KAREN D. NOSAL-TABOR, Plаintiff and Appellant, v. SHARP CHULA VISTA MEDICAL CENTER, Defendant and Respondent.
No. D065843
Fourth Dist., Div. One.
Aug. 3, 2015.
239 Cal. App. 4th 1224
David A. Miller for Plaintiff and Appellant.
OPINION
AARON, J.—
I.
INTRODUCTION
The Nursing Practice Act (
Karen D. Nosal-Tabor is a registered nurse who previously worked in the cardiology department at Sharp Chula Vista Medical Center (Sharp). A significant portion of Nosal-Tabor‘s job duties involved assisting with cardiac stress tests—a diagnostic test used to gather information concerning how well a patient‘s heart is working when placed under physical or chemical stressors. In 2011, Sharp implemented “nurse-led” cardiac stress testing in which a physician is not physically present during the tests. Nosal-Tabor repeatedly refused to perform nurse-led stress tests and made numerous complaints concerning the testing to Sharp‘s management. Among Nosal-Tabor‘s complaints was that stress testing constitutes the practice of medicine and that Sharp had not adopted legally adequate standardized procedures to permit its nurses to perform such tests. Sharp‘s management told Nosal-Tabor that Sharp had adopted legally sufficient standardized procedures, and that these procedures permitted nurses such as Nosal-Tabor to conduct nurse-led stress testing. After Nosal-Tabor continued to refuse to perform nurse-led stress testing and to complain about its implementation, Sharp disciplined her and eventually terminated her employment.
On appeal, Nosal-Tabor claims that the trial court erred in granting Sharp‘s motion for summary judgment. Her primary contention is that the trial court erred in concluding that there was no evidence upon which a reasonable juror could find that Sharp had failed to adopt standardized procedures that comply with the Guidelines. Nosal-Tabor contends that this error caused the court to improperly conclude that she would be unable to establish any of her causes of action.
We conclude that the trial court erred in granting summary judgment for Sharp. The documents that Sharp maintains constitute its standardized procedures do not contain several elements that аre required by the Guidelines. In light of these deficiencies, a reasonable juror could find that Sharp improperly retaliated against, and wrongfully terminated, Nosal-Tabor when she complained about, and refused to perform, nurse-led stress testing pursuant to Sharp‘s legally deficient procedures.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Nosal-Tabor‘s complaint
Nosal-Tabor filed a complaint against Sharp in April 2013 in which she alleged that she had made numerous complaints to Sharp‘s management concerning the “illegal procedures for stress testing of... cardiac patients.” Among her complaints was “the lack of a legally required Standardized Procedure” authorizing the performance of nurse-led stress testing. Nosal-Tabor alleged that she had “confirmed with her licensing agency that such testing was unsafe,” and claimed that the licensing agency had “warned [her] to stop doing it in the manner Sharp demanded.”
Nosal-Tabor also alleged that she made a formal complaint to a Sharp compliance hotline in October 2011, and that she was “written up the following week.” In addition, Nosal-Tabor alleged that in February 2012, she was given a poor performance review and was suspended without pay for
In a claim for wrongful termination in violation of public policy, Nosal-Tabor claimed that Sharp‘s termination of her employment violated the public policies embodied in
Nosal-Tabor also brought a direct claim for a violation of
B. Sharp‘s motion for summary judgment
Sharp filed a motion for summary judgment or summary adjudication in December 2013. The gist of Sharp‘s motion was that Nosal-Tabor would be unable to establish any of her causes of action because the basis for her termination was “her refusal to perform her lawful job duties as directed.” (Italics added.) In support of this contention, Sharp maintained that the procedures that it had adopted to perform nurse-led stress testing were lawful and that it had provided Nosal-Tabor with “overwhelming confirmation... of the legality of nurse-led stress testing.” With respect to each cause of action, Sharp contended that, in light of the legality of nurse-led stress testing at Sharp, Nosal-Tabor‘s refusal to perform such testing and/or her complaints concerning such testing were unreasonable.4
Sharp supported its motion with numerous documents, including copies of its procedures for performing nurse-led stress testing. In addition, Sharp
Dr. Cepin authenticated the documents that Sharp offered outlining its nurse-led stress testing procedures and explained the manner by which the procedures had been adopted as follows: “I am a member of [Sharp‘s] Cardiology Advisory Committee. In or around October 2011, the Cardiology Advisory Committee reviewed and approved the standardized procedures for nurse-led stress testing. Attached to the NOL [Notice of Lodgment] as Exhibit 8 are the Department Guidelines approved by the Cardiology Advisory Committee. Attached to the NOL as Exhibit 11 is the Stress Test Standard Order Set approved by the Cardiology Advisory Committee. In or around November 2011, the Cardiology Advisory Committee reviewed and approved the cardiac stress testing protocol, which is attached to the NOL as Exhibit 9. In or around January 2012, the Cardiology Advisory Committee reviewed and approved the Treadmill Testing guidelines, which are attached to the NOL as Exhibit 10.”
Dr. Cepin stated that in his opinion, Sharp‘s procedures were legally adequate: “I have reviewed
Nosal-Tabor filed an opposition in which she contended both that the procedures adopted by Sharp to authorize nurse-led stress testing did not comply with the 11 specific requirements established in the Guidelines, and that she had repeаtedly complained to Sharp‘s management concerning this issue. She argued in part: “[Nosal-Tabor] constantly insisted that Sharp must write up a Standardized Procedure before any nurse can conduct a nurse-led cardiac stress test. She specifically protested the lack of a Standardized Procedure throughout 2010—until she was terminated. [¶] In 2010, Sharp first created a document called a ‘Department Guideline,’ and tried to claim it was a Standardized Procedure. It was not. The ‘Department Guideline’ does not match the legal requirements stated by the [Board of Registered Nursing] in their website where they refer to the laws and regulations governing a written Standardized Procedure.”
Nosal-Tabor noted that she had complained to the Board of Registered Nursing concerning Sharp‘s nurse-led stress testing procedures and that the Board had “warned her that... she and her colleagues could be subjected to discipline if she performed nurse-led cardiac stress testing without a Standardized Prоcedure written in accordance with the laws and regulations governing nurses.” Nosal-Tabor further argued that she had been both disciplined and terminated for refusing to perform, and complaining about, unlawful nurse-led stress testing.
As to her specific causes of action, Nosal-Tabor contended that there was a triable issue of material fact with respect to her claim for wrongful termination in violation of public policy because she was fired for “oppos[ing] the illegal failure of Sharp to have a correct Standardized Procedure in place.” Nosal-Tabor also claimed that she had established a triable issue of fact with respect to whether Sharp had violated
Among the documents that Nosal-Tabor offered in support of her opposition was an e-mail from an employee of the Board of Registered Nursing to Nosal-Tabor that stated in relevant part: “[S]tress testing is outside the scope of practice for nurses, and those who do supervise cardiac stress testing and act on the results, are practicing medicine[.] [I]n order for [registered nurses]
Nosal-Tabor also offered her own declaration outlining the employment discipline that she received for her refusаl to participate in nurse-led stress testing and her “protest[s] [concerning] the lack of a Standardized Procedure,” and lodged documents demonstrating the many complaints she made to Sharp‘s management concerning the practice.
Nosal-Tabor also offered an excerpt of the deposition testimony of Sherrie Navedo, Sharp‘s director of critical care. During the deposition, Navedo explained that she was familiar with the meaning of the term “standardized procedure,” stating, “We do standardized procedures all through the hospital.” Nosal-Tabor‘s counsel then asked Navedo whether Sharp had a standardized procedure in place for nurses to do nurse-led stress testing during the time period when Nosal-Tabor was employed. Navedo responded, “I believe not.” Navedo explained, “It was a departmental procedure instead of a standardized procedure.”
In addition, Nosal-Tabor offered an excerрt of the deposition of Dr. Cepin that included the following colloquy:
“[Nosal-Tabor‘s counsel]: And is it your testimony, then, that this [referring to documents outlining Sharp‘s procedures for conducting nurse-led stress testing] meets the requirements for a standardized procedure?
“[Dr. Cepin]: I don‘t know whether it meets the requirements for a standardized procedure, but it—basically it gives you the guidelines.”
D. The trial court‘s ruling
After Sharp filed a reply and the trial court held a hearing, the court granted Sharp‘s motion for summary judgment. In its order granting Sharp‘s motion, the court began its analysis by addressing Nosal-Tabor‘s claims for retaliation in violation of
The court also ruled that Sharp had adopted procedures for performing nurse-led stress testing that constituted legally sufficient standardized procedures under the Guidelines. In support of this conclusion, the trial court quoted Dr. Cepin‘s declaration. In addition, the court concluded that Nosal-Tabor had presented “no credible evidence that the Standardized Procedures in place at the time of her termination were insufficient.” Accordingly, the trial court ruled that Nosal-Tabor had failed to present any evidence to support her claim that Sharp had taken an adverse employment action against her for an improper reason.7
The trial court also ruled that Sharp was entitled to judgment as a matter of law on Nosal-Tabor‘s
In addressing Nosal-Tabor‘s claim for wrongful termination in violation of public policy, the court noted that Nosal-Tabor alleged that her termination violated the public policies embedded in
E. Nosal-Tabor‘s appeal
Nosal-Tabor timely appeals from the judgment.
DISCUSSION
The trial court erred in granting Sharp‘s motion for summary judgment
Nosal-Tabor claims that the trial court erred in granting Sharp‘s motion for summary judgment. She argues that the record contains evidence demonstrating the existence of a triable issue of material fact with respect to each of her three causes of action: wrongful termination in violation of public policy; violation of
A. Applicable principles of law governing motions for summary judgment and the standard of review
A moving party is entitled to summary judgment when the party establishes that it is entitled to the entry of judgment as a matter of law. (
In reviewing a trial court‘s ruling on a motion for summary judgment, the reviewing court makes “‘an independent assessment of thе correctness of the trial court‘s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. [Citations.]’ [Citation.]” (Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1143 [29 Cal.Rptr.3d 144].)
B. The trial court erred in granting judgment as a matter of law for Sharp on Nosal-Tabor‘s wrongful termination in violation of public policy
Nosal-Tabor claims that the trial court erred in granting judgment as a matter of law for Sharp on her claim for wrongful termination in violation of public policy.
1. Governing law
a. Wrongful termination in violation of public policy
“The elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer
b. The Nursing Practice Act
“The practice of nursing within the meaning of this chapter means those functions, including basic health care, that help people cope with difficulties in daily living that are associated with their actual or potential health or illness problems or the treatment thereof, and that require a substantial amount of scientific knowledge or technical skill, including all of the following:
“(1) Direct and indirect patient care services that ensure the safety, comfort, personal hygiene, and protection of patients; and the performance of disease prevention and restorative measures.
“(2) Direct and indirect patient care services....
“(3) The performance of skin tests, immunization techniques, and the withdrawal of human blood from veins and arteries.
“(4) Observation of signs and symptoms of illness, reactions to treatment, general behavior, or general physical condition, and (A) determination of whether the signs, symptoms, reactions, behavior, or general appearance exhibit abnormal characteristics, and (B) implementation, based on observed abnormalities, of appropriate reporting, or referral, or standardized procedures, or changes in treatment regimen in accordance with standardized procedures, or the initiation of emergency procedures.”
“Section 2725 of the Nursing Practice Act was amended during the 1973–1974 legislative session of the California Legislature to expand the scope of practice for nurses. It emphasizes that ‘nursing is a dynamic field,
c. The Guidelines
Guidelines section 1470 outlines the purpose of the Guidelines as follows:
“The Board of Registered Nursing in conjunction with the Medical Board of California... intends, by adopting the regulations contained in the article, to jointly promulgate guidelines for the development of standardized procedures to be used in organized health care systems which are subject to this rule.9 The purpose of these guidelines is:
“(a) To protect consumers by providing evidence that the nurse meets all requirements to practice safely.
“(b) To provide uniformity in development of standardized procedures.”
Guidelines section 1472 specifies that hospitals “must develop standardized procedures before permitting registered nurses to perform standardized procedure functions.” The regulation further provides that “[a] registered nurse
Guidelines section 1474 outlines the required contents of all standardized procedures as follows:
“Following are the standardized procedure guidelines jointly promulgated by the Medical Board of California and by the Board of Registered Nursing:
“(a) Standardized procedures shall include a written description of the method used in developing and approving them and any revision thereof.
“(b) Each standardized procedure shall:
“(1) Be in writing, dated and signed by the organized health care system personnel authorized to approve it.
“(2) Specify which standardized procedure functions registered nurses may perform and under what circumstances.
“(3) State any specific requirements which are to be followed by registered nurses in performing particular standardized procedure functions.
“(4) Specify any experience, training, and/or education requirements for performance of standardized procedure functions.
“(5) Establish a method for initial and continuing evaluation of the competence of those registered nurses authorized to perform standardized procedure functions.
“(6) Provide for a method of maintaining a written record of those persons authorized to perform standardized procedure functions.
“(7) Specify the scope of suрervision required for performance of standardized procedure functions, for example, immediate supervision by a physician.
“(8) Set forth any specialized circumstances under which the registered nurse is to immediately communicate with a patient‘s physician concerning the patient‘s condition.
“(10) Specify patient record keeping requirements.
“(11) Provide for a method of periodic review of the standardized procedures.”10
d. Labor Code former section 1102.5, subdivision (c)
2. Application
Nosal-Tabor contends that the trial court erred in concluding that she would be unable to prove that her termination was substantially motivated by a violation of public policy, and thus, that Sharp was entitled to judgment as a matter of law on her wrongful termination claim. Sharp maintains that the trial court properly concluded that Nosal-Tabor would not be able to establish this element of her claim because the undisputed evidence established that Sharp terminated her for a legitimate business reason, namely, her failure to perform her ”lawful job duties.” (Italics added.)11
At the outset, we reject the trial court‘s conclusion that there is “no public policy stated” in
In addition,
On appeal, Sharp does not dispute that nurses performing nurse-led cardiac stress testing are required to conduct such testing pursuant to properly
As noted previously, in its motion for summary judgment, Sharp offered four documents that it contended constitute lawful standardized procedures under the Guidelines. The documents are entitled “RN [Registered Nurse] Administered Cardiac Stress Testing Guidelines,” “Cardiac Stress Testing Protocol,” “Treadmill Testing Guidelines,” and “Stress Test Standard Order Set.”12 (See pt. II.B., ante.) After a careful review of the documents, we observe that they fail to include several elements that the Guidelines mandate be included in a standardized procedure. Specifically, Sharp‘s procedures do not include “a method for initial and continuing evaluation of the competence of those registered nurses authorized to perform standardized procedure functions.” (Guidelines, § 1474, subd. (b)(5).) This is a significаnt deficiency, because the requirement relates directly to the need to have procedures that ensure that a nurse is currently competent to perform the standardized procedure function. In addition, Sharp‘s procedures do not contain a “method of maintaining a written record of those persons authorized to perform standardized procedure functions.” (Id., subd. (b)(6).) Finally, Sharp‘s procedures do not “[p]rovide for a method of periodic review of the standardized procedures.” (Id., subd. (b)(11).) Given that Sharp‘s procedures, on their face, fail to include more than a quarter of the mandated components that are to be included in all standardized procedures, no reasonable juror could find that Sharp adopted standardized procedures that comply with the Guidelines.
Sharp‘s arguments to the contrary are not persuasive. First, Sharp contends that Nosal-Tabor failed to provide expert testimony to counter Dr. Cepin‘s oрinion that Sharp‘s procedures complied with the Guidelines. We reject this argument for two reasons. Most importantly, whether Sharp‘s procedures comply with the legal requirements contained in the Guidelines is not a matter subject to expert medical testimony. Thus, Nosal-Tabor was not required to present expert testimony to counter Dr. Cepin‘s statement in his declaration that, in his opinion, Sharp‘s procedures complied with the Guidelines. In addition, Nosal-Tabor presented an excerpt of Dr. Cepin‘s deposition testimony in which he admitted that he “[did not] know” whether Sharp‘s procedures met “the requirements for a standardized procedure.” Nosal-Tabor also presented the deposition testimony of Sharp‘s director of critical care who stated that she did not believe that Sharp had adopted standardized procedures authorizing nurse-led stress testing. Thus, Sharp is not entitled to
Sharp also contends that the legality of its procedures is established by evidence that the Joint Commission13 and the State Department of Public Health “investigated Nosal-Tabor‘s complaints about nurse-led stress testing and found no violations or improper conduct.” We reject this contention because the record does not contain any evidence as to the basis upon which these entities rejected Nosal-Tabor‘s complaints. Thus, even assuming that it would be proper for the trial court to defer to these entities’ interpretations as to whether Sharp‘s procedures for nurse-led stress testing complied with the Guidelines, a point on which we express no opinion, there is nothing in the record explaining the reasoning of either entity upon which the court could reasonably base such deference.14
We also reject Sharp‘s contention that three publications from the Centеrs for Medicare & Medicaid Services establish the propriety of nurse-led stress testing.15 The publications in question pertain to insurance coverage under federal insurance programs for outpatient diagnostic services generically, and do not address the legality of nurse-led stress testing. Thus, we reject Sharp‘s contention that “from these [publications from the Centers for Medicare & Medicaid Services] alone, Nosal-Tabor knew there was no legal requirement for cardiologists to be present during a stress test.”
In sum, Sharp does not dispute that it terminated Nosal-Tabor for refusing to perform nurse-led stress testing.16 In light of our conclusion that no reasonable juror could find that Sharp had adopted standardized procedures to authorize nurse-led stress testing that complied with the Guidelines, we further conclude that a reasonable juror could find that Sharp wrongfully terminated Nosal-Tabor when she refused to perform nurse-led stress testing conducted pursuant to Sharp‘s legally deficient procedures. Accоrdingly, we conclude that the trial court erred in granting judgment as a matter of law for Sharp on Nosal-Tabor‘s wrongful termination in violation of public policy.
Nosal-Tabor claims that the trial court erred in granting judgment as a matter of law for Sharp on her direct claim17 for violation of
1. Labor Code former section 1102.5, subdivision (c)
As noted in part III.B.1.d., ante,
2. Application
In its motion for summary judgment, Sharp contended that Nosal-Tabor would be unable to establish her claim for a violation of
We concluded in part III.B., ante, that Sharp‘s prоcedures for nurse-led cardiac stress testing failed to comply with the Guidelines and that a reasonable juror could find that Sharp terminated Nosal-Tabor for refusing to perform nurse-led stress testing conducted pursuant to these deficient procedures. In light of this evidence, a reasonable juror could also find that Sharp “retaliate[d] against [Nosal-Tabor] for refusing to participate in an activity that would result in... a violation or noncompliance with a state... rule or regulation.” (
Nosal-Tabor claims that the trial court erred in granting judgment as a matter of law for Sharp on her direct claim for violation of
1. Governing law
“(b) (1) No health facility shall discriminate or retaliate, in any manner, against any patient, employee, member of the medical staff, or any other health care worker of the health facility because that person has done... the following:
“(A) Presented a grievance, complaint, or report to the facility, to an entity or agency responsible for accrediting or evaluating the facility, or the medical staff of the facility, or to any other governmental entity.”
Sharp concedes that the trial court erred in requiring exhaustion, but contends that the court committed “harmless error” because the trial court ruled on the merits of Nosal-Tabor‘s
“(d) (1) There shall be a rebuttable presumption that discriminatory action was taken by the health facility... in retaliation against an employee... if responsible staff at the facility or the entity that owns or operates the facility had knowledge of the actions, participation, or cooperation of the person responsible for any acts described in paragraph (1) of subdivision (b), and the discriminatory action occurs within 120 days of the filing of the complaint by the employee....
“(2) For purposes of this section, discriminatоry treatment of an employee, member of the medical staff, or any other health care worker includes, but is not limited to, discharge, demotion, suspension, or any unfavorable changes in, or breach of, the terms or conditions of a contract, employment, or privileges of the employee, member of the medical staff, or any other health care worker of the health care facility, or the threat of any of these actions.”
2. Application
Nosal-Tabor contends that she made numerous complaints to her supervisors and to a Sharp compliance hotline concerning nurse-led stress testing, and that she was retaliated against for making these complaints. In opposing Sharp‘s motion for summary judgment, Nosal-Tabor presented considerable evidence that she had made several complaints to Sharp concerning nurse-led stress testing, including a document describing Nosal-Tabor‘s October 27, 2011 telephone call to a Sharp compliаnce hotline in which Nosal-Tabor stated, “I feel unsafe and unethical practices are being performed in [the] cardiac stress testing area endangering [patients] and requests are being made to have nurses practice out of their scope of practice.” In her deposition, Nosal-Tabor stated that she repeatedly called the hotline throughout the fall of 2011 in order to inquire as to the status of the investigation concerning her complaint. Nosal-Tabor stated that in January 2012, a person from the hotline advised her that nurse-led stress testing was within the scope of practice for a nurse. The document describing Nosal-Tabor‘s October 2011 call indicated that in August 2012, Nosal-Tabor‘s supervisor closed Nosal-Tabor‘s complaint, and noted, “Department guidelines in accordance with ACC [American College of Cardiology] guidelines approved by Cardiac Advisory Council. This [registered nurse] believes cardiologist needs to be present for stress tеsting.”
In her deposition, Nosal-Tabor stated that she repeatedly told her supervisors that she did not think that Sharp‘s procedures for conducting nurse-led stress testing “qualif[ied] as a standard[ized] procedure” because “[it] didn‘t meet... the legal guidelines of a standardized procedure for a nurse to practice medicine.” Nosal-Tabor explained in her deposition that this was
Nosal-Tabor also lodged numerous e-mails in which she raised similar concerns. For example, in a September 16, 2010 e-mail to her supervisor, Nosal-Tabor stated, “I again want to express my concern with nurse-led stress testing. I believe I would be functioning out of my scope of practice.” In an October 6, 2010 e-mail to her supervisors, Nosal-Tabor complained about nurse-led stress testing and stated, “This is not legal.” In an April 14, 2011 e-mail to her supervisors, Nosal-Tabor sought “clarification of [registered nurse] led stress testing,” and requested to see “this new process in writing.” On November 8, 2011, Nosal-Tabor wrote to Sharp‘s chief executive officer concerning a patient and asked, “Please advise if cardiolite21 stress testing supervision on high risk patients is in the scope of practice for a staff nurse.” The chief executive officer responded, “Cardiolite testing is a procedure that is within the purview of nursing practice. Nurses can do stress testing under a standardize[d] procedure.” In a February 2012 e-mail to her supervisor, entitled, “Clarification of new procedure,” Nosal-Tabor wrote, “It is at the discretion of the cardiology nurse to decide when she/he feels competent to perform stress testing without the [nurse practitioner] present.” Nosal-Tabor‘s supervisor responded, “All [registered nurses] in the stress lab should be competent to perform stress tests WITHOUT the [nurse practitioner] present.”
With respect to discipline, Nosal-Tabor presented evidence that on November 8 2011, she received a memorandum entitled, “Clarification of Expectations; Unsatisfactory Performance.”22 The memorandum stated in part that Nosal-Tabor‘s “behavior is disrupting the morale in the department and [is] not conducive to good teamwork.” In addition, on March 5, 2012, Nosal-Tabor received a memorandum entitled “Written Warning, Unsatisfactory Performance.” This memorandum expressly referred to Sharp‘s expectation that Nosal-Tabor would “complet[e] necessary tests, e.g. Exercise Treadmill tests [i.e. exercise-based cardiac stress tests].” Nosal-Tabor also offered a declaration in which she indicated that she had been given a poor performance review and was suspended without pay in February 2012. Finally, it is undisputed that Sharp placed Nosal-Tabor on administrative leave and then terminated her employment in April 2012.
Sharp argues that the trial court properly granted judgment as a matter of law on Nosal-Tabor‘s claim for violation of
Sharp also appears to contend that it was entitled to judgment as a matter of law on Nоsal-Tabor‘s claim for violation of
Accordingly, we conclude that the trial court erred in granting judgment as a matter of law for Sharp on Nosal-Tabor‘s claim for violation of
DISPOSITION
The judgment is reversed. Nosal-Tabor is entitled to costs on appeal.
Haller, Acting P. J., and McDonald, J., concurred.