Hughes v. Norton Healthcare
| Decision Date | 11 December 2020 |
| Docket Number | NO. 2019-CA-0222-MR,2019-CA-0222-MR |
| Parties | ELAINE HUGHES APPELLANT v. NORTON HEALTHCARE, INC. APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
Having reviewed the record in conjunction with all applicable legal authority, we affirm the circuit court's summary judgment on Hughes's claims of retaliation and intentional infliction of emotional distress. We reverse the circuit court's judgment with respect to Hughes's claim for wrongful discharge in violation of public policy and remand for additional analysis and factual findings.
Until the events giving rise to this litigation occurred, 55-year-old Hughes was employed by Norton as an Assistant Nurse Manager ("ANM"). Hughes began working at Norton in 1987 as a staff nurse in the obstetrics and gynecology departments. Over the years, she did her job well and received several promotions, culminating in her promotion to ANM for the hospital's Operating Room ("OR") in 2010.
As an ANM in the OR, Hughes's duties were largely managerial, and she rarely scrubbed in on cases. Instead, Hughes ran the Surgery Scheduling Board, meaning she organized the flow of cases in the OR, scheduling nurses and coordinating with surgeons, anesthesiologists, and other hospital professionals to do so. Hughes's additional responsibilities included scheduling staff, handling some payroll duties, meeting with other ANMs weekly, and working an on-callshift one weekend approximately every five weeks. As an ANM, Hughes was an at-will employee, and she understood that Norton could terminate her employment at any time, with or without cause.
In March of 2015, Kimberly Ransdell was hired by Norton as the Surgery Manager. This made Ransdell Hughes's direct supervisor. Ransdell reported to Pam Photiadis, the Director of Surgical Services. Both Ransdell and Photiadis agreed that Hughes was a good nurse and well-qualified for her position. According to Photiadis, Hughes was a "fine woman" but had at times exhibited poor judgment in her employment. Hughes received a disciplinary corrective action in 2010 prior to Ransdell's becoming her direct supervisor and several "coachings" from Ransdell regarding scheduling in the OR in the spring and summer of 2015.
In May of 2015, just months after Ransdell became Surgery Manager, Ransdell recorded notes of several "coaching" meetings she conducted with Hughes. According to Ransdell, keeping coaching notes was common practice for supervisors, and she did so for all the ANMs under her supervision. In May, Ransdell documented that she met with Hughes to discuss improving Hughes's working relationship with anesthesia with regard to scheduling cases in the OR. The two met again in June to address comments Hughes made to a Norton surgeon about getting her hands "slapped" during the May coaching. In October, Ransdellmet with Hughes twice more to discuss an incident in which Hughes "bumped" a patient's OR time for a non-emergency case, causing the patient's surgery to be cancelled for a second time and postponed until the second day. Ransdell did not take any written corrective action related to these notes, nor did she provide Hughes with a copy of the notes. Hughes claims in her post-deposition affidavit that these meetings did not take place.
Hughes was known by her supervisors and coworkers to voice her opinions, which she did in spring of 2015 when she became aware that Norton's OR was unprepared to deal with an increasing rate of obstetrical issues. Hughes was particularly alarmed by an increase in cases involving placenta accreta, a serious and often sudden pregnancy complication that can result in severe blood loss following delivery. Hughes had observed a growing trend in accreta patients being transferred from the Labor and Delivery section of the hospital to the OR without notice and believed that the OR needed a plan in place for handling these emergency cases. Other Norton employees shared the same patient safety concerns, including Ransdell and Photiadis; Hughes was not alone.
In particular, Hughes was involved in two incidents in which patients with severe obstetric complications arrived in the Norton OR without warning. The first occurred in late spring or early summer of 2015, when Labor and Delivery called Hughes in the OR to tell her that they were bringing an accretapatient into the OR immediately, without ensuring that there was a clean room available before doing so. The second incident also occurred that summer when Labor and Delivery sent a patient to the OR for monitoring and testing, neither of which were ordinary functions of the OR.
After the second incident, Hughes was asked to meet with Risk Management in a nondisciplinary capacity to address what had happened. To her knowledge, Hughes was the only employee to meet with Risk Management about obstetric issues. During that meeting, Risk Management acknowledged that there was a "disconnect" in communication between Gynecology and the OR. Although that particular event had not involved an accreta patient, Hughes also voluntarily brought up her concerns regarding the accreta issue.
Hughes testified that she also reported one or both of the incidents to a number of Norton employees: Ransdell, Photiadis, the Gynecology ANM Theresa Vincent, Norton Anesthesia, Risk Management, and several other ANMs. The other Norton employees all agreed that the OR needed a specific plan for dealing with accreta patients to ensure patient safety. Both Ransdell and Photiadis testified that they encouraged Hughes to raise the issue. According to Photiadis, not only was Hughes not in trouble for reporting the accreta issue, she was a part of the solution to the problem. It was Norton's policy to encourage reporting patient care and safety issues, and employees commonly did so.
Later that summer, Hughes, Ransdell, anesthesia, Labor and Delivery, and other employees met to discuss a plan for handling accreta patients. Hughes testified that she was aware that Vincent created a designated "accreta cart" containing all of the necessary instrumentation and supplies for handling accreta cases. The parties dispute whether Hughes's concerns were addressed by fall of 2015, when Hughes was terminated. Hughes claims to have continued her complaints until then; Photiadis, however, testified that a plan had been formulated to address the accreta issue by 2016.2 However, Photiadis admitted that a written plan was not established until 2017.
On Friday, October 30, 2015, Hughes was scheduled to be the on-call ANM for the weekend shift ending the morning of Monday, November 2, 2015.3 Hughes said that being on-call as an ANM required "answer[ing] questions, phone calls, [and] trouble-shoot[ing] if there was an issue in surgery." Appellant's Br. Exhibit 1, Hughes Dep. at 20. According to Ransdell, Hughes was to support the staff in whatever way was needed, whether that be coming into the hospital to helpin the OR or making phone calls from home. Norton's On-Call Policy requires employees to "be available" for emergencies and "to return to work or respond to telephone inquiries, as needed." Ransdell Dep. Ex. 5.
That night, Hughes went to a Halloween party. Hughes testified that she had a "vodka diet cherry 7-Up" around 6:30 p.m. while getting ready for the party. Appellant's Br. Exhibit 1, Hughes Dep. at 44. Hughes testified that her behavior was not unusual - she would routinely have a glass of wine or a cocktail while on-call.4 She and her then-boyfriend/now-husband, Luke Howard, arrived at the party between 8:30 and 8:45 p.m. While at the party, Hughes had a vodka mixed drink at approximately 9 p.m. and half a shot of tequila around 9:15 p.m.
Hughes and Howard left the party sometime between 11 p.m. and midnight and went to Howard's home for the night. There, Hughes became ill, which she later attributed to food she ate at the party. Hughes took half a Phenergan, a prescription medication known for its sedative and antiemetic effects, to alleviate her nausea. Hughes was aware that Phenergan can have a sedative effect. Hughes then went to bed. At no point did Hughes ask someone to cover her on-call shift.5
At 1:05 a.m., Marsha Sharp, the House Supervisor at Norton, called Hughes for help dealing with a hospital emergency. A female patient, bleeding profusely after having recently given birth to twins, had just arrived in the OR for emergency intervention while Sharp was already dealing with a patient in cardiac arrest. Sharp had tried to contact the on-call team to handle the emergency but could not locate the surgical tech on-call, Erica Webb.6 Sharp called Hughes regarding her inability to contact Webb, but Hughes told Sharp to keep trying to reach Webb. Hughes testified that, during that brief two-minute phone call, she gave Sharp the names of several techs who typically took night calls or worked emergencies to call for help. However, Sharp wrote in her notes from that night that Hughes only told her to "call ST [surgical tech] again."
Sharp called Hughes two more times at 1:25 and 1:33 a.m. regarding the emergency situation. These phone calls lasted a combined total of three minutes. According to Sharp's notes, Sharp called Hughes at 1:33 a.m. to inform her that they had no surgical tech or anesthesiologist in the OR; they had had to borrow staff from obstetrics until the situation was resolved and their own staffcould...
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