Beverly S. Stillson v. St. Joseph County Health Department

FOR PUBLICATION Dec 02 2014, 10:13 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PATRICK F. O’LEARY PETER J. AGOSTINO
Goshen, Indiana Anderson Agostino & Keller P.C.
South Bend, Indiana
M. CATHERINE FANELLO
Krieg DeVault LLP
Mishawaka, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BEVERLY S. STILLSON, )
)
Appellant-Plaintiff, )
)
vs. ) No. 20A03-1406-CT-191
)
ST. JOSEPH COUNTY )
HEALTH DEPARTMENT, )
)
Appellee-Defendant. )
APPEAL FROM THE ELKHART SUPERIOR COURT
The Honorable Evan S. Roberts, Judge
Cause No. 20D01-1303-CT-41
December 2, 2014
OPINION - FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Beverly Stillson appeals the trial court’s grant of summary judgment in favor of
St. Joseph County Health Department (“SJHD”) on Stillson’s complaint alleging
retaliatory discharge. Stillson presents a single issue for our review, namely, whether
there are genuine issues of material fact that preclude summary judgment.
We reverse and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
In March 2011, SJHD re-opened a clinic to treat patients with sexually-transmitted
diseases (“the clinic”). Stillson and Courtney Dewart, both registered nurses employed
by SJHD, were chosen to staff the clinic. Dr. Thomas Felger, M.D., the Health Officer
for SJHD, worked at the clinic approximately sixteen hours per week. Dr. Felger was the
only physician working at the clinic. Stillson and Dewart reported to Barbara Baker,
R.N., the Director of Nursing for SJHD, and Baker reported to Dr. Felger. Other than on
one day in June 2011, Dr. Felger did not see patients at the clinic. Stillson and Dewart
saw patients and administered treatments based upon the 1998 Centers for Disease
Control (“CDC”) Guidelines for Treatment of Sexually Transmitted Diseases (“the 1998
Guidelines”). The 1998 Guidelines “provide[d] the protocols for the treatment of various
STD[s], including syphilis, in the St. Joseph County Health Department.” Appellee’s
App. at 4.
In approximately June 2011, Stillson and Dewart became concerned that the
protocols for treating patients at the clinic required them to exceed the scope of practice
for a registered nurse. Stillson and Dewart shared those concerns with Baker and Dr.
2
Felger. And on June 22, Stillson contacted the Indiana State Board of Nursing by email
as follows:
I am asking for some clarification regarding “scope of practice” of a
registered nurse working in an STD clinic in a local health department in
the state of IN.
When a client presents at our clinic with symptoms of Gonorrhea or
Chlamydia, we have been urine testing them and if that test is positive,
treating them per CDC protocol by RN. If a client presents at clinic stating
that his sexual partner has had a positive lab test for GC or CT[1], we are
asking for a copy of that laboratory report and if presented, that client will
be treated per CDC protocol by RN.
Question is—when client presents without support of positive partner lab,
is it outside the scope of practice of RN to treat that person with antibiotics?
There is no nurse practitioner or physician overseeing each client to make
diagnosis.
Do “Public Health” RN’s have different scope of practice?—Are RNs in
Public Health setting able to diagnose disease and treat an STD on a
client’s word of exposure or stated symptoms without oversight by NP or
physician?
Appellant’s App. at 110.
In response to Stillson’s email, Lori Grice, Assistant Director of the Indiana State
Board of Nursing, wrote to Stillson as follows:
The Indiana State Board of Nursing nurse practice act does not
define nursing scope of practice in terms of specific procedures. . . .
The nurse cannot perform or delegate those duties that are
specifically reserved for other licensed individuals, and that they [sic]
maintain responsibility for the safe and appropriate performance of any
nursing measure that they delegate. If a nurse does not feel comfortable
delegating tasks permitted or required by their employer’s policy or
practice, there is a decision to be made: document it, and do not allow
yourself to be placed in a position where you are forced to practice
1
We discern from the context that “GC” stands for Gonorrhea and “CT” stands for Chlamydia.
3
unsafely, because ultimately it is an individual’s license to practice that is at
stake here.
Id.
On June 24, Baker and Dr. Felger prepared the following “Conference Record”
regarding an incident that day:
On June 24, 2011, Dr. Felger was in the STD clinic to observe clinic
operations and see clients as necessary.[2] Dr. Felger was present during a
client interview. The client stated his partner had told him he had an STD
possibly Chlamydia but there was no lab report of the partner named to
confirm the client exposure.
Clinic practice has been to treat partners when a positive lab of the
diagnosed partner lab can be obtained. In the absence of a lab report testing
of the partner presenting is done and treatment initiated upon confirmation
of the STD diagnosis.
Dr. Felger decided as the attending physician to treat this client
based on his statement of exposure. Beverly Stillson felt that this was
outside the realm of our established clinical practice and was uncomfortable
giving the ordered medication and declined to administer. The director of
Nursing intervened and requested the client be tested and have specimen
sent to the lab for testing and gave the ordered oral medication to the
patient prior to the client leaving the clinic.
Clinical practice in the STD clinic follows the CDC 2010 guidelines
for the treatment of STD[s]. However, the attending physician always can
use their [sic] clinical judgment in decisions how to best treat each
individual client.
There may be times when differences in opinion as to optimal
treatment or policy seem to be in conflict. Open discussion is critical but
the overriding factor is the determination of the physician as to the
medication order and treatment for a client.
It is essential that if a physician order for a medication is given it be
administered unless there is the potential for significant harm to the client.
This was not the concern in this case. The order could have been written as
a verbal order on the chart or Dr. Felger could have been asked to write an
order for the medication.
2
The undisputed designated evidence shows that this was the only day during Stillson’s tenure at
the clinic when Dr. Felger saw patients face to face.
4
Registered Nurses work under the direction of the attending
physician. Communication and positive working relationships are critical
as part of a core health care team.
The incident reflects a breakdown in communication and clear
understanding of STD policies that can be seen as policy rather than
guidelines for decision making. Beverly is also new in her role in the STD
clinic and is working in a clinic that has not been fully operational until the
past three months.
I do not anticipate any further concerns in the working relationship
with our Health Officer. A positive outcome of the meeting is the
recognition of the need to meet on a regular basis with the Health Officer
and STD nursing staff to address clinic operations and concerns that affect
client care and overall clinic operations.
Id. at 111 (emphases added). In addition to the written reprimand, Dr. Felger told
Stillson, “I don’t want to hear any more about your nursing license.” Id. at 108.
In July 2011, after the Indiana State Department of Health “recogni[zed]” the 2010
CDC Guidelines for Treatment of Sexually Transmitted Diseases, the clinic revised some
of its policies regarding the protocols for treating STDs. Appellee’s App. at 4. Effective
July 11, 2011, SJHD’s policy provided in relevant part that diagnoses of gonorrhea and
chlamydia would be made “[b]ased on a positive [urine test] or positive lab from other
health care provider[.]” Id. at 10, 11. Further, a patient presenting with “documentation
of positive partner lab or patient stated history of exposure” would be treated for
gonorrhea or chlamydia. Id. But the diagnosis of syphilis required a “clinical decision
and laboratory diagnosis” by the attending physician “prior to the administration of
Penicillin.” Id. at 15 (emphasis added).
On July 19, Dewart contacted a former nursing professor by email and wrote the
following:
5
Currently, I am working part-time in the STD clinic. At present, a fellow
RN and myself have been operating under a policy signed by a health
officer, that says that STD clinic staff shall use the CDC Treatment
Guidelines to treat patients (based upon a positive lab result). Regarding
treatment of partners, a policy outlines that partners can be treated with
proof of a positive partner lab. This practice of presumptive treatment of
contacts of someone diagnosed with an STD is endorsed by the CDC in the
most current 2010 Treatment Guidelines.
Last week, however, we were blindsided by a new policy, with wording
related to presumptive treatment that I can find no evidence that the CDC
supports, and that I feel far exceeds the scope of practice of an RN. The
new policy says to treat “with documentation of positive partner lab or
PATIENT STATED HISTORY OF EXPOSURE.” This last part is what
has me concerned: a client can walk in, state that they think they have been
exposed to a specific STD, but with no lab, no partner lab, and prior to any
testing, the RN is expected to provide treatment.
In my opinion, this falls outside of an RN’s scope of practice, even if the
Health Officer (an MD) signs off on the policy for this reason: in order to
warrant treatment, there must be a diagnosis. Even if it is only the
diagnosis or positive lab of a partner, the CDC endorses treating in that
situation. But in this case, where is the diagnosis? Who is diagnosing or
validating the said disease? The patient can’t self-diagnose, so it would
seem that it would be the RN that would have to make the specific
diagnosis (based off of patient’s word) in order to provide a specific
treatment.
I was so uncomfortable with this new policy, as was a fellow RN that
works in the STD clinic with me. We approached management and
explained that in these rare instances, we would be happy to treat if the
Health Officer would give a verbal order to treat. He has so far refused to
do this. So, myself and fellow RN simply refused to accept the new policy
with this wording on presumptive treatment, and requested that we be
moved into two available “Public Health Nurse” positions that would
relieve us of STD clinic duties. In essence, we were told that this may not
be possible, and that we may have to be let go if we refuse to follow the
policy as written.
Whew! A bit of a bad situation, but, as I told my boss: even though I
absolutely love my job, if I feel like something falls outside of my scope of
practice as a Registered Nurse, I will not do it, even if that means losing my
job.
6
Id. at 60 (emphases added).
Thereafter, Stillson and Dewart contacted Queenie Evans, the Human Resources
Director for SJHD, regarding their concerns about the new protocols. And on July 26,
Evans wrote the following email to Stillson and Dewart:
Last evening I had the opportunity to discuss your issue with attorney Peter
Agostino. After he reviewed the policy and the CDC regulations he
advised me that the doctor followed the regulations and the policy being
signed by Dr. Felger makes it a standing order. Peter also stated that
waiting to treat a possible infected individual could cause more problems
down the line. As that person in the interim could go out and infect more
people while he waits for the test results. It is better to be safe than sorry.
So the doctor’s policy is a legal document and he is not asking you to
perform duties outside of your scope of practice.
Also per your policy manual you have the right to have a witness present
during a meeting or reprimand.
It is now time to move past this issue and move forward. I know this has
been a distracting issue but hopefully I have been able to put your minds at
ease.
Have a wonderful week.
Appellee’s App. at 111-12 (emphasis added). In response, Stillson wrote the following
email to Evans:
Thank you so much, Queenie.
Really appreciate your and Mr. Agostino’s time in this matter. Would it be
possible to obtain this explanation in writing signed by Mr. Agostino for
Courtney and my personnel and personal file? I think we will be able to
proceed now with good care of our clients in STD clinic.
Also, will these policies be signed by legal counsel? Just trying to
understand the legal workings!!
Again, thank you!!
7
Id. at 111. In response to Stillson’s email, on August 3, Agostino prepared a
memorandum addressing the following issue: “Whether treatment by registered nurses in
accordance with the 2010 CDC Sexually Transmitted Diseases Treatment Guidelines . . .
of Chlamydia, Gonorrhea, Trichomoniasis, and Syphilis without a formal lab test being
performed is a violation of the Indiana Code and/or Indiana Administrative Code.”
Appellee’s App. at 113. The memorandum provided as follows:
We were provided with the St. Joseph County Health Department Policy
and Procedure relative to the treatment of recommendations for Chlamydia,
Gonorrhea, and Syphilis which went into effect on 07/07/11, as well as a
revised policy and procedure which was drafted by the nurses who are
charged with carrying out the policies and procedures. The changes that the
nurses made require that testing for the diseases to be treated be performed
prior to the treatment of the diseases. The nurses’ concern likely stems
from 848 IAC 2-2-1 through 2-2-3, as well as Indiana Code [Section] 25-
23-1-1.1, as a nurse is not authorized to engage in the diagnosis of a disease
and thereafter treat the disease without the intervention of a physician with
an unlimited license to practice medicine or orthopedic osteopathic
medicine, a licensed dentist, a licensed chiropractor, a licensed optometrist
or a licensed podiatrist.
Pursuant to Indiana Code [Section] 25-23-1-1.1 (b)(5), nurses are
charged with “executing regimens delegated by a physician. . . .” Due to
the fact that the policies and procedures at issue were put in place by and
signed by a physician these policies and procedures can be considered a
standing order to be executed by nurses. Since nurses are responsible to
“formulate a nursing diagnosis based on accessible, communicable, and
recorded data which is collected in a systematic and continuous manner,”
and assess patients in a systematic and organized manner pursuant to 848
IAC 2-2-1, nurses are authorized to assess a patient and carry out a
physician order if the patient meets the physician’s criteria to be treated. In
this instance, the policy and procedure put into place by the St. Joseph
County Health Department gives specific directions on what the nurses
must look for prior to treating the diseases mentioned above when
performing their nursing diagnoses. Thus, any treatment of the
aforementioned diseases by the nurses pursuant to the policies and
procedures would be akin to a nurse in a hospital setting administering a
drug to an in-patient based on a nursing diagnosis pursuant to a standing
order to administer the drug.
8
In our professional opinion, nurses performing the duties as directed
by the Medical Director of St. Joseph County Health Department is not a
violation of the nursing laws and regulations.
Id. at 113-14 (emphases added).
On August 17, Stillson saw a syphilis patient, and Stillson contacted Baker and
requested that Dr. Felger “stage” the disease. “Staging” is a determination, by a
physician, of whether a patient’s syphilis is primary or secondary, which, in turn, dictates
what treatment should be administered.3 Appellant’s App. at 37-38. Baker refused to
contact Dr. Felger on Stillson’s behalf and instructed Stillson to administer a single shot
of penicillin “on the assumption that the patient’s syphilis was ‘primary’ and not
‘latent.’” Id. at 108 (emphasis added). Stillson refused to administer the shot of
penicillin “without a medical diagnosis.” Id. Stillson asked that Dr. Felger “participate
in the assessment [of the patient] by telephone.” Id. Again, Baker refused Stillson’s
request.
Thereafter, Baker
determined that Stillson’s employment with [SJHD] was in jeopardy due to
her unprofessional behavior [on August 17]. . . . Her behavior continued to
deteriorate subsequent to this discussion. Termination was considered but,
instead, as a condition of employment, Stillson was mandated to participate
in the Employee Assistance Program.
Id. at 89. And on August 30, 2011, Baker gave Stillson an “eight month review of her
performance[,]” which was deemed
unsatisfactory because [Stillson] had difficulty dealing with peers and
management, excessive absences, lack of respect for others with different
3
Treatment of primary and secondary syphilis, or syphilis that has been “latent less than one
year,” consists of a single dose of Penicillin. Appellee’s App. at 15. Treatment of “late latent syphilis or
latent syphilis of unknown duration or greater than one year” consists of three doses of Penicillin at one
week intervals. Id.
9
perspectives, her negative tone and body language at various times,
inability to follow chain of command, inability to properly address peers
and leadership when addressing concerns, and failure to follow policies
related to patient care.
Id. But, in a quarterly report prepared for the Indiana State Nurses Assistance Program
(“ISNAP”) on January 6, 2012, Baker stated that Stillson was “working well [with]
clients and peers[; was] professional in interactions with managers and medical director[;
and was] open to others’ ideas or suggestions.” Appellant’s App. at 116.
On approximately March 2, 2012, Stillson “attacked [a fellow nurse’s] work habits
in front of several other fellow employees.”4 Appellee’s App. at 89. That incident was
reported to Baker. And on March 9, when Baker discussed with Stillson “her overuse of
flex time[,]” Stillson “became loud, aggressive and somewhat threatening.” Id.
Accordingly, on March 9, Baker met with Paige Smith, the Assistant Director of Nursing,
and Nick Molchan, the Administrator for SJHD, to discuss Stillson’s “most recent
behavior.” Id. Baker, Smith, and Molchan decided to talk to Dr. Felger about whether to
terminate Stillson’s employment. And, after a meeting, Dr. Felger agreed that SJHD
should terminate Stillson’s employment. Accordingly, in a written notice of termination
dated March 12 and given to Stillson that day, Baker and Dr. Felger stated the following:
Concerns exist about Beverly’s attitude toward peers and management is
[sic] becoming increasingly hostile and aggressive.
She has a complete book of human resource policies and this is not the first
time discussions have been held with Beverly about flex time accruals. She
has an excessive need for wanting written documentation on every work
flow process instead of using critical nursing judgment.
4
Stillson accused the coworker of spending too much time on personal phone calls during work
hours.
10
There have been four other conference records with Beverly in the past
year. She was also mandated to go through the Employee Assistance
Program as a condition of continued employment in August 2011.
Continued employment at the health department is not in the best interest of
Beverly or the department. Termination is effective immediately.
Id. at 108 (emphasis added).
On September 11, 2013, Stillson filed an amended complaint5 alleging that
[SJHD] fired [Stillson] in retaliation for her refusal to exceed her scope of
practice; for her refusal to violate nursing regulations; for notifying in
writing [SJHD] and the [Indiana State Board of Nursing] [sic]; and for her
refusal to commit a crime or unprofessional conduct for which she was
subject to possible criminal prosecution or professional discipline up to and
including the revocation or suspension of her RN license.
Appellant’s App. at 15. SJHD filed its answer and, on February 21, 2014, SJHD moved
for summary judgment. The trial court granted SJHD’s summary judgment motion
following a hearing. This appeal ensued.
DISCUSSION AND DECISION
Our supreme court recently reaffirmed our standard of review in summary
judgment appeals:
We review summary judgment de novo, applying the same standard as the
trial court: “Drawing all reasonable inferences in favor of . . . the non-
moving parties, summary judgment is appropriate ‘if the designated
evidentiary matter shows that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of law.’”
Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)).
“A fact is ‘material’ if its resolution would affect the outcome of the case,
and an issue is ‘genuine’ if a trier of fact is required to resolve the parties’
differing accounts of the truth, or if the undisputed material facts support
conflicting reasonable inferences.” Id. (internal citations omitted).
5
Neither the briefs nor the record on appeal indicates when Stillson filed her original complaint
or why it was amended.
11
The initial burden is on the summary-judgment movant to
“demonstrate[] the absence of any genuine issue of fact as to a
determinative issue,” at which point the burden shifts to the non-movant to
“come forward with contrary evidence” showing an issue for the trier of
fact. Id. at 761-62 (internal quotation marks and substitution omitted).
And “[a]lthough the non-moving party has the burden on appeal of
persuading us that the grant of summary judgment was erroneous, we
carefully assess the trial court’s decision to ensure that he was not
improperly denied his day in court.” McSwane v. Bloomington Hosp. &
Healthcare Sys., 916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation
marks omitted).
Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (alterations original to Hughley).
We emphasize that summary judgment is a “high bar” for the moving party to
clear in Indiana. Id. at 1004. “In particular, while federal practice permits the moving
party to merely show that the party carrying the burden of proof [at trial] lacks evidence
on a necessary element, we impose a more onerous burden: to affirmatively ‘negate an
opponent’s claim.’” Id. at 1003 (quoting Jarboe v. Landmark Comm. Newspapers of
Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994)). Further:
Summary judgment is a desirable tool to allow the trial court to dispose of
cases where only legal issues exist. But it is also a “blunt . . . instrument”
by which the non-prevailing party is prevented from having his day in
court. We have therefore cautioned that summary judgment is not a
summary trial and the Court of Appeals has often rightly observed that it is
not appropriate merely because the non-movant appears unlikely to prevail
at trial. In essence, Indiana consciously errs on the side of letting marginal
cases proceed to trial on the merits, rather than risk short-circuiting
meritorious claims.
Id. at 1003-04 (citations and some quotations omitted; omission original to Hughley).
Stillson contends that SJHD fired her in retaliation for her refusal to engage in the
unlicensed practice of medicine and her refusal to violate Board of Nursing regulations.
In particular, on appeal, Stillson suggests that SJHD had asked her to stage syphilis, and
12
she alleges that “[i]t would be a crime for a registered nurse to engage in this conduct.”
Appellant’s Br. at 15. SJHD maintains that the trial court properly granted its summary
judgment motion because the designated evidence shows that it fired Stillson for non-
retaliatory reasons.
In Powdertech, Inc. v. Joganic, 776 N.E.2d 1251, 1261-62 (Ind. Ct. App. 2002),
this court set out the applicable law as follows:
In general, an employment contract of indefinite duration is
presumptively terminable at the will of either party. Pepkowski v. Life of
Ind. Ins. Co., 535 N.E.2d 1164, 1168 (Ind. 1989). However, in Frampton v.
Central Ind. Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973), our supreme
court created an exception to the employment-at-will doctrine when an
employee was discharged for filing a worker’s compensation claim. The
Frampton court stated that when an employee is discharged solely for
exercising a statutorily conferred right, an exception to the general rule is
recognized, and a cause of action exists in the employee as a result of the
retaliatory discharge. Id. at 253, 297 N.E.2d at 428. We have
acknowledged that:
one of the reasons for the Frampton rule is to prevent the
employer from terminating the employment of one employee
in a manner which sends a message to other employees that
they will lose their job if they exercise . . . [a statutorily
conferred right]. . . . The discharge of an employee merely
for suggesting she might . . . [exercise a statutorily conferred
right] has an even stronger deleterious effect.
Samm v. Great Dane Trailers, 715 N.E.2d 420, 426 (Ind. Ct. App. 1999),
abrogated on other grounds by Martin v. State, 774 N.E.2d 43 (2002)
(internal quotations omitted).
The question of retaliatory motive for a discharge is a question for
the trier of fact. Dale v. J.G. Bowers, Inc., 709 N.E.2d 366, 369 (Ind. Ct.
App. 1999). “Where causation or retaliation is at issue, summary judgment
is only appropriate ‘when the evidence is such that no reasonable trier of
fact could conclude that a discharge was caused by a prohibited
retaliation.’” Markley Enter., Inc. v. Grover, 716 N.E.2d 559, 565 (Ind. Ct.
App. 1999) (quoting Hamann v. Gates Chevrolet Inc., 910 F.2d 1417, 1420
(7th Cir. 1990), reh’g denied ). . . . In cases of wrongful termination based
13
upon allegations of discrimination, the employee can prove pretext [at trial]
by showing that: (1) the employer’s stated reason has no basis in fact; (2)
although based on fact, the stated reason was not the actual reason for
discharge; or (3) the stated reason was insufficient to warrant the discharge.
Dale, 709 N.E.2d at 369 (citing Motley v. Tractor Supply Co., 32 F. Supp.
2d 1026 (S.D. Ind. 1998)).
(Emphases added). And in McClanahan v. Remington Freight Lines, Inc., 517 N.E.2d
390, 392 (Ind. 1988), our supreme court extended the Frampton rule and held that an
employee cannot be discharged solely for refusing to breach a statutorily imposed duty.
Here, Stillson contends that SJHD fired her for refusing to breach a statutorily
imposed duty, that is, practicing within the scope of her license as a nurse as set out in
Indiana statutes and the Indiana Administrative Code. In its summary judgment motion,
SJHD designated as evidence Dr. Felger’s affidavit stating that SJHD never asked
Stillson to stage syphilis or “do anything unlawful.” Appellee’s App. at 5. SJHD also
designated as evidence the March 12, 2012, notice of termination showing that it had
valid, non-retaliatory reasons for terminating Stillson’s employment. Thus, SJHD
affirmatively negated Stillson’s claim of retaliatory discharge. The burden then shifted to
Stillson to designate evidence to make a prima facie showing that SJHD had asked her to
exceed the scope of her practice as a nurse in violation of Indiana statutes or the IAC.
And Stillson had to designate evidence to establish a question of fact regarding SJHD’s
motive for her discharge.
According to 848 IAC 2-2-2: “The registered nurse shall . . . [f]unction within the
legal boundaries of nursing practice based on the knowledge of statutes and rules
governing nursing.” And 848 IAC 2-2-3 provides in relevant part:
14
Nursing behaviors (acts, knowledge, and practices) failing to meet the
minimal standards of acceptable and prevailing nursing practice, which
could jeopardize the health, safety, and welfare of the public, shall
constitute unprofessional conduct. These behaviors shall include, but are
not limited to, the following:
(1) Using unsafe judgment, technical skills, or inappropriate interpersonal
behaviors in providing nursing care.
(2) Performing any nursing technique or procedure for which the nurse is
unprepared by education or experience. . . .
Further, Indiana Code Section 25-22.5-8-1 provides in relevant part that it is unlawful for
any person to practice medicine in this state without holding a license or permit to do so.
And Indiana Code Section 25-22.5-8-2 provides in relevant part that a person who
knowingly or intentionally violates this article by unlawfully practicing medicine
commits a Class C felony. The undisputed designated evidence establishes that only a
licensed physician can make a medical diagnosis. And the undisputed designated
evidence shows that only a licensed physician can stage syphilis, and once staged, the
protocols direct the treatment.
In opposition to summary judgment, Stillson designated as evidence her affidavit,
which provides in relevant part as follows:
8. On August 17, 2011, a Syphilis patient visited the clinic. I contacted
[Director of Nursing] Baker to involve Dr. Felger in staging the disease.
Ms. Baker refused to involve him. She instructed me to administer a single
shot of penicillin on the assumption that the patient’s Syphilis was
“primary” and not “latent.” I refused to do so, without a medical diagnosis.
I even suggested that Dr. Felger participate in the assessment by
telephone. Verbal orders are commonly given by physicians, for obvious
reasons. The nurse makes a notation on the patient’s charge documenting
the date, time, and specifics of the physician’s order. Later, the physician
pulls the patient’s chart and signs his or her initials beside the nurse’s chart
notation. Ms. Baker refused my request for Dr. Felger’s verbal order. This
15
incident led to the issuance of a disciplinary write up that is attached as
Exhibit 4. The handwritten notations on the document are mine. They
refer to my request that Dr. Felger make the diagnosis and issue a verbal
order, which Ms. Baker refused.
Id. at 108 (emphases added). Exhibit 4 to Stillson’s affidavit provides as follows:
Concern: Communication and Interaction with Director of Nursing and
Assistant Director of Nursing
On Wednesday August 17, 2011[,] the director of Nursing spoke with STD
nursing staff regarding a client who needed medical treatment the following
day. The treatment recommendation was through conversations with the
Indiana State Department of Health, the Health officer and the Director of
Nursing.
Beverly did not feel treatment should occur without a direct written
order from the physician and a clear definition of the diagnosis. When I
tried to explain to her the diagnosis at this time was going to be treated as a
primary case pending further determination she remained convinced that
what was being told to her was not sufficient to treat.
She became increasingly vocal and I told her she was wrong in her
view. She became even more upset and left the clinic area but apparently
stopped at the Assistant Director of Nursing’s office to voice her anger and
used inappropriate language to the ADON. This incident reflects
unacceptable behavior and lack of respect for management. Clinical
practice in the STD clinic follows the CDC 2010 guidelines for the
treatment of how to best treat each individual client.
There may be times when differences in opinion as to optimal
treatment or policy seem to be in conflict. Open discussion is critical but
the overriding factor is the determination of case management is not made
by nursing staff.
Registered Nurses work under the direction of the Health Officer.
Communication and positive working relationships are critical as part of a
core health care team.
The incident reflects a breakdown in communication and clear
understanding of STD policies.
This is the second incident in two months with unacceptable
behavior.
16
Beverly’s continued employment in the health department is in
serious jeopardy. At this time her continued employment will be based on
a referral and mandatory participation in the Employee Assistance Program
effective immediately.
Re-evaluation of her employment status will be made upon
completion of the EAP program.
Id. at 114 (emphases added).
We hold that Stillson designated sufficient evidence to establish a genuine issue of
material fact whether SJHD had asked her to exceed the scope of her practice as a nurse
in treating patients at the clinic. The undisputed designated evidence shows that a
physician must stage a patient’s syphilis before Penicillin is administered. And Stillson’s
designated evidence shows that she objected to administering Penicillin to a syphilis
patient without a diagnosis having first been made by Dr. Felger, which would have
exceeded the scope of her practice as a registered nurse.
Thus, we turn to the issue of whether Stillson has designated evidence to establish
a question of fact regarding SJHD’s motive for her discharge. In support of her
contention on appeal, Stillson cites to Markley, where the plaintiff brought a claim
alleging that he was terminated from his employment in retaliation for his filing a
worker’s compensation claim. The employer moved for summary judgment alleging that
it had terminated Markley’s employment because he had “made derogatory comments
about the Company to a coworker in violation of Company rules.” 716 N.E.2d at 562.
The trial court denied the employer’s summary judgment motion in relevant part, and we
affirmed on appeal. We held that
the mere fact that the Company has directed us to designated evidence in
which it has articulated a reason for Grover’s discharge which appears “at
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first blush” to be independent of the worker’s compensation claim does not
establish, as a matter of law, that the Company lacked retaliatory intent
when it discharged Grover. See Dale v. J.G. Bowers, Inc., 709 N.E.2d 366,
370 (Ind. Ct. App. 1999). Additional evidence designated by the Company
indicates that the Company had disciplined Grover on a prior occasion for
allegedly attempting to file a false claim for worker’s compensation
benefits. An internal Company memo discloses an extremely hostile
attitude against Grover for having attempted to file the previous claim and
stated that Grover’s employment would be terminated immediately in the
event of “any repeat violations.” Record at 78. Viewing that evidence in
the light most favorable to Grover, a reasonable finder of fact could infer
that the Company’s stated reason for discharge is merely a pretext. These
facts are sufficient to raise a genuine issue of material fact as to whether the
Company’s true motive for terminating Grover’s employment was his filing
of the worker’s compensation claim. As we noted earlier, the question of
retaliatory motive is a question properly for the trier of fact. See Frampton,
297 N.E.2d at 428. The Company is not entitled to summary judgment on
this issue.
Id. at 566 (emphases added).
Stillson argues that the designated evidence in Markley is analogous to that here.
In particular, on August 18, 2011, Baker and Dr. Felger prepared and signed a
“Conference Record” to memorialize the incident that occurred on August 17 between
Stillson and Baker regarding Stillson’s refusal to treat a syphilis patient without Dr.
Felger’s involvement in making a diagnosis. Appellant’s App. at 114. That Conference
Record states Stillson’s “continued employment in the health department is in serious
jeopardy.” Id. Stillson cites that document as proof that SJHD had previously threatened
her with termination for insisting that Dr. Felger stage a syphilis patient rather than
administering the treatment without a diagnosis, as instructed.
Viewing all of the evidence in the light most favorable to Stillson, a reasonable
factfinder could infer that SJHD’s true motive in terminating her employment was her
refusal to exceed the scope of her nursing practice. In June 2011, after Stillson refused to
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treat a patient without a diagnosis, she was reprimanded, and Dr. Felger told her, “I don’t
want to hear any more about your nursing license.” Appellant’s App. at 108. In August
2011, Stillson asked Baker to contact Dr. Felger about staging a patient’s syphilis, but
that request was refused, and Stillson was reprimanded. Baker considered terminating
Stillson at that point. In January 2012, Baker gave Stillson a positive work performance
review, stating that Stillson was working well with clients and peers and was professional
in her interactions with managers and the medical director. Then in March 2012, after
Stillson questioned the work ethic of a coworker in front of other coworkers, and after
Baker reprimanded Stillson for abusing flex time, SJHD terminated Stillson’s
employment. And one of the stated reasons for her termination was her “excessive need”
for documentation, which included her requests for verbal orders to treat patients. Id. at
117.
The facts are sufficient to raise a genuine issue of material fact as to whether
SJHD’s true motive for terminating Stillson’s employment was her refusal to treat
patients without diagnoses being made or to otherwise exceed the scope of her nursing
license. As we noted earlier, the question of retaliatory motive is a question properly for
the trier of fact. See Frampton, 297 N.E.2d at 428. And, again, summary judgment is not
a summary trial and it is not appropriate merely because the non-movant might appear
unlikely to prevail at trial. Hughley, 15 N.E.3d at 1003-04. The trial court erred when it
granted SJHD’s summary judgment motion.
Reversed and remanded for further proceedings.
BAILEY, J., and PYLE, J., concur.
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