Roulston v. TENDERCARE INC.

• Court: Court of Appeal of Michigan
• Writing for the Court: PER CURIAM.
• Citation: Roulston v. TENDERCARE INC., 608 N.W.2d 525, 239 Mich. App. 270 (Mich. App. 2000)
• Decision Date: 04 April 2000
• Docket Number: Docket No. 208342.
• Parties: Laura A. ROULSTON, Plaintiff-Appellee, v. TENDERCARE (MICHIGAN), INC., Baywood Nursing Home, Tendercare Select Properties, Inc., Defendant-Appellant.

608 N.W.2d 525

239 Mich. App. 270

Laura A. ROULSTON, Plaintiff-Appellee, v. TENDERCARE (MICHIGAN), INC., Baywood Nursing Home, Tendercare Select Properties, Inc., Defendant-Appellant.

Docket No. 208342.

Court of Appeals of Michigan.

Submitted July 7, 1999, at Grand Rapids.

Decided January 7, 2000, at 9:00 a.m.

Released for Publication April 4, 2000.

Twohey Maggini, P L C (by Arthur B. DeBruyn), Grand Rapids, for the plaintiff.

Bensinger, Cotant, Menkes & Aardema (by Dale L. Arndt), Grand Rapids, for the defendants.

Before: McDONALD, P.J., and MICHAEL J. KELLY and MARK J. CAVANAGH, JJ.

PER CURIAM.

Defendants Tendercare (Michigan), Inc., and Baywood Nursing Home, assumed name of Tendercare Select Properties, Inc., appeal as of right from a jury verdict finding them liable for violation of the Whistleblowers' Protection Act (WPA), M.C.L. § 15.361 et seq.; MSA 17.428(1) et seq. We affirm and remand for a determination of reasonable appellate attorney fees.

Plaintiff, Laura Roulston, holds a bachelor's degree in psychology. She was hired in January 1996 to serve as social services director at defendant Baywood Nursing Home located in Ludington. She claimed that her employment was terminated in retaliation for reporting to state investigators incidents of suspected resident abuse. Robert VanRhee, the Baywood administrator who fired plaintiff, denied having any knowledge of the reports until after plaintiff's discharge. VanRhee testified that plaintiff's discharge was strictly a business decision based on deficiencies in her job performance, which included being confrontational with staff, being slow and failing to complete paperwork, and being late for or failing to attend meetings.

On June 8, 1996, at 10:25 a.m., Vera Reed, a resident of the Baywood facility, passed away. When plaintiff learned of the death, she looked in on Helen Bennett, who had been Reed's roommate for two years. Plaintiff found Bennett, crying and seemingly distressed over Reed's death, sitting in her wheelchair with the wheels in the locked position, and with Reed's body still lying on her bed. Plaintiff testified that she believed Bennett had been left in the room as a form of punishment. Defendants claimed that Bennett had been confined to her wheelchair following her morning shower, during which time she had become agitated. Defendants also stated that, because Bennett had been diagnosed as suffering from dementia, she was mentally incapable of comprehending Reed's death.

Plaintiff was moving Bennett away from her room when she met the undertaker and a Baywood aide on their way to attend to Reed's body. The aide's comments led plaintiff to believe that she had forgotten Bennett had been left in the room. Plaintiff later spoke to Sheryl Nelson, the charge nurse, and inquired about Bennett's being left in the room with Reed's body. Allegedly, Nelson became angry and shouted that plaintiff did not know what was going on. Nelson testified that she had no other place to put Reed's body pending viewing by the family and removal by the funeral home. She also testified that she had put Bennett in her room to separate her from the other residents until she calmed down. Records showed that Reed's body was moved to the funeral home at 12:20 p.m.

Plaintiff testified that she also notified the director of nursing, Patsy Sherman, about the incident, and that Sherman recommended doing nothing until the following Monday, June 10, 1996, when VanRhee could be consulted. Sherman testified that she began investigating the alleged abuse on Monday. It was revealed at trial that Sherman complained two or three times regarding plaintiff's method of approach when dealing with the staff in the nursing department. Sherman testified that she did not learn that plaintiff had reported the Bennett incident to state investigators until after plaintiff's employment had been terminated.

On Sunday, June 9, 1996, plaintiff wrote a letter to VanRhee describing the incident with Bennett. The next morning, plaintiff put the letter in VanRhee's office. Plaintiff claimed to have noted the incident in Bennett's chart after she spoke to Fran Brennan, assistant director of nursing, regarding how much detail should be noted. Brennan told her not to indicate that there had been a dead body in the room with Bennett.

Plaintiff believed that Bennett's treatment constituted abuse. On the night of Monday, June 10, 1996, she called an advocacy group for senior citizens regarding the Bennett incident. The individual she spoke to informed her that she could be fined if she did not report the incident. Sometime thereafter, plaintiff contacted Jeanette Baldwin, a social worker at a Tendercare facility in Lansing, for input on what she should do regarding reporting the incident. VanRhee testified that, if an incident involving a resident is unintentional, he did not consider it to be abuse.

On the afternoon of June 11, 1996, Van-Rhee conducted plaintiff's ninety-day employee evaluation. At that point, plaintiff had been on the job for more than four months. VanRhee testified that his review of plaintiff's performance followed a conversation he had with Tim Stoll, defendants' social services of plaintiff's performance followed a conversation he had with Tim Stoll, defendants' social services and activities consultant. VanRhee graded plaintiff "average" in every area of concern except "cooperation/teamwork," which was graded "poor." He noted that plaintiff was confrontational with staff and that she reacted before she had all the facts. He acknowledge that plaintiff's position was described as being an advocate for the nursing home residents, but denied that being an advocate would put her at odds with the staff. He also noted that plaintiff had poor attendance at meetings and that she failed to complete paperwork on time. After the review, VanRhee extended plaintiff's probation period for another ninety days. He refused to discuss the Bennett incident.

The following morning, Wednesday, June 12, 1996, plaintiff documented her observations regarding Bennett, including that Reed's body had been left in the room. Plaintiff did not go to work the following two days, but, instead, stayed home and reported her suspicions of abuse to the Department of Consumer and Industry Services and to the Health Care Fraud Unit of the Attorney General's Office. Plaintiff testified that, in the week following her report to the state, she observed two more incidents of alleged abuse at the nursing home. In the first, Gladys French, a resident, was moved from one room to another. Plaintiff believed the action was not in the resident's best interest because she suffered from dementia and became disoriented when moved. The second incident involved Doris Schrader, a resident who had declined to complete an advance care directive form and had indicated that she wanted full medical treatment in the event of an emergency.

On June 19, 1996, plaintiff was informed by the nursing staff that Schrader needed to change her advance care directive. Plaintiff went to Schrader's room, where she found Schrader wearing an oxygen mask and asking to be taken to the hospital. When Schrader collapsed and plaintiff realized the seriousness of her illness, she called Schrader's son, who indicated that he did not know what course of action to follow and that he would call back after speaking with his uncle. Apparently, a nurse telephoned Schrader's physician, who instructed the facility not to do anything because Schrader was a terminally ill patient. Plaintiff believed that Schrader had the right to have her wish for full medical treatment followed, regardless of whether her son or her physician agreed. Before Schrader's son called back, and before plaintiff could take any action, Schrader died. Although plaintiff did not discuss this incident with anyone at Baywood, she did report it to state investigators after her employment was terminated.

The state investigation of the Schrader incident revealed that the nursing home had a policy of providing aggressive emergency resuscitative measures, and that, on the basis of that policy, Schrader saw no need to complete an advance directive on her admission to the facility. At the time Schrader expired, she was considered by the facility staff to be a "full code" resident and that she should have received aggressive emergency resuscitative measures. The state investigation concluded that those measures were not provided. Van-Rhee and Stoll testified that there was no requirement that a resident sign an advance directive, and that a resident with no advance directive would be treated no differently than a resident with a "full code" advance directive. VanRhee claimed that plaintiff's failure to compel Schrader to complete an advance directive contributed to his decision to terminate her employment. However, plaintiff was not responsible for admitting residents, and Schrader's admission to the nursing home had been handled by an in-take person. It was noted that Schrader was not suffering from any mental incapacity, that she declined to complete an advance care directive, and that she expressed a wish for full resuscitative measures.

Plaintiff testified that, on the morning of June 21, 1996, she spoke with Stoll. Plaintiff told Stoll of her concerns regarding resident care and specifically mentioned the incidents involving Bennett, French, and Schrader. Stoll allegedly cautioned plaintiff against using the term "abuse" to describe the situations. Plaintiff testified that she and Stoll were arguing over what constituted "abuse" and that Stoll told plaintiff that she "needed to be like everybody else and start thinking like they did." Plaintiff testified she then blurted out: "Tim, I have spoke [sic] to people at the state. And they have told me that all of these things that I have brought up are serious and need to be investigated. And it's not just me that is concerned about...