Lead Opinion
Margaret Hughes and William Hughes (“Plaintiffs”) brought an action for monetary damages against Freeman Health System (“Hospital”). Margaret Hughes (“Nurse”) had worked as a registei-ed nurse for Hospital but was terminated from that employment on September 3, 2004. Counts I and III of Plaintiffs’ petition claim Nurse had been wrongfully dischаrged 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.
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.,
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, sections 335.011 to 335.096 (“NPA”), began working for Hospital as an employee-at-will in 1997. On August 30, 2004, Nurse was involved in the care of a patient who had been admitted for depression and alcoholism (“Patient”). Patient began experiencing problems Nurse believed to be a combination of anxiety and extrapyramidal symptoms (“EPS”).
After Nurse administered the Haldol, Patient’s symptoms increased in intensity. At that point, Nurse asked another nurse to contact Dr. Collins and relay Patient’s latest symptоms 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 “take it out and rewrite” certаin 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 brackets, but Nurse refused because shе 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.
Hospital’s documentation of the rеason 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 employer will not be liable for wrongful dischаrge. Luethans v. Washington Univ.,894 S.W.2d 169 , 172 (Mo. banc 1995). However, Missouri courts have recognized public policy exceptions tothe employment at-will doctrine in Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859 (Mo.App. W.D.1985). See Porter v. Reardon Mach. Co.,962 S.W.2d 932 , 936 (Mo.App. W.D.1998). The public policy exception to the at-will employment doctrine “provides that an at-will employee who has been discharged by an employer in violation of а clear mandate of public policy has a cause of action against the employer for wrongful discharge.” Boyle,700 S.W.2d at 871 . Public policy “finds its sources in ... the letter and purpose of a constitutional, statutory or regulatory provision or scheme... V Id,.
An employee has a cause of action fоr 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 superiors or third partiеs; (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.,
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.,
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.”
The nurse was then terminated and received a service letter which stаted 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 filing 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 of the health team.”
Nurse testified at her deposition in a manner consistent with the claims Plaintiffs make in their petition. Defendant’s motion for summary judgment cоnsists 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]um-mary judgment should seldom be usеd 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,
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,
Notes
. The record does not reflect that a request was made for a service letter as permitted by section 290.140. Unless otherwisе indicated, all references to statutes are to RSMo 2000.
. EPS is a neurological disorder that can cause muscle spasms that can happen in different parts of the body — a usual side effect of the drug Haldol.
. Hospital's motion for summary judgment seems to rely heavily on the fact that Nurse’s writtеn progress notes do not state that the symptoms she documented were then relayed by her to Dr. Collins. This difference between her oral testimony and written notes is a good example of the type of factual disputes that exist in this case and cannot be resolved without the making of a credibility determination; a task wholly incompatible with the mechanism of summary judgment.
. Statutes governing the licensing and regulation of various types of nurses, including registered nurses.
Dissenting Opinion
dissenting.
I respectfully dissent.
The majority opinion relies on Kirk v. Mercy Hospital Tri-County,
In this case the trial court acknowledged that there is a public policy exception to the employment-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.
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, and failurе 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.
. Another difference between this case and Kirk is that Kirk was a service letter case. See § 290.140, RSMo 2000. The record in this case does not reflect that Ms. Hughes requested a service letter.