Tudor v. Charleston Area Medical Center

• Decision Date: 16 December 1997
• Docket Number: No. 23948.,23948.
• Citation: 203 W.Va. 111,506 S.E.2d 554
• Court: West Virginia Supreme Court
• Parties: Jana Lynn TUDOR, Appellee, v. CHARLESTON AREA MEDICAL CENTER, INC., a West Virginia Corporation, and Janice Smith, Appellants.

506 S.E.2d 554

203 W.Va. 111

Jana Lynn TUDOR, Appellee, v. CHARLESTON AREA MEDICAL CENTER, INC., a West Virginia Corporation, and Janice Smith, Appellants.

No. 23948.

Supreme Court of Appeals of West Virginia.

Submitted October 7, 1997.

Decided December 16, 1997.

Concurring and Dissenting Opinion of Justice Maynard December 19, 1997.

Kurt E. Entsminger, Donald B. O'Dell, Lamp, O'Dell, Bartram & Entsminger, Huntington, West Virginia, Attorneys for Appellee.

Stephen A. Weber, Kevin A. Nelson, Kay, Casto, Chaney, Love & Wise, Charleston, West Virginia, Attorneys for Appellants.

WORKMAN, Chief Justice:

This case is before the Court upon the appeal of Charleston Area Medical Center ("CAMC") and Janice Smith ("Appellant Smith") (collectively "Appellants") from the April 15, 1996, final order of the Circuit Court of Kanawha County denying the Appellants' motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial, arising from a December 15, 1995,¹ jury trial wherein a verdict was returned in favor of the Appellee, Jana Lynn Tudor. The jury awarded the Appellee $86,157 in special damages for lost wages, $500,000 in general damages for "damage to professional reputation, emotional distress and mental anguish," $1,000,000 in punitive damages against the Appellant CAMC, and $50,000 in punitive damages against the Appellant, Smith. The Appellants argue on appeal that the trial court erred: 1) in refusing to grant the Appellants' motion for a directed verdict on the Appellee's claim for constructive retaliatory discharge; 2) in submitting the Appellee's claim for tortious interference with employment opportunities to the jury, said claim being unsupported as a matter of law; 3) in failing to grant defendants a directed verdict on the Appellee's libel and slander claims; 4) in permitting the jury to consider the Appellee's invasion of privacy claim, said claim being unsupported as a matter of law; 5) in admitting the de la Torre memorandum into evidence; 6) in admitting the videotape deposition of Betty Tiernan into evidence; and 7) in submitting the issue of punitive damages to the jury and in failing to grant the Appellants' remittitur on the emotional distress and punitive damages awards. Based upon our review of the parties' briefs, arguments, and all other matters submitted before this Court, we affirm the trial court's decision, with the exception of the trial court's denial of the Appellants' motion for remittitur, which we reverse.

I. FACTS

The Appellee, Jana Lynn Tudor, was initially employed by CAMC in 1988 as a registered nurse. From March 11, 1991, until July, 1993, she worked in the Adolescent Unit ("unit")² at Women's and Children's Hospital. Her supervisor while working in this unit was Appellant Smith, who was also the nurse manager. From the time she began working in the unit, the Appellee requested the weekend night shift³ and worked it exclusively until she tendered her resignation in July of 1993.

The Appellee testified that she had also worked under the supervision of Debbie Carte, who was the nurse manager of the unit prior to Janice Smith. The Appellee stated that when she worked on the unit under Ms. Carte, she never worked alone, as there was always another nurse assigned to the unit. Problems on the unit began, according to the Appellee, when Appellant Smith took over the unit. Under Appellant Smith's supervision, the Appellee testified that she was assigned to work the unit alone "most of the time."⁴ The Appellee testified that her assignment to work the shift alone raised concerns in her mind regarding patient safety. She also testified that she "felt like it was inadequate care because I couldn't be everywhere at one time...."

It is when the Appellee began to voice her concerns about having only one registered nurse assigned to a shift that "things went downhill[,]" according to her testimony. The first time the Appellee voiced her concern to Appellant Smith was in early October 1992. The Appellee testified that she left the unit to go into the Pediatrics Intensive Care Unit ("PICU") to have another nurse witness the Appellee waste⁵ an unused portion of a narcotic. According to the Appellee's testimony, Zella White, the nursing supervisor, came to the unit, found no nurse there, and waited in the unit until the Appellee emerged from the PICU. Ms. White questioned the Appellee as to why she had left the unit unattended. The Appellee proceeded to explain to Ms. White why she had left the unit. The Appellee also testified that she told Ms. White that there should be an additional nurse or care giver staffed on the unit.

Appellant Smith responded to the incident by issuing the following memorandum dated November 3, 1992, regarding "[l]eaving unit uncovered. 2 Rns needed:"

Zella shared ... [with] me your concern about not having 2 Rns on & going off the unit to waste a med. As Zella has already shared ... [with] you it was not necessary to leave the unit to waste a narcotic—it could have been left in lock up until supervisor came or when PICU nurse was free she could have come to you.

Unless the acuity warrents [sic] 2 Rns we cannot staff consistently ... [with] 2 Rns—we will be adding enough staff to always have 2, but when census ... [drops] the 2nd care giver may be pulled. If you have concerns, please let me know & I will come in to discuss them ... [with] you ... or if you have literature that supports your concern, please share it ... [with] me.

The Appellee testified that she never followed up with Appellant Smith's invitation to present her with literature supporting her position.⁶

The next time the Appellee raised any concern about the staffing problem was approximately one month later in November. At that time, the Appellee was on the floor alone when a seventeen-year-old adolescent girl needed to get out of the bed to use the restroom. The Appellee, without calling for any assistance, in contravention of hospital policy, got her up out of bed and into the bathroom, where the patient passed out. The Appellee tried to break the patient's fall; however, the patient hit her head on the floor. Just as this occurred, Ms. White, once again happened to come on the floor. Ms. White assisted the Appellee in getting the patient into a wheel chair.

On November 8, 1992, in compliance with hospital policy, the Appellee completed an incident report. Under the section entitled "Suggestions For Prevention of Future Occurrences? (Corrective Action Plan)," the Appellee wrote "[a]lways have two people staffed on floor...." Upon receipt of this incident report, Appellant Smith called the Appellee into her office, along with Ms. White. According to the Appellee, Appellant Smith expressed concern to the Appellee about the comments she had written regarding two individuals staffing the unit.⁷ Essentially, Appellant Smith told the Appellee that staffing had nothing to do with the incident and, accordingly, her comments were incorrect. The Appellee testified that Appellant Smith got angry and upset with her over the comments.⁸

According to the Appellee, Appellant Smith was so infuriated with her for suggesting on these occasions that two persons should always be assigned to the unit that she retaliated against her. First, according to the Appellee's testimony, Appellant Smith instructed her to engage in unethical nursing practices concerning the disposal of narcotics. While the Appellee testified that it was unethical to lock up the unused portion of the narcotic until either a supervisor or PICU nurse could come to the unit, the Appellee was unable to cite to any applicable ethical provision or CAMC internal policy that contradicted Appellant Smith's instructions.

Next, the Appellee alleged that in early 1993, she obtained information from another employee that her evaluation had been downgraded. The Appellee met with Johana McKitrick, the charge nurse at the time, who confirmed to the Appellee that Appellant Smith had requested that her evaluation be changed.⁹ The Appellee testified that when she inquired of Ms. McKitrick why this had occurred, Ms. McKitrick responded that, "Jana, I really—I can't tell you, I don't know. The only thing I can say is, I think she [Appellant Smith] just doesn't like you for some reason, and I can't give you the reason."¹⁰

The Appellee also introduced evidence that during this time period from November 1992 until July 1993, she made two to three requests to transfer off the unit. None of these requests resulted in an interview for the position she was attempting to transfer into. The Appellee, however, had been granted a transfer in September of 1992 into the PICU.¹¹ The Appellee voluntarily turned down this transfer, even though the position paid the same salary and included the same benefits as she earned on the unit. Additionally, the Appellee claimed she was treated unfairly in her requests for vacation time. She requested the weekend of July 4, 1993, or the following weekend off and was denied that request. The Appellee testified that "most" of the other requests for time off during this same time period were granted.¹²

The Appellee was absent from her assigned shifts on May 28, 29, and 30, 1993. The Appellee called in sick for those shifts on May 28, 1993. She later presented a physician's note, dated June 3, 1993, advising her employer that she had been ill on those days. Under the CAMC attendance policy, which was admitted at trial, missing a shift scheduled the day before, the day of, or the day after a holiday resulted in two occasions of absence instead of the usual one. The CAMC attendance policy contained no provision for excused absences due to illness. Except for eight specifically stated exclusions from the policy, any day missed is treated as an absence.¹³ The Appellee testified that she subsequently decided to leave CAMC and gave her two weeks notice on June 25, 1993. The Appellee testified that her sole...