canceled shifts. But this claim fails for essentially the same reasons as the wrongful
discharge claim. It would make little sense to say that Ascension had the right to cancel’s
Hartsuch’s shifts but to then hold that Ascension could be held liable on a tortious interference
theory because Delta declined to pay Hartsuch for the canceled shifts.
Even if the court assumes that Ascension’s conduct qualifies as “interference,” it wasn’t
“improper,” which is one of the requirements of the claim. Mackenzie v. Miller Brewing Co., 2000
16
WI App 48, ¶ 63, 234 Wis. 2d 1, 47, 608 N.W.2d 331, 349, aff'd, 2001 WI 23, ¶ 64, 241
Wis. 2d 700, 623 N.W.2d 739. Ascension had a right to protect its own interests in ensuring
that the emergency room would be adequately staffed, even if the effect of that decision meant
that Hartsuch lost a chance to earn some income. See Hale v. Stoughton Hosp. Ass'n, Inc., 126
Wis. 2d 267, 282–83, 376 N.W.2d 89, 97 (Ct. App. 1985) (hospital staff’s alleged interference
with employment contract not improper when it was “motivated by a desire to promote the
interests of the hospital in providing medical care”). Ascension is entitled to summary judgment
on this claim as well.
D. Other pending motions
The court’s summary judgment decision moots four other motions: (1) defendants’
motion for partial judgment on the pleadings, Dkt. 26, which the parties completed briefing
shortly before defendants filed their summary judgment motion; (2) Hartsuch’s motion for
leave to amend his complaint to add a request for punitive damages, Dkt. 34; (3) Hartsuch’s
motion to strike proposed errata changes to deposition testimony that the court didn’t need to
consider, Dkt. 65; and (5) the parties’ motion to extend the September 24 pretrial deadlines.
ORDER
IT IS ORDERED that:
1. The motion for summary judgment filed by defendants Ascension Medical Group–
Northern Wisconsin, Inc., and Jennie Larson, Dkt. 38, is GRANTED.
2. Defendants’ motion for judgment on the pleadings, Dkt. 26, Hartsuch’s motion for
leave to amend his complaint, Dkt. 34, Hartsuch’s motion to strike defendants’
17
proposed errata changes, Dkt. 65, and the parties’ motion for an extension of time,
Dkt. 68, are DENIED as moot.
3. The clerk of court is directed to enter judgment in favor of defendants and close this
case.
Entered August 26, 2021.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
18
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