Swanson v. St. John's Lutheran Hospital

• Decision Date: 09 August 1979
• Docket Number: No. 14304,14304
• Citation: 182 Mont. 414,36 St.Rep. 1075,597 P.2d 702
• Parties: Marjorie C. SWANSON, Plaintiff and Appellant, v. ST. JOHN'S LUTHERAN HOSPITAL, a Montana Corporation, Defendant and Respondent.
• Court: Montana Supreme Court

Page 702

597 P.2d 702

182 Mont. 414

Marjorie C. SWANSON, Plaintiff and Appellant, v. ST. JOHN'S LUTHERAN HOSPITAL, a Montana Corporation Defendant and Respondent.

No. 14304.

Supreme Court of Montana.

Submitted Nov. 16, 1978.

Decided June 13, 1979.

Rehearing Denied Aug. 9, 1979.

Fennessy, Crocker & Harman, Libby, David W. Harman, argued, Libby, Jean Galloway Koreski, argued, Washington, D. C., for plaintiff and appellant

Lawrence H. Sverdrup, Libby, Smith Law Firm, Helena, Chadwick H. Smith, argued, Helena, for defendant and respondent.

SHEEHY, Justice.

This is an appeal from the District Court, Nineteenth Judicial District, Lincoln County, on a judgment against Marjorie C. Swanson who was discharged from her employment as a nurse-anesthetist at St. John's Lutheran Hospital in Libby. She brought her action in the District Court upon the ground that she had been wrongfully dismissed from her employment because she had asserted her rights under former section 69-5223, R.C.M.1947, now section 50-5-502 through -505 MCA.

Former section 69-5223, has been referred to in briefs before this Court, as it was during its legislative history, as the "conscience statute". For ease of reference, we will use that term here, although the Court implies nothing by the use of that term. The conscience statute defined certain "69-5223 . . .

rights of medical persons who are confronted with sterilization procedures as a part of their employment. Specifically, the conscience statute includes these provisions:

"(2) All persons shall have the right to refuse to advise concerning, perform, assist, or participate in sterilization because of religious beliefs or moral convictions. If requested by any hospital or health care facility, or person desiring sterilization, such refusal shall be in writing signed by the person refusing, but may refer generally to the grounds of 'religious beliefs and moral convictions'. The refusal of any person to advise concerning, perform, assist, or participate in sterilization, shall not be a consideration in respect to staff privileges of any hospital or health care facility, nor a basis for any discriminatory, disciplinary, or other recriminatory action against such person, nor shall such person be liable to any person for damages allegedly arising from such refusal.

"(3) It shall be unlawful to interfere or attempt to interfere with the right of refusal authorized by this section, whether by duress, coercion or any other means. The person injured thereby shall be entitled to injunctive relief, when appropriate and shall further be entitled to monetary damages for injuries suffered."

The Court notes parenthetically that the legislature adopted virtually the same provisions with respect to abortion procedures in former section 94-5-620, R.C.M.1947, now section 50-20-111 MCA.

The two-fold purpose of the conscience statute is plain: (1) It mandates that no person can be compelled to participate in sterilization against his moral or religious principals; (2) It prohibits firing any person for refusing to participate in sterilization on such grounds. The law is statewide in its effect, embracing as well the largest metropolitan hospitals and clinics and the smallest hospital or medical office in Montana.

Marjorie Swanson is a Certified Registered Nurse-Anesthetist (CRNA) who was employed by the hospital for eight years prior to discharge in her professional capacity as a nurse-anesthetist. In the four years preceding August 1977, she had assisted professionally in twenty surgical procedures that involved sterilizations and in the year preceding August 1977, six such procedures.

On August 19, 1975, she assisted professionally in a surgical procedure that was listed on the surgery schedule in the hospital as a "D and C", a dilatation and curettage. Immediately prior to the operation, in examining the chart of the patient, she had discovered that an abortion permit was required by the hospital medical staff for this particular procedure. Nevertheless, she went ahead professionally and gave anesthetic to the patient. During the course of the procedure she observed that a human fetus was removed from the uterine lining of the patient, part by part, by the use of instruments. Her observation of the dissection and removal of the fetal tissue caused her to be "horrified and very upset".

August 19, 1977 was a Friday. Over the weekend, she learned that a procedure described as a bilateral partsalpingectomy, a tubal ligation, was scheduled for Tuesday, August 23, 1977. The operation had been listed on the surgical schedule posted by the hospital on August 10, 1977, but the anesthetist first became aware of it over the weekend immediately preceding the Tuesday operation date. On Monday, August 22, 1977, at about 10:00 a. m., she advised the administrator of the hospital, Dan Wigart, that she would not participate in the tubal ligation, which is a sterilization procedure. The administrator "tried to convince (her) that (she) could participate in it". He also indicated that she should be able to assist at therapeutic abortions. Wigart asked her to withhold making a final decision until he had spoken to her local priest, and she said she would also speak to him, although Wigart reported "she did have a sense of finality in it at that time."

Rev. Charles Strom testified that on the afternoon of August 22, at about 3:00 p. m. he was approached by Dan Wigart who asked him for his help and "sounding out ". . . She repeated two or three times 'If I have to resign, I will. But I am not going to do tubal ligations.' I asked her to give me some background on this. I asked her to withhold her final decision until I talked to Father Strom and Dr. Seifert, and also the two physicians who were involved in the D & C. I made every attempt to try to reduce her anxiety about the procedure. I felt that there were other factors that were bothering her. And I hoped that Father Strom would have talked to her and supported her from the standpoint that participation in a tubal ligation does not represent direct participation. This is something that Dr. Seifert and I had talked about that same morning."

about her attitude on sterilization". In fact, Dan Wigart testified in part:

At 7:00 p. m. that evening, Marjorie Swanson called Wigart and informed him that her mind was made up and she was not going to participate in tubal ligation.

Thereupon Wigart obtained the services of a nurse-anesthetist from Bonners Ferry, Idaho, and the surgery went ahead as scheduled.

At 4:30 p. m. on August 23, 1977, Wigart telephoned Marjorie Swanson at her home and informed her that she was discharged from her position as nurse-anesthetist at the hospital. She requested that he give her a written statement of the reasons for her discharge. He did so, sending her a letter in full as follows:

"23 August 1977

"Marjorie Swanson

"Rt 2, Box 556

"Libby MT 59923

"Dear Marj:

"This is to confirm our telephone conversation of August 23, 1977 wherein I informed you that St. John's Lutheran Hospital will continue to pay your salary for two weeks until September 6, 1977 at the usual rate.

"I sincerely regret having to terminate your services. However, your untimely refusal to perform customary and needed services puts me in a position where I have few viable alternatives.

"I wish you the very best in all future endeavors and I will pray that God leads you in a direction in which you can perform satisfactorily and grow as an individual within the limits of your conscience.

"Sincerely,

"Dan Wigart"

No request was made by the hospital, nor by the person desiring sterilization, that Marjorie Swanson state in writing her grounds for refusal. At the trial, when asked upon what basis she did not wish to participate in the tubal ligation, she replied, "on moral and religious grounds".

After her discharge, appellant was paid by the hospital from August 23, 1977 through September 6, 1977 representing two weeks pay.

On Wednesday, August 24, 1977, Wigart, in his office, told Nurse Marlys Mongan, an employee of the hospital, that the dismissal of Marjorie Swanson was upsetting to him "because in the last three months he thought Marge had really come along as being a good team member".

On Wednesday evening, August 24, 1977, at a nurses meeting, Wigart said, "Marge had refused to give anesthetic for a tubal ligation that was scheduled on Tuesday morning and that he had no alternative but to give her two weeks notice." He stated no other reasons for her dismissal.

In a subsequent conversation with Rev. Strom, either on Thursday, August 25 or Thursday, September 1, 1977, Wigart indicated his feelings toward the state law concerning sterilization. Rev. Strom testified:

"During those two conversations Dan Wigart first advised me about his experience in California. His experience with a union and then went into the idea that he changed his mind about the going for the union doings, and that he now was very conservative and certainly was not union minded. And he saw the state law in the same category, and that it was his job to not let unions or state laws interfere with the operation of the hospital."

Marjorie Swanson filed her complaint against the hospital on September 13, 1977, alleging that she had been discharged because of her refusal to participate in the sterilization procedure. Defendant filed its answer on November 22, 1977, and trial was had before the court, sitting without a jury on February 15, 1978. On April 5, 1978, the court entered its findings of fact and conclusions of law ruling against plaintiff Swanson. On April 11, 1978, Swanson moved to amend the findings of fact and conclusions of law and judgment or in the alternative for a new trial and these motions were denied on April 13, 1978. Timely notice of appeal was filed on April 17, 1978.

Swanson presents four issues for review:

1. The District Court finding that Swanson was an "employee of...