Bachtel v. Miller County Nursing Home Dist.

Decision Date29 July 2003
Docket NumberNo. SC 84835.,SC 84835.
Citation110 S.W.3d 799
PartiesR. Mitchel BACHTEL and Cary M. Bisbey, Appellants, v. MILLER COUNTY NURSING HOME DISTRICT, Respondent.
CourtMissouri Supreme Court

Daniel N. McPherson, James W. Riner, Jefferson City, for Appellants.

Elizabeth S. Raines, Thomas E. Rice, Jr., Kara T. Stubbs, Kansas City, for Respondent.


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, RSMo 2000.1 The Miller County Nursing Home District (the District) owns and operates the Miller County Nursing Home.

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. Secs. 198.090 and 198.093.

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.


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 sections 198.200 to 198.360, RSMo 2000. Bachtel began working as an at-will employee for the District in February 1995. Bisbey, also an at-will employee, was employed by the District as medical director of the Miller County Nursing Home in September 1997.

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 Division of Aging (Division),2 recounting deficiencies at the home.

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 section 198.070.10. The District filed a motion to dismiss the petitions for failure to state a claim upon which relief could be granted, arguing that because it is a political subdivision of the state it is immune from plaintiffs' tort claims based on the doctrine of sovereign immunity, as set out in section 537.600. The circuit court dismissed the petitions with prejudice. After opinion by the Court of Appeals, Western District, this Court granted transfer. Mo. Const. art. V, sec. 10.


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

The Act was enacted as a response to public concerns about elderly residents of nursing homes and the inadequacy of state laws and regulations governing nursing home facilities.5 The Act contains provisions enforcing laws requiring proper treatment of residents, including provisions for revocation of licenses,6 civil penalties for non-compliance with the Act's standards,7 and required training of nursing home staff.8

Significantly, section 198.0709 srequired mandatory reporting by nursing home staff and doctors of suspected acts of abuse and neglect of residents.10 A violation of this reporting law is a class A misdemeanor. Sec. 198.070.3. Under section 198.070.8, an individual who makes a good faith report of a suspected act of abuse or neglect is protected from criminal or civil liability.

Additionally, section 198.070.10 provides that neither a nursing home operator nor any person in authority in a facility shall retaliate against any employee who reports suspected incidents of patient abuse and/or neglect, stating in pertinent part:

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.

Id. at 525-26.

Clark further held that, although an at-will employee, plaintiff was protected from termination for any of the reasons prohibited by section 198.070.10, as that section made applicable to nursing homes and nursing home districts the public policy exception to the traditional rule that at-will employees can be dismissed for any reason. Id. at 525-526. 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) (holding when an at-will employee has been discharged for reporting to his superiors or to public authorities misconduct that constitutes a violation of the law and of well-established and clearly mandated public policy, the employee has a cause of action in tort for damages for wrongful discharge).

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 section 198.070.10. As Clark noted, any contrary interpretation "[w]ould discourage employees from complying...

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