The New Jersey Appellate Division recently articulated important limitations on whistleblower lawsuits under the Conscientious Employee Protection Act (CEPA) when it overturned a jury award in favor of a nurse who claimed that her employer engaged in improper patient care. The court ruled that the employee could not prove his case because his complaints were based on a code of ethics that applied to him but not his employer.
The plaintiff, James Hitesman, worked as a registered nurse for
Bridgeway Care Center, a long-term nursing care facility. In
January 2008, he sent emails to various management personnel at the
facility, complaining of what he described as a spreading epidemic
among patients. When the nursing home did not respond to
Hitesman's satisfaction, he contacted various boards of health,
using fictitious names, and raised similar concerns. He later
contacted a local news agency to report the "untreated
epidemic." Hitesman even provided a reporter with
administrative logs from the facility, containing confidential
patient information that he failed to completely redact. Bridgeway
then met with Hitesman again, at which point he admitted to
contacting government agencies and the news media outlet and to
releasing the administrative logs.
Bridgeway terminated Hitesman a few days later for his violation of
patient privacy rights. Hitesman sued under CEPA, claiming that he
reasonably believed Bridgeway was engaging in improper patient
care, in violation of the American Nurses Association (ANA) code of
ethics, Bridgeway's own employee handbook, and a bill of rights
that Bridgeway provides to its patients.
Following a trial on his claims, a jury found in favor of Hitesman.
On appeal, the Appellate Division noted that Hitesman's mere
disagreement with the care patients received did not establish a
violation under CEPA. Additionally, Hitesman's broad references
to the ANA code of ethics did not suffice since the code applied to
him and not the facility. Thus, the court held that the code could
inform whether Hitesman acted appropriately but not whether
Bridgeway did. The court also found that, as a matter of law,
Hitesman could not rely upon the company's internal handbook or
patients' bill of rights to establish his CEPA claim
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