Personal Injury Litigation

Philadelphia, Pennsylvania, New Jersey and New York

By Zack Needles The Legal Intelligencer December 30, 2010

Appeals Panel OKs Suit Over Hospital Executive's Ouster

Judge Arnold New	Tom Kline

The state Superior Court has upheld a Philadelphia trial judge's ruling that a hospital executive who has alleged he was fired for filing a medical malpractice suit against his employer over his infant son's care may also be able to sue for wrongful discharge despite Pennsylvania's at-will employment doctrine.

The court did, however, reverse the trial judge's ruling that the plaintiff may be able to recover for tortious interference with an employment contract that is terminable at will.

In a non-precedential memorandum opinion in the apparent case of first impression, a three-judge panel — Judges Susan Peikes Gantman, Jacqueline O. Shogan and Sally Updyke Mundy — found that Philadelphia Common Pleas Judge Arnold L. New was right to reject the defendants' preliminary objections in the nature of a demurrer to the plaintiff's wrongful termination claims.

The court said in its opinion that "doubt exists as to whether appellants' demurrer to appellee's claim of wrongful termination of at-will employment in violation of public policy should have been sustained."

"Thus, we resolve that doubt in favor of overruling the preliminary objections," the court said, adding that it had adopted New's reasoning with regard to the issue.

The panel was, however, split 2-1 with regard to the tortious interference claim, with Mundy dissenting on that issue.

In a Nov. 5, 2009, opinion setting out his reasoning for his decision, New said that no Pennsylvania court had yet determined if there is a public policy exception to the at-will doctrine that would bar the termination of an employee when an employee is suing an employer to protect the rights of his or her child.

"A good faith argument has alleged that [plaintiff Richard D.] Haun's dismissal violated public policy," New wrote. "His termination, for assisting his son in seeking compensation to which he has a legal right, violated a mandate of public policy since there are recognized public policies which support each aspect of Haun's claim.

"Public policy favors allowing the victims of medical malpractice to seek adequate compensation. Public policy also favors parents asserting legal claims on behalf of their children."

New said he was justified in rejecting the defendants' preliminary objection to the plaintiff's wrongful termination claims because the defendants in Haun v. Community Health Systems Inc. have not shown their demurrers could be sustained without doubt. The judge said there might be a public policy exception for suing an employer to protect the rights of an employee's child.

Plaintiff Richard D. Haun was Phoenixville Hospital's chief financial officer from June 2007 until being fired Nov. 12, 2008, for bringing a medical malpractice claim on behalf of his son, according to New's opinion.

Haun's wife, Theresa, gave birth to twins, a boy and a girl, at Phoenixville Hospital Aug. 23, 2007, New said. The twins were born prematurely and taken to the neonatal intensive care unit. While in the unit, Drake Haun, the boy, was disconnected from an IV line, leading to extensive blood loss that caused "severe and irreversible injury" to his nervous system, New wrote.

The Hauns filed a medical malpractice suit against Phoenixville Hospital, which defendant Community Health Systems Inc. owns, as well as doctors and nurses who had taken care of Drake at the hospital, New said. During a meeting with Steven Tullman, chief executive officer of Phoenixville Hospital, and Grant Hoffman, the hospital's human resources director, Nov. 12, 2008, Haun was told he was being fired because he was "'an adversary of the company and it's too much risk,'" according to New's opinion.

Haun was immediately escorted from the building and was not allowed to collect his personal possessions, according to New.

While Pennsylvania is an at-will employment state, New wrote, employees can pursue a wrongful termination claim if their discharge violates a clear mandate of public policy. Since the case was decided just on papers and Phoenixville Hospital has not yet had the opportunity to give a reason to support its decision to fire Haun, the judge wrote he had to focus solely on the public policy threatened by Haun's discharge.

New noted that in the 1998 decision in Shick v. Shirey the state Supreme Court recognized a public policy exception to the at-will doctrine when employees exercised their rights to sue over their workers' compensation. And in the 1995 decision in Highhouse v. Avery Transportation , the state Superior Court found another public policy exception to the at-will doctrine for employees seeking unemployment compensation, New said.

New also said he was justified in rejecting the defendants' preliminary objection to Haun's tortious interference with contract claim because the defendants had not shown their demurrer should be sustained without doubt and that the law is unclear as to whether a plaintiff can recover for a claim of tortious interference with an employment contract that is terminable at will.

But the Superior Court said it ruled in the 1998 case Hennessy v. Santiago that an at-will employee may not sue a third-party for tortious interference with an existing at-will employment contract, finding in that case that "an action for intentional interference with performance of a contract in the employment context applies only to interference with a prospective employment relationship whether at-will or not, not a presently existing at-will employment relationship."

In light of Hennessy, Phoenixville Hospital's preliminary objections have merit and must be sustained, the court said.

Mundy, however, said the Hennessy decision contradicts the Superior Court's 1990 ruling in Curran v. Children's Service Center , which refers to Comment G of Section 766 of the Restatement (Second) of Torts.

According to Mundy, Comment G says an employer may not interfere with an existing contract terminable at will.

Haun's attorney, Tom Kline of Kline & Specter in Philadelphia, said in an e-mailed statement that "CHS illegally fired Richard Haun after he initiated a lawsuit on his son's behalf."

"This was, pure and simply, his parental obligation to his brain injured son," he said.

Kline, whose co-counsel in the case is Chip Becker, also of Kline & Specter, said the attorneys and their client are "now prepared to move forward expeditiously with the case in the trial court."

Community Health System's attorney, Sidney R. Steinberg of Post & Schell in Philadelphia, could not be reached for comment.

Steinberg writes an employment law column for The Legal .