Phillips v Ralph Lauren Ctr. for Cancer Care & Prevention

[*1] Phillips v Ralph Lauren Ctr. for Cancer Care & Prevention 2009 NY Slip Op 50320(U) [22 Misc 3d 1128(A)] Decided on February 9, 2009 Supreme Court, New York County Solomon, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 9, 2009
Supreme Court, New York County

Earnest Phillips, Plaintiff,

against

Ralph Lauren Center for Cancer Care and Prevention, Defendant.



108377/08



Plaintiff was represented by Steven I. Locke, Esq., of Carraba Locke, LLP, 100 Williams St., 3rd Floor, New York, NY 10038, tel. no. (212) 430-6400. Defendant was represented by Loren Brody, Esq., of Manatt, Phelps and Phillips, LLP, 7 Times Square, 22nd Floor, New York, NY 10036, tel. no. (212) 790-4575

Jane S. Solomon, J.

FACTUAL BACKGROUND

Defendant moves to dismiss the complaint, pursuant to CPLR 3211 (a) (7), failure to state a claim.

Plaintiff was hired by defendant in December of 2007 as an endoscopy technician. Plaintiff alleges that, during his tenure at defendant's employ, he witnessed several improper medical practices that he reported to defendant's chief operating officer. Plaintiff further asserts that he was suspended from his job two days after he e-mailed the chief operating officer about his concerns, which, he maintains, led to his termination shortly thereafter. Plaintiff is claiming wrongful termination based on retaliation for his whistle blowing.

The qualifications to become an endoscopy technician are a high school education and one year of experience in the medical field. No licensing is required. The primary tasks of an endoscopy technician are to maintain the endoscopy equipment, inventory supplies, assist the licensed practical nurse in the admitting, recovery and discharge process, to monitor vital signs during procedures, and to use a scope to remove polyps as requested by the physician who works the scope on a patient.

DISCUSSION

On a motion to dismiss pursuant to CPLR 3211, the pleading should be liberally construed, the facts alleged by the plaintiff should be accepted as true, and all inferences should be drawn in the plaintiff's favor (Leon v Martinez, 84 NY2d 83 [1994]); however, the court must determine whether the alleged facts "fit within any cognizable legal theory." Id. at 88. Further, "[a]llegations consisting of bare legal conclusions ... are not presumed to be true [or]accorded every favorable inference." Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81 (1st Dept [*2]1999), affd 94 NY2d 659 (2000).

The complaint was initially filed on June 16, 2008, alleging a single claim for violation of New York Labor Law § 741. Defendant commenced the instant motion by notice on October 16, 2008. Thereafter, on October 24, 2008, plaintiff served and filed an amended complaint, which included a second cause of action for violation of Labor Law § 740. The amended complaint was properly filed without leave of court. CPLR 3025 (a); STS Management Dev., Inc. v New York State Department of Taxation, 254 AD2d 409 (2d Dept 1998). Defendant's original arguments were addressed exclusively to the Labor Law § 741 cause of action appearing in the initial complaint, but, in reply, defendant has addressed the Labor Law § 740 cause of action, and has not disputed plaintiff's right to file the amended complaint.

Labor Law § 741 provides a prohibition against a "health care employer who penalizes employees because of complaints of employer violations" of a law, rule or regulation that adversely affects patient health care. Defendant argues that the cause of action based on Labor Law § 741 must be dismissed because that law is only applicable to a health care provider's employees who are performing health care services, and that the improper quality of patient care alleged does not allege to violate a law, rule or regulation. Defendant maintains that plaintiff does not qualify as an "employee" under the statute because he did not perform health care services, and that the conduct of which he complained did not constitute improper patient care as defined by Labor Law § 741.

Labor Law § 741 (d) defines "improper quality of patient care as:

"...any practice, procedure, action or failure to act of

an employer which violates any law, rule, regulation or

declaratory ruling adopted pursuant to law, where such

violation relates to matters which may present a

substantial and specific danger to public heath or safety

or a significant threat to the health of a specific patient.

The most recent decision interpreting Labor Law § 741 is Reddington v Staten Island University Hospital (11 NY3d 80 [2008]), which is cited by both parties. In that case, the Court of Appeals stated that

"Labor Law § 741 ... has an exactingly specific definition

of employee': any person who performs health care services

for and under the control and direction of any public or

private employer which provides health care services for

wages or other remuneration. This definition of employee

contains two limitations: first, it applies only to those

employed by employer[s] provid[ing] health care services, and second, the category of covered workers is further narrowed to those perform[ing] health care

services [internal quotation marks and citations omitted]."

Id. at 90. Therefore, the question in the instant case is whether plaintiff was performing health care services within the meaning of the statute. [*3]

"[A]n employee of a health care provider must performhealth care services, which means to actually supply health care services, not merely to coordinate with those who do [quotation marks omitted]." Id. at 91.

"This is not to say that section 741 only covers employees

who possess professional licenses; there may be cases where

an employee without a professional license performs health

care services in the employment of a health care provider.

Nonetheless, section 741, which offers exceptional and

specialized whistleblower protection over and above the

generalized protection afforded by section 740, is meant

to safeguard only those employees who are qualified by

virtue of training and/or experience to make

knowledgeable judgments as to the quality of patient care,

and whose jobs require them to make these judgments."

Id. at 92-93.

In the amended complaint, plaintiff specifies his training, which includes an associate degree as a Surgical Technologist, and his thirteen years experience as an endoscopy technician, to indicate his ability to make knowledgeable judgments as to the quality of patient care. However, plaintiff's training and experience alone are insufficient to meet the requirements for being considered an employee under Labor Law § 741, if the job for which he was hired does not require him to make judgments regarding the quality of patient care. Under this standard, plaintiff fails to meet the requirement that he provides health care services.

The amended complaint alleges that plaintiff's duties included checking the equipment to make sure it was in proper working order, attaching EKG leads and oxygen tubes to patients, taking vital signs, attending "time out" periods with the anesthesiologist, gastroenterologist and patient to ensure that everyone was in agreement on the correct procedure, turning the patient on his or her side so that the anesthesia could be administered by the anesthesiologist, using a snare to remove polyps as directed by the physician who was working the scope, and bringing the patient to recovery.

Although "[i]t may be presumed that almost all acts which a hospital performs for its patients inevitably relate in some degree to medical care and treatment of those patients," Berg v New York Society for the Relief of the Ruptured and Crippled (286 App Div 783 [1st Dept 1955], revd on other grounds 1 NY2d 499 [1956])[FN1], some acts are purely, or almost exclusively, administrative. Despite the fact that some of the functions performed by plaintiff were medical, in the sense that they were preparatory to a medical procedure, they are routinely "performed not by a physician or nurse, but by a technician who was employed and paid by the hospital and who" is far short of professional status, and who only needs a high school diploma and one year [*4]of experience to be hired for the job. See Berg v New York Society for the Relief of the Ruptured and Crippled, 1 NY2d 499, 502 (1956). Consequently, such work is considered to be non-discretionary, and therefore not medical.

Based on the foregoing, it is determined that plaintiff fails to meet the definition of "employee" under Labor Law § 741, and so this cause of action is dismissed.

Even if plaintiff were determined to come within the definition of "employee" under Labor Law § 741, he still fails to allege conduct which would constitute improper quality of patient care, which is defined as any act that violates a law, rule or regulation. Labor Law § 741 (1) (d); Deshpande v TJH Medical Services, P.C., 52 AD3d 648 (2d Dept 2008). Plaintiff's only assertions concern a physician's alleged failure to observe "time out" protocols, which are not prescribed by a law, rule or regulation, and the physician's alleged missing polyps in patients and not using the scope all the way to the cecum. Plaintiff's critique of the physician's performance is insufficient to sustain a claim under Labor Law § 741, unless the complaint specifies that this conduct violated a specific law, rule or regulation, which the instant complaint fails to do.

In order to state a claim for violation of Labor Law § 740, a plaintiff must show that he or she was discharged because he or she complained about a violation of law by his or her employer, and such violation creates a danger to public health. Labor Law § 740 (2) (a). Similar to Labor Law § 741, "Labor Law § 740 requires a plaintiff to allege an actual violation of law, rule, or regulation. A good faith, reasonable belief that a violation occurred is insufficient [citations omitted]." Deshpande v TJH Medical Services, P.C., 52 AD3d at 650. In the instant matter, "[t]he plaintiff failed to plead a violation of any law, rule or regulation with the requisite particularity and specificity necessary to support such a claim [citations omitted]." Blumenreich v North Shore Health Systems, Inc., 287 AD2d 529, 531 (2d Dept 2001).

Based on the foregoing, plaintiff's cause of action pursuant to Labor Law § 740 is dismissed.

In his memorandum of law in opposition to defendant's motion, plaintiff requests leave of the court to amend his amended complaint to cure any deficiencies therein. CPLR 3025 (b) permits a party to amend the pleadings at any time with leave of court, provided that the opposing party is not prejudiced thereby. However, the "court should deny such a motion when the proposed amendment or repleading is palpably insufficient or patently without merit." Boakye-Yiadom v Roosevelt Union Free School Dist., __ AD3d __, 2008 WL 5413732 (2d Dept 2008). The fact that the request was made in a memorandum rather than by specific motion is not fatal, and the court may permit an amendment to correct a defect at any stage, as long as the opposing party is not prejudiced. Mallory Factor, Inc. v Schwartz, 146 AD2d 465 (1st Dept 1989). However, plaintiff has not provided any proposed amendment, nor has he provided any basis to indicate that he can amend the complaint to meet the requirements of Labor Law § 740 (1) (d). Under these circumstances, plaintiff's request for leave to amend the amended complaint is denied.

CONCLUSION

Based on the foregoing, it is hereby

ORDERED that plaintiff's motion for leave to amend the amended complaint is denied; and it is further

ORDERED that defendant's motion to dismiss the complaint is granted and the complaint [*5]is dismissed with costs and disbursements to defendant as taxed by the Clerk of the Court; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

Dated: February, 2009

ENTER:

_________________________

Jane S. Solomon, J.S.C. Footnotes

Footnote 1:This case involved a question as to whether a blood test performed by a technician was a medical or administrative procedure. The trial and first appellate courts determined that the procedure was medical, but this was reversed on appeal because the procedure was performed by a technician.