Labor & Employment Law Daily Wrap Up, WHISTLEBLOWERS—Mass. Sup. Ct.: EMT may pursue whistleblower claim following termination for reporting patient injury, (Jan 31, 2025)

By Ronald Miller, J.D.

Mass. Gen. Laws ch. 149, § 187, was “designed to safeguard patient care by protecting the rights of health care providers who expose deficiencies in care that violate laws or regulations or professional standards that endanger public health.”

The whistleblower claim of an EMT, who brought suit against his employer, an ambulance service, alleging whistleblower, wrongful termination and tort claims arising from his termination after he photographed an injured patient and used that photograph to report alleged medical misconduct by the employer, was revived on appeal to the Massachusetts Supreme Court. The trial court dismissed the whistleblower claim because the employee cited the wrong statutory provision, Mass. Gen. Laws ch. 149, § 185(b)(3), which applies only to governmental entities. Applying Mass. Gen. Laws ch. 149, § 187(b), which prohibits retaliation against whistleblowers in the medical context, the Massachusetts high court reversed dismissal of the whistleblower claim. However, the high court concluded that the trial court properly dismissed the other claims (Luu v. Fallon Service, Inc., No. 23-P-340 (Mass. Sup. Ct. Jan. 30, 2025)).

Transport of patient. On November 30, 2019, the employee, an EMT employed by the employer, responded to a call at a hospital to transport a patient experiencing an altered mental status to another hospital. The employee and his partner placed the patient in the ambulance. The partner remained in the back of the ambulance with the patient, where he was supposed to provide care to the patient, while the employee drove the ambulance to the hospital. According to the employee, he witnessed his partner on his cell phone and neglecting to provide care to the patient as they traveled.

Injured patient. Upon arrival at the hospital, the employee became aware of a new hemorrhage wound on the patient’s arm. He questioned his partner about how the injury resulted, but the partner was not able to provide an explanation. Believing that the injury was a result of his partner’s misconduct and neglect of the patient, the employee used his personal cell phone to take photographs and one video recording of the patient’s injury prior to taking the patient into the hospital.

Thereafter, the employee reported the incident to his field supervisor the same day and showed her the photographs and video recording. This was the last that the employee heard about the incident from his supervisor, despite numerous attempts to follow up on the status of the report.

In the interim period, the employee experienced a change in his job duties, which he believed was a result of his reporting the incident. While the employee had previously worked in the field providing EMT case, his job duties now included sweeping, mopping, and sanitizing the station and paramedic trucks.

Report of employer misconduct. On January 8, 2020, the employee met with members of management, who notified him that his possession of the images was in violation of company policy and instructed him to delete the photographs and video recording. However, on January 14, the employee filed a report with the Office of Emergency Medical Services (OEMS). On January 17, the employee was terminated for failing to comply with company policy by not deleting the images at the direction of his superiors.

Thereafter, the employee filed a lawsuit for a whistleblower violation, wrongful termination in violation of public policy, and negligent infliction of emotional distress. The complaint labeled the whistleblower count as falling under Mass. Gen. Laws ch. 149, § 185(b)(3).

Whistleblower claim. The employer moved for judgment on the pleadings, since Mass. Gen. Laws ch. 149, § 185(b)(3) applies only to governmental entities and the employer is a private company. The trial court dismissed the action on that basis. The trial court also found that the termination did not violate public policy, and that the tort claim was barred by the exclusivity provisions of the workers’ compensation act, Mass. Gen. Laws ch. 152, § 26.

The employee moved for relief from judgment, arguing that the whistleblower claim fell under Mass. Gen. Laws ch. 149, § 187(b), the statute prohibiting retaliation against whistleblowers in the medical context. The trial court denied the motion. This appeal followed.

Medical whistleblower statute. Mass. Gen. Laws ch. 149, § 187, sets forth a statutory scheme that prohibits health care facilities from terminating or otherwise retaliating against health care providers who report certain forms of believed misconduct to supervisors or public authorities. Here, the parties agreed that the employer is such a health care facility. They disagreed as to whether the employee, an EMT, qualified as a health care provider under the statutory definition.

As an initial matter, the Massachusetts Supreme Court examined Mass. Gen. Laws ch. 149, § 187(a), to determine whether an EMT is a health care provider. Here, the court determined that the employee fell squarely within “any other health care provider who performs or has performed health care related services for and under the control of a health care facility for care-related services,” Mass. Gen. Laws ch. 149, § 187 (a). As an EMT, the employee performed care-related services for and under the control of his employer, a health care facility, including driving an ambulance and providing patient care in transport.

Wrongful labeled whistleblower claim. At any rate, the Massachusetts Supreme Court, determined that although the employee’s complaint wrongly labeled the whistleblower count as a “violation of G.L. c.149 § 185(b)(3),” Massachusetts Rule of Civil Procedure 8(a), “does not require a plaintiff to even allege the correct legal theory if the facts as alleged entitle him to any form of relief.” Thus, where the employee made out a cognizable whistleblower claim under Mass. Gen. Laws ch. 149, § 187 (b), but cited the wrong statute, its dismissal for failure to state a claim was in error. Accordingly, the whistleblower claim should not have been dismissed.

Wrongful termination claim. With respect to the employee’s wrongful termination claim, he argued that “M.G.L. c. 111, § 72G required [him] to create a detailed patient neglect report, and his termination, as a result of the contents of his report, is a direct violation of the statute.” However, the high court pointed out that this section did not impose an obligation on either the employee or his employer. Mass. Gen. Laws ch. 111, § 72G imposes a duty on medical and nonmedical persons to report abuse, mistreatment, neglect, or misappropriation committed against an individual who receives health, homemaker, or hospice services at home or resides in a long-term care facility. The employee’s complaint did not allege that the patient was at home at the time of the injury. Accordingly, the court declined to disturb the dismissal of this claim.

Finally, the state high court agreed with the trial court that the employee’s claim for negligent infliction of emotional distress was barred by the exclusivity provision of the workers’ compensation act.

Thus, the dismissal of the employee’s whistleblower claim was reversed; however, the judgment of the trial court was otherwise affirmed.

The case is No. 23-P-340.

Judge: Ditkoff, J.

Attorneys: Nial Luu, pro se. Timothy O. Egan (Peabody & Arnold) for Fallon Service, Inc.

Companies: Fallon Service, Inc.

Cases: Whistleblowers Retaliation Discharge TortClaims StateLawClaims MassachusettsNews GCNNews