ELIA SERRANO v. CHRIST HOSPITAL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4448-06T34448-06T3

ELIA SERRANO,

Plaintiff-Appellant,

v.

CHRIST HOSPITAL,

Defendant-Respondent.

_____________________________________________

 

Argued December 3, 2007 - Decided

Before Judges Collester and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4733-05.

Mitchell D. Perlmutter argued the cause for appellant (Zavodnick, Perlmutter & Boccia, attorneys; Mr. Perlmutter, on the brief).

Irving L. Hurwitz argued the cause for respondent (McElroy, Deutsch, Mulvaney & Carpenter, attorneys; Mr. Hurwitz, of counsel; Michelle A. Annese, on the brief).

PER CURIAM

Plaintiff alleged that defendant Christ Hospital wrongfully discharged her from employment. Even though plaintiff arguably divulged confidential patient information to her child's teacher, she claimed her actions were justified because she knew her child's classmate may have been exposed to a serious, infectious illness and had not been medically cleared. Because plaintiff's revelation of confidential information was arguably mandated by public policy, the hospital's summary judgment motion should have been denied.

This unique case requires application of the standards governing claims for wrongful termination of at-will employees enunciated in Pierce v. Ortho Pharm. Corp., 84 N.J. 58 (1980). Since the trial judge granted summary judgment in favor of the hospital, we view the propriety of her ruling by examining the facts in the light most favorable to plaintiff, the opponent of the motion. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Plaintiff had been employed by the hospital or its predecessor since graduating from high school in 1988. At the time in question, plaintiff was employed as a secretary in the hospital's ICU Department.

In 2001, plaintiff executed a confidentiality statement, which indicated that "patient care data" was confidential and that she was barred from revealing this and other confidential information "at all times, both at work and off duty." By signing this statement, plaintiff acknowledged she was aware that "a violation of the confidentiality requirements may result in disciplinary action, including termination or legal action." One of the hospital's written policies states:

The care of a patient is always personal in nature. Therefore, any information about their [sic] condition, care, treatment or other personal data is strictly confidential and must not be discussed with anyone other than those directly responsible for his [or her] care and treatment.

This information must never be discussed outside the Hospital. Only designated employees may release information for publication.

Plaintiff has not alleged she was unaware of this policy at the times in question.

The record further reveals that plaintiff spoke and understood both English and Spanish. On October 11, 2004, she was asked to translate for an elderly Spanish-speaking patient. At the time, the treating physician was attempting to determine whether the patient was suffering from meningitis. As part of her involvement with this patient, plaintiff met the patient's daughter, and also learned the patient's daughter had children. She was also aware from her dealings with this family that the patient's daughter was instructed to have her children examined by a doctor before they returned to school. The patient's daughter had a four-year old son named Christian. Later that evening, plaintiff learned that Christian attended the same school as her own daughter.

The next morning, plaintiff took her child to nursery school. She observed that Christian was also in attendance and that he was coughing. Alarmed by this -- based on what she learned about Christian's grandparent's medical condition -- plaintiff decided to take her daughter home. Plaintiff testified at her deposition that the following occurred when the teacher asked why she was leaving with her child and whether something was wrong:

A. . . . I said there is something wrong here that I don't like and I don't want to discuss it because it's confidential. So she said to me, please, tell me what it is. You know, if it's the safety of the kids here, we need to know. So then that's when I explained to her.

Q. Tell me what you told her.

A. I told her I said Christian's grand-mother's in the hospital and, you know, they're ruling out meningitis and the mother was told not to bring him to school and his sister until they were cleared by the pediatrician. And I said [to the teacher] did you get any papers that [Christian] was cleared? She says no. So she said that she needed to tell the social worker.

Plaintiff was later called by a social worker and repeated this same information. Plaintiff testified at her deposition that she never specifically named the patient, describing her only as "Christian's grandmother."

School officials reached out to Christian's mother at her workplace and insisted that Christian be taken out of school and examined by a pediatrician. Christian's mother complained to the hospital; the hospital terminated plaintiff based on this alleged breach of its confidentiality policy.

Plaintiff thereafter commenced this wrongful termination action. Following a period of discovery, the hospital moved for summary judgment, which the judge granted.

Plaintiff appealed, arguing that (1) the trial judge rendered inadequate findings; and (2) there was sufficient evidence to suggest that in revealing patient information plaintiff was acting pursuant to "a clear mandate of public policy," as required by Pierce, supra, 84 N.J. at 72, and, thus, the trial judge should not have granted the hospital's summary judgment motion. We agree with both these arguments and, therefore, reverse the summary judgment and remand for further proceedings.

I

R. 4:46-2(c) directs that the court, in ruling on a motion for summary judgment, "shall find the facts and state its conclusions." This rule also incorporates the similarly-phrased R. 1:7-4(a). In rendering the type of decision required by these rules, "[n]aked conclusions" are insufficient; instead, a judge must "state clearly its factual findings and correlate them with the relevant legal conclusions." Curtis v. Finneran, 83 N.J. 563, 570 (1980). An absence of the findings required by our court rules leaves an appellate court with uncertainty about how a case was decided and, thus, as the Supreme Court has said, "'constitutes a disservice to the litigants, the attorneys and the appellate court.'" Id. at 569-70 (quoting Kenwood Assocs. v. Bd. of Adj. of Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976)). See also In re Farnkopf, 363 N.J. Super. 382, 390 (App. Div. 2003); Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990).

Here, the judge rendered a decision that, for the most part, was not crafted with her own words. Rather, after a few general and conclusory statements regarding the nature of a wrongful termination action, the judge simply adopted the hospital's position; we set forth the judge's entire oral decision:

The [c]ourt does not find that there are any genuine issues of material fact. The policy was in place and the [c]ourt does not find that there was -- that the plaintiff's conduct was protected by a clear mandate of public policy.

Public policy is based on a number of things according to the cases and the legal authority. Public policy is based on legis-lation, administrative rules and regula-tions or decisions, judicial decisions, professional codes of ethics, among other things.

The judiciary is guided of course to deal with every case on a case by case basis. There -- in this case, the -- there is contrary to the argument by the plaintiff that the policy was vague and open therefore to interpretation, the [c]ourt does not find supported either by the regulation itself or by any of the evidence advanced in this case.

The [c]ourt finds that the movant is entitled to summary judgment in this matter for the reasons that they have advanced in their oral arguments as well as in their written submissions and based on the legal authority upon which they rely.

The [c]ourt is granting the motion dismissing the claims with prejudice.

[Emphasis added.]

As can be seen, the judge made a few brief and unspecific statements and then abdicated her obligations by adopting the hospital's factual and legal arguments.

A judge's adoption of a party's submission is not a legitimate substitute for the findings required by R. 4:46-2(c) and R. 1:7-4(a). Although the judge's general reference to the hospital's brief is an improvement over the circumstances referred to in the decisions cited above -- where the trial judges gave little or no explanation for their determinations -- the obligation to provide specific findings of fact also requires that a trial judge state "his or her reasons." Vartenissian v. Food Haulers, Inc., 193 N.J. Super. 603, 612 (App. Div. 1984). Accord United States v. El Paso Natural Gas Co., 376 U.S. 651, 656-57, 84 S. Ct. 1044, 1047, 12 L. Ed. 2d 12, 17 (1964) (holding that, even though an appellate court should not "reject[] out-of-hand" a judge's mechanical adoption of a litigant's proposed findings, "the insight of a disinterested mind" is "more helpful to the appellate court"); United States v. Forness, 125 F.2d 928, 942 (2d Cir. 1942) (discussing the inadequacy of a "mechanical[] adopt[ion]" of a party's proposed findings, and holding that such a practice deprives the appellate court "of the judge's own consideration" of the matter); United States v. Premo Pharm. Labs., Inc., 511 F. Supp. 958, 978 (D.N.J. 1981) (holding that the findings required by Federal Rule of Civil Procedure 52 are to be "the findings of the court and not the findings of counsel"); Phillips v. Phillips, 464 P.2d 876, 878 (Colo. 1970) (holding that, in finding facts, the trial judge has the "responsibility to give utterance -- solely from his own lips -- of his views").

The expression of the judge's own words rather than those of a litigant is, as we have observed, the better practice because it unburdens the litigants and the appellate court of the task of deciphering or ferreting the judge's decision from the parties' submissions. Vartenissian, supra, 193 N.J. Super. at 612. In addition, a judge's utterance of his or her own findings, rather than the adoption of those proposed by counsel, has the salutary effect of demonstrating that the judge has "heard and addressed the relevant facts and claims under the controlling legal standards." Gordon v. Rozenwald, 380 N.J. Super. 55, 77 (App. Div. 2005).

To avoid an appearance that a judge has failed to engage in a thorough consideration of the matter or has dismissively rejected a party's contentions, we hold that the findings required by R. 4:46-2(c) and R. 1:7-4(a) are those formulated by the judge and stated with specificity in the judge's own words. Accordingly, we concur with the observation that whenever a trial judge adopts verbatim findings suggested by one side, "a gnawing doubt" is generated "about how much the judge injected his [or her] own intelligence into the process." Makino, U.S.A., Inc. v. Metlife Capital Credit Corp., 518 N.E.2d 519, 526 (Mass. Ct. App. 1988). Because such a methodology "fail[s] to foster the appearance of fairness and impartiality in our courts, and may thereby reduce confidence in our judicial system," Schmidkunz v. Schmidkunz, 529 N.W.2d 857, 859 (N.D. 1995), we conclude that the trial judge's reference to the hospital's brief in lieu of her own statement of reasons for granting summary judgment was inconsistent with the obligations imposed by R. 4:46-2(c) and R. 1:7-4(a).

Ordinarily, we would remand for the rendering of findings and conclusions of the type required by these rules. However, the matter has been fully briefed, and we are required to apply the same standard as the trial judge in reviewing the summary judgment. See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Despite our misgivings about the quality of the trial judge's decision, we nevertheless conclude that the appeal should be decided on its merits and that we should not cause an additional delay by remanding for a more appropriately formed decision.

II

The hospital moved for summary judgment, arguing that plaintiff had failed to point to a "clear mandate of public policy," Pierce, supra, 84 N.J. at 73, for her alleged breach of its confidentiality rule. Pierce has recognized that, in many instances, the judiciary will be obligated to "define the cause of action in case-by-case determinations." 84 N.J. at 72. In this regard, our courts are charged with weeding out those suits in which the former employee cannot "point to a clear expression of public policy" in order to bring clarity to the rights of employers and employees, thereby protecting "the interest of the public in stability of employment and in the elimination of frivolous lawsuits." Id. at 73.

It is readily apparent that the hospital's confidentiality rule is rooted in public policy. We have observed that the Hospital Patients Bill of Rights Act, N.J.S.A. 26:12H-12.7 to -12.11, which informs the hospital's confidentiality rule, "confers various rights upon hospital patients, including 'privacy to the extent consistent with providing adequate medical care,' N.J.S.A. 26:2H-12.8(f), and 'privacy and confidentiality of all records pertaining to . . . treatment,' N.J.S.A. 26:2H-12.8(g)." Kinsella v. NYT Television, 382 N.J. Super. 102, 107 (App. Div. 2005). However, these privacy protections are not absolute. Id. at 110. For example, the Hospital Patients Bill of Rights Act does not "preclude discussion of a patient's case or examination of a patient by appropriate health care personnel," N.J.S.A. 26:2H-12.8(f), and its medical records provision allows disclosure "as otherwise provided by law or third party payment contract," N.J.S.A. 26:2H-12.8(g). See Kinsella, supra, 382 N.J. Super. at 110.

Although the Hospital Patients Bill of Rights Act legitimizes the hospital's confidentiality rule, which formed the basis for plaintiff's termination, the summary judgment motion focused on whether plaintiff had alleged that she acted pursuant to a "clear mandate of public policy," Pierce, supra, 84 N.J. at 73, when she engaged in conduct that allegedly breached the hospital's confidentiality rule. The Court in Pierce did not define the source of such public policies. Instead the Court held that these policies may be found in "legislation; administrative rules, regulations or decisions; and judicial decisions." Id. at 72.

In considering the parties' arguments on this point, it is fair to conclude that there is no statute among the many laws enacted by our Legislature that expressly permits a hospital worker of plaintiff's stature to reveal confidential patient information in order to protect children from a perceived health hazard. But in determining whether plaintiff's claim has merit, we cannot overlook that our Legislature has adopted numerous laws designed to protect the well-being of children.

The New Jersey Medical Assistance and Health Services Act, N.J.S.A. 30:4D-1 to -42, provides, among other things, "comprehensive health care for infants and young children to reduce infant deaths and morbidity, to improve child health status, and to realize a substantial reduction in costly hospitalization." N.J.S.A. 30:4D-2.1(e). The Child Care Center Licensing Act, N.J.S.A. 30:5B-1 to -31, which regulates child care centers, lists as some of its goals the "continuous growth and development of children," and declares that such programs are "of value to the health, safety, education, physical, social and intellectual growth and general well-being of the children served." N.J.S.A. 30:5B-2. Our Legislature has also adopted a strict child labor law, N.J.S.A. 34:2-21.2, which our courts have construed with recognition that it is "the strong social policy of this State to limit and regulate child labor," Variety Farms, Inc. v. N.J. Mfrs. Ins. Co., 172 N.J. Super. 10, 17 (App. Div. 1980).

In addition, comprehensive legislation has been enacted to protect children from abuse and neglect, see, e.g., N.J.S.A. 9:6-8.21; this legislation encourages the reporting of abuse and neglect by rendering such reports confidential, N.J.S.A. 9:6-8.10, -8.10a, and by providing immunity to persons who make such reports, N.J.S.A. 9:6-8.13. The Legislature has also provided for the termination of parental rights in order to provide for the best interests of children whose parents are unfit and unable to protect them from harm. N.J.S.A. 30:4C-15.1.

Other examples could be provided; the inarguable point is that the Legislature has acted often and in many varied ways to provide for the health, education, and well-being of children. See also Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405 (1994).

As we have observed, there is no statute that precisely permits plaintiff's actions here. Our laws, however, are instinct with a public policy that greatly exalts the health and well-being of children over the interests of others, including their parents, see, e.g., N.J.S.A. 30:4C-15.1. We are thus satisfied that plaintiff has provided sufficient evidence of a public policy to defeat summary judgment.

Having so held, we offer no prognostication as to how the competing values of the hospital's confidentiality rule and plaintiff's alleged interest in protecting a schoolroom full of children from a potentially deadly disease should ultimately be prioritized. Viewed in the light most favorable to her, the record reveals that plaintiff -- as a result of pure happenstance and, we assume, with little opportunity for contemplation -- came face-to-face with a perplexing and disturbing situation. Plaintiff has alleged that even though she was conscious of her employer's confidentiality provision, she also was highly concerned that the health of her child and her child's classmates may have been placed in jeopardy. Although she initially determined to leave the school only with her own child, a school official was troubled by plaintiff's unusual actions and pressed for an explanation. Referring to the patient only as "Christian's grandmother," plaintiff indicated to the teacher that Christian had possibly been exposed to meningitis and that he should not have been attending school without medical clearance.

Plaintiff alleges that she faced a "Hobson's choice" -- that she could not simply ignore the potential health hazard faced by the students but that she also faced discipline or termination if she divulged confidential patient information. Although plaintiff may have had other options -- such as contacting her superiors at the hospital about what she had seen at the nursery school -- we must also recognize that the tableau staged before plaintiff, which included her own child, may have been extremely disturbing. The emotionally coercive effect of the teacher's request for an explanation should also be considered. A caring parent and neighbor might have found these circumstances far more weighty than the patient's right to confidentiality.

These interesting and difficult questions, however, are best left for the factfinder to decide. The hospital's motion for summary judgment was granted because the judge ultimately determined that plaintiff had failed to identify a clear mandate of public policy that informed her actions on that occasion. We are satisfied that the considerable body of legislation cited by plaintiff reveals a strong public policy in favor of the protection of children and that this mandate of public policy was sufficient to defeat summary judgment.

We, thus, reverse the summary judgment entered in favor of the hospital and remand for further proceedings. We do not retain jurisdiction.

The record contains hospital records which indicate that in 1991 plaintiff apparently divulged patient information and was warned that any similar action would lead to her termination. It is not clear whether plaintiff disputed those circumstances in 1991.

Even though plaintiff alleged she never referred to the patient by name, we assume without deciding that her reference to "Christian's grandmother" was specific enough to constitute a breach of the hospital's confidentiality rule.

R. 1:7-4(a) states in part: "The court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon in all actions tried without a jury, [and] on every motion decided by a written order that is appealable as of right . . . ."

The Court also quoted with approval Judge J. Skelly Wright's condemnation, in a seminar for newly-appointed federal district judges, of the practice of adopting verbatim a prevailing party's proposed findings as "an abandonment of the duty and the trust that has been placed in the judge" by the Federal Rules of Civil Procedure. El Paso Natural Gas Co., supra, 376 U.S. at 656 n.4, 84 S. Ct. at 1047 n.4, 12 L. Ed. 2d at 17 n.4.

(continued)

(continued)

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A-4448-06T3

December 21, 2007