Warthen v. Toms River Community Memorial Hosp.

• Decision Date: 14 February 1985
• Citation: 488 A.2d 229,199 N.J.Super. 18
• Parties: , 118 L.R.R.M. (BNA) 3179 Corrine WARTHEN, Plaintiff-Appellant, v. TOMS RIVER COMMUNITY MEMORIAL HOSPITAL, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 18

199 N.J.Super. 18

488 A.2d 229, 118 L.R.R.M. (BNA) 3179

Corrine WARTHEN, Plaintiff-Appellant, v. TOMS RIVER COMMUNITY MEMORIAL HOSPITAL, Defendant-Respondent.

Superior Court of New Jersey,

Appellate Division.

Argued Jan. 8, 1985.

Decided Feb. 14, 1985.

John R. Ford, Red Bank, for plaintiff-appellant (Auerbach, Rudnick, Waldman, Ford & Addonizio, Red Bank, attorneys; John R. Ford, Red Bank, of counsel and on the letter brief).

Herbert Kruttschnitt III, Toms River, for defendant-respondent (Novin, Farley, Grossman & York, Toms River, attorneys; Richard A. Grossman, Toms River, of counsel and on the brief).

Before Judges MICHELS, PETRELLA and BAIME.

The opinion of the Court was delivered by

MICHELS, P.J.A.D.

Plaintiff Corrine Warthen appeals from a summary judgment of the Law Division dismissing her action against defendant Toms River Community Memorial Hospital (Hospital). Plaintiff sought to recover damages for her allegedly wrongful discharge in violation of public policy following her refusal to dialyze a terminally ill double amputee patient because of her "moral, medical and philosophical objections" to performing the procedure.

The facts giving rise to this appeal are not in dispute and may be summarized as follows. The Hospital, where plaintiff had been employed for eleven years as a registered nurse, terminated plaintiff from its employment on August 6, 1982. For the three years just prior to her discharge, plaintiff had worked in the Hospital's kidney dialysis unit. It is undisputed that plaintiff was an at-will employee.

Plaintiff alleges that during the summer of 1982 her supervisor periodically assigned her to dialyze a double amputee patient who suffered from a number of maladies. On two occasions plaintiff claims that she had to cease treatment because the patient suffered cardiac arrest and severe internal hemorrhaging during the dialysis procedure. During the first week of 1982 plaintiff again was scheduled to dialyze this patient. She approached her head nurse and informed her that "she had moral, medical, and philosophical objections" to performing this procedure on the patient because the patient was terminally ill and, she contended, the procedure was causing the patient additional complications. At that time the head nurse granted plaintiff's request for reassignment.

On August 6, 1982, the head nurse again assigned plaintiff to dialyze the same patient. Plaintiff once again objected, apparently stating that she thought she had reached agreement with the head nurse not to be assigned to this particular patient. She also requested the opportunity to meet with the treating physician, Dr. DiBello. Dr. DiBello informed plaintiff that the patient's family wished him kept alive through dialysis and that he would not survive without it. However, plaintiff continued to refuse to dialyze the patient, and the head nurse informed her that if she did not agree to perform the treatment, the Hospital would dismiss her. Plaintiff refused to change her mind, and the Hospital terminated her.

Plaintiff subsequently instituted this action alleging that she was wrongfully discharged by the Hospital without justification and in violation of public policy. The Hospital denied liability to plaintiff and alleged, by way of a separate defense, that plaintiff's termination was appropriate because she had the status of an at-will employee. Following completion of pretrial discovery, the Hospital moved for summary judgment, which the trial court denied because it perceived "that there [was] ... a question of fact as to whether or not there is a public policy as articulated in the nurses' code of ethics that would permit somebody in the nursing profession to refuse to participate in a course of treatment which is against her principles in good faith." However, upon reconsideration, the trial court granted the motion, concluding that "the nurses' code of ethics is a personal moral judgment and permits the nurse to have a personal moral judgment, but it does not rise to a public policy in the face of the general public policies that patients must be cared for in hospitals and patients must be treated basically by doctors and doctors' orders must be carried out." This appeal followed.

Plaintiff contends that the trial court erred in granting summary judgment because her refusal to dialyze the terminally-ill patient was justified as a matter of law by her adherence to the Code for Nurses, a code of ethics promulgated by the American Nurses Association, and that determining whether adherence to the Code "constitutes a public policy question" is a question of fact which should be resolved by a jury, not by the trial court. We disagree.

R. 4:46 permits a party to move for summary judgment at any time. Although summary judgment is a stringent remedy, it should be granted where the pleadings, depositions and answers to interrogatories show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to judgment as a matter of law. See Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74, 110 A.2d 24 (1954); Miller v. U.S. Fidel. & Guar. Co., 127 N.J.Super. 37, 40-41, 316 A.2d 51 (App.Div.1974); Rankin v. Sowinski, 119 N.J.Super. 393, 399-400, 291 A.2d 849 (App.Div.1972); Eisen v. Kostakos, 116 N.J.Super. 358, 370-371, 282 A.2d 421 (App.Div.1971). The purpose of the summary judgment procedure is, with proper adherence to the rules, to avoid trials which would serve no useful purpose and to afford deserving litigants immediate relief. Judson v. Peoples Bank & Trust Co. of Westfield, supra, 17 N.J. at 77, 110 A.2d 24. Here, the pleadings, depositions and answers to interrogatories do not raise any genuine issue as to a material fact. Consequently, summary judgment was appropriate for the determination of the legal issues involved.

Plaintiff relies on the "public policy" exception to the "at-will employment" doctrine to justify her claim that defendant wrongfully discharged her. As has often been stated at common law, "in the absence of an employment contract, employers or employees have been free to terminate the employment relationship with or without cause." Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 65-66, 417 A.2d 505 (1980). See also English v. College of Medicine and Dentistry of N.J., 73 N.J. 20, 23, 372 A.2d 295 (1977); Jorgensen v. Pennsylvania R.R. Co., 25 N.J. 541, 554, 138 A.2d 24 (1958); Schlenk v. Lehigh Valley Railroad Co., 1 N.J. 131, 135, 62 A.2d 380 (1948). Recently, in Pierce v. Ortho Pharmaceutical Corp., supra, the Supreme Court recognized a developing exception to the traditional "at-will employment" doctrine, holding that "an employee has a cause of action for wrongful discharge when the discharge is contrary to a clear mandate of public policy." Ortho Pharmaceutical supra, 84 N.J. at 72, 417 A.2d 505.

As a preliminary matter plaintiff contends that identifying the "clear mandate of public policy" constitutes a genuine issue of material fact for the jury rather than, as occurred in the instant case, a threshold question for the trial judge. To support her contention plaintiff cites Kalman v. Grand Union Co., 183 N.J.Super. 153, 443 A.2d 728 (App.Div.1982), in which we said:

It is the employee's burden to identify "a specific expression" or "a clear mandate" of public policy which might bar his discharge. [Citation omitted]. What constitutes a qualifying mandate is a fact question.... [at 157, 443 A.2d 728].

However, quoting the following explanatory language from Ortho Pharmaceutical, we went on to emphasize that "the judiciary must define the cause of action in case-by-case determinations." Id., quoting Ortho Pharmaceutical, supra, 84 N.J. at 72, 417 A.2d 505.

In Ortho Pharmaceutical plaintiff, a physician and research scientist, was dismissed because of her opposition to continued laboratory research, development and testing of the drug loperamide, which Ortho intended to market for the treatment of diarrhea. The plaintiff was opposed to the drug because it contained saccharin and because she believed that by continuing work on loperamide she would violate her interpretation of the Hippocratic oath. The Court held, as a matter of law, that where plaintiff merely contended saccharin was controversial, not dangerous, and the FDA had not yet approved human testing of loperamide, the Hippocractic oath did not contain a clear mandate of public policy preventing the physician from continuing research. Then, not finding any issue of material fact, the Supreme Court remanded the case to the trial court for the entry of summary judgment.

Thus, identifying the mandate of public policy is a question of law, analogous to interpreting a statute or defining a duty in a negligence case. See Breslin v. Liberty Mutual Insurance Co., 134 N.J.Super. 357, 365-366, 341 A.2d 342 (App.Div.1975), aff'd, 69 N.J. 435, 354 A.2d 635 (1976); McKinley v. Slenderella Systems of Camden, N.J., Inc., 63 N.J.Super. 571, 581, 165 A.2d 207 (App.Div.1960); Schaffer v. Federal Trust Co., 132 N.J.Eq. 235, 240, 28 A.2d 75 (Ch.1942). As the Chancery Court said in Schaffer v. Federal Trust Co., 132 N.J.Eq. 235, 28 A.2d 75 (Ch.1942):

"Public policy has been defined as that principle of law which holds that no person can lawfully do that which has a tendency to be injurious to the public or against the public good." Driver v. Smith, 89 N.J.Eq. 339 ; Brooks v. Cooper, 50 N.J.Eq. 761, 769 . 17 C.J.S., Contracts, § 211, p. 563, § 30, p. 358. The term admits of no exact definition. Fidelity Union Trust Co. v. Reeves, 96 N.J.Eq. 490 ; 98 N.J.Eq. 412 . The source of public policy is the statutes enacted by the legislature and in the decisions of the courts; there we find what acts are considered harmful to the public and therefore unlawful.

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Public policy is not concerned with minutiae, but with principles. Seldom does a single clause of a...