Northwest Florida Home Health Agency v. Merrill, BA-157
| Decision Date | 21 May 1985 |
| Docket Number | No. BA-157,BA-157 |
| Citation | 10 Fla. L. Weekly 1257,469 So.2d 893 |
| Parties | 10 Fla. L. Weekly 1257 NORTHWEST FLORIDA HOME HEALTH AGENCY and Susan Cope, Appellants, v. Elizabeth A. MERRILL, Appellee. |
| Court | Florida District Court of Appeals |
Leonard A. Carson and Richard T. Donelan of Carson & Linn, Tallahassee, for appellants.
Thomas F. Condon of Mitchell & Condon, Pensacola, for appellee.
The jury found appellants, Northwest Florida Home Health Agency (Health Agency) and Susan Cope, guilty of malicious prosecution for making a complaint to the Department of Business Regulation (department), Board of Nursing (board), concerning the professional conduct of appellee, Elizabeth A. Merrill, a registered nurse. Judgment was entered against appellants for substantial compensatory and punitive damages. The trial court denied appellants' post-trial renewal of their motion for directed verdict and their motion for new trial or remittitur. Appellants raise the following issues on appeal: (1) The proceeding below constituted neither a civil nor criminal judicial proceeding that will legally support a malicious prosecution action; (2) Failure to prove the absence of probable cause; (3) Error in excluding evidence of reports received by defendants concerning plaintiff's misconduct; (4) Failure to prove actual malice; (5) Error in the court's response to a jury question concerning the meaning of its instructions; and (6) Error in failing to grant a remittitur because the compensatory and punitive damages were excessive and not supported by the evidence. We reverse.
Health Agency is a nonprofit Florida corporation which provides home nursing services to patients residing in northwest Florida. Susan Cope is a registered nurse who serves as nursing supervisor for the agency. Elizabeth A. Merrill, also a registered nurse, began working as an employee of the agency in February 1981. Her duties consisted of visiting five patients per day in her assigned territory to provide nursing services as directed by the patient's doctor.
Ms. Merrill's performance of these duties to the satisfaction of her employer was not without some controversy. In August 1981 she received a written reprimand for refusing to answer an emergency call from a patient who lived two miles from her home. Although it was Health Agency's policy to provide new staff nurses a formal written performance evaluation after six months' employment, Ms. Merrill's evaluation due in August was delayed by Ms. Cope until October. On October 9, 1981, just before Ms. Merrill left on vacation, Ms. Cope gave her an evaluation report that rated her "above average." The evaluation form noted that Ms. Merrill had shown improvement but needed to work on written communications and communications in the office. The latter comment related primarily to the clarity, detail, and accuracy of entries made in patient records maintained by Health Agency. During the evaluation conference Ms. Merrill informed Ms. Cope that she would no longer visit more than three patients per day. A normal case load for Health Agency nurses was five patients per day. Apparently, however, Ms. Cope made no adverse comments in response.
Ms. Cope assumed Ms. Merrill's patient case load while Merrill was on vacation. Ms. Cope testified that during this period she discovered Ms. Merrill had been providing inadequate treatment, inaccurately charting her work, and falsifying mileage claims. On November 1, 1981, Ms. Merrill returned to work and was immediately terminated by Ms. Cope and the agency. No explanation was given Ms. Merrill at the time, and she filed an unemployment compensation claim. The agency contested the claim on the grounds that Ms. Merrill had been discharged for misconduct. Two hearings were held, and on March 3, 1982, a decision was rendered in Ms. Merrill's favor.
In July 1980, sometime before Ms. Cope was made a supervisor, Health Agency received a letter from the Department of Professional Regulation advising that, pursuant to chapter 464, Florida Statutes, "a nurse is required by law to report to the Department any nurse who is in violation of the Nurse Practice Act or Rule of the Profession" and further advising how to file complaints in accordance with the department's practices and regulations. In October 1980 Health Agency received a second letter from the department:
Each health care practice act contains a section that requires licensed professionals to report any person he or she knows to be in violation of a health care practice act or rules to the Department of Professional Regulation. The law also requires the reporting of licensed health professionals who have been disciplined by their employer whether it is a reprimand, loss of privileges or dismissal.
If you or the professionals on your staff encounter such a situation, contact the Department of Professional Regulation at 1-(800)-342-7940. A complaint analyst will work with you and insure complete confidentiality.
The Department needs your help to protect the public from harm by incompetent and unprofessional licensees. You will not only be aiding the citizens of Florida but assuring the preservation of high standards in your profession.
Mr. Long, the head of Health Agency, was aware of the information in these letters, but Ms. Cope was not. During late January 1982, Ms. Cope attended a seminar on the legal aspects of nursing. During the seminar she was informed of a nurse's obligation to report any nurse who was terminated. Thereafter she discussed Ms. Merrill's case with Mr. Long and, with his knowledge and concurrence, notified the department of Ms. Merrill's termination because of poor patient care while on home duty, falsifying mileage records, and failing to accurately chart patient care. Ms. Cope and Health Agency cooperated with the department and its investigative staff. Ms. Cope submitted an affidavit identifying the particular areas of poor patient care attributed to Ms. Merrill: (1) Patient Jernigan--plug of necrotic tissue not removed; no instruction of patient's spouse on proper care; inadequate catherization; (2) Patient Rich--no request for medically suitable bed; (3) Patient Newman--not advised of full range of testing services provided by agency; not advised of need for pacemaker; (4) Patient Rost--high blood pressure which was inadequately checked and no notification to physician; (5) Patient Smith--long-term rash not discovered and treated by Ms. Merrill; (6) Patient Jernigan--sporadic visits to diabetic patient.
Ms. Merrill was notified by letter dated April 23, 1982, of the department's investigation. She denied all charges and employed a lawyer to represent her during the course of the investigation. Ms. Merrill disclosed the existence of the investigation to her family and several friends and voluntarily called one prospective employer to advise that she was under investigation. There is no evidence that Ms. Cope, Mr. Long, Health Agency, and the board's investigators breached the rule of confidentiality applicable to this investigation. At the conclusion of the investigation, Ms. Merrill was advised by letter from the department that the investigation had been terminated by a closing order entered July 30, 1982, because "the case which was filed against you has been dismissed with no probable cause being found to proceed against you further with administrative action." On October 8, 1982, Ms. Merrill instituted the malicious prosecution action against appellants.
The liability of Health Agency and Ms. Cope is predicated entirely on Ms. Cope's conduct in reporting information about Ms. Merrill's professional conduct to the department. As Ms. Cope and Ms. Merrill are registered nurses under the provisions of chapter 464, Florida Statutes (1981), both are bound by its provisions and the rules promulgated thereunder. Section 464.018(1) specifies certain acts that "shall be grounds for disciplinary action," including:
(f) Unprofessional conduct, which shall include, but not be limited to, any departure from, or the failure to conform to, the minimal standards of acceptable and prevailing nursing practice, in which case actual injury need not be established.
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(i) Failing to report to the Department any person who the licensee knows is in violation of this chapter or of the rules of the Department or Board.
(j) Willfully or repeatedly violating any provision of this chapter [or] a rule of the Board or the Department....
The rules adopted by the department and the Board of Nursing provide that the department shall be responsible for making the determinations of probable cause for taking disciplinary action. Rule 210-10.04, Florida Administrative Code. 1 Rule 210-10.05(2)(e) defines in more specific language certain acts which will support the imposition of disciplinary sanctions, including:
1. ... unprofessional conduct which shall include ... inaccurate recording, falsifying or altering of patient records; or
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12. Acts of negligence, gross negligence, either by omission or commission; or
13. Failure to conform to the minimal standards of acceptable prevailing nursing practice, regardless of whether or not actual injury to a patient was sustained.
Rule 210-10.05(2)(h) subjects a registered nurse to disciplinary sanctions for failing to inform the department or the board "of any deviation from the prevailing or acceptable standard of nursing practice of another person licensed to practice in this state, or any other violation of chapter 455 or 464, Florida Statutes, or the rules promulgated thereto."
Pursuant to subsections 455.225(3) and (9), Florida Statutes (1981), all proceedings and records made during an investigation prior to a determination of probable cause to file a formal complaint are exempt from the provisions of sections 286.011 and 119.07 dealing with public meetings and public inspection of official records. Further, the initial investigative...
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