Margaret HUGHES and William Hughes, Plaintiffs-Appellants, v. FREEMAN HEALTH SYSTEM, Defendant-Respondent.
No. SD 28921.
Missouri Court of Appeals, Southern District, Division Two.
Feb. 13, 2009.
Rehearing Denied March 6, 2009.
283 S.W.3d 797
DON E. BURRELL, Presiding Judge.
Jennifer A. Mueller, Springfield, MO, for Respondent.
DON E. BURRELL, Presiding Judge.
Margaret Hughes and William Hughes (“Plaintiffs“) brought an action for monetary damages against Freeman Health System (“Hospital“). Margaret Hughes (“Nurse“) had worked as a registered nurse for Hospital but was terminated from that employment on Seрtember 3, 2004. Counts I and III of Plaintiffs’ petition claim Nurse had been wrongfully discharged and sought, respectively, compen
Hospital‘s motion for summary judgment claimed it established, as a matter of law, that Hospital had terminated Nurse‘s employment because Nurse had failed to render proper care to a patient on August 30, 2004, and had failed to accurately inform physicians of the patient‘s condition. Plaintiffs’ petition (and Nurse‘s subsequent deposition testimony) contended Nurse was terminated because she had refused to rewrite certain progress notes she had made in the patient‘s record that were critical of one of Hospital‘s physicians.1
Plaintiffs’ sole point on appeal alleges the trial court erred in granting Hospital‘s motion for summary judgment because the record shows that a genuine issue of material fact exists as to the actual reason for Nurse‘s discharge and that the facts averred by Plaintiffs are sufficient to invoke the “public policy” exception to the employment-at-will doctrine that would otherwise bar Nurse‘s claim for wrongful discharge. We grant Plaintiffs’ point and we reverse and remand.
I. Standard of Review
Review of a summary judgment is de novo and its propriety “is purely an issue of law.” ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). “[W]e do not defer to the trial court‘s decision to grant summary judgment. Instead, we use the same criteria the trial court should have employed in initially deciding whether to grant [the] motion.” Barekman v. City of Republic, 232 S.W.3d 675, 677 (Mo. App. S.D.2007). “We view the record in the light most favorable to the party against whom judgment was entered, and we accord that party the benefit of all inferences which may reasonably be drawn from the record.” Id.
II. Facts and Procedural History
Viewing the record before the trial court in the light most favorable to Plaintiffs, the facts are as follows. Nurse, whose professional licensure is governed by The Nursing Practice Act,
After Nurse administered the Haldol, Patient‘s symptoms increased in intensity. At that point, Nurse asked another nurse to contact Dr. Collins аnd relay Patient‘s latest symptoms to him. This nurse called Dr. Collins and gave Patient Cogentin at Dr. Collins‘s direction. Nurse then called Dr. Collins a third time and was given permission to administer the drug Serax “like 45 minutes early, 30 minutes early, somewhere in there.” Another physician came in to observe Patient and, on his orders, Benadryl was administered. After receiving the Benadryl, Patient relaxed and went to sleep. At no time on this date was Nurse ever criticized about the care she had provided to Patient.
Two days later, Nurse was asked by her supervisor (“Supervisor“) and Hospital‘s Director of Behavioral Health to “tаke it out and rewrite” certain portions of her progress notes that had been indicated with brackets. The bracketed portions referred to Dr. Collins‘s refusal to allow an early administration of Serax and to his decision to have Cogentin administered to Patient. Hospital had a written policy regarding the writing of nurses’ notes which stated: “[p]reviously written notes shall not be altered at a later date.” Nurse rewrote her progress notes and took the revised version to Supervisor. Supervisor asked Nurse to also return the original progress notes that had been marked with the brackеts, but Nurse refused because she had been advised by another employee to do so and “under the circumstances [she] felt like [she] was protecting [herself].”
Later that afternoon, Supervisor brought Nurse the revised copy and said “[t]his isn‘t exactly what we wanted” and asked Nurse to make an addendum to the notes. Nurse‘s reply to this request was, “Sure. I can make an addendum. What do you want me to say? I‘ll say whatever you want, but I won‘t lie.” Supervisor then said, “[w]ell, we don‘t want to do this” and put the revised progress notes in the shredding machine. Two days later, Hospital terminated Nurse‘s employment.
Hospitаl‘s documentation of the reason for Nurse‘s termination was set forth in a document entitled, “FREEMAN HEALTH SYSTEM—RECORD OF CORRECTIVE ACTION,” which stated:
Reasonable cause to believe that [Nurse] jeopardized the health and safety of her patient. [Nurse] did not accurately assess a Patient‘s [sic] condition which resulted in miscommunication to the physician. [Nurse] failed to tell the physician all of the symptoms which would allow him to determine appropriate treatment. The request for medication made to the physician would not have helped the symptoms [Nurse] documented on the chart.
There is a loss of confidence and trust that [Nurse] can go forward with sound judgement in patient care.
III. Discussion
Generally, an employee who does not have a contract which contains a statement of duration is an employee at-will and may be discharged at any time, with or without cause, and the employеr will not be liable for wrongful discharge. Luethans v. Washington Univ., 894 S.W.2d 169, 172 (Mo. banc 1995). However, Missouri courts have
An employee has a cаuse of action for wrongful discharge if he or she was discharged for: “(1) refusing to perform an illegal act or an act contrary to a strong mandate of public policy; (2) reporting wrongdoing or violations of law or public policy by the employer or fellow employees to suрeriors or third parties; (3) acting in a manner public policy would encourage ...; or (4) filing a workers’ compensation claim.” Porter, 962 S.W.2d at 935-36. Dunn v. Enter. Rent-A-Car Co., 170 S.W.3d 1, 6 (Mo. App. E.D.2005).
Nurse contends her case falls within the exception identified in Dunn as “(1);” that she was discharged for failing to follow directives that, had they been followed, would have been contrary to a strong mandate of public policy. See also Porter v. Reardon Mach. Co., 962 S.W.2d 932, 936-37 (Mo.App. W.D.1998); Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859 (Mo. App. W.D.1985). “‘Public policy’ is that principle of law which holds that no one can lawfully do that which tends to be injurious to the public or against the public good.” Boyle, 700 S.W.2d at 871. This Court has previously held that the NPA (and related regulations promulgated by the Stаte Board of Nursing in 4 C.S.R. 200-2) constitutes a clear mandate of public policy and may support a cause of action for wrongful discharge. Kirk v. Mercy Hosp. Tri-County, 851 S.W.2d 617, 621-22 (Mo.App. S.D.1993).
In Kirk, a registered nurse made an initial assessment of a patient and a “nursing diagnosis” of toxic shock syndrome. She became concerned when antibiotics were not swiftly ordered to combat what she believed to be a life-threatening infection. She related her concerns to the hospital‘s Director of Nursing who allegedly told her to “document, report the facts and stay out of it.” 851 S.W.2d at 618. The patient eventually died. The nurse at issue allegеdly offered to obtain the deceased patient‘s medical records for a family member of the decedent and stated to another hospital employee that the decedent‘s doctor had “pav[ed] her way to heaven.” Id.
The nurse was then terminated and received а service letter which stated that on several occasions she had made certain statements that were untrue and evidenced a lack of support for the hospital‘s administration and medical staff. Id. The nurse contended that her firing resulted from her refusal to “stay out of it,” and she sued the hospital for wrongful discharge. Id. at 622. The trial court did not believe the nurse‘s allegation was sufficient to bring her within the public policy exception to the employment-at-will doctrine and granted summary judgment in favor of the hospital. This Court reversed, holding that the NPA set forth a clear mandate of public policy that a nurse should “not ‘stay out’ of a dying patient‘s improper treatment.” Id. at 622.
Here, as in Kirk, Nurse was licensed under the provisions of the NPA. One of those provisions defines Nurse‘s profession to include “[t]he coordination and assistance in the delivery of a plan of health care with all members оf the health team.”
Nurse testified at her deposition in a manner consistent with the claims Plaintiffs make in their petition. Defendant‘s motion for summаry judgment consists of evidence of other events it says were the actual basis for its decision to terminate Nurse and points out discrepancies between Nurse‘s oral testimony and written progress notes. As recently noted by our Supreme Court in a case brought under the Missouri Human Rights Act, “[s]ummary judgment should sеldom be used in employment discrimination cases, because such cases are inherently fact-based and often depend on inferences rather than on direct evidence.” Daugherty v. City of Maryland Heights, 231 S.W.3d 814, 818 (Mo. banc 2007) (citations omitted).
As in Kirk, we have no way of determining whether Nurse was discharged for refusing to delete portions of her progress notes or for the reasons suggested by Hospital. The record presented to the trial court shows two plausible, but contradictory, accounts of why she was terminated. See Barekman, 232 S.W.3d at 681; ITT Commercial Fin. Corp., 854 S.W.2d at 376. Because resolution of the matter will require the drawing of inferences from disputed facts and Nurse‘s accоunt sufficiently invokes the public policy exception to the employment-at-will doctrine, the trial court‘s summary judgment is reversed and the case is remanded for further proceedings.
PARRISH, J., Dissents.
RAHMEYER, J., Concurs.
JOHN E. PARRISH, Judge, dissenting.
I respectfully dissent.
The majority opinion relies on Kirk v. Mercy Hospital Tri-County, 851 S.W.2d 617 (Mo.App.1993), as authority for reversing the judgment of the trial court. The trial court, in Kirk, held that there was no public policy exсeption to the employment-at-will doctrine in Missouri. Id. at 619. This court held that this was error; that there is a public policy exception to the employment-at-will doctrine. The judgment in Kirk was reversed and the case remanded for further proceedings.
In this case the trial court acknowledged that there is a public policy exception to the employmеnt-at-will doctrine. It concluded that Freeman Health System, Ms. Hughes’ employer, had not violated that policy. The issue in this appeal is not the issue that was before this court in Kirk. The issue in this case is whether, based on its facts, the public policy exception requires that the judgment be reversed.1
Ms. Hughes received eight reprimands from March 1997 to September 2004. The final reprimand, per the personnel records of her employer, resulted in her discharge. The employer‘s records state that the reason for her discharge was failure to render proper care to a patient on August 30, 2004, аnd failure to accurately inform physicians of the patient‘s condition. I do not believe that the record before this court demonstrates there was a factual question that would permit a finding that Ms. Hughes’ discharge was contrary to public policy. I would affirm the judgment.
JOHN E. PARRISH
JUDGE