A hospital lawfully discontinued the services of a physician who complained about overcrowded emergency room conditions, a federal appeals court found in Genova v. Banner Health; et al., No. 12-1314 (10th Cir. August 20, 2013), rejecting the physician’s claims that the hospital and its administrator violated the federal Emergency Medical Treatment and Active Labor Act (“EMTALA”) and Colorado state law by discontinuing his services.

The hospital discontinued the physician’s services after he called a hospital administrator insisting that the hospital’s emergency room was too busy and that patients should be diverted to other hospitals.  The administrator consulted with another physician on duty in the emergency room that night who reported that it was busy, but that the hospital could handle the workload.  Citing the first physician’s unprofessional manner on this and other occasions, the administrator decided to discontinue the physician’s services.

The physician sued the hospital and the administrator in federal district court alleging that by discontinuing his services for reporting overcrowded emergency room conditions, they had violated EMTALA and state law.  The district court granted the hospital and the administrator summary judgment and the physician appealed to the Tenth Circuit. 

The Tenth Circuit explained that the basic statutory point of EMTALA is that a hospital cannot “dump” a patient requiring emergency care on another hospital when there is no medical justification for doing so.  The whistleblower provisions of EMTALA protect certain persons who refuse to transfer a patient with an emergency medical condition who has not been stabilized or who report a violation of EMTALA.  The Tenth Circuit noted that in this case, instead of complaining that he was retaliated against for refusing to transfer a patient, the physician wanted to send patients elsewhere and instead of complaining about patient dumping, he complained about patient hoarding.  Since neither scenario is protected by EMTALA’s whistleblower provisions, the Tenth Circuit affirmed the dismissal of the EMTALA claims.

The Tenth Circuit also affirmed the dismissal of the state law claims, finding the physician had released these claims.  The physician’s contract with the hospital included a provision releasing the hospital from any liability connected with the termination of his medical staff membership and clinical privileges.  The Tenth Circuit found this release barred the physician’s state law claims.  The Tenth Circuit also rejected the physician’s claim that enforcing the release would violate Colorado public policy because the physician failed to identify any Colorado statute, administrative regulation, or ethical code clearly mandating the reporting of patient overcrowding.

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Photo of Michael R. Bertoncini Michael R. Bertoncini

Michael R. Bertoncini is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He practices labor and employment law, with a particular emphasis on labor relations, employment law counseling and litigation, and data privacy and security law.

In labor relations matters…

Michael R. Bertoncini is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He practices labor and employment law, with a particular emphasis on labor relations, employment law counseling and litigation, and data privacy and security law.

In labor relations matters, he regularly counsels clients on the practice of positive employee relations, negotiates collective bargaining agreements on behalf of organized clients, represents clients in labor arbitrations and National Labor Relations Board proceedings, and counsels clients with respect to rights and obligations under collective bargaining agreements and applicable labor and employment laws. He also has extensive experience in advising organizations responding to corporate campaigns and negotiating neutrality agreements.

Mr. Bertoncini’s privacy and data security practice focuses on advising clients on complying with HIPAA and other state and federal privacy and data security laws. He regularly reviews and develops policies and procedures, written information security plans and integrated compliance programs to assist clients in meeting their obligations under privacy and data security laws. Mr. Bertoncini has represented clients in investigations of alleged data breaches and advises them on their reporting obligations in the event of a data breach. He also conducts workplace training programs on HIPAA compliance and related privacy and data security topics.

Before joining Jackson Lewis, Mr. Bertoncini was Deputy General Counsel for a hospital system that is the largest fully integrated community care organization in New England. He was responsible for all of the system’s labor and employment law matters, and was involved in its acquisition by a private equity firm as well as its growth from six to ten hospitals in a twelve-month period. His three years as in-house counsel for this large health care system give Mr. Bertoncini a keen understanding of the impact of labor and employment law issues on clients’ business operations.

In addition to his labor relations and privacy experience, Mr. Bertoncini has extensive experience in conducting internal investigations and counseling clients on whistleblower and retaliation matters, as well as negotiating executive agreements, both employment and separation agreements. Mr. Bertoncini also represents clients in the litigation of employment matters. His litigation experience includes matters before federal and state courts and administrative agencies. He has appeared before United States Courts of Appeals and District Courts, Massachusetts and New York state courts, the Equal Employment Opportunity Commission, and the Massachusetts Commission Against Discrimination.

Mr. Bertoncini is a frequent speaker and trainer on labor and employment law topics for various organizations including Massachusetts Continuing Legal Education, Council on Education in Management, Lorman Education Services, the Boston Bar Association, and several chambers of commerce.

While attending Boston College, he received the John A. McCarthy, SJ Award for the most distinguished Scholar of the College thesis.