Law360 (May 28, 2024, 10:32 PM EDT) — A Pennsylvania Superior Court panel on Tuesday tossed a suit accusing a hospital of wrongfully firing a nurse practitioner who refused to be vaccinated against COVID-19, saying the nurse can’t invoke the state’s medical malpractice statute in a wrongful termination suit.

The three-judge panel, Pa Superior Court Justices, Judge Victor P. Stabile, Judge Maria McLaughlin and  Judge James G. Colins, affirmed a Philadelphia County trial court’s dismissal of an employment suit filed by Cynthia Deasey, who worked for Holy Redeemer Health System Inc.’s private cancer center, accusing the hospital of wrongfully firing her because she declined to be vaccinated for the coronavirus after being denied a religious exemption.

The suit, which also brought claims of employment discrimination and emotional distress allegations, also named the hospital’s head of human resources, Joseph Cassidy, and the chief medical officer, Dr. Hank Unger.

The trial court had initially tossed the suit wholesale but following Deasey’s motion for reconsideration, it changed the dismissal of the discrimination claims from with prejudice to without prejudice.

On appeal, Deasey contended that Judge Daniel J. Anders erred by tossing her claims of wrongful termination.

The panel disagreed Tuesday, shutting down Deasey’s argument that certain policies under the Pennsylvania Constitution, the Medical Care Availability and Reduction of Error Act, and the Pennsylvania Patient’s Bill of Rights state that firing someone for refusing a vaccine is unlawful.

“We agree with the trial court that Deasey did not sufficiently plead her claims of wrongful termination because, as a matter of law, none of the public policies established within the above authorities are violated by the manner in which appellees terminated her employment,” the panel said.

The appeals court said that “the general rule in Pennsylvania is that ‘there is no common law cause of action against an employer for termination’ of an at-will employee.”

While there are exceptions to this rule, the panel said, they are only granted “in the most limited of circumstances,” and Deasey’s situation does not pass muster. Invoking the state Constitution doesn’t fly because inherent rights and freedoms only apply as a bar to government action, not private employers, according to the opinion.

“Deasey has even made it clear that ‘no allegation of state action has been made,'” the panel said. “Accordingly, Deasey cannot rely on the public policies embodied by any sections of Article I of the Pennsylvania Constitution to support her claims against private parties with whom she is engaged in an at-will employment relationship.”

Similarly, the Patient’s Bill of Rights and MCARE “are plainly inapplicable to the facts at hand,” the judges added.

“MCARE and the Patient’s Bill of Rights speak to the minimum standards of medical care and confidentiality that must be afforded to a patient by a medical provider,” the panel said. “The relationship between Deasey and appellees was that of an employer and an at-will employee. There is no suggestion anywhere in the language of MCARE or the Patient’s Bill of Rights that the legislature sought to curb the ability of a private employer from requiring an at-will employee to receive a vaccination.”

Counsel for the parties did not immediately respond to requests for comment Tuesday.

Judges Victor P. Stabile, Maria McLaughlin and James Gardner Colins sat on the panel for the Superior Court.
Deasey is represented by Steven F. Marino, Esquire of Marino Associates PC.
The case is Cynthia Deasey v. Holy Redeemer Health System Inc. et al., case number 2398 EDA 2022, in the Superior Court of Pennsylvania.

If you or someone you know believes you have been wrongfully terminated from employment, Marino Associates can help.  Use the free case evaluation form  or call 215-462-3200 to speak to one of our expert attorneys who will give you immediate answers to important questions.

The theories of liability presented in this case on behalf of our client Cynthia Deasey are as follows:

1. Religious Discrimination
   • Adverse job consequence predicated upon plaintiff’s decision not to  undergo COVID-19 vaccination upon the basis of religious freedom;
   • Plaintiff submitted a request that she be exempted from COVID-19 vaccination upon the basis of religious freedom;
   • Employer declined granting plaintiff religious exemption  request without explanation and terminated plaintiff’s  employment;
   • Pennsylvania Human Relations Act (PHRA).  This state law prohibits discrimination based on race, color, religious creed, ancestry, age, sex, pregnancy/childbirth, national origin, familial status, and disability in employment, housing, commercial property, education, and public accommodations. It also created the Pennsylvania Human Relations Commission (PHRC) to enforce these laws.

1. Wrongful Termination – Against Pa. Public Policy  and Employer’s policy.
   • Religious Discrimination;
   • Right to Personal Autonomy – The right to be free from bodily invasion;
   • Judicial Estoppel.  Holy Redeemer operates under a policy which prohibits discrimination on the basis of religion and therefore by firing our client for not taking the Covid-19 shot has asserted actions specifically contrary to its own policy.

The right to refuse medical treatment has deep roots in our common law. More than a century ago, the United States Supreme Court recognized that “no right is held more  sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person . . . .” Union Pacific Railway  Co. v. Botsford, 141 U.S. 250, 251, 11 S. Ct. 1000, 1001, 35 L. Ed. 734 (1891).

We The People have the Right of Privacy and the Right of Independence in making certain kinds of important decisions.

“There is no longer any question that the United States Constitution provides protection for an individual’s right of privacy. . . . At least two distinct types of privacy interests have been recognized. ‘One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions.’. . .  Whalen, 429 U.S. at 599-600, 97 S.Ct. at 876-877 (footnote omitted).  This court has recognized these same interests under the Pennsylvania Constitution.”

Informed Consent

Pennsylvania’s common-law lack of informed consent doctrine is grounded in a tort theory of battery. Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966). The principles of law applicable to an action under this tort are that where a patient is mentally and physically able to consult about his or her condition, the informed consent of the patient is a prerequisite to a surgical operation by his or her physician and an operation without the patient’s consent is a technical assault. Moure v. Raeuchle, 529 Pa. 394, 404, 604 A.2d 1003, 1008 (1992). The doctrine of informed consent has also been interpreted as encompassing the right to informed refusal. See In re A.C., 573 A.2d 1235, 1243 (D.C. App. 1990) (citing In re Conroy, 486 A.2d 1209, 1222 (N.J. 1985)). This doctrine is rooted in the concept of bodily integrity and is deeply ingrained in common law. In re A.C. at 1243.

The doctrine of informed consent declares that absent an emergency situation, medical treatment may not be imposed without the patient’s informed consent.

Moure v. Raeuchle, 529 Pa. 394, 404, 604 A.2d 1003, 1008 (1992).

Common Law Right Of Self-Determination

As noted above, the plaintiffs’ allegation that disconnection of the ventilator was done without their informed consent is based upon two theories; one a common-law right of self-determination and the other a privacy right under Article 1, Section 1 of the Pennsylvania Constitution. The hospital’s demurrer to this count will be overruled as set forth under a common-law theory and sustained as set forth under a state constitutional theory.

Rideout v. Hershey Med. Ctr., 30 Pa.D.&C.4th 57, 71 (C.P. Dauphin 1995)

Stenger v. Lehigh Valley Hosp. Ctr., 530 Pa. 426, 434, 609 A.2d 796, 800 (1992);  See also, Fischer v. Department of Public Welfare, 116 Pa. Commw. 437, 543 A.2d 177 (1988); Rideout v. Hershey Med. Ctr., 30 Pa.D.&C.4th 57, 83 (C.P. Dauphin 1995)

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