Opinion
Index No. 614062-20 Motion Seq. No. 1
08-11-2021
JOEL GOLDBERG, M.D., Plaintiff, v. NYU SCHOOL OF MEDICINE, a Division of NEW YORK UNIVERSITY, and NYU LANGONE MEDICAL CENTER, a/k/a NYU LANGONE HEALTH SYSTEMS, Defendants.
Unpublished Opinion
Submission Date: 614062-20
SHORT FROM ORDER
HON. TIMOTHY S, DRISCOLL, Justice.
Papers Read on these Motions:
Affirmation in Support with Exhibits
Memorandum of Law in Support................................................................
Affidavit and Affirmation in Opposition with Exhibits................................................................
Memorandum of Law in Opposition................................................................
Reply Memorandum of Law................................................................
Presently pending before the Court is defendants NYU School of Medicine ("Medical School"), NYU Langone Health System, and NYU Langone Hospitals (collectively, "Defendants") motion for an Order, pursuant to CPLR § 3211(a)(1), (5), and (7), dismissing the second cause of action and Defendants awarding attorneys' fees and costs pursuant to New York Labor Law ("NYLL") § 740(6). For the following reasons, Defendants' motion is granted in part and denied in part. The parties are reminded of the conference scheduled for September 10, 2021 at 10:00 a.m.
Defendant's Notice of Motion states that NYU Langone Health System was sued improperly as NYU Langone Health Systems, and NYU Langone Hospitals was sued improperly as NYU Langone Medical Center.
BACKGROUND
The Complaint, see Jacobson Affm. at Exh. 1, alleges, in relevant part, as follows:
Plaintiff Joel Goldberg, M.D. ("Plaintiff") is a physician and board-certified specialist in internal medicine and cardiovascular disease, NYU Langone Medical Center is an academic medical center, comprised of the Medical School and NYU Hospitals Center. Defendants currently operate under the name NYU Langone Health Systems.
Prior to his employment with Defendants in June 2012, Plaintiff was the senior member of an independent cardiology practice (the "Group"). Plaintiff asserts that what began as a promising relationship with Defendants evolved into one in which Defendants implemented and pursued a series of coercive, retaliatory, and unlawful measures to force Plaintiff to refer his patients solely within Defendants' health system for their medical care and treatment, without "leaking" out to other hospitals and health care providers outside of Defendants' health system. Plaintiff characterizes this action as one for breach of his employment contract in retaliation for his unwillingness to comply with Defendants' unlawful directives. As is relevant to the instant motion, Plaintiff asserts a second cause of action pursuant to NYLL §§ 740 and 741 based on Defendants' unlawful retaliation against Plaintiff because they believed that he was responsible for patient leakage.
Plaintiff alleges that in November 2016, Defendants informed the Group that they would be removing the nuclear camera from the Group's office. The Group responded with a detailed written explanation of how this would negatively impact both patient care and office operations and reminded Defendants of their commitment that the nuclear lab remain in their office. In its written explanation, the Group asked for a meeting to further discuss the removal of the nuclear camera. The meeting never occurred. On November 25, 2016, Andrew Rubin ("Rubin"), Vice President, Clinical Affairs and Ambulatory Care of NYU Langone Medical Center, NYU Health Systems, replied in an email, stating, "we can no longer support your nuclear camera. Simply put, the economics of your group are not working ... We have the most leakage from you of any of our ambulatory providers."
In a responsive email to Rubin dated November 27,2016, Plaintiff wrote:
[W]e have been with NYU for four and a half years and throughout that time the feedback we have received has been overwhelmingly positive. There certainly has been no indication of the existence of economic problems of the type that you are suddenly describing ... I am also confused about your statements regarding referral patterns within the NYU network - leakage, as you call it... I do know, however, that, just by way of example, in the [last] two weeks . . . seven of my patients were at NYULMC [NYU Langone Medical Center] for a variety of
services including ablations, valve repairs, TAVR and MV clips, catheters, stents and hospitalization for heart failure. As to referrals within the ambulatory network, I was instrumental in my most important referral sources joining NYU. We continue to share patients as we have for years.
Despite the Group's protest, Defendants removed the nuclear camera from the Group's offices in or about December 2016.
In November 2017, Plaintiff received an email from Rubin that stated," [i]n the past two weeks I have heard of detailed reports where patients from your practice were sent to non-NYU doctors for either a cath [cardiac catheterization] or TAVR... I am perplexed how this could happen. I'm going to schedule a meeting to discuss with you next steps as we are concerned there is a chronic problem here that you have been unwilling to address." In response, Plaintiff wrote:
I am also perplexed because I have no idea what you are referring to . . . The overwhelming majority of my patients are counseled to obtain their advanced care at NYU unless there are individual and significant reasons for the me to go elsewhere ... It would be helpful if you would provide specifics on these 'detailed reports' so that I can respond to your questions and we can have a more productive conversation when we meet.
Still, Plaintiff and Rubin had a productive meeting on December 6, 2017, at which time Plaintiff received permission to hire a nurse practitioner.
In July 2019, Plaintiff received a notice from North Shore University Hospital ("North Shore") requesting a certificate confirming his malpractice insurance coverage. North Shore is not affiliated with NYU Langone Medical Center. In 2019, Defendants renewed Plaintiff's malpractice insurance coverage, as they were contractually obligated to do, but deliberately withheld from North Shore and St. Francis Hospital ("St. Francis") the certificates of insurance that were necessary for Plaintiff and the other physicians in the Group to retain their privileges at those hospitals. Defendants' refusal to provide proof to North Shore and St. Francis that the Group had proper malpractice insurance coverage was intended to force Plaintiff and his colleagues to send their patients to Winthrop Hospital, which Defendants had recently acquired.
Defendants did not provide prior specific notice that they intended to withhold proof of malpractice insurance coverage from North Shore and St. Francis as of July 1, 2019. There had been discussions on one or two occasions during the prior year between members of Rubin's staff and Plaintiff in which Plaintiff was told that Defendants were considering withholding the certificates of malpractice insurance for the Group from North Shore and St. Francis as a means of keeping more patients within Defendants' health system. Defendants also told Plaintiff that this would be a trial step and would not immediately be implemented with other cardiology groups within Defendants' Family Group Practice ("FGP"). Plaintiff pointed out to Defendants that taking this step would damage the Group's practice and violate Centers for Medicare &Medicaid Services ("CMS") regulations. Plaintiff also expressed his concern that in his 2012 letter to his patients announcing his affiliation with NYU, he had promised that his new relationship would not interfere with his ability to serve patients' needs at local hospitals. In response, Plaintiff was told, "things change."
Plaintiff's subsequent receipt of a letter dated October 31, 2019 notifying him that his medical staff privileges at North Shore had been terminated confirmed that Defendants had, in fact, proceeded with their plan to terminate Plaintiff's privileges at North Shore. St. Francis placed Plaintiff's privileges on hold, and they were subsequently reinstated when Plaintiff became affiliated with St. Francis on June 1, 2020. Defendants' failure and refusal to provide the necessary certificate of Plaintiff's malpractice coverage negatively impacted Plaintiff's relationship with patient and referral sources at North Shore and St. Francis and placed Plaintiff at a competitive disadvantage with cardiologists in the FGP.
Meanwhile, on or about September 4,2019, Rubin called Plaintiff and accused him of referring a patient to North Shore for a cardiac catheterization. Plaintiff stated that he had no idea what Rubin was referring to. Rubin persisted, accusing Plaintiff of allowing leakage and giving standing orders to the front desk staff to send patients to North Shore. Plaintiff gave no such orders to the front desk staff or to any employee of the Group. Rubin responded by abruptly informing Plaintiff that the agreement dated March 8, 2016 ("Second Contract"), which was due to end on May 31, 2020, would not be renewed. Defendants' anger at Plaintiff for allegedly causing patient leakage was contrary to both New York and federal law which, with limited exception, prohibits employers of physicians from requiring referrals exclusively to employer-owned or operated facilities for medical care and treatment.
In a letter dated September 10,2019 ("Termination Letter"), Rubin notified Plaintiff that the Second Contract would expire on May 31,2020, and that Plaintiff's employment and his faculty appointment would terminate on that date. The Termination Letter and Defendants' decision not to continue Plaintiffs employment after May 31,2020, was motivated by Defendants' desire to reduce the patient leakage that Defendants attributed to Plaintiff.
RULING OF THE COURT
Defendants' motion to dismiss the second cause of action is granted. Plaintiff clarifies in his opposition papers that his second claim is asserted pursuant to NYLL § 741(2)(b), which prohibits retaliatory action by an employer against an employee because the employee "objects to, or refuses to participate in any activity, policy or practice of the employer or agent that the employee, in good faith, reasonably believes constitutes improper quality of patient care or improper quality of workplace safety." This claim is premised upon Plaintiffs alleged challenge to Defendants' patient retention policy. Plaintiffs failure to satisfy the notice requirement contained in NYLL § 741(3), however, is fatal to his claim.
Section 741(3) provides:
The protection against retaliatory personnel action provided by subdivision two of this section shall not apply unless the employee has brought the improper quality of patient care or improper quality of workplace safety to the attention of a supervisor and has afforded the employer a reasonable opportunity to correct such activity, policy or practice. This subdivision shall not apply to an action or failure to act described in paragraph (a) of subdivision two of this section where the improper quality of patient care or improper quality of workplace safety described therein presents an imminent threat to public health or safety or to the health of a specific patient or specific health care employee and the employee reasonably believes in good faith that reporting to a supervisor would not result in corrective action.
The Complaint, as amplified by Plaintiffs affidavit, does not allege that Plaintiff complained to a supervisor about the patient retention policy. To the contrary, the Complaint alleges that Plaintiff denied Rubin's accusations of patient leakage and advised Rubin that he referred most of his patients within the NYU Langone Health System. Plaintiffs alleged statement to Defendants that withholding his certificates of malpractice from North Shore and St. Francis "would damage the Group's practice and also constitute a violation of CMS (Centers for Medicare &Medicaid Services) regulations since they were essentially using the malpractice coverage as a backdoor means of controlling patient referrals," see Pl. Aff. ¶ 44, does not translate to an objection to the patient retention policy. See also Compl. ¶¶ 95-100.
While Plaintiff contends that he would have likely been terminated had he launched an "all-out challenge" to the patient retention policy, see PL Memo of Law at 12-13, the Court is not persuaded that this matter satisfies an exception to the Section 741(3) notice requirement. As set forth above, Section 741(3) provides an express exception for claims under Section 741(2)(a) where there is an "imminent threat to public health or safety or to the health of a specific patient or specific health care employee and the employee reasonably believes in good faith that reporting to a supervisor would not result in corrective action." Even assuming, arguendo, that such exception applies to Plaintiffs claim under Section 741(2)(b) - a suspect proposition considering that the statute explicitly references subdivision (2)(a) and is silent as to subdivision (2)(b) - the patient retention policy does not constitute an imminent threat to public health or safety, and Plaintiff does not allege an imminent threat to a specific patient or specific health care employee.
The Court is also not persuaded that Plaintiff has established a futility exception as derived from case law. Plaintiff relies on Skelly v. New York City Health &Hosps. Corp., 161 A.D.3d 476 (1st Dept. 2018), in which a former attending physician asserted a Section 741(2)(b) claim alleging that he was terminated because he refused to comply with the defendants' policy or practice of not testing the residential drinking water of patients diagnosed with Legionnaire's disease during an outbreak. The First Department held that the plaintiff sufficiently pled the Section 741(3) notice requirement, as any objections would have been futile because the plaintiffs supervisors directed him to stop testing residential drinking water and to not associate himself with the hospital if he continued testing. The Skelly court noted that while the statute "expressly contemplates an affirmative act of objection to a policy or practice," in the case before it, strict compliance would not further the purpose of the statue. Skelly, 161 A.D.3d at 477. The court also held that "the fact that plaintiff insisted on testing the water despite directives to stop shows that his supervisors were aware, and therefore had notice, of his objection." Id.
The case at bar is factually distinguishable from Skelly on several bases. First, unlike the Skelly plaintiff, who refused to comply with the defendants' policy, Plaintiff, by his own account, endeavored to refer "as many of his patients as feasible within the NYU Langone network." See Pl. Memo in Opp. at 13, n. 9. Defendants' alleged dissatisfaction with the level of Plaintiff s adherence to the patient retention policy does not change the fact that Plaintiff attempted to comply with the policy to the extent professionally and ethically appropriate. Second, in Skelly, the plaintiffs supervisors were aware of his objection to the policy insofar as he insisted on testing the water. Again, here, Plaintiff failed to object to the patient retention policy and instead assured his employers that he was compliant. Finally, while the Skelly court did not reference the express exception contained in Section 741(3), to the extent that exception applies to Section 741(2)(b) claims, the defendants' policy there of refusing to test the residential drinking water of patients diagnosed with Legionnaire's disease during an outbreak appears to present an imminent threat to public safety and/or the health of a particular patient. That is far from the case here.
Another case relied upon by Plaintiff, McCormick v. NYU Langone Med. Ctr., 187 A.D.3d 442,442-43 (1st Dept. 2020), is also distinguishable because that matter addressed a Section 741(2)(a) claim and the court held that the plaintiff had reason to believe that reporting the subject issue to the defendant prior to complaining to the Department of Health would not have resulted in corrective action. Moreover, the trial court held that the plaintiff was excused from the notice requirement pursuant to the express exception set forth in Section 741(3). See McCormick v. NYU Langone Med. Ctr., Index No. 155468/2016, 2019 WL 6467581, at *2-3 (Sup. Ct. N.Y. Cty. Dec. 2, 2019). Indeed, the McCormick plaintiff reported her supervisor's use of a contaminated injector module to the Department of Health, and testified that the subject incident was the third time in the previous ten days that her supervisor endangered a patient's health by misusing life-sustaining equipment. See id.
Defendants' motion for attorneys' fees and costs pursuant to NYLL § 740(6) is denied. Section 740(6) provides that "[a] court, in its discretion, may also order that reasonable attorneys' fees and court costs and disbursements be awarded to an employer if the court determines that an action brought by an employee under this section was without basis in law or in fact." Given the complexity surrounding Section 741 - and the notice requirement in particular - Plaintiffs second cause of action does not rise to the level of frivolity that would warrant an award of attorneys' fees and costs pursuant to Section 740(6).
CONCLUSION
Defendants' motion to dismiss is granted in part and denied in part. Defendants' motion to dismiss the second cause of action is granted and Defendants' motion for counsel fees and costs is denied. The parties are reminded of the conference scheduled for September 10, 2021 at 10:00 a.m.
All matters not decided herein are hereby denied. This constitutes the decision and order of the Court.