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Kaplan v. Blue Hill Memorial Hospital

United States District Court, D. Maine

November 28, 2014

MICHELLE R. KAPLAN, et al., Plaintiffs,


JOHN C. NIVISON, Magistrate Judge.

In this action, Plaintiffs Michelle and Mark Kaplan allege retaliatory discharge and other related claims related to their employment with Defendant Blue Hill Memorial Hospital. The matter is before the Court on Defendant's Motion to Dismiss (ECF No. 4).[1]

In response to Defendant's Motion, Plaintiffs filed an Amended Complaint by which amendment Plaintiffs withdrew certain claims, and asserted additional facts in support of their other claims. Following a review of the pleadings, and after consideration of the parties' arguments, as explained below, the recommendation is that the Court deny Defendant's Motion.


The facts set forth herein are derived from Plaintiffs' Amended Complaint, which facts are deemed true when evaluating the Motion to Dismiss.[2] Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 16 (1st Cir. 1998).

Plaintiffs Michelle and Mark Kaplan are married and reside in Ellsworth, Maine. Michelle Kaplan, a physician assistant, and Mark Kaplan, a physician, are former employees of Defendant Blue Hill Memorial Hospital (BHMH). Plaintiffs assert federal question jurisdiction (28 U.S.C. § 1331) based on whistleblower retaliation claims under the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd (count I), and supplemental jurisdiction (28 U.S.C. § 1367) for state law claims of whistleblower retaliation (count II), fraud (count III), negligent misrepresentation (count IV), intentional interference with economic advantage (count V), and defamation (count VI).

Allegations particular to Michelle Kaplan

Michelle Kaplan accepted employment and began working for BHMH in February 2011. (Am. Compl. ¶ 12.) During her interview and subsequently, BHMH represented to Michelle Kaplan that BHMH would continue to employ physician assistants in the emergency room and that BHMH would not eliminate the position in order to hire licensed physicians. ( Id. ¶ 13.) Michelle Kaplan relied on these representations when she accepted BHMH's offer of employment and during employment with BHMH. Her reliance included leaving her employment at Maine General Medical Center, declining employment offers at Calais Regional Hospital and Community Health and Counseling Services, selling her home at a financial loss, relocating her family to Blue Hill, and investing time and effort to become credentialed at BHMH. ( Id. ¶ 17.)

In May 2012, BHMH's Vice President of Clinical Services, John Ronan, informed the physician assistants employed at BHMH, including Michelle Kaplan, that BHMH would transition to physician-only coverage of the emergency room through attrition only and that none of the physician assistants would be terminated as employees of BHMH. ( Id. ¶ 16.) Nevertheless, on August 15, 2012, BHMH informed Michelle Kaplan that BHMH was terminating her employment because licensed physicians were to replace physician assistants in the BHMH emergency room. ( Id. ¶ 18.) Mr. Ronan later informed Michelle Kaplan that the change was based on recommendations that BHMH received from a consultant, the Studer Group. ( Id. ¶ 19.) Michelle Kaplan alleges that BHMH commissioned and received this recommendation prior to her acceptance of employment. ( Id. ¶ 14.)

Throughout her employment with BHMH, Michelle Kaplan informed BHMH of various practices that she believed to be in violation of EMTALA, or to present safety risks for patients. ( Id. ¶ 20.) In addition, she documented in patient charts between 200 and 300 separate EMTALA violations. ( Id. ¶ 21.)[3] Michelle Kaplan regularly notified Mr. Ronan and BHMH's Emergency Room Director, Dr. Joseph Babbitt, that the hospital's care did not comply with EMTALA. Her concerns included situations in which physicians or other "hospitalists" failed to see patients timely. ( Id. ¶¶ 23-25.) On more than one occasion, she also reported to Dr. Babbitt at staff meetings that some specialists refused to transfer patients pending further diagnostic tests. ( Id. ¶ 26.)

Allegations particular to Dr. Mark Kaplan

In July 2011, BHMH hired Mark Kaplan as an emergency room physician and granted him staff privileges. ( Id. ¶¶ 28, 30.) While he was employed at BHMH, Dr. Kaplan notified hospital management of various practices that he believed to be in violation of EMTALA, or to present safety risks for patients. ( Id. ¶ 31.) In May or June 2012, Dr. Kaplan reported to Mr. Ronan and Dr. Babbitt that surgeons employed by BHMH were inappropriately authorizing the transfer of patients to other health care facilities ("dumping"), in violation of EMTALA. ( Id. ¶ 32.) Dr. Kaplan also reported to Mr. Ronan and Dr. Babbitt other objectionable acts by hospitalists who were asked to evaluate emergency room patients. Among the reported acts were the failure to see patients timely, and refusing to admit patients promptly. ( Id. ¶ 33.) In August or September 2012, Mr. Ronan and Dr. Babbitt instructed Dr. Kaplan to supplement a medical record and to conduct an examination of a patient under conditions that violate EMTALA. ( Id. ¶ 36.)

In or about September 2012, Dr. Kaplan reported to BHMH's administration that Mr. Ronan had forbidden the emergency room to provide the specialist on-call list to the local ambulance service. Because of the failure to provide the list, ambulance attendants brought patients to BHMH's emergency room despite the fact that the necessary specialist was not available. As a result, patients would be transferred later from BHMH's hospital to another facility that had the proper coverage, allegedly in violation of EMTALA. ( Id. ¶ 38.) In particular, Dr. Kaplan raised an EMTALA stabilization issue with Dr. Babbitt after a patient who was seen in the emergency room and diagnosed with an abdominal aortic aneurysm rupture was not transferred timely. (Id. ¶ 40.)

Dr. Babbitt, allegedly with bad faith and malice, cited Dr. Kaplan for being "manipulative" when Dr. Kaplan sought the admission of a patient who was complaining of chest pain and shortness of breath. The hospitalist had refused to see the patient in the emergency room, resulting in a delay in the screening and stabilization of the patient. ( Id. ¶ 41.)

On or about October 25, 2012, BHMH reappointed Dr. Kaplan to the medical staff after a review of his credentials. ( Id. ¶ 43.) The next day BHMH issued a letter of reprimand to Dr. Kaplan, which letter was issued in contravention of the bylaws. ( Id. ¶¶ 44-45.)

According to Plaintiffs, on January 29, 2013, BHMH terminated Dr. Kaplan's employment contract, without cause, and later removed Dr. Kaplan from the active medical staff roster without due process. ( Id. ¶ 48.) In February 2013, Dr. Kaplan received a job offer and was in the process of obtaining credentials to practice at the Houlton Regional Hospital as an Emergency Room physician ( Id. ¶ 49.); was working in the emergency room at Maine Coast Memorial Hospital ( Id. ¶ 50); was working as an emergency physician for ER Locum Tenens ( Id. ); and received an offer of employment at the Togus Veterans Hospital in Augusta. ( Id. ¶ 51.) Plaintiffs maintain that these employers or prospective employers stopped their credentialing processes and withdrew their job offers because BHMH intentionally refused to provide information to them regarding Dr. Kaplan's medical knowledge and professional capabilities. ( Id. ¶ 52.)

Plaintiffs contend that in February 2013, in retaliation for their report of the safety concerns and EMTALA violations, BHMH undertook professional review action against Dr. Kaplan in an attempt to revoke his medical staff privileges. ( Id. ¶ 53.) During the review, BHMH did not follow the procedure set forth in its medical staff bylaws; failed to make a reasonable effort to develop the facts; failed to provide adequate notice and hearing; acted in the absence of a reasonable belief that the action was ...

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