Dishman v. Joseph

• Decision Date: 04 April 2000
• Citation: 14 S.W.3d 709
• Parties: (Mo.App. W.D. 2000) Joan Dishman, Respondent, v. Gloria Joseph, Superintendent, Western Missouri Mental Health Center, Appellant. WD56376 0
• Court: Missouri Court of Appeals

14 S.W.3d 709 (Mo.App. W.D. 2000)

Joan Dishman, Respondent, v. Gloria Joseph, Superintendent, Western Missouri Mental Health Center, Appellant.

WD56376

Missouri Court of Appeals Western District

04/04/2000

Appeal From: Circuit Court of Jackson County, Hon. James D. Williamson, Jr.

Counsel for Appellant: David Lee Neuhaus

Counsel for Respondent: Hugh Lawrence Marshall

Opinion Summary: Gloria Joseph, the Appointing Authority of Western Missouri Mental Health Center (WMMHC), appeals the circuit court decision reversing the Personnel Advisory Board's (PAB) denyial of Joan Dishman's application for attorney's fees following her successful appeal to the PAB of a disciplinary 20-day suspension. In this Court, WMMHC asserts the PAB did not err in denying Nurse Dishman's application for attorney's fees because its decision to suspend Nurse Dishman was substantially justified and the evidence did not show a lack of good faith on its part.

Division II holds: The PAB erred in requiring Nurse Dishman to demonstrate a lack of good faith on the part of the State in order to recover attorney's fees. Section 536.087(1) provides that a prevailing party may recover reasonable fees and expenses in civil actions or agency proceedings, "unless the court or agency finds that the position of the state was substantially justified." Substantial justification means that the State must show that it had a reasonable basis in both fact and law for its position, and that this basis was not merely marginally reasonable, but clearly reasonable, although not necessarily correct. While this standard overlaps with a good faith standard, "good faith" is not a necessary element of determining substantial justification and the claimant does not bear the burden of proving substantial justification. Therefore, the PAB erred in determining that Nurse Dishman had to show lack of good faith of the State in order to show its position was not substantially justified.

The PAB erred in redetermining the facts to which the substantial justification standard should be applied, since those facts had already been determined in the underlying case. Section 536.087(3) specifically provides that the PAB's determination on the issue of substantial justification shall be based on the record made in the agency proceeding for which fees are requested, as well as additional evidence as to how those facts may have appeared to WMMHC at the time of the suspension. The fee hearing is not be treated as a motion for reconsideration. Therefore, when the PAB took it upon itself to reconsider the underlying facts of Nurse Dishman's case and based its decision to deny attorney's fees on new findings of fact, it erred. Instead, the PAB was to take into consideration the facts as determined against WMMHC in the underlying case and how these facts reasonably may have appeared to WMMHC at the time it suspended Nurse Dishman and opposed her attempt to reverse the suspension. Because we cannot say as a matter of law, on this record, how the PAB would have ruled had it correctly applied the law to the facts in this manner, we remand for further proceedings consistent with the opinion.

Laura Denvir Stith, Judge

Gloria Joseph, the Appointing Authority of Western Missouri Mental Health Center (WMMHC), appeals the decision of the circuit court reversing the decision of the Personnel Advisory Board (PAB) denying Joan Dishman's application for attorney's fees following her successful appeal to the PAB of a disciplinary 20-day suspension. In this Court, WMMHC asserts the PAB did not err in denying Nurse Dishman's application for attorney's fees because its decision to suspend Nurse Dishman was substantially justified and the evidence did not show a lack of good faith on its part. We find, however, that the PAB erred in effectively placing the burden on Ms. Dishman to show that the State did not act in good faith, rather than placing the burden on the State to prove that its position was substantially justified. We find that the PAB further erred in redetermining the facts concerning Nurse Dishman's suspension, since those had already been determined by the PAB in the suspension hearing, and that determination was not appealed. The only issue before the PAB on Nurse Dishman's fee application was whether WMMHC's position was substantially justified based on the facts previously found and the additional information shown at the hearing as to matters which led to its decision to suspend her. We reverse and remand so that the PAB can determine the attorney's fee issue under the proper standard, as set forth below.

I. FACTUAL AND PROCEDURAL HISTORY

Nurse Dishman has been employed as a registered nurse with WMMHC since April 1986. In 1995, Nurse Dishman worked for WMMHC as a charge nurse at the Unit 5 Center of the hospital. According to the Director of Nursing, as a charge nurse, Nurse Dishman was responsible for all of the nursing care and for supervision of all subordinate staff on Unit 5 during her shift. Nurse Dishman worked a full-time schedule. Because she had undergone surgery in June 1995 and had only returned to work full-time in September 1995, however, she had an understanding that she would be permitted to leave work early when necessary due to fatigue.

According to the evidence adduced at Nurse Dishman's suspension hearing before the PAB, on September 26, 1995, F.G. was arrested by the police and admitted to Unit 5 for treatment of delirium and psychosis. It was known, both to the police and to WMMHC personnel, that F.G. had AIDS. During F.G.'s admission to WMMHC, F.G. was agitated and struggled a great deal, resulting in an injury around his mouth. Because of his agitation and delirium, F.G. arrived at Unit 5 in restraints and remained in restraints, but was still able to spit the blood and mucus from his mouth injury on individuals who came near him.

Because F.G. was in restraints, hospital policy required that certain procedures be followed, such as constant monitoring of the patient, hourly offers of water, range of motion exercises, bladder relief, etc. At one point during assistance, F.G. gained control of his bedpan and threw its contents on the walls of his room and on Unit 5 staff members. Due to F.G.'s aggressive and agitated behavior involving his bodily fluids, and his known AIDS condition, WMMHC personnel closed the door to his room at some time during his treatment. A psychiatric technician was always staffed outside F.G.'s door when it was closed, and the technician then observed F.G. through a window in the closed door. There was conflicting evidence as to whether Nurse Dishman was aware that the staff had closed F.G.'s door.

Although large amounts of medication were administered to F.G., his agitated and aggressive condition failed to improve. At around 1:00 p.m. on September 27, 1995, F.G.'s physician, Dr. Parrikh, expressed a concern to other members of F.G.'s treatment team, including Dr. Parrikh's supervisor, Dr. Kamal, and senior members of the nursing staff, that F.G.'s agitation and delirium may be signs of a brain infection, and this might explain why he was not responsive to the psychotropic medication. Dr. Parrikh concluded that it would be advisable to transfer F.G. to Truman Medical Center (TMC) for a spinal fluid examination.

Dr. Parrikh testified that, sometime after his discussion with team members, possibly around 1:30 p.m., he called Nurse Dishman and gave her verbal instructions to transfer F.G. to TMC, but that she refused to follow his verbal instructions. Nurse Dishman testified that, to the contrary, she never received a verbal order from Dr. Parrikh to transfer F.G., and that, while nurses are often expected to take verbal orders from physicians, verbal orders to transfer patients are not allowed. Dr. Parrikh admitted that a physician's written order in the patient's chart is required for a transfer to a different hospital.

Dr. Parrikh further testified that, after the nursing staff refused to accept his verbal order, at the advise of Dr. Kamal he placed a written order for transfer to TMC in F.G.'s chart some time between 2:15 p.m. and 2:30 p.m. that day, and gave the written transfer order to one of Nurse Dishman's subordinates. At 2:30 p.m. that same day, Nurse Dishman left work early, as permitted, due to the fatigue caused by her prior surgery. If Dr. Parrikh was correct as to when he placed the written order to transfer in the file, it may have occurred just before or just at the time she left the hospital. Another nurse, Ida Bowen, testified that she was present at the time Dr. Parrikh made the entry for transfer in F.G.'s chart, and this did not occur until 3:00 p.m., after Nurse Dishman had left work.

John Clemmons, a medication nurse, testified that at approximately 3:30 p.m. he checked on F.G., and, at that time, there was urine dripping under F.G.'s bed onto the floor, as well as spots of dried urine on the floor. Nurse Clemmons and other staff washed F.G. and put him in clean clothing once they discovered his urine-soaked condition, and he was transferred to TMC at 4:00 p.m. Nurse Clemmons testified that F.G.'s urine-soaked condition would have been apparent to anyone looking into the room or checking on F.G. However, both Muriel Lapsley, who was WMMHC's Director of Nursing, and Dr. Parrihk, testified that they had been in F.G.'s room at 1:45 p.m. and 2:15 p.m., respectively, and that the urine-soaked condition of the bed did not exist at those times.

There was also testimony presented that F.G.'s vital signs were checked at 6 a.m. and 4 p.m., and there was conflicting testimony as to whether this was in accordance with hospital policy or whether more frequent checks should have been made, and as to whether the checks that were made were properly recorded on all of the necessary forms. There was also conflicting testimony as to whether additional p.r.n. medications should have been given, and, if so,...