King v. Betts

Decision Date18 November 2011
Docket NumberNo. M2009–00117–SC–R11–CV.,M2009–00117–SC–R11–CV.
Citation354 S.W.3d 691,33 IER Cases 30
PartiesDorothy KING et al. v. Virginia BETTS et al.
CourtTennessee Supreme Court


Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; John W. Dalton, Senior Counsel, for the appellants, Virginia Betts, Lynn McDonald, Dr. Lindsey Douglas, and Glynda Heinicke.

William J. Haynes, III, Nashville, Tennessee, for the appellee, Patricia Battle.


WILLIAM C. KOCH, JR., J., delivered the opinion of the Court, in which CORNELIA A. CLARK, C.J., and SHARON G. LEE, JJ., joined.


This appeal involves the assertion of the qualified immunity defense in a 42 U.S.C. § 1983 (2008) action filed in state court. A registered nurse employed at a state psychiatric facility publicly disagreed with a change in the facility's procedures for administering prescription medications at night and on the weekend. When the facility declined to change its procedures, the nurse filed a 42 U.S.C. § 1983 action in the Chancery Court for Davidson County against various officials and employees of the then Tennessee Department of Mental Health and Developmental Disabilities, alleging the existence of a hostile work environment and retaliation for the exercise of her constitutionally protected free speech rights. The defendants filed a motion for summary judgment on the nurse's First Amendment claim and a motion for judgment on the pleadings asserting qualified immunity. The trial court, after considering the products of two years of discovery, granted both of the defendants' motions and dismissed the nurse's complaint. The Court of Appeals reversed the trial court with regard to both motions based on its conclusion that material issues of fact precluded both motions. King v. Betts, No. M2009–00117–COA–R3–CV, 2009 WL 4893590 (Tenn.Ct.App. Dec. 18, 2009). We granted the defendants' Tenn. R.App. P. 11 application for permission to appeal to address the procedure for the consideration of qualified immunity defenses in 42 U.S.C. § 1983 actions filed in Tennessee's courts and to determine whether the defendants were entitled to qualified immunity on the facts of this case. We have determined that the defendants are entitled to qualified immunity because the nurse has failed to demonstrate that the defendants' response to her criticism of the changes in the procedures for administering prescription medications violated a clearly established right.


The Tennessee Department of Mental Health operates five regional mental health institutes in Tennessee. The Middle Tennessee Mental Health Institute (“MTMHI”) is a facility in Nashville with the capacity to serve 245 patients. All of MTMHI's patients are involuntarily admitted, which means they have been found to “pose[ ] an immediate substantial likelihood of serious harm ... because of ... mental illness or serious emotional disturbance,” 1 and they have been placed at MTMHI because “all available less drastic alternatives to placement in a hospital or treatment resource are unsuitable to meet the needs of the person.” 2

Providing appropriate medication is an essential part of the treatment regimen for MTMHI's patients. Accordingly, during the time periods relevant to this litigation, MTMHI employed three full-time pharmacists and one part-time pharmacist. These pharmacists were responsible for all medications dispensed at the facility. Their duties included (1) preparing each patient's medications one week in advance, (2) placing these medications in a medication cart, and (3) preparing additional medications whenever they were ordered. The fully stocked medication carts were placed in a locked medication room in each individual unit, and only the medication nurse on duty in each unit had access to the medication room and the medication cart.

Because of budget and staffing constraints in the 1970s, MTMHI changed its policy for dispensing medications by adopting a “night locker” policy. 3 Under this night locker policy, the pharmacists no longer worked on the night and weekend shifts. They continued to prepare and dispense all required medications during their respective shifts, but they were no longer physically present at the facility at night or on the weekend. However, the policy required a pharmacist to be on call at all times.

In order to address unplanned after-hours needs caused by an emergency or by the admission of a new patient, the pharmacists also prepared doses of particular medications, not specific to any individual patient, and placed these medications in a “night locker” adjacent to the pharmacy. The nursing supervisor on duty for the Acute Treatment Program was originally responsible for managing the night locker for the entire facility. However, in August 2003, the responsibility for the night locker was transferred to the nursing supervisor on duty for the Extended Treatment Program because the Acute Treatment Program had more after-hours admissions than the Extended Treatment Program.4

Under the night locker policy, a nurse desiring medication was required to present a physician's order sheet and a drug requisition form containing the required patient information to the appropriate nursing supervisor. Based on these orders, the nursing supervisor obtained the needed medication from the night locker and provided the medication to the requesting nurse. After the nurse received the requested medication, the nurse would administer the medication to the patient.

The nurses working in the Extended Treatment Program, including Patricia Battle and Dorothy King, were concerned about the changes to the night locker policy. They were uncomfortable about their lack of familiarity with the medications needed in MTMHI's other program areas, their ability to contact a pharmacist after hours, the security of the night locker key, and their sense of being overwhelmed by shouldering this new responsibility. In response to the nurses' concerns, MTMHI (1) scheduled in-service training with the head pharmacist, (2) purchased a drug database system for the nurses' use, (3) extended the pharmacists' shifts to increase the amount of time that a pharmacist would be on the premises, (4) required the on-call pharmacist to carry a cellular phone rather than a pager, and (5) scheduled additional meetings to enable the nurses to ask questions and to express concerns. MTMHI also revamped the security policies regarding access to the night locker and instituted a nightly count of the narcotic drugs.

At the outset, a number of nurses expressed concerns that the new tasks they were being asked to perform exceeded the scope of a nurse's duty and, therefore, that they would place their nursing license at risk if they performed these tasks. To allay the nurses' fears, MTMHI asked both the Board of Nursing and the Board of Pharmacy to review its night locker policy, and both Boards found that the policy was proper. In addition, MTMHI asked Elizabeth Lund, the Executive Director of the Board of Nursing, to meet with the concerned nurses. At a meeting on October 2, 2003, Ms. Lund stated that MTMHI's night locker policy did not require nurses to engage in conduct that exceeded the scope of their licenses. In response to a question regarding the consequences of a nurse's refusal to comply with the night locker policy, the nurses were told that “employers have the ability to make assignments and that people who choose not to comply with assignments have to suffer the consequences.”

The meeting with Ms. Lund appeared to satisfy the concerns of all the nurses except for Ms. Battle and Ms. King. On October 8, 2003, Ms. Battle filed a formal grievance regarding the policy. Virginia Betts, then the Commissioner of the Department of Mental Health and Developmental Disabilities,5 responded by letter that the policy was not a grievable matter.6 Commissioner Betts relied on Ms. Lund's opinion that the policy was not contrary to acceptable nursing practice and pointed out that the policy was consistent with policies adopted in other hospitals in Tennessee. She also informed Ms. Battle that she had the right to appeal the denial of her grievance to the Civil Service Commission.

Rather than appealing to the Civil Service Commission, Ms. Battle filed a petition for a declaratory order with the Board of Nursing. Ms. Battle pointed out that the regulations prohibited nurses from “issu[ing] drugs without defining the term and requested that the Board define the term. Following a hearing before the Board on October 22, 2004, Lynn McDonald, MTMHI's chief executive officer, assured Ms. Battle that there would be no retaliation for her efforts to clarify the Board of Nursing's position regarding MTMHI's night locker policy. On October 28, 2004, the Board entered an order (1) equating the term “issues drugs” with the definition of the term “dispense” used in the Tennessee Pharmacy Practice Act of 1996 7 and (2) finding that “the Petitioners have not violated the provisions of Chapter 1000–4–.04(1), and their licenses will not be subjected to disciplinary action within this context.”

Despite the official assurances from the Board of Nursing that adhering to the night locker policy would not place her nursing license in jeopardy, Ms. Battle continued to object to the policy, not only within MTMHI but also in the Nashville media. Internally, Ms. Battle and Ms. King sent between eighty and one hundred memoranda to their superiors, mostly regarding perceived problems with the night locker policy. Ms. Battle also gave an interview to a local television reporter in direct contravention of MTMHI's policy.8

On August 10, 2005, Ms. Battle and Ms. King sued both the Department of Health and the Department of Mental Health and Developmental Disabilities in the Chancery Court for Davidson County seeking a declaratory judgment that the Department of Health had exceeded its...

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