USA – MASSACHUSETTS Trends and Developments Contributed by: William C. Martucci, Stephen I. Hansen, Lisa O. White and Brandon L. Arber, Shook, Hardy & Bacon LLP
tion Hospital to transport a patient experiencing an altered mental status to a hospital. Luu alleged that he was the driver of the ambulance and observed his partner EMT on his cell phone and neglecting the care of the patient during the transportation. Upon arriv- al to the hospital, Luu identified a new hemorrhage injury on the patient’s arm that he believed to be the result of his partner EMT’s conduct. Luu collected cell phone photographs and video of the arm injury. He initially reported the incident to his field supervisor, but in the 30 days following his report Luu claimed he experienced a change in job duties and received no response to his report. Luu alleged he was later instructed to delete the photographs and video in his possession by his company officer; instead, he filed a report with OEMS. Luu was terminated for failing to delete the photos in violation of company policy. Luu filed a lawsuit in the Superior Court alleging a whistle-blower violation, wrongful termination in viola- tion of public policy, and negligent infliction of emo - tional distress. In his pleading, Luu referenced G.L. c. 149, 185 (b) (3), a provision which only applies to governmental entities. In response to the defendants’ motion for judgment on the pleadings, the Court issued an order dismissing Luu’s claims. In a motion for relief from judgment, Luu cited G.L. c. 149, 187, a statute that prohibits retaliation against whistle-blowers in a medical context, suggesting that his complaint could be amended to re-label the whistle-blower count. The judge denied the motion and an appeal followed.
On appeal, the parties disagreed if Luu, as an EMT, met the statutory definition of “health care provider” entitled to whistle-blower protections. The Appeals Court determined that Luu fell squarely within the defi - nition that included in its scope “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.” The Appeals Court distinguished Perez v Bay State Ambulance & Hosp. Rental Serv., Inc. , a ruling by the Supreme Judicial Court that the Medical Malpractice Tribunal Statute, G.L. c. 231, 60B, excluded EMTs because it did not specifically enumerate EMTs within its list of “providers of health care”. The Appeals Court noted that the two statutes had different purposes: one to enact medical tribunals to guarantee the continued availability of medical malpractice insurance and the other to safeguard patient care by protecting the rights of healthcare providers who expose deficien - cies in care. The more expansive language used in the provisions of the Whistleblower Statute make sense in light of that Statute’s purpose. Accordingly, the Appeals Court reversed the dismissal of whistle- blower claim, notwithstanding Luu’s error in initially pleading the wrong statute. The Appeals Court did, however, affirm dismissal of Luu’s wrongful termina - tion and emotional distress claims.
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