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NEW JERSEY APPELLATE COURT UPHOLDS IMMUNITY FOR HEALTH CARE ENTITY RESPONDING TO A REFERENCE REQUEST

by Daniel R. Levy

On December 1, 2011, the Superior Court of New Jersey, Appellate Division, affirmed dismissal of a whistle-blowing and defamation lawsuit based in part on application of the New Jersey Health Care Professional Responsibility and Reporting Enhancement Act. In Senisch v. Carlino, A-6218-09T3 (N.J. App. Div. Dec. 1, 2011), the court held that a health care entity which had reported negative, but truthful, information to another health care entity about a former health care professional’s termination of employment could not be liable for doing so.

In this case, the plaintiff was employed as a physician’s assistant in the cardiology department of Deborah Heart and Lung Center (“Deborah”).  Although the plaintiff had received favorable performance reviews in his first years of employment at Deborah, his 1999 performance evaluation was unfavorable, and Deborah later terminated his employment as a result of specifically stated performance deficiencies.  In 2001, he filed a lawsuit against Deborah alleging violations of New Jersey’s Conscientious Employee Protection Act (“CEPA”) and Law Against Discrimination (“LAD”).  Before trial, the case was settled.

Subsequently, the plaintiff obtained a position with a surgical orthopedic practice.  The position required that plaintiff obtain his credentialing at Underwood Memorial Hospital (“Underwood”).  As part of that credentialing process, Underwood requested information about the plaintiff from Deborah.  A physician at Deborah responded to the information request from Underwood, stating that based on the plaintiff’s documented performance by his supervisor, he “was involuntarily terminated from employment at Deborah following a series of unsuccessful attempts to achieve consistent improvement in his performance.”  The response also listed the performance deficiencies documented in the plaintiff’s personnel file.  Thereafter, the plaintiff withdrew his name from consideration for credentialing with Underwood and also resigned from his employment at the orthopedic practice.

The plaintiff then filed a second lawsuit, this time alleging retaliation by Deborah in violation of CEPA, as well as defamation and tortious interference with prospective economic advantage.  The trial court granted the defendants’ motion for summary judgment, and the plaintiff appealed.

The Appellate Division affirmed, determining that the Act required the defendants to disclose the information to Underwood.  The court held that the defendants were protected under the civil immunity provision of the Act because there was no evidence that the information provided in response to the request was “in bad faith or with malice.”  As a result, the court held that because the defendants were protected “against civil liability for reporting the circumstances of plaintiff’s termination, plaintiff could not prevail on his claims of tortious interference and defamation, or retaliation under CEPA.”

Although many states outside New Jersey have enacted legislation granting qualified immunity to employers providing reference information, few have gone as far as New Jersey by requiring health care entities to provide such information in response to a request by another health care entity.  While many states provide immunity to employers who act in good faith, determining whether liability exists varies among jurisdictions.  Most states that have enacted laws that provide immunity to employers which provide truthful information about former employees have limited immunity so that it applies only when the employer provides information directly related to the employee’s job performance, but not for information unrelated to job performance, i.e., that the employee had filed a discrimination charge against the employer.  Moreover, questions may exist as to whether liability may attach for references provided across state lines where the reference laws among those states differ.  Ultimately, health care entities, as well as other employers, should proactively ensure compliance with appropriate state reference laws.