R. Mitchel BACHTEL and Cary M. Bisbey, Appellants, v. MILLER COUNTY NURSING HOME DISTRICT, Respondent.
No. SC 84835.
Supreme Court of Missouri, En Banc.
July 29, 2003.
110 S.W.3d 799
Elizabeth S. Raines, Thomas E. Rice, Jr., Kara T. Stubbs, Kansas City, for Respondent.
LAURA DENVIR STITH, Judge.
R. Mitchel Bachtel and Cary Bisbey each sued their former employer, the Miller County Nursing Home, alleging they had been wrongfully discharged in retaliation for reporting violations of the Omnibus Nursing Home Act (the Act), chapter 198,
To encourage compliance with the Act, and so as to effectuate its purpose of protecting residents of nursing homes, the Act requires nursing home employees to report violations of the Act involving neglect or abuse of residents. The Act further prohibits any retaliation against employees, residents or family members of residents who report such violations. The Act expressly provides a private right of action for residents who are retaliated against for such reporting.
Although the Act provides that it shall not apply to most state or state-licensed facilities, it specifically expressly provides that the provisions of the Act apply to nursing home districts, such as the Miller County district. In the absence of a provision excepting the provisions prohibiting retaliation against employees who report violations of the Act, those sections too necessarily apply to nursing home districts. This express provision that the Act is applicable to nursing home districts constitutes a waiver of sovereign immunity to the extent necessary to enforce the provisions of the Act as to those districts, including the right to bring a private right of action against nursing home districts who retaliate against employees in violation of the Act. For this reason, the trial court erred in dismissing plaintiffs’ claims based on sovereign immunity. Reversed and remanded.
I. FACTS AND PROCEDURAL BACKGROUND
R. Mitchel Bachtel, a licensed practical nurse, and Cary M. Bisbey, a doctor of osteopathic medicine, were employed at the Miller County Nursing Home, a nursing home owned and operated by the District. The District is a political subdivision of the state existing and operating pursuant to
In the summer of 2000, several nursing home residents contracted clostridium difficile, a highly infectious disease. Bachtel and Bisbey instructed the nursing home staff that giving anti-diarrhaetic medications to the infected residents would be dangerous and could result in grave harm, including death. Despite these warnings, an employee ordered a nurse to administer anti-diarrhaetic medication to the infected residents, one of whom became very sick and required hospitalization. Subsequently, Bachtel and Bisbey informed the board of directors of the District of the employee‘s actions and that he had endangered the infected residents. Bisbey also filed a formal complaint with the Missouri Divi
In October 2000, both plaintiffs were fired. Each filed a petition for damages against the District for wrongful discharge.3 The suits were consolidated. Both plaintiffs’ petitions allege that they were fired for reporting incidents of abuse to the District‘s board of directors and to officials at the Division and that their termination violated the anti-retaliation provision of
II. ANALYSIS
When reviewing dismissal of a petition, a court allows a pleading its broadest intendment, treats all facts alleged as true, construes allegations favorably to plaintiff and determines whether averments invoke principles of substantive law entitling plaintiff to relief. Hagely v. Bd. of Educ. of Webster Groves Sch. Dist., 841 S.W.2d 663, 665 (Mo. banc 1992). In construing statutes, a court ascertains the intent of the legislature from the language used and gives effect to that intent. In re Beyersdorfer, 59 S.W.3d 523, 525 (Mo. banc 2001). The provisions of a legislative act are not read in isolation but construed together, and if reasonably possible, the provisions will be harmonized with each other. State, Missouri Dept. of Soc. Servs., Div. of Aging v. Brookside Nursing Ctr., Inc., 50 S.W.3d 273, 276 (Mo. banc 2001); Hagely, 841 S.W.2d at 667. Insight into the legislature‘s object can be gained by identifying the problems sought to be remedied and the circumstances and conditions existing at the time of the enactment. Sermchief v. Gonzales, 660 S.W.2d 683, 688 (Mo. banc 1983).
A. The Omnibus Nursing Home Act Provides a Private Right of Action to Private Nursing Home Residents and Employees.
This Court has previously recognized that the Act, “[i]s an exercise of the police power of the state, directed to the protection of the health, safety, and welfare of a large and increasing nursing home population.” Stiffelman v. Abrams, 655 S.W.2d 522, 528 (Mo. banc 1983). One of the key purposes of the Act is to provide protection to those individuals who are unlikely, or unable, to protect themselves. As Stiffelman stated:
“The obvious purpose of this statute is to protect the health and safety of citizens who are unable fully to take care of themselves, particularly the more elderly persons, who, from necessity or choice, spend their later years in homes of the type which the statute would license or regulate[.] . . . Such an enactment as this is a vital and most important exercise of the state‘s police power. . . . As such its construction, consistent with its terms, should be sufficiently liberal to permit accomplishment of the legislative objective . . . [.]”
Id. at 528, quoting, State ex rel. Eagleton v. Patrick, 370 S.W.2d 254, 257 (Mo. 1963).4
Significantly,
Additionally,
No person who directs or exercises any authority in a facility shall evict, harass, dismiss or retaliate against a resident or employee because such resident or employee or any member of such resident‘s or employee‘s family has made a report of any violation or suspected violation of laws, ordinances or regulations applying to the facility which the resident, the resident‘s family or an employee has reasonably cause to believe has been committed or has occurred.
Id. Clark v. Beverly Enters.-Missouri, Inc., 872 S.W.2d 522 (Mo.App. W.D.1994), held that this provision (198.070.10) implicitly creates a private right of action on the part of employees or others who are retaliated against or fired for reporting acts of abuse or neglect, stating:
while section 198.070 does not expressly state that it creates a private cause of action, it would be illogical to say the legislature did not intend to allow private causes of action when it created a statute which compels an employee to report violations of the law, and protects her from retaliation or dismissal or conversely subject her to a penalty for failure to report a violation.
Clark further held that, although an at-will employee, plaintiff was protected from termination for any of the reasons prohibited by
This Court agrees with Clark that a private right of action in tort for employees of private nursing homes who are retaliated against for reporting violations of the Act is impliedly created by the language of
B. The Omnibus Nursing Home Act Creates a Private Right of Action for Nursing Home District Employees Who Are Retaliated Against for Reporting Violations of the Act.
The provisions of
section 198.003 to198.186 [the Act] shall not apply to any of the following entities:(1) . . .
(2) Any facility or other entity otherwise licensed by the state and operating exclusively under such license and within the limits of such license, unless the activities and services are or are held out as being activities or services normally provided by a licensed facility under
section 198.003 to 198.186 ,198.200 [nursing home districts],208.030 , and208.159 , RSMo, except hospitals licensed under the provision ofchapter 197, RSMo .
Id. (emphasis added).
It is undisputed that the District, a body corporate and political subdivision of the State of Missouri, is a “nursing home district,” licensed under
The District acknowledges that it is subject to the provisions of the Act. None the less, it argues that it cannot be sued for firing plaintiffs for reporting violations of the Act, even though the Act specifically prohibits such retaliation, because the Act does not contain specific language stating that the doctrine of sovereign immunity is waived as to nursing home districts. In support, it cites cases holding that the doctrine of sovereign immunity is the general rule and that any purported statutory waiver of sovereign immunity must be express and is to be strictly construed. See, e.g., McNeill Trucking Co., Inc. v. Missouri State Highway & Transp. Comm‘n, 35 S.W.3d 846, 848 (Mo. banc 2001); State ex rel. New Liberty Hosp. Dist. v. Pratt, 687 S.W.2d 184 (Mo. banc 1985).
For instance, H.S. v. Board of Regents, Southeast Mo. State Univ., 967 S.W.2d 665 (Mo.App. E.D.1998), recognized that in making the Missouri Human Rights Act (MHRA) applicable to state employers, the legislature had expressly waived sovereign immunity even though the statute did not contain a provision specifically stating “the defense of sovereign immunity is waived,” because:
The definition of “employer” in [s]ection 213.010(6) RSMo includes “the state, or any political or civil subdivision thereof.” Section 213.055 RSMo provides that it shall be unlawful employment practice: “(1) for an employer, because of race, color, religion, national origin, sex, ancestry, age or handicap of an individual . . .” to discriminate. Clearly [s]ection 213.055 RSMo was meant to apply to the state and its political subdivisions. Section 213.101 RSMo further provides that “the provisions of this chapter shall be construed to accomplish the purposes thereof and any law inconsistent with any provision of this chapter shall not apply.”
H.S. concluded that the express creation of a private right of action and the express provision that MHRA would apply to the State were sufficient to constitute a waiver of sovereign immunity for the State and its political subdivisions in those instances covered by the statute, stating “[b]ecause the Missouri Human Rights Act treats the state and its subdivisions the same as it treats other employers, sovereign immunity does not preclude the trial court from awarding emotional distress damages pursuant to the Act.” 967 S.W.2d at 673.
Keeney v. Missouri Highway & Transp. Comm‘n, 70 S.W.3d 597, 600 (Mo.App. S.D. 2002), reached the same conclusion, applying MHRA to the Missouri Highway and Transportation Commission and rejecting its contentions that sovereign immunity barred suits against public entities absent specific language stating that sovereign immunity was waived. The required specificity was contained in the express statement in MHRA that the act applied to the State.
Similarly, the language of various taxing statutes allowing taxpayers to sue for refunds of improperly paid taxes, penalties or interest has been held to constitute an express waiver of sovereign immunity for that limited purpose, even though the statutes at issue do not use the specific words “sovereign immunity is waived.” See, e.g., Sprint Communications Co., L.P. v. Dir. of Revenue, 64 S.W.3d 832, 835 (Mo. banc 2002) (applying
This same analysis applies to suits brought by residents of nursing home districts. For instance, similarly to MHRA and the taxing statutes, the express statement of legislative intent to allow suits against the State is provided by
It did not do so here. For, just as was the case in regard to private nursing homes, “it would be illogical to say the legislature did not intend to allow private causes of action when it created a statute which compels an employee to report violations of the law, and protects her from retaliation or dismissal or conversely subject her to a penalty for failure to report a violation.” Clark, 872 S.W.2d at 525. Clearly, residents of nursing home districts have a private cause of action for retaliation against them for reporting violations of the statute.
The same is true as to nursing home employees such as the plaintiffs herein. As noted, a private right of action by employees who are fired or otherwise retaliated against in violation of the Act is also inherent in the provisions of the section 198.070 requiring employees to report such violations, imposing criminal penalties for failing to do so, and prohibiting retaliation against them for doing so. Id. The legislature has expressly made all of the provisions of the Act, including the anti-retaliation provisions, applicable both to private nursing home facilities and to nursing home districts by way of
Since an employee of a private nursing home can sue under the provisions of the Act for retaliation, and as the provisions so permitting are expressly made applicable to nursing home districts, their language provides the express showing of legislative intent required to find a waiver of sovereign immunity. Any other reading of the statute would treat nursing home districts differently from private nursing homes, contrary to the express intent of the legislature that the Act should be fully applicable to nursing home districts.
III. CONCLUSION
For the reasons set out above, the judgment of the trial court is reversed, and the case is remanded.
WHITE, C.J., WOLFF, PRICE and TEITELMAN, JJ., concur.
LIMBAUGH, J., dissents in separate opinion filed.
BENTON, J., concurs in opinion of LIMBAUGH, J.
STEPHEN N. LIMBAUGH, JR.
Judge, dissenting.
I respectfully dissent.
At the outset, I question the majority‘s reliance on Clark v. Beverly Enterprises-Missouri, Inc., 872 S.W.2d 522, 525 (Mo. App. 1994), for the proposition that section 198.070.10 of the Omnibus Nursing Home Act (ONHA) implicitly creates a private cause of action for nursing home employees terminated in violation of the statute. The Clark court failed to account for section 198.067 of the ONHA, which autho
In fact, Clark‘s holding is based as much on the court of appeals’ application of a common law public policy exception to the at-will employee doctrine as it is statutory interpretation. See Clark, 872 S.W.2d at 525. The public policy exception, according to Clark, is that an at-will employee who is discharged for reporting a violation of law by an employer is exempted from the general rule barring the employee from bringing a private cause of action against the former employer for wrongful discharge. Id. But, regardless of whether a private cause of action is said to be implicitly created under section 198.070.10 by the legislature—as the majority suggests—or created by the courts pursuant to the public policy exception, in my opinion, the cause of action is barred under the doctrine of sovereign immunity.
Until today, the law in Missouri regarding the doctrine of sovereign immunity was clear. The general precept was that “sovereign immunity [was] the rule and waiver [was] the exception.” Bartley v. Special Sch. Dist. of St. Louis Cty., 649 S.W.2d 864, 869 (Mo. banc 1983). Recognition of this precept prompted this Court on numerous occasions to declare that statutory provisions that purportedly waive sovereign immunity are to be strictly construed. See, e.g., McNeill Trucking Co., Inc. v. Mo. State Highway & Transp. Comm‘n, 35 S.W.3d 846, 848 (Mo. banc 2001); State ex rel. Mo. Highway & Transp. Com‘n v. Dierker, 961 S.W.2d 58, 61 (Mo. banc 1998); Richardson v. State Highway & Transp. Comm‘n, 863 S.W.2d 876, 882 (Mo. banc 1993); State ex rel. New Liberty Hosp. Dist. v. Pratt, 687 S.W.2d 184, 186 (Mo. banc 1985); Kanagawa v. State ex rel. Freeman, 685 S.W.2d 831, 834 (Mo. banc 1985); Bartley, 649 S.W.2d at 868; Beiser v. Parkway Sch. Dist., 589 S.W.2d 277, 280 (Mo. banc 1979); Charles v. Spradling, 524 S.W.2d 820, 823 (Mo. banc 1975); Kleban v. Morris, 363 Mo. 7, 247 S.W.2d 832, 837 (1952). Indeed, this Court has held that a statute will abrogate a governmental entity‘s immunity from tort liability only if the statute expressly so states. State ex rel. Reg‘l Justice Info. Serv. Com‘n v. Saitz, 798 S.W.2d 705, 708 (Mo. banc 1990); Community Fed. Sav. & Loan v. Dir. of Revenue, 752 S.W.2d 794, 796 (Mo. banc 1988). See, e.g., Pratt, 687 S.W.2d at 186-87 (holding that statutory provision granting a governmental entity the power to “sue or be sued” did not amount to an express waiver of sovereign immunity).
The court of appeals cases relied on by the majority do not provide an answer to this question and are readily distinguishable from the instant case. In both Keeney v. Missouri Highway & Transportation Commission, 70 S.W.3d 597 (Mo.App. 2002), and H.S. v. Board of Regents, 967 S.W.2d 665 (Mo.App.1998), the Missouri Human Rights Act (MHRA) was held to include a waiver of sovereign immunity to tort suits brought under the MHRA. However, in contrast to the majority opinion, the Keeney and H.S. courts found the existence of a waiver only after first recognizing that the MHRA expressly created a private cause of action. Keeney, 70 S.W.3d at 599-600 (citing
In my view, an express intent on the part of the legislature to waive sovereign immunity in tort suits brought by nursing home employees cannot be gleaned from the ONHA. Even assuming that creation of a private cause of action is implicit in section 198.070.10 as per Clark, I nevertheless cannot understand how the legislature can be said to have expressly intended to waive sovereign immunity to a cause of action that it did not expressly create. Even in the most favorable light, the majority‘s new-found waiver of sovereign immunity is nothing more than the product of an inference on an inference. Further, to the extent that Clark‘s recognition of the private cause of action was based on public policy rather than statutory interpretation, the majority‘s ultimate finding of an express waiver of sovereign immunity is even more troubling.
For the foregoing reasons, I would affirm the judgment of the trial court.