Labor & Employment Law Daily Wrap Up, EMPLOYEE STATUS—M.D. Ga.: Court finds in favor of hospital system in EMTALA whistleblower suit, (Feb 12, 2025)

By Donielle Tigay Stutland, J.D.

The physician was not an employee of the hospital and never reported the alleged violation.

A federal district court in Georgia granted summary judgment in favor of a hospital system in a suit brought by a physician alleging that the hospital system terminated his employment for reporting violations of the Emergency Medical Treatment and Labor Act, 42 U.S.C. §1395dd(i) (EMTALA). The court also found in favor of the hospital in the physician’s derivative breach of legal duty claim. The physician alleged that Houston Healthcare System, Inc. (HHC) removed him as Emergency Department Director at Perry Hospital for complaining about its “city call” policy in violation of the EMTALA whistleblower protection provision. The court granted summary judgment in favor of the hospital after concluding that the physician was not an employee of the hospital. As a physician employed by a third party that provides physician services to HHC, the provider was not an HHC employee. Additionally, the court determined that the physician did not “report” an EMTALA violation. As the court determined that the EMTALA claim failed, the physician’s breach of legal duty claim also failed (Nulph v. Houston Healthcare System, Inc., No. 5:21-cv-423 (MTT) (M.D. Ga. Feb. 5, 2025)).

Background. The physician was the Emergency Department Director and a physician at Perry Hospital, which is owned and operated by HHC, from September 2017 until June 2021. In May 2021, HHC implemented a temporary policy—the policy was in effect from May 22, 2021, to June 1, 2021—for Perry “city call” patients, who the parties define as patients without a primary care physician with privileges at Perry. This policy provided that Perry city call patients needing admission would be transferred to Houston Medical Center, a larger HHC facility located roughly 15 miles away.

The physician originally alleged that he had reported the policy, however, under oath the physician “expressed concerns about the policy … [and] told [Perry’s Chief of Staff] that he intended to file an EMTALA complaint in order to protect himself from liability associated with this policy.” The court stressed that the physician argued only that he “had a reasonable belief that the policy violated EMTALA.” The court noted that there were no reports offered in evidence. Further, it was undisputed that the physician did not, contrary to the allegations in his amended complaint, report that patients were transferred in violation of EMTALA, nor did he cite a specific patient incident that he believed to be an EMTALA violation; the court also highlighted that the physician “apparently did not even specify how the city call policy violated EMTALA.”

On June 2, 2021, HHC sent a formal letter to Perry requesting the physician’s removal, citing his "inappropriate contact" regarding patient transfers and other behavioral issues and patient complaints. The physician then filed an action against HHC, alleging he was terminated in retaliation for reporting HHC’s city call policy in violation of 42 U.S.C. §1395dd(i) and Georgia state law.

EMTALA. In analyzing whether the physician had a valid claim under EMTALA, the court analyzed whether he was actually employed by the hospital and whether he actually reported any potential violations.

EMTALA provides defined protections for physicians, on the one hand, and hospital employees on the other. However, the court stressed that in this case, as a physician employed by a third party that provides physician services to HHC, the physician was not an HHC employee. The physician was actually an employee of ApolloMD, and ApolloMD contracts with HHC to provide physician services, a common practice in the hospital industry.

Additionally, the court determined that in this case there was not a report as required by the statute. The physician alleged to have filed a report with the Office of Inspector General, however, that report was not in the record. Moreover, based on testimony, the court found that the physician's report to the OIG was based only on the policy itself; he did not refer to a specific violation of EMTALA and he did not cite any patients who he believed were improperly screened, stabilized, or transferred.

Thus, the court determined that, “even if [the physician] reasonably and in good faith believed that the city call policy, short term though it was, could somehow lead to a violation, [the physician’s] complaints about the mere existence of the city call policy, were not reports of an EMTALA violation.” The court found that there was no evidence that supported a belief, in good faith, reasonable, or otherwise, that an EMTALA violation occurred and as such, the physician did not engage in protected activity.

Breach of legal duty. Next, the court turned to the physician’s claim of breach of legal duty under the Georgia statutes. The hospital argued that this claim also fails, as the physician alleged HHC had a duty under EMTALA not to retaliate against him and HHC breached this duty which caused him harm, and thus he is entitled to relief under O.C.G.A. §51-1-6. The court agreed with the hospital and determined that O.C.G.A. §51-1-6 requires a statutory breach, and without a valid EMTALA claim, there was no basis for the physician’s breach of legal duty claim.

The case is No. 5:21-cv-423 (MTT).

Judge: Treadwell, M.

Attorneys: Andrew Y. Coffman (Parks, Chesin & Walbert) for Rick Nulph. Daniel J. Huff (Huff, Powell & Bailey) for Houston Healthcare System Inc.

Companies: Houston Healthcare System Inc.

Cases: EmployeeStatus CoverageLiability Whistleblowers Retaliation Discharge TortClaims GeorgiaNews