Morrissey-Manter v. Saint Francis Hospital & Medical Center

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MORRISSEY-MANTER v. SAINT FRANCIS HOSPITAL & MEDICAL
CENTER—DISSENT
ALVORD, J., concurring in part and dissenting in part.
I agree with parts I, III and IV of the majority opinion,
which conclude that the trial court properly rendered
summary judgment on the claims of the plaintiff,
Annemarie Morrissey-Manter, that the defendants, Saint
Francis Hospital and Medical Center, and Saint Francis
Care, Inc., improperly terminated her employment
because she had an implied contractual agreement that
prohibited her discharge without cause, that the defen-
dants breached the covenant of good faith and fair
dealing because she was discharged without cause, and
that the defendants withheld evidence and destroyed
evidence that would have supported her cause of action.
As fully discussed in the majority opinion, the plaintiff
did not present sufficient evidence to set forth genuine
issues of material fact with respect to those claims.
I disagree, however, with part II of the majority opin-
ion, which concludes that summary judgment was prop-
erly rendered with respect to her claim that the
defendants terminated her employment in violation of
an important public policy. I conclude that an important
public policy was alleged in her complaint, i.e., saving
a life under exigent circumstances, and that the plaintiff
submitted sufficient evidence to set forth a genuine
issue of material fact with respect to that claim. I dis-
agree with the majority opinion that she abandoned
that express claim of public policy and, accordingly, I
would review that claim and reverse in part the judg-
ment of the trial court.
In her complaint, the plaintiff alleged that (1)
‘‘allowing an employer to terminate an employee for
saving a man’s life is against public policy,’’ and (2)
‘‘the defendants’ attempt to cover up their liability expo-
sure, by firing the one person who stepped up to the
plate to save a man’s life, is improper and violates public
policy.’’ In their motion for summary judgment, the
defendants claimed that the plaintiff had ‘‘not alleged
an established public policy’’ and that she should not
‘‘be immunized from an adverse employment action for
allegedly saving a patient’s life . . . .’’ At the hearing
before the trial court on their motion, the defendants’
counsel argued that the plaintiff had altered medical
equipment, which was against hospital policy, and that
her termination from employment was therefore proper
even if she did save a patient’s life. The trial court
agreed: ‘‘While the plaintiff argues that she was termi-
nated in an effort to cover up possible medical malprac-
tice committed by the defendants’ other employees, she
has proffered no evidence of this alleged malpractice
beyond simply speculating that it occurred; nor has the
plaintiff cited a relevant public policy that was violated
by her termination under the circumstances.’’1
The majority concludes that the plaintiff abandoned
this ground of an alleged public policy of saving lives
and, instead, it focuses on the alleged public policy
against covering up medical malpractice, as reflected
in General Statutes § 19a-127n, and the alleged public
policy against terminating an employee to cover up the
employer’s negligence. At oral argument before this
court, the plaintiff identified those claims of public pol-
icy as ‘‘alternative’’ bases for her claim of wrongful
discharge. She expressly reaffirmed that the public pol-
icy of saving lives under exigent circumstances was her
primary claim. Indeed, during the oral argument, no
mention whatsoever was made of § 19a-127n. The
defendants did not claim that she had abandoned her
alleged public policy of saving lives. Instead, they criti-
cized the plaintiff for failing to articulate clearly which
public policy argument she was relying on for her
claim.2
I agree that the plaintiff’s appellate brief is less than
exemplary when it comes to the briefing of this claim,
yet, I believe that it is fairly presented by the record
because of the allegations in the complaint, her argu-
ments in opposition to the motion for summary judg-
ment before the trial court, and her affirmation before
this court during oral argument. See Markley v. Dept.
of Public Utility Control, 301 Conn. 56, 67 n.12, 23
A.3d 668 (2011). For those reasons, I conclude that the
plaintiff did not abandon her claim that her discharge
was in violation of the important public policy of saving
lives under exigent circumstances, and thus I choose
to address it.3
The following legal principles are relevant to the
plaintiff’s claim. ‘‘Our Supreme Court has recognized
an exception to the general rule regarding at-will
employment in which an at-will employee may have a
cause of action when the employee alleges a demonstra-
bly improper reason for dismissal, a reason whose
impropriety is derived from some important violation
of public policy.’’ (Internal quotation marks omitted.)
Gagnon v. Housatonic Valley Tourism District Com-
mission, 92 Conn. App. 835, 844, 888 A.2d 104 (2006).
‘‘The public policy exception to the at-will employment
doctrine, however, is to be construed narrowly. . . .
Under that narrow exception, the employee has the
burden of pleading and proving that his dismissal
occurred for a reason violating public policy. . . . In
evaluating such claims, our Supreme Court has looked
to see whether the plaintiff has . . . alleged that his
discharge violated any explicit statutory or constitu-
tional provision . . . or whether he alleged that his
dismissal contravened any judicially conceived notion
of public policy. . . . A cognizable claim for wrongful
discharge requires the plaintiff to establish that the
employer’s conduct surrounding the termination of the
plaintiff’s employment violated an important public pol-
icy.’’ (Citations omitted; internal quotation marks omit-
ted.) Id.
Our Supreme Court has recognized a public policy
limitation on the traditional at-will doctrine in an effort
to balance the competing interests of employers and
employees. Thibodeau v. Design Group One Architects,
LLC, 260 Conn. 691, 698, 802 A.2d 731 (2002). Addition-
ally, it recognized ‘‘the inherent vagueness of the con-
cept of public policy and the difficulty encountered
when attempting to define precisely the contours of
the public policy exception.’’ Id., 699. ‘‘The issue then
becomes the familiar common-law problem of deciding
where and how to draw the line between claims that
genuinely involve the mandates of public policy and
are actionable, and ordinary disputes between
employee and employer that are not. We are mindful
that courts should not lightly intervene to impair the
exercise of managerial discretion or to foment unwar-
ranted litigation. We are, however, equally mindful that
the myriad of employees without the bargaining power
to command employment contracts for a definite term
are entitled to a modicum of judicial protection when
their conduct as good citizens is punished by their
employers.’’ Sheets v. Teddy’s Frosted Foods, Inc., 179
Conn. 471, 477, 427 A.2d 385 (1980).
The plaintiff’s complaint alleged that the patient
arrived via ambulance from another hospital at the
defendants’ emergency department in an unstable con-
dition, that the ambulance crew took the necessary
pacing equipment with it and left the patient ‘‘not
paced,’’ that the pacer wire hanging from the patient’s
neck was not connected, that the external pacer pads
applied to the patient were insufficient to pace his heart,
that the plaintiff was recruited to assist the patient’s
assigned team because of her experience, that she tried
to connect the pacer wire into the hospital’s own pacer
device but it would not fit because of the plastic sheath-
ing at the end of the pacer wire, and that she trimmed
back the plastic and was then able to plug it into the
hospital’s pacer, thereby saving the patient’s life.
In her objection to the defendants’ motion for sum-
mary judgment, as supplemented, the plaintiff submit-
ted her affidavit that added the following information.
Members of the nursing staff had attempted to attach
the patient’s pacer wire to the hospital’s pacer box, but
were unsuccessful because the wire did not fit and
there was no adapter available to make the connection;
recognizing that the patient was in ‘‘imminent danger
of death,’’ the plaintiff removed a portion of the plastic
sheathing on the pacer wire to make the connection to
the pacer box; the patient’s vital signs immediately
began to stabilize; and the plaintiff was commended by
the medical staff present, including the charge nurse
on duty, for her actions.
The plaintiff also submitted transcript excerpts from
depositions taken in this action to support her objection
to the motion for summary judgment.4 Diane Trudeau,
a manager in the defendants’ human resources depart-
ment, testified that the disciplinary action form, dated
June 6, 2012, accurately depicted the events that led to
the plaintiff’s termination of employment. That form,
as previously discussed, stated that the patient was in
unstable condition, had a very low heart rate, and had
low blood pressure. Additionally, the form stated that
the nursing staff attempted to attach the patient’s pacer
wire to the hospital’s temporary pacer box, but that it
did not fit. Further, while other nurses were ‘‘trouble-
shooting,’’ the plaintiff came into the room to offer
support and cut a small amount of the plastic sheathing
from the pacer wire, establishing a connection with the
pacer box. After the connection was made, the patient’s
blood pressure improved, and he stabilized. The defen-
dants’ disciplinary action form, therefore, corroborates
several of the plaintiff’s allegations in her complaint
and in her affidavit in opposition to the defendants’
motion for summary judgment.
The submitted excerpt from the deposition transcript
of Gilda Cabral, a nurse manager, addressed the prob-
lem of a missing adapter. Cabral testified that the plain-
tiff, instead of altering medical equipment by cutting
the plastic sheathing from the pacer wire, should have
‘‘retrieve[d] an adapter.’’ Cabral was then asked the
following question: ‘‘If there was an adapter and it was
readily available, why wasn’t the temporary pacer for
Manchester5 being used during the five hours the patient
was in the [Saint Francis] emergency department?’’
(Footnote added.) Cabral responded: ‘‘I can’t speak
to that.’’
An excerpt from the submitted deposition transcript
of Loreen Williams, the patient’s attending nurse who
was present in the cardiac intensive care unit during
the medical incident, also focused on the absence of
the requisite adapter. Williams testified: ‘‘I’m only aware
that the adapter exists now. I did not know at the time
that the adapter existed.’’ When asked about the actions
of Gregory Vernon, the charge nurse on duty in the
unit, Williams testified: ‘‘I also know [charge nurse Ver-
non] was there at the very end when the wires were
finally connected . . . . Yes, he knew we were trying
to connect them, and he knew how we were trying to
connect them. He left, and came back, and he congratu-
lated [the plaintiff] once they were connected. . . . He
reappeared shortly thereafter as the connections were
being made and the patient was being paced. We con-
gratulated [the plaintiff] on a job well done, and it would
have been horrible if she wasn’t there . . . .’’
As additional support for her objection to the defen-
dants’ motion for summary judgment, the plaintiff sub-
mitted an excerpt from the deposition transcript of Dr.
Aneesh Tolat, the electrophysiologist who, according
to the June 6, 2012 disciplinary action form, allegedly
‘‘was very disturbed and made it clear that [the plain-
tiff’s] action was inappropriate and unacceptable.’’
When asked about the comments ascribed to him on
the personnel/human resources form, Dr. Tolat testified
at his deposition: ‘‘No, I asked the nurse who was taking
care of the patient in the morning to contact the nurse
manager because this was something I have never seen
before, and in general not an acceptable form of care,
so I did state to that nurse, and I had no idea who this
other nurse [who cut the plastic sheathing] was or who
the parties were involved with this, that this in general
is not a common occurrence and because of its—and
in ten years of practice I have never seen anybody strip
a wire and I have never heard of it in any professional
organizational type meetings.’’
The issue, then, is whether the allegations in the
plaintiff’s complaint and the documents submitted in
connection with her objection to the defendants’ motion
for summary judgment were sufficient to demonstrate
the existence of a genuine issue of material fact as to
whether her discharge was in violation of an important
public policy. Before making that determination, how-
ever, the defendants’ claim that the plaintiff never iden-
tified an important public policy must first be
addressed. The complaint clearly alleges that ‘‘[s]aving
a person’s life is a substantial public policy,’’ and that
‘‘[t]he [d]efendants’ attempt to cover up their liability
exposure, by firing the one person who stepped up to
the plate to save a man’s life, is improper and violates
public policy.’’ As a preliminary matter, therefore, it
must be determined whether saving a patient’s life
under the circumstances as alleged in this case can
constitute a strong public policy that would preclude
the plaintiff’s discharge on the basis of such conduct.
I conclude that it does.
In their motion for summary judgment, the defen-
dants argued that the plaintiff cited no ‘‘explicit statu-
tory or constitutional provision’’ in support of her claim
that saving lives constitutes an important public policy.
(Emphasis omitted.) The trial court agreed that the
plaintiff failed to cite ‘‘a relevant public policy that was
violated by her termination under the circumstances.’’
Although the plaintiff did not refer to a statute or consti-
tutional provision with respect to this claim, I conclude
that her dismissal for the saving of the patient’s life, as
alleged, would constitute a discharge in violation of a
judicially conceived notion of public policy. See Gag-
non v. Housatonic Valley Tourism District Commis-
sion, supra, 92 Conn. App. 844.
It is not surprising that there is no legislation or
constitutional provision that explicitly confirms that
saving a person’s life, if possible, constitutes a sound
public policy in the state of Connecticut. It would seem
unnecessary to legislate the foundational mission of
saving life shared by attending medical staff when a
patient is failing while in emergency care, for lack of
the appropriate medical equipment. As stated by our
Supreme Court in Parsons v. United Technologies
Corp., 243 Conn. 66, 85, 700 A.2d 655 (1997), a case
in which the plaintiff claimed wrongful termination of
employment for his refusal to travel to Bahrain at the
time a travel advisory had been issued by the United
States Department of State, ‘‘common sense and
human experience dictate that the plaintiff’s assign-
ment to . . . Bahrain could pose a significant threat
to the plaintiff’s safety and welfare.’’6 (Emphasis added.)
Having determined that saving a person’s life can
constitute an important public policy, I now look to the
allegations in the plaintiff’s complaint and the docu-
ments submitted in connection with her objection to the
defendants’ motion for summary judgment to determine
whether they were sufficient to demonstrate the exis-
tence of a genuine issue of material fact as to whether
her discharge was in violation of that public policy.
Although the plaintiff’s complaint alleges a sufficient
claim for wrongful discharge in violation of an
important public policy, the defendants maintain that
there is no genuine issue of material fact because her
employment was terminated for her violation of the
hospital’s policy prohibiting the alteration of medical
equipment. The reason for the plaintiff’s discharge
clearly is in dispute. Because this is the defendants’
motion for summary judgment, they must demonstrate
the absence of a genuine issue of material fact.
‘‘[T]he burden of showing the nonexistence of any
material fact is on the party seeking summary judgment
. . . . It is not enough for the moving party merely to
assert the absence of any disputed factual issue; the
moving party is required to bring forward . . . eviden-
tiary facts, or substantial evidence outside the pleadings
to show the absence of any material dispute.’’ (Internal
quotation marks omitted.) Mills v. The Solution, LLC,
138 Conn. App. 40, 62, 50 A.3d 381, cert. denied, 307
Conn. 928, 55 A.3d 570 (2012). ‘‘[W]hen documents sub-
mitted in support of a motion for summary judgment
fail to establish that there is no genuine issue of material
fact, the nonmoving party has no obligation to submit
documents establishing the existence of such an issue.’’
(Internal quotation marks omitted.) Rockwell v.
Quintner, 96 Conn. App. 221, 229–30, 899 A.2d 738,
cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).
In the most recent guidance of a panel of this court:
‘‘Summary judgment should be denied where the affida-
vits of the moving party do not affirmatively show that
there is no genuine issue of fact as to all of the relevant
issues of the case. . . . Accordingly, the rule that the
party opposing summary judgment must provide evi-
dentiary support for its opposition applies only when
the moving party has first made out a prima facie case
for summary judgment. . . . [I]f the party moving for
summary judgment fails to show that there are no genu-
ine issues of material fact, the nonmoving party may
rest on mere allegations or denials contained in his
pleadings.’’ (Internal quotation marks omitted.)
Capasso v. Christmann, 163 Conn. App. 248, 259,
A.3d (2016).
On the basis of the record in this case, as detailed
in this opinion, I conclude that the court improperly
granted the defendants’ motion for summary judgment
as to this claim because a genuine issue of material
fact exists as to the reason for the plaintiff’s discharge.
‘‘Even assuming that the plaintiff faces a difficult chal-
lenge in ultimately proving its case at trial, that assump-
tion cannot form the basis for granting a motion for
summary judgment. So extreme a remedy as summary
judgment should not be used as a substitute for trial
or as a device intended to impose a difficult burden on
the non-moving party to save his [or her] day in court
unless it is clear that no genuine issue of fact remains
to be tried.’’ (Internal quotation marks omitted.) Mott
v. Wal-Mart Stores East, LP, 139 Conn. App. 618, 631,
57 A.3d 391 (2012). For these reasons, I would reverse
the trial court’s judgment with respect to the plaintiff’s
count alleging wrongful discharge in violation of an
important public policy.
Accordingly, I respectfully dissent.
1
The plaintiff had argued that the ‘‘rescue doctrine’’ supported a public
policy for saving lives. ‘‘The rescue doctrine was first promulgated by Car-
dozo, J., in Wagner v. International R. Co., 232 N.Y. 176, 133 N.E. 437 (1921),
in which the court stated: ‘Danger invites rescue. The cry of distress is the
summons to relief. The law does not ignore these reactions of the mind in
tracing conduct to its consequences. It recognizes them as normal. It places
their effects within the range of the natural and probable. . . .’ (Citations
omitted.) Id., 180.’’ Zimny v. Cooper-Jarrett, Inc., 8 Conn. App. 407, 411–12,
513 A.2d 1235, cert. denied, 201 Conn. 811, 516 A.2d 887 (1986).
Our Supreme Court established the rescue doctrine in Connecticut in
Cote v. Palmer, 127 Conn. 321, 16 A.2d 595 (1940). After quoting from § 472
of the Restatement of Torts (1934) that ‘‘[i]t is not contributory negligence
for a plaintiff to expose himself to danger in a reasonable effort to save a
third person or the land or chattels of himself or a third person from harm’’;
id., 326–27; the court stated that ‘‘[t]he law cannot leave out of account the
ordinary attributes of human nature . . . and it condones conduct in the
face of sudden emergency which it would otherwise condemn.’’ (Internal
quotation marks omitted.) Id., 327–28.
The trial court in the present case concluded that the rescue doctrine
was applicable only when determining whether a rescuer’s contributory
negligence should be excused. According to the court: ‘‘The rescue doctrine
does not constitute a public policy for the purposes of an exception to the
at-will employment doctrine, nor is it clear how the rescue doctrine is
applicable to the circumstances of the plaintiff’s case.’’
2
The trial court clearly understood the plaintiff’s claim of an important
public policy to include the saving of lives. As stated in the memorandum
of decision, ‘‘Essentially, the plaintiff contends that she was punished for
her life-saving act . . . .’’
3
I also note that inadequate briefing does not prohibit a reviewing court
from addressing an issue; we simply may decline to address it. Deutsche
Bank National Trust Co. v. Shivers, 136 Conn. App. 291, 292 n.2, 44 A.3d
879 (claim not briefed on appeal deemed abandoned, and court may decline
to review it), cert. denied, 307 Conn. 938, 56 A.2d 950 (2012). The majority’s
decision not to review a claim on the basis of inadequate briefing is discre-
tionary in nature. Ward v. Greene, 267 Conn. 539, 546, 839 A.2d 1259 (2004).
4
The trial court noted that these documents consisted of the ‘‘uncertified,
excerpted deposition testimony’’ of various medical staff at the defendants’
facility. Nevertheless, the court did not exclude consideration of those sub-
missions by the plaintiff. Moreover, in response to questioning by this court
during oral argument, the defendants’ counsel stated that it did appear that
the court considered those excerpts, on the basis of its reference to them
in the memorandum of decision, and that the court considered everything
submitted by the plaintiff in connection with her objection to the motion
for summary judgment.
‘‘Because the trial court appears to have considered all the materials . . .
and no challenge appears to have been made, we likewise will consider the
substance of the materials presented.’’ Li v. Canberra Industries, 134 Conn.
App. 448, 455 n.4, 39 A.3d 789 (2012).
5
The patient was transported from Manchester Memorial Hospital to the
defendants’ facility.
6
Moreover, even if not directly related to employment claims, the rescue
doctrine and General Statutes § 52-557b, Connecticut’s good Samaritan law,
at the very least are reflective of a recognized policy that those individuals
who put themselves at risk in order to render emergency assistance to
others merit protection from liability if certain adverse consequences occur.
Also, as pointed out in State v. Duhaime, 33 Conn. Supp. 129, 138–39,
365 A.2d 837 (1976), warrantless searches by law enforcement officers have
been judicially sanctioned when entry was made to save lives. See Vauss
v. United States, 370 F.2d 250, 252 (D.C. Cir. 1966); United States v. Dorman,
294 F. Supp. 1221, 1225 (D. D.C. 1967).
Connecticut additionally recognizes a ‘‘public safety exception’’ to admit
statements given in the absence of being advised of Miranda rights. Miranda
v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). As stated
in State v. Betances, 265 Conn. 493, 503, 828 A.2d 1248 (2003), ‘‘[s]everal
state and federal courts in other jurisdictions . . . have applied the public
safety exception to situations involving a concern for an individual’s safety,
including police officers, victims and defendants.’’ The court held: ‘‘We agree
with these courts that the public safety exception applies to individual
members of the public, including defendants, as well as to the public at
large.’’ Id., 504; see also State v. Bardales, 164 Conn. App. 582, 591, A.3d
(2016) (‘‘concern for public safety must be paramount to adherence to
the literal language of the prophylactic rules enunciated in Miranda’’).