Tuesday, October 8, 2013

Court of Appeals Addresses Termination of Health Care Employment

Court of Appeals Addresses Termination of Health Care Employment

      In a recent decision, the Kentucky Court of Appeals considered a trial court’s grant of summary judgment against numerous claims for wrongful termination of employment in the healthcare setting.  Ultimately, the determination of the trial court was upheld in part and reversed and remanded in part.  Foster v. Jennie Stuart Medical Center, Inc., No. 2011-CA-001136-MR, No. 2011-CA-001137-MR (Sept. 20, 2013).  This opinion has been designated as “To Be Published.”
       Foster and Oliver were registered nurses at the Jennie Stuart Medical Center (JSMC).  Debbie Bower, Austin Moss and Terry Peeples, were individual officers of JSMC.  An anonymous e-mail was sent to the Kentucky Board of Nursing raising questions as to certain nursing practices at JSMC.  After that anonymous e-mail was forwarded on to JSMC, Bower and Moss undertook an investigation thereof.  Foster and Oliver alleged that “the investigation was not initiated to rectify the complaints listed in the e-mail but to find the sender or senders of the e-mail.”  Slip op. at 3.  Eventually, Foster and Oliver were terminated, it being explained that the termination “was in the best interest of [JSMC].”  Foster and Oliver then filed suit against JSMC, with the suits ultimately being consolidated.  Certain of the claims they each set forth were similar, while Oliver had two that were unique to her.  After suit was filed, and as such well after the actual terminations, it was disclosed that Foster had been the sender of the e-mail.
      Initially, Oliver brought a claim against JSMC and certain of its officers based upon KRS § 216B.165(3), it providing, inter alia, that a healthcare facility may not discipline or terminate an employee who makes a report raising questions as to the quality of care.  The trial court dismissed Oliver’s KRS § 216B.165(3) claim on the basis that she had not filed a report.  This determination was upheld by the Court of Appeals.  Distinguishing this statute from KRS § 61.102(2), the Kentucky Whistleblower Act, which extends its protections to those who assist an employee in making a report, the statute at question did not.  As the e-mail came from Foster and not Oliver, Oliver could not claim the benefit of the statute.
      Even as, however, the Court of Appeals upheld the dismissal of the statutory claim, it allowed a claim for common-law wrongful termination to proceed.  Essentially, while Oliver could not claim the benefit of KRS § 216B.165(3), if it could be shown that Oliver was terminated because it was thought she been the sender of the e-mail, such could support a claim for wrongful termination; “[I]f Oliver was discharged because it was believed she made the anonymous report, it would violate the stated public policy to ensure safe health-care facilities thereby meeting the elements of common-law wrongful termination.”  Slip op. at 9.

      Next, both Foster and Oliver brought claims against JSMC for its failure to comply with the termination of employment right of appeal as set forth in the company’s employee manual.  Upon their termination, Foster and Oliver were cut off from JSMC’s computer networks, including the on-line version of the employee manual.  They asserted several requests for that document were ignored.  Still, JSMC argued that as Foster and Oliver failed to appeal their termination within the ten days provided for in the manual, they waived their right to do so.  The Court of Appeals found that the trial court acted in error in dismissing these claims.  Rather, additional fact finding was necessary as to whether JSMC deprived Foster and Oliver of the opportunity to appeal their termination as provided for in the employee manual and whether or not JSMC had indeed failed to respond to the request for the terms of the manual.
      With respect to claims for defamation based on JSMC’s explanation that Foster and Oliver were terminated “in the best interest of the hospital,” the Court of Appeals upheld the trial court’s grant of summary judgment to JSMC.  As to the statement made and the plaintiffs’ argument that it indicated some professional, moral or legal failing as to “the standards required of registered nurses,” the Court of Appeals found rather:
The statement tells the listener nothing about [the plaintiff’s] professional abilities or the reason for the termination.  The statement is neutral at best, vague at worst.  Slip op. at 11.
      The trial court’s dismissal of all of the claims against the individual officers of JSMC was upheld except with respect to the failure to comply with the appeal rights set forth in the employee manual.  The Court of Appeals was not saying, however, that liability necessarily attached, but rather it noted it could not tell whether such a claim had even been made.

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