Lark v. Montgomery Hospice Inc

• Citation: 414 Md. 215,994 A.2d 968
• Decision Date: 13 May 2010
• Docket Number: No. 140 Sept.Term,2007.,140 Sept.Term
• Parties: Susan Eynon LARKv.MONTGOMERY HOSPICE, INC.
• Court: Court of Appeals of Maryland

414 Md. 215

994 A.2d 968

Susan Eynon LARKv.MONTGOMERY HOSPICE, INC.

No. 140 Sept.Term, 2007.

Court of Appeals of Maryland.

May 13, 2010.

Lee Boothby, Washington, DC, for Appellant.

Brief of Public Justice Center, Voices for Quality Care, Inc., United Seniors of Maryland, Maryland Nurses Coalition, and American College of Nurses-Midwives as Amici Curiae for Appellant: Gregory P. Care, Esquire, Francis D. Murnaghan, Jr., Appellate Advocate Fellow, Baltimore, MD.

Lauri E. Cleary (Marc R. Engel and Michael J. Neary of Lerch, Early & Brewer, Chartered, Bethesda, MD), on brief for Appellee.

ARGUED BEFORE: BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, IRMA S. RAKER, (Retired, Specially Assigned) and DALE R. CATHELL, (Retired, Specially Assigned), JJ.

MURPHY, Judge.

The parties to this appeal from the Circuit Court for Montgomery County,¹ Susan Eynon Lark (Appellant), and Montgomery Hospice Inc. (Appellee), present us with two questions of statutory interpretation. ² We must determine whether a former employee is entitled to assert a wrongful discharge action under the Health Care Worker Whistleblower Protection Act (1) even if he or she never reported to an external board “an activity, policy, or practice of the [former] employer that is in violation of a law, rule, or regulation;” and/or (2) the “unlawful acts” that he or she threatened to report were errors committed by fellow employees who did not have the authority to establish the former employer's “policy, or practice.” For the reasons that follow, we hold that (1) the report of unlawful acts to an external board is not a condition precedent to a civil action under the Act, and (2) when a fellow employee's repeated violation of a law, rule, or regulation is reported to a supervisor, the failure or refusal to correct the violation constitutes a prohibited act of the employer. We shall therefore vacate the summary judgment entered against Appellant and in favor of Appellee, and remand for further proceedings not inconsistent with this opinion.

Background

Appellant filed a three count SECOND AMENDED COMPLAINT that included the following assertions:

2. This is an action for: (1) wrongful discharge contrary to and in violation of a clear mandate of public policy[, asserted in Count I], (2) breach of an employment undertaking as set forth in [the] Personnel Manual [of Montgomery

Hospice Inc., Appellee, asserted in Count II], and (3) the violation of the Health Care Worker Whistleblower Protection Act (Sec. 1-501 through 1-505 of the Health Occupation article of the Maryland Code) [, asserted in Count III]. This action is brought by a former employee of [Appellee]. [Appellant] contends that she was fired for actions, reports and disclosures she took in carrying out duties she had under the laws of the State of Maryland as a registered nurse, as well as legal duties she owed to third parties. [Appellant] also contends that she could have been held civilly liable for failure to carry out those duties and could also be subject to discipline by the State Board of Nursing for failure to so act.

* * *

12. Consistent with her obligations under [Appellee's] Personnel Manual, as well as the Maryland statutes and regulations, [Appellant] attempted to bring to her supervisor's attention, charting that was not consistent with the health and safety of [Appellee's] clients. In March of 2004, [Appellant] noted that an admission by one of [Appellee's] RN was not properly documented and was full of errors. [Appellant] made a complaint to [Appellee's] Director of Admissions. It became apparent that the Director of Admissions sought to defend the failures of the RN. No action was taken.

* * *

15. More recently and directly leading to [Appellant's] discharge, on or about January 30, 2007, [Appellant] found that “starter packs” of medications, including narcotics were being sent out. [Appellant] learned that these “starter packs” were being entered into every patient's chart. So many such packs were being sent out that ... the Director of Week-End and Evening Services and [Appellant's] immediate supervisor, became overwhelmed. [The Director] gave her name and password to her secretary for the issuance of the “starter packs.” [Appellant], subsequently learned that the “starter pack” orders, which contained adult narcotic doses, were sent to [Appellant's]

pediatric patients. [The Director], when confronted by [Appellant], claimed that these “starter packs” did not actually go out. However, a mother of a patient told [Appellant] the following week that they had received a starter pack at 10:00 p.m. a few nights earlier. [Appellant] learned that such “starter packs” had been delivered to all pediatric patients, including ones where the family situation is unstable with many children and with little close supervision in the house. It took more than a week to get these “starter packs” out of the house.

* * *

18. In addition, [Appellant] had during the period from September 2006 to April 2007, complained to management about acts that she understood were inconsistent with generally accepted professional standards of registered nursing practice and threatened the health and safety of third parties. This included:

a) Narcotic being sent out to individuals who were not hospice patients;

b) Improper documentation of narcotic drugs;

c) Treatment with narcotics provided to patients without a physician's order;

d) Treatment of patients without signatures on initial “start of care” orders;

e) Treatment of patients without current legal orders or with expired orders;

f) Failure of supervisors to follow-up on documentation deficits or on missing medical orders and documentations; and

g) Failure to initiate safety precautions with a patient that had a high risk of hemorrhage.

19. E-mails concerning the above were sent by [Appellant] to Management, including [Appellee's] Vice-President of Clinical Services and [Appellant's] supervisor, in an attempt to comply with her legal and ethical responsibilities. All of these E-mails were on [Appellant's] assigned

computer. On April 13, 2007, [Appellant's] immediate supervisor, requested that [Appellant] come in for her annual evaluation. On April 14, 2007, [Appellant] accompanied [Appellant's supervisor] to a conference room where [Appellee's] Vice-President of Clinical Services and [Appellee's] Vice-President of Medical services, were already present. [Appellee's Vice-President of Clinical Services] immediately handed [Appellant] a memo dated April 14, 2007 charging [Appellant] with alleged “practices [that] are frequently outside the acceptable and safe standards of nursing practice.” The memo concluded with the statement: “Effective Immediately: Sue Eynon-Lark's employment with Montgomery Hospice is terminated.” [Appellant] contends the statements were unfounded and was not the real reason for her discharge.

* * *

21. [Appellant] had a legal duty to disclose to her supervisors, (including those in management who had authority to take corrective action), the violation of the laws, including but not limited to the Health Occupations Article of the Maryland Code, state and federal narcotic laws, and violations of the rules and regulations of the state Board of Nursing, which require [Appellant] to safeguard clients and the public health and safety, when she had knowledge of [Appellee's] employees['] incompetent, unethical, or illegal practices.

22. [Appellant's] termination, in fact, followed her recent complaints of several breaches in documentation, lack of clinical supervision and the delivery of medications, including narcotics, by others at Montgomery Hospice. These breaches, failures and acts had been brought to the attention of [Appellant's] supervisor and discussed with the Medical Director. These instances of errors increased within the last year. Many of these errors would, in fact, constitute “critical offenses” of such “seriousness that it justifies immediate discharge ...,” yet no one at Montgomery Hospice, to [Appellant's] knowledge, had been even disciplined for such violations.

* * *

26. [Appellant] claims that the reason given for her discharge is pretextual and was in fact the result of her complaints to management which were meant to safeguard patients under her care as a registered nurse and for the health and safety of patients which [Appellant] believed were endangered by incompetent, unethical, or illegal practices. [Appellant] claims that she had a duty to bring these matters to the attention of management under Maryland statutory and regulatory law as well as the [Appellee's] own personnel requirements. Failure of [Appellant] to bring violations to the attention of management could also subject [Appellant] to civil liability and subject her to a suspension of her nursing license.

29. [Appellee] violated a clear mandate of public policy set forth by Maryland statutes and duly adopted administrative regulations, as set forth above, when it terminated [Appellant's] employment. [Appellant] had the duty to report to her supervisor and to management, acts and practices, which: (1) violated accepted professional standards in the practice of registered nursing; (2) were inconsistent with the health and safety of a person under [Appellant's] care and/or were [Appellee's] clients; (3) or affected public health and safety because of [Appellee's] incompetent, unethical or illegal practices. [Appellant] also had potential personal liability and was subject to disciplinary action from the Board of Nursing had she failed to make such reports and disclosures. For this reason the discharge was wrongful and unlawful.

Appellee filed a motion to dismiss the Complaint, which was accompanied by a Memorandum that included the following arguments:

Specifically, Counts I and III of the Second Amended Complaint challenge [Appellant's] termination from [Appellee's] employ as a wrongful discharge in violation of public policy and Maryland's Health Care Worker Whistleblower

...