PA Sues Employer for Wrongful Termination

Facts of the Case

In June 1998, Ms B signed a contract to work as a physician associate (PA) for a physicians’ group. Her contract specified that she agreed to work full time, on a salary, and for a specific hospital. However, over the next 10 years, Ms B became a part-time employee, on an hourly wage, and for multiple facilities on behalf of the physicians’ group.

In January 2020, Ms B signed a collaborative agreement with the physicians’ group, which provided the specific tasks and procedures that Ms B was allowed to conduct under the supervision of her collaborating physician. In November of that year, during the COVID pandemic, Ms B stopped submitting for any shifts.

In January 2021, Ms B contacted the president of the group, Dr P, about the use of ivermectin, an antiparasitic agent, for the treatment of patients with COVID. Dr P responded in part by telling Ms B that it “was not recommended” to proceed with ivermectin as a COVID treatment, but that he would continue to monitor the studies on the medication.

At the end of the month, Dr P sent an email to all physicians and PAs in the group alerting them about a possible case of ivermectin toxicity and advising medical staff that prescribing the agent would be considered malpractice. The following day Ms B responded to Dr P’s email. In her email, she questioned the alleged ivermectin toxicity and suggested that the issue could have been caused by a wrong dosage rather than the drug itself. Dr P responded via email to Ms B, reminding her that “the point was that it is malpractice to prescribe ivermectin for COVID.”

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The physicians’ group acknowledged that Ms B had signed an employment contract over 20 years earlier but argued that the contract had been abandoned by both parties long ago.

The next day, Ms B received an email from human resources. It said: “As we look ahead [to the new year] and the continuing decrease in available hours, it makes sense for a formal separation at this time. I see you haven’t worked since early November and are not on the schedule at all for [the coming year].” The email included a 90-day termination notice. At the end of April, Ms B’s employment with PEG ended.

In August, after seeking counsel from an attorney, Ms B filed a complaint against the practice alleging wrongful termination and breach of contract. The complaint provided the June 1998 contract as the employment agreement. The wrongful termination claim was based on the premise that Ms B had been fired for sending the reply email to Dr P, contesting the ivermectin toxicity.

The physicians’ group filed a motion for summary judgment asking that the case against it be dismissed. The court held a hearing on the motion and ultimately concluded that Ms B was an at-will employee when she was terminated and her termination was valid. The court dismissed the case. Ms B appealed.

The Appeal

On appeal, Ms B argued that the trial court had incorrectly dismissed her case for wrongful termination. She said she was not, in fact, an at-will employee because she had a contract with the physicians’ group. The appeals court noted the 2 types of employment recognized by the state: employment for a definite or ascertainable term and employment at will. Under the doctrine of at-will employment, either party can end the employment relationship at any time for any reason.

The physicians’ group acknowledged that Ms. B had signed an employment contract over 20 years earlier but argued that the contract had been abandoned by both parties long ago.

The appeals court noted that per the 1998 contract, Ms B would be a full-time, salaried employee at one hospital. However, within 10 years of signing the contract, Ms B was working part-time, being paid hourly, and was working for different hospitals other than the one for which she had been hired. The court pointed out that for over a decade, Ms B and the physicians’ group had continued an employment relationship that was inconsistent with the material terms of the 1998 contract. Thus, the appeals court agreed with the lower court that both parties had abandoned the contract and Ms B was an at-will employee who could be terminated at any time.

Ms B then attempted a public policy argument, claiming that she was fired for her reply email to Dr P regarding ivermectin. The appeals court noted that the public policy exception was created to protect an employee from being discharged solely for exercising a statutorily conferred right. However, the court noted that Ms B claimed that she was ‘obeying her duties to collaborate with physicians, exercise reasonable care, and follow ethical standards’ – none of which are statutorily conferred rights.

Ultimately, the appeals court held that Ms B was an at-will employee and her email  was not “an expression of a statutorily conferred right or duty protected under public policy.” The appeals court agreed with the lower court and dismissed the case.

Protecting Yourself

There is a good lesson to be learned from this case. An employment contract can be considered ‘abandoned’ if both parties continue a relationship inconsistent with the material terms of the contract. In this case, the court will generally conclude that the “parties acquiesced to the abandonment of the employment contract.”

If you are an at-will employee, be aware that your employment could be terminated at any time, for any reason. If you have an employment contract, make sure it is periodically reviewed and updated, and that both you and your employer are acting within the scope of your contract. If things change – for example, your employer wants you to take on an expanded role –update your contract to reflect this.