Faulkner v. Ar Childrens Hospital

• Decision Date: 14 March 2002
• Docket Number: 01-860
• Citation: 69 S.W.3d 393
• Parties: SHERRY C. FAULKNER, APPELLANT, VS. ARKANSAS CHILDREN'S HOSPITAL; BONNIE TAYLOR, M.D.; MICHELLE MOSS, M.D.; LORRIE BAKER, R.N.; and CARL CHIPMAN, R.N., C.C.P., APPELLEES, SUPREME COURT OF ARKANSASOpinion Delivered 14 March 2002 APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, NO. CV 2000 007486, HON. WILLARD PROCTOR, JR., JUDGE, AFFIRMED. ROBERT L. BROWN, Associate Justice Appellant Sherry C. Faulkner appeals from an order granting the motion to dismiss filed by appellees Arkansas Children's Hospital (ACH) and four medical professionals who worked at ACH: Dr. Bonnie Taylor, Dr. Michelle Moss, registered nurse Lorrie Baker, and registered nurse Carl Chipman. We hold that the circuit court did not err in granting the Rule 12(b)(6) motion, and we affirm. The facts are taken from the allegations in Faulkner's complaint. Because we are reviewing an order granting a motion to dismiss under Ark. R. Civ. P. 12(b)(6), we accept the facts alleged as true. King v. Whitfield, 339 Ark. 176, 5 S.W.3d 21 (1999). Faulkner was employed at ACH as the Extra Corporeal Membrane Oxygenation (ECMO) Technical and Educational Coordinator in 1989. ECMO is a medical process which provides support to patients with respiratory or cardiopulmonary failure. ECMO is used when patients are not benefitted by other supportive therapies such as conventional ventilation. Faulkner held the position of ECMO Coordinator from
• Court: Arkansas Supreme Court

SHERRY C. FAULKNER, APPELLANT VS ARKANSAS CHILDREN'S HOSPITAL; BONNIE TAYLOR, M.D.; MICHELLE MOSS, M.D.; LORRIE BAKER, R.N.; and CARL CHIPMAN, R.N., C.C.P., APPELLEES

SUPREME COURT OF ARKANSAS

No. 01-860

Opinion Delivered 14 March 2002

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, NO. CV 2000 007486, HON. WILLARD PROCTOR, JR., JUDGE,

AFFIRMED.

ROBERT L. BROWN, Associate Justice

Appellant Sherry C. Faulkner appeals from an order granting the motion to dismiss filed by appellees Arkansas Children's Hospital (ACH) and four medical professionals who worked at ACH: Dr. Bonnie Taylor, Dr. Michelle Moss, registered nurse Lorrie Baker, and registered nurse Carl Chipman. We hold that the circuit court did not err in granting the Rule 12(b)(6) motion, and we affirm.

The facts are taken from the allegations in Faulkner's complaint. Because we are reviewing an order granting a motion to dismiss under Ark. R. Civ. P. 12(b)(6), we accept the facts alleged as true. King v. Whitfield, 339 Ark. 176, 5 S.W.3d 21 (1999). Faulkner was employed at ACH as the Extra Corporeal Membrane Oxygenation (ECMO) Technical and Educational Coordinator in 1989. ECMO is a medical process which provides support to patients with respiratory or cardiopulmonary failure. ECMO is used when patients are not benefitted by other supportive therapies such as conventional ventilation.

Faulkner held the position of ECMO Coordinator from June 1, 1989 to February 10, 1999. When she was first hired to open ACH's ECMO facilities in 1989, she purchased the necessary equipment and otherwise prepared ACH for the beginning of its ECMO program. Faulkner selected the program's original staff, including nurse Lorrie Baker, whom she selected to fill the position of ECMO Nurse Coordinator. Faulkner also established a mobile ECMO unit. While in the position of ECMO Coordinator, Faulkner was a member of and an active participant in several national ECMO organizations. In her capacity as a cardiovascular perfusionist, she won the 1999 Perfusionist of the Year award from the American Society of Cardiovascular Perfusion. Faulkner is also the author of scientific articles concerning ECMO.

In the summer of 1990, after the ECMO program had been in operation for roughly a year, ACH hired Dr. Mark Heulitt to be the pediatric ECMO physician. Heulitt represented that his experience with ECMO was extensive. Faulkner, however, reported to her superiors that when Heulitt worked on his first ECMO patient in October 1990, he "did not know what he was doing" and was "totally lost." Additionally, Heulitt's former employer provided information that contrary to Heulitt's representations, his experience with neonatal ECMO was limited. Faulkner's superiors took no action following her report.

Heulitt later wrote a letter to one of Faulkner's superiors, ECMO Medical Director Dr. Jim Fasules, describing Faulkner as "emotionally unstable." The letter was written in response to a meeting between Faulkner and Heulitt that was called to discuss an incident in which a patient became endangered during a mobile ECMO procedure. While discussing the issue, "Faulkner was not allowed to carry out the orders of . . . Dr. Fasules." Faulkner wrote a memo to Fasules describing the meeting, and Fasules wrote a letter in response in which he too described Faulkner as emotionally unstable.

In December of 1991, Dr. Taylor and nurse Baker began conspiring together to usurp Faulkner's authority and responsibilities as ECMO coordinator. They circumvented communications with her and changed her call schedule and the standard of care for patients without consulting her. They also made personnel decisions without her consent.

In December of 1997, a patient was flown from Louisiana to ACH and was placed on the mobile ECMO. The patient was administered a larger quantity of drugs than should have been administered. The cause of the mistake was nurse Chipman's and nurse Baker's use of untested equipment and lack of attention to detail in the loading and securing of the ECMO equipment. Dr. Moss was the responsible physician, but she blamed Faulkner for the incident. Since that time she has been short and abrupt with Faulkner and has wrongly accused her of improper conduct.

In the fall of 1998, Dr. Moss made a decision to place a patient on ECMO. Faulkner was not consulted even though she was the ECMO coordinator on call that day. Nurse Baker did not report the patient's status to Faulkner. When Faulkner arrived on the scene, she noticed that the drug delivery apparatus was not properly arranged and that as a result, the patient was not being administered the necessary drugs. The patient had low blood pressure because of this mistake. Faulkner corrected the mistake and remained with the patient. The next day, Dr. Moss blamed Faulkner for changes in the patient's EKG in front of other ACH employees. She accused Faulkner of being "sloppy and/or incompetent," even though she knew that the accusation was not true.

At about this time, Faulkner requested an internal audit of the ECMO unit to identify areas needing improvement in patient care. She identified other ECMO staff members' mistakes to her superiors and reported that Dr. Taylor was not communicating properly with her. Faulkner also maintained that nurse Baker deliberately concealed staff meetings from her to keep her from attending. Nurse Baker further deliberately gave false information to other ECMO centers regarding Faulkner and her duties. Additionally, Faulkner advised her superiors that nurse Baker did not follow protocols regarding ECMO patients during this time period. Despite Faulkner's revelation of specific patients and documented breaches in their care and paperwork, ACH took no disciplinary action towards nurse Baker.

In February 1999, ACH alleged that Faulkner mishandled three patients. The incidents occurred on February 5, 9, and 10 of that year. Two of the incidents resulted in blood or fluid spillage. Faulkner specifically disputed the mishandling allegations and maintained that she did the best job she could under the circumstances. She reviewed her actions with the attending physician in each incident. Her actions did not place patients in jeopardy. Also in February of that year, nurse Chipman told Dr. Taylor that Faulkner had made many mistakes when performing ECMO. He said that Faulkner "had been good for about 2 years but then had dropped off in her productivity." Nurse Chipman knew that his statement was untrue.

On February 12, 1999, Faulkner was called to a meeting with Dr. Taylor and registered nurse Mary McDaniel, a vice-president of ACH. At that time, Faulkner was asked to give a statement regarding one of the three patients whom Faulkner allegedly mishandled earlier that month. At the meeting, Dr. Taylor and nurse McDaniel had a copy of Faulkner's medical insurance program and ACH benefits plan. They had marked sections covering psychiatric conditions. Nurse McDaniel asked Faulkner to leave the hospital and not return until she was contacted to do so. Nurse McDaniel further cautioned Faulkner not to do any work from home that concerned ECMO. ACH placed Faulkner on an emergency administrative leave of absence, vaguely citing Faulkner's state of mind as the reason for the leave.

ACH and Dr. Taylor later insisted that Faulkner obtain a psychological evaluation for "extreme paranoia, stress, and possible psychomotor disorder." Dr. Taylor stated that she thought Faulkner was "stressed out" and cited the February 10, 1999 incident in which Dr. Taylor asserted that Faulkner dumped pressurized blood on the floor. No formal documentation of the reasons for the administrative leave was presented to Faulkner. Faulkner was not given notice of the cause for her suspension or reassignment, and she was not given a hearing or other similar opportunity to respond to the alleged deficiencies.

On February 18, 1999, Faulkner received a psychological examination from Dr. Cheralyn Powers. Dr. Powers's conclusions were that Faulkner suffered a paranoid reaction to being placed on leave. Dr. Powers could not conclude that any paranoia was present before the administrative action was taken by ACH, and she recommended that Faulkner return to her job. Dr. Powers's report was not issued until March 1, 1999.

In a letter dated March 17, 1999, ACH accused Faulkner of several improper acts and errors in her handling of ECMO patients during the month of February 1999. Faulkner was not given a chance to respond, despite the fact that "[t]he events described in the ACH letter [were] incorrect or grossly misinterpreted and mischaracterized."

ACH told Faulkner that the circumstances surrounding her leave would not be made public and would be disseminated only on a need-to-know basis. However, while on leave, Faulkner received a telephone call from a person who did not work at ACH and did not live in Little Rock. The person knew the circumstances surrounding her administrative leave. Faulkner believes that it was nurse Baker and Dr. Taylor who were responsible for any unauthorized disclosure of Faulkner's situation. Additionally, nurse Chipman and others knew of Faulkner's being placed on leave before she did and openly discussed it with staff members.

ACH did not follow its own internal procedures in placing Faulkner on administrative leave. ACH may place an individual on leave for three days to investigate alleged incidents, but Faulkner was placed on leave for approximately five weeks. Additionally, when Faulkner initiated a grievance procedure, as allowed by ACH procedures, ACH again did not follow its own procedures because it omitted steps in the grievance process. Specifically, ACH did not issue a written report on the grievance following investigation, as mandated by its procedures. ACH also prematurely terminated Faulkner's complaint process.

Faulkner was not allowed to return to work until April 1, 1999. She was returned to the position...