Kirk v. Mercy Hosp. Tri-County

• Decision Date: 01 March 1993
• Docket Number: D,TRI-COUNT,No. 17983,17983
• Citation: Kirk v. Mercy Hosp. Tri-County, 851 S.W.2d 617 (Mo. App. 1993)
• Parties: 8 IER Cases 522 Pauline KIRK, Plaintiff-Appellant, v. MERCY HOSPITALefendant-Respondent.
• Court: Missouri Court of Appeals

Page 617

851 S.W.2d 617

8 IER Cases 522

Pauline KIRK, Plaintiff-Appellant, v.MERCY HOSPITAL TRI-COUNTY, Defendant-Respondent.

No. 17983.

Missouri Court of Appeals,

Southern District,

Division Two.

March 1, 1993.

Motion for Rehearing or Transfer to

Supreme Court Denied

March 24, 1993.

James R. Cox, Springfield, for plaintiff-appellant.

Frank M. Evans, Maureen M. Jersak, Miller & Sanford, P.C., Springfield, for defendant-respondent.

MONTGOMERY, Presiding Judge.

Pauline Kirk(hereinafter Plaintiff) appeals from the circuit court's judgment which sustained a Motion for Summary Judgment filed by Defendant Mercy Hospital Tri-County(hereinafter Hospital).¹Seeking reversal, Plaintiff's single point contends the trial court erroneously interpreted (a) the law in concluding "Missouri's public doctrine is too narrowly defined to allow a true public policy exception to the employment-at-will doctrine," and (b) the law and facts in concluding there is "no clear mandate in law or regulation prohibiting the actions of the [Hospital] of which the [Plaintiff] complained; namely, [her] discharge as a nurse."We agree with Plaintiff and for reasons which follow reverse and remand.

Plaintiff, a registered nurse, started working on a part-time basis for the Hospital on December 24, 1982.On July 12, 1983, Plaintiff was employed full time as a charge nurse with the duty to supervise other nurses and assistants on the ward during her shift.In this capacity, she reported directly to Norma Sellers, the Hospital's Director of Nursing.

Shortly before Plaintiff's termination, Debbie Crain was admitted to the Hospital as one of Plaintiff's patients.Soon after Debbie Crain's admission Plaintiff, as required, made a nursing assessment and nursing diagnosis of that patient's condition.Her nursing diagnosis was toxic shock syndrome, a condition that results in death, if untreated.Plaintiff anticipated immediate doctor's orders for antibiotics to combat the life-threatening infection.Time passed with no such orders, and Plaintiff repeatedly discussed the situation with Norma Sellers.After showing extreme concern, Plaintiff was instructed by Sellers to "document, report the facts and stay out of it."The treating doctor never gave the orders Plaintiff expected for the proper care of Debbie Crain.When protocol allowed, Plaintiff discussed Debbie Crain's condition with Dr. Jumper, the Chief of Medical Staff.Appropriate steps were then taken, but to no avail.Debbie Crain later died from the effects of massive internal infection.

Within a day or two prior to Plaintiff's termination on March 22, 1984, Norma Sellers was visited by a member of Debbie Crain's family who informed her that Plaintiff had offered to obtain Debbie Crain's medical records for the family.On the day of Plaintiff's termination, a Hospital employee reported to Sellers that Plaintiff had stated Debbie Crain's physician was "paving her way to heaven."Sellers advised Mr. Lorimer, the Hospital Administrator, of Plaintiff's statement.He directed Sellers to terminate Plaintiff that day, which she did.

Plaintiff received a letter from the Hospital's attorney soon after her discharge which admonished her to "immediately cease making any further false statement regarding [the Hospital]."Plaintiff then requested a service letter, and the Hospital made the following response:

The reason and cause for your dismissal is that it came to the attention of the hospital administration that on several occasions you made certain statements concerning the hospital, its staff or employees which were untrue and detrimental to the hospital.These statements exhibited a lack of support for the hospital administration and medical staff.

Based on these facts, the trial court entered summary judgment in favor of the Hospital, finding that "Missouri's public doctrine is one too narrowly defined to allow a true public policy 'exception.'... Specifically, the Court can find no clear mandate in law or regulation prohibiting the actions of the [Hospital] of which the Plaintiff complains; namely, her discharge as a nurse."

In reviewing a summary judgment, the appellate court must scrutinize the record in the light most favorable to the party against whom the summary judgment was entered and accord that party the benefit of every doubt.Germania Bank v. Thomas, 810 S.W.2d 102, 105(Mo.App.1991).Summary judgment is a drastic remedy and is inappropriate unless the prevailing party has shown that he is entitled to judgment as a matter of law.Maryland Cas. Co. v. Martinez, 812 S.W.2d 876, 879(Mo.App.1991).The trial court may enter a summary judgment where the pleadings, depositions and admissions on file, together with the affidavits, if any, show that no genuine issue of material fact exists and that the law entitles the moving party to a favorable judgment.Jennings v. City of Kansas City, 812 S.W.2d 724, 728(Mo.App.1991);Rule 74.04(c).

As we view the summary judgment entered, the trial court found as a matter of law (1) there is no public policy exception to the employment-at-will doctrine in Missouri, and (2) there is no clear mandate in law or regulation to prohibit the Hospital from discharging Plaintiff.The summary judgment was entered after the court made these two pronouncements of law, and the only issue raised by Plaintiff relates to these conclusions.

The trial court erroneously determined there is no public policy exception to the employment-at-will doctrine in this state.Apparently, the Hospital successfully convinced the lower court that Johnson v. McDonnell Douglas Corp., 745 S.W.2d 661(Mo. banc 1988), reached such result.Johnson does not so hold even though the Supreme Court said, "The Court does not deem it necessary to engraft a so-called 'public policy' exception onto the employment at will doctrine."Id. at 663.The Court then noted three cases cited by plaintiff which enunciate the public policy exception to the employment-at-will doctrine.In each case, the employee had the benefit of a constitutional provision, a statute, or a regulation based on a statute.The Court concluded by saying, "No statute, regulation based on a statute, or constitutional provision is implicated here."Id.Thus, Johnson was not a "public policy exception" case and the cited cases enunciating such rule were not overruled.The actual issue in Johnson centered on whether there was a "handbook exception" to the employment-at-will doctrine in Missouri.

One of the plaintiff's three citations in Johnson is Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859(Mo.App.1985), which contains a thorough and scholarly discussion on the subject at hand.The analysis of the public policy exception in Boyle begins with a statement of the employment-at-will doctrine.²"That doctrine simply provides that an employer can discharge for cause or without cause an at-will employee who does not otherwise fall within the protective reach of a contrary statutory provision."Id. at 870-71(footnote omitted), citingDake v. Tuell, 687 S.W.2d 191, 193(Mo. banc 1985).Continuing, the Court said:

The public policy exception is a narrow exception to the at-will employment doctrine.It provides that an at-will employee who has been discharged by an employer in violation of a clear mandate of public policy has a cause of action against the employer for wrongful discharge.

Id. at 871.The Boyle court then proceeded to review numerous public policy exception cases from other jurisdictions and the application of that exception in a multitude of factual situations.The Court concluded by holding:

Accordingly, where an employer has discharged an at-will employee because that employee refused to violate the law or any well established and clear mandate of public policy as expressed in the constitution, statutes and regulations promulgated pursuant to statute, or because the employee reported to his superiors or to public authorities serious misconduct that constitutes violations of the law and of such well established and clearly mandated public policy, the employee has a cause of action in tort for damages for wrongful discharge.

Id. at 878.

Subsequent to Johnson, numerous decisions from the Eastern and Western Districts of this Court have consistently relied on the vitality of the public policy exception discussed in Boyle.SeeLuethans v. Washington Univ., 838 S.W.2d 117, 119(Mo.App.1992);Petersimes v. Crane Co., 835 S.W.2d 514, 517(Mo.App.1992);Rothweil v. Wetterau, Inc., 820 S.W.2d 557, 559(Mo.App.1991);Crockett v. Mid-America Health Serv., 780 S.W.2d 656, 658(Mo.App.1989);Loomstein v. Medicare Pharmacies, Inc., 750 S.W.2d 106, 112(Mo.App.1988).

We hold that the public policy exception to the employment-at-will doctrine is alive and well.The trial court erroneously concluded otherwise.

Turning to the remaining prong of Plaintiff's point, we believe the trial court committed error by finding there is no clear mandate in "law or regulation" to prohibit the Hospital from discharging Plaintiff.A clear example of the trial court's error is found in Gannon v. Sherwood Medical Co., 749 F.Supp. 979(E.D.Mo.1990), which construes Missouri law on this issue.There, plaintiff brought an action alleging in Counts I and III of her complaint that defendant discharged her solely on account of her age, in violation of the Age Discrimination in Employment Act, or solely in retaliation for the filing of a workers' compensation claim, in violation of § 287.780.³As an alternative basis of recovery, plaintiff pled in Count IV that defendant violated the public policy of the State of Missouri by discharging her on account of her age and in retaliation for the filing of a workers' compensation claim.In sustaining a motion to dismiss Count IV, the Court said:

Under Missouri law an employee may not maintain an action for wrongful discharge in violation of public policy unless the employee can demonstrate the...