Romeka v. RadAmerica II, LLC

485 Md. 307

301 A.3d 26

Bridget ROMEKA v. RADAMERICA II, LLC, et al.

No. 16, Sept. Term, 2022

Supreme Court of Maryland. *

August 30, 2023

Argued by Hayley Hahn, Murnaghan Appellate Advocacy Fellow (Public Justice Center, Baltimore, MD), on brief, for Petitioner.

Argued by Jennifer L. Curry and Alison C. Schurick (Baker Donelson Bearman Caldwell & Berkowitz, PC, Baltimore, MD), on brief, for Respondents.

Argued before: Fader, C.J., Watts, Hotten, Booth, Gould, Eaves, Robert N. McDonald (Senior Judge, Specially Assigned), JJ.

Gould, J.

This case arises from the termination of employment of petitioner Bridget Romeka by respondents RadAmerica II, LLC ("RadAmerica"), MedStar Health, Inc. ("MedStar"), and Helixcare Medical Group, LLC ("Helixcare," and together with RadAmerica and MedStar, "Employer"). Ms. Romeka alleged that her termination violated the Maryland Health Care Worker Whistleblower Protection Act (the "HCWWPA" or the "Act"), Md. Code Ann., Health Occ. ("HO") §§ 1-501 through 1-506 (1981, 2021 Repl. Vol.), a statutory scheme that protects employees in healthcare settings against adverse employment consequences from raising health and safety concerns in the workplace.

The circuit court granted Employer's motion for summary judgment, finding that the undisputed facts established that Employer terminated Ms. Romeka on other, non-pretextual grounds. The Appellate Court of Maryland ¹ affirmed in a reported decision. Romeka v. RadAmerica II, LLC , 254 Md. App. 414, 274 A.3d 451 (2022).

We granted Ms. Romeka's petition for a writ of certiorari. Romeka v. RadAmerica II, LLC , 481 Md. 1, 281 A.3d 718 (2022). Ms. Romeka presents two questions for our review:

1. Did the lower court err by requiring a plaintiff with a retaliation claim under the HCWWPA to show that protected conduct was the but-for cause of the challenged personnel action?

2. Did the lower courts err in awarding summary judgment to the employer, despite genuine disputes of material fact, on the ground that Ms. Romeka could not establish her retaliation claim as a matter of law?

We answer both questions in the negative and affirm the judgment of the Appellate Court.

FACTUAL AND PROCEDURAL BACKGROUND

RadAmerica is a wholly owned subsidiary of MedStar. RadAmerica contracted with Mercy Medical Center, Inc. ("Mercy"), to supply Mercy with medical physicists and radiation therapists for its Radiation Oncology Center (the "ROC"). In the ROC, RadAmerica employees worked with Mercy's physicians and employees. In 2001, RadAmerica hired Ms. Romeka as a radiation therapist and promoted her to Chief Radiation Therapist in October 2003. ² As Chief Radiation Therapist, she supervised three radiation therapists at the ROC: Scott Blackburn, Fabjola Cangonji, and Heather Gilliam.

Ms. Romeka's direct supervisor was Christopher Osik, the Technical Director of RadAmerica who oversaw radiation therapy services at the ROC and six other offices. Mr. Osik's manager was Dr. Coleman Rosen, RadAmerica's Vice President of Technology Management. Dr. Fritz Lerma was RadAmerica's Chief Medical Physicist for the ROC. He was responsible for maintaining the calibration of the equipment in the ROC for stereotactic radiosurgery ("SRS") treatments.

Dr. Maria Jacobs was the medical director of the radiation oncology unit at Mercy. Dr. Jacobs planned and oversaw all radiation therapy treatments administered at the ROC and, in that capacity, worked with Ms. Romeka.

Radiation treatment was delivered at the ROC by a machine manufactured by Varian, Inc. ("Varian"), called the TrueBeam. The TrueBeam was used to provide SRS treatments to patients with cancer in the head, neck, lung, breast, prostate, and liver. The TrueBeam had three essential parts: (1) the linear accelerator; (2) the imaging system; and (3) the treatment couch.

Before treating a patient, the radiation therapist was required to make sure the necessary documents were in the patient's chart, which was kept in an electronic medical record ("EMR"). Such documents included a written consent form signed by the patient, a physician, and a witness. The radiation therapist was not permitted to deliver radiation treatment to the patient without a completed and scanned consent form.

Initial Investigations

On May 2, 2018, after learning of two problems related to Ms. Romeka's job performance, Dr. Rosen and Mr. Osik began investigating Ms. Romeka's conduct. The first problem came to light when, in April 2018, a routine peer review of randomly selected EMRs of ROC patients revealed that a patient had received treatment even though the EMR file lacked a completed and signed consent form. Ms. Romeka had administered the treatment in that case. After she was confronted about the missing document, she accessed the patient's EMR, and, without consulting anyone, falsely marked "Y" (Yes) in the patient's first weekly chart check, indicating that the consent form had been signed and scanned into the EMR before treatment began. She also backdated the patient's first weekly chart assessment and marked it as complete.

Shortly after she accessed the patient's EMR, Ms. Romeka notified Dr. Jacobs that she had administered treatment to a patient without the requisite consent form in the patient's EMR. When Mr. Osik later learned of this, he requested that Ms. Romeka submit a report in MedStar's patient safety event system, which Ms. Romeka did. No consent form was ever found.

The second problem arose from a complaint from a radiation therapist on Ms. Romeka's team, Mr. Blackburn. On May 1, Mr. Blackburn complained to Mr. Osik about Ms. Romeka's treatment of him and the rest of the team. According to Mr. Blackburn, Ms. Romeka was bullying the radiation therapists, failing to train them, and blaming her mistakes on other people. He also claimed that she did not understand the "basic concepts of radiation treatment" and was disrespectful to the ROC medical staff. Mr. Blackburn said that all three radiation therapists under Ms. Romeka's supervision were prepared to resign unless she was removed as their supervisor.

On May 2, Dr. Rosen and Mr. Osik interviewed the two other radiation therapists as well as Dr. Jacobs, Dr. Lerma, and Ms. Romeka. According to Dr. Rosen's notes, the two other radiation therapists confirmed that they were "willing to resign rather than put up with [Ms. Romeka] any longer." Other co-workers gave similar criticisms of Ms. Romeka's conduct to Dr. Rosen and Mr. Osik.

Dr. Jacobs also complained to Mr. Osik about Ms. Romeka's job performance, describing her work as sloppy and rushed. Dr. Jacobs stated that, for the past two years, Ms. Romeka had been "antagonistic." She described Ms. Romeka as "displaying signs of paranoia," "toxic," "slopp[y]", "rush[ed]," and "disrespectful." She also expressed concern about Ms. Romeka's handling of the missing patient consent form and indicated that she thought that Ms. Romeka had not taken the problem seriously enough. Dr. Jacobs also recounted incidents of Ms. Romeka's poor job performance and altercations with co-workers. She asked for Ms. Romeka to be removed from her staff. Mr. Osik described his interview with Dr. Jacobs as having set in motion Ms. Romeka's termination.

When Dr. Lerma was interviewed by Dr. Rosen, he said that he had been questioning Ms. Romeka's competency as a radiation therapist. He recounted that he once had to intervene after Ms. Romeka had set up the TrueBeam in a way that could have harmed a patient. According to Dr. Lerma, Ms. Romeka "did not know what she was doing," was rude to staff and physicians, was "difficult to speak with, always in a hurry, and [did] not wish to engage in conversation." When Ms. Romeka was interviewed by Dr. Rosen, she acknowledged that she had yelled at nurses in the ROC.

On May 10, Dr. Rosen and Mr. Osik decided that Ms. Romeka should be terminated and that a lesser form of discipline, such as a transfer to another facility, was not an option because she had falsified medical records.

As a subsidiary of MedStar, RadAmerica followed MedStar's personnel policies, which required an independent investigation by MedStar's human resources ("HR") department to confirm a decision to terminate an employee. Accordingly, on May 10, Dr. Rosen contacted Wendy Greer of MedStar's HR department. He told her about his investigation and asked her to perform her own. Dr. Rosen testified in his deposition that "prior to HR getting involved, [he] and Mr. Osik were already leaning in the direction of termination, but [he] needed HR to get involved to confirm that decision." Ms. Greer stated in an affidavit that "[t]he decision to terminate Ms. Romeka had been made by Dr. Rosen and Mr. Osik on May 10, 2018."

Other Job Performance Problems

On both May 10 and 11, Dr. Lerma witnessed Ms. Romeka engage in conduct that he thought created patient safety issues. Ms. Romeka had been rushing SRS treatments and moving parts of the TrueBeam in a way that compromised patient safety. Dr. Lerma testified that he told Ms. Romeka that "she was not delivering safe radiosurgery treatments." He sent an email to Dr. Rosen which stated: "This new situation is a signaling at a significant safety risk. As chief physicist, I am writing to request to remove Ms. Romeka from treating on the [TrueBeam] until this can be further investigated as to the root cause of why she is rushing treatments."

On May 14, Dr. Rosen forwarded Dr. Lerma's email to the President of RadAmerica, David Spearman. Dr. Rosen informed Mr. Spearman that he and Dr. Lerma had spoken in the morning and that Dr. Lerma would be meeting with Ms. Greer later that day. Separately, Dr. Lerma asked Dr. Jacobs whether he could bar Ms. Romeka from participating in treatment if he thought that was necessary. She authorized Dr. Lerma to do so.

On May 16, another issue surfaced regarding Ms. Romeka's previous falsified medical record. Mr. Osik learned that the Patient Safety Event Report about the...